OnApp Marketplace Terms and Conditionsv3.0 February 2019
Last modified: 1 February 2019
ONAPP MARKETPLACE TERMS AND CONDITIONS (“MTCs”)
The following terms shall be incorporated into the Agreement (as defined in the General Terms and Conditions of Trading (“GTCs”) located at https://onapp.com/legal/) between us where you access the Marketplace and/or buy or sell any Capacity via the Marketplace or where otherwise stated in the Order as applying.
Where used in these MTCs, words shall, except where otherwise stated, shall have the meaning given to them in the GTCs or as otherwise set out in the Agreement. In addition the following capitalised words and phrases shall have the meaning given to them below:
“Buyer” means an entity 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 Your use as a Buyer is subject to the Buyers’ Rules. Your use as a Seller is subject to the Seller’s Rules. You may operate both as a Buyer and a Seller in which case Appendix C shall apply. 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 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. Support and Service Levels
4.1 In the event of any problem with the Capacity, 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.
4.2 Sellers must comply with the SLA applicable to them, which is also hereby incorporated into and forms part of the Agreement.
4.3 In order to assist Buyers in choosing Sellers, OnApp may offer Cloud Scores. Subject always to paragraph 6 of Appendix A, we use reasonable endeavours to make them as reliable as reasonably possible. 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.
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.
7.1 All VSPs understand and agree that, from time to time in our discretion and without notice, we may modify our software.
7.2 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.
7.3 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.
APPENDIX A TO MTC –
1 Buyer may use the Capacity it purchases to provide services to third parties. Buyer may terminate any purchase for Capacity at any time.
2 Buyers are solely responsible for maintaining a copy of their content/User Content even if stored on OnApp’s or a third party’s equipment; you acknowledge and agree that you alone are liable for all User Content and that OnApp has no responsibility for any User Content transmitted by you or for other content that may be received by you via the system. You will reasonably cooperate with us and will provide us promptly upon request with 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 the Agreement.
3 To use the Marketplace, Buyers must have a subsisting Marketplace account with us. We may only suspend or close Buyer’s Marketplace account in accordance with the Agreement.
4 Buyers must strictly comply on time with the OnApp payment rules applicable to their chosen price plan as notified to them or published online by us from time to time.
5 When Buyers purchase Capacity in the Marketplace that purchase will be subject to the pricing and other terms and conditions – which may include a Seller’s SLA – set by the Seller of that Capacity that apply to use of that Capacity. Buyers may decide whether or not to purchase Capacity on the terms set by its Seller but not on any other terms. If a Buyer purchases Capacity from OnApp it does so subject to terms set by OnApp and any additional terms set by its Seller. A Buyer agrees to abide by all of our and the Sellers’ terms and conditions applicable to the Capacity purchased.
6 OnApp uses its reasonable endeavours to maintain a high quality of service provision throughout the Marketplace but Buyers understand and agree that the Capacity purchased from OnApp is delivered by Sellers alone and not by OnApp and that the quality of service provided by Sellers in the Marketplace is not controlled by OnApp and that, as a result, OnApp does not make any representations nor give any warranties about the quantity, quality, reliability, integrity, availability, price or any other quality of the Capacity offered in the Marketplace or the accuracy of the Cloud Score, save as expressly provided in this Agreement or to the extent mandated by applicable law.
APPENDIX B TO MTC –
“Outage” means an activity, error or issue that intentionally or unintentionally brings down an affected server;
“Unacceptable Use” means use that is contrary to the provisions of the AUP.
- Seller warrants to OnApp that Seller’s service will at all times meet or exceed the requirements of its Cloud Score, if any, applicable from time to time.
- Sellers must comply with the SLA applicable to them, which is also hereby incorporated into and forms part of the Agreement.
- OnApp shall comply with the payment rules applicable to Seller in accordance with itsagreement with OnApp.
- Sellers shall not access information provided for or on behalf of Buyers, analyse it, read it (by machine or human eye or otherwise), modify or adapt it copy, publish, re-distribute it or otherwise process it except as expressly authorised by the Buyer and strictly in accordance with its instructions or as strictly necessary to enable the Buyer to use the Capacity.
- During the Agreement and for 12 months after it, Sellers shall not actively solicit for Capacity business with entities they know to be Buyers or to have been Buyers in the preceding 12 month period.
- Sellers must not offer Capacity in territories or jurisdictions in which such services are unlawful or only permitted subject to conditions or restrictions that they do not at all times meet or fulfil.
- Seller acknowledges and accepts that although OnApp purchases Capacity from Sellers and sells it to Buyers, it is Buyers that actually use the Capacity. OnApp makes no inquiry about and makes no representation or warranty about the nature, type or quality of Buyers or the information that they may introduce into the Marketplace and/or Seller’s Capacity. OnApp takes reasonable steps to ensure that Buyers comply with Marketplace rules and may take action to suspend or exclude them where it considers that appropriate and lawful. Seller acknowledges that OnApp is not responsible for controlling or monitoring any content, information, data or other materials stored on, transmitted via, or accessible through use of, the Capacity, and OnApp will not have any liability to the Seller in connection with such content, information, data or other materials (including without limitation the accuracy or suitability thereof or unauthorized access or damage to, alteration, theft, corruption destruction or loss of, data, equipment, networks, or other materials) or for lack of use or reduction in resources suffered by Sellers or their systems or Capacity as a result of anything done or not done by any Buyers. OnApp shall not have any liability to Seller for its suspension or termination of any Buyer at any time.
- As part of the Agreement we shall agree with you a price, which you may publish in the Marketplace, at which you will sell to us and we will buy Capacity from you. You will not publish another price as well or instead. During the Agreement, you may not alter or amend your price for the sale of Capacity to us without our prior written consent. Failure to comply with the provisions of this paragraph 8 will impact your Cloud Score and may result, in our absolute discretion, in the suspension or termination of your ability to continue as a Seller and/or Buyer temporarily or permanently.
- It is unlikely we shall need to but if we consider it necessary we may suspend or terminate your account at any time without cause on not less than 28 days written notice in which case we shall pay to you all unpaid monies that are then or may thereafter become due and owing to you subject to applicable set-offs.
- Notifying OnApp and Buyers.
As a Seller you shall notify OnApp and Buyers in writing as follows. Failure to do so will impact your Cloud Score and may result, in our absolute discretion, in the suspension or termination of your ability to continue as a Seller and/or Buyer temporarily or permanently:
- In cases of Unacceptable Use by a Buyer, upon first becoming aware of such use you will shutdown the Virtual Machine and notify OnApp using the “Report A Problem” button within 1 hour in critical cases (e.g. DDoS attacks) and within 24 hours in non-critical cases;
- For Outages that are temporary, you must give Buyers two (2) weeks’ notice before the Outage starts;
- For Outages that affect individual Virtual Machines, you must raise a support ticket for Hypervisor Servers and use the “Report A Problem” button;
- For emergency temporary Outages, you must give us as much notice as possible if you intend one or notify us immediately if it occurs without warning;
- if you wish to leave the Marketplace as a Seller or to remove a zone, (“permanent shutdown”), you must give Buyers twenty eight (28) days prior notice by notifying OnApp Support at firstname.lastname@example.org.
APPENDIX C TO MTC –
You wish to supply certain services to us under the Agreement for which you and we wish to self-bill. Self-billing is a process where, for the convenience of you and us, we issue invoices on your behalf for the services you sell to us. The process may have certain VAT or similar sales tax implications for you.
IT IS AGREED AS FOLLOWS:
- As self-biller, we shall:
- issue self-billed invoices for all supplies made to us by you until the expiry of the Agreement (“Expiry”) showing your name, address and, where VAT is applicable, your VAT registration number, together with all the other details which constitute a full VAT invoice;
- send self-billed invoices to you;
- amend the-self billing agreement in the event your VAT registration number changes;
- You shall:
- accept invoices raised by us on your behalf until Expiry;
- not raise sales invoices for the transactions covered by this SBA;
- where VAT is applicable, notify us immediately if you
- change your VAT registration number;
- cease to be VAT registered; or
- sell your business, or part of your business;
- notify us within 90 days of any dispute in relation to the self-bill invoice failing which it shall be deemed irrevocably accepted;
- be liable for all costs, claims, damages and expenses incurred by us directly or indirectly arising out of or in connection with your breach of this paragraph 2 and/or paragraph 3
- Where you have told us that you are VAT registered you warrant and undertake that you are VAT registered.
- You agree that all self-billed invoices shall be inclusive of any VAT or other applicable sales taxes.
- We may outsource the self-billing process to a third party in our discretion and we shall inform you if we do so.
- Despite any other provision of the Agreement, either of us may disclose this SBA to any tax authority having power to require its disclosure.