OnApp Cloud AgreementUpdated: December 6th 2013
This document sets out the legally binding terms and conditions applicable to use of “Marketplace”. These MTCs are incorporated by reference into the MLA. By using Marketplace you agree to these MTCs.
1.1 In these MTCs:
“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 hereto;
“Cloud Score” means a Seller’s rating based on objective metadata and other metrics applied by OnApp;
“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 it Appendix C hereto;
“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 hereto;
“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 In addition to our other express rights, we may suspend your Marketplace account, without notice, if obliged to do so to comply with our legal or regulatory obligations.
3.2 You may operate both as a Buyer and a Seller. 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.
3.3 You should ensure that your data, content and other material are backed-up as we do not do that for you.
3.4 The OnApp Service named “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 understand and agree that, from time to time in our discretion and without notice, we may modify our software.
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. 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.