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THIS GENERAL TERMS AND CONDITIONS OF SERVICE AGREEMENT (“Agreement”) is made effective as of the Effective Date, by and between you (“Customer”, “You”, whether or not capitalized), and COSMIC WOOD LIMITED. and/or its Affiliates (“COSMIC WOOD”). Use of COSMIC WOOD’s service constitutes acceptance and agreement to this Agreement.
As used in this Agreement, the following terms have the following meanings:
“Acceptable Use Policy” or “AUP” means COSMIC WOOD’s Acceptable Use Policy, which Customer agrees to adhere to, and is attached to this Agreement as Exhibit B.
“Affiliates” means any business entity in which COSMIC WOOD has an ownership interest or an affiliation. As of the Effective Date, Affiliates include RackIP Pte. Ltd.
“Customer End User” means a third party or its Affiliate which is an end user of a Customer Offering.
“Customer Offering” means services created by Customer, based in whole or in part on the Services, which are used by authorized third parties.
“Confidential Information” means all information disclosed by one of the parties to the other, whether before or after the Effective Date of the Agreement, that the recipient should reasonably understand to be confidential, including: (i) for Customer, all information transmitted to or from, or stored on, your COSMIC WOOD servers or other devices, (ii) for COSMIC WOOD, unpublished prices and other terms of service, audit and security reports, data center designs, and other proprietary technology, and (iii) for the both parties, information that is marked or otherwise conspicuously designated as confidential. Information that is developed by one of the parties on its own, without reference to the other’s Confidential Information, or that becomes available to one of us other than through a violation of the Agreement or applicable law, shall not be “Confidential Information” of the other party.
“Customer Content” means all data, text, pictures, sound, graphics, logos, marks, symbols, video, and other materials supplied by Customer to COSMIC WOOD pursuant to this Agreement, as such materials may be modified from time to time.
“Domain Name” means, collectively, the domain name or names specified for the Website by Customer from time to time, which are listed in the Service Orders.
“Effective Date” means the date on which Customer first install, order and/or begin using the Services
“COSMIC WOOD Facility” means COSMIC WOOD’s Internet-based data center and network.
“Service” or ‘Services” means the website or server hosting, network access, and other online delivery, maintenance, and support services provided by COSMIC WOOD to Customer hereunder, as described in Section 4.1 below.
“Privacy Policy” means COSMIC WOOD’s separate policy regarding privacy.
“Service Order” shall mean orders for Services on COSMIC WOOD’s standard service order forms, quotes, invoices, and/or professional services engagement agreements. Each Service Order will contain specific provisions with respect to prices, features, description of service, duration and other terms as appropriate.
“SLA” means the service level agreement attached hereto as Exhibit A.
“Term” has the meaning ascribed to it in Section 3.1, below.
“Website” means, collectively, all websites and content hosted by COSMIC WOOD for Customer in the configuration and according to the terms contained in the Agreement and Service Orders.
The term and conditions contained in this Agreement shall be binding upon any Service Order together with any supplemental terms and conditions, including the SLA, Acceptable Use Policy, Privacy Policy, and any other exhibit to this Agreement.
The term of this Agreement shall commence on the Effective Date and shall continue in effect for the period specified on the Service Order. Thereafter, this Agreement shall automatically renew for successive one-year periods unless the Service Order is for month-to-month terms unless Customer notifies COSMIC WOOD in writing of its desire not to renew this Agreement at least 30 days prior to the expiration of the then-current term. The initial term and any and all renewal terms are referred to herein as the “Term.”
If either party is in breach of this Agreement or any Service Order (other than for failure by Customer to pay any undisputed amounts, which is covered in Section 6.8), the non-breaching party shall give the breaching party thirty (30) calendar days’ notice in writing of such breach. If the breach has not been cured to the non-breaching party’s reasonable satisfaction within the thirty (30) day period, then the non-breaching party may terminate the applicable Service Order, without penalty, effective at the end of such thirty (30) day period immediately upon written notice to the breaching party. No termination for breach pursuant to this Section shall constitute or permit termination of any portions of this Agreement or any Service Order not breached or affected by such breach.
Customer may cancel services with contracted terms within the initial 30 days by providing COSMIC WOOD with written notice within the initial 30 days. COSMIC WOOD does not offer any refunds and services will be terminated at the end of the 30 day term, any obligation for future monthly payments will be cancelled. This is conditioned on Customer returning any software and/or hardware that was provided to Customer under this Agreement and/or Service Order. If Customer terminates or cancels service under any Service Order for reason other than COSMIC WOOD’s breach prior to such Service Order’s agreed expiration date, Customer will pay COSMIC WOOD (a) a termination fee that includes all non-recurring, disconnection or termination charges reasonably incurred by COSMIC WOOD; and (b) the full amount of the remaining monthly charges due and payable within five (5) days after the effective date of termination of the Service Order.
Upon the termination of this Agreement, COSMIC WOOD will remove and erase the Customer Content. It is NOT COSMIC WOOD’s duty, responsibility, or contractual obligation to return the Customer Content to Customer before it is removed and erased from COSMIC WOOD’s equipment. It is Customer’s sole responsibility to obtain copies of the Customer Content before such termination.
Provision of Services. COSMIC WOOD will provide the Services, subject to the terms of the Agreement. COSMIC WOOD grants Customer a non-exclusive, non-transferable, non-sublicenseable, revocable right to: (a) use and access the Services for internal purposes; and (b) use the Services to create, offer and provide Customer Offerings. COSMIC WOOD retains the right to reject a request for Services. COSMIC WOOD may change, discontinue, add, modify, re-price or remove features or functionality from the Services upon notice to Customer provided through the Customer Portal. It is Customer’s responsibility to review the Customer Portal for such notices on a frequent basis. If Customer continue to use the Services following any such modification, Customer will be deemed to have accepted such modification.
Customer agrees to: (i) comply with all applicable laws, rules and regulations, including, without limitation, all applicable anti-corruption and intellectual property laws, and the respective acts; (ii) pay the fees for the Services when due; (iii) use reasonable security precautions for providing access to the Services and immediately notify COSMIC WOOD of any known or suspected unauthorized use; (iv) cooperate with COSMIC WOOD’s investigation of outages, security problems, and any suspected breach of the Agreement; (v) comply with all license terms or terms of use for any software, content, service or website which Customer uses or access when using the Services; (vi) keep Account Information current; (vii) be responsible for the use of the Services by Customer, Customer End Users and other parties to whom Customer gives access to the Services or Customer Offering; (viii) comply with the COSMIC WOOD’s AUP; and (ix) where Customer provides a Customer Offering, enter into an agreement with Customer’s Customer End Users which includes terms necessary to meet Customer’s obligations under this Agreement and releases COSMIC WOOD and its Affiliates from liability for damages or losses Customer End Users may incur as a result of using the Customer Offering. Customer may not use the Services (a) in any situation in which failure or fault of the Services could lead to death or serious bodily injury, or to physical or environmental damage, including but not limited to, use with aircraft or other modes of mass transportation, nuclear or chemical facilities. Customer may not resell any of the Services alone to any third party without first entering into a reseller agreement with COSMIC WOOD; (x) grant to COSMIC WOOD a worldwide, non-exclusive, non-sublicensable, non-transferable, royalty-free license during the Term to reproduce, distribute, publicly perform, publicly display, and digitally perform the Customer Content for the sole purpose of providing Services hereunder.
In the event that it becomes necessary to transfer or move the COSMIC WOOD Facility, or to relocate the equipment used to provide Services to another physical hosting site, Customer hereby consents to any such transfer, move, or relocation that may occur during the Term. COSMIC WOOD shall provide Customer two (2) weeks advance written notice of such relocation. For purposes of the SLA, such relocation shall be deemed Planned Downtime, as defined in the SLA.
Customer agrees that connectivity shall not exceed the number of megabits per second per month for the Services ordered by Customer on any Service Order. If connectivity exceeds the agreed upon number of megabits per second per month, COSMIC WOOD, in its sole discretion, may (i) assess additional standard charges (as provided in the Service Order), and if such charges are not paid within five (5) days after written notice, Customer shall be in default of this Agreement; or (ii) rate limit the amount of connectivity Customer can use up to the amount specified in the Service Order, and COSMIC WOOD shall have all of its rights and remedies set forth in Section 3.2 above. In the event that COSMIC WOOD elects to discontinue the Services or terminate this Agreement, Customer shall not be entitled to a refund of any fees paid in advance of such action. COSMIC WOOD’s failure to take any such action in a given month or months shall not constitute a waiver of COSMIC WOOD’s right to take any such action under this Section in a future month.
Installation and all other non-recurring charges, and monthly recurring charges will be set at the rates set forth for the specific Service Order. Except for usage-based Services, which are billed in arrears, the Services are billed one (1) month in advance and the first billing cycle may include a partial month and full month of Services. All fees and charges are payable for the duration of the Term, regardless of whether Customer actually uses the Services.
Prices established in this Agreement and the applicable Service Order are exclusive of taxes and other fees which may be imposed on COSMIC WOOD or Customer for the provision or use of the Services. Customer will pay such taxes and other fees, except for COSMIC WOOD’s respective taxes and other fees under the laws of the Republic of Singapore.
Non-recurring charges will be due from Customer upon signing of the applicable Service Order.
Charges for all services are due and payable upon receipt of an invoice by Customer. All payments shall be made in U.S. currency without any deduction or offset except as specifically provided in writing by COSMIC WOOD.
If Customer does not pay the amount due (or for non-recurring charges, within ten (10) days following receipt of the Service Order), Customer will pay a late payment interest at the rate of one and one half percent (1.5%) of the amount due per month or such other rate or rates as may be permitted under applicable law.
Customer will be billed charges each month by billing Customer’s credit card or, where available, by invoice for payment due by electronic funds transfer, or by such other method as approved by COSMIC WOOD. By providing credit card information, including relevant personal data, Customer agrees COSMIC WOOD can use such information to process payment of charges. Payment of charges will be automatic on the due date. Customer is responsible to keep information current to avoid service disruption and a late payment fee of US Dollar (“USD”) 20 (or equivalent in local currency).
All fees paid for Services are non-refundable. If Customer believe that any fee for the Services is incorrect, Customer’s exclusive remedy is to seek SLA credits by opening an accounting ticket within 15 days of Customer’s receipt of the disputed bill. Any charges not disputed by Customer within 15 days of receipt will be deemed conclusively accepted by Customer. Customer may not chargeback any credit card payments to COSMIC WOOD and any such chargeback will result in an additional payment to COSMIC WOOD of up to USD 500, which Customer agrees is a reasonable estimate of COSMIC WOOD’s additional administrative costs. Customer is responsible for any fees and costs (including, but not limited to, reasonable attorneys’ fees, court costs and collection agency fees) incurred by COSMIC WOOD in enforcing collection of fees.
If payment in full for Services performed under any Service Order (other than for payments validly disputed by Customer in good faith) is not received on its due date, COSMIC WOOD shall have the right to suspend Services until such time as Customer has paid such charges in full, including any late fees. COSMIC WOOD shall give Customer written notice of its right to suspend Services and provide Customer seven (7) day advance notice from delivery before such suspension. Following such payment, COSMIC WOOD shall immediately reinstate the Services. Failure by Customer to pay for such Services within seven (7) days after any suspension shall be deemed to constitute a termination of the Services. At such termination, all remaining payments to COSMIC WOOD under the relevant Service Order shall be due immediately. No cancellation or termination under this Section shall relieve Customer from its obligations to pay for Services under any Service Order not so cancelled or terminated.
7.1 Customer assumes total responsibility and risk for customer’s use and its end users’ use of services provided by COSMIC WOOD. customer acknowledges that the internet (1) contains materials some of which are sexually explicient or may be offensive to some people and (2) is accessible by persons who may attempt to breach the security of COSMIC WOOD and/or customer’s network facilities. COSMIC WOOD has no control over and expressly disclaims any liability or responsibility whatsoever for the content or materials transmitted over the internet, service interruptions attributable to customer’s network, and customer equipment failures, or any other such causes, and customer and customer’s end users access the services at their own risk.
7.2 Except as expressly provided in COSMIC WOOD ‘s sla, all services are furnished by host and accepted by customer “as is,” “with all faults,” and without any warranty whatsoever. All other warranties, express or implied, including any warranties of title, noninfringement, merchantability, or fitness for any particular purpose, are specifically excluded and disclaimed by COSMIC WOOD. COSMIC WOOD does not warrant that any product or service will meet customer’s requirements or that it will be uninterrupted or error free. No advice or information given by COSMIC WOOD, its affiliates, its contractors, its agents, or their respective employees shall create a warranty of any type or nature.
8.1In no event will COSMIC WOOD be liable to customer or any other person for any lost profits, lost savings, lost data, or special, consequential, punitive or incidental damages, whether arising out of or relating to this agreement or any product or service furnished or to be furnished under this agreement or otherwise, even if COSMIC WOOD has been advised of the possibility of such loss or damage. Notwithstanding anything in the agreement to the contrary, the maximum aggregate monetary liability of COSMIC WOOD and any of its employees, agent, suppliers, or affiliates, under any theory of law (including breach of contract, tort, strict liability, and infringement) shall not exceed an amount equal to the sum of the payments made by customer to COSMIC WOOD during the six (6) months immediately preceding the event for which losses or damages are claimed.
8.2 THIRD PARTY PRODUCTS AND SERVICES. Without limiting the foregoing Section 8.1, COSMIC WOOD will have no responsibility for the adequacy or performance of
8.3 DATA CONTROL, BACKUP SERVICES, AND RESPONSIBILITY
9.1Customer shall defend COSMIC WOOD against any third party claim, action, suit, or proceeding alleging facts that (if true) would constitute a breach of any covenant contained in Section 4.2(c), and Customer shall indemnify COSMIC WOOD for all losses, damages, liabilities, costs, and expenses (including without limitation, reasonable attorney fees) incurred by COSMIC WOOD as a result of a final judgment entered against COSMIC WOOD in any such claim, action, suit, or proceeding.
9.2 COSMIC WOOD INDEMNITY. COSMIC WOOD will defend and indemnify Customer, its employees, directors, officers and agents, from and against any suit, proceeding or other claim brought by an entity (not a party to or an affiliate of a party to this Agreement) that is caused by, arises from, or relates to damage to real or tangible personal property or personal injuries (including death) arising out of the gross negligence or willful act or omission of COSMIC WOOD in the provision of Services.
9.3 INDEMNITY PROCEDURE. An indemnifying party’s obligations under this Section 9 are conditioned on the indemnified party: (a) giving the indemnifying party prompt written notice of any claim, action, suit, or proceeding for which the indemnified party is seeking indemnity under Section 9.1 or 9.2; (b) granting control of the defence and settlement to the indemnifying party; and (c) reasonably cooperating with the indemnifying party at the indemnifying party’s expense.
Subject to the license granted to COSMIC WOOD in Section 4.2(x), neither party shall use any copyrights, patents, trade secrets, trademarks, trade names, service marks, license rights or other intellectual property rights (collectively “Intellectual Property”) owned, licensed or used by the other party. Upon the expiration or termination of this Agreement or any applicable Service Order, any Intellectual Property, including any copies thereof, shall be returned to the other party. Each party hereby disclaims any right, title and interest in any Intellectual Property owned, used, or licenses by the other party.
Subject to the license granted to COSMIC WOOD in Section 4.2(x), neither party shall use any copyrights, patents, trade secrets, trademarks, trade names, service marks, license rights or other intellectual property rights (collectively “Intellectual Property”) owned, licensed or used by the other party. Upon the expiration or termination of this Agreement or any applicable Service Order, any Intellectual Property, including any copies thereof, shall be returned to the other party. Each party hereby disclaims any right, title and interest in any Intellectual Property owned, used, or licenses by the other party.
COSMIC WOOD shall maintain and control ownership of all IP numbers and addresses that may be assigned to Customer by COSMIC WOOD. COSMIC WOOD reserves, in its sole discretion, the right to change or remove any and all such IP numbers and addresses upon five (5) days prior written notice to Customer.
The parties agree not to use the other’s Confidential Information except in connection with the performance or use of the Services, as applicable, the exercise of the parties’ respective legal rights under the Agreement, or as may be required by law. Each of us agrees not to disclose the other’s Confidential Information to any third person except as follows: (i) to our respective service providers, agents and representatives, provided that such service providers, agents or representatives agree to confidentiality measures that are at least as stringent as those stated in this Agreement; (ii) to law enforcement or government agency if requested, or if either of us reasonably believes that the other’s conduct may violate applicable criminal law; (iii) as required by law; or (iv) in response to a subpoena or other compulsory legal process, provided that each of us agrees to give the other written notice of at least seven (7) days prior to disclosing Confidential Information under this subsection (or prompt notice in advance of disclosure, if seven days advance notice is not reasonably feasible), unless the law forbids such notice.
During the Term and for twelve (12) months thereafter, Customer agrees that Customer, either on Customer’s own behalf or in conjunction with any third party, will not directly or indirectly solicit COSMIC WOOD’s employees, independent contractors or agents for employment, consulting or other services for either Customer or any third party without the prior written consent of COSMIC WOOD.
Each party shall execute all documents and exhibits and perform all acts deemed required by this Agreement.
This Agreement and its exhibits, Service Orders and Signatory Page constitute the complete and exclusive statement of the agreement among the parties with respect to the matters discussed herein and therein and they supersede all prior written or oral statements among the parties, including any prior statement, warranty, or representation.
This Agreement shall be governed and construed in accordance with the laws of the Republic of Singapore , without reference to rules regarding conflicts of laws.
Each party shall comply with all applicable laws and regulations in the course of performing under this Agreement.
If any provision of this Agreement is determined by any court of competent jurisdiction to be invalid or unenforceable, such provision shall be interpreted to the maximum extent to which it is valid and enforceable, all as determined by such court in such action, and the remaining provisions of this Agreement shall, nevertheless, continue in full force and effect without being impaired or invalidated in any way.
Headings used in this Agreement are for reference purposes only and in no way define, limit, construe, or describe the scope or extent of such section or in any way affect this Agreement.
The parties’ respective representations and covenants, together with obligations of indemnification, confidentiality and limitations on liability will survive the expiration, termination or rescission of this Agreement and continue in full force and effect.
All pronouns and common nouns shall be deemed to refer to the masculine, feminine, neuter, singular, and plural, as the context may require. In the event that any claim is made by any party relating to the drafting and interpretation of this Agreement, no presumption, inference, or burden of proof or persuasion shall be created or implied solely by virtue of the fact that this Agreement was drafted by or at the behest of a particular party or its counsel.
Customer agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of COSMIC WOOD services must be filed within one (1) year after such claim or cause of action arose or be forever barred.
Customer may not assign, license, sublicense or otherwise transfer this Agreement without the prior written consent of COSMIC WOOD, which consent may be withheld in COSMIC WOOD’s sole discretion, provided that Customer shall have the right to assign this Agreement to a successor to Customer by merger or consolidation or to an entity that purchases the assets or ownership interests of Customer.
The parties to this Agreement are independent contractors, and no agency, partnership, joint venture, or employee-employer relationship is intended or created by this Agreement. Neither party shall have the power to obligate or bind the other party.
Time is of the essence with respect to the performance of all obligations to be performed or observed by the parties under this Agreement.
Except where provided otherwise, notices hereunder shall be in writing and shall be deemed to have been fully given and received when delivered by hand, sent by nationally recognized overnight courier, or sent by registered or certified mail, return receipt requested, postage prepaid, and properly addressed to the offices of the respective parties at the addresses set forth by the parties’ signatures. The notices shall be served to the addresses of the parties of listed on the applicable Service Order.
Customer agrees to receive and/or obtain any and all Service Orders, billing statements and other notifications from COSMIC WOOD via electronic communications. Customer acknowledges that, for Customer’s records, Customer is able to use COSMIC WOOD’s online services to retain electronic communications by printing and/or downloading and saving this Agreement and any other agreements and electronic communications, documents or records that Customer agrees to using an E-signature. Customer accepts electronic communications from COSMIC WOOD as reasonable and proper notice, for the purpose of any and all laws, rules and regulations, and agree that such electronic form fully satisfies any requirement that such communications be provided to Customer in writing or in a form that Customer may keep.
COSMIC WOOD may modify the terms and conditions of this Agreement. Pursuant to Section 15.15, COSMIC WOOD will notify its Customers through electronic communications of any such modifications. All modifications shall be effective upon their publication on COSMIC WOOD’s website. It is the Customer’s responsibility to review COSMIC WOOD’s online services for such modifications on a frequent basis. If Customer continues to use the Services following any such modification, such use will be deemed acceptance of such modification by Customer. Any modifications requested by Customer to any of the terms of the Agreement must be approved in writing by COSMIC WOOD.
This Agreement may only be amended by a written instrument signed by each of the parties. A waiver of any right under any provision of this Agreement by either party hereunder shall be valid only if such waiver is in writing and signed by the party to be charged. No waiver of any right under any provision of this Agreement on any occasion shall be a waiver of any other right or under any other provision or on any other occasion. No extension of time for performance of any obligation or act shall be deemed an extension of the time for performance of any other obligation or act.
COSMIC WOOD will use its reasonable efforts to ensure the network service is available 99.9% within any calendar month during the term of the Agreement.
In any given month, if the availability of the network service is below 99.9% due to COSMIC WOOD’s fault, the Customer shall be entitled to the rebate in accordance with the Table below, once the Customer has made full payment of the particular month and without any outstanding payment. Maximum refund of a month shall not exceed 50% of the monthly subscription charge:
| Service Availability in any calendar month | Total Downtime in any calendar month | Rebate (% of one month’s Recurring Charges for the affected network services) |
|---|---|---|
| >= 99.9% | <= 43 mins | 0% |
| >= 99.85% and <99.9% | > 43 mins and <= 1 hour | 5% |
| >= 99.50% and < 99.85% | > 1 hour and <= 3.6 hours | 10% |
| >= 99.00% and < 99.50% | > 3.6 hours and <= 7.2 hours | 20% |
| >= 97.85% and < 99.00% | > 7.2 hours and <= 15.5 hours | 30% |
| >= 90.0% and < 97.85% | > 15.5 hours and <= 72 hours | 40% |
| < 90.00% | > 72 hours | 50% |
A rebate for failure to achieve the uptime guarantee will (without limitation) NOT be payable where such failure is caused by any of the following:
COSMIC WOOD shall not be liable for any consequential or indirect loss or damage of the client caused by the failure of service.
Requests for rebate must be submitted in writing to our billing department within 2 business days of the related incident. The Customer must open a support case during the failure in question, including detailed information about the problem experienced and steps to reproduce the error symptoms. In most circumstances this will be considered as the start time for the downtime.
Rebate are non-transferable and may only be applied to future service delivery on the account they’re issued to, and cannot be exchanged for cash or other forms of payment. Any outstanding or previously accrued rebate will be forfeited upon cancellation of the Customer’s account.
The Customer shall not set-off any payment without written consent from COSMIC WOOD.
This Acceptable Use Policy (“AUP”) applies to all customers and users (“you” or “user”, whether or not capitalized) of COSMIC WOOD LIMITED and its affiliates (collectively, “COSMIC WOOD”) upon access to some of the networks, systems, products and services provided by COSMIC WOOD (collectively, “Services”).
User agrees to use the Services only for lawful purposes, in compliance with all applicable laws, and in compliance with this AUP. If User uses the Services for unlawful purposes or not in compliance with all applicable law, or is, or uses the Services, not in compliance with this AUP, then COSMIC WOOD may exercise the rights set forth in the “Violation” section of this AUP.
The AUP below describes certain actions relating to the content and operation of the Website which COSMIC WOOD considers to be inappropriate and thus prohibited. The examples identified in this list are provided as examples only for your guidance. If you are unsure whether any contemplated use or action is permitted, please contact COSMIC WOOD.
COSMIC WOOD takes no responsibility for any material created or accessible on any website, e- mail transmission, newsgroups, or other material created or accessible over or through the Services. COSMIC WOOD is not obligated to monitor or exercise any editorial control over such material, but reserves the right to do so.
COSMIC WOOD, in its sole discretion, will determine what action will be taken in response to a violation of this AUP on a case-by case basis. Violation of this AUP could also subject User to criminal or civil liability. COSMIC WOOD may block access at the router level to your Equipment involved. If COSMIC WOOD believes, in its sole discretion, that a violation of this AUP has occurred, such action may also include, but is not limited to, temporary or permanent blocking of accessing to your Equipment or data, and the suspension or termination of Services. COSMIC WOOD may involve and will also fully cooperate with law enforcement authorities in investigating suspected lawbreakers. COSMIC WOOD and its affiliates have no obligation to provide warnings under any circumstances and can terminate the customer’s account without prior notice if the customer violates the policy.
COSMIC WOOD reserves the right to modify this AUP at any time without notice. User is responsible for all use of the Services by itself, its employees, and customers.