General Use Terms and Conditions
These OnApp CDN General Use Terms and Conditions (“Conditions”) apply to an entity’s access to and use of the OnApp CDN System (defined below). As used in these Conditions, “OnApp” means OnApp Ltd, and “you” means the person or entity using or accessing the OnApp CDN System.
THIS IS A LEGAL AND BINDING AGREEMENT BETWEEN YOU AND OnApp. BY CLICKING YOUR ACCEPTANCE OF THESE CONDITIONS, BY INSTALLING OR USING THE SOFTWARE (DEFINED BELOW), OR BY ACCESSING OR USING THE OnApp CDN SYSTEM, YOU ACKNOWLEDGE THAT YOU HAVE READ ALL OF THESE CONDITIONS AND THE ACCEPTABLE USE POLICY (see below), UNDERSTAND THEM, AND AGREE TO BE LEGALLY BOUND BY THEM. If you do not agree to these Conditions and the Acceptable Use Policy, you may not download or install the Software, and you may not access or use the OnApp CDN System.
These Conditions, together with the OnApp CDN Acceptable Use Policy found at here (“CDN-AUP”) (incorporated herein by this reference as if set forth in its entirety), constitute the entire contract between us (“Agreement”), and supersede all prior agreements and understandings between us, whether written or oral, relating to the subject matter hereof. The effective date of this Agreement is the later of the date which you accept these Conditions or access or use the OnApp CDN System.
These Conditions and the CDN-AUP may each be modified by OnApp at any time without notice, and any such modification shall be effective immediately upon posting to the OnApp Website (“Site”). We may change some or all of the functions, features, and capabilities of the OnApp CDN System at any time. By agreeing to these Conditions, you agree to periodically review the Conditions, and to be bound by any modifications or amendments thereto.
Any controversy or claim arising out of or relating to this Agreement shall be settled by binding arbitration, by a single arbitrator knowledgeable in both commercial transactions and the Internet services businesses generally, in accordance with the international rules for disputes involving non-U.S. companies) of the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration shall be conducted in San Diego, California, U.S.A., and judgment on the arbitration award may be entered into any court having jurisdiction thereof. The arbitration costs and fees shall be borne by the parties equally. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws principles. The provision of the 1980 United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. THE FEES, REMEDIES, DISCLAIMER OF WARRANTIES, LIMITS ON LIABILITY AND DAMAGES, AND THE OTHER PROVISIONS IN THIS AGREEMENT, COLLECTIVELY REFLECT THE ALLOCATION OF RISKS AND ARE AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.
OnApp CDN System
- General. OnApp provides a proprietary and software solution and related hardware and services that enable web-based content delivery networking among all of OnApp partners and users (collectively, the “OnApp CDN System”) via an Internet web browser. Your access to and use of the OnApp CDN System is contingent upon your compliance with the CDN-AUP, and your breach of the CDN-AUP shall constitute a breach of these Conditions.
- Access. All data generated by and through your access to the OnApp CDN System shall reside on our network and we may use such information for the purposes of this Agreement. You are responsible for all interfacing between the OnApp CDN System and your own or third party software and systems and end users, and for ensuring that sufficient equipment, communications and network interoperability capabilities exist to enable its access to and use of the OnApp CDN System. You shall not directly or indirectly: (i) sell, rent, lease, distribute, redistribute or transfer any of the OnApp CDN System, (ii) modify, translate, reverse engineer (except to the limited extent permitted by law), decompile, disassemble, attempt to discover the source code for, create derivative works based on, or sublicense any of the OnApp CDN System, (iii) remove any proprietary notice, labels, or marks on or in the OnApp CDN System, or (v) disable or circumvent any access control or related device, process or procedure established with respect to the OnApp CDN System, including the license key or any other part thereof. You are responsible for all use of the OnApp CDN System and for compliance with this Agreement; any breach by you or any user of the OnApp CDN System to whom you allowed access to the OnApp CDN System shall be deemed to have been a breach by you. Without limiting the generality of the foregoing, we shall at all times solely and exclusively own all rights, title, and interest in and to the OnApp CDN System (other than User Content (defined below)), and all intellectual property rights therein. We reserve all rights not expressly granted; no right or license is granted hereunder, express or implied or by way of estoppel, to any intellectual property rights other than as expressly set forth herein.
- User ID and Passwords. You are responsible for all actions taken under that User ID and password and shall only use the OnApp CDN System using your own User ID and password. You must use every effort to keep your password safe and should not disclose it to any other person. You shall not transfer or sell your User ID to any other person. You shall also not permit, either directly or indirectly, any other person to use your User ID or password.
- Fees and Payments. You agree to pay the then-current fees found on the OnApp website within fourteen (14) days of invoice. A one and a half percent (1.5%) monthly service charge is payable on all overdue balances. All fees are exclusive of, and you are responsible for, applicable foreign, federal, state, or local sales, use, excise, value added, export or other applicable taxes (other than taxes on OnApp’s net income) and all customs, duties and other governmental fees or levies. You shall pay or reimburse us for any such taxes and we may add any such taxes to invoices submitted to you by us. We are entitled to any costs of collecting any amount past due hereunder, including reasonable attorneys’ fees. Without limiting its other remedies hereunder, we may suspend or terminate your access to the OnApp CDN System if you have not made payment when due.
- User Content. As between you and OnApp, you retain all ownership rights in and to content transmitted through your system to the OnApp CDN System (“User Content”). We will use commercially reasonable efforts to protect against the loss, misuse and alteration of User Content under our control, including our standard encryption protocols and digital certificate to protect the security of such information. You acknowledge and agree that you are responsible for all User Content. Without limiting our rights under the CDN-AUP, we may, but have no obligation to, review and remove any User Content that we reasonably believe contravenes any terms of this Agreement or may give rise to liability. We may review and utilize User Content and, on an anonymous basis, to observe, study, test, maintain or improve the functioning or performance of the OnApp CDN System, or to ascertain or evaluate a breach of this Agreement.
- Use of Trademarks. Each party hereby grants to the other party a limited, nonexclusive right to use the other party's regular trade names, trademarks, service marks, titles, and logos ("Trademarks") in the marketing, promotion, and distribution of the OnApp Technology, provided that all such use of the other party's Trademarks is with that party's prior review and written approval. OnApp hereby grants to Partner a limited, nonexclusive right to copy the OnApp content found within the OnApp website at http://www.OnApp.com (but not Customer Content nor other third party content) solely in support of Partner's marketing of the OnApp Platform ("OnApp Content"). Partner may not: (i) modify the OnApp Content; or (ii) alter, remove or conceal or obscure or otherwise tamper or interfere with Trademarks or attributions. Partner shall comply with OnApp's guidelines instructions regarding Partner's use of OnApp Content as OnApp may communicate to Partner from time to time. OnApp may, from time to time upon reasonable prior notice, inspect Partner's use of OnApp Trademarks and OnApp Content to verify Partner's compliance with this Section. Any use of the other party's Trademarks by a party shall inure to the benefit of the other party. Each party agrees that the other party's Trademarks, and any goodwill appurtenant thereto, shall be owned exclusively by the other party and shall inure solely to the benefit of the other party. Upon the expiration or termination of this Agreement, the rights granted herein regarding the Trademarks will immediately terminate and each party will immediately cease and desist all use of the other party's Trademarks. Other than the rights expressly granted by one party to the other party in this Agreement, each party retains all rights to its own Trademarks, web site(s), technologies, patents, copyrights, trade secrets, know-how, databases (including all customer data and content), and other intellectual property and proprietary rights.
- Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE OnApp CDN SYSTEM IS PROVIDED “AS IS” WITHOUT ANY WARRANTY, AND YOUR ACCESS TO AND USE OF THE OnApp CDN SYSTEM IS SOLELY AT YOUR OWN RISK. OnApp DOES NOT WARRANT THAT THE OnApp CDN SYSTEM WILL MEET YOUR REQUIREMENTS OR THAT ACCESS OR OPERATION OF THE OnApp CDN SYSTEM WILL BE UNINTERRUPTED OR ERROR-FREE OR COMPLETELY SECURE. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, OnApp DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, AND STATUTORY, CONCERNING THE OnApp CDN SYSTEM, OR OTHERWISE RELATED TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY STATUTORY WARRANTIES OF NON-INFRINGEMENT, AND WARRANTIES OF CUSTOM, TRADE, QUIET ENJOYMENT, ACCURACY OF INFORMATIONAL CONTENT, OR SYSTEM INTEGRATION. NO WARRANTY IS MADE THAT ANY PRODUCT OR SERVICE WILL OPERATE IN AN ERROR FREE, UNINTERRUPTED OR COMPLETELY SECURE MANNER, OR IN COMBINATION WITH THIRD PARTY HARDWARE OR SOFTWARE PRODUCTS. You are responsible for verifying the accuracy of any output from the OnApp CDN System, and for any reliance thereon. You are responsible for data and content transferred to the OnApp CDN System and shall maintain an appropriate backup of all such items.
- Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL OnApp BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, ARISING OUT OF OR IN RELATION TO THIS AGREEMENT. IN NO EVENT SHALL WE BE LIABLE FOR ANY CAUSE OR CLAIM WHATSOEVER ARISING OUT OF OR RELATED TO THIS AGREEMENT IN EXCESS OF THE AMOUNTS YOU PAID US DURING THE SIX (6) MONTHS PRECEDING THE DATE ON WHICH SUCH CAUSE OF ACTION AROSE.
- Indemnity. You shall indemnify, defend and hold us harmless from all expenses, losses, damages or liabilities (including reasonable legal fees) arising out of or relating to any third party claims, demands, or suits, arising from, related to, or in connection with (i) your breach of this Agreement; (ii) your violation of any laws, rules or regulations or third party patent, copyright, trademark, trade secret or privacy rights; (iii) User Content; and (iv) your use of the OnApp CDN System (except to the extent such claim, demand or suit is caused by OnApp’s gross negligence or willful misconduct).
- Force Majeure. We shall not be liable to you or any other person or entity for any delay or failure in the performance of this Agreement or for loss or damage of any nature whatsoever suffered by such party due to disruption or unavailability of communication facilities, utility or Internet service provider failure, acts of war, acts of vandalism, terrorism, lightning, fire, strike or any other causes beyond our reasonable control.
- Independent Contractor. Our relationship is solely that of independent contractors. Nothing contained in this Agreement shall be construed to give either party the power to direct or control the activities of the other or constitute either party as the other’s partner, joint venturer, co-owner, agent, franchisee or employee. Neither party is authorized or empowered to transact business, incur obligations, or make representations on behalf of the other party.
- Compliance With Laws. The OnApp CDN System is provided solely for lawful purposes and use. You shall be solely responsible for, and agree to comply with, all applicable laws, statutes, ordinances, and other governmental authority, however designated, with respect to your use of and access to the OnApp CDN System, including without limitation United States government laws, regulations, orders or other restrictions regarding export from the United States and re-export from other jurisdictions of equipment, computer hardware, software, technical data and information or derivatives of such equipment, hardware, software, or technical data and information. You agree to comply with all applicable export and reexport control laws and regulations in regard to products (including computer hardware, software, deliverables, technical data, source code, or any other technology, equipment, and/or derivatives of such hardware, software, deliverables, technical data, source code, equipment, or any other technology) received from us. You further certify that you will not, directly or indirectly, without obtaining prior authorization from the competent government authorities as required by those laws and regulations: (1) sell, export, reexport, transfer, divert, or disclose technical data or dispose of any product or technology received from Licensor to any prohibited person, entity, or destination; or (2) use the product or technology for any use prohibited by the laws or regulations of the United States. You will reasonably cooperate with us and will provide us promptly upon request any certificates or documents as are reasonably requested to obtain approvals, consents, licenses and/or permits required for any payment or any export or import of products or services under this Agreement, at our expense.
- Miscellaneous. This Agreement shall be binding and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. This Agreement may not be assigned by you without our prior written consent. We may assign, delegate and/or subcontract any or all of its rights or obligations hereunder. Any attempted assignment in violation of the foregoing shall be null and void. Except as explicitly stated otherwise or required by law, you shall provide any notices to OnApp by commercial courier service or by certified mail, postage prepaid and return receipt requested, to 1, Jalan Emas 6, Taman Megah Mas, 47301, Petaling Jaya, Selangor, Malaysia, and notices shall be deemed delivered when received. OnApp shall provide any notices to you at the email address that you provide to OnApp, and such notice shall be deemed delivered twenty-four (24) hours after the email is sent, unless OnApp receives notice that the address is invalid or the email has otherwise failed to reach the destination email address within such period, in which case OnApp shall use commercially reasonable efforts to send you notice by mail. Notwithstanding the parties’ agreement to arbitrate, OnApp may seek injunctive or other equitable relief, wherever it deems appropriate, to protect or enforce OnApp’s rights under this Agreement. If any part of this Agreement shall be held to be void or unenforceable, such part will be treated as severable, leaving valid the remainder of this Agreement notwithstanding the part or parts found to be void or unenforceable. No waiver shall be effective unless it is in writing and signed by an authorized representative of the waiving party, and any such waiver shall only be applicable to the specific instance referenced in such writing. This Agreement may be amended only by a writing executed by each of the parties hereto. The headings in this Agreement are for purposes of reference only and shall not limit or otherwise affect the meaning hereof. Your outstanding payment obligations, Sections 3, 4, 5, 6 and 10, and any other term hereof which contemplates continuing effectiveness, shall survive the termination or expiration of this Agreement for any reason. You shall not be construed to be a third party beneficiary of any agreement between the OnApp and any third party.