Application
Zenlayer Global Accelerator

Zenlayer Global Acceleratornew-product

Accelerate dynamic content worldwide

Content Delivery Network

Content Delivery Network

Deliver content with ultra-low latency

Turbo

Turbo

Instantly speed up 350+ apps

Networking
Cloud Networking

Cloud Networking

Instant global networks

IP Transit

IP Transit

Optimized connections worldwide

Compute
Virtual Machines

Virtual Machines

Scalable virtual servers

Bare Metal Cloud

Bare Metal Cloud

Dedicated bare metal servers on demand

Edge Data Center Services

Edge Data Center Services

Global colocation and managed hosting

Use cases
Hybrid Clouds

Hybrid Clouds

Industries
Gaming

Gaming

Media & Entertainment

Media & Entertainment

Cloud Service Providers

Cloud Service Providers

Blockchain

Blockchain

VPN

VPN

Emerging markets
China

China

Southeast Asia

Southeast Asia

General Terms & Conditions
Last updated: October 07, 2023

 

MASTER SERVICE AGREEMENT 

THIS MASTER SERVICES AGREEMENT GOVERNS CUSTOMER’S ACQUISITION AND USE OF ZENLAYER SERVICES. 

ZENLAYER IS ENGAGED DIRECTLY OR THROUGH ITS AFFILIATES AND PARTNERS IN THE BUSINESS OF PROVIDING SERVICES. 

 

IF CUSTOMER REGISTERS FOR A FREE TRIAL OF ZENLAYER SERVICES OR FOR FREE SERVICES, THE APPLICABLE 

PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL OR THOSE FREE SERVICES. 

 

CUSTOMER AGREES TO ACCEPT THE TERMS OF THIS AGREEMENT, BY EITHER (1) EXECUTING A SERVICE ORDER FORM THAT REFERENCES THIS AGREEMENT, (2) CLICKING A BOX INDICATING ACCEPTANCE, OR (3) USING FREE SERVICES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES. 

 

The Services may not be accessed for the purpose of monitoring their availability, performance, or functionality. Additionally, they may not be used for benchmarking or competitive purposes.  

Zenlayer’s direct competitors are prohibited from accessing the Services, except with Zenlayer’s prior written consent. 

 

This Agreement was last updated on October 1, 2023. It is effective between Customer and the Zenlayer entity listed on the Service Order Form as of the date of Customer’s accepting this Agreement (the “Effective Date”). Zenlayer and Customer hereinafter shall be referred to collectively as the “Parties” or individually as a “Party.” 

 

Therefore, the parties agree as follows: 

 

1.DEFINITIONS. Capitalized terms used in this Agreement shall have the meanings assigned to them hereunder, or as defined in the relevant clauses of this Agreement: 

 

1.1.“Acceptance Period” shall mean the period of time Customer has to validate performance of the Services. The duration of the Acceptance Period is unique for each Service and can be found in the applicable SLA for each such Service.  

 

1.2.“Affiliate” shall mean any person or entity that directly or indirectly, through one or more intermediaries, controls, is controlled by, or under common control with such party. As used herein, “control” shall mean the ownership of more than 50% of the outstanding shares or equivalent interest entitled to vote. 

 

1.3.“Charge(s)” shall mean the rates for the Services provided by Zenlayer and invoiced to Customer. 

 

1.4.“Charge Increase” shall mean an increase in the price of a Service.  

 

1.5.“Confidential Information” shall mean this MSA and all confidential information of any type and form provided by the Discloser to the Recipient that is designated or identified as “Confidential” or “Proprietary” or similar marking or would reasonably be regarded as being of a confidential nature. Confidential Information shall include, without limitation, (i) trade secrets, inventions, ideas, processes, computer source and object code, formulae, data, programs, other works of authorship, know-how, improvements, discoveries, developments, designs, and techniques; (ii) information regarding products, network design and traffic, service performance, plans for research and development, marketing and business plans, budgets, financial statements, contracts, prices, suppliers, and customers; (iii) information regarding the skills and compensation of Company’s employees, contractors, and other agents; and (iv) the existence of any business discussions, negotiations, or agreements between Company and Receiving Party or any third party. The term “Confidential Information” shall not include information that: (i) was in Recipient’s possession before receipt from Discloser; (ii) is independently developed by or for Recipient without reference to Discloser’s Confidential Information; (iii) is rightfully received by Recipient from a third party without a duty of confidentiality; or (iv) is or becomes available to the public through no fault of Recipient. 

 

1.6.“Customer” shall mean the customer as described above in the first paragraph of this Agreement, Customer’s authorized End-Users, or any other Zenlayer-authorized third parties appointed by Customer for the purpose of utilizing Customer’s Services.   

 

1.7.“Delivery Confirmation” shall mean a written notice from Zenlayer confirming that the ordered Service(s) has been delivered or made available to Customer. 

 

1.8.“Discloser” shall mean the disclosing party of any and all Confidential Information of any type and form for the purposes of performing obligations under this Agreement. 

 

1.9.“Disputed Amount” shall mean any good faith dispute by Customer to any amount in an invoice.  

 

1.10.“Dispute Date” shall mean the date no later than ten (10) calendar days after the invoice date, prior to which Customer shall notify Zenlayer of any Disputed Amount they have regarding such invoice.  

 

1.11.“Due Date” shall mean the expiration of a period of thirty (30) days from the date the invoice is sent to Customer.   

 

1.12.“End User” shall mean any third-party appointed by Customer to be the end-user of the Services and authorized by Zenlayer pursuant to Section 3.2 of this Agreement. 

 

1.13.“Initial Service Term” shall mean the period of time set forth in the Service Order Form, or if no term period is specified in the applicable Service Order Form, then the Initial Service Term shall be one (1) year.  

 

1.14.“Invoice Dispute Notice” shall mean Customer’s written notice to Zenlayer with a detailed explanation of any Disputed Amounts on their invoice. 

 

1.15.“Monthly Recurring Charges” or “MRC” shall mean the monthly Charges for the provision of Services. 

 

1.16.“Non-Recurring Charges” or “NRC” shall mean the one-time Charges for the provision of Services. 

 

1.17.“Notice of Increase” shall mean Zenlayer’s sixty (60) days prior written notice to Customer of a Charge Increase. 

 

1.18.“Recipient” shall mean the receiving party of any and all Confidential Information of any type and form from Discloser for the purpose of performing obligations under this Agreement.  

 

1.19.“Renewal Service Term” shall mean renewal of the Services pursuant to the SOF for successive one (1) year periods upon expiration of the Initial Service Term or subsequent Renewal Service Term. 

 

1.20.“Service(s)” shall mean the services offered by Zenlayer, including but not limited to, Zenlayer Bare Metal Cloud, Zenlayer Cloud WAN, Zenlayer Edge Computing Network, Zenlayer Edge Data Center services, Zenlayer IP Transit, and Zenlayer Cloud Networking. 

 

1.21.“Service Delivery Date” shall mean the date Zenlayer delivers the Service(s) to Customer for Delivery Confirmation. 

 

1.22.“Service Activation Date” shall mean the earlier of (a) the date Customer accepts the Service or (b) the expiration of the Acceptance Period found in the applicable SLA for each such Service.  

 

1.23.“Service Activation Notice” or “SAN” shall mean the notice given by Zenlayer to Customer signifying the start of the Service billing cycle.  

 

1.24.“Service Level Agreement” or “SLA” shall mean the applicable Service Level Agreement for each Service ordered, annexed hereto together with all schedules thereto.    

 

1.25.“Service Order Form” or “SOF” shall mean the order form (a) executed by Customer to purchase Services and (b) executed by Zenlayer to agree to provide such Services under this Agreement. The SOF will indicate the specific Service requested by Customer and information reasonably necessary for Zenlayer to provide that Service, including but not limited to the Service Term and the associated fees. 

 

1.26.“Service Term” shall mean either the Initial Service Term or any subsequent Renewal Service Term of the Services, as applicable. 

 

1.27.“Taxes” shall mean all taxes, including but not limited to, withholding, property, use, value-added, sales, and other present and future taxes and duties or similar tariffs that may be imposed on or incident to the provision, sales, or use of the Services in any jurisdiction.  

 

 

1.28.“Termination Payment” shall be an amount equal to the sum of: (a) 100% of the MRC for each terminated Service multiplied by the number of months remaining in the Service Term; plus (b) all supplemental charges and NRC charges (including NRC that were waived by Zenlayer at the time that Customer entered into the SOF); plus (c) in the case of Colocation Services, the costs incurred by Zenlayer in returning the collocation space to a condition suitable for use by other parties.  

 

2.TERM OF SERVICE; SERVICE ACTIVATION. 

 

2.1.General.  Zenlayer, either directly or through its Affiliates, underlying carriers, or Zenlayer-authorized third parties, shall provide Customer with Services as mutually agreed in the applicable SOF. The SOF will indicate the Service(s) requested and information reasonably necessary for Zenlayer to provide such Service(s).  By executing the SOF, Customer agrees to accept and pay for the Services specified in the SOF during the Service Initial Service Term and for any Service Renewal Service Term. All Service-related terms and conditions, including respective service level guarantees, are defined in the applicable SLA, attached hereto, and incorporated herein. 

 

2.2.Term. 

 

2.2.1.Agreement. This MSA becomes effective on the Effective Date and will remain in full force and effect for three (3) years unless otherwise terminated pursuant to Section 11.  Thereafter, the MSA shall be automatically renewed for successive one (1) year periods, until one Party notifies the other Party of its intent not to renew in writing no less than thirty (30) days prior to the end of the then-current term.  

 

2.2.2.Service Order Form. Each Service under a SOF will commence on the Service Activation Date and shall continue for the Initial Service Term and any subsequent Renewal Service Term(s), unless one Party notifies the other Party in writing no less than ninety (90) days prior to the end of a Service Term that the Party wishes to terminate the SOF. In the event there are multiple Services ordered under a single SOF, the Service Term of each Service will begin on the date a SAN is issued for each such Service and continue through the length of the Service Term stated in such SOF. Customer acknowledges and agrees that this may result in multiple Service Terms with different start and end dates in a single SOF.  

 

2.2.3.If the Service Term of a Service extends beyond the expiration or termination of this MSA, then this MSA shall continue to govern the provision of such Service.  

 

2.2.4.The early termination of any individual Service or SOF will not diminish, alter, or nullify Customer’s ongoing responsibility to fulfill its payment obligations for the entire Service Term of such Service or SOF.  

 

2.3.Delivery Confirmation and Acceptance. Once Zenlayer has sent Customer a Delivery Confirmation, Customer shall have the opportunity to validate proper functioning of the Service(s) during the Acceptance Period. Thereafter, Zenlayer will issue a SAN with the Service Activation Date to Customer if (a) Customer accepts the Service, or (b) Zenlayer does not receive a written notice of Service acceptance issues within the Acceptance Period, or (c) Customer refuses to allow Zenlayer to rectify any issues for any reason.  

 

2.3.1.Delivery Confirmation and Service acceptance confirmation may be sent via a method agreeable to both Parties, including but not limited to, e-mail, text messages and social media messengers, such as WeChat and WhatsApp, or enterprise communication tools, such as Slack or Microsoft Teams.  

 

2.3.2.After receipt of the Delivery Confirmation, Customer must notify Zenlayer in writing of any Service activation issue prior to the end of Acceptance Period. In the absence of any such notice, the Service will be deemed accepted by Customer.  

 

2.3.3.For the specific Acceptance Period applicable to each Service, please refer to the applicable Service SLA.  

 

2.3.4.Customer agrees to provide all information, equipment, or other materials required for Zenlayer to deliver the Service(s) within a reasonable amount of time after execution of an SOF.  In the event that Customer engages in deliberate actions that cause unreasonable delay or obstruction in the delivery of an executed SOF, Customer hereby agrees and acknowledges that Zenlayer shall have the right to initiate billing for the contracted Service(s) in its sole discretion, regardless of whether such Service(s) have been delivered and/or accepted, and Customer shall be fully liable for such Charges, including all MRC and NRC amounts quoted in such SOF.  

 

2.4Professional Services. Upon payment of any applicable professional services fees and related expenses, Zenlayer shall use reasonable commercial efforts to provide agreed upon professional services at mutually agreed upon rates. If the Customer’s work requires more hours than originally estimated, or if Zenlayer is requested to provide additional professional services beyond those ordered in an SOF, Customer agrees that it will pay Zenlayer for such additional hours and professional services at Zenlayer’s then-current rates.  

 

3.CUSTOMER OBLIGATIONS. 

 

3.1.Acceptable Use of Services. Customer represents and warrants that it will not misuse, abuse, or fraudulently use the Services or permit third parties to do so by:  

 

  (i)Obtaining or attempting to obtain Services by any means or device with the intent to avoid payment;  

 

  (ii)Obtaining or attempting to obtain unauthorized access, alteration, or destruction of any data or information of another Zenlayer customer by any means or device;  

 

  (iii)Using Services to impair or interfere with the use of equipment or facilities of Zenlayer, its Affiliates or authorized users, or in violation of the law or in aid of any unlawful act; 

 

  (iv)Using Services to send "junk mail" or "spam" through electronic mail or any other means carried by the Internet, notwithstanding their number or length, and having not been duly and specifically requested by the recipient;  

 

  (v)Using Services for any purpose that may (a) harass any person or cause damage or injury to any person or property; (b) involve defamatory, harassing, untrue or obscene materials; or (c) promote hatred or harm;            

 

  (vi)Using Services to impair or interfere with the privacy of any communications;  

 

  (vii)Using Services to violate the privacy rights of any End User or other individual or data subject for whom Customer controls or processes personal data, or any Data Protection Law (as defined below);  

 

  (viii)Infringing on any intellectual property rights of Zenlayer or any other third party;  

 

  (ix)Using the Services for the purpose of by-passing government censorship, laws, or regulations; 

 

  (x)Installing pirated or illegal software on Customer or Zenlayer equipment;  

 

  (xi)Infringing, distributing, hacking into, reverse engineering, disabling security devices or codes, modifying, downloading, making copies of or accessing without authorization any equipment, hardware, data, network,  or software provided or made available by Zenlayer and/or its Affiliates, vendors, partners, or other authorized third parties; or 

 

  (xii)Making unauthorized uses, displays, or distributions of the materials, documents, information, or data provided or made available by Zenlayer and/or its Affiliates, vendors, partners, or other authorized third parties. 

 

3.2.End User. If Customer is not the end-user of the Services, Customer shall abide by the following: 

 

  (i)Customer must obtain prior written consent from Zenlayer before authorizing any third-party End Users to access, utilize, or control the Services. Zenlayer has the right to refuse consent to provide Services, directly or indirectly, to any third-party in its sole discretion; 

   

  (ii)Subject to Section 3.2.(i), Customer may enter into a contract with its End Users to access, utilize, or control the Services, provided that the terms and conditions of such contract will be no less restrictive than this MSA and Customer will require its End Users to abide by this MSA and the acceptable use policies set forth at https://www.zenlayer.com/acceptable-use-policy/  ;  

 

  (iii)Customer acknowledges and affirms that Customer is not an agent of Zenlayer. Customer cannot and does not represent Zenlayer in any capacity. Any contract or agreement signed between Customer and its agents, customers, Affiliates, or any third party shall not be binding upon Zenlayer;  

 

  (iv)Customer shall not make any representation or statement regarding  the Services other than those contained in Zenlayer’s public marketing and promotional materials; 

 

  (v)Notwithstanding any contracts or agreements between Customer and its End Users, Customer shall at all times remain fully and primarily responsible and liable for the payment of all Services and for compliance with all other terms and obligations under this Agreement, SOF, SLA, and all claims, obligations, and liabilities arising hereunder and thereunder; 

 

  (vi)Customer will coordinate with its End User to provide any documents that Zenlayer may reasonably require for such End User to receive and use the Services, such as a third-party verification form; and 

 

  (vii)Customer and its End Users must possess or maintain all licenses, permits, and other requirements that may be applicable to resell or permit third-party use of the Services. 

 

3.3.A violation of Section 3. By Customer, its Affiliates, agents, representatives, authorized personnel, or End Users shall be deemed a breach of this Agreement and the related SOF. If a breach occurs under this Section 3, Zenlayer shall have the right to immediately terminate the related Services, SOF, SLA and/or MSA, and seek compensation from Customer accordingly. 

 

4.ZENLAYER OBLIGATIONS. 

 

4.1.Zenlayer, prior to executing any SOF, retains the sole discretion as to whether Zenlayer will provide specific Services to Customer. Notwithstanding any terms in this Agreement, Zenlayer is not required to provide Services to Customer unless and until an SOF is accepted and executed by Zenlayer. 

 

4.2.Zenlayer shall have no obligation to communicate directly with Customer’s End Users. 

 

5.PRICE AND PAYMENT TERMS. 

 

5.1.General. Services shall be invoiced in accordance with the rates set forth in the SOF. The Charge shall include the Monthly Recurring Charges and Non-Recurring Charges. Customer will make all undisputed payments on or before the Due Date unless otherwise agreed to by the Parties in the SOF.  

 

5.2.Commencement of Billing. For the initial and first month’s payment, Zenlayer shall invoice Customer at the beginning of the subsequent month. Billing shall commence on the Service Activation Date. If the Service Activation Date occurs on a date other than the first day of a calendar month, the initial invoice for MRC shall be prorated to an amount equal to the remaining days of the said month following the Service Activation Date multiplied by a rate equal to one-thirtieth (1/30th) of the MRC.  

 

5.2.1.Notwithstanding anything herein to the contrary and in accordance with Section 2.3.4., billing for Services specified in a duly executed SOF may commence at Zenlayer's discretion, even in cases where the Services have not yet been delivered or activated. This billing initiation applies when delays in delivery or activation arise from Customer’s action or inaction, including Customer’s failure to provide requested information or support.  Zenlayer will initiate the billing cycle for such Services on the date that Customer is notified in writing that the Services are ready for delivery and activation. In any event, this billing initiation will occur no later than thirty (30) days after the date of SOF execution, unless both Parties mutually agree otherwise in writing. 

 

5.3.Standard Currency. All monetary references in this Agreement are in United States dollars, and all financial transactions under this Agreement must be settled in United States dollars.  

 

5.4.Past Due Amounts. In addition to other remedies set forth under this Agreement, if Customer fails to pay any undisputed invoice amount by the Due Date, Zenlayer may charge daily interest on the unpaid undisputed amount from the Due Date until the date payment is received at the rate of 1.5% per month or the highest rate permitted by applicable law, whichever is lower. Zenlayer may suspend Services if Customer delays payment for more than thirty (30) days past the Due Date and may terminate Services if the default is not resolved within five (5) days after suspension of the Services. In the event of a termination due to non-payment, Customer will be deemed to have cancelled its Services pursuant to Section 11.5. and the applicable Termination Payment shall automatically and immediately become due and payable. 

 

5.5.Billing Disputes. If Customer in good faith believes there are Disputed Amounts in an invoice, Customer shall send an Invoice Dispute Notice to invoice@zenlayer.com by the Dispute Date. If Customer does not dispute an invoiced amount by the Dispute Date, the entire invoiced amount shall be deemed accepted by Customer. If Zenlayer receives an Invoice Dispute Notice by the Dispute Date, Customer may withhold the disputed portion, provided that the undisputed portion of the payment has been received by Zenlayer by the Due Date.  The Parties shall follow the dispute procedure set out in Section 12 to resolve any billing dispute. Nothing herein shall be construed to constitute a waiver of Zenlayer’s right to declare a default by the Customer under this Agreement or SOF on account of a delinquency, to terminate this Agreement, and to exercise any other rights under this Agreement, SOF or at law or in equity.  

 

5.6.Tax and Fees. All amounts payable under this Agreement, or any SOF are free and clear and exclusive of all Taxes. Customer will pay and indemnify Zenlayer for any and all Taxes payable with respect to the purchase and sale of the Services or as otherwise owed in connection with this Agreement or any SOF, except for taxes payable on Zenlayer’s net income. Upon request by Zenlayer, Customer shall promptly provide Zenlayer with official receipts issued by the appropriate taxing authority, or such other evidence as is reasonably requested by Zenlayer to establish that such Taxes have been paid. If, on the other hand, Zenlayer has the legal obligation to collect such Taxes, then such amount shall be added to the applicable invoice and shall be paid by Customer, unless Customer provides Zenlayer with a valid tax exemption certificate authorized by the appropriate taxing authority. Without prejudice to the survival of any other agreement of Customer hereunder, the obligations of Customer contained in this Section 5.7. shall survive the payment in full of all payments hereunder.  

 

5.7.Adjustment of Charges. Subject to Section 5.7.1. below, the Charges during any Service Term shall be fixed. Pursuant to a Notice of Increase, Zenlayer has the right to implement a Charge Increase after the expiration and prior to the renewal of a Service Term. Notwithstanding anything herein to the contrary, a Charge Increase will be deemed accepted if (a) the Customer accepts the Charge Increase in writing; (b) the Customer did not reject the affected Service in writing within thirty (30) days after the date of the Notice of Increase; or (c) the Customer continues to use the Service into the subsequent Service Term. 

 

5.7.1.Notwithstanding Section 5.7. above, Zenlayer reserves the right to increase Charges during any given Service Term in the event of escalated rates for power, utilities, and other similar services or resources provided by third parties, which are beyond Zenlayer’s control. Such rate increases will be passed directly onto Customer without additional markup by Zenlayer.  

 

5.8.Payment Fees. In the event that Zenlayer incurs any third-party processing fees resulting from Customer’s chosen method of payment through no fault of Zenlayer (e.g., credit card fees, wire transfer fees, bounced check fees, etc.), Zenlayer will pass to Customer all such fees without markup.  

 

 

6.CONFIDENTIAL INFORMATION; PERSONAL DATA PROTECTION. 

 

6.1.Confidential Information.     

 

6.1.1.The Parties acknowledge and agree that in the course of their duties under this Agreement, they may receive or gain access to Confidential Information. The Parties agree that they shall comply with the terms and conditions set forth in this Agreement in their collection, receipt, transmission, storage, disposal, use and disclosure of such Confidential Information and be responsible for the unauthorized collection, receipt, transmission, access, storage, disposal, use and disclosure of the Confidential Information under its control or in its possession. 

 

6.1.2.Recipient will maintain in confidence all Confidential Information of Discloser and will not use such Confidential Information except in connection with its performance of this Agreement as expressly permitted herein. Recipient will take all reasonable measures to maintain the confidentiality of Discloser’s Confidential Information, but in no event less than the measures it uses to protect its own Confidential Information.  Each Party will limit the disclosure of such Confidential Information to those of its employees, contractors, agents, or representatives with a bona fide need to access such Confidential Information in order to exercise its rights and obligations under this Agreement; provided that all such employees, contractors, agents, and representatives are bound by a written non-disclosure agreement that contains restrictions at least as protective as those set forth herein. Recipient will be primarily liable to Discloser for the breach of this Section 6.1 by any of its employees, contractors, agents, or representatives.  

 

6.1.3.Recipient’s obligations under this Section 6.1 shall survive for three (3) years following the termination or expiration of this Agreement. 

 

6.1.4.All information exchanged under this MSA is provided “AS IS”, without warranty of any kind. 

 

6.1.5.Each Party acknowledges that its breach or threatened breach of this Section 6.1 may cause Discloser irreparable harm which would not be adequately compensated by monetary damages. Accordingly, in the event of any such breach or threatened breach, Recipient agrees that equitable relief, including a temporary or permanent injunction, is an available remedy in addition to any legal remedies to which the Discloser may be entitled.  

 

6.2.Personal Data Protection.   

 

6.2.1.Definition.  For purposes of this Section 6.2, Personal Data includes information that identifies or relates to a particular individual or household, including Customer and its End Users, including but not limited to any name, address, phone number, fax number, email address or IP address which is associated or combined with Customer business information (“Personal Data”).  

 

6.2.2.Customer Compliance.  Customer agrees to comply with all applicable laws in connection with privacy and the processing, collection, use and protection of personal data in any jurisdiction (collectively, “Data Protection Law(s)”), including, but not limited to, the General Data Protection Regulation (Regulation (EU) 2016/679) (“GDPR”), the California Consumer Privacy Act (“CCPA”), the California Privacy Rights Act (“CPRA”), and any other applicable laws concerning the privacy of electronic communications with respect to any Personal Data provided to Zenlayer in connection with the Services. 

 

6.2.3.Processing of Personal Data by Zenlayer. Customer hereby acknowledges and agrees that Zenlayer’s performance of its obligations hereunder and the provision of Services may require Zenlayer to process, transmit and/or store the Personal Data of Customer or Customer’s End Users. By providing Personal Data to Zenlayer, Customer agrees that Zenlayer may process, transmit and/or store Customer’s Personal Data to the extent necessary for, and for the purpose of, enabling Zenlayer to perform its obligations under this Agreement. Customer agrees that Zenlayer may use and provide Customer’s Personal Data to third parties for the purpose of provisioning Services ordered by the Customer.  

 

Zenlayer shall take all reasonable steps to protect Personal Data in its possession from unauthorized use, access, disclosure, alteration, or destruction. Zenlayer must immediately notify the Customer of any known or suspected security breach that has resulted in the unauthorized use, access, disclosure, alteration, or destruction of Customer’s Personal Data.   

 

6.2.4.Data Processing Addendum.  To the extent that Personal Data is involved in the Services provided and the applicable Data Protection Law requires the execution of supplemental agreements providing additional protections, the Parties agree that such Personal Data shall be subject to a separate Data Processing Addendum that shall be appended to this Agreement. 

 

6.3.Maintenance of Security.  Customer shall take all reasonable measures to ensure that any information to be transmitted to or from Zenlayer in connection with the Services is secure.  Customer shall be solely responsible for authorizing access to any such information in Zenlayer’s possession by its employees, third parties, or End Users. Customer shall require each person having access to the Services to apply and follow reasonable industry standard security and safety measures to protect such information.  Zenlayer will not be liable for any action taken by (i) any Customer authorized person on the assets deployed for Customer, and (ii) individuals who were not authorized to have access to the Services but who were able to gain access because of the error or omission of Customer (including inadvertent or direct disclosure of usernames, passwords or account details and other lapses in security by Customer). Customer shall be responsible for all activities that occur under Customer’s usernames, passwords, or accounts or as a result of Customer’s or its authorized person’s access to the Services.  

 

The accuracy, veracity, legality or validity of the data or contents provided by Customer and/or its authorized persons and stored in or transmitted to or from Zenlayer’s network, servers, equipment, or databases shall be the exclusive responsibility of Customer. Customer acknowledges that Zenlayer is solely responsible for hosting data and/or information in accordance with Customer’s, its End User’s, and/or its authorized person’s direction and instruction. Zenlayer shall not be liable for (i) any false and/or inaccurate and/or illegal data stored in, processed, or transmitted to or from Zenlayer’s network, servers, equipment, or databases, or (ii) any outcome or result of such storage, processing, or transmission.  

 

6.4.Zenlayer Rights. Customer acknowledges and agrees that Zenlayer may take remedial action if any data or content or material violates the acceptable use and other restrictions set forth in this Agreement, including the removal of or disablement of access to such data or content or material.  

 

6.5.Disclosure. Zenlayer may furnish any Customer information as required to any receiver or governmental or quasi-governmental bodies, or to any individual or entity, pursuant to a valid subpoena, court order, or other equivalent judicial or regulatory equivalent. Notwithstanding anything contained in this Section 6., Zenlayer may furnish Confidential Information and Personal Data to a third party solely for the purpose of providing Services to the Customer, performing the obligations contemplated under this Agreement, collecting delinquent payments, or reclaiming Taxes. In the event of a conflict between this Section 6.5. and the terms of a separate nondisclosure agreement signed between the Parties, this Section 6.5. shall take precedence over such nondisclosure agreement. 

 

6.6.Feedback and Suggestions. Customer’s feedback and suggestions regarding the Services, their improvement, enhancements, or byproducts shall not constitute Customer’s Confidential Information. Customer acknowledges and agrees that Zenlayer may use such feedback and suggestions without any obligation to provide royalties or other forms of compensation. 

 

7.WARRANTY AND DISCLAIMER. 

 

7.1.WARRANTY. ZENLAYER WARRANTS THAT IT HAS ALL THE REQUISITE PERMITS, LICENSES, AND CAPACITY TO PROVIDE THE SERVICES AND THAT IT WILL DELIVER THE SERVICES USING THE REASONABLE SKILL AND CARE OF A COMPETENT SERVICE PROVIDER.  

 

7.2.DISCLAIMER. THE SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ZENLAYER DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED , STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, CUSTOM, TRADE, QUIET ENJOYMENT, ACCURACY OF INFORMATIONAL CONTENT, OR ANY WARRANTIES ARISING UNDER ANY STATUTE, COURSE OF DEALING OR OTHERWISE. NO ADVICE, INFORMATION, OR EXPECTATION, WHETHER ORAL OR WRITTEN, OBTAINED BY THE CUSTOMER OR ITS END USERS THROUGH USE OF THE SERVICE(S) SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE IN THIS AGREEMENT. ZENLAYER MAKES NO WARRANTY THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT THE SERVICE(S) WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. ZENLAYER MAKES NO WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM THE USE OF THE SERVICES.  

 

7.3.Customer will not extend any warranties or guarantees on behalf of Zenlayer  with respect to the performance, design, quality, merchantability, or fitness for a particular purpose of the Services. The use of any information or data obtained through the Services is at Customer’s and its End Users’ sole risk. 

 

7.4.Representation of Authority. Each Party represents and warrants that: (i) it has the legal right to enter into this Agreement and perform its respective obligations hereunder; (ii) the performance of its obligations pursuant to this Agreement will not violate any applicable laws or regulations or cause a breach of any rights of third parties; and (iii) the person who executes this Agreement, or any SOF, SLA, or attachments to this Agreement, is duly authorized to do so on behalf of such Party. 

 

7.5.Compliance with Laws. Customer represents and warrants that (i) Customer will comply with all applicable laws and regulations; (ii) Customer will be responsible for obtaining and maintaining all necessary licenses, permits, and approvals required by any and all governmental authorities to provide the Services to its End Users and comply with its obligations under this Agreement; and (iii) the use of Services by Customer will be in accordance with such licenses, permits, and approvals. 

 

7.6.Ethics and Code of Conduct. Each Party shall uphold the highest standards of business ethics in the performance of this Agreement. 

 

7.6.1The Parties will provide all possible assistance to each other in order to investigate any possible instance of unethical behavior or business conduct violations by an employee of the other. Each Party will forthwith disclose any known or suspected breach of this Section 7.6. to allow for timely action in the prevention and detection of unethical behavior. 

 

7.6.2Each Party will establish suitable procedures to prohibit any unlawful gratification, including bribes or kickbacks, whether in monetary form or otherwise, in the conduct of its business hereunder. 

 

8.LIMITATION OF LIABILITY. 

 

8.1.ZENLAYER DOES NOT MONITOR AND DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR THE CONTENT OF ANY COMMUNICATIONS TRANSMITTED VIA A SERVICE AND DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR UNAUTHORIZED USE, INFRINGEMENT, ILLEGAL, OR MISUSE OF ANY SERVICE.  CUSTOMER SHALL BE SOLELY LIABLE AND RESPONSIBLE FOR THE CONTENT OF ANY COMMUNICATIONS TRANSMITTED VIA AN APPLICABLE SERVICE. 

 

8.2.EXCEPT AS OTHERWISE STATED IN THIS AGREEMENT, IN NO EVENT, REGARDLESS OF WHETHER THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR WHETHER THE DAMAGES ARE FORESEEABLE BY THE PARTY, NEITHER PARTY SHALL BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, INDIRECT, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE (EXCEPT THAT CUSTOMER SHALL BE LIABLE FOR ANY CHARGES FOR SERVICES OR OTHER AMOUNTS OWED TO ZENLAYER UNDER THIS AGREEMENT), LOSS OF PROFIT, LOSS OF DATA OR INTERRUPTION OR CORRUPTION OF DATA, OR LOSS OF BUSINESS.  

 

8.3.EACH PARTY’S LIABILITY FOR ALL CLAIMS OF ANY KIND ARISING OUT OF OR RELATING TO THIS AGREEMENT, EXCEPT FOR EARLY TERMINATION FOR CONVENIENCE (SEE SECTION 11.5.), CUSTOMER INDEMNIFICATION (SEE SECTION 9.2.) AND SERVICE LEVEL CREDITS (SEE THE RESPECTIVE PRODUCT SLA), SHALL NOT EXCEED THE AMOUNT PAID OR PAYABLE BY CUSTOMER TO ZENLAYER DURING THE TWELVE (12) MONTHS PRECEDING THE DATE OF THE CAUSE OF ACTION. 

 

8.4.ZENLAYER WILL UNDER NO CIRCUMSTANCES BE LIABLE FOR ANY DAMAGES ATTRIBUTABLE TO ANY SERVICE, PRODUCT, OR ACTION OF ANY PERSON OTHER THAN ZENLAYER AND ITS EMPLOYEES. 

 

8.5.NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, ZENLAYER SHALL HAVE NO LIABILITY FOR CLAIMS THAT ARISE DURING A SERVICE TRIAL OR ACCEPTANCE PERIOD.  

 

9.INDEMNIFICATION. 

 

9.1.Zenlayer Indemnification. Zenlayer shall indemnify, defend and hold Customer harmless from and against any and all claims, suits, actions, or proceedings (“Action(s)”) brought by any third party against Customer to the extent based upon a claim that the Service(s), as provided by Zenlayer to Customer under this Agreement, infringe or misappropriate any intellectual property rights. This indemnity obligation does not extend to any open source software embedded or included in the Service(s). 

 

9.1.1.If Customer’s use of any of the Services hereunder is, or in Zenlayer’s opinion is likely to be, enjoined due to the type of claim specified in Section 9.1. above, then Zenlayer may, at its sole option and expense: (i) procure for Customer the right to continue using such Services under the terms of this Agreement; or (ii) replace or modify such Services so that they are non-infringing and substantially equivalent in function to the enjoined Services. 

 

9.1.2.Zenlayer will have no obligation under Sections 9.1. or 9.1.1. for any claim of infringement to the extent that it results from Service(s) or portions or components thereof: (i) that are not supplied by Zenlayer, (ii) that are made in whole or in part in accordance to Customer’s specifications, (iii) that are modified after shipment or deployment by Zenlayer, if the alleged infringement relates to such modification, (iv) that are combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, (vi) where Customer’s use of the Service(s) is incident to an infringement not resulting primarily from the Service(s) and its intended application, or (vii) where Customer’s use is not strictly in accordance with this Agreement. 

 

9.1.3.THE PROVISIONS OF THIS SECTION 9.1 SET FORTH ZENLAYER’S SOLE AND EXCLUSIVE OBLIGATIONS, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND. 

 

9.2.Customer Indemnification. Customer shall indemnify, defend, and hold Zenlayer and its Affiliates harmless from and against any and all Actions brought by a third party against Zenlayer or its Affiliates to the extent arising out of, alleging, or relating to: (a) any breach of Section 3. of this Agreement by Customer or its End Users; (b) any bodily injury or property damage caused by Customer, its End Users, or its or their authorized personnel; or (c) infringement or misappropriation of any intellectual property rights by Customer, including those excluded from Zenlayer’s indemnity obligation by Section 9.1.2. 

 

9.3.Notice. Each party’s indemnification obligations in this Agreement shall be subject to (i) receiving prompt written notice of the existence of any Action; (ii) being able to, at its option, control the defense and any related settlement of such Action; (iii) permitting the indemnified party to participate in the defense of any Action at its own expenses; and (iv) receiving reasonable cooperation from the indemnified party in the defense thereof. Notwithstanding the foregoing, neither Party may settle any Action against the other Party without that party’s prior written consent, which shall not be unreasonably withheld. 

 

10.OPERATIONAL MATTERS.  

 

10.1.Security. Customer acknowledges and agrees that Zenlayer is not responsible for the security of Customer’s services, connections, or traffic, and has no obligation to ensure and makes no representations or warranties concerning the security of such Services, including but not limited to, any communications, connections, or traffic passing through Zenlayer’s network or equipment.  

 

10.2.Content.  Zenlayer shall have no liability or responsibility for the content of any communications transmitted via the Services. Customer agrees that it shall make no claim whatsoever against Zenlayer relating to the content of the Internet or respecting any information, product, service, or software ordered through or provided by the Internet.  

 

10.3.Service Level Agreement. Zenlayer agrees to provide the Services to Customer in accordance with the SLA. In the event of an interruption in Service (“Service Outage”), Customer shall be entitled to a credit as set forth in the applicable SLA. The SLA provides the sole remedy for service interruption or service problems for that Service. Under no circumstances shall a Service Outage be deemed a default under this MSA or any SOF. 

 

10.4.Maintenance. Zenlayer may suspend Services for network maintenance. Zenlayer will provide Customer with reasonable prior notice of any routine or scheduled maintenance downtime. In the event that emergency downtime is required, Zenlayer will provide as much notice as is practicable under the circumstances. In all events, Zenlayer will endeavor to minimize disruptions to the Services. Maintenance downtime, whether planned or unexpected, will not be considered a Service Outage and is not entitled to any credits.  

 

11.SUSPENSION; TERMINATION. 

 

11.1.General. Zenlayer processes all Service terminations at the end of each calendar month. Any notice of early termination must be delivered to Zenlayer in writing and will be effective thirty (30) days after receipt. 

 

11.2.Failure to Pay. Zenlayer, without prejudice to its other rights at law or in equity, may suspend or terminate this Agreement or any Service immediately and without further notice, if Customer fails to pay any overdue undisputed invoiced amount and does not cure such default within thirty (30) days after written notice from Zenlayer. After such termination for failure to pay, Zenlayer may dispose of Customer’s equipment or take possession of any leased Zenlayer equipment, and Customer shall remain responsible for all unpaid invoiced amounts and the Termination Payment, if applicable.   

 

11.3.Temporary Suspension of Services Without Prior Notice.  Customer agrees and accepts that Zenlayer shall be entitled to suspend Services without prior notice in circumstances where prior notice is not practicable, including : (i) “Network flooding” or “DDOS” attacks at Zenlayer premises or on Zenlayer servers; (ii) the Service(s) or a data center is being affected by viruses or malware; (iii) faulty hardware that requires repair or replacement; (iv) Services being used in violation of the terms and conditions in this Agreement, the SOF, the SLA or any Data Protection Addendum; (v) to protect equipment in the event of a threat of breakdown or where there is valid reason to believe that not suspending Service(s) would cause loss to other customers; (vi) in cases where suspension is required by law; or (vii) in such other circumstances as Zenlayer may reasonably determine.  Zenlayer shall inform Customer as soon as possible of any suspension of Service under this Section.  

 

11.4.Termination for Cause.  

 

11.4.1.Either party may immediately terminate this Agreement, any Service or SOF by written notice to the other Party if: (i) the other Party breaches any material term or condition of this Agreement (including but not limited to Sections 3., 7.4., and 7.5.) or SOF and fails to cure such breach within thirty (30) days after receipt of written notice of the same; (ii) the other Party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing; or (iii) the other Party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing. 

 

11.4.2.Zenlayer may immediately terminate or suspend this Agreement, any SOF, or any Services without notice if Customer breaches any of its representations or warranties or its obligations under Sections 3.1. or 3.2. above, or if Zenlayer receives a court- or government-ordered suspension or termination. 

 

11.5Termination for Convenience. Subject to Section 11.6., Customer may terminate a Service prior to the natural expiration of its Term for any reason with at least thirty (30) days’ prior written notice.   

 

11.6.Termination Payment. If Customer terminates a Service or SOF before the expiration of its applicable Service Term for any reason other than pursuant to Section 11.4.1., or Zenlayer terminates a Service early for failure to pay in accordance with Section 11.2., Customer shall incur an early Termination Payment charge as its sole liability for an early termination. Customer agrees that if a Service is terminated, the actual anticipated loss that Zenlayer would likely suffer would be difficult or impossible to determine and the charges set forth herein constitute a reasonable estimate of the anticipated loss from such termination and do not constitute a penalty. The Termination Payment shall become due and payable immediately upon termination.  

 

11.7.Effect of Termination. Upon the effective date of termination of any SOF or Service: (i) Zenlayer will cease providing all applicable Services; and (ii) Zenlayer will invoice Customer for any and all payment obligations under this Agreement and such SOF for Services provided up to the date of termination, including the Termination Payment, if applicable. Customer shall promptly pay and settle all outstanding invoices. 

 

11.8.Service Reactivation. If a Service was suspended or terminated pursuant to Sections11.2., 11.3.(iv), or 11.4., Zenlayer shall have sole discretion in determining whether to reactivate the suspended or terminated Service at Customer’s request. Customer shall bear all costs associated with reactivation of  Service. 

 

12.DISPUTE RESOLUTION. 

 

12.1.Dispute Resolution.  The dispute resolutions of this Section 12.1 shall be the exclusive mechanism to resolve disputes under this Agreement. The Parties agree to use their respective best efforts to resolve any dispute(s) that may arise out of or in connection with this Agreement, SOF, SLA, or non-disclosure agreement (“Issue”).   

 

12.1.1.In the event of an Issue, the initiating Party shall notify the other Party no later than thirty (30) days after the discovery of the Issue (“Issue Notice Date”). The Parties agree that they shall first endeavor to resolve the Issues through informal negotiations within thirty (30) days after the Issue Notice Date. If the Parties are unable to resolve the dispute in good faith through the informal negotiations, including through escalation of the Issues to senior executives of each Party, within thirty (30) days of the Issue Notice Date, the Issue shall be resolved by arbitration, in accordance with Section 12.1.2 below. The Parties agree that arbitration shall be the exclusive means for resolving Issues which the Parties cannot otherwise resolve through informal negotiations. 

 

12.1.2.Arbitration. Any claim, dispute, or controversy of whatever nature arising out of or relating to this Agreement or any Services provided pursuant to this Agreement, including, without limitation, any action or claim based on tort, contract, or statute, or concerning the interpretation, effect, termination, validity, performance and/or breach of this Agreement or Services rendered hereunder ("Claim"), shall be resolved by final and binding arbitration (except to the extent that final and binding arbitration of disputes involving the payment of fees is prohibited by California law). The initiating Party shall have thirty (30) days from the last date of informal negotiations to submit a Claim for arbitration. The arbitration shall be conducted by and submitted to a single arbitrator ("Arbitrator") selected from JAMS ("JAMS"), in accordance with its then existing Comprehensive Arbitration Rules & Procedures; however, upon the written demand of any party to the arbitration, the arbitration shall be conducted by and submitted to three Arbitrators selected from and administered by the JAMS Comprehensive Arbitration Rules & Procedures. The arbitration hearing shall be held in Los Angeles, California in accordance with California Code of Civil Procedure §§ 1280 et seq., unless Customer is a non-U.S. entity, in which case the arbitration may be held in a different mutually agreeable venue. The language of the arbitration shall be in English. Each Party shall be responsible for its own arbitration fees.  

 

The arbitration provisions of this Agreement shall not prevent any Party from obtaining injunctive or other equitable relief from a court of competent jurisdiction to enforce the obligations for which such Party may obtain provisional relief pending a decision on the merits by the arbitrator. 

 

The Arbitrator(s) shall NOT be authorized to reform, modify or materially change this Agreement or other agreements entered into between the parties. Each Party shall bear its own attorneys' fees, costs and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the Arbitrator(s) and JAMS; however, the Arbitrator(s) shall be authorized to determine whether a Party is the prevailing Party and, if so, to award to that prevailing Party reimbursement for its reasonable attorneys' fees, costs and disbursements (including, for example, expert witness fees and expenses, photocopy charges, travel expenses, etc.), and/or the fees and costs of the Arbitrator(s) and JAMS. The Arbitrator(s), and not a court, shall also be authorized to determine whether this arbitration provision applies to a Claim sought to be resolved hereunder. The Arbitrator(s) shall, within fifteen (15) calendar days after the conclusion of the arbitration hearing, issue a written award and a written statement of decision describing the material factual findings and conclusions on which the award is based, including the calculation of any damages awarded. 

 

Absent the filing of an application to correct or vacate the arbitration award under California Code of Civil Procedure sections 1285 through 1288.8, each Party shall fully perform and satisfy the arbitration award within fifteen (15) days of the service of the award. Judgment on the award may be entered by any court of competent jurisdiction. By agreeing to this binding arbitration provision, the Parties understand that they are waiving certain rights and protections which may otherwise be available if a Claim were determined by litigation in court, including, without limitation, the right to seek or obtain certain types of damages precluded by this arbitration provision, the right to a jury trial, certain rights of appeal, and a right to invoke formal rules of procedure and evidence. 

 

The Parties agree that they shall endeavor to resolve any such Claim submitted for arbitration within 180 days from the first scheduled date of commencement of arbitration proceedings.   

 

13.MISCELLANEOUS PROVISIONS. 

 

13.1.Force Majeure.  Except for the obligation to pay for Services already rendered by Zenlayer, neither Party will be liable for any failure or delay in its performance under this Agreement or any SOF due to any cause beyond its reasonable control, including acts of war, acts of God, terrorism, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, unforeseen technical or utility failure, governmental act, or failure of the Internet, provided that the delayed Party: (a) gives the other Party prompt notice of such cause, and (b) uses its reasonable commercial efforts to promptly correct such failure or delay in performance.  

 

13.2.Intellectual Property. Zenlayer grants to Customer a non-exclusive, non-transferrable license to use Zenlayer’s intellectual property for the sole purpose of using the Service(s) as contemplated in this Agreement. Customer shall not reproduce, modify, adapt, translate, reverse engineer, or disassemble any software or Service. Except for the limited license granted in this Section, all legal and beneficial rights in and to Zenlayer’s intellectual property will at all times remain the sole property and right of Zenlayer. 

 

13.3.No Third-Party Beneficiaries. Zenlayer and Customer agree that, except as otherwise expressly provided in this MSA, there shall be no third-party beneficiaries to this MSA, including but not limited to the insurance providers for each Party and Customer’s End Users. 

 

13.4.Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California,  without regard to conflict of law provisions or the UN Convention on the International Sale of Goods.  

 

13.5.Legal Compliance. By executing this Agreement, each Party represents and warrants that (i) it is not located in a country that is subject to a U.S. embargo, or that has been designated by the United States as a “terrorist supporting” country, (ii) it is not listed on any U.S. government list of prohibited or restricted parties, including the United States Department of Commerce’s Bureau of Industry and Security’s Entity List, and (iii) it is not listed as a prohibited or restricted party in any of the territories in which Services under this Agreement are to be delivered.  

 

13.6.Anti-Bribery and Anti-Corruption. Each Party shall comply with all applicable laws and regulations on bribery, corruption, and prohibited business practices. In conformity with the Foreign Corrupt Practices Act and with Zenlayer’s corporate policies regarding foreign business practices, Customer shall not directly or indirectly make an offer, payment, promise to pay or authorize the giving of anything of value for the purpose of influencing an act or decision of an official, employee, candidate or party of any government (including a decision not to act) or inducing such a person to use their influence to affect any such governmental act or decision in order to assist Zenlayer in obtaining, retaining or directing any such business.  

 

13.7.Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, that provision of the Agreement may be amended to achieve as nearly as possible the intent of the Parties, and the remainder of this Agreement will remain in full force and effect.   

 

13.8.Waiver.  The failure by either Party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. Neither Party will be deemed to have waived any rights or remedies hereunder unless such waiver is in writing and signed by a duly authorized representative of the Party against which such waiver is asserted. 

 

13.9.Assignment. This Agreement may not be assigned directly, indirectly, or by operation of law, in whole or in part, by either Party without the express prior written consent of the other Party.  

 

13.10.Relationship of Parties. Zenlayer and Customer are independent contractors, and this Agreement does not establish any relationship of joint venture, employment, franchise, or agency between the Parties. Except as expressly provided herein, neither Party nor its employees have the right or authority to exercise any control whatsoever over the activities or operations of the other Party or to bind or commit the other Party in any way or to incur any obligation on its behalf.   

 

13.11.Entire Agreement; Counterparts; Originals. This Agreement, including any applicable SLA, and all properly executed SOF incorporated herein, constitutes the complete and exclusive agreement between the Parties relating to its subject matter, and supersedes and replaces any prior or contemporaneous discussions, negotiations, understandings, and agreements, written and oral, relating to its subject matter, and all past dealing or industry custom.  This Agreement and any SLA or SOF may be executed in any number of counterparts. Each counterpart will be deemed an original and all counterparts will constitute one agreement binding on both Parties. Electronic signatures will be considered binding for all purposes. 

 

13.12.Modifications and Amendment. This Agreement and any SOF may be changed or modified only by a written document signed by authorized representatives of both Parties. 

 

13.13.Survival. The expiration or termination of this MSA shall not relieve either Party of those obligations that by their nature are intended to survive. 

 

13.14.Headings. The clause headings contained herein are for convenience and are not to be used in its interpretation. 

 

13.15.Notification of Substantial Change. Customer shall notify Zenlayer of any substantial change to Customer’s business, including but not limited to a change of entity name. 

 

13.16.Notice.  Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, sent by e-mail (with proof of receipt or delivery via electronic logs), or United States certified mail, return receipt requested, to the address set forth below or at such other address as may hereafter be furnished in writing by each Party to the other Party.  

 

All notices to Zenlayer shall be addressed to the following: 

 

Zenlayer Inc. 

21680 Gateway Center Drive, Suite 350 

Diamond Bar, California 91765 

legal@zenlayer.com 

Attention: Legal Affairs  

 

Billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer. All other notices to Customer will be addressed to the relevant Services system administrator designated by Customer. 

 

13.17.Execution and Conflict of Terms. In the event of a conflict between the terms and provisions set forth in this MSA, the associated SLA, and any SOF, precedence shall be given to the SOF, followed by SLA, and then the MSA.