Terms of Service

Upon signing up for/and or using the Services of ClusterTech, Subscriber agrees to comply with ClusterTech's Terms of Service (the “TOS”) set out herein below, the Acceptable Use Policy (the “AUP”), the Service Level Agreement (the “SLA”) of the Services and any policies, guidelines or amendments thereto that may be presented to the Subscriber from time to time (hereinafter collectively referred as “Agreement”) . The Subscriber also may be subject to additional terms and conditions that may apply when the Subscriber uses or purchases certain other ClusterTech’s Services, affiliate services, third-party content, or third-party software. ClusterTech reserves the right to update and change the Terms of Service, the AUP and the SLA from time to time without notice. The Subscriber can review the most current version of the Terms of Service at any time at https://portal.fengqi.asia.Unless otherwise stated, defined terms used herein shall have the same meanings throughout the Agreement.

Definitions
In these TOS, the following words have the following meanings unless the context otherwise requires:
Acceptable Use Policy means policy statements and/or set of rules applied by ClusterTech that describe prohibited uses of ClusterTech Services. ClusterTech reserves the right to impose reasonable rules and regulations regarding the use of its Services provided to all Subscribers and such rules and regulations are subject to change. Such rules and regulations are located on the Internet at https://portal.fengqi.asia.
Agreement means collectively the TOS, the AUP, the SLA of the Services and all supplementary terms, any policies, guidelines or amendments posted on ClusterTech’s web site: https://portal.fengqi.asia. ClusterTech means Cluster Technology Limited, headquartered at Unit 211-213, Lakeside 1, No. 8 Science Park West Avenue, Hong Kong Science Park, Shatin, N.T., Hong Kong.
Charges means the charges payable by the Subscriber pursuant to the terms of the Agreement, including, but not limited to, all once-off charges, recurring fees, deposits and other charges for which the Subscriber is liable; Intellectual Property Rights means patents, trademarks, design rights, applications for any of the foregoing, copyright topography rights, database rights, rights in know-how, trade or business names and other similar rights or obligations, in each case whether registrable or not in any country.
Service Level Agreement means any agreement or statement specified by ClusterTech as such, describing the level of service offered by ClusterTech, recording the understanding about services, priorities, responsibilities, guarantees and warranties, specifying the levels of availability, serviceability, performance, operation, or other attributes of the Services.
Services mean any services provided by ClusterTech to the Subscriber from time to time pursuant to the Agreement or as set out in the contents of ClusterTech’s quotation to the relevant Subscriber.
Subscriber means any legal entity (natural person, company or organization) which is identified on the application form or invoice whose application for the Services has been accepted by ClusterTech.
System means ClusterTech connected system of servers used to provide Services to the Subscriber.
User means all Subscribers and other users of the Services including those who access the same without the accounts with ClusterTech.
Content means all information, data, text, software, music, sound, photographs, graphics, video, messages, files, attachments, and other materials that are submitted to or generated from the Services.
Use of Services
1. ClusterTech will provide to Subscriber, and the Subscriber will take and pay ClusterTech for the provision of, the Services for the term hereof subject to and in accordance with the terms and conditions hereof.
2. The term of this Agreement will commence on the Effective Date and will remain in effect until the term ends or terminated by the Subscriber or ClusterTech in accordance with Section 10.
No Resale of Services
Subscriber agrees not to reproduce, duplicate, copy, sell, trade, resell, or exploit for any commercial purposes, any portion of ClusterTech Services, use of ClusterTech Services, or access to ClusterTech Services.
Intellectual Property Rights; Copyright Policy
1. Subscriber acknowledges that ClusterTech and its technology partners (including but not limit to Joyent, Inc.) own all rights, title and interest in and to the ClusterTech services, including without limitation all intellectual property rights (the “ClusterTech Rights”), and such ClusterTech Rights are protected by U.S. and international intellectual property laws. The ClusterTech Rights include rights to: (a) the ClusterTech Services developed and provided by ClusterTech and its technology partners and all trademarks and other intellectual property associated therewith; and (b) all software associated with the ClusterTech Services. The Subscriber agrees that the Subscriber will not copy, reproduce, alter, modify, or create derivative works from the ClusterTech Services or any Content placed on the ClusterTech Services by ClusterTech or any third party.
2. If the Subscriber believes that the Subscriber’s work has been copied and posted on the ClusterTech services without the Subscriber’s permission or in any way that constitutes copyright infringement, please provide ClusterTech with the following information: (i) a description of the copyrighted work that the Subscriber claims has been infringed; (ii) a description of where the material the Subscriber claims is infringing is located on the ClusterTech Services; (iii) the Subscriber’s address, telephone number, and email address; and a written statement by the Subscriber stating that the Subscriber has a good faith belief that the disputed use is not authorized by the Subscriber, the Subscriber’s agent, or the law; and (iv) a statement by the Subscriber, made under penalty of perjury, that the Subscriber owns the claimed infringing material together with any evidence of such ownership. Please contact ClusterTech at the following address: Cluster Technology Limited, Unit 211-213, Lakeside 1, No. 8 Science Park West Avenue, Hong Kong Science Park, Shatin, N.T., Hong Kong, Attn: Copyright Infringement.
Payment
1. In consideration for the provision of the Services, Subscriber will pay to ClusterTech the Charges notified by ClusterTech to the Subscriber from time to time. The Subscriber will be solely responsible to pay any taxes and other charges arising in relation to its use of the Services.
2. Terms of payment are net 14 days of ClusterTech invoice date (the “due date”), unless otherwise stated in the invoice or separately agreed with ClusterTech. Invoices for the Services may be issued in advance of the actual performance of the Services by post, electronic mail and/or facsimile transmission. ClusterTech may charge the Subscriber’s credit card if applicable. All payments are to be made in the currency specified on ClusterTech’s invoice. If the Subscriber does not follow payment terms, ClusterTech shall have the right to any or all of the following:
  1. suspend its obligations to provide the Services;
  2. terminate the Agreement;
  3. charge interest calculated from the due date for, to the actual date of payment of any amounts owing at the ClusterTech current overdraft rate.
3. The Subscriber will provide and deliver to ClusterTech proof of any payment made by the Subscriber to ClusterTech under the Agreement to the reasonable satisfaction of ClusterTech. Unless and until the Subscriber shall have complied with this sub-clause in respect of the relevant payment, ClusterTech shall have no obligation to provide any services.
4. All charges and payment to ClusterTech for its services are non-refundable unless expressly stated otherwise, or otherwise provided by applicable law. The cost of any returns if permitted will be at the Subscriber’s expense, unless otherwise provided by applicable law.
Subscriber’s Responsibilities
1. Subscriber shall provide ClusterTech for examination and verification proof of identity and constitution (whichever is applicable) and particulars of registered office or residential address (whichever is applicable) of the Subscriber as ClusterTech shall request including but not limited to (whenever applicable) identification card(s), , valid and current business registration certificate, and any other documents of identity and/or constitution of the Subscriber, and (where the Subscriber is not a natural person) of its authorized contact person for purpose of administration in respect of the Services, as ClusterTech shall reasonably request, and shall deliver to ClusterTech true and complete copies thereof upon request.
2. The Subscriber will provide ClusterTech with all necessary co-operation, information, data and support which ClusterTech may reasonably require for the provision of the Services at such times as ClusterTech requests.
3. The Subscriber warrants and undertakes that it will not make use of the Services in any manner which may infringe any Intellectual Property Rights or any applicable laws or regulations or which is otherwise in the sole and absolute opinion of ClusterTech immoral, improper, inappropriate, or objectionable, or to copy, reproduce, distribute, publish, transmit, or otherwise deal with any unsolicited advertising or promotional material or any material which is obscene, indecent, seditious, offensive, defamatory, discriminatory, immoral, improper, inappropriate, or objectionable, or the publication or distribution of which is in breach of the confidence of ClusterTech or any third party, or as a forum for viewing, posting up of messages or information, and discussion by the public or any section thereof (whether membership or registration is required or not and whether anonymous or otherwise) or forum of a similar nature, or allow the Services to be hacked or the computer hardware and software in connection with the Services to be modified or broke-in for any purpose outside of its original intended use or be reckless or ignorant as regards thereto.
4. The Subscriber's right to use the Services is restricted to the Subscriber. The Subscriber shall not license or permit or purport to license or permit any third party to use the Services. If the Subscriber designates more than one permitted user of the Services within its organization, the Subscriber shall bring the provisions of the Agreement to the attention of each permitted user and shall procure that each permitted user complies with the provisions of the Agreement. The Subscriber will be responsible for use of the Services by its permitted users and the indemnity given in Clause 13.1 shall extend to all such use of the Services.
5. The Subscriber is required to provide current, accurate identification, contact, and other information as part of the registration/application process and/or continued use of ClusterTech services. The Subscriber is responsible for maintaining the confidentiality of the Subscriber’s account password, and is responsible for all activities that occur under the Subscriber’s account. The Subscriber agrees to immediately notify ClusterTech of any unauthorized use of the Subscriber’s password or account or any other breach of security. ClusterTech cannot and will not be liable for any loss or damage arising from the Subscriber’s failure to provide us with accurate information or to keep the Subscriber’s password secure.
6. The Subscriber understands that it is the Subscriber’s sole responsibility regarding the Content. ClusterTech reserves the right, but does not assume the responsibility, to monitor or review any Content on ClusterTech services. The Subscriber agrees that the Subscriber is responsible for the conduct of all users of the Subscriber’s account and any Content that is created, transmitted, stored, or displayed by, from, or within the Subscriber’s account while using ClusterTech services and for any consequences thereof. The Subscriber agrees to use ClusterTech services only for purposes that are legal, proper and in accordance with the Terms of Service and any applicable policies or guidelines. The Subscriber agrees that the Subscriber will not engage in any activity that interferes with or disrupts ClusterTech services or servers or networks connected to ClusterTech services.
7. The Subscriber understands that it is the Subscriber’s responsibility for properly configuring and using of the Services and taking the Subscriber’s own steps to maintain appropriate security, protection and backup of the Content.
8. The Subscriber shall take regular backups of the Content. The Subscriber should set up, at the Subscriber’s expense and effort, a disaster recovery (DR) environment (or other means as appropriate) to maintain the desired availability and durability of the Content in case of a disaster or a service interruption. ClusterTech does not guarantee the recovery of any Content if the Subscriber does not set up a DR environment as part of the Services. In such situations, the Subscriber should take proactive measures to safeguard the Content and prepare to recover the Content at the Subscriber’s expense and effort. ClusterTech is not responsible for any unavailability or loss of Content resulting from Subscriber's failure to take adequate backup and/or DR measures in the event of a disaster or a service interruption.
Temporary Suspension
ClusterTech may suspend Subscriber or any User’s right to access or use any portion or all of the Services immediately upon notice to the Subscriber if ClusterTech determines:
1. The Subscriber’s or User’s use of the Services
  1. poses a security risk to the Services or any other ClusterTech’s Subscribers,
  2. may adversely impact the Services or the System or Content of any other ClusterTech’s Subscribers, or
  3. may subject ClusterTech, our affiliates, or any third party to liability;
2. The Subscriber, or any User is, in breach of this Agreement;
3. The Subscriber has ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of the Subscriber’s assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.
Effect of Suspension
1. If ClusterTech suspends Subscriber’s right to access or use any portion or all of the Services:
  1. The Subscriber remains responsible for all fees and charges incurred through the date of suspension;
  2. The Subscriber remains responsible for any applicable fees and charges for any Services to which the Subscriber continue to have access;
  3. The Subscriber will not be entitled to any service credits under the Service Level Agreements for any period of suspension; and
  4. ClusterTech may erase part or all of the Subscriber’s Content as a result of the suspension.
2. ClusterTech’s right to suspend the Subscriber’s or any End User’s right to access or use the Services is in addition to our right to terminate this Agreement pursuant to Section 9.
Termination
1. Termination for Convenience Subscriber and ClusterTech may terminate this Agreement for any reason by providing notice at least 14 days advance notice.
2. Termination for Cause
  1. Either party may terminate this Agreement for cause upon 14 days advance notice to the other party if there is any material default or breach of this Agreement by the other party, unless the defaulting party has cured the material default or breach within the 14-day notice period.
  2. ClusterTech may terminate this Agreement immediately upon notice to the Subscriber
    1. for cause, if any act or omission by the Subscriber or any User results in a suspension described in Section 7.1,
    2. if our relationship with a third party partner who provides software or other technology ClusterTech uses to provide the Services expires, terminates or requires ClusterTech to change the way ClusterTech provides the software or other technology as part of the Services,
    3. if ClusterTech believes providing the Services could create a substantial economic or technical burden or material security risk for ClusterTech,
    4. in order to comply with the law or requests of governmental entities, or
    5. if ClusterTech determines use of the Services by the Subscriber or any Users or the provision of any of the Services to the Subscriber or any Users has become impractical or unfeasible for any legal or regulatory reason.
Effect of Termination
1. Generally, Upon any termination of this Agreement:
  1. all Subscriber’s rights under this Agreement immediately terminate;
  2. Subscriber remains responsible for all fees and charges for the Services through the remainder of the Services Term;
  3. Sections 6.6, 5.1, 10 to 18 will continue to apply in accordance with their terms.
2. As soon as the Services are being suspended or terminated, the Subscriber’s right to use of Services stops right away. The Subscriber may not have access to data/content that is stored on the Services after ClusterTech suspends/terminates the Services. The Subscriber is responsible for backing-up the data that the Subscriber uses with the Services.
3. After the Services are suspended/terminated, the Content will be deleted upon the Subscriber’s request or 30 days prior notice to the Subscriber. If the Subscriber requests to retain the Content after service suspension/termination, extra cost will be incurred to the Subscriber. ClusterTech is not liable for any Content that may be deleted or lost after the suspension/termination of the Services. It is the responsibility of the Subscriber to ensure that all necessary backups or transfers of data are made prior to suspension/termination of the Services. ClusterTech will not be held accountable for any damages or losses arising from the deletion or the loss of any Content.
INDEMNITY
Subscriber agrees to hold harmless and indemnify ClusterTech, and its subsidiaries, affiliates, officers, agents, and employees, advertisers or partners, from and against any third party claim arising from or in any way related to your use of ClusterTech Services, violation of this Terms of Service or any other actions connected with use of ClusterTech Services, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys’ fees, of every kind and nature. In such a case, ClusterTech will provide the Subscriber with written notice of such claim, suit or action.
Disclaimer of Warranties
Subscriber expressly understands and agrees that the Subscriber’s use of ClusterTech’s Services is at the Subscriber’s sole risk. ClusterTech’s Services are provided on an “as is” and “as available” basis. To the maximum extent permitted by Law, ClusterTech expressly disclaims all warranties and conditions of any kind, whether express or implied, including, but not limited to the implied warranties and conditions or merchantability, fitness for a particular purpose and non-infringement. ClusterTech does not warrant that (i) ClusterTech Services will meet the Subscriber’s requirements, (ii) ClusterTech Services will be uninterrupted, timely, secure or error-free, (iii) the results that may be obtained from the use of ClusterTech Services will be accurate or reliable, (iv) the quality of any products, services, information or other material purchased or obtained by the Subscriber through ClusterTech Services will meet the Subscriber’s expectations, and (v) any errors in the Services/software will be corrected. Any material downloaded or otherwise obtained through the use of the ClusterTech Services is done at the Subscriber’s own discretion and risk and that the Subscriber will be solely responsible for any damage to the Subscriber’s computer system or other device or loss of data that results from the download of such material. No Advice or Information, whether oral or written, obtained by the Subscriber from ClusterTech or through or from ClusterTech Services shall create any warranty not expressly stated in the Terms of Service.
Limitation of Liability
Subscriber expressly understands and agrees that ClusterTech shall not be liable to the Subscriber for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to , damages for loss of profits, goodwill, use, data or other intangible losses (even if ClusterTech has been advised of the possibility of such damages) resulting from (i) the use or the inability to use ClusterTech’s Services; (ii) the cost of procurement of substitute goods and services resulting from any good, data, information or services purchased or obtained or messages received or transactions entered into through or from ClusterTech’s Services; (iii) unauthorized access to or alteration of the Subscriber’s transmissions or data; (iv) statements or conduct of any third party on ClusterTech’s Services; or (v) any other matter relating to ClusterTech’s Services.
No Third Party Beneficiaries
Subscriber agrees that, except as otherwise expressly provided in this Terms of Service, there shall be no third party beneficiaries to the Terms of Services.
Notice
1. Subscriber agrees that ClusterTech may provide the Subscriber with notices, including those regarding changes to the Terms of Service, by email, regular email, or posting on ClusterTech Services.
2. Any notice, invoice or other document which may be given by either party under the Agreement will be deemed to have been duly given if left at or sent by prepaid post, facsimile transmission or electronic mail to the other party's registered office or any other address (including an electronic mail address) notified in writing in accordance with this Clause as an address to which notices, invoices and other documents may be sent.
3. Any such communication will be deemed to have been received by the other party on the day of delivery (if left), three (3) days after the date of posting (if sent by prepaid post), one (1) day after the date of transmission (if sent by facsimile) and on the date on which the message is received in the recipient's electronic mailbox (if sent by electronic mail).
Waiver
Failure or delay by ClusterTech to enforce any of its rights under the Agreement or the giving of additional time for performance or other indulgence is not a waiver of such right unless ClusterTech acknowledges the waiver in writing, nor will any single or partial exercise of any right or remedy preclude any further exercise of the same or the exercise of any other right. No waiver of any particular breach of the provisions of the Agreement will operate as a waiver of any repetition of such breach.
Severability
If any provision of the Agreement which is not of a fundamental nature is found to be unenforceable or illegal, it shall be severed from the Agreement and will not affect the enforceability of the remainder of the Agreement. In this event the parties will use reasonable endeavors to agree any lawful and reasonable changes to the Agreement which may be necessary to effect as closely as possible the commercial intent of the Agreement.
Governing Law and Jurisdiction
The Agreement shall be governed by and construed in accordance with the laws of the Hong Kong Special Administrative Region (Hong Kong). The parties submit any difference or disputes arising in connection with the Agreement to the non-exclusive jurisdiction of the courts of Hong Kong.