PLEASE READ CAREFULLY: THIS IS PART OF THE MASTER SERVICES AGREEMENT is between UCclouds, LLC, ("UCclouds") and the individual or entity ("Customer") for certain computer infrastructure and related services provided by UCclouds as ordered or accepted pursuant to the Terms of Service ("Services"). The Customer's use of and access to Services is governed by the Master Services Agreement which includes the Terms of Services, Service Level Agreement, Privacy Agreement, IP Address Policy, UCclouds Acceptable Use Policy and relevant appendices (which may include without limitation the international-related addenda that is attached below) ("MSA"). BY CLICKING OR CHECKING THE BOX PRESENTED WITH THE MSA OR INSTALLING OR USING THE SERVICES, THE CUSTOMER AGREES THAT (1) CUSTOMER HAS ACCEPTED THE MSA IN ITS ENTIRETY, (2) AGREES TO BE BOUND BY THE MSA (AS AMENDED FROM TIME TO TIME AS PROVIDED IN SECTION 19.1 OF THE TERMS OF SERVICE ), (3) IF THE CUSTOMER IS AN INDIVIDUAL, THEN THE INDIVIDUAL REPRESENTS AND WARRANTS THAT HE HAS THE LEGAL RIGHT TO ENTER INTO THE MSA AND IF THE CUSTOMER IS AN ENTITY, THEN THE INDIVIDUAL WHO AGREES TO THE MSA REPRESENTS AND WARRANTS THAT HE OR SHE HAS THE AUTHORITY TO BIND SUCH ENTITY AND (4) THIS MSA CONSTITUTES A BINDING AND ENFORCEABLE OBLIGATION BETWEEN UCCLOUDS AND CUSTOMER. IF THE CUSTOMER DOES NOT AGREE WITH ALL THE TERMS OF THIS MSA AND DOES NOT AGREE TO BE BOUND BY THIS MSA, PLEASE DO NOT CLICK OR CHECK THE BOX PRESENTED WITH THE MSA OR INSTALL OR USE THE SERVICES.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, UCCLOUDS AND CUSTOMER ACKNOWLEDGE AND AGREE THAT THEY ARE ALREADY BOUND TO THE TERMS AND CONDITIONS OF THIS MSA; MANUALLY EXECUTING THIS MSA IS FOR RECORD KEEPING PURPOSES ONLY; AND MANUALLY EXECUTING THIS MSA DOES NOT AMEND OR SUPERSEDE ANY OF THE EXISTING TERMS AND CONDITIONS OF THIS MSA:
Terms of Service ("TOS")
"Account Information" means billing information, contact information, payment information and such other information defined as "Account Information" in the
"Affiliate" means any legal entity that a party controls, that controls a party, or that is under common control with a party. For purposes of this definition, "control" shall mean beneficial ownership of the securities entitled to vote in the election of directors (or, in the case of an entity that is not a corporation, of the election of the corresponding management authority) in the entity of (i) more than fifty percent (50%) of the securities or (ii) such lesser percentage of securities as is the maximum ownership permitted in the country where the entity exists.
"Anniversary Billing Date" means the date of the month of the Effective Date except as provided in this definition. For example, if the Effective Date is May 20,
2012, then the Anniversary Billing Date is the twentieth of the calendar month. If the Anniversary Billing Date is a date in a calendar month which does not exist in each calendar month, then the Anniversary Billing Date shall be the last date of such month (i.e. if the Anniversary Billing Date is the 30th, then in February, the Anniversary Billing Date shall be either February 28 or 29, depending on the year).
"AUP" means the Acceptable Use Policy which is located at www.UCclouds.comlaboutllegal (or such other location as UCclouds may designate from time to time).
"Customer" means the individual or entity who agrees to the terms of the MSA by clicking or checking the box presented with the MSA, installing and/or using the
"Customer Content" means all data, software and information, including, without limitation, data text, software, scripts, video, sound, music, graphics and images that are created, uploaded or transferred in connection with the Services by Customer or its Affiliates.
"Customer End User" means a Third Party or its Affiliate which is an end user of a Customer Offering.
"Customer Offering" means services created by Customer based in whole or in part on the Services which are used by authorized Third Parties.
"Client Portal" means the portal at https://manage.UCclouds.com (or such other location as UCclouds may designate from time to time) or the UCclouds
Application Programming Interface.
"Effective Date" means the date on which the Customer accepts the MSA by clicking or checking the box presented with the MSA, installing and/or using the
"Feedback" means any and all suggestions, comments, improvements, or other feedback about the Services that Customer or any Affiliate provides to UCclouds either directly or indirectly via a UCclouds-controlled web site.
"Flow-Through Provisions" mean the terms of agreements for services provided by Third Parties which are included in the MSA as required by providers of Third Party Services. The Flow-Through Provisions apply only to the relevant services provided by Third Parties. Such services provided by Third Parties are part of the Services and are subject to the terms of the MSA as well as the Flow-Through Provisions.
"Hourly Services" means the Services that UCclouds offers on an hourly basis.
"Initial Term" means the period commencing on the Effective Date until the next Anniversary Billing Date, unless terminated as provided in Section 16.
"IP Address Policy" means the policy governing the use and provision of any IP Addresses which is located at www.UCclouds.comlaboutllegal (or such other location as UCclouds may designate from time to time).
"MSA" has the meaning set forth in the recitals.
"Order" means an order for a Service which may include a new order for a Service or an upgrade or a downgrade of a Service. The Order must be placed through the Client Portal or such other method designated by UCclouds from time to time. Orders do not apply to Third Party Services.
"PII" means information that can be used to identify, contact, or locate a single person or that can be used with other sources to uniquely identify a single individual.
"Privacy Agreement" means the terms governing the use of PII which is located at www.UCclouds.com/privacy (or such other location as UCclouds may designate from time to time).
"Private Network" means the term as described in the AUP.
"Public Network" means the term as described in the AUP.
"Renewal Term" means the period commencing after the last day of the Initial Term or the Renewal Term and extending until the next Anniversary Billing Date unless terminated as provided in Section 16.
"Services" has the meaning set forth in the recitals.
"Service Level Agreement" means the Service Level Agreement which is located at www.UCclouds.com/sla (or such other location as UCclouds may designate from time to time).
"Site" means www.UCclouds.com (or such other location as UCclouds may designate from time to time).
"SLA Credits" mean the credits for applicable qualifying service downtime as described in the Service Level Agreement.
"UCclouds" has the meaning set forth in the recitals.
"Term" means the term as set forth in Section 16.
"Third Party" means an individual or an entity which is not a Customer, UCclouds, or an Affiliate of UCclouds.
"Third Party Services" mean services which are provided by Third Parties directly to Customer. The definition of Services does not include Third Party Services.
"TOS" means the terms of service for the Services.
"TPS Agreements" mean agreements for Third Party Services which are directly between the Customer and the provider of the Third Party Services. These agreements are separate and independent from the MSA and UCclouds is not a party to these agreements.
2. UCCLOUDS' OBLIGATIONS.
2.1 Provision of Services. Contingent on UCclouds acceptance of an Order and subject to the terms of the MSA, UCclouds agrees to use reasonable efforts to provide the Services subject to the terms of Service Level Agreements. UCclouds retains the right to reject the request for Services by any individual or entity in its sole discretion. UCclouds may change, discontinue, add, modify, re-price or remove features or functionality from the Services upon notice to Customer provided through the Client Portal. It is the Customer's responsibility to review the Client Portal for such notices on a frequent basis. If Customer continues to use the Services following any such modification, such use will be deemed acceptance of such modification by Customer. The Third Party Services are provided by the relevant Third Parties and UCclouds is not responsible for the provision of Third Party Services.
2.2 Age. Customer must be at least 18 years of age or otherwise have the legal capacity to order Services. If Customer is ordering Services on behalf of an employer, company, or other legal entity, Customer represents and warrants that it has the legal right and authority to order Services and be bound to this MSA.
3.1 Collection of PII. The collection and use of PII is governed by the Privacy Agreement.
4. USE OF AND ACCESS TO THE SERVICES.
4.1 Ordering and Modification of Services. Customer may order Services and all upgrades to such Services through the Client Portal or as otherwise designated by UCclouds. UCclouds may accept such Orders in its sole discretion and shall give notice to Customer of acceptance of such Order through the Client Portal. For downgrades or cancellation of Services, UCclouds requires a written cancellation notice by cancellation ticket in accordance with the procedures in the Client Portal and through the Client Portal a minimum of 24 hours prior to 00:00:01 CST (GMT-6) on the Anniversary Billing Date for downgrades or discontinuance of Services. The failure to provide the required 24 hours written notice will result in the downgrade or discontinuance of Services being effective on the following Anniversary Billing Date and Customer will be charged for the Services during the relevant Renewal Term. Any Services cancelled prior to such 24 hour period will remain accessible to Customer until the automated process reclaims the server on the Anniversary Billing Date.
UCclouds.com services may be cancelled using the following method:
Make sure you select the Service that you want to cancel.
Log into the Client Portal at https://manage.ucclouds.com.
Click "My Services" from the "Services" tab.
Locate the Service you wish to cancel from the Product and Services list.
Select the "arrow" next to the "View Details" button on the right side of the Product and Services page.
Click the "Cancellation" button and complete the request.
Click Submit to send the Cancellation request to Customer Support.
For security reasons, we will not cancel your UCclouds.com product/services via email, ticket, chat or telephone. Cancellation will ONLY be processed through the cancellation method only. If not properly cancelled, invoicing will continued until properly cancelled. To verify your identity, you must complete your request using the Cancellation option service from within the Client Portal. It is important you do not send any other sensitive information via email.
4.2 Rights to Use Services. Subject to the terms and conditions of this MSA (including the Term), UCclouds grants Customer a non-exclusive, non-transferable, non-sublicenseable (except to the extent required to exercise rights under Section 4.2(b)), revocable right in the Services solely to: (a) use and access the Services for internal purposes; and (b) use the Services to create, offer and provide the Customer Offerings.
4.4 Special Terms for Third Party Services. To the extent Customer orders Third Party Services under TPS Agreements, UCclouds is not responsible for such Third Party Services and the provider of the Third Party Service is solely responsible for providing such Third Party Services. However, the Customer also agrees that the following terms of the TOS apply to such Third Party Services: Sections 8, 9, 10, 11, 15 and 16.
5.1 Fees. All fees for the provision of Services (except as provided below for Additional Service Fees, Hourly Service Fees and One Time Fees) are due in advance of the first day of the relevant term. For example, the fees for such Services during the Initial Term shall be due on the Effective Date or before the provision of Services. The fees for the Services for Renewal Term would be due on or prior to the Anniversary Billing Date for such Renewal Term. The amount due may be adjusted by addition of Services, upgrade of Services, discontinuance of Services or downgrade of Services and through the use of SLA Credits. The fees for additional or upgraded Services for which the Order is accepted on the Anniversary Billing Date will be due on the Anniversary Billing Date. The fees for additional or upgraded Services for which the Order is accepted after an Anniversary Billing Date will be pro-rated on a calendar day basis to the next Anniversary Billing Date and billed as a one-time pro-rata charge on the next Anniversary Billing Date. Such fees will be due for the following Renewal Terms until cancelled as provided in Section 4.1.
5.2 Additional Service Fees/Hourly Service Fees/One Time Fees. For fees for additional services such as bandwidth use overages, backup overages and VMware use (including archive storage), payment shall be due on the next Anniversary Billing Date. For Orders for Hourly Services, Customer shall specify the period of time for which the Hourly Services are requested in minimum increments of one hour and payment shall be due on the next Anniversary Billing Date. One time fees, such as setup fees, bandwidth, storage, administrative fees and late fees, are due and payable when invoiced, and/or as agreed by UCclouds through the Client Portal.
5.3 Payment Methods. The payment shall be made by the credit card maintained on file with UCclouds, automatic file transfer or such other method as approved by UCclouds. For methods such as credit card, the payment of fees shall be automatic on the due date.
5.4 Taxes. All prices and fees specified in or referred to in this MSA are stated exclusive of any tax, including withholding tax, sales, use, value added, levies, import and custom duties, excise or other similar or equivalent taxes imposed on the supply of Services. Any sales, use, levies, excise, withholding taxes or similar charges, direct or indirect, applicable or to become applicable, which are levied as a result of the supply of the Services shall be paid by the Customer. Neither party shall be liable for the other party's taxes based on income. If withholding tax applies to any payments for Services made under this MSA, the Customer may deduct such taxes and shall pay such taxes to the appropriate tax authority; provided that Customer shall provide UCclouds with an official receipt for any such taxes withheld and must notify UCclouds prior to payment that withholding tax is required to be paid and Customer shall pay to UCclouds any additional amount to ensure that UCclouds receives the full amount of the invoice. If UCclouds has the legal obligation to pay or collect taxes for which Customer is responsible under this paragraph, the appropriate amount shall be charged to and paid by Customer in addition to the amount of the invoice, unless Customer provides UCclouds with a valid tax exemption certificate authorized by the appropriate taxing authority. The parties undertake to cooperate, where possible, to minimize the amount of withholding tax due by making advance clearance applications under the relevant double taxation treaties (where applicable) to the relevant tax authority to reduce the rate of withholding tax or exempt entirely this amount if applicable. In any event, the Customer undertakes to account for any tax withheld to the tax authorities on a timely basis.
5.5 SLA Credits. SLA Credits, if issued to Customer's account, shall be used only to offset future charges for certain Services as provided in the Service Level Agreement. SLA Credits may not be sold, converted to cash or transferred to Third Parties or Affiliates. SLA Credits shall expire on the termination or expiration of the MSA.
5.6 Additional Fees. The Customer's failure to pay any fees on the due date shall result in incurring a late fee of $20. If UCclouds has suspended the Customer's access to the Services over the Public Network as provided in Section 15, the Customer shall incur a $50 reconnection fee. Such fees shall be due upon receipt, and UCclouds will not reconnect any Services to the Customer until full payment of such fees.
5.7 Refunds & Disputes. All fees paid for Services to UCclouds are non-refundable. If the Customer believes that the bills are in error, the Customer's sole and exclusive remedy is to seek SLA credits through the Client Portal by opening an accounting ticket to give notice to UCclouds within 30 days of the receipt of the disputed bill. Any invoice not disputed by Customer in accordance with Section 5.7 within 30 days of receipt of the invoice shall be conclusively accepted by Customer as correct. Customer shall not chargeback any credit card payments to UCclouds and any such chargeback will result in an additional payment to UCclouds of up to $500 which is a reasonable estimate of UCclouds additional administrative costs. Customer is responsible for any fees and costs (including, but not limited to, reasonable attorneys' fees, court costs and collection agency fees) incurred by UCclouds in enforcing collection of fees.
6. OWNERSHIP OF SITE.
Customer hereby acknowledges and agrees that UCclouds (or its licensors) own all legal right, title and interest in and to the Site and the Services provided by UCclouds, including, without limitation, any intellectual property or other proprietary rights which subsist in the Site and Services (whether such rights are registered or unregistered, and wherever in the world those rights may exist). As between Customer and UCclouds, all materials on the Site, including, but not limited to, graphics, user and visual interfaces, images, software, applications, and text, as well as the design, structure, selection, coordination, expression, "look and feel", and arrangement of the Site and its content (except for any Customer Content), and the domain names, trademarks, service marks, proprietary logos and other distinctive brand features found on the Site, are all owned by UCclouds or its licensors.
UCclouds agrees to maintain reasonable and appropriate measures related to physical security to protect Customer Content. Other than responsibility for physical security, Customer shall be solely responsible for data maintenance, integrity, retention, security, and backup of the Customer Content. If Customer transfers or is otherwise involved in the transfer of any Customer Content (whether in connection with its business or otherwise) over the Public Network or Private Networks, then Customer is solely responsible for compliance with any applicable laws, rules and regulations in any and all applicable regions or countries regarding the security, privacy, legality and/or safe handling of such Customer Content.
8. INDEMNIFICATION BY CUSTOMER.
Customer hereby agrees to indemnify, defend and hold harmless UCclouds and its Affiliates, licensors and providers of Third Party Services, and their respective directors, officers, employees, contractors, agents, successors, and assigns, (collectively, the "UCclouds Parties") (UCclouds and each of the UCclouds Parties an "Indemnified Party"), from and against any and all liability (including, without limitation, attorneys' fees and costs) incurred by the Indemnified Parties in connection with any actual or alleged claim ("Claim") arising out of: (a) Customer's use of the Services or Third Party Services; (b) any breach or alleged breach by Customer of this MSA; (c) any breach or alleged breach by Customer including any person given access or Customer End Users of a Third Party's rights, including, without limitation, any actual or alleged infringement or misappropriation of a Third Party's copyright, trade secret, patent, trademark, privacy, publication or other proprietary right; (d) any damage caused by or alleged to have been caused by Customer or Customer End Users to the Site or Services; or (e) any actual or alleged violation or non-compliance by Customer or Customer End Users with any applicable law, court order, rule or regulation in any jurisdiction. The counsel which Customer selects for the defense or settlement of a Claim must be approved in writing in advance by UCclouds prior to such counsel being engaged to represent the Indemnified Parties. Customer shall not in any event consent to any judgment, settlement, attachment, or lien, or any other act adverse to the interests of UCclouds or any UCclouds Parties without the prior written consent of UCclouds and/or applicable UCclouds Parties. Customer and Customer's counsel will cooperate as fully as reasonably required, and provide such information as reasonably requested, by the UCclouds or the UCclouds Parties in the defense or settlement of any such matter.
9. DISCLAIMER OF WARRANTIES.
EXCEPT AS REQUIRED BY LAW CUSTOMER'S USE OF THE SITE AND SERVICES IS ENTIRELY AT CUSTOMER'S OWN DISCRETION AND RISK. THE SITE AND SERVICES ARE FURNISHED BY UCCLOUDS "AS IS" AND WITHOUT WARRANTIES OR CONDITIONS, STATUTORY OR OTHERWISE, OF ANY KIND. UCCLOUDS; (A) EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE; (B) DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER'S REQUIREMENTS, OR THAT THEIR OPERATION WILL BE TIMELY, UNINTERRUPTED, SECURE, OR ERROR-FREE OR THAT ANY DEFECTS WILL BE CORRECTED; AND (C) DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS OR CONDITIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES IN TERMS OF ITS ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, OR OTHERWISE. CUSTOMER ASSUMES TOTAL RESPONSIBILITY FOR ITS AND CUSTOMER END USERS' USE OF THE SERVICES.
10. DISCLAIMER OF CONSEQUENTIAL DAMAGES.
EXCEPT AS REQUIRED BY LAW IN NO EVENT WILL UCCLOUDS BE LIABLE TO CUSTOMER, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, COMPENSATION, REIMBURSEMENT OR DAMAGES IN CONNECTION WITH, ARISING OUT OF, OR RELATING TO, THE USE, OR LOSS OF USE OF, THE SERVICES, LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF, OR DAMAGE TO, DATA OR CONTENT, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, SUBSEQUENT OR OTHER COMMERCIAL LOSS, OR FOR ANY OTHER REASON OF ANY KIND, WHETHER BASED ON CONTRACT OR TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY), EVEN IF UCCLOUDS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. LIMITATION OF LIABILITY.
EXCEPT AS REQUIRED BY LAW UCCLOUDS WILL NOT BE LIABLE TO CUSTOMER FOR DAMAGES FOR BREACH OF ANY EXPRESS OR IMPLIED WARRANTY OR CONDITION, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY RELATED TO THE SITE OR SERVICES. IF, NOTWITHSTANDING THE FOREGOING, UCCLOUDS IS FOUND TO BE LIABLE TO CUSTOMER FOR ANY DAMAGE OR LOSS WHICH ARISES UNDER OR IN CONNECTION WITH THE SERVICES, UCCLOUDS'S TOTAL CUMULATIVE LIABILITY TO CUSTOMER SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY THE CUSTOMER FOR THE SERVICES FOR THE SIX MONTHS PRIOR TO THE OCCURRENCE OF THE EVENT(S) GIVING RISE TO UCCLOUDS'S LIABILITY.
12. ALLOCATION OF LIABILITY.
THE PARTIES ACKNOWLEDGE THAT THE DISCLAIMER OF WARRANTIES, DISCLAIMER OF CONSEQUENTIAL DAMAGES AND LIMITATIONS OF LIABILITY IN THE MSA AND IN THE OTHER PROVISIONS OF THIS MSA AND THE ALLOCATION OF RISK HEREIN ARE AN ESSENTIAL ELEMENT OF THE BARGAIN BETWEEN THE PARTIES, WITHOUT WHICH UCCLOUDS WOULD NOT HAVE ENTERED INTO THIS MSA. UCCLOUDS'S PRICING REFLECTS THIS ALLOCATION OF RISK AND THESE LIMITATIONS.
13. DISPUTE RESOLUTION.
Notwithstanding the provisions for non-payment by Customer, each party will allow the other reasonable opportunity to comply before it claims that the other has not met its obligations under this MSA. The parties will attempt in good faith to resolve all disputes, disagreements, or claims between the parties relating to this MSA. Unless otherwise required by applicable law without the possibility of contractual waiver or limitation, i) neither party will bring legal action, regardless of form, arising out of or related to this MSA or any transaction under it more than two years after the cause of action arose; and ii) after such time limit, any legal action arising out of this Agreement or any transaction under it and all respective rights related to any such action lapse. Notwithstanding the provisions of this Section 13, Customer acknowledges that Customer's breach of Sections 4.2, 4.3 or violation of any terms and conditions of the AUP would cause irreparable injury to UCclouds and agrees that in the event of any such breach, UCclouds shall be entitled to seek temporary and preliminary injunctive relief without the necessity of proving actual damages or posting any bond or other security.
Customer hereby grants to UCclouds a non-exclusive, worldwide, royalty-free, fully paid-up license during the Term to use Customer's trademarks, marks, logos or trade names in connection with UCclouds provision of Services (including support of Services) to Customer and to be listed as a customer of the Services by UCclouds or its designees. The license granted in this Section 14 will include the right of UCclouds to sublicense its Affiliates and any Third Parties providing all or part of the Services on behalf of UCclouds to achieve the foregoing.
15.1 Suspension. UCclouds may suspend provision of Services to Customer without liability if: (i) UCclouds reasonably believes that the Services are being used (or have been or will be used) by Customer in violation of the MSA or any applicable law, court order, rule or regulation in any jurisdiction; (ii) Customer does not cooperate with UCclouds investigation of any suspected violation of the MSA or any applicable law, court order, rule or regulation in any jurisdiction; (iii) UCclouds reasonably believes that Services provided to Customer have been accessed or manipulated by a Third Party without Customer's consent or in violation of the MSA; (iv) UCclouds reasonably believes that suspension of the Services is necessary to protect UCclouds network or other UCclouds customers; (v) a payment for the Services is overdue by more than 5 days including the Anniversary Billing Date (and in addition, UCclouds may, in UCclouds sole discretion, continue to make the Services available through the Public Network and may suspend such access to the Private Network if the fees are not paid within 7 days of the due date); (vi) the continued use of the Services by the Customer may adversely impact the Services or the systems or content of any other UCclouds customer, (vii) UCclouds reasonably believes that the use of the Services by Customer may subject UCclouds, its Affiliates, or any Third Party to liability; or (viii) suspension is required by law, statute, regulation, rule or court order. UCclouds will give Customer reasonable advance notice of a suspension under this paragraph and a chance to cure the grounds on which the suspension are based, unless UCclouds determines, in UCclouds reasonable commercial judgment, that a suspension on shorter or contemporaneous notice is necessary to protect UCclouds or its other customers from operational, security, or other risk or the suspension is ordered by a court or other judicial body. A violation of the Flow-Through Provision shall be treated the same as a violation of the MSA for this provision. If UCclouds suspends the Customer's right to access or use any portion or all of the Service:
a. Customer remains responsible for all fees and charges Customer has incurred through the date of suspension;
b. Customer remains responsible for any applicable fees and charges for any Services to which Customer has continued to have access, as well as applicable data storage fees and charges, and fees and charges for in-process tasks completed after the date of suspension;
c. Customer will not be entitled to any SLA Credits under the Service Level Agreement for any period of suspension;
d. and at UCclouds sole discretion, UCclouds may terminate Customer's access to Customer Content stored in the Services during a suspension, and UCclouds shall not be liable to Customer for any damages or losses Customer may incur as a result of such suspension.
16.1 Term. Except in the case of Hourly Services which are provided based on the number of hours in the Order or as otherwise agreed to by the parties in writing, the term shall commence on the Effective Date and is automatically renewed each Anniversary Billing Date until terminated as provided below.
16.2 Termination for Convenience. Customer may terminate the MSA for convenience at any time as provided in Section 4.1 through the Client Portal. If Customer terminates this MSA for convenience, Customer shall pay UCclouds all amounts that would be due within 5 days after such termination. UCclouds may terminate the MSA for convenience upon providing Customer with notice of non-renewal at least 10 days prior to the expiration of the Initial Term or any Renewal Term.
16.3 Termination for Breach. UCclouds may terminate the MSA immediately upon notice provided through the Client Portal if: (i) UCclouds discovers that the information Customer provided to UCclouds about Customer's proposed use of the Services or Account Information was inaccurate or incomplete; (ii) if Customer is an individual, Customer was not at least 18 years old or otherwise did not have the legal capacity to enter into the MSA, install, or accept Services at the time Customer submitted the Order, or if Customer is an entity, the individual submitting the Order for Customer did not have the legal right or authority to enter into the MSA, install or accept Services on behalf of the person represented to be the Customer; (iii) Customer payment of any invoiced amount is overdue, and Customer does not pay the undisputed overdue amount within 5 days of the due date; (iv) Customer use of the Services or Customer End Users use of the Customer Offering in violation of this MSA and fails to remedy any violation within 5 days of UCclouds written notice; (v) Customer or Customer End User violates the AUP; (vi) Customer's account has been suspended for 30 days or more; (vii) Customer has multiple violations of the MSA; or (viii) Customer fails to comply with any other provision of this MSA and does not remedy the failure within 30 days of UCclouds notice to Customer describing the failure. UCclouds will give Customer written notice of termination under this paragraph unless UCclouds determines, in UCclouds reasonable commercial judgment, that a termination on shorter or contemporaneous notice is necessary to protect UCclouds or its other customers from operational, security, or other risks. A breach of the Flow-Through Provision shall be deemed to be a breach of the MSA.
16.4 Access to Customer Content. The deletion of Customer Content is automatic upon termination or expiration of the MSA. Consequently, unless UCclouds determines otherwise, Customer will not have access to Customer Content, and UCclouds may immediately erase or delete Customer Content from its computer infrastructure after the effective date of termination or expiration of this MSA.
16.5 Effect of Termination. Upon expiration or termination of the MSA, Customer must discontinue use of the Services and relinquish use of the IP addresses and server names assigned to Customer by UCclouds and any other materials provided to Customer by UCclouds in connection with the Services, including pointing the DNS for Customer domain name(s) away from the Services. UCclouds will have no obligation to provide any transition services or access to data except as expressly stated in Section 16.4 above.
17. U.S. GOVERNMENT CUSTOMERS AND U.S. GOVERNMENT RIGHTS.
UCclouds provides the Services for ultimate federal government end use solely in accordance with the following license rights to use, modify, reproduce, release, perform, display, or disclose: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this MSA. This customary commercial license is provided in accordance with the Federal Acquisition Regulation ("FAR") at 48 C.F.R. 12.211 (Technical Data) and FAR 12.212 (Software) for civilian agencies of the federal government, and, for Department of Defense transactions, the Defense Federal Acquisition Regulation Supplement ("DFARS") at 48 C.F.R. 252.227-7015 (Technical Data - Commercial Items), 48 C.F.R. 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). This U.S. Government Rights clause, consistent with 48 C.F.R. 12.211, 48 C.F.R. 27.212 (federal civilian agencies) or 48 C.F.R. 227.7202-4 (DoD agencies) is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses U.S. Government rights in computer software, computer software documentation or technical data related to the UCclouds Commercial Computer Software and Commercial Computer Software Documentation licensed under this MSA or in any contract or subcontract under which this UCclouds Commercial Computer Software and Commercial Computer Software Documentation is acquired or licensed. If a government agency has a need for rights not conveyed under these terms, it must negotiate with UCclouds to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in writing and agreed to by UCclouds in any applicable contract or agreement
18. THIRD PARTIES.
Unless otherwise agreed in writing, UCclouds will provide support only to Customer, not to Customer End User, Customer Affiliate, Third Party or Third Party Affiliate to whom Customer provides access to use the Services or the Customer Offering. There are no Third Party beneficiaries to the Agreement, meaning that Third Parties do not have any rights against either UCclouds or Customer under the MSA.
19.1 Changes to the MSA. As noted in the recitals, UCclouds may modify the terms and conditions of this MSA as provided below. UCclouds will notify its Customers through the Client Portal of any such modifications and all modifications shall be effective upon their posting on the Client Portal. It is the Customer's responsibility to review the Client Portal for such modifications on a frequent basis If Customer continues to use the Services following any such modification such use will be deemed acceptance of such modification by Customer. Any modifications requested by Customer to any of the terms of the MSA must be approved in writing by UCclouds.
19.2 Certain Employment Issues. If Customer's employees or third parties which have been contracted by Customer for rendering contractually agreed services that are in all material respects equivalent to the Services prior to the beginning of this Agreement assert the transfer of their employment relationship or claims thereto against UCclouds under EU Directive 2001/23/EC or similar national legislation, Customer shall use its best efforts to either prevent the transfer of the employment relationship or to hold off such claims. Customer shall hold harmless and indemnify UCclouds from all prosecution costs incurred in connection with the transfer prevention as well as from any compensation payments to the employee and fees for any external legal counsel, as well as any and all incurred costs and financial claims of the employee or third party that arise from or are due to a claim of further employment or re-employment. These expenses include costs or salary, health insurance, social security contributions, voluntary and legal pension contributions, company pension scheme, pension funds and any severance costs in line with UCclouds standard generally-applicable policy.
19.3 Notices. Customer communications regarding the Services should be sent through the Client Portal except for the following types of notices: for breach, indemnification, or other non-routine legal matters, Customer should send it by electronic mail and first-class United States mail to:
ATTN: Legal Department
Grayson Hwy, Suite 8174
Atlanta GA 30017
Phone: 1 (678) 678-701-5677
UCclouds communications regarding the Services and legal notices will be sent through the Client Portal. Notices are deemed received as of the time delivered. Notices must be given in the English language.
19.4 Export Matters. If Customer chooses to use these Services, Customer does so on its own initiative and is responsible for compliance with applicable laws. Customer agrees to comply with all restrictions and regulations of the U.S. Department of Commerce and any other United States or foreign agencies and authorities in connection with Customer's and Customer End Users' use of these Services and to not, in violation of any laws, transfer, or authorize the transfer, of any Services (a) into or for the benefit of an entity located in any U.S. and/or U.N. embargoed countries or (b) to anyone on the U.S. Treasury Department's List of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders or Entity List of proliferation concern, or the U.S. State Department's Debarred Parties List. By using these Services, Customer represents and warrants that Customer and Customer End Users are not located in, under the control of, or a national or resident of any such country or on any such list. In addition, Customer and Customer End Users may not use the Services for the development, design, manufacture, production, stockpiling, or use of nuclear, chemical or biological weapons, weapons of mass destruction, or missiles, in a country listed in Country Groups D: 4 and D: 3, as set forth in Supplement No. 1 to the Part 740 of the United States Export Administration Regulations. Customer assumes responsibility for compliance with laws and regulations applicable to export, re-export or import of products, technology or technical data provided hereunder and for obtaining required export and import authorizations. Customer and Customer End Users will not transfer to or through the Services any data, materials or other items controlled for export under the International Traffic in Arms Regulations ("ITAR Data") or other applicable laws unless UCclouds has agreed to the transfer and (i) Customer has provided UCclouds not less than 10 days' prior written notice that ITAR Data will be transferred to or through the Services, (ii) Customer and/or Customer End User has received prior written authorization from the U.S. Government to transfer the ITAR Data to UCclouds, and (iii) Customer agrees to provide UCclouds with all necessary assistance to enable UCclouds to obtain such U.S. Government permission. Customer is responsible, and will reimburse UCclouds, for all costs, expenses or damages incurred by UCclouds in connection with Customer and Customer End User transfer of ITAR Data.
19.5 Assignment/Subcontractors. Customer may not assign the MSA or Customer rights and/or delegate Customer obligations under the MSA without UCclouds prior written consent. Any assignment or transfer of the MSA by Customer in violation of this section will be void. UCclouds may assign the MSA to (i) its Affiliates and (ii) any entity as a result of a merger or sale of all or substantially all of the assets of UCclouds to such entity and such entity agrees in writing to be bound by the terms of the MSA. This MSA will be binding on and inure to the benefit of Customer's and UCclouds respective permitted successors and permitted assigns. However, UCclouds may use Third Parties or Affiliates to provide all or part of the Services. This provision does not apply to the Third Party Services which are governed by separate agreements.
19.6 Force Majeure. Except for its rights in Sections 15 or 16, neither UCclouds nor Customer will be in violation of the Agreement if the failure to perform the obligation is due to an event beyond either party's control, such as significant failure of a part of the power grid, sabotage, denial of service attack, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorism, or other events of a magnitude or type for which precautions are not generally taken in the industry; provided however if the force majeure event continues beyond thirty (30) days, the performing party may terminate the MSA.
19.7 Feedback. UCclouds shall own all right, title and interest in and to Feedback. Upon providing the Feedback, Customer hereby irrevocably assigns to UCclouds all right, title, and interest in and to the intellectual property rights in the Feedback and agrees to provide UCclouds with any assistance UCclouds may require to document, perfect, and maintain UCclouds rights in the Feedback.
19.8 Governing Law, Lawsuits. The MSA is governed by the laws of the State of Georgia exclusive of any choice of law principle that would require the application of the law of a different jurisdiction, and the laws of the United States of America, as applicable. The application to the MSA of the United Nations Convention on the International Sale of Goods is excluded in its entirety. The exclusive venue for all disputes arising out of the MSA shall be in the state courts in Fulton County, Georgia or federal district court for the northern district of Georgia, and the parties each agree not to bring an action in any other venue. Customer waives all objections to this venue and agrees not to dispute personal jurisdiction or venue in these courts.
19.9 Relationship of the Parties. The parties' relationship is that of independent contractors and not business partners. Neither of the parties is the agent for the other, and neither party has the right to bind the other on any agreement with a Third Party.
19.10 No Waiver. UCclouds failure to exercise or delay in exercising any of its rights under this MSA will not constitute a waiver, forfeiture, or modification of such rights. UCclouds waiver of any right under this MSA will not constitute a waiver of any other right under this Agreement or of the same right on another occasion UCclouds waiver of any right under this MSA must be in writing.
19.11 Survival. All provisions that by their nature are intended to survive expiration or termination of the MSA shall survive expiration or termination of the MSA.
19.12 Integration. This MSA is the complete and exclusive agreement between Customer and UCclouds regarding its subject matter and supersedes and replaces any agreement (including without limitation any computer infrastructure hosting and related agreements between Customer and The Planet.com Internet Services, Inc.), understanding, or communication, whether written or oral, prior or contemporaneous.
19.13 Severability. If any part of this MSA is found unenforceable by a court or other tribunal, the rest of the MSA will nonetheless continue in effect, and the parties agree that any court or other tribunal may reform the unenforceable part if it is possible to do so consistent with the material economic incentives of the parties resulting in this MSA.
19.14 Language. The official language of the MSA shall be the English language and no translation into any other language may be used in its interpretation. All services, support, notices, designations, specifications, and communications will be provided in the English language.