“Cloud Service” means any distinct, subscription-based, hosted, supported and operated on-demand solution provided by dome under this Agreement.
“Cloud Materials” mean any materials provided or developed by dome (independently or with Client’s cooperation) in the course of performance under the Agreement, including in the delivery of any support or Consulting Services to Client. Cloud Materials do not include the Client Data, Client Confidential Information or the Cloud Service.
“Client Data” means any content, materials, data and information that Authorized Users enter into the production system of a Cloud Service or that Client derives from its use of and stores in the Cloud Service. Client Data and its derivatives will not include dome's Confidential Information.
“Implementation Services” means the services required to set-up, or otherwise configure the Cloud Service, for Client.
2. CLOUD SERVICE
The Cloud Service may be used by Client in support of its and its Affiliates’ customer engagement and art business operations, and includes the following features: (a) Marketing Programs; (b) Sales Management; (c) E-commerce; (d) Order Processing; (e) Inventory Management; (f) Customer Engagement and Services.
2.2 Grant of Rights
dome grants to Client a non-exclusive, non-transferable and world-wide right to use the Cloud Service (including its implementation and configuration), Cloud Materials and Documentation solely for Client’s and its Affiliates’ internal business operations. Permitted uses and restrictions of the Cloud Service also apply to Cloud Materials and Documentation.
2.3 Authorized Users
Client may permit Authorized Users to use the Cloud Service. Authorized User means any individual to whom Client grants access credentials to use the Cloud Service.
2.4 Use Policy
With respect to the Cloud Service, Client will not: (a) disassemble, decompile, reverse-engineer, copy, translate or make derivative works; (b) transmit any content or data that is unlawful, defamatory or infringes any intellectual property rights, or (c) circumvent or endanger its operation or security.
2.5 Suspension of Cloud Service
dome may suspend use of the Cloud Service if continued use may result in material harm to the Cloud Service or its users. dome will promptly notify Client of the suspension. dome will limit the suspension in time and scope as reasonably possible under the circumstances
3. dome RESPONSIBILITIES
dome provides access to the Cloud Service as described in the Agreement, and provides support for the Cloud Service as referenced in this Agreement.
The Cloud Service and dome Policies may be modified by dome. dome will inform Client of modifications by email, the support portal, release notes, Documentation or the Cloud Service. Modifications may include optional new features for the Cloud Service, which Client may use subject to the then-current Supplement.
dome or its subcontractors may use anonymous information relating to use of the Cloud Service and Consulting Services to prepare analyses. Analyses do not contain personal data nor Client Confidential Information. Examples of analyses include: optimizing systems and technical resources and support, research and development of Cloud Service and Consulting Service, verification of security and data integrity, internal demand planning, industry and macroeconomic developments and anonymous benchmarking with other Clients. dome may provide non-anonymous benchmarking services with Client’s prior written consent.
4. CLIENT AND PERSONAL DATA
4.1 Client Data
Client is responsible for the Client Data and entering it into the Cloud Service. Client grants to dome and its subcontractors a nonexclusive right to process Client Data (including personal data) solely to provide and support the Cloud Service. Client shall formulate and maintain effective security standards for its Authorized Users’ use of the Cloud Service.
4.2 Access to Client Data
(a) During the Subscription Term, Client can access its Client Data at any time. Client may export and retrieve its Client Data in a standard format. Export and retrieval may be subject to technical limitations as stated in the Documentation.
(b) Before the Subscription Term expires, Client may use dome self-service export tools (as available) to perform a final export of Client Data from the Cloud Service.
(c) Following the end of the Agreement, dome will delete or overwrite the Client Data remaining on servers hosting the Cloud Service unless applicable law requires retention. Retained data is subject to the confidentiality provisions of the Agreement.
5. FEES AND TAXES
5.1 Fees and Payment
Subscriptions to the Cloud Service are available in three packages: Starter, Plus and Premium. Client will pay fees subject to the subscription term of the Cloud Service, the amount and payment method: [ ]. After prior written notice, dome may suspend Client’s use of the Cloud Service until payment is made. Client cannot withhold, reduce or set-off fees owed during the Subscription Term. All fees non-refundable.
5.2 Additional Services
Additional Users and services may be added to each package at dome's then-current fee. Fees for Implementation Services are not included in the subscription fee for the Cloud Service.
6. TERM AND TERMINATION
The subscription term of the Cloud Service is [ ] year, commencing from [ ] to [ ].
A party may terminate the Agreement: upon thirty days written notice of the other party’s material breach unless the breach is cured during that thirty day period.
6.3 Effect of Expiration or Termination
Upon the effective date of expiration or termination of the Agreement:
(a) Client’s right to use the Cloud Service and all dome Confidential Information will end.
(b) Confidential Information of the disclosing party will be returned or destroyed as required by the Agreement。
Sections 8, 9, 10, 11 and 12 will survive the expiration or termination of the Agreement.
7.1 Compliance with Law
Client warrants that the Client Data and Client’s use of the Cloud Service will be in compliance with all laws and regulations applicable to it in connection with.
Except as expressly provided in the Agreement, neither dome nor its subcontractors and licensors make any representation or warranties, express or implied, statutory or otherwise, regarding any matter, including the merchantability, suitability, originality, or fitness for a particular use or purpose, non-infringement or results to be derived from the use of or integration with any products or services provided under the Agreement, or that the operation of any products or services will be secure, uninterrupted or error free.
The liability of dome shall be released under following circumstances:
(a) the Cloud Service is not used in accordance with the Agreement or Documentation;
(b) any non-conformity is caused by Client, or by any product or service not provided by dome.
8. BREACH OF AGREEMENT
Unless otherwise specified in this Agreement, if one party violates the convention or guarantee under the agreement, it shall compensate the losses caused to the other party.
Neither party (nor its parent company, respective Affiliates or subcontractors) will be liable to the other party for any special, incidental, consequential, or indirect damages, loss of good will or business profits, work stoppage or for exemplary or punitive damages.
8.2 Liability Cap
Under any circumstance, the maximum aggregate liability of dome and its affiliated companies to Client for all events (or series of connected events) arising in any twelve month period will not exceed the annual subscription fees paid for the applicable Cloud Service directly causing the damage for that twelve month period. Any “twelve month period” commences on the Subscription Term start date or any of its yearly anniversaries.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 dome Ownership
dome and its licensors own all intellectual property rights in and related to the Cloud Service, Cloud Materials, Documentation, Consulting Services, design contributions, related knowledge or processes, and any derivative works of them (“Works”). All rights not expressly granted to Client are reserved to dome and its licensors. Where intellectual property in any Works conceived or created by either party cannot by law vest in dome or its licensors as mentioned above, Client grants dome or such licensors a non-exclusive, perpetual, irrevocable, worldwide, fully-paid up license to use, modify, create derivative works, sublicense to dome's and dome's licensees.
9.2 Client Ownership
Client retains all rights in and related to the Client Data.
10.1 Use of Confidential Information
(a) The receiving party will protect all Confidential Information of the disclosing party as strictly confidential to the same extent it protects its own Confidential Information, and not less than a reasonable standard of care. Receiving party will not disclose any Confidential Information of the disclosing party to any person other than its personnel, representatives or Authorized Users whose access is necessary to enable it to exercise its rights or perform its obligations under the Agreement and who are under obligations of confidentiality substantially similar to those in Section 11. Client will not disclose the Agreement or the pricing to any third party.
(b) Confidential Information of either party disclosed prior to execution of the Agreement will be subject to Section 11.
(c) In the event of legal proceedings relating to the Confidential Information, the receiving party will cooperate with the disclosing party and comply with applicable law (all at disclosing party’s expense) with respect to handling of the Confidential Information.
The restrictions on use or disclosure of Confidential Information will not apply to any Confidential Information that:
(a) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information;
(b) is generally available to the public without breach of the Agreement by the receiving party;
(c) at the time of disclosure, was known to the receiving party free of confidentiality restrictions;
(d) the disclosing party agrees in writing is free of confidentiality restrictions.
If any provision of the Agreement is held to be invalid or unenforceable, the invalidity or unenforceability will not affect the other provisions of the Agreement.
11.2 No Waiver
A waiver of any breach of the Agreement is not deemed a waiver of any other breach.
Without dome's prior written consent, Client may not assign or transfer the Agreement (or any of its rights or obligations) to any party. dome may assign the Agreement to any of its Affiliates.
dome may subcontract parts of the Cloud Service or Consulting Services to third parties. dome is responsible for breaches of the Agreement caused by its subcontractors.
11.5 Relationship of the Parties
The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created by the Agreement.
11.6 Force Majeure
Any delay in performance or nonperformance (other than for the payment of amounts due) caused by conditions beyond the reasonable control of the performing party (including but not limited to earthquake, fire, flood, natural disasters, exceptionally severe weather, war, acts of terrorism, embargo, strike, riot, a failure of a public utility or public telecommunications system, governmental censorship, prohibition or expropriation, or any or the intervention of any governmental authority) is not a breach of the Agreement. The time for performance will be extended for a period equal to the duration of the conditions preventing performance.
11.7 Governing Law
The Agreement and any claims relating to its subject matter will be governed by and construed under the laws of the People’s Republic of China. Both parties agree to handle all disputes relating to this agreement and its execution through friendly negotiation. If no settlement can be made through negotiation, any party has the right to submit the dispute to Shanghai International Arbitration Center (HKIAC) for arbitration. The arbitration place shall be Shanghai. Arbitral award is final and binding upon both parties. Arbitral fee shall be borne by the losing party.
This Agreement is prepared in English and Chinese languages. In the case of any conflict or inconsistency, the Chinese language version shall prevail.