Adopted: September 28, 2018
This Genesis Cloud Terms of Service (the “Agreement”) is made and entered into by and between Genesis Cloud and the entity or person agreeing to these terms (the “Customer”). “Genesis Cloud” means Genesis Cloud Ltd., a company incorporated under the laws of Hong Kong, with the address of 14/F., Chun Wo Commercial Centre, 25 Wing Wo Street, Central, Hong Kong.
This Agreement is effective as of the date that the Customer clicks to accept the Agreement (the “Effective Date”). If you are accepting on behalf of the Customer, you represent and warrant that: (i) you have full legal authority to bind the Customer to this Agreement; (ii) you have read and understood this Agreement; and (iii) you agree, on behalf of the Customer, to this Agreement. If you do not have the legal authority to bind the Customer, please do not click to accept. This Agreement governs the Customer’s access to and use of the computational services, which currently includes applications and computations resources for deep learning, rendering, dedicated GPU servers, and video transcoding, offered by Genesis Cloud (the “Services”). For an offline variant of this Agreement, you may contact Genesis Cloud for more information.
During the Term, the Customer may: (i) use the Services, and (ii) use any Software provided by Genesis Cloud as part of the Services. The Customer may not sublicense or transfer these rights. Customers are restricted from registering multiple Accounts with the same billing details without consent of Genesis Cloud. Genesis Cloud shall, without notification to you, suspend Account or any other Account used by such Customer. The use of referral codes by multiple Accounts having the same billing profile is not allowed. Genesis Cloud also reserves the right to terminate a Customer's Account if it is targeted by malicious activity from other parties.
Genesis Cloud will provide Services to the Customer. As part of receiving the Services, the Customer will have access to the Dashboard through which the Customer may administer the Services. The Dashboard also provides the Customer tools to deploy the Services and Genesis Cloud infrastructure for deep learning, rendering, dedicated GPU services, video transcoding, and other applications.
The Customer must establish and maintain an Account and a Token or similar Account credential to use the Services, and is responsible for the information it provides to create the Account, the security of the Token and its passwords for the Account, and for any use of its Account and the Token. If Customer becomes aware of any unauthorized use of its password, its Account or the Token, Customer will notify Genesis Cloud as promptly as possible. Genesis Cloud has no obligation to provide Customer multiple Tokens or Accounts.
The Customer acknowledges that the Services shall be rendered on a best effort basis in accordance with the Genesis Cloud Service Level Agreement (“SLA”). The availability of the Services may vary as set forth in the SLA. Notwithstanding the aforementioned variance, Genesis Cloud shall make reasonable efforts to ensure that all facilities and the relevant supplies for providing the Services are maintained in good working order to avoid any variance with the same diligence it applies in its own dealings.
Genesis Cloud may: (i) make new applications, tools, features or functionality available from time to time through the Services; and (ii) add new services to this Section 1 (Provision of Services) from time to time, the use of which may be contingent upon the Customer’s agreement to additional terms.
Genesis Cloud may make commercially reasonable updates to Services from time to time. If Genesis Cloud makes a material change to the Services, it will inform the Customer, provided that the Customer has subscribed with Genesis Cloud to be informed of such change. Genesis Cloud may make changes to this Agreement, and any linked documents, from time to time. Unless otherwise noted, material changes to the Agreement will become effective five (5) days after they are posted, except if the changes apply to new functionality in which case they will be effective immediately. Genesis Cloud will provide at least five (5) days’ advance notice for materially adverse changes to any SLA by either: (i) sending an email to the Customer’s primary point of contact; (ii) posting a notice in the Dashboard; or (iii) posting a notice to the applicable Service Level Agreement or the Customer Support webpage. Genesis Cloud will post any modification to this Agreement to its website.
The Customer shall pay a per-time rate for usage of the service, with a minimum fee applicable. The billing can be service based on a monthly, hourly as well as minute or second wise basis. Which billing applies depends on the service used. Please visit the Genesis Cloud pricing page for more information on billing. Except as otherwise noted, our prices are exclusive of applicable taxes and duties, including value added tax (“VAT”) and applicable sales tax.
The Customer is responsible for any taxes, and the Customer will pay Genesis Cloud for Services without any reduction for taxes. If Genesis Cloud is obligated to collect or pay Taxes, Taxes will be invoiced to the Customer, unless the Customer provides Genesis Cloud with a timely and valid tax exemption certificate authorized by the appropriate taxing authority. In some countries, states, and provinces, the sales tax is due on the total purchase price at the time of sale and must be invoiced and collected at the time of the sale. If the Customer is required by law to withhold any taxes from its payments to Genesis Cloud, the Customer must provide Genesis Cloud with an official tax receipt or other appropriate documentation to support such withholding. If under the applicable tax legislation, the Services are subject to local VAT and the Customer is required to make a withholding of local VAT from amounts payable to Genesis Cloud, the value of the Services calculated in accordance with the above procedure will be increased (grossed up) by the Customer for the respective amount of local VAT and the grossed-up amount will be regarded as a VAT inclusive price. Local VAT amount withheld from the VAT-inclusive price will be remitted to the applicable local tax entity by the Customer and the Customer will ensure that Genesis Cloud will receives payment for its services for the net amount as would otherwise be due (the VAT-inclusive price less the local VAT withheld and remitted to applicable tax authority). If required under applicable law, the Customer will provide Genesis Cloud with applicable tax identification information that Genesis Cloud may require to ensure its compliance with applicable tax regulations and authorities in applicable jurisdictions. The Customer will be liable to pay (or reimburse Genesis Cloud for) any taxes, interest, penalties or fines arising out of any mis-declaration by the Customer.
Any invoice disputes must be submitted prior to the payment due date. If the parties determine that certain billing inaccuracies are attributable to Genesis Cloud, Genesis Cloud will not issue a corrected invoice, but will instead issue a credit memo specifying the incorrect amount in the affected invoice. If the disputed invoice has not yet been paid, Genesis Cloud will apply the credit memo amount to the disputed invoice and Customer will be responsible for paying the resulting net balance due on that invoice. To the fullest extent permitted by law, Customer waives all claims relating to Fees unless claimed within sixty days after charged (this does not affect any Customer rights with its credit card issuer). Refunds (if any) are at the discretion of Genesis Cloud and will only be in the form of credit for the Services. Nothing in this Agreement obligates Genesis Cloud to extend credit to any party.
Late payments may bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. The Customer will be responsible for all reasonable expenses (including attorneys’ fees) incurred by Genesis Cloud in collecting such delinquent amounts. If the Customer is late on payment for the Services, Genesis Cloud may suspend the Services or terminate the Agreement for breach pursuant to Section 9.
The Customer is solely responsible for its applications, projects, and customer data and for making sure its applications, projects, and customer data comply with the Genesis Cloud Acceptable Use Policy (“AUP”) set forth in this Section 3.1. Genesis Cloud reserves the right to review the application, project, and customer data for compliance with the AUP. The Customer is responsible for ensuring all customer end users comply with Customer’s obligations under the AUP and the restrictions in Sections 3.3 and 3.5 below. Customer agrees not to, and not to allow third parties to use the Services to violate, or encourage the violation of, the legal rights of others (for example, this may include allowing Customer End Users to infringe or misappropriate the intellectual property rights of others in violation of the Digital Millennium Copyright Act); to engage in, promote or encourage illegal activity; for any unlawful, invasive, infringing, defamatory or fraudulent purpose (for example, this may include phishing, creating a pyramid scheme or mirroring a website); for any unlawful, invasive, infringing, defamatory or fraudulent purpose (for example, this may include phishing, creating a pyramid scheme or mirroring a website); to intentionally distribute viruses, worms, Trojan horses, corrupted files, hoaxes, or other items of a destructive or deceptive nature; to interfere with the use of the Services, or the equipment used to provide the Services, by customers, authorized resellers, or other authorized users; to disable, interfere with or circumvent any aspect of the Services; to generate, distribute, publish or facilitate unsolicited mass email, promotions, advertisings or other solicitations (“spam”); or to use the Services, or any interfaces provided with the Services, to access any other Genesis Cloud or Genesis Group product or service in a manner that violates the terms of service of such other Genesis Cloud or Genesis Group product or service.
Customer will obtain and maintain any required consents necessary to permit the processing of Customer Data under this Agreement.
Customer will not, and will not allow third parties under its control to: (a) copy, modify, create a derivative work of, reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract any or all of the source code of the Services (subject to Section 3.4 below and except to the extent such restriction is expressly prohibited by applicable law); (b) use the Services for High Risk Activities; (c) sublicense, resell, or distribute any or all of the Services separate from any integrated Application; (d) create multiple Applications, Accounts, or Projects to simulate or act as a single Application, Account, or Project (respectively) or otherwise access the Services in a manner intended to avoid incurring Fees; (e) unless otherwise set forth in the Service Specific Terms, use the Services to operate or enable any telecommunications service or in connection with any application that allows Customer end users to place calls or to receive calls from any public switched telephone network; or (f) process or store any customer data that is subject to the International Traffic in Arms Regulations maintained by the U.S. Department of State. Unless otherwise specified in writing by Genesis Cloud, Genesis Cloud does not intend uses of the Services to create obligations under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), and makes no representations that the Services satisfy HIPAA requirements. If Customer is (or becomes) a Covered Entity or Business Associate, as defined in HIPAA, Customer will not use the Services for any purpose or in any manner involving Protected Health Information (as defined in HIPAA) unless Customer has received prior written consent to such use from Genesis Cloud.
Registration is required to use the Services (an “Account”). You must provide accurate and complete information and keep your Account information updated. You are solely responsible for the activity that occurs on your Account, regardless of whether the activities are undertaken by you, your employees, or a third party (including your contractors or agents), and for keeping your Account password secure. You must notify us immediately of the breach of security or unauthorized use of your Account. Failure to comply with these requirements shall constitute a material breach of the Agreement and your account shall be immediately terminated.
For purposes of the Agreement, the term “Content” includes, without limitation, information, data, text, written posts and comments, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible on or through the Services. All Content added, created, uploaded, submitted, distributed, or posted to the Services by users (“User Content”), whether publicly posted or privately transmitted, is at the sole responsibility and discretion of the person who originated such User Content. You represent that all User Content provided by you is in compliance with all applicable laws, policies, and regulations including but not limited to Privacy Law and Intellectual Property Laws. You agree that all Content, including User Content, uploaded or accessed by you using the Services is at your own risk and you will be solely responsible for any damage or loss to you or any other party resulting therefrom.
Customers may not use the Services in violation of the copyrights, trademarks, patents, or trade secrets of third parties, nor shall they utilize the Services to publish such materials in a manner that would expose them to public view in violation of the law. The provisions of the Digital Millennium Copyright Act of 1998 (“DMCA”) (as required under 17 U.S.C. §512) and all other applicable international trademark, copyright, patent, or other intellectual property laws will apply to issues presented by allegations of copyright violations by third parties. Genesis Cloud will, in appropriate circumstances, terminate the accounts of repeat violators. If a third party believes that a Genesis Cloud Customer is violating its intellectual property rights, it should notify us by email at Support@GenesisCloud.com. A notification should include information reasonably sufficient to permit Genesis Cloud to locate the allegedly infringing material, such as the IP address or URL of the specific online location where the alleged infringement is occurring. Customer shall abide by and maintain all copyright notices, information, and restrictions contained in any Content accessed through the Services. Subject to the Agreement, we grant each user of a worldwide, non-exclusive, revocable, non-sublicensable, and non-transferable license to use the Services. Use, reproduction, modification, distribution, or storage of any Content for other than purposes of using the Services is expressly prohibited.
We also reserve the right to access, read, preserve, and disclose any information we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process, or governmental request, (ii) enforce the Agreement, including investigation of potential violations, (iii) detect, prevent, or otherwise address fraud, security, or technical issues, (iv) respond to user support requests, (v) protect the rights, property, or safety of us, our users, and the public, or (vi) improve and/or maintain the Service. Genesis Cloud shall take any action necessary to protect the Services, Customers, and third parties.
Customers must comply with, and refrain from violations of, any right of any other person, entity, law, or contractual duty, and including and without limitation to those laws forbidding: (a) distribution of child pornography, (b) forgery, identity theft, misdirection, or interference with electronic communications, (c) invasion of privacy, (d) unlawful sending of commercial electronic messages or other marketing or electronic communications, (e) collection of excessive user data from children, or other improper data collection activities, (f) securities violations, wire fraud, money laundering, or terrorist activities, or (f) false advertising, propagating or profiting from frauds and unfair schemes. Customers will also comply with the affirmative requirements of law governing use of the Services, including but not limited to: (i) disclosure requirements, including those regarding notification of security breaches, (ii) records maintenance for regulated industries, and (iii) financial institution safeguards.
Each Customer will be assigned with a unique IP address. Customers shall use only those IP addresses that are assigned to them by Genesis Cloud, and shall not use any IP addresses outside of their assigned range. Customers shall not use any mechanism to exceed the amount of resources assigned to them through the Services, or to conceal such activities.
Customers shall not send bulk email utilizing their resources on the Services. Customers shall comply with all laws regarding the sending of commercial electronic messages or other marketing or electronic communications. Customers are forbidden from taking any action that would result in their IP addresses, or any IP address associated with Genesis Cloud or other Customers, being placed on the Spamhaus.org blacklist. Genesis Cloud reserves the sole and absolute right to determine whether an email violation has occurred.
Customer shall comply with all applicable export and import control laws and regulations in its use of the Services, and, in particular, Customer shall not utilize the Services to export or re-export data or software without all required government licenses. Customer assumes full legal responsibility for any access and use of the Services from outside the governing region of the datacenter, with full understanding that the same may constitute export of technology and technical data that may implicate export regulations and/or require export license. Should such a license be required, it shall be Customer's responsibility to obtain the same, at Customer's sole cost and expense, and in the event of any breach of this duty resulting in legal claims against Genesis Cloud, Customer shall defend, indemnify, and hold Genesis Cloud harmless from all claims and damages arising therefrom.
Customers shall utilize proper security protocols, such as setting strong passwords and access control mechanisms, safeguarding access to all logins and passwords.
Customers shall notify Genesis Cloud if and when they learn of any security breaches regarding the Services, and shall aid in any investigation or legal action that is taken by authorities and/or Genesis Cloud to cure the security breach.
Customer is solely responsible for the preservation of Customer's data, which Customer saves onto its virtual server (the “Data”). Even with respect to data as to which customer contracts for backup services provided by Genesis Cloud, to the extent permitted by applicable law, Genesis Cloud shall have no responsibility to preserve data. Genesis Cloud shall have no liability for nay data that may be lost, or unrecoverable, by reason of customer’s failure to backup its data or any other reason.
The Services may permit you to link to other websites, services or resources on the Internet, and other websites, services or resources may contain links to the Services. When you access third party resources on the Internet, you do so at your own risk. These other resources are not under our control, and you acknowledge that we are not responsible or liable for the content, functions, accuracy, legality, appropriateness, or any other aspect of such websites or resources. The inclusion of any such link does not imply our endorsement or any association between their operators and us. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods, or services available on or through any such website or resource. It is your responsibility to protect your system from items such as viruses, worms, Trojan horses, and other items of a destructive nature.
Except as expressly set forth in this Agreement, this Agreement does not grant either party any rights, implied or otherwise, to the other’s content or any of the other’s intellectual property. As between the parties, the Customer owns all intellectual property rights in customer data and the application or project (if applicable), and Genesis Cloud owns all intellectual property rights in the Services and software.
If Customer provides Genesis Cloud comments, suggestions, or materials sent or transmitted (collectively, “Feedback”) about the Services, then Genesis Cloud may use that information without obligation to Customer, and Customer hereby irrevocably assigns to Genesis Cloud all right, title, and interest in that Feedback.
Customer may not publicly disclose directly or through a third party the results of any comparative or compatibility testing, benchmarking, or evaluation (each, a “Test”) of the Services, unless the disclosure includes all information necessary for Genesis Cloud or a third party to replicate the Test. If Customer conducts, or directs a third party to conduct, a Test of the Services and publicly discloses the results directly or through a third party, then Genesis Cloud (or a Genesis Cloud-directed third party) may conduct Tests of any publicly available products or services provided by Customer and publicly disclose the results of any such Test (which disclosure will include all information necessary for Customer or a third party to replicate the Test).
The recipient will not disclose the confidential information, except to affiliates, employees, agents or professional advisors who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential. The recipient will ensure that those people and entities use the received Confidential Information only to exercise rights and fulfill obligations under this Agreement, while using reasonable care to keep it confidential.
Notwithstanding any provision to the contrary in this Agreement, the recipient may also disclose Confidential Information to the extent required by applicable Legal Process; provided that the recipient uses commercially reasonable efforts to: (i) promptly notify the other party of such disclosure before disclosing; and (ii) comply with the other party’s reasonable requests regarding its efforts to oppose the disclosure. Notwithstanding the foregoing, subsections (i) and (ii) above will not apply if the recipient determines that complying with (i) and (ii) could: (a) result in a violation of Legal Process; (b) obstruct a governmental investigation; and/or (c) lead to death or serious physical harm to an individual. As between the parties, Customer is responsible for responding to all third-party requests concerning its use and Customer end users’ use of the Services.
The “Term” of this Agreement will begin on the Effective Date and continue until the Agreement is terminated as set forth in Section 9 of this Agreement.
Either party may terminate this Agreement for breach if: (i) the other party is in material breach of the Agreement and fails to cure that breach within thirty days after receipt of written notice; (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety days; or (iii) the other party is in material breach of this Agreement more than two times notwithstanding any cure of such breaches. In addition, Genesis Cloud may terminate any, all, or any portion of the Services, if Customer meets any of the conditions in Section 9.2(i), (ii), and/or (iii).
Genesis Cloud reserves the right to terminate the provision of the Service(s) to Customer upon 30 days advance notice if, for a period of 60 days (i) Customer has not accessed the Darshboard; and (ii) such Project has not incurred any Fees for such Service(s)
Customer may stop using the Services at any time. Customer may terminate this Agreement for its convenience at any time on prior written notice and upon termination, must cease use of the applicable Services. Genesis Cloud may terminate this Agreement for its convenience at any time without liability to Customer.
If the Agreement is terminated, then: (i) the rights granted by one party to the other will immediately cease; (ii) all Fees owed by Customer to Genesis Cloud are immediately due upon receipt of the final electronic bill; and (ii) upon request, each party will use commercially reasonable efforts to return or destroy all Confidential Information of the other party.
Each Customer is permitted to state publicly that it is a customer of the Services, consistent with the Trademark Guidelines. If Customer wants to display Genesis Cloud’s Brand Features in connection with its use of the Services, Customer must obtain written permission from Genesis Cloud through the process specified in the Trademark Guidelines. Brand Features means the trade names, trademarks, service marks, logos, domain names, and other distinctive Brand Features of each party, respectively, as secured by such party from time to time. Genesis Cloud may include Customer’s name or Brand Features in a list of Genesis Cloud’s customers, online or in promotional materials. Genesis Cloud may also verbally reference Customer as a customer of the Services. Neither party needs approval if it is repeating a public statement that is substantially similar to a previously-approved public statement. Any use of a party’s Brand Features will inure to the benefit of the party holding intellectual property rights to those Brand Features. A party may revoke the other party’s right to use its Brand Features under this Section with written notice to the other party and a reasonable period to stop the use.
EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GENESIS CLOUD AND ITS SUPPLIERS DO NOT MAKE ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NONINFRINGEMENT. GENESIS CLOUD AND ITS SUPPLIERS ARE NOT RESPONSIBLE OR LIABLE FOR THE DELETION OF OR FAILURE TO STORE ANY CUSTOMER DATA AND OTHER COMMUNICATIONS MAINTAINED OR TRANSMITTED THROUGH USE OF THE SERVICES. CUSTOMER IS SOLELY RESPONSIBLE FOR SECURING AND BACKING UP ITS APPLICATION, PROJECT, AND CUSTOMER DATA. NEITHER GENESIS CLOUD NOR ITS SUPPLIERS, WARRANTS THAT THE OPERATION OF THE SOFTWARE OR THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED. NEITHER THE SOFTWARE NOR THE SERVICES ARE DESIGNED, MANUFACTURED, OR INTENDED FOR HIGH RISK ACTIVITIES.
IN NO EVENT SHALL WE, NOR OUR DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SERVICES (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, COMPENSATORY OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) OF FEES PAID TO US FOR THE PARTICULAR SERVICES DURING THE IMMEDIATELY PREVIOUS ONE MONTH PERIOD, EVEN IF Genesis Cloud HAD BEEN ADVISED OF, KNEW, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY THEREOF. CUSTOMER ACKNOWLEDGES THAT THE FEES PAID BY HIM OR HER REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT GENESIS CLOUD WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS. CUSTOMER HEREBY WAIVES ANY AND ALL CLAIMS AGAINST Genesis Cloud ARISING OUT OF CUSTOMER'S PURCHASE OR USE OF THE SERVICES, OR ANY CONDUCT OF GENESIS CLOUD'S DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR REPRESENTATIVES. YOUR SOLE AND EXCLUSIVE RIGHT AND REMEDY IN CASE OF DISSATISFACTION WITH THE SERVICES OR ANY OTHER GRIEVANCE SHALL BE YOUR TERMINATION AND DISCONTINUATION OF ACCESS TO OR USE OF THE SERVICES. IN ADDITION, YOU AGREE THAT GENESIS CLOUD IS NOT RESPONSIBLE FOR ANY DATA COMPILED BY OUR SERVICES AND THAT GENESIS CLOUD WILL NOT BE LIABLE, IN ANY MANNER, AS A RESULT OF YOUR EXPOSURE TO ANY DEFAMATORY, LIBELOUS, THREATENING, UNLAWFULLY HARASSING, OBSCENE OR OTHERWISE UNLAWFUL CONTENT OR DATA. IN NO EVENT SHALL GENESIS CLOUD, OR ANY THIRD PARTY PROVIDER OF ANY COMPONENT OF THE SERVICES OR OF ANY INFORMATION DELIVERED AS PART OF THE SERVICES, BE LIABLE TO YOU AND/OR ANY PARTY FOR ANY DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL, OR SIMILAR DAMAGES ARISING OUT OF OR RELATED TO THE SERVICES, CONTENT, PRODUCTS, THE USE OR INABILITY TO USE THIS WEBSITE, OR ANY LINKED WEBSITE, INCLUDING AND WITHOUT LIMITATION TO, LOST PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, OR OTHER ECONOMIC LOSSES, LOSS OF PROGRAMS OR OTHER DATA, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, OR OTHER TORTIOUS ACTION, EVEN IF GENESIS CLOUD IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING LIABILITY ASSOCIATED WITH ANY VIRUSES WHICH MAY INFECT YOUR COMPUTER EQUIPMENT.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER GENESIS CLOUD, NOR GENESIS CLOUD’S SUPPLIERS, MAY BE HELD LIABLE UNDER THIS AGREEMENT FOR MORE THAN THE AMOUNT PAID BY CUSTOMER TO GENESIS CLOUD UNDER THIS AGREEMENT DURING THE ONE MONTH PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
These limitations of liability do not apply to violations of a party’s intellectual property rights by the other party, indemnification obligations, or Customer's payment obligations.
YOU SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS GENESIS CLOUD, ITS AFFILIATES, PARENTS, SUBSIDIARIES, ANY RELATED COMPANIES, LICENSORS AND PARTNERS, AND EACH OF OUR AND THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, CONTRACTORS, DIRECTORS, SUPPLIERS AND REPRESENTATIVES FROM ALL LIABILITIES, CLAIMS, AND EXPENSES, INCLUDING REASONABLE ATTORNEYS' FEES, THAT ARISE FROM OR RELATE TO YOUR (OR ANY THIRD PARTY USING YOUR ACCOUNT OR IDENTITY IN THE SERVICES) USE OR MISUSE OF, OR ACCESS TO THE SERVICES, CONTENT, OR OTHERWISE FROM YOUR USER CONTENT, VIOLATION OF THE AGREEMENT OR OF ANY LAW, OR INFRINGEMENT OF ANY INTELLECTUAL PROPERTY OR OTHER RIGHT OF ANY PERSON OR ENTITY. GENESIS CLOUD RESERVE THE RIGHT TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU, IN WHICH EVENT YOU WILL ASSIST AND COOPERATE WITH US IN ASSERTING ANY AVAILABLE DEFENSES.
Genesis Cloud uses third-party services and such third party’s affiliates services to enable the Customer to provide the Fee and perform transfer of payments within the Genesis Cloud website of by making use of the Customers existing credit card (as and if available and applicable) (the “Credit Card Services” and the “Credit Card Service Provider”). The following provisions under this Section 12 only apply to the extent the Services are paid by credit card. Genesis Cloud accepts major credit cards. Please note that any payment terms presented by your credit card provider to you in the process of using or signing up for paid Services are deemed part of this Agreement.
Genesis Cloud may share and transfer (including cross border transfer) personal information with the Credit Card Service Provider for the purpose of rendering the Credit Card Services which will be made to Service Providers website via the use of the Customers credit card. The personal information will be shared with the Credit Card Service Provider after the Customer elects to execute such monetary payments by using the Credit Card Services of the Credit Card Service Provider. For the purpose of this Section 12, personal information shall include information that identifies or may identify the Customer including the information submitted by the Customer through the registration form when you subscribe to the website such as the Customer’s email address, country and city and/or information provided through social websites or any other identifying information provided by the Customer while using the Services of the Service Providers website. In addition, Genesis Cloud may transfer any non-personal information provided by the Customer through the Customers use of the Services on the Service Providers website to the Credit Card Service Provider in order to allow the Credit Card Service Provider to perform preliminary examinations of non-personal information for the purpose of determining if the Customer is qualified to use the Credit Card Services of such Credit Card Service Provider (including the history of the Customer’s transactions on the website which will be provided without any identifying information and solely for the purpose examinations of the Credit Card Service Provider.
By accepting these terms, the Customer represents that any and all information the Customer provides to Genesis Cloud and Credit Card Service Provider is true and accurate. The Customer is not obligated by law to provide the Service Provider and/or the Credit Card Service Provider with any personal information. The Customer hereby acknowledges and agrees that the Customer is providing Genesis Cloud and/or the Credit Card Service Provider with personal information at the Customer’s own free will and for purposes of obtaining the Services.
In the event that the Customer initiates a chargeback dispute, the Services shall be suspended and the Customer shall not receive any Services, regardless of the outcome and disposition of the chargeback dispute.
The Customer will not assign or otherwise transfer this Agreement or any of the Customer’s rights and obligations under this Agreement, without the prior written consent of Genesis Cloud, which may be unreasonably withheld. Any assignment or transfer in violation of this Section 13.1 will be void. In addition, the Customer shall be the beneficial owner of any cryptocurrencies generated and/or received as a result of the Customer’s use of the Services under this Agreement. Genesis Cloud may assign this Agreement without the Customer’s consent (i) in connection with a merger, acquisition or sale of all or substantially all of our assets, or (ii) to any Affiliate or as part of a corporate reorganization; and effective upon such assignment, the assignee is deemed substituted for Genesis Cloud as a party to this Agreement and Genesis Cloud is fully released from all of its obligations and duties to perform under this Agreement. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective permitted successors and assigns. The Customer may not merge this Agreement with any other agreements with Genesis Cloud it may be party to.
If a Customer experiences a change of Control (for example, through a stock purchase or sale, merger, or other form of corporate transaction): (i) the Customer will give written notice to the other party within thirty days after the change of Control; and (ii) Genesis Cloud may immediately terminate this Agreement any time between the change of Control and thirty days after it receives that written notice.
Any dispute, controversy, difference or claim arising out of or relating to this Agreement or relating in any way to the Customer’s use of the Service, including the existence, validity, interpretation, performance, breach or termination thereof or any dispute regarding non-contractual obligations arising out of or relating to the Agreement shall be referred to and finally resolved by arbitration administered by the Hong Kong International Arbitration Centre (HKIAC) under the HKIAC Arbitration Rules in force when the Notice of Arbitration is submitted. If for any reason a claim proceeds in court rather than in arbitration, Genesis Cloud and the Customer waive any right to a jury trial. Notwithstanding the foregoing Genesis Cloud and the Customer agree that Genesis Cloud may bring suit in court to enjoin infringement or other misuse of Genesis Cloud’s intellectual property rights. The law of this arbitration clause shall be Hong Kong law.
This Agreement sets out all terms agreed between the parties and supersedes all other agreements between the parties relating to its subject matter. In entering into this Agreement, neither party has relied on, and neither party will have any right or remedy based on, any statement, representation or warranty (whether made negligently or innocently), except those expressly set out in this Agreement. The terms located at a URL referenced in this Agreement and the Documentation are incorporated by reference into the Agreement. After the Effective Date, Genesis Cloud may provide an updated URL in place of any URL in this Agreement.
Genesis Cloud and its affiliates will not be liable for any failure or delay in performance of obligation under this Agreement where the failures or delay results from any cause beyond our reasonable control, including, but not limited to, acts of God, labor disputes or other industrial disturbances, electrical or power outages, utilities or other telecommunications failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
All claims arising out of or relating to this Agreement or the Services will be governed by the laws of Hong Kong, excluding the Country’s conflicts of laws rules, and will be litigated exclusively in the courts of the Hong Kong. The Customer and Genesis Cloud consent to personal jurisdiction in those courts. The 1980 United Nations Convention on Contracts for the International Sale of Goods does not govern this Agreement.
All communications and notices made or given pursuant to this Agreement must be in the English language. If we provide a translation of the English language version of this Agreement, the English language version of the Agreement will control if there is any conflict.
This Agreement does not create any agency, partnership or joint venture between Genesis Cloud and the Customer.
Genesis Cloud may provide any notice to the Customer under this Agreement by: (i) posting a notice on the Genesis Cloud website; or (ii) sending a message to the email address then associated with the Customer’s account. Notices we provide by posting on the Genesis Cloud website will be effective upon posting and notices we provide by email will be effective when we send the email. It is the Customer’s responsibility to keep the Customer’s email address current. The Customer will be deemed to have received any email sent to the email address then associated with the Customer’s account when Genesis Cloud sends the email, whether or not the Customer actually receive the email.
To give us notice under this Agreement, the Customer must contact Genesis Cloud by personal delivery, overnight courier or registered or certified mail to the mailing address listed for the applicable Genesis Cloud entity on the Genesis Cloud website or 14/F., Chun Wo Commercial Centre, 25 Wing Wo Street, Central, Hong Kong. We may update the address for notices to us by posting a notice on the Genesis Cloud website. Notices provided by personal delivery will be effective immediately. Notices provided by overnight courier will be effective one business day after they are sent. Notices provided registered or certified mail will be effective five business days after they are sent.
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. Any invalid or unenforceable portions will be interpreted to effect and intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement but the rest of the Agreement will remain in full force and effect.
The section and paragraph headings in the Agreement are for convenience only and shall not affect their interpretation.
Unless otherwise specified in the Agreement, all notices under the Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Electronic notices should be sent to support@GenesisCloud.com.
Any claim arising hereunder shall be construed in accordance with the substantive and procedural law of Hong Kong, without regard to principles of conflict of laws. You agree that the exclusive jurisdiction and venue of the state and Federal courts of Hong Kong governs any dispute arising from or relating to the subject matter of the Agreement. Customer consents to service of process via email at the email address(es) provided by Customer, and waives any requirement under the Hague Convention or other judicial treaty requiring that legal process be translated into any language other than English.
This Section 14 describes the additional terms and conditions under which you may access and use certain features, technologies and services made available to you by Genesis Cloud that are not yet generally available, including, but not limited to, any products, services, or features labeled “beta”, “alpha”, “preview”, “pre-release”, or “experimental” (each, a “Beta Service”) or access and use Services available in Genesis Cloud regions that are not generally available, including, but not limited to, any Genesis Cloud regions identified by Genesis Cloud as “beta”, “alpha”, “preview”, “pre-release”, or “experimental” (each, a “Beta Region”). In the event there is a conflict between the terms of this Section 14 and an existing Genesis Cloud Beta Test Participation Agreement between you and Genesis Cloud, the terms of the existing Genesis Cloud Beta Test Participation Agreement will take precedence.
During the term of the applicable Beta Service or Beta Region (as specified by Genesis Cloud), you may: (a) access and use the Beta Service or Services in any Beta Region solely for internal evaluation purposes; and (b) install, copy, and use any related Genesis Cloud Content that may be provided to you by Genesis Cloud in connection with the Beta Service or Services in any Beta Region (“Beta Materials”) solely as necessary to access and use the Beta Service or Services in any Beta Region in the manner permitted by this Section 14. You agree not to allow access to or use of any Beta Service, Services in any Beta Region or Beta Materials by any third party other than your employees and contractors who (i) have a need to use or access the Beta Service, Services in the Beta Region or Beta Materials in connection with your internal evaluation activities, and (ii) have executed written non-disclosure agreements obligating them to protect the confidentiality of non-public information regarding the Beta Service, Beta Region and Beta Materials.
Genesis Cloud may suspend or terminate your access to or use of any Beta Service or Services in any Beta Region at any time and for any reason. Genesis Cloud may at any time cease providing any or all of any Beta Service or any Services in a Beta Region in its sole discretion and without notice. Beta Services and Services Offerings in Beta Regions also may be unavailable and/or their performance may be negatively affected by scheduled and unscheduled maintenance. Genesis Cloud will use reasonable efforts to notify you in advance of scheduled maintenance, but Genesis Cloud is unable to provide advance notice of unscheduled or emergency maintenance.
In consideration of being allowed to access and use a Beta Service or Services in a Beta Region, you agree to provide Genesis Cloud with information relating to your access, use, testing, or evaluation of the Beta Service, Services in the Beta Region or any related Beta Materials, including observations or information regarding the performance, features and functionality of the Beta Service or any related Beta Materials as applicable, when and in the form reasonably requested by Genesis Cloud (“Test Observations”). Genesis Cloud will own and may use and evaluate all Test Observations for its own purposes. You will not use any Test Observations except for your internal evaluation purposes of the Beta Service or Beta Region.
Each individual Beta Service and Services in a Beta Region will automatically terminate upon the release of a generally available version of the applicable Beta Service or Services in a Beta Region or upon notice of termination by Genesis Cloud. Notwithstanding anything to the contrary in the Agreement or these Services Terms, either you or Genesis Cloud may terminate your participation in a Beta Service or Services in a Beta Region at any time for any reason upon notice to the other party. Notwithstanding anything to the contrary in the Agreement, after the conclusion of your participation in a Beta Service or Services in a Beta Region for any reason, (a) you will not have any further right to access or use the applicable Beta Service or Services in the Beta Region and Beta Materials; (b) your Content used in the applicable Beta Service or Services in the Beta Region may be deleted or inaccessible; and (c) you will immediately return or, if instructed by Genesis Cloud, destroy all Beta Materials or any other Genesis Cloud Confidential Information related to the applicable Beta Service, Services in any Beta Region or Beta Materials. If Genesis Cloud releases a generally available version of a Beta Service or a Services in a Beta Region, your access to and use of the generally available version will be subject to the Agreement and any separate section of these Terms of Service as may be specified for that generally available Services. If any Beta Region becomes generally available, your access to and use of Services in the generally available Genesis Cloud region will be subject to the terms and conditions applicable to that Genesis Cloud region. Genesis Cloud does not guarantee that any Beta Service or Services in any Beta Region will ever be made generally available, or that any generally available version will contain the same or similar functionality as the version made available by Genesis Cloud during the term of the Beta Service or Beta Region, as applicable. Genesis Cloud does not guarantee that any Beta Region will become generally available.
Beta Materials, Test Observations, Suggestions concerning a Beta Service or Beta Region, or any other information about or involving (including the existence of) any Beta Service or Beta Region are considered Genesis Cloud Confidential Information. You will not disclose (including, but not limited to, in a press release or public statement) any Beta Materials, Test Observations, Suggestions concerning a Beta Service, or any other information about or involving (including the existence of) any Beta Service, except as agreed by Genesis Cloud in writing.
WITHOUT LIMITING ANY DISCLAIMERS IN THE AGREEMENT OR THE TERMS OF SERVICE, THE BETA SERVICES, SERVICES IN BETA REGIONS, BETA REGIONS AND BETA MATERIALS ARE NOT READY FOR GENERAL COMMERCIAL RELEASE AND MAY CONTAIN BUGS, ERRORS, DEFECTS OR HARMFUL COMPONENTS. ACCORDINGLY, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT OR THESE SERVICES TERMS, GENESIS CLOUD IS PROVIDING THE BETA SERVICES, SERVICES IN BETA REGIONS AND BETA MATERIALS TO YOU “AS IS.” GENESIS CLOUD AND ITS AFFILIATES AND LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE BETA SERVICES, SERVICES IN BETA REGIONS, BETA REGIONS AND BETA MATERIALS, INCLUDING ANY WARRANTY THAT THE BETA SERVICES, SERVICES IN BETA REGIONS, BETA REGIONS AND BETA MATERIALS WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, OR THAT ANY CONTENT, INCLUDING YOUR CONTENT, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. EXCEPT TO THE EXTENT PROHIBITED BY LAW, GENESIS CLOUD AND ITS AFFILIATES AND LICENSORS DISCLAIM 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. GENESIS CLOUD’S AND ITS AFFILIATES’ AND LICENSORS’ AGGREGATE LIABILITY FOR ANY BETA SERVICES WILL BE LIMITED TO THE AMOUNT YOU ACTUALLY PAY US UNDER THIS AGREEMENT FOR THE BETA SERVICES THAT GAVE RISE TO THE CLAIM DURING THE 12 MONTHS PRECEDING THE CLAIM.
Because the Beta Services and Materials involve features, technologies and services that are not yet generally available, you acknowledge that any violation of this Section could cause irreparable harm to Genesis Cloud for which monetary damages may be difficult to ascertain or an inadequate remedy. You therefore agree that Genesis Cloud will have the right, in addition to its other rights and remedies, to seek injunctive relief for any violation of this Section.
You may perform benchmarks or comparative tests or evaluations (each, a “Benchmark Test”) of the Services; provided, however, that you may not, and may not direct or permit third-parties to, disclose results or data produced from any Benchmark Test of a Services, unless: (a) such disclosure includes all information necessary for us or any third-party to completely and accurately replicate the Benchmark Test; (b) you permit us to perform Benchmark Tests of your products or services and to disclose results or data produced from such Benchmark Tests, provided that such disclosure includes all information necessary for you or any third-party to completely and accurately replicate the Benchmark test; and (c) if you perform a Benchmark Test for a third-party, directly or indirectly, in exchange for consideration, you will identify the third-party and you represent and warrant that you have procured all rights necessary for us to perform Benchmark Tests of the third-party’s products or services and to disclose results or data produced from such Benchmark Tests.