Last Revised: 1 Jan, 2013
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Corp38 General Managed Services Agreement (Version 1.1)
This General Managed Services Agreement (the “Agreement”) made between Corp38 Ltd who runs 38cloud.com (“38cloud”) and undersigned Company Name (“Customer”) is effective as of date the Customer's signature on the initial Order/Quotation (“Order Form”) submitted by Customer and accepted by 38cloud (the “Effective Date”)
1.1.1. This Agreement is intended to cover any and all services provided by 38cloud. In the event that any terms set forth herein apply specifically to a service not ordered by Customer, such terms shall not apply to Customer. The specific services to be provided by 38cloud to the Customer are identified in each Order Form submitted by Customer and accepted by 38cloud and described in detail in the Specification Sheet(s) attached to the relevant Order Form . Each Order Form (with the attached Specification Sheet) submitted by Customer to 38cloud after the Effective Date is hereby incorporated by reference into this Agreement.
1.1.2. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together shall constitute one and the same instrument.
1.2 Definitions and Interpretation
1.2.1. “Advance Payment”or “Usage Fee”means a non-refundable prepayment of service fee made by Customer to 38cloud which will be utilized in setting the service fee due by Customer to 38cloud from Service Commencement Date.
1.2.2. “Customer Authorized Representatives”means the individuals identified in writing on the Facility Access Form and authorized by Customer to enter the Site(s) and the Licensed area to perform tasks and to provide instructions to 38cloud for remote operations on Customer's behalf.
1.2.3. “Customer Equipment”means Customer's computer hardware, not including stored data, and other tangible equipment placed by Customer in the Licensed Area. The Customer Equipment shall be identified on 38cloud's Customer Equipment Form(s), completed and delivered by Customer to 38cloud, as amended in writing from time to time by Customer.
1.2.4. “Customer Technology”means Customer's proprietary technology, including Customer's Internet operations, design, content, software tools, hardware designs, algorithms, software (in source and object forms), user interface designs, architecture, class libraries, object and documentation(both printed and electronic), know-how, trade secrets and any related intellectual property rights throughout the world (weather owned by Customer or licensed to Customer from a third party) and also including any derivatives, improvements, enhancements or extensions of Customer Technology conceived, reduced to practice, or developed during the term of this Agreement by Customer.
1.2.5. “Extended Term”means the service term following the initial Term as specified in Section 18.104.22.168.
1.2.6. “Facility Access Form”means the list that contains the contact information (e.g. Email, fax and telephone numbers) of Customer and the details of individuals authorized by Customer to enter the site(s) and Licensed Area, as submitted by Customer to 38cloud and amended by properly authorized written notification from time by Customer.
1.2.7. “Hardware and Software Rental”means the computer hardware, software and other tangible equipment and intangible computer code contained therein to be provided by 38cloud for use by Customer as set forth on the Order Form.
1.2.8. “38cloud Technology”means 38cloud's proprietary technology, including the Service, software tools, hardware design, algorithms, software (in source or object form), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), network designs, know-how, trade secrets and any related intellectual property rights throughout the world (whether owned by 38cloud or licensed to 38cloud from a third party) and also including any derivatives, improvements, enhancements or extensions of any of the foregoing conceived, reduced to practice, or developed during the term of this Agreement by Uniforce.
1.2.9. “Initial Term”means the minimum term for which 38cloud will provide the Service(s) to Customer, as indicated on the Order Form.
1.2.10. “Licensed Area”means the cabinet, vault, cage or other areas as indicated in the Order Form of the specified Site(s) licensed to the Customer made available to Customer for the placement of Customer Equipment and/or Hardware & Software Rental and the use of the Service(s).
1.2.11. “Service Fee Deposit”or “Setup Fee”means the service fee deposit specified in the Order Form (payable within 3 Working Days from the date on which 38cloud accepted the Order Form submitted by Customer), which will be refunded to Customer pursuant to Service to Customer.
1.2.12. “Service Commencement Date”means with respect of each Service, the date 38cloud will begin providing the Service to Customer.
1.2.13. “Service Level Warranty”is described and defined in Section 1.5.2.
1.2.14. “Service(s)”means the service(s) provided by 38cloud as described in detail in the Specification Sheets attached to each Order Form.
1.2.15. “Site(s)”means the locations(s) specified on the Order Form at which the Service(s) are to be provided.
1.2.16. “Specification Sheet”means the detailed description for each Service, attached to an Order Form.
1.2.17. “Working Day”means a day on which banks are open for business.
1.3 Delivery of Services; Terms; Fees
1.3.1. General. By submitting an Order Form, Customer agrees to take and pay for the Service, and, by accepting the Order Form, 38cloud agrees to provide, the Service(s) during the Initial Term and for any Extended Term, Any time or date for delivery of Service(s) given by 38cloud is given in good faith but is an estimate only. 38cloud will in no event be liable for any costs, charges, losses or expenses of any kind arising out of delay in meeting installation, delivery or performance date. The estimated delivery of each Service is counting from the date after 38cloud receives any applicable Service Fee Deposit and/or Advance Payment from Customer indicated on the Order Form.
22.214.171.124. Term Commencement. The term for each Service will commence on the Service Commencement Date when 38cloud begins providing each Service to Customer.
126.96.36.199. Fees and Expenses. In respect of each Service. Customer will pay all fees due according to the prices and terms listed in the Order Form. The Prices listed in the Order Form will remain in effect during the Initial Term and any Extended Term, unless modified in accordance with Section 1.2.2.
188.8.131.52. Payment Terms. All payment due are to be paid before Service commence.
184.108.40.206. Disputed Charges. In the event Customer disputes any portion of an 38cloud invoice, Customer must pay the entire bill and submit a written claim for the disputed amount. All claim must be submitted to 38cloud within thirty(30) days of invoiced date. Customer agrees to waive the right to dispute the charges not disputed within such thirty-day period.
220.127.116.11. One Day Refund Policy. Customers can ask for full refund within 24 hours of purchase, with a reasonable reason. After that, absolutely no refund. Customer should be able to test ping and download speed from our web before purchase. Our KVM technology can also be well tested from user own KVM environment available in all Linux distributions. There is in theory no hidden concern in making a purchase hence there is actually no refund need as all of our operations are DIY and automated with customer web control portal and ticket system.
1.4 Confidential Information; Intellectual property Ownership; License Grants.
1.4.1. Confidential Information
18.104.22.168. Nondisclosure of Confidential Information. Each party acknowledges that it will have access to certain confidential information of the other party concerning the other the other party's business, plans, customers, technology, and products, and other information held in confidence by the other party (“Confidential Information”). Confidential Information will include all information in tangible or intangible from that is marked or designated as confidential or that, under the circumstances of its disclosure, should be considered confidential. Confidential Information will also include, but not be limited to, 38cloud Technology, Customer Technology, and the terms and conditions of this Agreement, Each party agree that it will not use in any way, for its own account or the account of any third party, expect as expressly permitted by, or required to achieve the purposes of, this Agreement, not disclose to any third party (except as required by law or to that party's attorneys, accountants and other advisers as reasonably necessary), any of the other party's Confidential Information and will take reasonable precautions to protect the confidential of such information.
22.214.171.124. Exceptions. Information will not be deemed Confidential Information hereunder if such information: (i) is known to the receiving party prior to receipt from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (ii) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party; or (iv) is independently developed by the receiving party. The receiving party may disclose Confidential Information pursuant to the requirements of a government agency or by operation of law, provided that it gives the disclosure party reasonable prior written notice sufficient to permit the disclosing party to contest such disclosure.
1.4.2. Intellectual Property
126.96.36.199. Ownership. Except for the rights expressly granted herein and the assignment expressly made in Section 1.4.3, this Agreement does not transfer from 38cloud to Customer any 38cloud Technology, and all right, title and interest in and to 38cloud Technology will remain solely with 38cloud. Except for the rights expressly granted herein, this Agreement does not transfer from Customer to 38cloud any Customer Technology, and all right, title and interest in and to Customer Technology will remain solely with Customer. 38cloud and Customer each agrees that it will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from the other party.
1.4.3. License Grants
188.8.131.52. By 38cloud. 38cloud hereby grants to Customer a nonexclusive, royalty-free license, during the term of this Agreement, to use the 38cloud Technology solely for the purpose of using the Service(s). Customer shall have no right to use the 38cloud Technology for any purpose other than using the Service(s).
184.108.40.206. By Customer. Customer agrees that if, in the course of performing the Service(s), it is necessary for 38cloud to access Customer Equipment and use Customer Technology, 38cloud is hereby granted and shall have a nonexclusive, royalty-free license, during the term of this Agreement, to use the Customer Technology solely for the purposes of delivering the Service(s) to Customer. 38cloud shall have no right to use the Customer Technology for any purpose other than providing the Service(s).
1.5 Service Level Warranty
1.5.1.There is no service level warranty offered in 38cloud services.
1.5.2. Disclaimer. The Service are provided on an “as is”basis, and Customer's use of the Service is at its own risk. 38cloud does not make, and hereby disclaims, any and all other express and/or implied warranties, including, but not limited to, warranties of merchantability, fitness for a particular purpose, non infringement and title, and any warranties arising from a course of dealing, usage, or trade practice. 38cloud does not warrant that the Service will be uninterrupted, error-free, or completely secure.
1.6 Customer Obligation
1.6.1. Customer Warranties
220.127.116.11. General. Customer represents and warrants that (i) it has the legal right and authority throughout the term of this Agreement to place and use any Customer Equipment as contemplated under this Agreement; (ii) it will use the Services only for lawful purposes and in accordance with this Agreement, and comply at all times with all applicable laws and regulations. Customer acknowledges that 38cloud exercises no control whatsoever over the content of the information passing through Customer's website and that it is the sole responsibility of Customer to ensure that the information it and its users transmit and receive complies with all applicable laws and regulations; (iii) it may not transmit, distribute, or store any material in violation of any applicable law or regulation. This includes, without limitation, material protected by copyright, trademark, trade secret or intellectual property right used without proper authorization and material that is obscene, defamatory or constitutes an illegal threat; (iv) it and its users may not circumvent user authorization or security of any host, network, or account (referred to as “cracking”or “hacking”), nor interfere with service to any other use, host, or network (referred to as “denial of service attacks”); (v) it will not use any application or attempt by whatever means to overloads the 38cloud host computers, network hubs and/or point of presence.
18.104.22.168. Breach of Warranties. In the event of any breach of any of the foregoing warranties, in addition to any other remedies available at law or in equity, 38cloud will have the right, in its sole discretion, to suspend or terminate immediately any Service if deemed necessary to 38cloud to prevent any harm to 38cloud and its business.
1.6.2. Access and Security
22.214.171.124. Except with the advanced written consent of 38cloud, Customer's access to the Sites will be limited solely to the Customer Authorized Representatives. Customer Authorized Representatives may only access the Licensed Area and are prohibited from accessing other areas of the Sites unless accompanied by an authorized 38cloud representatives.
1.7 Hardware and Software Rental
1.7.1. Delivery and Term. On or prior to the Service Commencement Date, 38cloud shall deliver to Customer, at the designated Licensed Area, the Hardware & Software Rental. Customer shall not remove any Hardware & Software Rental from the Licensed Area without the prior written consent of 38cloud.
1.7.2. Title. The Hardware & Software Rental shall always remain the property of 38cloud. Customer shall have no right or interest in or to the Hardware & Software Rental except as provided in this Agreement. Customer will not remove, alter, or destroy any labels on the Hardware & Software Rental and shall allow the inspection of the Hardware & Software Rental by 38cloud at any time.
1.7.3. Use and Maintenance. Repairs or maintenance to the Hardware & Software Rental can only be carried out by 38cloud. If the Hardware & Software Rental proves to be defective under normal use, 38cloud will at its expense either to replace or repair the Hardware & Software Rental. Customer shall, at its own expense, keep and maintain the Hardware & Software Rental in good repair, appearance and condition, other than normal wear and tear. Customer may affix or install external peripheral on to the Hardware & Software Rental, provided that such addition will not affect the normal function of the Hardware & Software Rental and provided that prior approval of 38cloud is obtained. Addition of any internal hardware component to the Hardware & Software Rental is strictly prohibited.
1.7.4. Selection of Hardware & Software Rental. Customer acknowledges that it has selected the Hardware & Software Rental and all Hardware & Software Rental is provided on an “as is” basis and excluded warranties of any kind.
1.8.1. 38cloud is not liable to any insurance and/or costs incurred by Customer for the Hardware & Software Rental and other service(s) of any kind to Customer.
1.9 Limitations of Liability
1.9.1. Personal Injury. Each Customer Authorized Representative or any other person visiting a Site do so at its own risk. 38cloud assumes no liability whatsoever for any harm to such person resulting from any cause.
1.9.2. Damage to Customer Equipment. 38cloud assumes no liability for any damage to, or loss of, any Customer Equipment resulting from any cause.
1.9.3. Consequential Damages Waiver. In no event will either party be liable or responsible to the other for any type of incidental, punitive, indirect, or consequential damages, including, but not limited to, lost revenue, lost profits, replacement goods, loss of technology, rights or service, loss of data, or interruption or loss of use of service or equipment, even if advised of the possibility of such damages, whether arising under theory of contract, tort (including negligence), strict liability or otherwise.
1.10.1. Indemnification. Each party will indemnify, defend, and hold the other harmless from and against any and all costs, liabilities, losses, and expense (including, but not limited to, reasonable attorney's fees)(collectively,“Losses”) resulting from any claim, suit, action, or proceeding (each, an“Action”) brought by any third party against the other or its affiliates alleging (i) the infringement or misappropriation of any intellectual property relating to the delivery or use of the Service (but excluding any infringement contributorily caused by the other party); (ii) personal injury caused by the negligence or willful misconduct of the other party, (iii) any violation of or failure to comply with all applicable laws and regulations. Customer will indemnify, defend and hold 38cloud, its affiliates and customer harmless from and against any and all losses resulting from or arising out of any action brought against 38cloud, its affiliates or customer alleging any damage or destruction to the Licensed Area, the Sites, Hardware & Software Rental or other customer equipment caused by Customer, its Customer Authorized Representative(s) or designees.
1.11 Termination & Suspension of Services
1.11.1. Termination For Cause. Either party may terminate this Agreement if: (i) the other party breaches any material term or condition of this Agreement and, in the case of a remediable breach, fails to remedy within thirty(3) days after receipt of written notice of the same. For these purposes, a failure by the Customer to pay any outstanding service fees to 38cloud within 3 days after they are due will constitute a material breach. Termination of this Agreement will not relieve either party of any liability for breach of this Agreement; (ii) the other party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of credits; or (iii) the other party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of credits, if such position or proceeding is not dismissed within sixty(3) days of filing; or (iv)38cloud has the right to terminate the agreement without cause with 1 hour advanced notice unconditionally.
1.11.2. Effect of Termination, Upon the effective date of termination of this Agreement:
126.96.36.199. Any and all payment obligations, including early termination fee specified in Section 1.11.5. of Customer under the Agreement for Service(s) provided through the date of termination will immediately become due;
188.8.131.52. Within seven (3) days of such termination, Customer shall (i) remove from the Licensed Area all Customer Equipment and any other Customer property; (ii) return all Rental Equipment to 38cloud, and (iii) return the Licensed Area to 38cloud in the same conditions as it was on the Service Commencement Date, normal wear and tear expected.
184.108.40.206. Unless otherwise agreed in writing, if Customer does not remove Customer Equipment and its other property within such seven-day period, 38cloud will have the option to (i) move any and all such property to secure storage and charge Customer for the cost of such removal and storage, and/or (ii) liquidate the property in any reasonable manner.
1.11.3. Customer Equipment as Security. In the event that Customer fails to pay 38cloud all outstanding amount under this Agreement when due, Customer agrees that, upon delivery of written notice to Customer, 38cloud may (i) suspend all Service and/or terminate this Agreement or; (ii) restrict Customer's physical access to the Licensed Area; and or (iii) take possession of any Customer Equipment and store it, at Customer's expense, until taken in full or partial satisfaction of any lien or judgment, all without being liable to prosecution or for damages.
1.11.4. Survival. The following provisions will survive any expiration or termination of the Agreement: Sections 1.4, 1.5, 1.7, 1.8, 1.10, 1.11 and 1.12 (excluding 1.12.2).
1.11.5. Early Termination. If this Agreement is terminated before the expiry of the Initial Term or Extended Term for any reason , Customer shall be liable to pay an early termination fee to 38cloud equal to one hundred (100) percent of the service fee for the Services payable from the date of early termination to the date of the expiry of the Initial Term or Extended Term.
1.12 Miscellaneous Provisions
1.12.1. Force Majeure. Neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its control, including acts of war, acts of God, earthquake, flood, embargo, riot, sabotage, government act or failure of the Internet (not resulting from the actions or inactions of 38cloud), provided that the delayed party: (i) gives the other party prompt notice of such cause; and (ii) uses its reasonable commercial efforts to promptly correct such failure or delay in performance. If 38cloud is unable to provide Service(s) for a period of thirty (30) consecutive days as a result of a continuing force majeure event, Customer may cancel the Service(s).
1.12.2. No Lease. Customer acknowledges that it has been granted a bare license only to occupy the Licensed Area. This agreement does not create any leased estate, easement, ownership interest, or other property right or interest in any part of the Licensed Area.
1.12.3. Governing Law. This Agreement is governed in all respects by and shall be construed in accordance with the laws of Hong Kong Special Administrative Region and the parties hereby submit themselves jurisdiction of Courts of Hong Kong Special Administrative Region in the event of any dispute.
1.12.4. Severability, Waiver. In the event any provision of this Agreement is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of this Agreement will remain in full force and effect. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach of default, and will not act to amend or negate the rights of the waiving party.
1.12.5. Assignment. Neither 38cloud nor Customer may assign its rights or duties under this Agreement either in whole or in part without prior written consent of the other, and any attempted assignment without such consent will be void. This Agreement will bind and inure to the benefit of each party's successors and permitted assigns.
1.12.6. Notice. Any notice or communication in connection with this Agreement must be in writing and must be (i) left at the address, (ii) send by prepaid post to the address or (iii) sent by facsimile number, (iv) send by electronic mail; of the latest known address or facsimile number or electronic mail address of the receiving party. Such notice will be deemed to have been given as of the date it is delivered, mailed, emailed, faxed or sent, whichever is early.
1.12.7. Relationship of Parties. 38cloud and Customer are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between 38cloud and Customer.
1.12.8. Gender & Number. The masculine gender shall include the feminine and neuter and the singular number shall include the plural & vice versa.
1.12.9. Entire Understanding. This Agreement, together with the Order Form(s) submitted by Customer and accepted by 38cloud, represents the entire understanding between 38cloud and Customer with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations and agreements, written and oral, regarding such subject matter. This Agreement may be changed only by a written document signed by authorized representatives of 38cloud and Customer in accordance with this Section 1.12.9.