1.1 This OnApp Master Licence Agreement (“MLA”), each applicable Order governed by this MLA, together with the GTCs, the AUP, and the OnApp Information Security Policy (as each of the same are defined below), together with any OnApp document referred to in any of the foregoing that is expressed as being incorporated into it by reference (collectively, for and with each Order, an “Agreement”), exclusively set out the terms and conditions that govern access to and use of any and all OnApp Services (unless expressly stated otherwise on the face of an applicable Order, in respect of that Order only).
1.2 The “GTCs” are hereby expressly incorporated into this MLA as if set out in it. “GTCs” means the OnApp General Terms and Conditions of Trading, as amended by us from time to time, a current copy of which is located at http://onapp.com/legal/onapp-general-terms-and-conditions-of-trading-gtcs.
1.3 “OnApp Services” include a variety of different software/products/services, which may change from time to time, that are owned, controlled and/or provided by or on behalf of OnApp Limited of The Cooperage, Old Truman Brewery, 91 Brick Lane, London E1 6QL, (collectively “OnApp”, “we”, “us” or “our”).
1.4 The OnApp Services currently include the following (which may be described in more detail at http://www.onapp.com) and may encompass other products/services in future, as specified in an Order: (i) OnApp software which runs the OnApp controller server and includes, amongst other things, OnApp Cloud, OnApp Integrated Storage and OnApp CDN System functionality (collectively, “OnApp Software”); (ii) The ability to build your own virtual CDN (“CDNaaS”); (iii) A GUI based VPS system to manage a VPS cluster (“SolusVM”) and (iv) OnApp Federation, that brings together (a) sellers of Capacity (as defined in Schedule 4 below) and (b) users wishing to purchase such Capacity, (“Marketplace”).
1.5 The rights granted under the Agreement are granted only to the entity agreeing the applicable Order for specified OnApp Services and each corporate entity controlled by it, or which controls it or which is under common control with it where ‘control’ means having the right to vote more than fifty per cent of the issued voting shares (“you“, “your”) and not to any other person or entity.
1.6 If you want to purchase more OnApp Services in future, you and we may execute one or more additional Orders.
1.7 Any other documents or terms issued by you, including any purchase order, shall be for your internal administrative purposes only and, regardless of what they may say otherwise, will have no contractual force or effect on us and shall not operate to govern our relationship or modify our Agreement with you.
1.8 Use of the OnApp Services shall be subject to and governed by: (i) the OnApp Acceptable Use Policy as the same is described at http://onapp.com/legal/aup, (“AUP”) and (ii) the OnApp Information and Security Policy as the same is described at http://onapp.com/legal/info-sec, as such policies may be amended by us in our unfettered discretion from time to time.
2. Special Terms
2.1 Use of OnApp Software, CDN System, CDNaaS, Marketplace and other specified OnApp Services shall be subject to the additional terms set out in the Schedules to this Agreement, as the same may be added or modified by us on written notice to you from time to time.
3. Third Party Software
3.1 The OnApp Services may contain third party software the use of which requires agreement to additional terms and conditions imposed by or for such third party with respect to such third party software (“Third-Party Licences”). You shall comply with the Third-Party Licences. We may treat your breach of any Third-Party Licence as a breach of the Agreement. OnApp does not hold itself out as having and does accept any liability for or in connection with the use of such third party software which is provided ‘as is’ without any warranty by OnApp of any kind. In the event that you become entitled to terminate any Third Party Licence for breach, our maximum aggregate liability to you, if any, for and in connection with such termination and the events giving rise to it shall not exceed the value of the Fees paid by you for such Third Party Licence in the twelve months preceding such termination.
SCHEDULE 1 – ONAPP SOFTWARE
1. The OnApp Software is available only as an electronic download subject to prior agreement of an Order. During the Term of the applicable Order, you are hereby granted a non-exclusive, non-transferable, non-assignable, non-sublicensable limited right and license to install and use the OnApp Software, and to use documentation related to such use provided by us, together with the right to grant to your own customers (“End Users”) a written sub-licence (“End User Licence Agreement”/“EULA”) to use (but not install) the OnApp Software on terms consistent with the applicable Agreement and no less protective of us and the OnApp Software.
2. You shall not attempt to copy, modify, create derivative works from, republish, display, or distribute all or any portion of the OnApp Software and/or related documentation (as applicable) in any form or media or, by any means; (i) compile, disassemble, reverse engineer or otherwise reduce to human-readable form all or any part of the OnApp Software, except as permitted by applicable law; (ii) access all or any part of the OnApp Software in order to build a product or service which uses or competes with it; (iii) save as expressly permitted otherwise by the applicable Agreement, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise make OnApp Software and/or its related documentation available to any third party; (iv) obtain, or assist third parties to obtain access to the OnApp Software, other than as expressly provided under the applicable Agreement; (v) remove any proprietary notice, labels, or marks on or in the OnApp CDN System; or (vi) store more than 100GB per Physical Core (as defined in the GTCs), (provided no such limit applies above 200 units).
3. The OnApp Software contains technological measures that, working in conjunction with OnApp computer servers, are designed to prevent unlicensed or illegal use of the OnApp Software (collectively, “Authentication System”). The OnApp Software will not operate unless OnApp from time to time verifies the OnApp Software using the Authentication System. The Authentication System allows OnApp to (among other things): monitor use of the OnApp Software; forthwith terminate, suspend or disable access to the OnApp Software in whole or in part in the event of a breach of this Agreement or in the event of a breach by the End User(s) of OnApp-related provisions; and/or terminate use of the OnApp Software upon the expiration or termination of the Agreement. You undertake not to, or attempt to, directly or indirectly modify, prevent or avoid the effective operation of or communication by the Authentication System.
4. You shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the OnApp Software and/or its related documentation and shall promptly notify us of any such unauthorised access or use, of which you become aware.
5. You shall be responsible for providing direct (or ‘front-line’) support to your End Users.
6. OnApp CDN System is subject to the additional provisions of Schedule 5 to this MLA.
SCHEDULE 2 – ONAPP CDN SYSTEM
1. The OnApp CDN System is deemed part of the OnApp Software. The OnApp CDN System functionality, which may be changed by us from time to time without your prior approval, can be accessed through the user interface panel and used subject to the terms of the applicable Agreement and any additional requirements that we may notify to you.
2. 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 the applicable Agreement. You are responsible for all interfacing between the OnApp CDN System and your own or Third Party Software and third party 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 are responsible for all use of the OnApp CDN System and for compliance with the applicable Agreement; any breach by 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.
3. You are responsible for all actions taken under your 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.
4. As between you and OnApp, you retain all ownership rights in and to the content transmitted by you via any OnApp Service (“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. We may, but have no obligation to, review and remove any User Content that we reasonably believe contravenes any terms of the 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.
5. If you use the OnApp CDN System you may operate a CDN. We enable CDN functionality only. We shall have no responsibility or liability for the operation, support or maintenance of your CDN.
6. OnApp CDN System is subject to the additional provisions of Schedule 5 to this MLA.
SCHEDULE 3 – CDNaaS
1.1 Using the OnApp CDN System and the points of presence (“POPs”) available on it, you can create your own CDN(s). POPs can be created, deleted, or modified by you, online without engagement from OnApp. Additionally, OnApp can provide CDNaaS as a managed CDN service (“CDN.net”).
2.1 During the period of our supply, it may become necessary to reconfigure the make-up of the CDN by adding or removing or replacing POPs. We shall be entitled to make such changes as we, in our discretion, consider appropriate to enable us to provide you with CDNaaS provided that such changes do not materially diminish the operation of the CDNaaS compared to what it would have been like without such changes. Where we believe, in our sole discretion, that it is practical to do so, we shall discuss with you and/or give you advance notice of any such changes.
3. Service Levels
3.1 You understand and agree that the quality of the CDN depends on the quality of service at each POP. You understand and agree that we are not responsible for and shall have no liability for the availability, quality or absence of service at any POPs.
4. Your Obligations and Responsibilities
4.1 You must cooperate with us on time at our request and at your own expense in any testing of the CDNaaS that we deem desirable. You must ensure that your systems meet any minimum specifications notified by us from time to time. You shall be entirely responsible for all content that you send or that is sent on your behalf over the CDN we operate for you. We shall have no liability in that connection and you shall indemnify us in respect of all such content use in accordance with the provisions of the Agreement. At all times you will obey our reasonable instructions regarding the use of the CDN and abide by our applicable AUP.
5. Payment Terms
5.1 CDNaas is subject to the additional provisions of Schedule 5 to this MLA.
SCHEDULE 4 – MARKETPLACE
1.1 This Schedule sets out the additional terms and conditions applicable to the “Marketplace” Service and incorporates by reference the Buyers’ Rules and the Sellers’ Rules. In this Agreement:
“Buyer” means an entity, including a VSP, authorised by OnApp to purchase compute capacity and/or CDN capacity (collectively “Capacity”) from OnApp in the Marketplace;
“Buyers’ Rules” means the additional terms and conditions applicable only to Buyers set out in Appendix A to this Schedule;
“Cloud Score” means a Seller’s rating based on objective metadata;
“Marketplace” means a service that brings together sellers of Capacity and users wishing to sell to OnApp and purchase from OnApp, such Capacity.
“Self-billing” has the meaning attributed to Appendix C to this Schedule
“Seller” means an entity authorised by OnApp to sell Capacity in the Marketplace to OnApp;
“Sellers’ Rules” means the additional terms and conditions applicable only to Sellers set out in Appendix B to this Schedule;
“VSP” means a Virtual Service Provider.
2.1 We hereby grant you a revocable, non-exclusive licence to access and use the Marketplace as specified in an applicable Order for its Term subject to the provisions of the Agreement in consideration for the Fees.
3. Conditions of Access and Use
3.1 Acting in our unfettered discretion we may terminate or suspend your participation in the Marketplace on thirty days prior written notice without cause. Our other rights to immediately suspend and/or terminate your participation in the Marketplace include the right to do so: (a) in the case of Buyers, if they do not conform to agreed payment terms on time or at all and, (b) in the case of Sellers, if their Capacity does not materially conform to their applicable Cloud Score, if any.
3.2 You may operate both as a Buyer and a Seller. You should ensure that your systems meet any minimum specifications notified by us from time to time and protect all your hardware, software, data, content and other material, back it up. You shall be entirely responsible for all content, information and data that you send or process or that is sent or processed on your behalf via the Marketplace. Marketplace is not directed at nor intended for distribution to, or use by, any person in any country or jurisdiction where such distribution or use would be contrary to local law or regulation. If we need to test Marketplace as a condition of your use, we may ask you to cooperate with us on time at our reasonable request and at your own expense in such testing.
4.1 In the event of any problem with the Marketplace Buyers need to log an incident with the OnApp support team using a Support ticket subject to and in accordance with any support policy and/or SLA prevailing from time to time, which are hereby incorporated into and form part of the Agreement. Sellers must comply with the SLA applicable to them which is also hereby incorporated into and forms part of the Agreement.
4.2 In order to assist Buyers in choosing Sellers, OnApp may offer Cloud Scores. We use reasonable endeavours to make them as reliable as reasonably possible but, in the end, their accuracy is up to Sellers, not us. Should you encounter an issue with the quality of a Seller you should raise that with us in writing.
5.1 During the period of your Order, it may become necessary to reconfigure the make-up of the Marketplace by adding or removing or replacing Sellers. Please be aware that (i) the nature, type and quality of a Seller and its Capacity may change and that Cloud Scores may be or become out of date; and (ii) in exceptional circumstances it may become necessary for OnApp to change a Seller’s Cloud Score without explanation or prior warning.
5.2 All VSPs hereby irrevocably agree that from time to time, in our sole discretion, we may: (i) modify the OnApp Software (or any other software provided to some or all of them by us or on our behalf); and (ii) provide no notice or such notice thereof as we consider appropriate.
6.1 We and you shall use reasonable endeavours to determine within a reasonable period (determined in all the circumstances) whether or not by mistake of fact, law, calculation or otherwise you or we have been wrongly charged for Capacity as a Buyer or have been wrongly paid for Capacity as a Seller (“Mistake”). If, in our sole good faith judgment, we determine that you or we have been subject to a Mistake, we shall, as applicable: (i) apply to your account a credit for the amount that you wrongly paid for Capacity as Buyer; and/or (ii) pay to your account any amount wrongly underpaid for Capacity sold by you as a Seller; and/or (iii) charge to your account any amount undercharged to you as a Buyer; and/or (iv) charge to your account any amount overpaid to you as a Seller. In the event that we determine that a charge is due or that no credit is due to your account, we shall notify you via the Service or otherwise in writing. If you notify us within thirty (30) days of the date of such notification that you disagree with our determination then we shall both use good faith reasonable endeavours to resolve the disagreement within twenty eight days using the Dispute Resolution process outlined below. A failure to notify us in writing within such thirty (30) day period shall be deemed your irrevocable agreement to and acceptance of our decision.
6.2 In addition, OnApp reserves the right to enforce, cancel or amend sales and purchases for Capacity which it reasonably believes may derive from a Manifest Error. A “Manifest Error” is an error, omission or price misquote which is or may be: (i) unintentionally materially and clearly incorrect when taking into account Marketplace conditions and prices which prevailed at that time; or (ii) intentional on the part of one or more parties with the apparent intention of making an unfair trade. It may include an incorrect, absurd or unscrupulous price, date, time or other quality. If a Capacity purchase is based on a Manifest Error (regardless of whether anyone gains from it), acting in our sole discretion, we may: (a) enforce it; (b) void it as if it had never taken place; or (c) amend it so that its terms are the same as the purchase which would have taken place had there been no Manifest Error.
6.3 In our absolute discretion, we may suspend or terminate the account of a VSP that has not been operated for a continuous period of at least six (6) months in which case we will refund to that VSP its Current Balance less an administration fee of $200 and any other applicable set-offs.
6.4 A VSP may terminate their VSP Order without cause for such termination by giving not less than thirty (30) days prior written notice of such termination subject to payment of an administration fee of $200.
6.5 For Buyers, Marketplace is subject to the additional provisions of Schedule 5 to this MLA.
6.6 For Sellers, Marketplace is subject to the additional provision of section 11 of Schedule 5 to this MLA.
6.7 Marketplace is subject to the additional provisions of Schedule 5 to this MLA.
SCHEDULE 5 – PAYMENT TERMS FOR PAY AS YOU GO PRODUCTS
In addition to the payment terms set out in the GTCs the following provisions of this Schedule 5 apply to OnApp Services provided on a pay-as-you-go basis.
“Current Balance” means the balance of your account with us, prevailing from time to time, taking into account all unpaid Charges due from you and all monies due to you;
“Deposit” means the amount of money to be provided by you to us, to be held by us and which, acting in our discretion, we may apply in payment of Charges owed by you to us from time to time;
1. Each Order shall be accompanied by an invoice for an agreed Deposit, zero rated for VAT.
2. Each Order shall be conditional on receipt by OnApp of, and shall be accompanied by, payment of the agreed Deposit.
3. OnApp Services, to which this Schedule 5 applies, may be subject to minimum monthly Charges which, as a minimum, shall be payable in full, regardless of the volume of your use of those services (“Minimum Charges”).
4. The Minimum Charges for OnApp Services to which this Schedule 5 Applies shall be invoiced and paid monthly in advance.
5. Where your Current Balance is in credit, we may apply the amount in credit in settlement of any Charges that become due regardless of the OnApp Services to which those Charges apply.
6. At all times, the amount of your Deposit must fully offset and may exceed the amount of your then Current Balance.
7. We may alert you if the amount of your Deposit does not fully offset the amount of your Current Balance. If it does not, then you must take action immediately to reduce the amount owing to us on your Current Balance or to increase the amount of your Deposit.
8. We reserve the right to suspend or terminate, (in our unfettered discretion), and without notice, your access to and/or use of OnApp Services should your Current Deposit not fully offset or exceed the amount of your Current Balance.
9. The Deposit can be applied by us at any time to pay off any arrears on your account. Deposits are refundable on termination subject to payment of any applicable administration fees.
10. Amounts will be periodically remitted to Marketplace Sellers when their Current Balance is in credit after payment of all Charges for all OnApp Services that are then due.