Webscale Networks, Inc., a Delaware corporation (“Webscale”) provides this website located at www.webscale.com and all other websites under such domain (the “Sites”), all Content (as defined below) thereon, certain related software, and its Service (as defined below) to you (“you”) subject to the following terms and conditions (“Agreement”). By using the Sites you agree to be bound by the latest amended version of this Agreement (see Section 16 below) and Webscale’s Privacy Policy, available at www.webscale.com/privacy-policy (“Privacy Policy”).
1. ACCEPTING THE TERMS. By accessing or using the information, tools, features and functionality located on the Sites, through any Webscale APIs, or through any software or other websites that interface with the Sites or its APIs (collectively, the “Service”), you agree to be bound by this Agreement, whether you merely browse the Sites as a “Visitor” or register with Webscale as a “Member.” If you accept this Agreement, you represent that you have the capacity to be bound by it or, if you are acting on behalf of a company or entity, that you have the authority to bind such entity and its affiliates.
2. PRIVACY. Webscale will comply with its Privacy Policy in the collection, use, and storage of information about you.
3. COPYRIGHTS. All content included on the Sites, including but not limited to text, graphics, logos, button icons, scripts, images, audio clips, digital downloads, data compilations, software, and Documentation (as defined below), as well as the compilation of that content into one, coherent website (collectively, “Content”), is the property of Webscale and protected by United States and international copyright laws. Reproduction of any Content without the written consent of Webscale is prohibited.
4. TRADEMARKS AND SERVICE MARKS. Webscale®, the Webscale logo, Content, and service names are trademarks, certification marks, service marks, or other trade dress of Webscale or its subsidiaries (collectively, “Marks”). The Marks have inherent meaning and substantial value because of their restricted use. They may not be used in connection with any product or service that is not Webscale’s or in any manner without Webscale’s permission. All other trademarks not owned by Webscale or its subsidiaries that appear on the Sites are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by Webscale or its subsidiaries.
5. LICENSE TO ACCESS WEBSCALE.COM AND SERVICE. In consideration for accessing the Sites and/or the Service, Webscale grants you a limited license to access and make personal use of the Sites and/or the Service. This license prohibits (a) your downloading (other than page caching) or modifying any portion of the Sites or the Service, (b) the resale of any Service, (c) your framing or utilization of framing techniques to enclose any Content, Mark, or other proprietary information of the Sites, (d) your use of any meta tags or any other “hidden text” utilizing the Marks, in each case without the express written consent of Webscale. Webscale also grants you a limited, revocable, and nonexclusive right to create a hyperlink to any non-password-protected directories available on the Sites. You may not use any of Webscale’s proprietary content, documents, graphics or Marks as part of the hyperlink without the express written consent of Webscale. Any unauthorized use automatically terminates the permission or license granted to you by Webscale and may incur legal liabilities for any damages. Webscale will make available documentation that describes the features, functionality, and performance of the Service (“Documentation”).
6. ACCOUNTS AND PASSWORDS. If you are a Member, you are responsible for maintaining the confidentiality of your account and password, and you agree to accept responsibility for all activities that occur under your account or password. You also agree to accept responsibility for your personnel (including employees and contractors) and end users and their use of the Service and Data (as defined below) in compliance with this Agreement, including use that you could not have prevented. Webscale reserves the right to, under its sole discretion, refuse service, suspend or terminate accounts, or otherwise restrict your access to the Sites and the Service.
7. THIRD-PARTY APPLICATIONS. The Service allows you to install or utilize certain third-party applications (“Apps”). These Apps are provided “AS IS” and governed by their own terms of service and privacy policies. Webscale does not endorse and is not responsible or liable for the services or features provided by these Apps, and you acknowledge and agree that Webscale shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with your use of or reliance on any Apps.
8. YOUR CONTENT. You retain full ownership of your materials served through Webscale. Depending on the features you select or Apps you enable, Webscale may modify the content of your site. For example, Webscale may detect any email addresses and replace them with a script in order to keep them from being harvested, insert code to improve page load performance, or enable an App. You acknowledge that Webscale may:
- Intercept requests determined to be threats and present them with a challenge page.
- Add cookies to your domain to track visitors, such as those who have successfully passed the CAPTCHA on a challenge page.
- Add script to your pages to, for example, add services, Apps, or perform additional performance tracking.
- Other changes to increase performance or security of your website.
Webscale will make it clear, whenever possible, when a feature will modify your content and, whenever possible, provide you with a mechanism to allow you to disable the feature.
9. YOUR RESPONSIBILITIES. You shall be responsible for: (a) the accuracy, quality, and legality of Data (as defined below) and the means by which you acquire Data; (b) using commercially reasonable efforts to prevent unauthorized access to or use of the Service; (c) promptly notifying Webscale of any unauthorized access or use of the Service; (d) publicly displaying your notice and takedown process under Title II of the Digital Millennium Copyright Act of 1998 (Section 512 of the U.S. Copyright Act)(“DMCA”) and any other intellectual property safe harbor law or regulation applicable to you (each, a “Safe Harbor Statute”); (e) complying with any notices received under a Safe Harbor Statute relating to Data or your use of the Service and (f) providing Webscale with an email address that Webscale can provide to third parties that inquire about Data or your use of the Service.
10. RECORDS OF YOUR USE AND YOUR VISITORS. You consent to having your Internet Protocol address recorded and your activities monitored to prevent abuse. As part of the Service, you may choose to monitor traffic to certain websites. In doing so, you acknowledge that Webscale acts as your limited agent (and data processor in the EU context) for the purpose of providing Internet data and optimization services. You acknowledge that it is your responsibility to ensure that the use of the Service is permitted under the laws of your jurisdiction. Where required by law, you agree to post a privacy policy that, at a minimum, discloses any and all uses of personal information that you collect from users, including any information collected via the Service (“Data”). You acknowledge that Webscale may use information collected through the Service to improve the Service or enable other services (e.g., using visitor traffic logs or data posted through the Service to detect threats so as to stop future attacks).
11. LIMITATION ON NON-HTML CACHING. You acknowledge that the Service is offered as a platform to cache and serve web pages and websites and is not offered for other purposes. Accordingly, you understand and agree to use the Service solely for the purpose of hosting and serving web pages as viewed through a web browser or other application and the Hypertext Markup Language (HTML) protocol or other equivalent technology. The Service is also a shared web caching service, which means a number of customers’ websites are cached from the same server. To ensure that the Service is reliable and available for the greatest number of users, a customer’s usage cannot adversely affect the performance of other customers’ sites. Additionally, the purpose of the Service is to proxy web content, not store data. Using an account primarily as an online storage space, including for the storage or caching of a disproportionate percentage of pictures, movies, audio files, or other non-HTML content, is prohibited.
12. INVESTIGATION. Webscale reserves the right to investigate you, your business, and/or your owners, officers, directors, managers, and other principals, your sites, and the materials comprising your sites at any time. These investigations will be conducted solely for Webscale’s benefit, and not for your benefit or that of any third party. If the investigation reveals any information, act, or omission which, in Webscale’s sole opinion, constitutes a violation of any local, state, federal, or foreign law or regulation or this Agreement, or is otherwise deemed harmful to the Service, Webscale may immediately disable your access to the Service. You agree to waive any cause of action or claim that you may have against Webscale for such action, including but not limited to a claim for any disruption to your website. You acknowledge that Webscale may, at its own discretion, reveal information about your web server to alleged copyright holders or others who have filed complaints with Webscale.
13. INDEMNIFICATION.
13.1. Indemnification by You. You will defend Webscale against any claim, demand, suit or proceeding made or brought against Webscale by a third party alleging that Data, or your use of the Service in breach of the Agreement, infringes or misappropriates the third party’s intellectual property rights, violates applicable law or has caused harm to the third party (a “Claim Against Webscale”), and will indemnify Webscale from any damages, attorneys’ fees and costs finally awarded against Webscale as a result of, or for any amounts paid by Webscale under a court-approved settlement of, a Claim Against Webscale, provided that Webscale (a) promptly gives you written notice of the Claim Against Webscale; (b) gives you sole control of the defense and settlement of the Claim Against Webscale (except that you may not settle any Claim Against Webscale unless it unconditionally releases Webscale of all liability related to the Claim Against Webscale); and (c) give you all reasonable assistance, at your expense.
13.2. Indemnification by Webscale. Webscale will defend you against any claim, demand, suit or proceeding made or brought against you by a third party alleging that the use of the Service in accordance with the Agreement infringes or misappropriates the third party’s intellectual property rights (a “Claim Against You”), and will indemnify you from any damages, attorneys’ fees, and costs finally awarded against you as a result of, or for amounts paid by you under a court-approved settlement of, a Claim Against You, provided that you (a) promptly give Webscale written notice of the Claim Against You; (b) give Webscale sole control of the defense and settlement of the Claim Against You (except that Webscale may not settle any Claim Against You unless it unconditionally releases you of all liability related to the Claim Against You); and (c) give Webscale all reasonable assistance, at Webscale’s expense.
If Webscale receives information about an infringement or misappropriation claim related to the Service, Webscale may in its discretion and at no cost to you (x) modify the Service so that it no longer infringes or misappropriates; (y) obtain a license for your continued use of the Service; or (z) terminate your subscriptions for the Service upon 30 days’ written notice and refund you any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim Against You arises from Data, your use of an App or your breach of this Agreement.
13.3. Additional Indemnities. For purposes of this Section 12, a Claim Against Webscale shall include a claim against Webscale, Webscale’s affiliates, and their officers, directors, and employees.
13.4. Exclusive Remedy. This Section 12 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this
Section 12.
14. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY. THE SITES AND THE SERVICE ARE PROVIDED BY WEBSCALE ON AN “AS IS” AND “AS AVAILABLE” BASIS. WEBSCALE MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SITES, THE EFFECTIVENESS OF THE SERVICES, OR THE INFORMATION, CONTENT, MATERIALS, OR PRODUCTS INCLUDED ON THE SITES. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SITES AND/OR THE SERVICE IS AT YOUR OWN SOLE RISK. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, WEBSCALE DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL WEBSCALE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; AND BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THE SITES OR THE SERVICE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
WEBSCALE MAKES REASONABLE EFFORTS TO CAUSE, BUT DOES NOT WARRANT, THAT THE SITES, THE SERVICE, THE WEBSCALE SERVERS, OR EMAIL SENT FROM ANY OF THE SITES SHALL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WEBSCALE SHALL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THE SITES OR THE SERVICE, INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES.
Some jurisdictions limit disclaimers of warranties and limitations of liability, and therefore the above may not apply to you.
15. TERMINATION. Webscale’s policy is to investigate violations of this Agreement and terminate the accounts of repeat violators. You agree that Webscale may, under certain circumstances and without prior notice, immediately terminate your Webscale account, any associated email address, and access to the Sites and associated Service. Causes for such termination include, but are not limited to: (a) a breach or violation of this Agreement or other incorporated agreements or guidelines; (b) a request by law enforcement or another government agency; (c) a request by you (self-initiated account deletions); (d) discontinuance or material modification to the Service (or any part thereof); (e) unexpected technical or security issues or problems; (f) extended periods of inactivity; (g) your engagement, or a reasonable suspicion of your engagement, in fraudulent or illegal activities; (h) your provision of false information as part of your account; (i) your failure to keep your account complete, true, and accurate; (j) any use of the Service deemed, at Webscale’s sole discretion, to be prohibited; (k) use of fraudulent payment methods; (l) nonpayment of any fees owed by you in connection with the Sites and associated Service; and/or (m) excessive burden or potential adverse impact on Webscale’s systems, potential adverse impact on other users, server processing power, server memory, abuse controls, or other reasons. Further, you agree that any termination shall be made in Webscale’s sole discretion and that Webscale shall not be liable to you or any third party for the termination of your account or access to the Service or any disruption such termination may cause. You expressly agree that you will not have any opportunity to cure. You further acknowledge and agree that your obligations to Webscale set forth in Sections 3, 4, 8, 9, 12, 13, 14, 22, 23, 24, 25, 26, 28, and 29 shall survive such termination.
16. DMCA & ABUSE REPORTS. Webscale is a pass-through network and, at most, caches content for a limited period in order to improve network performance. Webscale automatically removes content from our caches when it has been removed from our customer’s origin web server. Webscale is not a hosting provider and has no way of removing abusive content on third-party hosting services. Individuals or copyright holders concerned with content served through Webscale’s network may submit a complaint for investigation to: https://www.webscalenetworks.com/ or Webscale Networks, Inc., Attn: Abuse Department, 201 Ravendale Drive, Mountain View CA 94043. Please provide detailed information supporting your complaint as well as an affidavit attesting to its validity. By submitting a complaint, you acknowledge that, at Webscale’s sole discretion, copies of the complaint may be provided to the relevant Webscale user, the user’s hosting provider, and third-party services such as Lumendatabase.org and/or posted on the Sites.
17. MODIFICATIONS. Webscale may modify this Agreement from time to time. Any and all changes to this Agreement with the date of the last revision will be posted on the Sites. Accessing or using the Sites or the Service after such changes are posted constitutes your acceptance of, and agreement to be bound by, any such changes.
18. LINKS. The Service may provide, or third parties may provide, links to other websites or resources. Because Webscale has no control over such sites and resources, you acknowledge and agree that Webscale is not responsible for the availability of such external sites or resources, 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 (collectively, “Materials”). You further acknowledge and agree that Webscale shall 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 Materials.
19. PUBLICITY. If you become a Member or purchase the Service, Webscale shall be permitted to identify you as a customer, to use your website’s name in connection with proposals to prospective customers, to hyperlink to your website’s home page from, and display your logo on, the Sites, and to otherwise refer to you in print or electronic form for marketing or reference purposes.
20. NO THIRD-PARTY BENEFICIARIES. You agree that, except as otherwise expressly provided in this Agreement, there shall be no third-party beneficiaries to this Agreement.
21. WAIVER AND SEVERABILITY OF TERMS. The failure of Webscale to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in such provision, and the other provisions of this Agreement shall remain in full force and effect.
22. NON-TRANSFERABILITY OF ACCOUNTS. You agree that your Webscale account is non-transferable except with the written consent of Webscale.
23. TIME LIMITATIONS FOR CLAIMS. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the Sites or the Service must be filed within one year after such claim or cause of action arose or be forever barred.
24. APPLICABLE LAW. By accessing the Sites, you agree that the laws of the United States and, specifically, those of the state of California, without regard to principles of conflict of laws, will govern this Agreement and any dispute of any sort that might arise between you and Webscale or its affiliates.
25. ARBITRATION. In the case of any dispute under this Agreement, the parties shall first attempt in good faith to resolve their dispute informally, or by means of commercial mediation, without the necessity of a formal proceeding.
Any controversy or dispute arising out of or relating to this Agreement, or the breach thereof, which cannot otherwise be resolved as provided above shall be resolved by arbitration conducted in accordance with the commercial arbitration rules of the American Arbitration Association (“AAA”) and judgment upon the award rendered by the arbitral tribunal may be entered in any court having jurisdiction thereof. The arbitral tribunal shall consist of a single arbitrator mutually chosen by the parties or, in the absence of such agreement within thirty (30) calendar days from the first referral of the dispute to the AAA, designated by the AAA. The place of arbitration shall be San Francisco, California, U.S.A. unless the parties shall have agreed to another location within fifteen (15) calendar days from the first referral of the dispute to the AAA. The arbitral award shall be final and binding. The parties waive any right to appeal the arbitral award, to the extent a right to appeal may be lawfully waived. Each party retains the right to seek judicial assistance to: (a) compel arbitration; (b) obtain interim measures of protection prior to or pending arbitration; (c) seek injunctive relief in the courts of any jurisdiction as may be necessary and appropriate to protect the unauthorized disclosure of its proprietary or confidential information; or (d) enforce any decision of the arbitrator, including the final award.
The arbitration proceedings contemplated by this section shall be as confidential and private as permitted by law. To that end, the parties shall not disclose the existence, content or results of any proceeding conducted in accordance with this section, and materials submitted in connection with such proceeding shall not be admissible in any other proceeding, provided, however, that this confidentiality provision shall not prevent a petition to vacate or enforce an arbitral award and shall not bar disclosures required by law.
26. NOTICES. Except as otherwise specified in this Agreement, all notices, permissions and approvals shall be in writing and shall be deemed to have been given upon (a) personal delivery, (b) the second business day after mailing, or (c) the first business day after sending by email (provided email shall not be sufficient for notice of an indemnifiable claim). Notices shall be addressed to you at the address you provided upon your registration or to Webscale Networks, Inc. at 201 Ravendale Drive, Mountain View, CA 94043.
27. GOVERNMENT RIGHTS. The Service may include access to software. In such case, such software is commercial computer software, as such term is defined in 48 C.F.R. § 2.101. Accordingly, if you are an agency of, or contractor to, the U.S. government, you receive only those rights with respect to such software as are granted to all other end users under license, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other U.S. government licensees and their contractors. If you are a government agency that has a need for rights not granted under the Agreement, you must negotiate with Webscale to determine if there are acceptable terms for granting those rights, and mutually acceptable written terms specifically granting those rights must be included in any applicable agreement.
28. EXPORT COMPLIANCE. The Service and Documentation may be subject to export laws and regulations of the U.S. and other jurisdictions. You represent that you are not named on any U.S. government denied-party list. You shall not enable use of the Service in a U.S.-embargoed country or in violation of any U.S. export law or regulation.
29. ANTI-CORRUPTION. You have not received or been offered any bribe, kickback, illegal or improper payment, gift, or thing of value from any Webscale personnel or agents in connection with this Agreement, other than reasonable gifts and entertainment provided in the ordinary course of business. If you become aware of any violation of the above restriction, you agree to promptly notify ceo@webscalenetworks.com.
30. VERSIONS. The authoritative version of this Agreement is available at: www.webscalenetworks.com/terms. While translations of this Agreement may be provided in other languages for your convenience, the English language version hosted at the link above is binding for all users of the Sites and the Service.
31. HEADINGS. The headings and section titles in this Agreement are for convenience only and have no legal or contractual effect.