Terms of Service

Introduction

This CDN.net Service Agreement (this “Agreement“) contains the terms and conditions that govern your access to and use of the Service (as defined in Clause 1.1 below) and is an agreement between OnApp Limited (trading as CDN.net), The Cooperage, Old Truman Brewery, 91 Brick Lane, London E1 6QL (“CDN.net”, “we”, “us” or “our”) and any person or legal entity whose application to use the Service we approve (“you“, “your”). This Agreement takes effect when you have clicked an “Buy Now” button or check box presented with these terms and we have notified you that we have approved your application to use the Service (the“Effective Date“). Please see Clause 23 for definitions of certain capitalized terms used in this Agreement that are not otherwise defined where they appear. By clicking “Buy Now” on the button or check box presented with this Agreement, you represent to us that: you are lawfully able to enter into contracts; and you are an employee who is duly authorised to enter into this Agreement on behalf of the legal entity that is your employer.

1. Use of the Service

1.1 The service supplied by CDN.net under this Agreement enables you to select specific Locations in order to speed up the delivery of your Information to your End Users who have requested access to that Information via your web site (“the Service”).1.2 You may only access and use the Service in accordance with this Agreement. When you apply to us for registration to access and use the Service, you must provide us with all Information requested during the application process.

1.3 If we approve your application for registration, we will open a User Account in our systems in your name. The User Account is used to record transactions and other Information, including amounts paid by you, but does not hold money. We reserve the right, in our sole and absolute discretion, to refuse to register you to use the Service for any reason.

1.4 You are responsible for all activities that occur under your User Account, regardless of whether the activities are undertaken by you, your employees or a third party (including your contractors or agents). You must not allow any End User to access your User Account or disclose any Information from your User Account to any End User. Except to the extent caused by our breach of this Agreement, we are not responsible for unauthorized access to your User Account. You will contact us immediately if you believe your User Account access codes may have been compromised or an unauthorized third party may be using your User Account or if your User Account Information is lost or stolen.

1.5 You are responsible for properly configuring and using the Service and taking your own steps to maintain appropriate security, protection and backup of your User Information, which may include the use of encryption technology to protect your User Information from unauthorized access and routine archiving of your User Information. CDN.net log-in credentials and private keys generated by the Service or supplied to you by us are for your internal use only and you may not sell, transfer or sublicense them to any other entity or person, except that you may disclose your private key to your agents and subcontractors performing work on your behalf.

1.6 You will ensure that all your User Information you provide to us via the Service is accurate, complete and not misleading.

2. Our Role

2.1 We are not an Operator of any of the PoPs at any of the Locations which you configure using the Service. We do not host any web sites or Information. While we use reasonable endeavours to select reputable Operators, we are not responsible for the operation of any PoP or Capacity and have no control over and do not guarantee the quality or performance of any PoPs available via the Service. The Service is not an internet access service or a content service. You and your End Users provide the Information comprised in any signals conveyed via the PoPs. We do not exercise any editorial control over the contents of any such signals.

2.2 As part of the Service, we use reasonable endeavours to direct each of your End Users to the PoP that is geographically closest to them according to the configuration that you specify; and measure the extent to which the Capacity is used by you and your End Users. We do not monitor, track, measure or display the Information comprised in the data transmitted via the Capacity.

2.3 We and you are independent contractors, and no party, nor any of its respective affiliates, is an agent of the other for any purpose or has the authority to bind the other, except for the limited purposes expressly provided herein.

2.4 We shall have no duty to disclose to you any Information which we receive from any Operator or any third party, whether in the course of providing the Services or otherwise.

2.5 We are not responsible for the development, content, operation, maintenance, or use of the Capacity, including:

(a) the technical operation of the Capacity; and
(b) ensuring that the Capacity complies with Applicable Law.

2.6 You will provide Information or other materials related to your use of the Capacity as reasonably requested by us to verify your compliance with this Agreement. We may (but are not obliged to) monitor the external interfaces of PoPs to verify your compliance with this Agreement. You will not block or interfere with our monitoring or any other aspect of the Service. You will reasonably cooperate with us to identify the source of any problem with the Service that we reasonably believe may be attributable to you or any of your End User’s materials.

3. Funding Your User Account

3.1 In order to use the Service, you must first fund your User Account with CDN Credits, which may only be used to pay the Service Fee (as defined in Clause 4 of this Agreement) either by purchasing:

(a) $100 of CDN Credits on a recurring monthly subscription; or
(b) CDN Credits in a series of one-off amounts at any time, in such denominations as we may specify on the order page on the CDN.net Site.

3.2 The Fees can only be paid using value credited from a CDN Credit that you have purchased from us via the Service using a payment method we specify on the Service. The value of each CDN Credit that you purchase will be credited to your User Account at the time of purchase.

3.3 You acknowledge and agree that the purchase of CDN Credits under Clause 3.1(a) is a recurring payment until this Agreement is suspended or terminated by you or us. Your CDN Credit balance will be recharged with the same amount and by the same payment method chosen when you first purchased a CDN Credit, unless you subsequently change the amount via your User Account. To enable you to ensure your chosen payment method has sufficient funds available and is up to date, we will email you when your CDN Credit balance has reached 25% of the value purchased, and again when the balance has reached 10% of the value purchased.

3.4 You can cease buying CDN Credits at any time by suspending your use of the Service under Clause 5 of this Agreement.

3.5 CDN Credits:

(a) must only be redeemed by us via your User Account as payment for your use of the Service;
(b) cannot be used to pay for CDN Credits;
(c) have no cash redemption value and are not transferable or assignable;

3.6 CDN Credits and unused portions of CDN Credits recorded in your User Account expire three years after the date of issue, where permissible under applicable law.

3.7 We are not responsible if any CDN Credit is lost, stolen or destroyed or used without your permission, except to the extent caused by our breach of this Agreement.

3.8 You acknowledge and agree that the transaction for the purchase of CDN Credits is a separate and independent transaction from any subsequent payment of the Fees using that value.

4. Fees

4.1 A fee will be payable by you to us per gigabyte of Capacity used by you via the Service at the rate specified in relation to each Location that you choose (“Service Fee”). As each a gigabyte is used we will:

(a) debit the amount of the applicable Service Fee from your User Account;
(b) credit the amount of the applicable Service Fee to our account; and
(c) record the details of the amount and rate of your usage of the Service in your User Account.

4.2 We may waive or offer discounts, or withdraw any waiver or discount, on our Fees to any person at any time in our sole and absolute discretion.

4.3 The calculation of the Service Fee is based on the charges payable by us to Operators, and these may be varied by the Operators without notice to us. Accordingly, we may change the amount of the Service Fee at any time with immediate effect, and you may suspend or cancel part or all of the Service under Clause 6 or 7 of this Agreement if you wish.

4.4 Fees and charges for any new Service or new feature of the Service will be effective when we post updated fees and charges on the CDN.net Site unless we expressly state otherwise in a notice.

4.5 All fees and charges payable by you are exclusive of applicable taxes and duties, including value added tax (VAT) or any similar sales tax which may be applicable in respect of supplies of goods or services made by us in any jurisdiction. You will provide us any information we reasonably request to determine whether we are obliged to account for any such tax, including your VAT identification or registration number. Any such tax for which the we are obliged to account in respect of supplies of services or goods under this Agreement shall be payable by the you in addition to the amounts otherwise payable under this Agreement.

4.6 We may collect and you must pay any VAT or other such tax as referred to in Clause 4.5 at the appropriate rate (as per applicable tax rules) at the time of purchase of a CDN Credit. You explicitly waive any right to reimbursement of VAT or other such tax as referred to in Clause 4.5 above from us if the amount of VAT or other such tax ultimately payable to the tax authorities would for any reason be lower than the amount of VAT or other such tax collected from you at the time of purchase. Your CDN Credit balance is displayed exclusive of any such taxes.

4.7 All sums payable under this Agreement shall be paid free and clear of any deductions or withholdings, save as may be required by law. If any deduction or withholding is required by law, you will notify us and will pay us any additional amounts necessary to ensure that the net amount that we receive, after any deduction and withholding, equals the amount we would have received if no deduction or withholding had been required. Additionally, you will provide us with documentation showing that the withheld and deducted amounts have been paid to the relevant taxing authority.

5. Your Obligations

5.1 You are responsible for the End Users’ use of the Capacity which you purchase via the Service. You must not block or interfere with any monitoring or other activity that we undertake as part of the Service.

5.2 You are responsible for providing customer service (if any) to your End Users. We do not provide any support or services to End Users.

6. Suspension

6.1 You may suspend your usage of the Service at any time by emailing us at support@cdn.net.

6.2 We may suspend your right to access or use all or any portion of the Service immediately upon notice to you if we determine that:

(a) you have insufficient value in your User Account;
(b) any Information that you provided to us on registration was inaccurate or untrue;
(c) your use of the Service (i) poses a security risk to the Service or any third party, (ii) may adversely impact the Service or the systems or Capacity of any other CDN.net customer, (iii) may subject us, our affiliates, or any third party to liability, or (iv) may be fraudulent;
(d) you are in breach of this Agreement; or
(e) the ordinary operation of your business has ceased, or you have made an assignment for the benefit of your creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.

6.3 If we or you suspend your right to access or use any portion or all of the Service:

(a) It is your responsibility to redirect your End Users to your information or web site; and
(b) we will not erase any of your User Information as a result of your suspension, except as specified elsewhere in this Agreement.

6.4 Our right to suspend your right to access or use the Service is in addition to our right to terminate this Agreement pursuant to Clause 7 of this Agreement.

7. Term and Termination

7.1 The term of this Agreement will commence on the Effective Date and will continue until terminated by you or us in accordance with this Clause 7 of this Agreement.

7.2 You may terminate the Service and this Agreement for any reason by giving us 30 days prior written notice.

7.3 We may terminate the Service and this Agreement for any reason by providing you 30 days prior written notice.

7.4 You or we may terminate this Agreement for cause upon 30 days prior written notice if there is any material default or breach of this Agreement by the other party, unless the defaulting party has cured the material default or breach within the 30 day notice period.

7.5 We may also terminate this Agreement immediately upon notice to you:

(a) if any act or omission by you results in a suspension by us under Clause 6.2 of this Agreement;
(b) if we believe providing the Services could create a substantial economic or technical burden or material security risk for us;
(c) in order to comply with the Applicable Law or requests of governmental entities;
(d) if we determine use of the Service by you or the supply of the Service to you has become impractical or unfeasible for any legal or regulatory reason.

8. Effect of Termination.

8.1 Upon any termination of this Agreement:

(a) You must cease using the Service and all your rights under this Agreement immediately terminate;
(b) You will not be able to redeem any remaining CDN Credits;
(c) You remain responsible for all fees and charges you have incurred under this Agreement, including Fees for in-process tasks completed after the date of termination; and
(d) Clauses 2, 3.2, 3.5, 3.6, 3.7, 3.8, 4.5, 4.6, 4.7, 9, 11.1, 11.3, 11.4, 12.2, 12.3, 13, 14, 15, 16, 18 and 19 of this Agreement will continue to apply in accordance with their terms.

8.2 Following termination of this Agreement, subject to any Applicable Law, we will provide you with limited access to the Service and your User Account for a period of 7 days to download any of your User Information. Upon the expiry of that 7 day period, your access to your User Account and the Service will be terminated and we will have no obligation to store or provide you with access to any Information relating to your activity on our Service.

9. Representations and Warranties

9.1 You represent and warrant to us that:

(a) all Information you provide to us during your registration is accurate, complete and not misleading in all respects;
(b) you are duly authorised to enter into this Agreement, and to perform your obligations under this Agreement;
(c) you are entering into this Agreement as principal and not on behalf of any third party; and
(d) your entry into and performance of this Agreement will not violate any Applicable Law, ordinance, charter, by-law or rule applicable to you, or any other agreement by which you are bound or by which any of your assets are affected.

10. Changes to the Service

10.1 We may change, discontinue, or remove the Service or any part of the Service or any Location or PoP or change or remove features or functionality of the Service at any time. We will notify you of any material change to, or discontinuation of, the Service where it is reasonably practicable to do so.

10.2 We may change, discontinue or remove any APIs for the Services from time to time but will use commercially reasonable efforts to continue supporting the previous version of any API changed, discontinued, or removed for 12 months after the change, discontinuation or removal, except if doing so:

(a) would pose a security or intellectual property issue,
(b) is economically or technically burdensome, or
(c) is needed to comply with the law or requests of governmental entities.

11. Licences and Proprietary Rights

11.1 As between you and us, we or our affiliates or licensors own and reserve all right, title, and interest in and to the Service, including the Intellectual Property Rights in the Service, the CDN.net Information, the CDN.net Site and CDN.net Marks.

11.2 We grant you a limited, revocable, non-exclusive, non-sublicensable, non-transferrable license to do the following during the Term: (i) access and use the Services solely in accordance with this Agreement; and (ii) copy and use the CDN.net Information solely in connection with your permitted use of the Service.

11.3 Except as provided in Clause 11.1 of this Agreement, you obtain no rights under this Agreement from us or our licensors to the Service, including any related Intellectual Property Rights.

11.4 During and after the Term, you will not assert, nor will you authorize, assist, or encourage any third party to assert, against us or any of our affiliates, customers, vendors, business partners, or licensors, any patent infringement or other Intellectual Property Rights infringement claim regarding the Service or any Capacity you have purchased.

12. User Information

12.1 You represent, warrant and undertake that none of your User Information will infringe the rights of any third party, including intellectual property rights, privacy, publicity or other personal or proprietary rights; or will contain libellous, defamatory or otherwise unlawful material. In addition, you undertake not to:

(a) use the Service to:

(i) harvest or collect email addresses or other financial, personal or contact Information of other users of the Service from the Service by electronic or other means for the purposes of sending unsolicited communications or inviting any person to transact outside the Service;

(ii) to create a database (electronic or otherwise) that includes material downloaded or otherwise obtained from the Service otherwise than for your own records, except where expressly permitted on the Service;

(iii) to transmit or re-circulate any material obtained from the Service to any third party except where expressly permitted on the Service;

(b) use the Service in any unlawful manner or in any other manner that could damage, disable, overload or impair the Service or the servers on which it is hosted;

(c) use automated scripts to collect Information from or otherwise interact with the Service;

(d) upload, post, publish, display, transmit, share, store or otherwise make available on the Service any content that we may deem:

(i) to be misleading, harmful, threatening, unlawful, libellous, defamatory, infringing of any intellectual property rights, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, invasive of privacy or publicity rights, hateful, or racially, ethnically or otherwise objectionable;

(ii) to contain software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;

(iii) to be unsolicited or unauthorized advertising, solicitations, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;

(iv) to be the private Information of any third party, including, without limitation, addresses, phone numbers, email addresses, National Insurance numbers or other identifiers, credit card numbers and/or debit card numbers;

(e) register on the Service more than once or register on the Service on behalf of an individual other than yourself, or register on the Service on behalf of any entity without that entity’s prior written authorisation;

(f) impersonate any person or entity, or falsely state or otherwise misrepresent yourself, your age, your financial employment or personal circumstances or your affiliation with any person or entity;

(g) use or attempt to use another person or entity’s User Account, or the Service without authorization from us, or create a false identity on the Service;

(h) solicit personal Information from anyone under 18 or solicit passwords or personally identifying Information for commercial or unlawful purposes;

(i) use this Service in such a way so as to remove the copyright or trade mark notice(s) from any copies of any material made available in accordance with this Agreement.

12.2 You are solely responsible for your User Information. You may not post, transmit, or share User Information on the Service that you did not create or that you do not have permission to display, publish or post. You understand and agree that we may, but are not obliged to, review the Service and may delete or remove (without notice) any User Information in our sole and absolute discretion, for any reason or no reason, including without limitation User Information that in our own absolute discretion violates any provision(s) of this Agreement. You are solely responsible at your own cost and expense for creating backup copies and replacing any User Information.

12.3 When you post your User Information, you authorize and direct us to make such copies of it as we consider necessary in order to facilitate the operation of the Service. By posting User Information to any part of the Service, you automatically grant, and you represent and warrant that you have the right to grant, to us an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, copy, reformat, translate such User Information for any purpose on or in connection with the Service to prepare derivative works of, or incorporate into other works, such User Information, and to grant and authorize sublicenses of the foregoing.

12.4 Subject to the provisions of this Agreement, we are not responsible for third party content downloaded or any content posted by users on the Service.

12.5 We welcome ‘links’ to the home page of our Service, but not ‘deep linking’ by which we mean that you may not include a link to any page of our Service that is not the home page. You must not display the contents of the Service (or any page from it) or allow it to be displayed surrounded or framed or otherwise surrounded by material not originating from us without our prior written consent.

12.6 The Information provided via the Service is intended solely for use by persons and organisations whose application we approve under Clause 1 of this Agreement. This Service is not intended for distribution to, or use by, any person or entity in any jurisdiction where such distribution or use would be contrary to Applicable Law or regulation.

13. Disclaimers.

13.1 THE SERVICE IS PROVIDED “AS IS.” WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SERVICE, INCLUDING ANY WARRANTY THAT THE SERVICE OR ANY PART OF IT WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, OR THAT ANY INFORMATION OR CONTENT, INCLUDING YOUR INFORMATION, WILL BE SECURE, ACCURATE, TIMELY, UP-TO-DATE, RELIABLE OR NOT OTHERWISE LOST OR DAMAGED. EXCEPT TO THE EXTENT PROHIBITED BY LAW, WE EXCLUDE ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.

14. Liability

14.1 You will be liable to us for any loss or damage suffered by us as a foreseeable result of your breach of this Agreement or any other agreement between you and us, or for your negligence or fraud.

14.2 We shall only be liable to you for any loss or damage which results directly as a result of our breach of this Agreement, or our negligence, wilful default or fraud.

14.3 Our liability shall be subject to any specific limitations expressly set out in this Agreement.

14.4 WE WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, DAMAGE TO REPUTATION, LOSS OF GOODWILL, LOSS OF USE, OR LOSS OF DATA OR CORRUPTION OF DATA, OR ANY OUTAGE OR OTHER LACK OF AVAILABILITY OF THE SERVICE), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WE WILL NOT BE RESPONSIBLE FOR ANY ACTION, COSTS, CLAIM, EXPENSE (INCLUDING LEGAL FEES AND EXPENSES) COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) YOUR INABILITY TO USE THE SERVICE OR ANY PART OF IT, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE, (II) OUR DISCONTINUATION OF ANY OR ALL OF THE SERVICE, OR, (III), ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICE FOR ANY REASON, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS; (B) YOUR INABILITY TO USE THE SERVICE FOR ANY REASON, INCLUDING UNEXPECTED USE OR DEMAND BY ANY END USER; (C) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (D) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE; (E) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF YOUR INFORMATION OR OTHER DATA; OR (F) THE CONTENT OF ANY INFORMATION TRANSFERRED USING THE SERVICE . IN ANY CASE, OUR AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT YOU ACTUALLY PAY US UNDER THIS AGREEMENT FOR THE SERVICE THAT GAVE RISE TO THE CLAIM DURING THE 12 MONTHS PRECEDING THE CLAIM.

14.5 Nothing in this Agreement shall limit our liability for personal injury or death, or for any other liability which may not be excluded under the provisions of Applicable Law.

14.6 No party shall be liable for any failure or delay in the performance of any obligation under this Agreement (except any payment obligation) by reason of any cause beyond that party’s reasonable control.

15. Indemnities

15.1 You agree to indemnify and hold each other user, us, our subsidiaries and affiliates, and each of our directors, officers, agents, contractors, partners and employees, harmless from and against any loss, liability, claim, demand, damages, costs and expenses (including reasonable legal fees and expenses), arising out of or in connection with:

(a) any of your User Information;
(b) your conduct in connection with the Service or with other users of the Service;
(c) any breach by you of this Agreement or of any Applicable Law or the rights of any third party (including Intellectual Property Rights);
(d) your use of the Service, including any activities under your User Account and use by your End Users, employees and personnel;
(e) your combination of the Service with other applications, content or processes, including any claim involving alleged infringement or misappropriation of third-party rights;
(f) any dispute between you and any other user of the Service; and
(g) any dispute between you and any of your End Users.

15.2 If we or our affiliates are obligated to respond to a third party subpoena or other compulsory legal order or process described above, you will also reimburse us for reasonable legal fees and expenses, as well as our employees’ and contractors’ time and materials spent responding to the third party subpoena or other compulsory legal order or process at our then-current hourly rates.

15.3 In the event of an indemnified claim under Clause 15.1, we will: (a) provide you written notice of any such claim within thirty (30) days after indemnified party’s receipt of clear and express notice of such claim; (b) grant you, and you will have, the exclusive right to defend any such claim and make settlements thereof at your own discretion; (c) not settle or compromise such claim, except with your prior written consent (which consent will not be unreasonably withheld, conditioned or delayed); and (d) give you, at your expense, such assistance and Information as you may reasonably require to settle or oppose such claims. We may, however, participate in the defence or settlement of such claim at our own expense and with our own choice of counsel.

16. Notices

16.1 Except as otherwise expressly provided in this Agreement, any communication in writing may be given by post to the last known postal address that we hold for you or you hold for us, or email to the email address last notified by you to us or by us to you.
16.2 Communications sent:

(a) by post will be treated as received by you three Business Days after posting; and
(b) by email they will be treated as received immediately upon sending, so long as we or you do not receive notice of non-transmission or non-receipt.

16.3 We may also communicate with you by posting Information in your User Account or on the Service, in which case the Information will be treated as received by you when it is posted by us, as the case may be.

17. Amendments to this Agreement

17.1 Subject to the provisions of Clause 4 of this Agreement, we may amend this Agreement by giving you notice via the Service and your User Account.

(a) where we consider that the change will make this Agreement clearer and no less favourable to you;
(b) to improve the Service;
(c) to introduce new systems or technology;
(d) to introduce new products or services; and/or
(e) to implement changes to the Service under Clause 10 of this Agreement or as required by Applicable Law.

17.2 We will give you 14 days’ notice of any change under this Clause 17 except where we consider that such change is required by Applicable Law. If you are not happy with any changes to this Agreement, you may terminate this Agreement in accordance with Clause 7 of this Agreement.

18. General

18.1 This Agreement is supplied in English and all communications between us, (including any communications or documentation passing between us before entering into any contract), will be in English.

18.2 This Agreement is governed by English law and the courts of the United Kingdom will have non-exclusive jurisdiction to settle any disputes that may arise in relation thereto, although we retain the right to bring proceedings against you for a breach of this Agreement in your country of residence or any other relevant country.

18.3 This Agreement includes the Policies and is the entire agreement between you and us regarding the subject matter of this Agreement. This Agreement supersedes all prior or contemporaneous representations, understandings, agreements, or communications between you and us, whether written or verbal, regarding the subject matter of this Agreement. We will not be bound by any term, condition or other provision which is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) and which is submitted by you in any order, receipt, acceptance, confirmation, correspondence or other document. If the terms of this document are inconsistent with the terms contained in any Policy, the terms contained in this document will prevail. Any translation of the English language version of this Agreement that we provide to you is for information purposes only, and the English language version of the Agreement will prevail in the event of any inconsistency or conflict.

18.4 Nothing in this Agreement is intended to confer any benefit on any person who is not a party to this Agreement, and no third party shall have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms.

18.5 If any part of this Agreement is found to be illegal, invalid or unenforceable by any court of competent jurisdiction or regulatory authority, the remainder shall continue in full force and effect. No single or partial exercise, or failure or delay in exercising any right, power or remedy by either you or us shall constitute a waiver by us of, or preclude any further exercise of, that or any right, power or remedy arising under this Agreement or otherwise.

18.6 The provisions of this Agreement are personal to you and you shall not assign or transfer any of your rights or obligations under this Agreement. Any assignment or transfer in violation of this Clause 18.6 of this Agreement will be void and of no effect.

18.7 We may assign our rights and obligations under this Agreement to any other company in our group, including a parent company or subsidiary.

18.8 We and you will keep confidential and will not disclose to any third party any Information that is marked or otherwise indicated as being confidential at the time of disclosure, except Information which:

(a) at or prior to the time of disclosure was known to receiving party (except to the extent that such Information was unlawfully appropriated);
(b) at or after the time of disclosure becomes generally available to the public other than through any act or omission on the part of the receiving party;
(c) is received by the receiving party from a third party free to make such disclosure without breaching any legal obligation;
(d) is developed by or for the receiving party independently of the Information disclosed by the disclosing party; or
(e) is required to be disclosed by Applicable Law, court order or request by any government or regulatory authority, or to our respective professional advisers for the purposes contemplated in this Agreement, or in where disclosure is necessary to exercise any of our rights or perform any of our obligations under this Agreement.

19. Definitions.

19.1 In this Agreement, capitalised terms have the following meanings:

(a) “API” means an application program interface;
(b) “Applicable Law” means all legal and regulatory obligations that apply to you or your activities;
(c) “Capacity” means a licence to access and use a certain amount of capacity in an Operator’s system via a certain Point of Presence for a certain duration, as agreed via the Service;
(d) “End User” means any individual or entity that directly or indirectly through a Buyer accesses or uses Capacity, and includes individuals or entities when they are accessing or using the Services through the Buyer’s User Account;
(e) “Fee” means the fees payable to us by you under Clause 4 of this Agreement;
(f) “Information” means text, numbers, graphics, software code, audio and still and moving images, whether in physical or electronic form;
(g) “Intellectual Property Rights” means all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, semi-conductor topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;
(h) “CDN.net Information” means Information we or any of our affiliates make available in connection with the Service or on the CDN.net Site to allow access to and use of the Service, including the Documentation;
(i) “CDN.net Marks” means any trademarks, service marks, service or trade names, logos, and other designations of CDN.net and its affiliates that we may make available to you in connection with this Agreement;
(j) “CDN.net Site” means http://www.cdn.net and any successor or related site designated by us;
(k) “Location” means a geographic location (e.g. London), within which one or more Points of Presence are available via the Service;
(l) “Operator” means a supplier of telecommunications services and transmission systems for the conveyance of signals network or services that enable connections between computing devices involved in the caching, storage and distribution of data;
(m) “Point of Presence” (or “PoP”) means a telecommunications service access point, operated by an Operator, at which your End User may connect to your web site;
(n) “Policies” means the Acceptable Use Policy, the Site Terms, the Trademark Use Guidelines, all restrictions described in the CDN.net Information and on the CDN.net Site, and any other policy or terms referenced in or incorporated into this Agreement;
(o) “Privacy Policy” means the privacy policy currently referenced at http://onapp.com /privacy-policy, as it may be updated by us from time to time;
(p) “Service” has the meaning given in Clause 1.1 of this Agreement;
(q) “Term” means the term of this Agreement described in Clause 7.1 of this Agreement;
(r) “User Account” means a data account will automatically be opened in your name in our systems, which may be referred to us as the “CDN.net Dashboard” or such other name as we may specify from time to time;
(s) “User Information” means the Information provided by you to us the Service.