Terms of Service Agreement for Ace Public Cloud
The use of Ace Products or Services are provided by Ace through a set digitally-executed agreement. Where these terms and conditions are translated into a language other than English, the English text shall prevail.
WHEN YOU CLICK “I AGREE”, CHECK A BOX, OR OTHERWISE PROVIDE CONSENT DURING THE ORDERING OR REGISTRATION PROCESS, YOU AND WE ARE AGREEING TO BE BOUND BY THIS AGREEMENT TO THE SAME EXTENT AS IF YOU AND WE HAD MANUALLY EXECUTED A PAPER COPY OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, YOU SHOULD NOT PROCEED WITH THE REGISTRATION PROCESS OR ORDER OR PURCHASE THE SERVICES.
1.1. “Client” shall mean a person, Association of Persons (AOP), company that obtains Services from Ace.
1.2. “End User” or “User” shall mean an individual who: (a) is an employee, owner or individual contractor of a Client; (b) accesses and uses the software via Ace’s co-located secure data center and hosting platform; and (c) maintains an individual valid license for each instance of the software s/he accesses and uses – as well as a unique log-in identity and credentials (username and password) supplied by Ace to securely access Ace’s servers and thereby his or her respective assigned instance(s) of the software. All Users shall be bound by the terms of this Agreement.
1.3. “Outage” or “Downtime” means when a User is unable to access Ace Services while having a healthy internet connection and a healthy device to access from its local end. The User must use the correct username and password, and the correct connector application. The downtime will be the time when such an event was reported and shall continue until Ace is able to offer a resolution.
1.4. “Systems” is the computer equipment and software that is approved by Ace and used by User and contains the Users data and applications with industry standard data security including data backup and password protection for authorized access.
The terms and conditions set forth herein constitute the full and complete agreement between the aforementioned parties – Ace and YOU. You have subscribed for the service(s) and is executing this Agreement after having satisfied itself of the service(s) during the trial and/or otherwise.
3. Application and Acceptance of the terms
3.1. Your use of the Ace Public Cloud Services (“Services”) hereinafter, is dependent on their terms and conditions provided, as well as those in the following (collectively, the “terms”):
(a) Ace Product terms of Service
(c) Any other web page or service agreements and policies as agreed and published on the Ace Platform occasionally
3.2. By accessing the Ace or by utilizing the Services, you agree to be bound by the terms and accept that Ace may modify any terms at any moment by posting the corresponding modified and restated terms on the Ace Site.
3.3. If there is any inconsistency between the terms and the Agreements, the Agreements shall outweigh the terms only in conjunction with the portion of the Services. Thereon, you may need to enter into a different agreement or concur to any other terms and conditions, be it online or offline, with Ace Services, its associates, or third parties for the Ace Services.
3.4. Ace Services hereby have the right to allot any portion of the terms (including any of the rights, benefits, titles, obligations, and interests and duties in this Agreement’s terms) to any individual or entity. Ace can make replacement of the terms or any part, and you hereby unconditionally agree and consent to any such changes, when notified about it.
3.5. In conjunction with any other terms and conditions of Agreement with Ace, these Product terms will be applied upon purchasing Ace Public Cloud Services.
3.6. Additional Defined terms
(i) Our expert professionals will be available to support you on phone and chat 24*7*365.
(ii) Any further level of support offered by Ace for the particular Services is reported in these Product terms or Service Order.
4. Ace Public Cloud Services
4.1. You accept that Ace might establish new methods for use of the Services, as Ace finds necessary for the ideal performance of the Services. Your utilization of any Service from the Ace Site is managed by its terms and conditions of the Agreement.
4.2. You accept that Ace may set up new procedures for use of the Services as Ace finds necessary for the ideal performance of the Services. You agree that Ace may transfer the configuration or the data within or among the data centers, if Ace finds doing so is necessary to fix service degradation or shared resource limitations for the ideal performance of the Services. If such data transfer will impact your data present in a data center in another country, Ace will give proper advance notice of at least 30 days.
4.3. Your use of Ace Public Cloud Services has the ability to provide additional services and you accept that such provisioning comprises acceptance of the terms and condition of this Agreement. Ace’s provisioning of the Services mentioned in such purchase shall constitute Ace’s approval of the Service Order. Unless your purchased Services is meant for an introductory, free, student, developer, or pro bono profile approved by Ace (“Account Exceptions”), you may only utilise the Service for enterprise purposes. The person who submits a request for Service permits and ensures that they are representing a business, company or other legal institution and not as a buyer unless the Account Exceptions apply. If the person ordering is a Client, and not otherwise subject to the Account Exceptions, Ace may drop the Service Order and terminate the Services and the Agreement at any time in its sole discretion.
4.4. How Ace Public Cloud Services are administered:
Administrators: Specify certain End Users as “Administrators”, who will have administrator rights over use of Ace Public Cloud Services.
Reseller as Administrator: If you order cloud products through a reseller, then you are responsible for determining whether reseller may serve as an Administrator.
Age Requirement for End Users: The Ace Public Cloud Services are not intended for, and should not be used by, anyone under the age of 18 or of the legally competent age as per the country of residence.
5. Service Level Agreement
5.1. Cloud SLAs: The Service Level Agreement(s) are all described in the Agreement file, as provided in the Services mentioned in Service order (“Cloud SLAs”).
5.2. Limitations on Credits: The following limitations apply to all Cloud SLAs:
(A) Maintenance: No credit is granted to you under any Service Level Agreement for downtime or interruption as a result of Maintenance.
(i) Ace maintenance windows: During repairs or modifications of shared infrastructure, like core routing or switching infrastructure, Ace gives a notice at least before 72 hours, that happens during off-peak hours in the time zone where the data center is located.
(ii) Schedule your maintenance: Ace maintains your configuration in advance of your request (either based on standing instruction or on a case-by-case basis), such as software or hardware upgrades.
(iii) Emergency maintenance: For the security and performance of configuration of Ace network, you may require critical maintenance due to an unforeseen issue or due to reasons beyond the reasonable control of Ace.
(iv) Routine Optimization: Ace may, with advance notice of 24 hours, conduct reboot-migration of their virtual machines if it has failed three consecutive times to live-migrate your virtual machine.
(B) Limitations: You aren’t granted any credit, if you are in breach of the terms and conditions of this Agreement, which may result in service attacks, attempts to hack, viruses or malware impacting delivery of the services. Any change which you request shall not results in outages with Ace’s ability to provide the Services, deficiencies, bugs, or inaccuracies in your application, operating system, or any patches supplied by the vendor.
(C) Requests: In the Ace portal, you must submit a support token to request a credit within 30 days after the event occurred giving rise to the credit. The credit will be applied in the next billing cycle if the claim is approved. You must present the Service to which the necessary SLA applied was unfavorably affected due to outage or downtime to be eligible for the credit. To determine whether a credit is due, time periods will be calculated from the timestamp created by Ace’s ticket system, the time at which interference is found in Ace’s monitoring system, from thereon, the affected system will be turned on until network availability is restored. You may create a support ticket to note the beginning time for a support request or other event, or if you approach Ace by phone for support, Ace will open a ticket. If you call Ace, there could be some delay between the time of the call and the time Ace opens a ticket.
6. Term and Renewal
6.1. Term: The Initial Term for every Service Order launches on the date that Ace makes the services accessible to you and carries on for the time period mentioned in the Service Order. If no period is stated in the Service Order, then the initial Term will be for a month. Upon completion of the Initial Term, the Service order shall renew automatically on a monthly basis for the following Renewal Term of use (each a “Renewal Term”), except one of us notifies the other by writing prior to the completion of the ongoing Renewal Term. Initial Term and each Renewal Term shall be individually and collectively referred to as the Term.
6.2. Termination for Breach: To the extent permitted by applicable law, either party may terminate this Agreement immediately on written notice if (a) the other party is in material breach of the Agreement and fails to cure that breach within 30 days after receipt of written notice of the breach or (b) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 days. However, Ace may terminate this Agreement on immediate basis in case of non-payment of the Service Fees and the same overdue for over 7 days. Ace may terminate this Agreement at will by giving 30 days’ advance notice to You.
6.3. Non-renewal Process: You shall proceed with Ace’s non-renewal process which states that prior to the effective termination date, you are accountable for taking backup. You will not be able to utilise the Services after the effective termination date. To avoid any doubt on these terms of Service, factoring out the Service Level Agreement, will continue to exert your non-renewal notices until the effective termination date:
i. You will not be able to view your information stored on the Services during termination or following termination or suspension.
ii. You agree that if you cancel the Services or instances, the information stored thereon can no longer be recovered.
iii. Additional charges may be applicable to you as per the terms of Service or similar arrangements.
7.1. For information regarding fees and pricing for services, look over the pricing that may vary from time to time. The Service fees and payment terms (“Fees”) shall be provided in detail in the Service Order (the “Service Order”).
7.2. You accept to pay the due Fees for the Services according to the Service Order. Ace will charge you monthly, with invoice, as of when Ace makes the service available to you for the first time. Fees are mentioned and will be billed as per currency in the Service Order unless mentioned otherwise. Any credit that Ace may owe you, such as a credit for failure to meet a Service Level Agreement, shall be applied to Fees due from your Services, and shall not be paid to you as a refund. You can request Ace for a credit report at any time during the Term of the Agreement.
7.3. Ace may update the pricing and fees for Services in Section 7.1 at any time during the Term of this Agreement.
8. DATA PRIVACY
You can access personal data or sensitive data used to identify individuals. Likewise, you require end users to implement technical and organizational measures needed by applicable laws in relation to the nature of personal data accumulated on your configuration. You are responsible for dispensing necessary notices to individuals and obtaining legally required consent from individuals in relation to Ace’s provision of any Services to your processing of any Personal Data. The way in which Ace can help you to meet your obligations under appropriate data protection or privacy law. Notwithstanding the foregoing, you agree to indemnify Ace for breach of your obligations set forth herein Section 8.
9. DATA BACKUP
You ensure and agree to maintain no less than one additional current duplicate of your data someplace other than Ace Public Cloud Services. Although, the Service can be used as a backup service. If you use Ace backup services, then you are held responsible for testing and performing restores, and also, testing and monitoring the uprightness of your data and systems. You can make a choice to design a backup or snapshot of your cloud servers or databases, however, it is your superintend to take the snapshot or backup and test them to examine their quality.
10. SUSPENSION OF SERVICES
Ace reasonably believes that suspension of Services is obligatory to protect the Ace network. Ace is implored by a regulatory or law or government body to suspend your Services and may suspend Services without liability if:
(i) You fail to pay Ace due payment, regardless of whether such failure was your fault or third party.
(ii) You initiate chargeback.
(iii) You are not cooperating with Ace’s reasonable investigation of any agreement suspected violation.
(iv) Attack on your configuration which is manipulated or accessed by a third party without your consent.
Ace shall grant you advance notice of a suspension under this Section 10 of minimum 12 business hours, until and unless Ace calculates reasonable commercial judgment. The suspension on shorter or contemporaneous notice is to protect Ace from imminent and notable operational, legal, or security risk. If in case your configuration is compromised, then you should address the vulnerability, before Ace places your configuration back in service. Ace may be able to perform this work for you at Ace’s standard hourly or monthly rates as a Service. If suspension is dependent on your obligations, and you breach under the Agreement, Ace continues to charge you Fees for Services during suspension, and may charge reasonable restoration fee upon reinstatement of Services.
11. SERVICES MANAGEMENT AGENT
You permit that Ace may install service management agents on your configuration for providing the Services and identifying security vulnerabilities. Ace agrees that agents shall use only a minimal amount of computing resources (except as otherwise necessary for the provision of the Services) and Ace shall not otherwise use the agents to view or capture your data. The Services shall become unsupported Services if in case you interfere or disable Ace’s services management software agent(s).
12. CLIENT’S RESPONSIBILITY
You bear the risks related to its activities and is solely responsible for the use of the Services made available by Ace and for compliance with the terms of Service in effect, including procuring that any third party that uses the Services, or on whose behalf the Service are used, comply with such terms of Service. In particular, You are responsible for
(a) ensuring the Services ordered are suited to its needs and the needs of third parties for whom or on whose behalf they are used,
(b) the content, such as information, data, files, systems, applications, software, websites, and other elements which may be reproduced, hosted, installed, collected, transmitted, distributed or published, and more generally used and/or operated within the scope of the Services, as well as
(c) the management and use of said content (in particular their verification, validation, updating, deletion, backup, and along with any measure designed to protect against the loss or alteration of the content), including when the content belongs to a third party or is used or operated by or on behalf of a third party, and
(d) compliance with applicable laws and regulations.
13. LIMITATION OF LIABILITY
Ace makes every reasonable effort to maintain operation of the Ace Services. However, because many events and circumstances are beyond the control of Ace, Ace does not in any way warrant or otherwise guarantee the availability of the Ace servers and is not responsible for any delay or loss of data, lack of connection, slow connection, or any other such issues whether due to the active or passive negligence of Ace. Ace may, at its sole discretion, limit or deny access to its servers, if, in the judgment of Ace, such limitations or denials of access are required to assure the security of the network, the integrity of the network structure, or to prevent damage to the network, the software or the data stored on Ace servers.
All Ace services are provided to you on an “as is” basis, and without any warranty of any kind, whether express or implied, including, but without limitation, any implied warranty of merchantability, or fitness for a particular purpose. Ace MAKES NO WARRANTY, EXPRESS OR IMPLIED OR STATUTORY, AND ALL IMPLIED WARRANTIES OF MERCHANTIBILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, COURSE OF PERFORMANCE, USAGE OF TRADE, ACCURACY OF INFORMATIONAL CONTENT AND SYSTEM INTEGRATION, AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY FULLY AND FOREVER DISCLAIMED. Ace IS NOT RESPONSIBLE FOR ANY THIRD PARTY PRODUCTS OR SERVICES.
Information obtained by you from the Internet may be inaccurate, offensive or in some cases even illegal. With the exception of the content found on Ace websites, Ace has no control over information contained on the Internet. Ace, therefore, accepts no responsibility for any information which you may receive from the Internet. You accept full responsibility to verify the truth and accuracy, legality, and ownership of the information that you obtain from the Internet as well as the reputation of the individuals with whom you may deal. Ace provides no warranty for any goods or services which you obtain over the Internet, nor the compatibility of any such services with the Ace servers.
In the event of Ace executing the termination for any or no reason prior to the renewal date, Ace’s sole liability may be to issue a prorated credit for the Customer’s unused prepaid Service Fees. Customer cannot invoke Liability is limited to circumstance.
You specifically hereby waive any claim for damages of any kind whether direct, indirect, special, exemplary, punitive, incidental, or consequential, loss of profits or loss of business as the result of any action taken in response to any claim of illegal use of Ace Services without regard to whether or not the material claimed to have been infringing is later found to be illegal.
The total sole and exclusive remedy available to you as the result of any breach of this Agreement, negligence, or any action or failure to act whether intentional or otherwise shall be a service credit equal to the Fee paid by you to Ace as prorated for the period corresponding either to any downtime or, if cancelling service, to the period of service for the remainder of the month of your first allegation of entitlement to such remedy following said allegation, but in no event to exceed a service credit valued at no more than 50% of monthly service value. This limitation of liability shall be cumulative and not per incident. Each party acknowledges that this limitation of liability and the disclaimers contained herein constitute an agreed upon allocation of risks between the parties and are an essential element of bargain between the parties. In no event shall Ace be liable for any indirect, special, exemplary, punitive, incidental, or consequential damages, loss of profits or loss of business as the result of any such action or inaction without regard to the likelihood of any such damages. In no event shall Ace be responsible for any fees paid by you to any third party or for any services related thereto.
Ace has always respected and enforced the Client’s’ right to data privacy and protection. Ace has always been committed to safeguarding the Clients data and information including but not limited to complying with applicable laws and data security policies with respect to Hosted Data, customer contact information and customer support information. These efforts include but are not limited to RDP encryption, username-based authentication, access control lists, and user rights restriction. Ace’s website uses forms in which you give us contact information (including your name, address, telephone number, and email address) so you can subscribe to the Services, request information and support, and make product suggestions. For Services, we also request a credit card number, or other financial information. We receive and store any information you enter on our website, or give us in any other way, including through email, telephone, or other communications. Ace and its data center partners comply with all necessary policies and compliances like PCI-DSS, GDPR, HIPAA, ISO 27001. Ace may agree to comply to data security policies required at Client’s end other than the existing ones to the extent possible. Client shall bear the charges for any new certification and/or compliance that Ace has to take to comply with the Client’s data security policies.
You agree that you shall:
(a) not disclose any personal data or other information to us, if such disclosure would violate any applicable law, rule or regulation;
(b) not request us to use, disclose or otherwise process personal data or other information in any manner that would not be permissible under any applicable law, rule or regulation, if such use or disclosure or other processing were done by us;
(c) disclose to us only the minimum amount of personal data reasonably necessary for us to perform the Services under the Agreement.
Notwithstanding any other provision in this Agreement, Ace shall not be required to provide
(a) physical or network access to our security systems,
(b) any results of security vulnerability assessments;
(c) any information to the extent that providing such information is a violation by us of applicable laws or regulations; confidentiality obligations to our customers; or security certifications; or if such disclosure would hinder law enforcement’s investigation into a security event or any of our trade secret.
15. CONFIDENTIALITY, INFORMATION SHARING & LAW ENFORCEMENT
15.2. You are solely responsible for ensuring that your login information is utilized only by you. Your responsibility includes ensuring the secrecy and strength of your passwords. Ace shall have no liability resulting from the unauthorized use of your login information. If you use weak passwords or do not change your password frequently, you increase the risk of your password being discovered by unauthorized parties. If login information is lost, stolen, or used by unauthorized parties or if you believe that your Hosted Data has been accessed by unauthorized parties, it is your responsibility to notify Ace to request the login information be reset or unauthorized access otherwise be prevented. Ace will use commercially reasonable efforts to react to such requests as soon as practicable after their receipt.
15.3. Information Sharing: At no point will Ace rent, sell or otherwise share your information to any external company. The only exceptions for this are: We have written permission to do so or receive electronic permission via email; if we are required to by law, subpoenas, court order, or other legal process; if we are acquired or merge with another company, we reserve the right to transfer your information to that new company.
15.4. Law Enforcement: Ace cooperates with government and law enforcement officials and private parties to enforce and comply with the law. Ace will disclose any information about you to government or law enforcement officials or private parties as it, in its sole discretion, believes necessary or appropriate to respond to claims and legal processes (including without limitation subpoenas), to protect Ace’s property and rights or the property and rights of a third party, to protect the safety of the public or any person, or to prevent or stop activity Ace considers to be illegal or unethical. To the extent Ace is legally permitted to do so, it will take reasonable steps to notify you in the event that Ace is required to provide your personal information to third parties as part of a legal process.
The Customer shall not reverse engineer, decompile, translate, disassemble, and attempt to discover the source code of, or in any other way manipulate Ace Services or ask that Ace assists in or complete such actions on behalf of the Customer. Additionally, the Customer shall not license, sub-license, distribute, or disclose the use of a Service to any third party, or use the services for any purpose other than accessing the Customer’s own data in accordance with this Agreement. The Customer agrees that he/she is solely responsible for the content of any material posted to the 3rd party application, and that no End-User will attempt to access programs, options, settings, services, files, applications, or Ace Servers not within their user rights. At no time may the Customer share user credentials, license numbers, or any other applicable information used to access Ace services or 3rd party applications. All login credentials and license information should directly and accurately reflect the proper names, amounts, and versions of both the end users and software/applications being utilized by the Customer. If the Client, User, is found to be performing any of the aforementioned actions or offering the services of Ace in performing these actions, Ace reserves the right to cancel the existing Agreement with the Client immediately with no refund.
You agree to fully defend and indemnify and hold harmless Ace, its officers, directors, agents, resellers, and employees, in their official and personal capacities, of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorney’s fees and costs, expert fees and costs and mediation and/or arbitration fees and costs incurred (whether paid or not) as the result of any breach or claim of breach of this Agreement or your negligence whether active or passive or any negligence of Ace in any way related to your use of the Ace Services or any portion thereof.
You agree to fully defend and indemnify and hold harmless Ace, its officers, directors, agents, resellers, and employees, in their official and personal capacities, of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorney’s fees and costs, expert fees and costs and mediation and/or arbitration fees and costs incurred (whether paid or not) as the result of any violation or claimed violation of any copyright or other intellectual property right of any third party which is in any way related to your use of the Ace Services or any portion thereof. Choice of counsel remains exclusively that of Ace.
You agree that upon the assignment of your login information such as a username and password, you will maintain the confidentiality of your account information and assume all responsibility of and from any loss, theft, or other destruction of any data as the result of any access to your account via the use of your login information.
You further agree to defend and indemnify and hold harmless Ace of and from any and all third-party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorney’s fees and costs, expert fees and costs and mediation and/or arbitration fees and costs incurred (whether paid or not) as the result of any claim for damages in any way related to the disclosure of your confidential login information. Choice of counsel remains exclusively that of Ace.
While you are using any of the Services Ace provides and for a period of twelve (12) months after the expiry or termination of your use of such Services, you will not directly or indirectly employ or solicit to employ, employees, of Ace (“Personnel”). In the event you solicit any Personnel for employment in breach of this Section 18, then you shall reimburse Ace an amount equal to the salary and commissions, if any, earned by such employee during the last twelve (12) months while such Personnel was employed by Ace. The parties acknowledge that such reimbursement is a genuine estimate of the lost revenue and the costs of recruiting and training of a replacement as well as costs incurred on training such employees hired by you.
19. FORCE MAJEURE
Either party to this Agreement shall be excused from any delay or failure in performance hereunder caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, acts of God, earthquake, pandemic, epidemic, labor disputes and strikes, riots, war, and governmental requirements. The obligations and rights of the party so excused shall be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay.
In addition to any event of force majeure as described in the foregoing paragraph, Ace may also terminate this Agreement in the event that Ace elects, at its sole discretion, to cease doing business in the United States Canada and/or India for economic reasons or for any other reason whatsoever. Client who, at the time Ace ceases doing business in the United States and/or Canada, are taking advantage of any Ace offer for free services or any other services that were intended to go beyond the date of cessation (hereinafter, the “Prepaid Services”), may not recover any damages from Ace (or any of its affiliated entities) in the event that they incur costs and expenses related to the cessation of the Prepaid Services, nor do such customers have, nor may they bring, any claim for repayment of such costs and expenses, including without limitation, fees paid to other Hosting Services for the balance of time remaining with respect to any Ace offer of prepaid services. Customers receiving Prepaid Services at the time of cessation of business shall be entitled to a reimbursement of their Prepaid Service fees corresponding to the remaining time left of the Ace Prepaid Services.
20. OWNERSHIP OF INTELLECTUAL PROPERTY
Ace Services makes use of intellectual property of Ace including but not limited to Ace tools and technologies for infrastructure configuration, system virtualization, and customer service. You acknowledge that all rights and titles to any such Ace property shall remain the sole property of Ace and that you have no right, title, or interest therein. You agree to receive written authorization from Ace before performing any security analysis of any Ace service. You agree not to attempt to reproduce, reverse engineer, decompile, or disassemble any Ace service and you agree that any derivative work is the sole property of Ace.
“Intellectual Property Rights” means patents, patentable rights, copyright, design rights, utility models, trademarks (whether or not any of the above are registered), trade names, rights in domain names, rights in inventions, rights in data, database rights, rights in know-how and confidential information, and all other intellectual and industrial property and similar or analogous rights existing under the laws of any country and all pending applications for and right to apply for or register the same (present, future and contingent, and including all renewals, extensions, revivals and all accrued rights. Ace shall retain all right, title and interest in and to the Services and any software or other technology used by Ace in the provision of the Services and all modifications and derivative works thereof; all trademarks, names, logos; and all Documentation for the Services, including without limitation, all rights to patent, copyright, trade secret and other Intellectual Property Rights. Other than as specifically described in Section 20, you have no right under the Agreement to any of the Services, software, documentation, or to any of our trademarks, patents, copyrights, or other Intellectual Property Rights. We retain all rights not granted herein. This includes any information we collect from you for use of the Services.
21. TRADEMARKS & COPYRIGHT
“Ace Cloud Hosting” is a registered trademark of Real Time Cloud Services, LLC. All other trademarks are property of their respective owners. No trademarks are to be used by you in any manner, without written permission of their respective owners. The content featured on Ace’s website is owned by Ace and/or as otherwise featured. The same is governed by the website policies.
22. DISPUTE RESOLUTION
Any claim, dispute, or controversy with respect to, in connection with or arising out of this Agreement shall be subject to and decided by arbitration in the State of Delaware, by a panel of three arbitrators. Each Party shall designate one disinterested arbitrator and the two arbitrators so designated shall select a third arbitrator. The persons selected as arbitrators need not be professional arbitrators and persons such as lawyers, accountants, brokers, and bankers shall be acceptable, but each shall have substantial experience with respect to information technology and development. The arbitration proceeding shall be conducted in accordance with the commercial arbitration rules of the American Arbitration Association then and there pertaining. Any party may initiate arbitration proceedings hereunder by providing written notice (“Demand for Arbitration”) to the other party to such claim, dispute, or controversy. A Demand for Arbitration shall be made within a reasonable time after the claim, dispute or controversy has arisen; provided, however, that no Demand for Arbitration may be made after the date when institution of such claim, dispute or controversy would be barred by the applicable statutes of limitations.
Arbitration proceedings shall be commenced within thirty (30) days of such notice or as soon thereafter as practicable, and the arbitrators shall be required to render a written determination within thirty (30) days after the commencement of such arbitration proceedings. The written award of a majority of the arbitrators shall be final and binding upon the parties and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof, including the federal district courts located in the State of Delaware. All costs of any such arbitration shall be borne equally by the parties. This Section shall not be construed to prohibit either party from seeking preliminary or permanent injunctive relief in any court of competent jurisdiction, however, the arbitrator hearing the dispute to which the injunction pertains will have the power to modify or dissolve any such injunction, or to order additional injunctive relief, in connection with the final arbitration award. The parties, their representatives, other participants, and the mediator and arbitrator shall hold the existence, content, and result of any mediation and arbitration in confidence except to the extent necessary to enforce a final settlement agreement or to obtain and secure enforcement of or a judgment on an arbitration decision and award.
23. GOVERNING LAW & JURISDICTION
Any disputes arising out of or relating to this Agreement shall be interpreted under the laws of the State of Delaware, without regard to any conflict of laws’ provisions and both parties’ consent to such jurisdiction. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. In the event Ace is a prevailing party in any suit, or action brought against the you to enforce the terms of this Agreement or any rights or obligations hereunder, Ace shall be entitled to receive its reasonable costs, expenses, and attorneys’ fees of bringing such or defending suit, or action.
24.1. Marketing: Client agrees that during the Term of this Agreement, Ace may publicly refer to Client, orally and in writing, as a customer of Ace. Any other public reference to Client by Ace requires the written consent of Client.
24.2. No Agency/ Independent Relationship: Nothing contained herein shall be deemed or construed as creating a joint venture or partnership, or employment relationship, or agency between Ace and the Client. Neither Ace nor the Client is authorized, by virtue of this Agreement, as an agent or other representative of the other. Neither party shall be authorized to make any commitments or representations of any kind on behalf of the other.
24.3. Amendments: This Agreement, including documents incorporated herein by reference, supersedes all prior discussions, negotiations, and agreements between the parties with respect to the subject matter hereof, and this Agreement constitutes the sole and entire agreement between the parties with respect to the matters covered hereby. In case of a conflict between this Agreement and any purchase order, Service Order, work order, confirmation, correspondence or other communication of Client or Ace, the terms and conditions of this Agreement shall control. No additional terms or conditions relating to the subject matter of this Agreement shall be effective unless approved in writing by any authorized representative of Client and Ace. Ace may without advance notice amend this Agreement from time to time and will do so by posting the new Agreement on the ACE website in place of the old. Each and every such amendment shall become effective immediately for users of Ace Services including but not limited to all pre-existing and future accounts. It is your responsibility to periodically check the Ace website for updates of this Agreement.
24.4. Assignment: This Agreement and the rights hereunder is not assignable or transferable except that Ace may freely assign any or all of its rights hereunder to any person or entity who shall become a principal owner, or shareholder of Ace, or to any affiliated company or successor in interest of Ace. Any other attempted transfer or assignment of rights hereunder shall be null and void ab initio. Upon any such assignment by Ace to any other party, Ace will notify you within ninety (90) days and, excepting assignment solely of rights of resale of Ace Services, you have the right to terminate this Agreement by giving notice thereof in writing to Ace and any such termination shall become effective thirty (30) days after the receipt of such notice by Ace.
24.5. Severability: All rights and restrictions contained in this agreement may be exercised and shall be applicable and binding only to the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary so that they will not render this Agreement illegal, invalid, or unenforceable. If any provision of these terms is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of these terms shall remain in full force and effect.
24.6. No Waiver: No failure or delay by any party hereto to exercise any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy by any party preclude any other or further exercise thereof or the exercise of any other right or remedy. No express waiver or assent by any party hereto to any breach of or default in any term or condition of this agreement shall constitute a waiver of or an assent to any succeeding breach of or default in the same or any other term or condition hereof.
24.7. Notices: Any notice under this agreement given by Ace to you shall be via email or telephone at the address provided by you to Ace at the commencement of this Agreement or as Ace is subsequently advised. Notice to you at this address is deemed sufficient regardless of your receipt of such email or telephone call. Notice to Ace by email or telephone address is deemed sufficient only upon confirmation from Ace by email or FAX or registered mail receipt.
24.8. Headings and Recitals: The paragraph headings in this Agreement are to be given no legal effect. The preamble recitals are incorporated herein as an integral part of this Agreement and are to be given full legal effect.