WP CLOUD SERVICES AGREEMENT

Any access to or use of the Services are subject to this WP Cloud Services Agreement (“Agreement”), as well as to Automattic’s Privacy Policy, which is incorporated by reference into this Agreement. By using or accessing any part of the WP Cloud Service, you, on behalf of the entity you represent (“Company”) acknowledge that you have read, understood, and agree to be bound by this Agreement. If you are entering into this Agreement on behalf of an entity, such as the company you work for, you represent to us that you have legal authority to bind that entity.

We use the term “Designated Countries” to refer to Australia, Canada, Japan, Mexico, New Zealand, Russia, and all countries located in the European continent. If Company resides in the “Designated Countries,” the agreement is with Aut O’Mattic A8C Ireland Ltd. If Company resides outside of the “Designated Countries,” the agreement is with Automattic Inc.

We refer to Aut O’Mattic A8C Ireland Ltd. and Automattic Inc. collectively as “Automattic” or throughout this agreement. Automattic and Company are referred to as a “Party” individually and together, the “Parties.”

The Effective Date of this Agreement is the earliest date on which Company first signs up for or accesses the WP Cloud Services or portal.

1. WP Cloud Services.
   1. API: Subject to Company’s compliance with the terms and conditions of this Agreement, Automattic grants to Company a limited, non-exclusive, and non-transferable license to access and use APIs provided by Automattic solely for the purpose of provisioning hosting and associated services (e.g., setting up WordPress instances, assigning domains, and installing SSL) (the “Services”) to users of Company’s services (“Users”) for their websites (the “User Sites”).
   2. WP Cloud Reporting: Company shall add metadata, as required by Automattic, to User Sites to support site classification and reporting, and other uses as determined by Automattic. Automattic shall not be responsible for, and Company shall not be entitled to any refunds for Company’s failure to implement or tag correctly. Upon request, Company shall provide Automattic with reasonable documentation to demonstrate Services at site level, and Automattic has the right to audit Company’s records to ensure accurate reporting. If any audit reveals an underpayment, Company will promptly remedy such underpayment and if the underpayment was by more than 5% of the amounts due to Automattic for any month, Company shall also pay the reasonable, documented, cost of such audit.
   3. Additional Services: In addition to providing access to the Automattic APIs as described above, Automattic may provide certain business and marketing services to Company or to Users directly, including but not limited to: invitations to events and conferences, technical support, and migration of User Sites where necessary.
2. Content.
   1. Company is responsible Users’ use of the Services, the content on the User Sites, and Users’ compliance with Company’s obligations under this Agreement, and Company shall ensure Users have read Automattic’s Privacy Policy. Automattic reserves the right to, or to direct Company to, immediately suspend any User Site which Automattic determines is in breach of Company’s obligations under this Agreement, or any applicable law, rule, or regulation. If directed by Automattic, Company shall promptly comply, but in no case later than twenty-four (24) hours from receiving notice from Automattic. In the event of any law enforcement or other governmental request related to the content of a user’s site, Company shall provide notice and content of such request to Automattic within twenty-four (24) hours, and shall be solely responsible for managing the response, except to the extent Automattic elects to participate in or manage the response, in which case Company shall provide all reasonable assistance as requested by Automattic.
   2. Company shall not use, facilitate, or allow others to use the Services:
      • For any unlawful purposes, to publish illegal content, or in furtherance of illegal or fraudulent activities;
      • To infringe or misappropriate the intellectual property rights of Automattic or any third party;
      • To overburden or interfere with Automattic’s systems or impose an unreasonable or disproportionately large load on Automattic’s infrastructure, as determined by Automattic at its sole discretion;
      • To violate the rights of others;
      • To store or disclose the personal or sensitive information of others;
      • To distribute, publish, send, or facilitate sending of, spam or bulk unsolicited messages, promotions, advertising, or solicitations;
      • To interfere with, disrupt, or attack any service or network;
      • To create, distribute, or enable material that is, facilitates, or operates in conjunction with, malware, spyware, adware, or other malicious programs or code;
      • To reverse engineer, decompile, disassemble, decipher, or attempt to derive the source code for the Services or any related technology that is not open source;
      • To violate the security, integrity, or availability of any user, network, computer or communications system, software application, or network or computing device;
      • For renting, leasing, loaning, selling, or reselling the Services or related data without our consent; and
      • To publish, or engage in:
        • Phishing or identity theft;
        • Facilitation prostitution or sex trafficking;
        • Child sexual abuse material (CSAM) or content that is harmful to minors;
        • Promotion or facilitation of violence or terrorist activities; or,
        • Threaten, incite, promote, or actively encourage violence, terrorism, or other serious harm.
   3. If Automattic receives a notification of copyright infringement pertaining to the User Sites under Automattic’s Digital Millennium Copyright Act (“DMCA”) Policy (located at  https://automattic.com/dmca-notice/) or otherwise, Automattic will send such notification to Company (“DMCA Notification”). Company will be responsible for taking action with respect to each DMCA Notification within 48 hours by either (a) removing the allegedly infringing content or (b) determining that the content at issue is not infringing, notifying Automattic of the same, and taking sole responsibility for the continued publication of such content. Company shall be solely liable for any and all damages, expenses and legal fees incurred by Company,  Automattic and/or third parties as a result of such content.
   4. For certain categories of content, including but not limited to, restricted substances or weapons, Automattic may provide, and Company shall adhere to, additional vetting requirements for User Sites as provided from time-to-time by Automattic.
      1. For any User Sites selling or facilitating the sale of firearms or other weaponry:
         • Company shall remove Jetpack or extensions that use Jetpack, and,
         • Company shall ensure compliance with any other applicable Automattic terms or policies, including, but not limited to, for Woo and Akismet plugins.
3. Support.
   1. Company is responsible for providing support for the Company platform, and its products and services, including tier 1 support for download, installation, activation or basic troubleshooting of Services to Users. Where, after making commercially reasonable attempts to resolve an issue, Company is unable to provide assistance to a User, it may escalate to Automattic.
   2. Company acknowledges that Automattic employees responsible for maintaining WP Cloud infrastructure may appear in lists of client-authorized-keys for SSH access prefixed with “a8csync.”
4. Representations and Warranties.
   1. By Both Parties: Each Party represents and warrants to the other Party that: (1) it is duly organized, validly existing and in good standing under the laws of the state under which it is organized; (2) it has the power and authority to enter into this Agreement and to perform fully its obligations hereunder; (3) it is under no contractual or other legal obligation that will in any way interfere with its full, prompt and complete performance hereunder; (4) the obligations created by this Agreement, insofar as they purport to be binding on it, constitute legal, valid and binding obligations enforceable in accordance with their terms; and (5) it will comply with all applicable laws, rules and regulations in its performance under this Agreement.
   2. By Company: Company additionally represents and warrants that it will not infringe the intellectual property rights or other rights of any third party.
5. Fees and Payment.
   1. WP Cloud Fees.  Every month during the Term and the Wind-Down Period, for each User Site hosted by Automattic under this Agreement, Company shall pay all fees, as published or communicated by Automattic, associable with the plan under which the User Site is currently registered with Company (the “Fees”).
   2. Payment. Automattic may require you to include a payment method in your account to enable automatic payments, and Automattic will charge this method for the Fees. If provided an invoice, Company will pay all fees set forth herein within thirty (30) days of receipt of invoice. The Fees exclude all applicable sales, use, and other taxes arising from the provision of the Services or this Agreement (“Taxes”). Company will be responsible for payment of all Taxes (excluding those based on Automattic’s net income). Unless otherwise expressly provided in this Agreement, all payments will be made in U.S. Dollars and are non-refundable.  Any portion of the Fees not paid when due will accrue interest at one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid.
6. Term and Termination.
   1. This Agreement begins on the Effective Date and shall continue for a period of two (2) years (the “Initial Term”) after which it shall automatically renew for additional one-year periods (each a “Renewal Term” and together with the Initial Term, the “Term”) unless either Party provides thirty (30) days notice prior to the end of the Initial Term or then-current Renewal Term of intent to not renew. 
   2. Either Party may terminate this Agreement by written notice to the other Party in the event that such other Party materially breaches this Agreement, as applicable, and does not cure such breach within thirty (30) days of written notice of such breach. Additionally, Automattic may terminate this Agreement upon written notice to Company.
   3. Upon termination or expiration of this Agreement for any reason, Company’s right to access the Automattic APIs and utilize the Service shall cease except as directed by Automattic or otherwise provided for below. Notwithstanding the foregoing, the Parties agree to continue providing their respective products and services to customers who purchased such products and services during the Term for a wind-down period following the end of the Term for a duration set by Automattic, during which Company shall work with Automattic to migrate User Sites as directed by Automattic, which may include maintaining such User Sites with Company through the remaining term of any customer’s valid subscription and/or right to the product or service (the “Wind-Down Period”). The Parties agree that they shall continue to be bound by the terms of this Agreement, during the Wind-Down Period.
7. Confidentiality.  The Parties each acknowledge that they may be furnished with, receive or otherwise have access to information of or concerning the other Party that such Party considers to be confidential, a trade secret or otherwise restricted.  “Confidential Information” means all information, in any form, furnished or made available directly or indirectly by one Party to the other that is marked confidential, restricted, or with a similar designation, or information which, under the circumstances of its disclosure, a reasonable party would deem to be confidential information. Each Party shall maintain as confidential and shall use at least the same degree of care as it employs to avoid unauthorized disclosure of its own Confidential Information, but in any event no less than commercially reasonable efforts. Upon termination of the Agreement or earlier request by the disclosing Party, the receiving Party shall either return or delete all Confidential Information of the disclosing Party then in possession of the receiving Party.
8. Indemnification.  Company agrees to indemnify, defend and hold harmless Automattic, and its affiliates, contractors, and licensors, and their respective directors, officers, employees and agents from and against any and all claims and expenses, including attorneys’ fees, arising out of or related to (i) Company’s or any User’s use of the Services, (ii) Company’s breach of this Agreement, (iii) the content of the User Sites, including for any actions it takes or fails to take with respect to a DMCA Notification; and (iv) any dispute between Company and a User.
9. Limitation of Liability.  Except for Company’s breach of its confidentiality obligations in Section 7, Company’s indemnification obligations in Section 8, or Company’s gross negligence or willful misconduct, in no event will Automattic or Company be liable for indirect, special, incidental, punitive or consequential damages arising out of or related to this Agreement, however caused, and under whatever cause of action of theory of liability even if a Party has been advised of the possibility of such damages.  To the maximum extent permitted by applicable law, Automattic’s  total aggregate liability to Company will not exceed $5,000.
10. THE SERVICES ARE PROVIDED “AS IS.” EXCEPT TO THE EXTENT PROHIBITED BY LAW, OR TO THE EXTENT ANY STATUTORY RIGHTS APPLY THAT CANNOT BE EXCLUDED, LIMITED OR WAIVED, WE AND OUR AFFILIATES (A) MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SERVICES, AND (B) DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES (I) OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, (II) ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE, (III) THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, AND (IV) THAT ANY CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR ALTERED. 
11. Ownership and Intellectual Property. 
    1. As between the Parties, each Party owns all right, title, and interest in and to: (a) its own products and services distributed under the terms of this Agreement and (b) any user login, registration data, and other data collected by such Party in connection with the use of its products and services. Except to the extent expressly set forth herein, neither Party grants the other Party any license, express or implied, to its intellectual property rights (including but not limited to patents, copyrights, trade secrets, and trademarks).
    2. Company agrees to abide by Automattic’s API guidelines, detailed here: https://developer.wordpress.com/guidelines/. In using Automattic APIs, Company agrees that it will not modify, decompile, reverse engineer or otherwise alter or attempt to derive the trade secrets and other inherent intellectual property of an Automattic API. Automattic shall not be responsible for user onboarding, billing, marketing, or any other functions not expressly described herein. Automattic shall provide the WP Cloud Services in accordance with the Service Level Agreement (“SLA”) attached as Exhibit A.
12. Publicity. Subject to Company’s compliance with the terms and conditions of this Agreement, and Automattic’s advance written approval in each instance, Automattic grants to Company a limited, non-exclusive, non- transferable, worldwide license to use, reproduce, and display certain Automattic’s trademarks, including the “WP Cloud” and word marks and logos in connection with Company’s promotion of the Automattic products offered under this Agreement (the “Trademark License”). For any approved use, Company agrees to abide by Automattic’s published trademark guidelines at all times, available at https://automattic.com/press/brand-materials/. Company grants Automattic the right to use its name and logo on Automattic websites and other marketing materials to list Company as a partner. Notwithstanding the foregoing, Company shall not make any false, misleading, or disparaging remarks about Automattic or its services, and shall not engage in any conduct detrimental to the reputation of Automattic or its services. Automattic shall at all times retain the right, at its sole discretion, to require Company to remove any content or reference in violation of the foregoing from any platform.
13. Independent Contractors.  The Parties shall be independent contractors under this Agreement, and nothing herein shall constitute either Party as the employer, employee, agent, or representative of the other Party, or both Parties as joint venturers or partners for any purpose.
14. Assignment.  This Agreement is not assignable or transferable by either Party; provided, however, that this Agreement may be assigned in its entirety by Automattic to a successor-in-interest or an affiliated company.
15. Notices.  All notices must be in English, in writing and sent by email to the other Party’s email address as indicated below. Notice will be treated as given on receipt, as verified by electronic log.
    
    If to Company: Any email provided by Company through the Service
    If to Automattic: contracts@automattic.com
16. Governing Law.  This Agreement shall be governed by the laws of the State of California, without reference to conflict of law principles. For all disputes arising out of or related to this Agreement, the Parties submit to the exclusive subject matter jurisdiction, personal jurisdiction and venue of the United States District Court for the Northern District of California.
17. Force Majeure.  The performance of this Agreement is subject to termination without liability or liquidated damages/cancellation fees upon the occurrence of any circumstance beyond the control of either Party (including but not limited to: acts of God, war, acts of terrorism, government regulations and quarantines, disaster, strikes, civil disorder, epidemics, pandemics or outbreaks) to the extent that such circumstance makes it illegal or impossible for a Party to perform its obligations under this Agreement. The affected Party may terminate this Agreement without liability upon written notice to the other Party.
18. Amendment.  This Agreement may be amended at any time by Automattic by updating this Agreement. The modified terms will become effective upon posting. By continuing to use the Services after the effective date of any modifications to this Agreement, you agree to be bound by the modified terms. It is Company’s responsibility to check the portal regularly for modifications to this Agreement.
19. No Waiver.  The failure of either Party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights.  
20. Entire Agreement.  This Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter hereof. Any pre-printed or standard terms of any purchase order, confirmation, or similar form, even if signed by the Parties after the effectiveness hereof, shall have no force or effect. Notwithstanding the foregoing, to the extent the Parties have entered into custom pricing, revenue share, or discount terms in a prior agreement or addendum to this Agreement, those rates shall continue to be in effect and governed by this Agreement.
21. Severability.  If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this arrangement shall otherwise remain in full force and effect and enforceable.
22. No Third Party Beneficiaries.  The provisions hereof are for the benefit of the Parties only and not for any other person or entity.
23. Attorneys’ Fees.  The prevailing Party in any action to enforce this Agreement will be entitled to recover its attorney’s fees and costs in connection with such action.
24. Survival.  Any provisions which by their nature should survive termination or expiration of this Agreement will survive.
25. Data Processing Agreement. The Parties agree to the terms of the DPA available at: https://hosts.automattic.com/wp-content/uploads/2024/10/wp-cloud-dpa-oct-2024.pdf

EXHIBIT A: Service Level Agreement (SLA)

1. DEFINITIONS

1.1. “Claim” means a claim submitted by Company to Automattic that was provided, unsolicited, by a User to Company pursuant to these Terms.

1.2. “Planned Downtime” means downtime expressly specified by Automattic to Company.

1.3. “Incident” means any set of circumstances resulting in an observable or reproduceable degradation of the Service.

1.4. “Outage Period” is the number of downtime minutes resulting from an Unscheduled Service Outage.

1.5. “Scheduled Availability” means the total number of minutes in a given month, minus any Company Planned Downtime.

1.6. “Service Levels” means the service level commitments set forth in Section 2 of these Terms, and any other standards that Automattic chooses to adhere to and by which it measures the level of service provided to Company.

1.7. “Unscheduled Service Outage” means an interruption to the Service that was not previously communicated to Company, and that results in User Sites being unavailable. Unscheduled Service Outages exclude any: (i) Company Planned Downtime; and/or (ii) any downtime caused by an SLA exclusion listed in Section 4.1 below.

2. SERVICE LEVEL COMMITMENT

2.1. 99.99% Uptime. The Services will serve Company content 99.99% of the time.

2.2. Penalties. If the Service fails to meet the above service level commitments, Company will receive a credit from Automattic as set-forth in Section 6 of these Terms (the “Service Credit”).

3. SERVICE CREDIT CLAIMS

3.1. To be eligible to submit a Claim, Company must first received a support ticket from the affected User(s) related to the Claim, have notified Automattic of the specific Incident and provided notice of its intention to submit a Claim, within five (5) business days following such Incident.

3.2. To submit a Claim, Company must contact Automattic as detailed above in 3, and Company must provide to Automattic, reasonable details and sufficient evidence to support any Claim, including but not limited to, the support ticket submitted by the User, detailed descriptions of an Incident, the duration of such Incident, network traceroutes, the URL(s) affected, and any steps taken, or attempts made, by Company to resolve the Incident. Company must submit a Claim before the end of the billing month immediately following the billing month in which the Incident which is the subject of such Claim occurs.

3.3. Automattic will use all information reasonably available to it to validate a Claim and make a good faith judgment on whether a Service Credit applies to such Claim.

4. SLA EXCLUSIONS

4.1. This SLA does not apply to any performance or availability issues: (a) Due to events outside of Automattic’s control, including but not limited to, issues caused solely by:

(i) Company’s or its Users’ hardware, software or connectivity issues;

(ii) corrupted content;

(iii) acts or omissions of Company, Users, or either of their employees, agents, contractors, or vendors (which may include but is not limited to: installation of a plugin causing an outage, User redirecting their own domain away from the User Site, or Company removing a User Site’s account); or

(iv) a third party gaining access to the Service by means of Company’s, Users’, or their authorized users’ accounts or equipment; (b) caused by Company’s continued use of the Service after Automattic has advised Company to modify such use (or Users’ continued use , if Company did not modify its use as advised; or (c) occurring during beta and trial services, unless otherwise agreed to in writing by Automattic.

5. SERVICE CREDITS

5.1. The amount and method of calculation of Service Credits is described below in Section 6.

5.2. Service Credits are Company’s sole and exclusive remedy for any violation of the Service Levels.

5.3. The total amount of Service Credits awarded in any monthly billing period shall not, under any circumstance, exceed twenty (20) percent of the Company’s cumulative total fees actually paid to Automattic in such monthly billing period.

6. SERVICE CREDIT CALCULATION

6.1. For any and each Outage Period experienced by a User during a monthly billing period, Automattic will provide a Service Credit to Company, which will be provided by Company to the applicable User, subject to the cap in Section 5.3, calculated in accordance with the formula below:

Service Credit = (10 * Outage Period in Minutes * Monthly fee paid by User to Company for the applicable site) / Monthly Scheduled Availability in Minutes

For example, if a User Site had an Outage Period of one hour in a 30-day calendar month, and the Automattic WP Cloud fees were $1000, the calculation would be as follows:

10 * 60 * 1000 / 43,200 = $13.89 Service Credit

7. METHODOLOGY

7.1. Automattic will review and consider all supporting data on a reported Unscheduled Service Outage, provided to it by Company provided that such data was obtained using a commercially reasonable independent measurement system used by Company.

7.2. Automattic will use all information reasonably available to it in order to calculate the Outage Period. This includes, but is not limited to, Automattic’s analysis of service data immediately prior to the Outage Period, in order to estimate the ratio of User Sites that were affected during an Outage Period, at one or more of Automattic’s global data centers.

Last Updated 6.23.25