This End-User License Agreement (this “Agreement”) is a legal contract between you, as either an individual or an Entity (as defined below), and Plesk International GmbH, Vordergasse 59, 8200 Schaffhausen / Switzerland and its subsidiaries and affiliated companies (“Plesk”).
READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE DOWNLOADING, INSTALLING, OBTAINING A LICENSE KEY, OR OTHERWISE ACCESSING OR USING PLESK PROPRIETARY SOFTWARE, INCLUDING SOFTWARE AS A SERVICE, ACCOMPANIED BY OR REFERENCED IN THIS AGREEMENT (the “SOFTWARE”).
THE SOFTWARE IS COPYRIGHTED AND IT IS LICENSED TO YOU UNDER THIS AGREEMENT, NOT SOLD TO YOU. BY DOWNLOADING, INSTALLING, OBTAINING A LICENSE KEY, OR OTHERWISE ACCESSING OR USING THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND IT, AND THAT YOU ACCEPT AND AGREE TO BE BOUND BY ITS TERMS. IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF A COMPANY, ORGANIZATION, EDUCATIONAL INSTITUTION, OR AGENCY, INSTRUMENTALITY OR DEPARTMENT OF A GOVERNMENT (AN “ENTITY”) AS ITS AUTHORIZED LEGAL REPRESENTATIVE, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE POWER AND AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS, AND REFERENCES TO “YOU” HEREIN REFER TO BOTH YOU, THE INDIVIDUAL END USER, AND THE ENTITY ON WHOSE BEHALF YOU ARE ACCEPTING THIS AGREEMENT.
IF AT ANY TIME YOU ARE NOT WILLING TO BE BOUND BY THE TERMS OF THIS AGREEMENT, YOU SHOULD CLICK THE “I DO NOT ACCEPT” OR SIMILAR BUTTON, TERMINATE THE DOWNLOAD AND/OR INSTALLATION PROCESS, IMMEDIATELY CEASE AND REFRAIN FROM ACCESSING OR USING THE SOFTWARE AND DELETE ANY COPIES YOU MAY HAVE. THIS AGREEMENT, ALONG WITH ANY ADDITIONAL TERMS OR POLICIES INCORPORATED HEREIN BY REFERENCE, REPRESENTS THE ENTIRE AGREEMENT BETWEEN YOU AND PLESK CONCERNING THE SOFTWARE, AND THIS AGREEMENT SUPERSEDES AND REPLACES ANY PRIOR PROPOSAL, REPRESENTATION, OR UNDERSTANDING YOU MAY HAVE HAD WITH PLESK RELATING TO THE SOFTWARE, WHETHER ORALLY OR IN WRITING.
You will, at your own expense, indemnify and hold Plesk, and all officers, directors, and employees thereof, harmless from and against any and all claims, actions, liabilities, losses, damages, judgments, grants, costs, and expenses, including reasonable attorneys’ fees (collectively, “Claims”), arising out of any use of the Package (as defined below) by you, any party related to you, or any party acting upon your authorization in a manner that is not expressly authorized by this Agreement.
6. Third Party Software.
The Software which is distributed to you may include various third party software components or software services (“Third Party Software” and together with the Software, the “Package”) which are provided under separate license terms (the “Third Party Terms”), as may be described in more detail in the “Notices.txt” file (if applicable) included in the Documentation. Information regarding Third Party Software included in the Package is also available on our website at www.Plesk.com. You are permitted to use the Third Party Software in conjunction with the Software, provided that such use is consistent with the terms of this Agreement. You may have broader rights to use the Third Party Software under the applicable Third Party Terms. Nothing in this Agreement is intended to impose further restrictions on your use of the Third Party Software in accordance with any Third Party Terms. The Software may also enable interoperation with certain other third party operating systems and applications. Plesk does not provide you with any such third party licenses and it is solely your responsibility to obtain all necessary software licenses from respective vendors.
7. Limited Warranty; Disclaimer; Limitation of Liability.
7.1. Limited Warranty. Plesk warrants that it has the right to license the Software to you and that it works substantially in accordance to its Documentation for at least 90 following the date of purchase.
7.2. WARRANTY DISCLAIMER.
EXCEPT FOR THE SOLE LIMITED WARRANTY EXPRESSLY GRANTED TO YOU IN SECTION 8.1, THE PACKAGE AND DOCUMENTATION ARE LICENSED “AS IS,” AND PLESK DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, TIMELINESS, TITLE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TO THE FULLEST EXTENT AUTHORIZED BY LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PLESK EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND FOR THE THIRD PARTY SOFTWARE, AND DOES NOT WARRANT THAT THE PACKAGE WILL MEET YOUR REQUIREMENTS OR THAT OPERATION OF THE PACKAGE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, THAT DEFECTS OR ERRORS IN THE PACKAGE WILL BE CORRECTED OR THAT THE PACKAGE WILL BE COMPATIBLE WITH FUTURE PLESK PRODUCTS, OR THAT ANY INFORMATION OR DATA STORED OR TRANSMITTED THROUGH THE PACKAGE WILL NOT BE LOST, CORRUPTED OR DESTROYED. YOU ASSUME RESPONSIBILITY FOR SELECTING THE PACKAGE TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE RESULTS OBTAINED FROM YOUR USE OF THE PACKAGE. YOU SHALL BEAR THE ENTIRE RISK AS TO THE QUALITY AND THE PERFORMANCE OF THE PACKAGE.
7.3. LIMITATION OF LIABILITY.
IN NO EVENT SHALL PLESK BE LIABLE TO YOU OR ANY PARTY RELATED TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF DATA OR OTHER SUCH PECUNIARY LOSS), WHETHER UNDER A THEORY OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCTS LIABILITY, OR OTHERWISE, EVEN IF PLESK HAS or had BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL PLESK’S TOTAL AGGREGATE AND CUMULATIVE LIABILITY TO YOU FOR ANY AND ALL CLAIMS OF ANY KIND ARISING HEREUNDER EXCEED THE AMOUNT OF LICENSE FEES ACTUALLY PAID BY YOU FOR THE SOFTWARE GIVING RISE TO THE CLAIM IN THE TWELVE MONTHS PRECEDING THE CLAIM. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
7.4. CERTAIN LIMITATIONS.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATION OR EXCLUSION OF CERTAIN TYPES OF WARRANTIES, DAMAGES, OR LIABILITIES, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU, BUT IN SUCH A CASE THE EXCLUSIONS AND LIMITATIONS SET FORTH IN THIS SECTION 7 SHALL BE APPLIED TO THE GREATEST EXTENT ENFORCEABLE UNDER APPLICABLE LAW.
8. General Terms
If you provide any ideas, feedback, suggestions, materials, information, opinions, or other input to Plesk (“Feedback”), regardless of any accompanying communication, Plesk has no obligation to review, consider, or implement your Feedback, all such submissions are made on a non-confidential basis, Plesk and its successors and assigns have an unconditional and unlimited right to use, reproduce, modify, and disclose such Feedback without any compensation or attribution, and you waive and agree not to assert any so-called “moral rights” you may have in the Feedback.
8.2. Governing Law and Choice of Forum.
This Agreement shall be governed by and interpreted in accordance with the laws of Switzerland, without regard to the conflicts of law rules thereof. Any claim or dispute arising in connection with this Agreement shall be resolved in the applicable courts situated in Zürich / Switzerland. To the maximum extent permitted by law, you hereby consent to the jurisdiction and venue of such courts and waive any objections to the jurisdiction or venue of such courts. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
If any term or provision of this Agreement is declared void or unenforceable in a particular situation, by any judicial or administrative authority, this declaration shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation. To the extent possible the provision will be interpreted and enforced to the greatest extent legally permissible in order to effectuate the original intent, and if no such interpretation or enforcement is legally permissible, shall be deemed severed from the Agreement.
Articles 2, 5, 7, and 8 of this Agreement and all Sections thereof, shall survive the termination or expiration of this Agreement, regardless of the cause for termination or expiration, and shall remain valid and binding indefinitely.
The Article and Section headings contained in this Agreement are included for reference purposes only and shall not affect the meaning or interpretation of this Agreement.
8.6. No Waiver.
The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
Plesk reserves the right, in its sole discretion, to amend this Agreement from time to time by posting an updated version of the Agreement on www.Plesk.com, provided that disputes arising hereunder will be resolved in accordance with the terms of the Agreement in effect at the time the dispute arose. We encourage you to review the published Agreement from time to time to make yourself aware of changes. Material changes to these terms will be effective upon the earlier of (i) your first use of the Software with actual knowledge of such change, or (ii) 30 days from publishing the amended Agreement on www.Plesk.com. If there is a conflict between this Agreement and the most current version of this Agreement, posted at www.Plesk.com, the most current version will prevail. Your use of the Software after the amended Agreement becomes effective constitutes your acceptance of the amended Agreement. If you do not accept amendments made to this Agreement, then it is your responsibility to terminate this Agreement pursuant to Section 4.
You shall, in addition to the license fees required under this Agreement, pay all applicable sales, use, transfer, or other taxes and all duties, whether national, state, or local, however designated, that are levied or imposed by reason of the transaction contemplated under this Agreement, excluding income taxes on the net profits of Plesk. You shall reimburse Plesk for the amount of any such taxes or duties paid or incurred directly by Plesk as a result of this transaction, and you agree that Plesk may charge any such reimbursable taxes to the payment instrument you used for your initial payment.
8.9. Export Controls.
You may not use, export, re-export, import, sell or transfer the Software except as authorized by the laws of the jurisdiction in which you obtained the Software and any other applicable laws and regulations. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also acknowledge that the Software may be subject to other U.S. and foreign laws and regulations governing the export of software by physical and electronic means. You agree to comply with all applicable U.S. and foreign laws that apply to Plesk as well as end-user, end-use, and destination restrictions imposed by U.S. and/or foreign governments. You also agree that you will not use the Software for any purposes prohibited by U.S. law, including, without limitation, the development, design, manufacture or production of nuclear missiles, or chemical or biological weapons.
8.10. United States Government Use Rights.
The Software as defined herein and any related technical data, including manuals and Documentation, are commercial as defined in the Federal Acquisition Regulation (FAR) at 2.101. If the Software is acquired by or on behalf of an agency, department, or other entity of the U.S. Government (“Government”), the use, duplication, reproduction, release, modification, disclosure, or transfer (“use”) of the Software, and any related technical data of any kind, including manuals and Documentation, no matter how received by the Government, is restricted by the terms and conditions of this Agreement in accordance with FAR 12.212 for civilian agencies, and Defense Federal Acquisition Regulation Supplement 227.7202 for military agencies. All other use is prohibited.
8.11. Governing Language.
Any translation of this Agreement is done for local requirements and in the event of a dispute between the English and any non-English versions, the English version of this Agreement shall govern.
8.12. Trademark Notice
The Plesk logo and Plesk, are registered trademarks or trademarks of Plesk International GmbH, in the United States and/or other countries. All other trademarks referenced in the Software or Documentation are the property of their respective owners.
8.13. Contact Information.
You may contact Plesk for more information about the Software, other Plesk products and services at Plesk International GmbH, Vordergasse 59, Schaffhausen, Switzerland, or by visiting our website: www.Plesk.com.
Additional Terms for Consumers (End-Customers)
If you acquired the Software and are located in the United States of America, the following terms and conditions supplement the Agreement and therefore also apply to you:
1 Thirty Day Money Back Guarantee. If you are not completely satisfied with the Software for any reason, you may return the Software, together with your receipt, for a refund of the money you paid for the Software (less shipping, handling, and any applicable taxes) at any time during the thirty (30) day period following the date of purchase.
IF YOU ARE DOWNLOADING, INSTALLING, OBTAINING A LICENSE KEY OR OTHERWISE ACCESSING OR USING THE SOFTWARE WHILE YOU ARE LOCATED IN AUSTRALIA, THE FOLLOWING TERMS AND CONDITIONS SHALL APPLY, AND TO THE EXTENT INCONSISTENT, SUPERSEDE THE APPLICABLE TERMS AND CONDITIONS CONTAINED IN THE AGREEMENT:
1. Limited Warranty. The Limited Warranty set forth in section 7.1 of the Agreement only applies for the Warranty Period.
The benefits given to you by the Limited Warranty under clause 7.1 are in addition to other rights and remedies under a law in relation to the goods to which the Limited Warranty relates.
Plesk Software comes with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the Software repaired or replaced if the Software fails to be of acceptable quality and the failure does not amount to a major failure.
Plesk’s details are as follows: Plesk International GmbH, Vordergasse 59, Schaffhausen, Switzerland.
2. Limitation of Liability. (liability limit) The Australian Consumer Law contains guarantees that protect the purchasers of goods or services in certain circumstances. To the fullest extent permitted by law, the liability of Plesk to you for any loss or claim arising under or in connection with this Agreement that cannot be lawfully excluded under the Australian Consumer Law is limited to:
(i) (replacement) the replacement of the Package and/or Documentation;
(ii) (repair) the repair of the Package and/or Documentation;
(iii) (replacement price) the payment of the cost of replacing the Package and/or Documentation or of acquiring equivalent goods; or
(iv) (repair price) the payment of the cost of having the Package and/or Documentation repaired.
3. Governing Law. This Agreement is governed by the laws of the State of Victoria, Australia. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
IF YOU ARE DOWNLOADING, INSTALLING, OBTAINING A LICENSE KEY OR OTHERWISE ACCESSING OR USING THE SOFTWARE WHILE YOU ARE LOCATED IN THE CZECH REPUBLIC, THE FOLLOWING TERMS AND CONDITIONS SHALL APPLY, AND TO THE EXTENT INCONSISTENT, SUPERSEDE THE APPLICABLE TERMS AND CONDITIONS CONTAINED IN THE AGREEMENT:
1. Audit Rights. During the term of this Agreement and for two (2) years after termination or expiration of this Agreement, Plesk may audit, upon written notice to you, your books, records, and computing devices to determine your compliance with this Agreement and your payment of the applicable license fees, if any, for the Software. In the event that any such audit reveals an underpayment by you of more than five percent (5%) of the license fees due to Plesk in the period being audited, or that you have breached any term of this Agreement, then, in addition to any other rights and remedies Plesk may have, you will promptly pay to Plesk any underpayments plus the cost of the audit. Information acquired during the control shall not be provided to any third party, used for commercial purposes and must respect the relevant provisions of the Act no. 121/2000 Coll., on the protection of individuals with regard to the processing of personal data. Information acquired during such audit shall be used only for the purposes of findings related to the Agreement, compliance and license fee payments.
2. License Fees. The Software will be available to you for use upon your receipt of one or more license keys. Upon acceptance of this Agreement, you may obtain one or more license keys by paying the requisite license fees, using the procedure set forth on Plesk web site. License fees for term-based licenses are due prior to the commencement of the applicable term, and may be re-billed to the payment instrument you used for your initial purchase upon the commencement of any renewal term.
(1) Right of withdrawal regarding software delivered by download or by electronic key
If you are a consumer you have the following statutory right of withdrawal. You may withdraw from the contract in written form (e.g. letter, fax, email) without giving any grounds and within a period of 14 days.
If you have purchased software by download from the Plesk’s web pages, this provision shall only apply until you started the download. If you have purchased software by an electronic installation key entitling you to download it from third parties, the right of withdrawal shall only be applicable until we send you the key by email. After this point in time, your right of withdrawal expires.
The time limit of 14 days for any assertion of your right of revocation begins at the earliest on the day after the conclusion of the contract and after you have received this instruction in written form but not before we complied with our information obligations under Sec. 53 (4) (6) Czech Civil Code. To comply with the time limit it is sufficient to send the withdrawal notice in due time to Plesk International GmbH, Vordergasse 59, Schaffhausen, Switzerland.
In case of an effective withdrawal the parties shall each return the services received as well as the benefits drawn from utilization (such as the use and enjoyment).
3. Governing Law and Choice of Forum. This Agreement shall be governed by and interpreted in accordance with the laws of Switzerland, without regard to the conflicts of law rules thereof. Any claim or dispute arising in connection with this Agreement shall be resolved in the courts situated in Zürich / Switzerland. To the maximum extent permitted by law, you hereby consent to the jurisdiction and venue of such courts and waive any objections to the jurisdiction or venue of such courts. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. This choice of law does not exclude any imperative consumer protection laws applicable in the country where the customer has his/her usual place of residence.
IF YOU ARE DOWNLOADING, INSTALLING, OBTAINING A LICENSE KEY OR OTHERWISE ACCESSING OR USING THE SOFTWARE WHILE YOU ARE LOCATED IN FRANCE, THE FOLLOWING TERMS AND CONDITIONS SHALL APPLY, AND TO THE EXTENT INCONSISTENT, SUPERSEDE THE APPLICABLE TERMS AND CONDITIONS CONTAINED IN THE AGREEMENT:
1. Proprietary Rights to Software and Trademarks. You acknowledge that the Software and the Documentation are proprietary to Plesk, and the Software and Documentation are protected under United States copyright and other national and international intellectual property laws and international treaties. You further acknowledge and agree that, as between you and Plesk, Plesk and its third party licensors own and shall continue to own all right, title, and interest in and to the Software and Documentation, including associated intellectual property rights under copyright, trade secret, patent, or trademark laws. Except for the limited, revocable license expressly granted to you herein, this Agreement does not grant you any ownership or other right or interest in or to the Software or the Documentation or any other intellectual property rights of Plesk, whether by implication, or otherwise. Any and all trademarks or service marks that Plesk uses in connection with the Software or with services rendered by any of Plesk are marks owned by Plesk. This Agreement does not grant you any right, license, or interest in such marks, and you shall not assert any right, license, or interest in such marks or any words or designs that are confusingly similar to such marks.
2. Term and Termination. This Agreement is effective upon your acceptance of the Agreement, or upon your downloading, installing, accessing, and using the Software, even if you have not expressly accepted this Agreement. This Agreement shall continue in effect until expiration or termination as provided herein (the “Term”). Term-based licenses terminate upon the expiration of the prepaid term, unless you have paid all applicable fees to extend the term. Without prejudice to any other rights, this Agreement will terminate automatically without notice to you if you breach or fail to comply with any of the limitations or other requirements described herein, including the payment of any applicable fees, and you agree that in any such case Plesk may, in addition to any other remedies it may have at law, remotely disable the Software. You may terminate this License Agreement at any time by providing written notice of your decision to terminate the Agreement to Plesk and ceasing use of the Software and Documentation. Upon any termination or expiration of the Agreement for any reason, you agree to uninstall the Software and either return to Plesk the Software, Documentation, all copies thereof, and all license keys that you have obtained, or to destroy all such materials and provide written verification of such destruction to Plesk.
3. LIMITATION OF LIABILITY. IN NO EVENT SHALL PLESK BE LIABLE TO YOU OR ANY PARTY RELATED TO YOU FOR ANY INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF DATA OR OTHER SUCH PECUNIARY LOSS), WHETHER UNDER A THEORY OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCTS LIABILITY, OR OTHERWISE, EVEN IF PLESK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL PLESK’S TOTAL AGGREGATE AND CUMULATIVE LIABILITY TO YOU FOR ANY AND ALL CLAIMS OF ANY KIND ARISING HEREUNDER EXCEED THE AMOUNT OF LICENSE FEES ACTUALLY PAID BY YOU FOR THE SOFTWARE GIVING RISE TO THE CLAIM IN THE TWELVE MONTHS PRECEDING THE CLAIM. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
4. Feedback. If you provide any ideas, feedback, suggestions, materials, information, opinions, or other input to Plesk (“Feedback”), regardless of any accompanying communication, Plesk has no obligation to review, consider, or implement your Feedback, all such submissions are made on a non-confidential basis, Plesk and its successors and assigns have an unconditional and unlimited right to use, reproduce, modify, and disclose such Feedback without any compensation or attribution.
IF YOU ARE DOWNLOADING, INSTALLING, OBTAINING A LICENSE KEY OR OTHERWISE ACCESSING OR USING THE SOFTWARE WHILE YOU ARE LOCATED IN GERMANY AND YOU ARE A CONSUMER AS DEFINED IN SECTION 14 OF THE GERMAN CIVIL CODE/BÜRGERLICHES GESETZBUCH (“GERMAN CONSUMER”), THE FOLLOWING TERMS AND CONDITIONS SHALL APPLY, AND TO THE EXTENT INCONSISTENT, SUPERSEDE THE APPLICABLE TERMS AND CONDITIONS CONTAINED IN THE AGREEMENT:
1. Warranty. Plesk will be liable for material defects and defects in title only to the extent necessary according to German Statutory Law. An additional guarantee is only given by Plesk, if explicitly stated in written form.
2. Limitation of Liability. Sections 8.3. and 8.4. of the Agreement shall not apply for contracts with German Consumers. Instead, Plesk shall only be liable according to the following:
(i) Plesk shall be liable for damages exclusively according to this clause 2. Every other liability for damages shall be excluded.
(ii) The liability of Plesk is unlimited for damages arising out of death, injury to body or health based on a breach conducted by a legal representative or designated agent of Plesk, as well as for damages that arose from the lack of a guaranteed characteristic or in case of fraudulent intent.
(iii) The liability of Plesk is unlimited for damages caused by Plesk, a legal representative, or designated agent by intent or gross negligence.
(iv) In case of a slight negligent breach of a contractual core duty Plesk shall, except in the cases pursuant to clause (ii) and (v) herein, only be liable to the amount of the typically foreseeable damage. Contractual core duties abstractly are such duties whose accomplishment enables proper fulfilment of the contract in the first place and whose fulfilment a contractual party regularly may rely on.
(v) Liability pursuant to the German Product Liability Act (“Produkthaftungsgesetz”) remains unaffected.
3. Governing Law. This Agreement shall be exclusively governed by German law while excluding the United Nations Convention on Contracts for the International Sale of Goods.
IF YOU ARE DOWNLOADING, INSTALLING, OBTAINING A LICENSE KEY OR OTHERWISE ACCESSING OR USING THE SOFTWARE WHILE YOU ARE LOCATED IN ITALY, THE FOLLOWING TERMS AND CONDITIONS SHALL APPLY, AND TO THE EXTENT INCONSISTENT, SUPERSEDE THE APPLICABLE TERMS AND CONDITIONS CONTAINED IN THE AGREEMENT:
1. Governing Law and Choice of Forum. This Agreement shall be governed by and interpreted in accordance with the laws of the state of Switzerland, without prejudice to the mandatory Italian consumer protection laws in case you are a consumer with your usual place of residence in Italy. Any claim or dispute arising in connection with this Agreement shall be resolved in the courts situated in Zürich / Switzerland. To the maximum extent permitted by law, you hereby consent to the jurisdiction and venue of such courts and waive any objections to the jurisdiction or venue of such courts. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded
IF YOU ARE DOWNLOADING, INSTALLING, OBTAINING A LICENSE KEY OR OTHERWISE ACCESSING OR USING THE SOFTWARE WHILE YOU ARE LOCATED IN POLAND, THE FOLLOWING TERMS AND CONDITIONS SHALL APPLY, AND TO THE EXTENT INCONSISTENT, SUPERSEDE THE APPLICABLE TERMS AND CONDITIONS CONTAINED IN THE AGREEMENT:
1. Feedback. If you provide any ideas, feedback, suggestions, materials, information, opinions, or other input to Plesk (“Feedback”), regardless of any accompanying communication, Plesk has no obligation to review, consider, or implement your Feedback, all such submissions are made on a non-confidential basis, Plesk and its successors and assigns have an unconditional and unlimited right to use, reproduce, modify, and disclose such Feedback without any compensation or attribution, and you refrain from exercising and agree not to assert any so-called “moral rights” you may have in the Feedback.
FURTHER, IF YOU ARE DOWNLOADING, INSTALLING, OBTAINING A LICENSE KEY OR OTHERWISE ACCESSING OR USING THE SOFTWARE WHILE YOU ARE LOCATED IN POLAND AND YOU ARE A CONSUMER AS DEFINED IN APPLICABLE POLISH LAW, THE FOLLOWING TERMS AND CONDITIONS SHALL APPLY, AND TO THE EXTENT INCONSISTENT, SUPERSEDE THE APPLICABLE TERMS AND CONDITIONS CONTAINED IN THE AGREEMENT:
1. Assignment of Rights. You will not sublicense, lease, rent, or lend your rights in the Software, Documentation, or license keys, as granted by this Agreement, without prior written consent of Plesk, except that you may transfer this Agreement in full in connection with the sale of all or substantially all of the assets related to this Agreement, provided that the assignee assumes all of your obligations hereunder, and the licenses granted hereunder will only extend to use of the Software on the Authorized Device on which the Software was installed immediately prior to the assignment. Any assignment in violation of the foregoing shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties and their respective successors and permitted assigns.
2. Term and Termination. This Agreement is effective upon your acceptance of the Agreement, or upon your downloading, installing, accessing, and using the Software, even if you have not expressly accepted this Agreement. This Agreement shall continue in effect until expiration or termination as provided herein (the “Term”). Term-based licenses terminate upon the expiration of the prepaid term, unless you have paid all applicable fees to extend the term. Without prejudice to any other rights, this Agreement will terminate upon seven (7) days notice to you if you breach or fail to comply with any of the limitations or other requirements described herein, including the payment of any applicable fees, and you agree that in any such case Plesk may, in addition to any other remedies it may have at law or in equity, remotely disable the Software. You may terminate this License Agreement at any time by providing written notice of your decision to terminate the Agreement to Plesk and ceasing use of the Software and Documentation. Upon any termination or expiration of the Agreement for any reason, you agree to uninstall the Software and either return to Plesk the Software, Documentation, all copies thereof, and all license keys that you have obtained, or to destroy all such materials and provide written verification of such destruction to Plesk.
3. Right of Revocation. At any time during the ten (10) day period following the date of purchase of the Software / conclusion of this Agreement, You may, for any reason, return the Software (terminate this Agreement), together with your receipt, for a refund of the money you paid for the Software.
4. Indemnification. Does not apply.
5. Limited Warranty. The Limited Warranty does not exclude the statutory warranty provided under the Polish Act on particular conditions of consumers’ sale.
6. WARRANTY DISCLAIMER. The WARRANTY DISCLAIMER does not exclude the statutory warranty provided under the Polish Act on particular conditions of consumers’ sale.
7. Governing Law and Choice of Forum. This Agreement shall be governed by and interpreted in accordance with the laws of Switzerland, without regard to the conflicts of law rules thereof. Any claim or dispute arising in connection with this Agreement shall be resolved in the competent courts of Poland. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
8. Amendment. Plesk reserves the right, in its sole discretion, to amend this Agreement from time to time by posting an updated version of the Agreement on www.Plesk.com, provided that disputes arising hereunder will be resolved in accordance with the terms of the Agreement in effect at the time the dispute arose. We encourage you to review the published Agreement from time to time to make yourself aware of changes. Material changes to these terms will be effective upon your first use of the Software with actual knowledge of such change. If there is a conflict between this Agreement and the most current version of this Agreement, posted at www.Plesk.com, the most current version will prevail. Your use of the Software after the amended Agreement becomes effective constitutes your acceptance of the amended Agreement.
9. Taxes. Does not apply.
10. Governing Language. Any translation of this Agreement is done for local requirements and in the event of a dispute between the English and Polish versions, the Polish version of this Agreement shall govern.
IF YOU ARE DOWNLOADING, INSTALLING, OBTAINING A LICENSE KEY OR OTHERWISE ACCESSING OR USING THE SOFTWARE WHILE YOU ARE LOCATED IN RUSSIA, THE FOLLOWING TERMS AND CONDITIONS SHALL APPLY, AND TO THE EXTENT INCONSISTENT, SUPERSEDE THE APPLICABLE TERMS AND CONDITIONS CONTAINED IN THE AGREEMENT:
This End-User License Agreement (this “Agreement”) is a legal contract between You, as either an individual or an Entity (as defined below), and Plesk International GmbH and its subsidiaries, including Plesk’s official Russian subsidiary, being a patent / trademark / copyright owner (“Plesk”).
1. Grant of License. Subject to your full and ongoing compliance with the terms and conditions of this Agreement, including without limitation payment of all applicable license fees, Plesk hereby grants to you, and you accept, a personal, limited, nonexclusive, nontransferable (except as set forth in Section 1.6 below), non-assignable, revocable license to use the Software during the Term in machine-readable, object code form only, and the user manuals accompanying the Software (the “Documentation”), only as authorized in this Agreement. For purposes of this Agreement, the “Software” includes any updates, enhancements, modifications, revisions, or additions to the Software made by Plesk and made available to end-users through Plesk’s web site. Notwithstanding the foregoing, Plesk shall be under no obligation to provide any updates, enhancements, modifications, revisions, or additions to the Software.
2. Consent to Use Data. You agree that Plesk may collect and use technical data and related information—including but not limited to technical information about your device, system and application software, and peripherals—that is gathered periodically to facilitate the provision of software updates, product support, and other services to you (if any) related to the Software. Plesk may use this information, as long as it is in a form that does not personally identify you, to operate, provide, improve, and develop our products, services and technologies, to prevent or investigate fraudulent or inappropriate use of our products, services, and technologies, for research and development, and for the other purposes described in this Agreement or to you as part of our products and services.
Should any personal data as described in the effective applicable law of your jurisdiction be gathered for the purposes as described above, you hereby expressly grant Plesk the right to collect, record, arrange, accumulate, keep, update, extract, use, transfer (including trans-border transfer) access, depersonalize, block, remove your personal data obtained.
3. LIMITATION OF LIABILITY. IN NO EVENT SHALL PLESK BE LIABLE TO YOU OR ANY PARTY RELATED TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF DATA OR OTHER SUCH PECUNIARY LOSS), WHETHER UNDER A THEORY OF CONTRACT, WARRANTY, OR OTHERWISE, EVEN IF PLESK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL PLESK’S TOTAL AGGREGATE AND CUMULATIVE LIABILITY TO YOU FOR ANY AND ALL CLAIMS OF ANY KIND ARISING HEREUNDER EXCEED THE AMOUNT OF LICENSE FEES ACTUALLY PAID BY YOU FOR THE SOFTWARE GIVING RISE TO THE CLAIM IN THE TWELVE MONTHS PRECEDING THE CLAIM. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
4. Governing Law and Choice of Forum. This Agreement shall be governed by and interpreted in accordance with the laws of Russia, without regard to the conflicts of law rules thereof. Any claim or dispute arising in connection with this Agreement shall be resolved in the courts situated in Novosibirsk / Russia, unless specific rules apply to you as a consumer (natural person obtaining license for personal needs). In the latter case the dispute shall be settled in the court duly empowered by the applicable law of your jurisdiction. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
1. ACCEPTANCE OF TERMS
2. YOUR OBLIGATIONS
a) In consideration of your use of the Services, you agree to be solely responsible for: (a) any of your passwords and their security, and (b) the provision of true, accurate, current, and complete information and Content in relation to the Services. Plesk is not liable for any unauthorized use of the Website or Services including Forums. You acknowledge and agree that certain Services may provide password-restricted access to customer information such as names and certain terms of your existing contracts to assist you in purchasing, maintaining and supporting your Plesk products. By using this Website and registering for the Services, you consent to Plesk’s display of such information via the Services and accept all risks of unauthorized access to such information. If you provide any information that is false, inaccurate, out of date, or incomplete, or Plesk has reasonable grounds to suspect that such information is false, inaccurate, not current, or incomplete, Plesk may suspend or terminate your account and refuse any and all current or future use of, or access to, the Services (or any portion thereof).
b) These Terms also serve as the basis for your access, visits and participation in the Forums, which are comprised of a collection of technical support platforms related to Plesk software products and, if applicable, the Content Contributor Program. Plesk reserves the right to modify, suspend or terminate the Forums, the Content Contributor Program and/or these Terms from time to time at its sole discretion and without notice. The Forums and Services are provided on an AS IS and AS AVAILABLE basis. Plesk will not be liable to you or any third-party for any claims or actions arising or resulting from your use, visit, or participation in the Forums and Services and for any modification, suspension, or termination of the Forums, or termination of your access to the Forums.
3. CONFIDENTIALITY OF PLESK INFORMATION
In order to gain access to the Services, you agree to these confidentiality provisions:
a) You acknowledge that you may obtain direct access via the Website and the Services to certain Plesk confidential information (“Information”). You must hold Information in strict confidence and may provide Information to employees in your organization only on a need-to-know basis. You may use the Information from the Website and the Services solely for the purpose of purchasing, maintaining and supporting your Plesk products and for your participation in the Services itself. Title to Information remains with Plesk and its suppliers. You agree, either as an individual or on behalf of your employer, to be bound by the provisions of this Section 3. Furthermore, if you are acting on behalf of your employer, your employer agrees to indemnify you for violations of this Section 3.
b) You do not acquire any rights in Information, except the limited right to use Information as described above.
c) Any breach of the Terms will result in irreparable harm to Plesk for which damages would be an inadequate remedy and, therefore, in addition to its rights and remedies otherwise available at law, Plesk will be entitled to equitable relief, including both a preliminary and permanent injunction, if such a breach occurs. You waive any requirement for the posting of a bond or other security if Plesk seeks such an injunction.
d) Your obligations regarding Information expire five (5) years after the date of disclosure. Upon termination of the Terms or Plesk’s written request, you must cease use of Information and return or destroy all Information.
e) The Terms impose no obligation upon you with respect to Information that you can establish by legally sufficient evidence, such as: (a) you possessed, or knew, prior to your receipt from Plesk, without an obligation to maintain its confidentiality; (b) is or becomes generally known to the public through no act or omission by you, or otherwise without violation of the Terms; (c) you obtained from a third party who had the right to disclose it, without an obligation to keep such information confidential; (d) you independently developed without the use of Information and without the participation of individuals who have had access to Information, or (e) in response to a valid order by a court or other governmental body, as otherwise required by law, or as necessary to establish the rights of either party under these Terms and as disclosed after prior notice to Plesk adequate to afford Plesk the opportunity to object to the disclosure.
4. YOUR CONDUCT
a) You understand that all information, data, text, messages, written posts and comments, software, scripts, graphics or other materials (“Content”), whether publicly made accessible or privately transmitted, are the sole responsibility of the person from whom such Content originated. This means that you, and not Plesk, are entirely responsible for all Content that you upload, post, make available or otherwise transmit via the Services. You represent that all Content provided by you is accurate, complete, up-to-date and in compliance with all applicable laws, rules and regulations nationally and internationally. Plesk may, but shall not be obliged to control or keep up-to-date Content posted by you or third party contributors via the Services and, as such, does not guarantee the accuracy, integrity or quality of Content.
b) Subject to additional provisions of these terms relating to Inventions, ownership and Intellectual Property, by submitting Content to Plesk for inclusion on the website using the Services or otherwise, you hereby grant to Plesk a worldwide, unlimited, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, reproduce, distribute, prepare derivative works of, display, perform, and otherwise fully exploit such Content in connection with the Website, the Services and the Plesk business, including without limitation for promoting and redistributing part or all of the Website or the Services (and derivative works thereof) in any media formats and through any media channels (including, without limitation, third party websites and feeds), and including after your termination of the Services. You further hereby grant each user of the Services a non-exclusive, perpetual license to access any of your Content that is available to such user on the Website, and to use, reproduce, distribute, prepare derivative works of, display and perform such Content.
Subject to these Terms, Plesk grants to each user of the Services a worldwide, non-exclusive, revocable, non-sublicensable and non-transferable license to use (i.e., to download and display locally) certain Content solely for purposes of using the Services. Use, reproduction, modification, distribution or storage of any Content for other than purposes of using the Services is expressly prohibited without prior written permission by Plesk. The aforementioned shall not apply to Content provided or made available under a Creative Commons or any other open source license. You shall not sell, license, rent, or otherwise use or exploit any Content for commercial use or in any way that violates any third party right.
c) Unless otherwise explicitly stated herein, any Content provided by you in connection with the Services (except for privately transmitted information or support information) shall be deemed to be provided on a non-proprietary and non-confidential basis. Plesk shall have no obligation of any kind with respect to such Content and shall be free to use or disseminate such Content on an unrestricted basis for any purpose. You acknowledge that you are responsible for the Content that you submit, and you, not Plesk, have full responsibility for the Content, including their legality, reliability, appropriateness, originality and copyright including email messages, newsgroup postings, chat, and personal or business web pages. You acknowledge that all Content, accessed by you using the Services is at your own risk and you will be solely responsible for any damage or loss to you or any other party resulting therefrom.
d) Some Content will be marked or published in relation to the Services under a “Creative Commons” license, identified by their respective Creative Commons mark. Plesk hereby grants to each user of the respective Services a license to Creative Comments Content under the Creative Commons CC BY-NC-SA 4.0 US license. By using Creative Commons Content in relation to the Services, you agree to abide by the terms of the Creative Comments License. Plesk expressly disclaims any liability and cannot be held responsible for the Content you create or access when using the Services. Creative Comments Content may be freely shared or adapted by you, provided you let others share it or let it be adapted in the same way. Especially by participating in the Plesk Content Contributor Program, you agree to abide by the terms of the Creative Comments License, too.
e) You agree and acknowledge not to post or store on the Website or in association with the Services any Content that violates or infringes anyone’s intellectual property rights (including copyrights, trademarks, trade secrets, patents, publicity rights or (to the extent protectable) confidential ideas) or that is obscene, obscene as to minors, pornography, defamatory, racist, lewd, lascivious, filthy, violent, harassing, or otherwise objectionable. You also commit to refrain from posting or making available any personal identifiable information of any 3rd party. In the event you provide any such personal identifiable information concerning yourself, you hereby explicitly and expressly agree and acknowledge that such information may be stored, processed, displayed or transferred (nationally and internationally) by Plesk. Certain Content provided by Plesk or by our users may be protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. You shall abide by and maintain all copyright notices, information, and restrictions contained in any Content accessed through the Services.
f) Plesk reserves the right to edit, block or remove Content that Plesk becomes aware of and determines to be inappropriate as set forth in section (d) above. Plesk may also remove Content that contains third-party commercial advertisements, is inaccurate or includes unauthorized disclosure or personal information. Violation of these restrictions (“Restrictions”) may also result in the termination or suspension of your access to the Services. These Restrictions apply to all content provided to or through the Website or the Services.
g) You agree not to use the Services in any way for spamming or to transmit chain letters, junk email or bulk communications. In the event of such spamming, Plesk is entitled to obtain injunctive relief against any such transmission (in addition to all other remedies available at law or in equity). Plesk reserves the right to block, filter or delete unsolicited email. Furthermore, you agree not to transmit unsolicited or bulk communications to any Plesk account holder or to any plesk.com email address (regardless of whether you use the Services to transmit any such communication).
h) You agree not to use any Plesk domain name as a pseudonymous return email address for any communications that you transmit from another location or through another service; and you may not pretend to be someone else or spoof their identity when using the Services.
i) You agree not to use the Services for any unlawful activities not otherwise covered above. Additionally, you agree NOT to use the Services to:
• (1) impersonate any person or entity, including, but not limited to, a Plesk official, or falsely state or otherwise misrepresent Your affiliation with a person or entity;
• (2) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Services or develop hidden pages or images (those not linked to Plesk.com from another accessible page);
• (3) upload, post or otherwise transmit any Content that you do not have a right to transmit to the public under any law or under contractual or fiduciary relationships (such as inside information, proprietary or confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
• (4) upload, post or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
• (5) disrupt the normal flow of dialogue, cause a screen to “scroll” faster than other users of the Services are able to type, or otherwise act in a manner that negatively affects other users’ ability to engage in real time exchanges;
• (6) post, publish, or distribute any radical, defamatory, obscene, infringing, pornographic or other unlawful material or information in the Forums;
• (7) intentionally or unintentionally violate any applicable local, state, national or international law, or any regulations having the force of law; or
• (8) collect or store personal data about other users.
j) Plesk may, at its exclusive option and discretion, associate the provision of content under the Content Contributor Program with a voluntary reward of Plesk’s choice. You understand and acknowledge that you do not have any claim to receive a reward for submitted content and any reward is granted by Plesk at its sole discretion, option and judgment. The types of available rewards are published on www.plesk.com from time to time and may, at any given time, be withdrawn by Plesk without substitution.
5. INVENTIONS, OWNERSHIP, RIGHTS AND LIABILITY
c) Plesk does not claim ownership of any Inventions that you or other users post, upload, submit or otherwise provide to the Forums. If, however, Content or Inventions are posted, uploaded, submitted or otherwise provided under the Plesk Content Contributor Program, Plesk claims ownership and will be considered the owner of the associated intellectual property rights in and to them upon their transmission to Plesk. In the event such transfer of ownership is not legally permitted or possible, by providing Inventions, you grant to Plesk a perpetual, worldwide, exclusive, no-charge, royalty-free, irrevocable copyright license to reproduce, prepare derivative works of, publicly display, publicly perform, sublicense, distribute and commercialize such Inventions and derivative works with the right but no obligation to disclose or mention the owner or author of the intellectual property. Additionally, by providing Inventions, you grant to Plesk a perpetual, worldwide, non-exclusive, no-charge, royalty-free, irrevocable patent license to make, have made, use, offer to sell, export, and otherwise transfer or sublicense such Inventions as its own. You also grant Plesk and all users of the Forums the permission to use your Inventions in other areas of the Forums and Services and for other commercial or noncommercial uses. You further agree and commit not to publish, upload, share or use content provided by you under the Content Contributor Program in any other program, forum, discussion and/or on any other website without the prior written consent of Plesk.
d) In order to grant Plesk and other users the rights, permissions and licenses contained herein, you represent and warrant that you either own or have all the necessary intellectual property rights in the Inventions uploaded or shared with Plesk or other users and that your Inventions are non-infringing on the patent, copyright or other intellectual property rights of others. Do not post, upload, submit or otherwise provide Inventions that are protected by the intellectual property rights of others, unless you own or have the necessary rights or licenses to use such Inventions.
e) By uploading Inventions to the Forums or in relation to the Services, you warrant that you are not uploading viruses, worms, Trojan horses or other malicious, illegal, or unlawful code which is designed to interrupt, destroy, or limit the functionality of any software or hardware. All Inventions available for download and/or use are provided on an AS IS and AS AVAILABLE basis, without any warranty of any kind and you assume all risks associated with the Inventions that you download. Plesk expressly disclaims all warranties of any kind, whether express or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose and non-infringement of intellectual property rights. In no event will Plesk be liable for any direct or indirect damages for any claims arising out of your download and/or use of such Inventions.
f) All Inventions are deemed be provided on a non-confidential basis. Plesk is under no obligation to and does not control the Inventions created, provided or uploaded to the Forums or in relation to the Services. The nature of some Inventions may be offensive, harmful or inaccurate, and in some cases will be mislabeled or deceptively labeled. Plesk reserves the right to take down and remove Inventions that are flagged by users or deemed by Plesk as objectionable. However Plesk is under no duty to take down or remove any Inventions.
You agree to indemnify and hold Plesk, and its subsidiaries, affiliates, officers, agents, directors or partners and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your Content, your use of the Services, including any use by your employees, your connection to the Services, your violation of the Terms, or your violation of any rights of another.
7. NOTICES; MODIFICATION AND TERMINATION OF SERVICES
Plesk may make changes to the Terms or other matters by displaying notices or links to notices to you generally on the Services. It is your responsibility to periodically check the Terms for changes. Plesk reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. Plesk may make changes to the Plesk on-line store, including regarding products, services, programs, and prices, at any time without notice. Plesk, in its sole discretion, may terminate your password, your use of the Services or use of any other Plesk service, and remove and discard any Content within the Services, for any reason, including, without limitation, for lack of use or if Plesk believes that you have violated or acted inconsistently with the letter or spirit of the Terms. Any termination of your access to the Services under any provision of the Terms may be effected without prior notice, and Plesk may immediately de-activate or delete your account and all related information and files in your account and/or bar any further access to such files or the Services. Plesk will not be liable to you or any third-party for any termination, modification, or suspension of the Services.
8. ADVERTISEMENTS AND PROMOTIONS
Plesk may run advertisements and promotions from third parties on the Services. Any correspondence or business dealings with, or participation in promotions of, advertisers other than Plesk found on or through the Services, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser. Plesk is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such non-Plesk advertisers on the Services.
The Services may provide, or third parties may provide, links to other Internet sites or resources. Because Plesk has no control over such sites and resources, you acknowledge and agree that Plesk is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. Plesk will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such third party content, goods or services available on or through any such site or resource. This Website may be linked to other websites which are not under the control of and are not maintained by Plesk. Plesk is not responsible for any third party content of those sites. Plesk is providing these links to you only as a convenience, and the inclusion of any link to such sites does not imply endorsement by Plesk of those sites.
10. INTELLECTUAL PROPERTY RIGHTS
a) The Services and any software (including any downloads available at the Website or otherwise provided by Plesk) used in connection with the Services (“Software”) contain proprietary and confidential information that is protected by applicable intellectual property and other laws. Any third party content contained in third-party advertisements or information presented to you through the Services or advertisers is protected by copyrights, trademarks, service marks, patents, publicity rights, or other proprietary rights and laws. Except as expressly authorized by Plesk or advertisers, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Services or the Software, in whole or in part.
b) Plesk is committed to respecting others’ intellectual property rights, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement on our Website, please contact our copyright agent as described in our copyright policy.
d) Except for the license to the Content shared by other users in the Forums or in relation to the Services and Inventions per Section 4 and 5 above, nothing on this Website shall be construed as conferring any license under any of Plesk’s or any Third Party Provider’s intellectual property rights, whether by estoppel, implication, or otherwise. You acknowledge sole responsibility for obtaining any such licenses.
e) All intellectual property rights in and to the Content and Inventions submitted to Plesk under the Content Contributor Program shall transfer to Plesk upon its receipt by Plesk. The contributor explicitly and irrevocably agrees to and acknowledges the assignment of all proprietary rights in and to such Content or Inventions to Plesk.
f) Permission is granted to display, copy, distribute and download Plesk’s Content on this Website provided that: (1) both the copyright notice identified below and this permission notice appear in the Content, (2) the use of such Content is solely for personal, non-commercial and informational use and will not be copied or posted on any networked computer or broadcast in any media, except as explicitly permitted by valid license covering such materials, and (3) no modifications of any of the Content are made. This permission terminates automatically without notice if you breach any of these terms or conditions. Upon termination, you must immediately destroy any downloaded and printed Content.
11. DISCLAIMER OF WARRANTIES
a) YOUR USE OF THE SERVICES AND ANY SOFTWARE IS AT YOUR SOLE RISK. THE SOFTWARE, SERVICES AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE CONTENT ON THE WEBSITE IS PROVIDED “AS IS”, “WITH ALL FAULTS,” AND IS FOR COMMERCIAL USE ONLY. PLESK DISCLAIMS ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES OF ANY KIND, INCLUDING ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT OR NONINFRINGEMENT. PLESK MAKES NO REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTIES AS TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY OF THE CONTENT CONTAINED ON THE WEBSITE. PLESK MAY MAKE AVAILABLE ON THE WEBSITE CONTENT AVAILABLE FOR DOWNLOADING WHICH HAS BEEN SUBMITTED BY THIRD-PARTY USERS OF THE WEBSITE. ANY QUESTIONS REGARDING THE CONTENT SHOULD BE DIRECTED TO THE PROVIDERS OF SUCH CONTENT. IN NO EVENT WILL PLESK OR ITS SUPPLIERS BE LIABLE FOR THE ACCURACY OR COMPLETENESS OF THE CONTENT OR INFORMATION FROM THE WEBSITE.
b) PLESK MAKES NO WARRANTY OR CONDITION THAT: (i) THE SOFTWARE, CONTENT OR SERVICES WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SOFTWARE, CONTENT OR SERVICES WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SOFTWARE, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS, OR THAT (v) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
c) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL, INCLUDING ANY DAMAGES RESULTING FROM COMPUTER VIRUSES.
d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM PLESK OR THROUGH OR FROM THE SERVICES WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THE TERMS. PLESK’S EMPLOYEES ARE NOT AUTHORIZED TO VARY THESE TERMS.
12. LIMITATION OF LIABILITY
a) TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, PLESK IS NOT LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, REVENUE, GOODWILL, USE, DATA, ELECTRONICALLY TRANSMITTED ORDERS, OR OTHER ECONOMIC ADVANTAGE (EVEN IF PLESK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, WHETHER IN CONTRACT (INCLUDING FUNDAMENTAL BREACH), TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR RELATED TO: (i) THE USE OF OR THE INABILITY TO USE THE SOFTWARE OR SERVICES; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, SOFTWARE, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICES; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES AND THE WEBSITE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICES, INCLUDING CONTENT YOU MAY DOWNLOAD, USE, MODIFY OR DISTRIBUTE FROM THE WEBSITE.
b) YOU HAVE SOLE RESPONSIBILITY FOR ADEQUATE PROTECTION AND BACKUP OF DATA AND/OR EQUIPMENT USED IN CONNECTION WITH THE WEBSITE AND WILL NOT MAKE A CLAIM AGAINST PLESK FOR LOST DATA, RE-RUN TIME, INACCURATE OUTPUT, WORK DELAYS OR LOST PROFITS RESULTING FROM THE USE OF THE CONTENT.
c) YOU AGREE TO HOLD PLESK HARMLESS FROM, AND YOU COVENANT NOT TO SUE PLESK FOR, ANY CLAIMS BASED ON USING THE WEBSITE, WHETHER IN CONTRACT (INCLUDING FUNDAMENTAL BREACH), TORT (INCLUDING NEGLIGENCE) OR OTHERWISE. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may only apply to you in accordance to the minimum liability requirements in your applicable jurisdiction.
13. GENERAL INFORMATION
a) These Terms constitute the entire agreement between you and Plesk and govern your use of the Services, superseding any prior agreements between you and Plesk (including, but not limited to, any prior versions of the Terms). You also may be subject to additional terms and conditions that may apply when you use other Plesk services, third-party content or third-party software. You must not assign or otherwise transfer the Terms nor any right granted hereunder. Sections 3, 4, 5, 7, 10, 12 and 13 survive termination of the Terms.
b) The laws of Switzerland govern any action related to the Terms. No choice of law rules of any jurisdiction apply. The parties specifically disclaim the U.N. Convention on Contracts for the International Sale of Goods. You and Plesk agree to submit to the personal and exclusive jurisdiction of the state courts located within Zürich / Switzerland.
c) Plesk controls and operates this Website from its headquarters in Switzerland and makes no representation that this Content is appropriate or available for use in other locations. If you use this Website from other locations, you are responsible for compliance with applicable local laws including but not limited to the export and import regulations of other countries.
d) You acknowledge and agree that Content may be subject to certain international Export Laws and Regulations. Diversion of such Content contrary to such Laws and Regulations is prohibited. You agree that none of the Content, nor any direct product therefrom, is being or will be acquired for, shipped, transferred, or re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals, nor be used for nuclear activities, chemical biological weapons, or missile projects. You agree to assume sole responsibility for obtaining licenses to export or re-export as may be required.
e) This Website could include inaccuracies or typographical errors. Plesk and the Third Party Providers may make improvements and/or changes in the products, services, programs, and prices described in this Website at any time without notice. Changes are periodically made to the Website. Plesk may amend these Terms at any time by posting the amended terms on this site.
f) The failure of Plesk to exercise or enforce any right or provision of the Terms does not constitute a waiver of such right or provision. If a court of competent jurisdiction finds any provision of the Terms to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or the Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section titles in the Terms are for convenience only and have no legal or contractual effect.
g) These Terms represent the entire understanding relating to the use of the Website and the Services and prevail over any prior or contemporaneous, conflicting, or additional, communications.
v.5 – Updated November 6th, 2019
Plesk gathers information in most of its interactions with you, whether directly or indirectly. Although some of the information may be considered as Personal Identifiable Information (“PII”), most of the gathered information is not PII. PII is defined as information that can be used on its own or with other information to identify, contact, or locate a single person, or to identify an individual in context.
Plesk has taken extensive safety and operational precautions, including administrative, physical and technical safeguards to protect personal information. Furthermore, Plesk deploys reasonable safeguards across the company databases to prevent unauthorized access, disclosure or loss of personal information.
Where information is provided to Plesk for the purpose of the establishment of a contractual relationship, Plesk processes your data on the basis of Article 6 I b) GDPR. In all other cases, your data is processed on basis of and in accordance to your explicit consent as required by Article 6 I a) GDPR.
Plesk collects and stores information during the registration of products, the creation of online profiles, the application via our website and any contact for support or other matters (e.g. contact or comment forms, telephone contact). Examples of information transmitted by you:
Plesk does not collect or process any credit card data during purchases. Any credit card purchase is made through our reliable and secure online payment processor (Worldpay), with the result that Plesk is never furnished with your sensitive credit card information;
In order to provide its services, its websites or fulfill its contractual obligations to you, Plesk may be required to forward data which may include some of your personal information to third parties. In order to follow the requirements of data minimization, the data so transferred is reduced to the necessary minimum. Those subcontractors are required to adhere to a data processing agreement with Plesk under which they are committed to process data solely in accordance with the applicable laws (including the GDPR and other national privacy laws).
Plesk has an extensive data protection policy in place across its organization, which every Plesk employee or contractor must adhere to at all times. Such data protection policy sets forth the mandatory way, information is expected to be handled within Plesk and describes the necessary internal processes and the required level of confidentiality to be maintained in order to be compliant with national and international data protection laws (like e.g. GDPR).
Plesk strives to comply with the concept of data minimization (“privacy by default”) by only collecting as much information as needed for the intended and approved purpose. Only information which is relevant to such purpose and which has been provided to Plesk in free and informed manner by you as the data subject will be processed by Plesk for as long as needed for the purpose. Thereafter, any PII is subject to a defined deletion routine as defined in Plesk’s record of processing activities created and maintained in accordance to Article 30 of the GDPR.
Plesk may automatically collect and store information about how users utilize the Plesk website(s) and applications. This may include anonymized IP addresses of website visitors, browser type and other information such as search terms, which helps us to improve our services and our website to provide you with the best possible services and user experience. Any so collected data which may be considered as PII is subject to immediate anonymization upon its collection with the result that the automatically-collected data will not allow Plesk or any other party to identify you.
The Plesk website as well as its contents, services and offers are not directed at children or minors. Accordingly, Plesk does not want and does not assume that any information collected on the Plesk website or any forum will be personal data pertaining to children or minors. Any data which is identified as belonging to a child or minor is subject to immediate deletion.
Plesk has implemented appropriate technical and organizational measures related to the respective processing purpose in order to protect the PII provided by you against abuse and loss. PII and other information about you are stored in a secure operating environment that is not accessible to the public.
Any data transmission performed by Plesk is encrypted during transmission via SSL.
In addition, each of Plesk’s employees is contractually bound by comprehensive confidentiality and non-disclosure terms and is further required to abide by the Plesk data protection policy at all times.
You have the following rights in respect to the PII you provide to Plesk:
Plesk may ask you to provide a proper identification of yourself before performing any PII-related action to avoid misuse.
In order for Plesk to execute its business processes in a convenient and optimal manner, it may be necessary for certain data to be processed by trusted 3rd parties and reliable partners. These 3rd parties may
on behalf of Plesk. However, Plesk only shares such information needed to serve the specific purpose for which the 3rd parties were engaged. Plesk ensures that these 3rd parties are under similar obligations to maintain privacy and confidentiality as Plesk’s own employees are and that they will handle your information in the way and to the extend as Plesk itself is permitted to. Plesk does not allow any 3rd party to use your information for any purposes for which the information was not collected.
Plesk will only disclose your PII abroad, if it is necessary for the intended purpose of processing. However, as a member of the worldwide Plesk group of companies, every local Plesk entity may maintain or perform data processing operations in countries outside the EEA or in countries without an adequate level of data protection, if it is required for the fulfillment of our obligations or the underlying agreement with you. Furthermore, subcontractors of Plesk which Plesk engages to act on its behalf in respect to the processing of your PII may be domiciled in such areas.
In order to secure such transfer and processing in accordance to chapter 5 of the GDPR, Plesk has implemented and requests the required technical and organizational measures as well as has entered into the appropriate contractual frameworks with group companies and subcontractors which make sure that the recipient of data has implemented an adequate level of data privacy in its organization as required by the GDPR. This includes signature of Data Processing Agreements as well as EU standard contractual clauses issued by the EU commission. These precautions are appropriate safeguards as requested by Article 46 GDPR and local data protection laws in effect, which make sure that your information will be treated securely, confidentially and in accordance to the applicable data protection laws.
Plesk only maintains your PII for as long as it is required for the intended and approved purpose. Data which is collected on basis of your explicit consent will be retained until such consent will be withdrawn or expires. Some data (e.g. billing related data) may be subject to statutory data retention obligations, which Plesk adheres to. Product trial licenses are tied to email addresses. For fraud protection purposes, such addresses are subject to an extended retention term of up to 12 months after license expiration. As soon as your PII is no longer needed to serve the purpose of its collection and no other retention policies apply, Plesk has implemented revolving routines to delete your data. Plesk employs data destruction techniques designed to completely destroy data and prevent any future recovery in all such routines.
A cookie is a piece of data stored on your computer, tied to information about you. Plesk may use all kinds of cookies. This may either include cookies which terminate and erase once you close your browser or log out or cookies stored on your computer for an extended timeframe.
During your first visit on the Plesk website, you will be asked to confirm the cookie categories you agree to be set (Cookie Bot). At the same time you will be provided with detailed information about the respective cookies.
Plesk has furthermore established a comprehensive “Statement Regarding Cookies and Other Technologies”, describing the different kinds of cookies and technologies used on the Plesk website, the purpose of their use as well as ways to avoid cookies and other technologies by way of editing your browser preferences or actively performing opt-out actions. The Plesk Statement Regarding Cookies and Other Technologies can be found at https://www.plesk.com/legal/#cookie-statement .
Accordingly, Plesk disclaims any responsibility and liability for actions of any 3rd parties or the observance of data protection regulations by 3rd parties, linked to from Plesk’s websites. In the event you envisage any shortcomings or breaches of data protection regulations by one of the 3rd parties linked on the Plesk website, please immediately contact Plesk per the address below to allow Plesk to take the appropriate actions to stop this misbehavior.
Responsible data processor: Plesk International GmbH, Vordergasse 59, 8200 Schaffhausen / Switzerland (CHE-278.733.710), represented by its Managing Director Mr. Sascha Konzack.
Version: v.5 (issued 06.11.2019)
This Policy applies to Plesk International GmbH, direct affiliates of the Plesk group of companies and all websites owned by Plesk.
This policy is subject to periodic revisions and may be amended by Plesk from time to time if necessary. A change log at the end of the policy will define changes made as well as the date of such changes. If required, Plesk will further inform you about changes to this policy via the appropriate communication channels directly.