1.1 Words and phrases not defined in these GTCs shall have the meaning given to them in the OnApp Master Licence Agreement, and any applicable Order, and any other applicable document referred to in any of the foregoing unless otherwise expressly stated.
“Intellectual Property Rights” or “IPRs” means without limitation, all present and future rights title and interest (as the same may be extended or amended) throughout the world in to or arising out of all forms of intellectual property including: (i) any national or international patent and any and all reissues, divisions, continuations, renewals, extensions and continuations-in-part thereof; (ii) inventions (whether patentable or not in any country), invention disclosures, improvements, trade secrets, proprietary information, know-how, technology and technical data; (iii) copyrights, copyright registrations, mask works, mask work registrations; (iv) all trade names, logos, common law trademarks and service marks; trademark and service mark registrations, goodwill, business names and domain names; (v) all so-called ‘sui generis’ rights (otherwise known as database rights); (vi) all rights in registered and unregistered designs; (vii) any other proprietary rights anywhere in the world and all rights or forms of protection having equivalent or similar effect to any of the foregoing; (viii) applications for the grant of any of the foregoing anywhere in the world, and all other rights corresponding thereto throughout the world together with and all rights of registration, extension and renewal thereof; and (ix) the right to bring legal proceedings to enforce any of the foregoing rights.
“Order” means an applicable order in writing (which includes electronically);
“Physical Core” means the physical part of a processor that performs instructions including any successors to or modifications of the existing technology or technologies of processors and/or the physical parts of processors but excluding non-physical processing provisions such as hyperthreading.
“Unit”is a basis of measuring OnApp Services for licensing where 1 unit is equal to: (i) one physical core in a server deployed as a hypervisor; or (ii) one smart server; or (iii) one bare metal server. For the purposes of this definition, smart servers are dedicated entities based on KVM Cloud-Boot hypervisors with pass-through enabled and are created and managed in the same way as virtual servers provided that only one smart server can be created per hypervisor.
“vGB” refers to the average in any calendar month of the sum of virtual reserved memory (in GigaBytes) used by each virtual machine running on hypervisors managed by the VMware vCloud Director and vCenter instance(s) connected to OnApp products.
2. COMMENCEMENT AND DURATION AND TERMINATION
2.1 Orders: OnApp shall be free to accept or decline each Order in its own discretion. Each Order shall become legally binding on the date of the last signature of that Order (“Commencement Date”) and, unless earlier lawfully terminated, shall continue until you have paid all the payments set out in that Order or such other minimum term as may be expressed in it (“Initial Period”) after which, subject to express written agreement otherwise, it shall continue unless and until terminated on thirty (30) days prior written notice given by you or us (“Term”). When fully executed, each Order shall constitute a separate Agreement independent of any other Agreements created by any other Orders. Each Order shall be subject to the provisions of the current version of the documents governing it (including without limitation the MLA, GTCs and AUP) prevailing at the time it is made, provided that: (i) in the event of conflict between them, the express terms of the Order shall take precedence; and (ii) subject to the foregoing, if you enter into subsequent Orders then, from the moment each one commences, any earlier agreed Orders that are then still subsisting shall become governed by the then current version of those governing documents prevailing at the time that subsequent Order is made. Subject to the foregoing, no amendment to an Order shall be effective unless in writing signed by both parties. Expiry or termination of one Order shall not affect the subsistence of other Orders.
2.2 Neither the whole nor any part of an Order may be terminated by you without cause except as expressly set out in the Agreement of which it forms a part.
2.3 We shall have the right to immediately suspend or terminate your access to/receipt of any or all OnApp Services under any or all Agreements in the event you breach any of your obligations under any Agreement.
2.5 Without prejudice to any other rights or remedies which the parties may have, either party may terminate an Order without liability to the other immediately upon giving notice to the other if the other party commits a material breach of the Agreement of which it forms a part which is incurable or, if capable of being remedied, is not remedied within 30 days of receipt of a notice from the other party requiring it to do so.
3.1. As consideration for (i) the supply of the OnApp Services by or on behalf of OnApp, and (ii) the supply of services by you to OnApp, you and OnApp shall pay to each other, as applicable, the agreed fees (“Fees”), in accordance with the applicable Agreement at the times and in the manner specified in it, as the same may be amended from time to time. You agree to pay the undisputed portion of any disputed invoice pending resolution of any dispute. A dispute over one invoice or Service or Agreement shall not entitle you to delay or dispute payment in respect of another invoice or Service or Agreement. The Fees owed to OnApp by you shall not be contingent upon your use or ability to collect any amounts from your own customers.
3.2 OnApp may amend its Fees due under an Order upon thirty (30) days prior written notice after the expiry of that Order’s the Initial Period. If any such Fees amendment is not acceptable to you and you do not then have a lawful right to terminate without cause, then following notice of such Fees amendment being given to you, you may give OnApp a minimum of thirty (30) days written notice of termination of the Orders affected by such Fees amendment, such termination to take effect at the end of the Initial Period or, if the Initial Period has then already expired, to take effect on its then next anniversary, in which case your Fees will not be so amended pursuant to this clause 3.1 prior to such termination.
3.3 In the event that we terminate an Agreement for your breach or insolvency we shall be entitled to invoice immediately for all the minimum Fees that would have been payable during the then remaining balance of the period of the Order that forms part of that Agreement.
3.4 All amounts payable by you are exclusive of any tax, levy or similar governmental charge that may be assessed by any jurisdiction, whether based on gross revenue, the delivery, possession or use of the OnApp Services, the execution or performance of the Agreement or otherwise, and including without limitation all sales taxes, use, excise, import or export, value added, governmental permit fees, license fees, and customs; provided, however, that neither party shall have any liability for any net income, net worth or franchise taxes assessed on the other. If, as a result of any tax or levy, you are required to withhold any amount on any payment to OnApp, then the amount of the payment to OnApp shall be automatically increased to totally offset such tax, so that the amount actually remitted to OnApp, net of all taxes, equals the amount invoiced or otherwise due. You will promptly furnish OnApp with the official receipt of payment of these taxes to the appropriate taxing authority. You may provide OnApp with a certificate of exemption acceptable to an applicable taxing authority.
3.5. All payments made by you must be received by OnApp in cleared funds by the due date for which purpose time shall be of the essence. No payments due to OnApp shall be subject to any setoff, counterclaim, withholding or deduction except as is mandatory under applicable law and subject to the other provisions of the applicable Agreement. OnApp shall be entitled to set off and cross-collateralise between each of your balances if more than one.
4. WARRANTIES AND INDEMNITIES
4.1. You warrant that, in the performance of your obligations under the Agreement, you shall comply with all applicable laws, statutes, codes, regulations, orders and other restrictions including those regarding export from the United States and re-export from other jurisdictions of equipment, computer hardware, software, technical data and information or derivatives thereof (“Laws”).
4.2. You shall indemnify OnApp on demand and hold it indemnified against all losses, damages, claims and expenses suffered by OnApp (including reasonable legal and other professional fees) that are directly or indirectly caused by your actual or threatened violation of any Laws, your infringement of any third party intellectual property right, or personal data or privacy rights, any of your User Content, or any violation by you of the OnApp Acceptable User Policy located at http://onapp.com/legal/aup prevailing from time to time.
4.3 OnApp shall at its own expense defend you or, in its sole and absolute discretion, settle any claim or action brought against you alleging that the possession or use of the OnApp Software (or any part thereof) in accordance with the provisions of the Agreement infringes within the UK the patent, copyright or registered trade mark rights of a third party (“Claim”) and shall be responsible for the losses, damages, costs and expenses (including reasonable legal fees) agreed to by OnApp in full and final settlement of such Claim or finally awarded against you by a court of competent jurisdiction in satisfaction of such Claim and not capable of further appeal, provided that in no event shall OnApp be liable to you to the extent that the Claim arises out of or in connection with: (i) the possession or use of the OnApp Software (or any part thereof) by you other than in accordance with the provisions of the Agreement; (ii) use of the OnApp Software in combination with any hardware or software not supplied or specified by OnApp, if the infringement would have been avoided by the use of the OnApp Software not so combined; (iii) use of a non-current release of the OnApp Software; (iv) a modification of the OnApp Software or related documentation by anyone other than OnApp; (v) your use of the OnApp Software in a manner contrary to the instructions given to you by OnApp; or (vi) your use of the OnApp Software or related documentation after you became aware of the Claim.
4.4. If any third party makes a Claim, or notifies an intention to make a Claim against you, OnApp’s obligations under this clause are conditional on you: (i) as soon as reasonably practicable, giving written notice of the Claim to OnApp, specifying the nature of the Claim in reasonable detail; (ii) not making any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of OnApp (such consent not to be unreasonably conditioned, withheld or delayed); (iii) giving OnApp and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within your power or control, so as to enable OnApp and its professional advisers to examine them and to take copies (at OnApp’s expense) for the purpose of assessing the Claim; and (iv) taking such action as OnApp may reasonably request to avoid, dispute, compromise or defend the Claim.
4.5. If any Claim is made, or in OnApp’s reasonable opinion is likely to be made, OnApp may in its sole and absolute discretion and expense: (i) procure for you the right to continue using the OnApp Software (or any part thereof) in accordance with the provisions of the applicable Agreement; (ii) modify the OnApp Software so that it ceases to be infringing; (iii) replace the OnApp Software with non-infringing software; or (iv) terminate the affected Agreement immediately by notice in writing to you and refund any of the Fees paid by you as at the date of termination (less a pro rata sum in respect of your use of the OnApp Software to the date of termination) on return of the OnApp Software and all copies thereof, provided that if OnApp modifies or replaces the OnApp Software, you shall have the same rights in respect thereof as you had in relation to the replaced version of the OnApp Software.
4.6. Clauses 4.3, 4.4, 4.5, 5.2 and 5.3 constitute your exclusive remedy, and OnApp’s only liability, in respect of Claims.
5. LIMITATION OF LIABILITY
5.1. Subject to clause 4.6 in respect of Claims, this clause sets out your sole rights and remedies and the entire financial liability and obligation of OnApp (including any liability for the acts or omissions of its employees, officers, agents, consultants and subcontractors) to you in respect of: (i) any breach of any Agreement including any breach by OnApp or its employees, officers, agents, consultants or subcontractors; (ii) any use made by you of the OnApp Services (or any part of them); and (iii) any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with any Agreement.
5.2. Nothing in any Agreement limits or excludes the liability of either party for death or personal injury resulting from negligence; or for fraud including fraudulent misrepresentation.
5.3. Subject to clause 5.2, OnApp shall not be liable for loss of profits, loss of business and/or business opportunity, depletion of goodwill and/or similar losses, loss of anticipated savings, loss of goods, loss of contract, loss of use, loss of or corruption of data or information or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses, even if it is aware of the circumstances in which they could arise; and OnApp’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of an Agreement shall be limited to the Fees paid by you to OnApp under the Order which forms a part of that Agreement for the applicable Services during the 12 month period immediately preceding the incident giving rise to such liability.
5.4. You acknowledge that the OnApp Services may enable or assist you to access POPs, websites and the website content of, and/or correspond with, third parties and that you do so solely at your own risk. OnApp does not endorse or approve any third-party, any third party POP, website or other service nor the content of any third-party website made available via the OnApp Services or otherwise.
5.5 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN THE AGREEMENT, THE ONAPP SERVICES ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY, AND YOUR ACCESS TO AND USE OF THE ONAPP SERVICES IS SOLELY AT YOUR OWN RISK. ONAPP DOES NOT WARRANT THAT THE ONAPP SERVICES WILL MEET YOUR REQUIREMENTS OR THAT ACCESS OR OPERATION OF THE ONAPP SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR COMPLETELY SECURE OR THAT THEY WILL OPERATE IN COMBINATION WITH THIRD PARTY HARDWARE OR SOFTWARE PRODUCTS OR SERVICES. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, EXCEPT AS EXPRESSLY SET OUT OTHERWISE IN THE AGREEMENT, ONAPP DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, AND STATUTORY, CONCERNING THE ONAPP SERVICES, OR OTHERWISE RELATED TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ANY STATUTORY WARRANTIES OF NON-INFRINGEMENT, AND ANY WARRANTIES OF CUSTOM, TRADE, QUIET ENJOYMENT, ACCURACY OF INFORMATIONAL CONTENT, OR SYSTEM INTEGRATION.
5.6 YOU ARE RESPONSIBLE FOR VERIFYING THE ACCURACY OF ANY OUTPUT FROM THE ONAPP SERVICES. YOU ALONE ARE RESPONSIBLE FOR DATA AND CONTENT TRANSFERRED USING THE ONAPP SERVICES AND SHALL MAINTAIN AN APPROPRIATE BACKUP OF ALL SUCH ITEMS.
6. IPRs AND CONFIDENTIALITY
6.1. All Intellectual Property Rights of whatever nature in the OnApp Services, related documentation and OnApp Content are and shall remain wholly and exclusively the property of OnApp. No rights in to or under them are granted to you except the express licences granted under the applicable Agreement. OnApp strictly reserves all rights not expressly granted by it to you in writing.
6.2. “Confidential Information” is defined as all non-public information of a secret or proprietary nature pertaining to the disclosing party’s business, products and/or services, affairs, customers, clients or suppliers, except: (i) such information that was known to the receiving party prior to its receipt from the disclosing party, without restriction as to use or disclosure; (ii) such information that is released into the public domain through no fault of the receiving party; (iii) such information as was independently developed solely by or for the receiving party without access to or use of Confidential Information; and (iv) any credit-rating related information. For the avoidance of doubt, the terms of the Agreement are confidential and may not be disclosed by you without the prior written consent of OnApp. Each party undertakes that it shall not disclose to any person any Confidential Information of the other, except as permitted by this clause. Each party may disclose the other party’s Confidential Information: to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Agreement; and as may be required by law, court order or any governmental or regulatory authority. No party shall use any other party’s Confidential Information for any purpose other than to perform its obligations under the Agreement.
6.3 We reserve the right to conduct a credit check on you and report to relevant third parties credit related information about any non-performance by you of your payment obligations.
7.1. If there is an inconsistency between any of the provisions of the Order and the provisions of these GTCs, the provisions of these GTCs shall prevail unless the Order specifically states otherwise. OnApp may change, discontinue, or remove any OnApp Services or part of any OnApp Services or change or remove features or functionality of any OnApp Services from time to time that do not materially diminish the functionality of your ordered OnApp Services. OnApp will notify you of any material change to, or discontinuation of, any OnApp Services. OnApp may also communicate with you via any user account in OnApp’s systems to which you have secure access (“User Account”), in which case the communication will be treated as received by you when it is posted by OnApp to that User Account. Changes made from time to time to the MLA, GTCs or AUP by OnApp acting in its sole and unfettered discretion. The parties may only use the trademarks of the other with the other’s prior written consent and strictly in accordance with its then prevailing trademark guidelines and its other written directions as given from time to time. All goodwill arising from such use shall inure to the benefit of the trademark’s owner. Nothing in the Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party. Each Agreement constitutes the whole agreement between the parties concerning the Order that forms part of it and supersedes any previous arrangement, understanding or agreement between them relating to the subject matter of that Order. Each party acknowledges that, in entering into the Agreement, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in the Agreement. Except in the case of an acquiring, acquired or merging entity, neither party shall assign its rights or obligations under the Agreement without the other’s prior written consent (not to be unreasonably withheld or delayed). The parties intend that no term of the Agreement may be enforced by any person who is not a party to it. The parties reserve the right to agree to rescind or vary the Agreement without the consent of any other person. The provisions of the Contracts (Rights of Third Parties) Act 1999 shall be and hereby are excluded. The Agreement shall be governed by and construed in accordance with the laws of England and Wales whose courts shall have exclusive jurisdiction over any and all disputes arising out of or in connection with it.