OnApp Master Licence Agreementv2.0 August 2017
1. “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”). You may purchase/licence OnApp Services by executing a written Order, (as defined below), that is agreed by us. OnApp Services do not include our professional services which are governed by their own separate terms and conditions.
2. This OnApp Master Licence Agreement (“MLA”) and each applicable, written Order governed by this MLA (“Order”) and the other documents expressly incorporated into either of them by reference, (together “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). Notwithstanding the foregoing, at all times you will implement our reasonable requests regarding the use of the OnApp Services.
3. In addition to each Order, the following are expressly incorporated into this MLA by reference:
3.1 The OnApp General Terms and Conditions of Trading, current at the time you sign the applicable Agreement, located at https://onapp.com/legal/onapp-general-terms-and-conditions-of-trading-gtcs (“GTCs”);
3.2 The Terms and Conditions for Use of Marketplace, current at the time you sign the applicable Agreement, located at https://onapp.com/legal/onapp-marketplace-terms-and-conditions-of-trading-mtcs (“MTCs”);
3.3 The OnApp Acceptable Use Policy, as the same may be amended reasonably by us from time to time, a current copy of which is located at https://www.onapp.com/legal/aup (“AUP”);
3.4 The OnApp Information and Security Policy, as the same may be amended reasonably by us from time to time, a current copy of which is located at https://www.onapp.com/legal/info-sec/ (“InfoSec Policy”).
4. Unless the Order specifically states otherwise, if there is an inconsistency between any of the documents comprising the Agreement, the following, descending order of precedence shall apply: (i) the Order; (ii) this MLA; (iii) the MTCs; (iv) the GTCs; (v) the InfoSec Policy; and (vi) the AUP.
5. Any 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.
6. 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.
7. OnApp Services that are available for purchase/licence currently include the following (which may be described in more detail at www.onapp.com) and may encompass other products/services in future: (i) OnApp software which runs the OnApp controller server and includes, amongst other things, OnApp Cloud, OnApp Integrated Storage, OnApp CDN System functionality and the ability to build your own virtual CDN (“CDNaaS”) (collectively, “OnApp Software”); (ii) A 24x7x365 support service that targets a human response to support tickets within 15 minutes and includes an online knowledgebase (“Enhanced Support”) and (iii) OnApp Federation, that brings together (a) sellers of Capacity (as defined in its additional terms and conditions of use) and (b) users wishing to purchase such Capacity, (“Marketplace”).
8. All OnApp Services contain technological measures that, alone or working in conjunction with OnApp computer servers, are designed to prevent unlicensed or illegal use of the OnApp Software (collectively, “Authentication System”). Except in the case of certain, specific OnApp Services (for which you may re-configure the applicable Authentication System as expressly permitted by applicable terms and conditions): (i) the OnApp Services will not operate unless OnApp from time to time verifies the OnApp Services using the Authentication System; and (ii) among other things, the Authentication System allows OnApp to monitor use of the OnApp Services, forthwith terminate, suspend or disable access to the OnApp Services, in accordance with the other provisions of an applicable Agreement and/or terminate use of the OnApp Services upon the expiration or termination of an applicable Agreement.
9. Except as expressly permitted by an applicable Agreement, you shall not: (i) attempt to copy, modify, create derivative works from, republish, display, make available by any means, or distribute all or any portion of the OnApp Services and/or related documentation (as applicable) in any form or media; (ii) compile, disassemble, reverse engineer or otherwise reduce to human-readable form all or any part of the OnApp Services , except as permitted by applicable law; (ii) access all or any part of the OnApp Services in order to build a product or service which uses or competes with it; (iv) save as expressly permitted otherwise by the applicable Agreement, license, sell, rent, lease, novate, assign or otherwise transfer any OnApp Services and/or their related documentation, and or your rights in respect of them, to any third party; (v) obtain, or assist third parties to obtain access to the OnApp Services, other than as permitted by the Authentication System and the applicable Agreement; or (vi) attempt to interfere with the Authentication System.
10. You are responsible for all interfacing between the OnApp Services and your own and your End Users’ software and systems and for ensuring that sufficient equipment, communications and network interoperability capabilities exist to enable access to and use of the OnApp Services and that all of your hardware meets or exceeds minimum specifications (if any) prescribed by OnApp.
11. You shall be entirely responsible for all content that you send or that is sent on your behalf over the OnApp Services including those 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.
12. You shall be responsible for providing direct (or ‘front-line’) support to your End Users.
13. The OnApp Services are available only as an electronic download subject to prior agreement in 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 Services described in an applicable Order agreed by OnApp, and to use documentation related to such use provided by us, together with the right to grant to your own customers (“End Users”) a right to use (but not install) OnApp Services that OnApp has agreed you may resell, subject to the terms of any applicable OnApp EULA, or if none, subject to a written end user licence agreement granted by you on terms consistent with the applicable Agreement, that are no less protective of us and the applicable OnApp Service than OnApp’s standard EULA.
14. In order to maintain and improve OnApp Services, we may sometimes amend the functionality of off-premises services hosted by OnApp from time to time.
15. CDN System functionality can be accessed through the user interface panel. All data generated by and through your access to certain OnApp Services shall reside on our network and we may use such information only for the purposes of our Agreement with you. 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. 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, on an anonymous basis, to observe, study, test, maintain or improve the functioning or performance of OnApp Services, or to ascertain or evaluate a breach of this Agreement.
16. Using the OnApp CDN System and the points of presence (“POPs”) available on it, you can create your own CDN(s). 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. It may be necessary for us to make reasonable changes to certain OnApp Services to enable us to provide you with an ordered OnApp Service and you agree that we may do so provided that such changes do not materially diminish the operation of the affected OnApp Service 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.
17. In the case of CDN-related OnApp Services, you understand and agree that the quality of the CDN depends on the quality of service at each POP. Whilst we are not responsible for and shall have no liability for the availability, quality or absence of service at any POPs, we do respond to support tickets, try to advise on technical solutions and make contact with POP providers, where reasonably possible.