Terms and Conditions of Cloud Services

     These Terms and Conditions apply to Cloud Services supplied by CAC to Customer. These Terms and Conditions, Purchase Order (as defined below), Product Terms (as defined below), and the relevant SLA (as defined below), constitute the entire agreement between the Parties in relation to the sale and purchase of the Cloud Products (together, “Agreement”). The Agreement is entered into by and between CAC entity signing the relevant Purchase Order and providing the services under these Terms and Conditions (“CAC”) and customer who gets access to and uses Cloud Services and the account (“Customer”). “CAC” means CAC Holding Limited or the CAC entities stated in the Application acting on behalf of CAC Group, as the case may be. Customer and CAC are each referred to as a “Party” and collectively as “Parties” hereunder.

1.1  Inconsistency. In the event of any inconsistency between these Terms and Conditions, the Product Terms, the Purchase Order, and the SLA, the order of precedence shall be as follows (from top down):

     (a) Purchase Order;

     (b) these Terms and Conditions;

     (c) Product Terms (as defined below); and

     (d) the relevant SLA (as defined below).

1.2  Product Terms. The use of Cloud Products by Customer is at all times subject to any and all applicable product terms, terms of use, privacy policy, product SLA, payment and tax terms, membership agreement, rules and policies and any other relevant terms and conditions relating to the relevant CAC Cloud Products (together, the “Product Terms”) including but not limited to those provided on   CAC Website (https://www.cacdata.cn) and those Product Terms are subject to change from time to time without notice and Customer agrees to observe those Product Terms and is recommended to check the new version of the Product Terms on CAC Website.

1.3  SLA. The purchase and use of certain Cloud Products may come with service level guarantees by way of service level agreements (the “SLA”). Notwithstanding any of the foregoing, Customer acknowledges and agrees that not all Cloud Products provide an SLA.

1.4  No Resale. The Cloud Products purchased by Customer hereunder and the related services provided by CAC and its third-party suppliers are for Customer’s sole use only. Customer shall not resell or distribute such Cloud Products and related services in whatever means to any other third party.

2.1  Price. Customer acknowledges that CAC shall have the sole discretion to determine the pricing of the Price. The amount of discount provided to Customer during the Term in relation to the Cloud Products (the “Discount”) is set out in the relevant Purchase Order.

2.2  Tax.

    (a) Unless otherwise agreed, all amounts required to be paid hereunder do not include any taxes, duties or other assessments levied or based upon such amounts. If Customer is or may be required under any law or regulation of any governmental entity or authority, domestic or foreign, to withhold or deduct any withholding tax from an amount due to CAC pursuant to this Agreement, the amount payable to CAC shall be increased to the extent necessary to ensure that after making such deduction or withholding, CAC receives and retains a net sum equal to the sum it would have received but for such deduction or withholding being required. Customer shall promptly deliver to CAC all receipts and/or certificates or other proof evidencing the amounts (if any) paid in respect of any such deduction or withholding. In determining whether and to what extent a deduction or withholding of tax is required by law, the Parties shall cooperate with each other and use their reasonable efforts to apply for any exemption, and shall bear their respective cost and expenses in this regard.

    (b) Each Party shall be responsible for the direct tax liability imposed on its own net income. Customer shall be responsible for the payment of all other taxes including the local levies imposed on Customer by any relevant government authority. 

3.1  Payment.

    (a) On or before the 5th day of each calendar month, CAC shall issue an invoice to Customer, setting out the amount due and payable for the previous month. Customer shall pay the amount set forth in the invoice in full to CAC within thirty (30) days from the date of invoice.

    (b) CAC may suspend or terminate services to Customer if all amounts owed under any invoice are not paid within forty-five (45) days from the date of receipt of such invoice.

    (c) Customer hereby irrevocably agrees that interest shall accrue on all overdue amounts owed by Customer to CAC at the lessor of 1.0% per month (in simple interest) or the maximum allowed by law.

3.2  Currency. Unless otherwise agreed, all payments to be made by Customer hereunder shall be denominated and made in US Dollars.

3.3  Bank Charges. Each Party shall be responsible for its own bank charges.

4.1  Improper Benefit. Customer, its directors, officers or employees shall not offer, promise, give, authorize, solicit or accept from or offer to CAC and its directors, employees, or other third parties any undue pecuniary or other improper business or personal advantage of any kind (or imply that they will or might do any such thing at any time in the future), or directly or indirectly take any other illegal or unlawful action, in any way connected to this Agreement.

4.2  Data Privacy. Customer shall comply with any and all applicable laws and regulations on personal data privacy protection and/or direct marketing in any and all relevant or applicable jurisdiction.

4.3  Government and Regulatory Notices. Customer shall immediately provide written notice to CAC with full details and copies of any enquiry, notice, order, ruling, decision, verdict, decree, writ, subpoena, mandate, precept, command, directive, consent, approval, award, judgment, injunction or other similar determination or finding by, before or under the supervision of any governmental and judicial entity in connection with CAC, CAC’s suppliers for the CAC Cloud Products (including but not limited to CAC Cloud) or CAC Cloud Products, which have been received by Customer if such disclosure is allowed under the applicable laws and regulations and with the consent of the relevant government and judicial entity.

4.4  Third Party Software in Cloud Products.

    (a) Customer acknowledges that certain third party software may be incorporated with the CAC Cloud Products and in connection therewith, Customer may be allowed to use such third party software through its purchase of the CAC Cloud Products. Customer hereby agrees to abide by any and all terms and conditions of such third party software prior to its use of such third party software as may be required by the relevant owner or licensor of such third party software.

    (b) Customer shall have no right to license, sub-license or transfer such third party software to any other persons without the consent of the relevant owner or licensor of the third party software in question.

    (c) Any breach by Customer of this Clause 6.4 shall be deemed a material breach of this Agreement and Customer shall indemnify and hold CAC harmless from and against any loss or damage which it may suffer or incur as a result of Customer’s breach of any terms and conditions of such third party software.

5.1  Modification of Cloud Products.CAC shall have the right to modify the features of, cease the offering of, amend the terms and conditions of, or make any other adjustments or modifications to the relevant Cloud Products any time as deemed necessary, provided that in the event of any material modifications to the core features or operation of the relevant Cloud Products, prior written notice is provided to Customer reasonably in advance of such modifications.

6.1  License. Each Party shall, or procure to, grant the other Party a royalty free, non-exclusive, non-transferrable, revocable right to use the “Marks” as agreed between the Parties during the Term (as defined below) and solely for the provision and use of the relevant Alibaba Cloud Products in accordance with the terms of this Agreement. A Party shall obtain prior written approval from the other Party for all uses of the Marks. Whenever a Party uses the Marks of another Party, such Party shall clearly indicate the ownership of the Marks by the Party or its licensor(s).

6.2  Retention of Rights. Both Parties and their licensor(s) shall retain all intellectual property rights and title in and to the Marks. CAC and its relevant licensor(s) shall retain all concepts, techniques, processes, inventions, software or works of authorship or other proprietary information developed, embodied in or practiced in connection with the relevant Cloud Products, including all modifications, enhancements, derivative works, configurations, translations, upgrades and interfaces thereto by any Party. Except as expressly provided in this Agreement, nothing in this Agreement shall be interpreted to mean that a Party has acquired any right, interest or title in any of the intellectual property rights of the other Party and its licensor(s). Upon expiry or termination of this Agreement, a Party shall immediately stop using the intellectual property rights of the other Party and its licensor(s) and destroy or return to the other Party materials comprising the intellectual property rights of such other Party and its licensor(s).

6.3  Customer Data. All customer data in connection with the purchase of Cloud Products by Customer solicited, recruited or invited by Customer will be owned by Customer.

6.4  Non-dilution of Trademarks. Neither Party shall use or register in any jurisdiction, domestic or foreign, any trademarks which may be reasonably deemed to be confusingly similar to the other Party’s Marks. Customer will not in any online search engine or other online marketing channel bid on any keywords which include the word “ CAC”, or “CAC Cloud” in English, or any other language or any similar spellings or misspellings thereof.

7.1  Definition. “Confidential Information” means all information in any medium disclosed by either Party to the other Party concerning either Party, its affiliates and/or CAC’s suppliers for the CAC Cloud Products that: (i) if disclosed in writing, is marked “confidential” or “proprietary” at the time of such disclosure; (ii) under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary; (iii) without limiting the foregoing, shall include the terms and conditions of this Agreement (including the Schedules) as the Confidential Information of both Parties.

7.2  Confidentiality Undertaking. Each Party will not use the other Party’s Confidential Information, except as necessary for the performance of this Agreement, and will not disclose or permit the disclosure of such Confidential Information provided by such other Party or otherwise obtained by such first Party, whether obtained before or after the execution of this Agreement, to any third party, except to those of its officers, directors, employees, affiliates, agents, approved subcontractors (if any), professional advisors (if any) and CAC’s suppliers for the relevant Cloud Products that need to know such Confidential Information for the performance of this Agreement. The foregoing obligations will not restrict either Party from disclosing the other Party’s Confidential Information, if pursuant to the order or request of a court, administrative agency, stock exchange, or other governmental body, provided that the Party required to make such a disclosure to the extent permitted by law gives reasonable written notice to the other Party to enable it to contest such order or request.

7.3  Return of Confidential Information. Upon expiry or termination of this Agreement, each Party shall, upon the other Party’s instructions, return to the other Party or destroy the Confidential Information and any copies thereof.

8.1  Representation. Each Party represents and warrants to the other Party that:

    (a) it has full power and authority to enter into this Agreement, grant (or procure to grant) and be granted the licenses, and to fully perform its obligations hereunder, and it is not subject to any restrictive covenant or other legal obligation which prohibits it from performing its obligations hereunder;and

    (b) it has obtained all permits, licenses and approvals required to perform its obligations hereunder, and shall comply with all applicable laws and regulations and maintain all permits, licenses and approvals required to perform its obligations hereunder.

8.2  Customer Representation and Warranties. Customer represents and warrants that Customer are not the subject of any trade restrictions, sanctions or other legal restrictions enacted by any country, international organization or jurisdiction.

8.3  Undertakings. Customer undertakes to CAC that:

    (a) it will maintain any permits, licenses and approvals required to perform its obligations hereunder throughout the Term;

    (b) it will not, and procure that its affiliates will not, become the subject of any trade restrictions, sanctions or other legal restrictions enacted by any country, international organization or jurisdiction.

9.1 Each Party shall:

    (a) comply with all applicable laws, regulations, codes, and sanctions relating to anti-bribery and anti-corruption;

    (b) have and shall maintain in place throughout the term of this Agreement adequate anti-bribery policies and procedures and will enforce them where appropriate; and

    (c) promptly report to the other party any request or demand for any undue financial or other advantage of any kind received in connection with the performance of this Agreement;

9.2 Material Breach. Breach of this Clause 10 shall be deemed a material breach.

10.1 Customer Indemnity. Customer shall defend, fully indemnify and hold CAC and its affiliates and their successors and assigns, and their respective directors, officers and employees, harmless from and against any and all claims, causes of actions, suits and proceedings brought by a third party and resulting judgments, settlements, liabilities, damages, losses, costs and expenses (including, without limitation, reasonable attorneys’ fees and legal costs) arising out of or relating to (i) Customer’s breach or non-performance of any of its obligations under this Agreement, (ii) Customer’s breach of any representation, warranty or covenant set out in this Agreement, (iii) any gross negligence or wilful misconduct by Customer in carrying out its obligations under this Agreement, and/or (iv) any claims for infringement of intellectual property rights attributable to Customer’s use or unauthorized modification of the Cloud Products (collectively, the “CAC Claims”). CAC shall promptly notify Customer of all threats, claims and proceedings relating to CAC Claims, permit Customer to control the investigation, defense and settlement of all such third party claims and provide Customer with reasonable cooperation, at Customer’s expense, in the defense and/or settlement of such third party claims.

10.2 CAC Indemnity. CAC shall defend, indemnify and hold Customer and its affiliates and their successors, and their respective directors, officers and employees, harmless from and against all claims, causes of actions, suits and proceedings brought by a third party and resulting judgments, settlements, liabilities, damages, losses, costs and expenses (including, without limitation, reasonable attorneys’ fees and legal costs) arising out of or relating to (i) CAC’s breach of Clause 7 (Intellectual Property Rights and Customer Data) of this Agreement, (ii) CAC’s breach of any representation, warranty or undertakings set forth in this Agreement, (iii) any gross negligence or wilful misconduct by CAC in carrying out its obligations under this Agreement; and/or (iv) any claims for infringement of intellectual property rights in relation to the relevant CAC Cloud Product provided by CAC pursuant to this Agreement only if such claims are not attributable to (a) the incorporation of Customer’s products into the Cloud Products or use of the Cloud Products in combination with another product, (b) any unauthorized modification of Cloud Products, or (c) any unintended use of the Cloud Products (collectively, the “Customer Claims”). Customer shall promptly notify CAC of all threats, claims and proceedings relating to any Customer Claim, permit CAC to control the investigation, defense and settlement of all such third party claims and provide CAC with reasonable cooperation, at CAC’s expense, in the defense and/or settlement of such third party claims.

11.1 Disclaimer. Except as expressly provided in this Agreement and to the maximum extent permitted by law, CAC makes no warranty, express or implied, with respect to the CAC Cloud Products in relation to it their merchantability and fitness for any particular purpose.

11.2 Exclusive Remedies. Notwithstanding any other terms of this Agreement to the contrary, Customer acknowledges and agrees that the remedies provided in the terms and conditions set forth in this Agreement, including but not limited to the relevant SLA for the CAC Cloud Products, shall be the sole and exclusive remedies for Customer under this Agreement.

11.3 Limitation of Liability. Notwithstanding any other provisions of this Agreement, to the maximum extent permitted by law, and save as expressly stated in this Agreement, in no event shall either Party or its officers, directors, employees, or agents be liable to the other Party under any contract, tort (including negligence), strict liability or any other legal or equitable theory for any indirect, special, incidental, consequential, or exemplary damages, or loss of profits or data, even if such Party has been advised of the likelihood of such damages occurring. Notwithstanding any other provisions of this Agreement, for any claim hereunder, the total liability of CAC to Customer arising out of or relating to this Agreement, whether in contract, tort (including negligence) or otherwise, shall in no circumstances exceed the total aggregated sum of payment made by Customer and received by CAC under this Agreement as at the date the cause of action for such claim has arisen for the product or service that gave rise to such claim.

12.1 Term. This Agreement shall come into effect on the date both Parties have duly and validly executed the Purchase Order or a date specified by both Parties in the Purchase Order and shall remain for the specific period as specified in the Purchase Order, unless terminated by either Party pursuant to these Terms and Conditions or terminated pursuant to the provisions in the Purchase Order (the “Term”).

12.2 Termination. Either Party may terminate this Agreement with immediate effect on written notice to the other Party if:

    (a) the other Party commits a material breach of this Agreement (including any breach of any representation, warranties, or undertakings made under this Agreement) and fails to remedy the breach (if remediable) within fourteen (14) days of receiving written notice to that effect specifying the breach and requiring it to be remedied;

    (b) the other Party ceases to conduct its business operations;

    (c) the other Party is unable to pay its debts due and payable; or

    (d) the other Party enters into a composition with its creditors or goes into liquidation, or is dissolved, or adjudged insolvent or is otherwise rendered incapable of performing its obligations under this Agreement. In such event, save in respect of any antecedent breaches, all rights and liabilities of the Parties shall cease and terminate provided that (i) all amounts paid by Customer to CAC shall be non-refundable, (ii) all amounts due and owing by Customer to CAC shall continue to be due and owing and (iii) such termination shall be without prejudice to any rights or remedies of the Parties which have accrued prior to such termination.

12.3 Survival. Clauses 2, 3, 6.3, 7, 8.1, 8.2, 10, 11, 13 and 14 and shall survive the expiry or termination of this Agreement.

13.1 Delivery Method. Notices under this Agreement may be delivered by:

    (a) hand;

    (b) registered mail/speed post;

    (c) facsimile; or

    (d) recognized overnight courier,

to the addresses or facsimile numbers disclosed below, or to such other address or facsimile numbers as may be notified by a Party to the other Party in writing from time to time according to this clause.

13.2 Effect. Notice will be deemed given:

    (a) in the case of hand delivery, registered mail, speed post or recognized overnight courier, on the Business Day immediately following the day of dispatch provided corrected address has been stated. “Business Day” means any day other than a public holiday in Hong Kong; or

    (b) in the case of facsimile, on confirmation of successful completion of transmission.

14.1 Assignment and Novation. CAC may at its sole and absolute discretion novate, assign or otherwise transfer this Agreement and its obligations thereunder at any time to any of its affiliated entities by giving written notice to the Customer. Customer shall not assign or transfer this Agreement, in whole or in part, or any rights and obligations hereunder, in whole or in part, to any third party, without CAC’s prior written consent. This Agreement will bind and inure to the benefits of the Parties’ permitted successors and assigns.

14.2 Expenses. Except as otherwise set out in this Agreement, each Party must pay its own costs and expenses in relation to preparing, negotiating, executing and completing this Agreement and any document related hereto.

14.3 Waiver. No failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

14.4 Force Majeure. Neither Party shall be liable for non-performance or delay in performance (other than of payment or confidentiality obligations) caused by any event reasonably beyond the control of such Party including, but not limited to wars, acts of terrorism, hostilities, revolutions, riots, civil commotion, national emergency, hacking, cyber-attacks, computer viruses, strikes, lockouts or other labor disputes or shortages or inability to obtain material or equipment, unavailability of supplies, compliance with laws or regulation, epidemics, fire, flood, earthquakes, force of nature, explosion, embargo, or any Act of God, or any law, proclamation, regulation, ordinance or other act or order of any court, government or governmental agency.

14.5 Independent Parties. The relationship between the Parties is that of independent contracting parties. Nothing in this Agreement shall constitute or be deemed to constitute a relationship of employment, agency, joint venture, partnership, franchise or similar arrangement between the Parties.

14.6 Governing Law. This Agreement will be governed by and construed in accordance with the laws of Hong Kong, without regard to or application of conflicts of law rules or principles. Any dispute, controversy, or claim relating to the existence, validity, breach or termination of this Agreement (a “Dispute”) shall be resolved through negotiation within thirty (30) business days after the Dispute has been notified by either Party to the other Party. If any Dispute cannot be resolved by the Parties within thirty (30) business days mentioned above, such Dispute shall be referred to and finally resolved by arbitration administered by the Hong Kong International Arbitration Centre (“HKIAC”) under the HKIAC Administered Arbitration Rules then in force, which are deemed to be incorporated by reference herein. The seat of arbitration shall be Hong Kong. The tribunal shall consist of one (1) arbitrator. The arbitration proceedings shall be conducted in English. The requirements of this Clause shall not preclude a Party from pursuing equitable or injunctive relief in any court of competent jurisdiction or arbitral tribunal, if delay in seeking such relief may result in irreparable harm to such Party.

14.7 Press Releases and Public Announcements. Neither Party shall issue any press release or make any public announcement pertaining to this Agreement without the prior written consent of the other Party (such consent not to be unreasonably withheld or delayed), other than as may be required by applicable law or rules of any stock exchange.

14.8 No Authority. Customer has no authority to negotiate or enter into any agreement, or make any warranty or representations, in the name or on behalf of the other Party, or otherwise bind the other Party, except as otherwise agreed in this Agreement or where and to the extent specifically authorized to do so in writing.

14.9 Execution of Documents. Each Party must at its own expense promptly execute all documents and use reasonable endeavours to cause a third party to do all things that another party from time to time may reasonably request in order to give effect to, perfect or complete this Agreement and all transactions incidental to it.

14.10  Severability. Each provision of this Agreement is individually severable. If a court or arbitration tribunal of competent jurisdiction hereof declares any provision invalid, such provision shall be ineffective only to the extent of such invalidity, so that the remainder of that provision and all remaining provisions of this Agreement shall continue in full force and effect.

14.11 Entire Agreement. This Agreement constitute the entire agreement between the Parties relating to the subject matter hereof and supersedes any previous agreements, statements, arrangements, undertakings or proposals, written or oral, between the Parties in relation to such matter. No modifications, changes or amendments to this Agreement shall be binding on the Parties unless agreed in writing by both Parties.

14.12 Headings. The headings to the sections and attachments of this Agreement are included merely for convenience of reference and shall not affect the meaning of the language included therein.

14.13 Counterparts. This Agreement may be executed by the Parties in counterparts, each of which will be deemed an original, but all of which taken together will constitute one and the same instrument. Signatures executing this Agreement may be delivered by facsimile transmission or in an emailed PDF file or by other reliable electronic means.