API7 Cloud User Agreement

This API7 Cloud User Agreement, including all documents and terms incorporated by reference herein (collectively, the "Agreement"), is entered into by and between APISEVEN Ltd. and the organization you identified on API7's website when you registered to use the Cloud Services ("Customer"). API7 and Customer are each referred to herein as a "Party", or collectively, "the Parties".

This Agreement is effective on the date you registered to use the Cloud Services (the "Effective Date").

BY REGISTERING TO USE THE CLOUD SERVICES, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT ON BEHALF OF YOUR ORGANIZATION. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND YOUR ORGANIZATION TO THIS AGREEMENT, AND THAT YOU HAVE READ AND UNDERSTOOD THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU OR YOUR ORGANIZATION DOES NOT AGREE WITH THE TERMS OF THIS AGREEMENT, YOU SHOULD NOT ACCEPT IT.

1. Definitions. The following terms have the following meanings:

"Affiliate" means an organization that controls, is controlled by, or is under common control with, a party, where "control" means direct or indirect ownership of more than 50% of the voting interests of the organization.

"Authorized User" means a named individual that: (a) is an employee, representative, consultant, contractor or agent of Customer or a Customer Affiliate; (b) is authorized to use the Cloud Services pursuant to this Agreement; and (c) has been supplied a user identification and password by Customer.

"Cloud Services" means the applicable version of API7's Cloud-hosted software applications.

"Consulting Services" means the consulting or professional services included in your Subscription.

"Documentation" means the online help materials, including technical specifications, describing the features and functionality of the Cloud Services, which are located on API7's publicly-available website at https://www.api7.ai/.

"Order Form" means an ordering document for Subscriptions signed by both parties that refers to this Agreement.

"Software" means the API7 Enterprise software, API7 Cloud Platform, and any other software included with a Subscription, including any generally available updates to such software, but excluding open source software components, each of which has its copyright notice and license included in the license file and Documentation.

"Subscription" means a subscription for our Software, Support, or Consulting Services set forth in an Order Form.

"Support" means the maintenance and support services provided by API7 to Customer, if any, included in a Subscription.

2. Cloud Services.

You may access and use our Cloud Services in accordance with this Agreement.

The Cloud Services may include features or services that have separate rules specific to the feature or service. You will comply with all laws, rules and regulations applicable to the use of the Cloud Services and any additional feature or service you use. You understand and agree that we may change, suspend or discontinue any part or all of the Cloud Services. We will notify you of any material change to or discontinuation of the Cloud Services by email or via our website.

Some Cloud Services may be in preview, testing, or "beta" phase (each, a "Beta Offering"), for the purpose of evaluating performance, identifying defects and obtaining feedback. API7 will not be liable for any damages in connection with your use of any Beta Offering. You are not required to use any Beta Offering, and we have no obligation to release a final version of any Beta Offering.

If you purchase support for the Cloud Services, we will provide you with Support in accordance with the applicable support policy on our website. We may modify our support policy from time to time. Each time you register to receive Support, you are obligated to pay for a minimum of 30 days of Support. If you promptly or repeatedly re-register for Support after terminating it, we may charge you for the time period in which your Support was inactive or refuse to provide you Support.

3. Registration and Your Account.

To register to use the Cloud Services, you must create a username and password and provide us with the information requested in the registration process. You must provide complete and accurate information during the registration process and will update your information to ensure it remains accurate.

4. Consulting Services.

If you purchase Consulting Services, you will provide API7 with reasonable assistance and information to facilitate scheduling and performance of the Consulting Services. You will also appoint an engagement manager to help ensure effective delivery of the Consulting Services. Consulting Services and any work provided to you as a part of the Consulting Services, including any report (a "Deliverable"), are accepted when delivered. We may engage qualified subcontractors to provide the Consulting Services. We grant you a royalty-free, perpetual, nontransferable and nonexclusive license to use and reproduce any Deliverables for your internal business purposes.

5. Data and Security.

5.1 You will ensure that your data, and your use of it, complies with this Agreement and any applicable law. If you include payment cardholder information in your use of the Cloud Services, API7 will maintain all applicable Payment Card Industry Data Security Standard requirements. We may deactivate your Free Tier cluster if you do not use it for 30 days, after which we will use commercially reasonable efforts to allow you to reactivate the cluster by request to us.

5.2 Security. Each party has obligations with respect to the security of the Cloud Services. We will implement and maintain appropriate technical and organizational security measures. You are responsible for properly configuring and using the Cloud Services and taking your own steps to maintain appropriate security, protection and backup of your data. You will not disclose your User credentials to any unauthorized persons. You are responsible for all activities in your account, regardless of whether undertaken by you, your employees or a third party (including contractors or agents). We and our affiliates are not responsible for unauthorized access to your account unless caused by our breach of this Agreement. You will contact us immediately if you believe unauthorized activity has occurred in your account or if your account information is lost or stolen.

6. Payment and Taxes.

6.1 Fees. We calculate and bill fees and charges as described on the site specific to the Cloud Service you are using. For monthly charges, we may bill you more frequently for fees accrued if we believe there is a risk of non-payment or if we suspect that your account is fraudulent. If you choose monthly billing by credit card, you authorize a recurring monthly charge to your credit card based on our current fee schedule for the Cloud Services or Support, as applicable. You will pay us the applicable fees and charges for use of the Cloud Services, Support or Consulting Services as described on the applicable site using your credit card. All amounts payable for the Cloud Services, Support or Consulting Services will be made without setoff or deduction, and all amounts paid are non-refundable. We may increase or add new fees and charges for a Cloud Service, Support or Consulting Services by updating the applicable site. In the event that we change the pricing for the Cloud Services, Support or Consulting Services, the fees payable by you will increase or decrease in accordance with any such modification upon the date specified on the applicable site. We may charge you interest at the rate of 1% per month or the highest rate permitted by law on any late payment.

6.2 Taxes. All fees and charges payable by you are exclusive of applicable taxes and duties, including VAT and applicable sales tax. You will provide us any information we reasonably request to determine whether we are obligated to collect VAT from you, including your VAT identification number. If you are legally entitled to an exemption from any sales, use, or similar transaction tax, you are responsible for providing us with legally-sufficient tax exemption certificates for each taxing jurisdiction. We will apply the tax exemption certificates to charges under your account occurring after the date we receive the tax exemption certificates. 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.

7. Intellectual Property Rights and Ownership.

7.1 Your Data. You represent and warrant to us that: (a) you have all rights in your data necessary to grant the rights contemplated by this Agreement; and (b) none of your data violates this Agreement, any applicable law or any third party’s intellectual property or other right.

7.2 Our Service. You may not: (i) modify, alter, tamper with, repair, or create derivative works of any software included in the Cloud Services; (ii) reverse engineer, disassemble, or decompile the Cloud Services or apply any other process or procedure to derive the source code of any software included in the Cloud Services; (iii) access or use the Cloud Services in a way intended to avoid incurring fees or exceeding usage limits or quotas; (iv) resell or sublicense the Cloud Services; (v) use the Cloud Services in connection with any fork or derivative work of the APISIX; (vi) attempt to disable or circumvent any security mechanisms used by the Cloud Services; (vii) use the Cloud Services in a way that poses a risk to the Cloud Services or any third party; or (viii) use the Cloud Services unlawfully.

7.3 Use of Aggregate Information. API7 may collect and aggregate data derived from the operation of the Cloud Services ("Aggregated Data"), and API7 may use such Aggregated Data for purposes of operating API7's business, monitoring performance of the Cloud Services, and/or improving the Cloud Services; provided that API7's use of Aggregated Data does not reveal any Customer Data, Customer Confidential Information, or personally identifiable information of Authorized Users.

7.4 Marketing. API7 may use and display Customer's name, logo, trademarks, and service marks on API7's website and in API7's marketing materials. Upon Customer's written request, API7 will promptly remove any such logo, trademarks or service marks from API7's website and, to the extent commercially feasible, API7's marketing materials.

7.5 No Other Rights. This Agreement does not transfer any right, title or interest in any intellectual property to any party, except as expressly set forth in this Agreement. You are not obligated to provide us with any suggestions or other feedback about the Cloud Services or otherwise, but if you do, we may use and modify this feedback without any restriction or payment.

7.6 Customer may use any confidential or proprietary information that API7 provides to Customer ("API7 Information") only to evaluate the Cloud Services or Consulting Services and will use a high degree of care to avoid disclosure of API7 Information. Customer will not disclose API7 Information to any third party without API7's prior written consent. Customer's confidentiality obligations will continue for three years after this Agreement terminates.

8. Term and Termination.

8.1 Term; Termination. The term of this Agreement commences when you create an account and will remain in effect until terminated in accordance with this Agreement. You may terminate this Agreement by terminating all Cloud Services under your account, and we may terminate this Agreement for any reason by providing you 30 days’ advance notice. We may also terminate your account and this Agreement, or suspend your access to the Cloud Services, immediately if: (i) we change the way we provide or discontinue any Cloud Service; (ii) you are late in payment or otherwise in breach of this Agreement; (iii) we reasonably determine that your use of the Cloud Services poses a risk to the availability, functionality or security of the Cloud Services; (iv) we reasonably determine that your use of the Cloud Services may be unlawful; or (v) you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding. If we suspend your right to access or use any portion or all of the Cloud Services, you remain responsible for all fees and charges you have incurred during the suspension and you will not be entitled to any credit or refund. We will use commercially reasonable efforts to restore your access to the Cloud Services promptly following resolution of the cause of your suspension. We may suspend or terminate your access to or use of any Beta Offering at any time and for any reason.

8.2 Effect of Termination. Upon termination of this Agreement (i) all your rights under this Agreement immediately terminate; and (ii) you remain responsible for all fees and charges you have incurred up to and including the date of termination. We have no obligation to continue to store the data contained in backup snapshots or in a API7 Cloud that you have terminated or after termination of this Agreement.

9. Warranties.

9.1 By Each Party. Each party represents and warrants to the other that (i) it has the full power to enter into this Agreement and that this Agreement constitutes a legal, valid and binding obligation of the party, enforceable against it, and (ii) this Agreement does not contravene, violate or conflict with any other agreement of the party with any third party.

9.2 Conformity with Documentation. API7 warrants that, during the Subscription, the Cloud Services will perform materially in accordance with the applicable Documentation. In the event of a material breach of the foregoing warranty, Customer's exclusive remedy and API7's entire liability will be for Customer to request API7's assistance through the Support.

9.3 Malicious Code. API7 warrants that, to the best of its knowledge, the Cloud Services are free from, and API7 will not knowingly introduce, software viruses, worms, Trojan horses or other code, files, scripts, or agents intended to do harm.

9.4 WARRANTY DISCLAIMERS. EXCEPT FOR THE EXCLUSIVE WARRANTIES SET FORTH IN THIS SECTION 9, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE CLOUD SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, AND API7 MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH REGARDING OR RELATING TO THE CLOUD SERVICES, DOCUMENTATION OR SUPPORT SERVICES. API7 SPECIFICALLY AND EXPLICITLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, THOSE ARISING FROM A COURSE OF DEALING OR USAGE OR TRADE, AND ALL SUCH WARRANTIES ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. FURTHER, API7 DOES NOT WARRANT THE CLOUD SERVICES WILL BE ERROR-FREE OR THAT THE USE OF THE CLOUD SERVICES WILL BE UNINTERRUPTED.

10. Limitation of Liability.

We and our affiliates and licensors will not be liable to you for any indirect, incidental, special, consequential or exemplary damages (including damages for loss of profits, goodwill, use or data). We and our affiliates and licensors will not be responsible for any compensation, reimbursement or direct damages arising in connection with: (a) your inability to use the Cloud Services; (b) the cost of procurement of substitute goods or services; (c) any investments, expenditures or commitments by you in connection with this Agreement or your use of or access to the Cloud Services; or (d) any unauthorized access to, alteration of, or deletion, destruction, damage, loss or failure to store any of your content or other data. Our and our affiliates’ and licensors’ aggregate liability under this agreement will be limited to the amount you actually pay us under this agreement for the Cloud Services that gave rise to the claim during the 12 months preceding the claim.

11. Indemnification.

You will defend, indemnify, and hold harmless us, our affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable legal fees) arising out of or relating to any third party claim concerning: (a) your use of the Cloud Services (including any activities under your account and use by your employees and personnel); (b) breach of this Agreement or violation of applicable law by you; or (c) your data or the combination of your data with other applications, content or processes, including any claim involving alleged infringement or misappropriation of intellectual property rights. If we or our affiliates are obligated to respond to a third party subpoena or other compulsory legal order or process seeking information related to your data or your use of the Cloud Services, you will also reimburse us for reasonable legal fees, 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. We will promptly notify you of any claim subject to this Section, but our failure to promptly notify you will only affect your obligations to the extent that our failure materially harms your ability to defend the claim. You may: (a) use counsel of your own choosing (subject to our written consent) to defend against any claim; and (b) settle the claim as you deem appropriate, provided that you obtain our prior written consent before entering into any settlement.

12. General.

12.1 General. We and you are independent contractors, and neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other. This Agreement does not create any third party beneficiary rights in any individual or entity that is not a party to this Agreement. You will not assign this Agreement, or delegate or sublicense any of your rights under this Agreement, without our prior written consent. Our failure to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit our right to enforce such provision at a later time. If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect.

12.2 Entire Agreement. This Agreement incorporates any data processing agreement or Business Associate Agreement, and comprises the entire understanding between you and us relating to 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.

12.3 Notice. All communications and notices to be made or given pursuant to this Agreement must be in English. We may provide any notice to you under this Agreement by posting a notice on the website for the applicable Cloud Service or sending a message to the email address associated with your account. You will be deemed to have received any email sent to the email address then associated with your account when we send the email, whether or not you actually receive the email. To give us notice under this Agreement, you must email us at support@api7.ai.

12.4 Choice of Law; Consent to Jurisdiction. This Agreement will be exclusively governed by and construed in accordance with the laws of the Singapore, without reference to or application of choice of law rules or principles. The sole and exclusive jurisdiction and venue for actions arising under this Agreement will be the Singapore courts. Customer and API7 hereby consent to personal jurisdiction of such courts and waive all defenses of forum non conveniens. Notwithstanding any choice of law provision or otherwise, the Uniform Computer Information Transactions Act (UCITA) and the United Nations Convention on the International Sale of Goods will not apply.

12.5 Force Majeure. We are not liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond our reasonable control, including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.

12.6 Amendments. We may amend this Agreement at any time by posting a revised version on the site for the applicable Cloud Service or by otherwise notifying you by email. Amended terms of service become effective upon posting on the site for the applicable Cloud Service or as stated in our email notice message. By continuing to use the Cloud Services, Support or Consulting Services after the effective date of any amendment to this Agreement, you agree to be bound by the amended terms of service. Please check the site for the applicable Cloud Service regularly. We last amended this Agreement on the date listed at the beginning of this Agreement.