Terms of Use

These Terms of Use ("Terms") are an agreement between you and the DFINITY Foundation, including our affiliates and subsidiaries (collectively "DFINITY", "we", "us"). They govern your purchase and use of Cloud Engines and the related services described in Section 1. By purchasing a Cloud Engine or using the DFINITY Services, you agree to these Terms. If you do not agree, do not use them. You warrant that you are at least 18 years old and, if you act for an organization, that you have authority to bind it.

If you are a Consumer, you have important rights that these Terms do not affect. See Section 11 (Consumer rights), which prevails over any conflicting provision of these Terms.

1. What Open Cloud is, and what DFINITY does and does not provide

1.1 Cloud Engines. A "Cloud Engine" is a subnet of the Internet Computer Protocol ("ICP"), a public, decentralized network, made up of nodes that you select and rented for your exclusive use. Once created, a Cloud Engine is controlled by you: you decide what applications run on it and what data is processed on it. It is operated by the decentralized ICP protocol and by the Node Providers whose nodes you selected, not by DFINITY.

1.2 The Open Cloud portal. The portal at opencloud.org, including the console and command-line tools (together, the "Portal"), is hosted on the ICP network and operated by the Network Nervous System (the "NNS"), the protocol-level governance system of ICP. DFINITY does not host, operate, or control the Portal, the NNS, or the network.

1.3 The DFINITY Services. DFINITY's own role is limited to: (a) acting as merchant of record for your purchase, including issuing invoices, collecting payment through third-party payment processors, and handling applicable taxes (Section 3); (b) converting the amounts you pay as described in Section 3.2 and transferring the proceeds to the protocol; (c) providing purchase-related customer support; and (d) processing the personal data collected for the purchase process (Section 15). These are the "DFINITY Services".

1.4 The Network Services. The Portal, the provisioning of Cloud Engines by the NNS, and the operation of Cloud Engines by the protocol and the Node Providers (together, the "Network Services") are provided by the decentralized network and the Node Providers, not by DFINITY. DFINITY facilitates your access to the Network Services but does not provide, operate, or control them and, except as stated in Section 7 for nodes DFINITY itself supplies, gives no commitment in respect of them. "Services" means the DFINITY Services and the Network Services together.

1.5 Beta features. Some features are experimental or offered in beta and may change, break, or be withdrawn without notice, except that where you as a Consumer have paid for a feature we will act reasonably and consistently with Section 11 (Consumer rights).

2. Account access and security

You access the Services using Internet Identity and, in some cases, an email address you provide. You are responsible for: (a) making all arrangements necessary to access the Services; (b) safeguarding and ensuring the availability of your access credentials, including your Internet Identity; and (c) keeping the information you provide correct, current, and complete.

Neither DFINITY nor the Portal has custody of, or the ability to recover, your Internet Identity. If your Internet Identity is lost or compromised, access to your account and your Cloud Engines cannot be restored by DFINITY. Log out at the end of each session and take particular care on shared computers. Information you provide is handled in accordance with our Privacy Policy.

3. Fees, payment, taxes, and funding your engines

3.1 Paid services. Cloud Engines, the nodes that compose them, bandwidth, and compute ("cycles") are paid services. Prices, any free allowances, and the rental period are described at the point of purchase and on the pricing pages. Node prices are set and advertised by the Node Providers, not by DFINITY.

3.2 How your payment flows. You pay in fiat currency (e.g. USD) through a third-party payment processor. DFINITY does not store your full payment-card details, and your use of the payment processor is subject to its own terms. DFINITY converts the amount received into ICP tokens at prevailing market rates. DFINITY executes this conversion with reasonable care but does not guarantee any particular rate, venue, or time of execution, and does not set or control market rates, the value of ICP, or the operation of the NNS and the network. The ICP is then converted into cycles using the protocol's conversion mechanism, at the rate guaranteed by the protocol, which is fixed relative to the XDR (Special Drawing Rights). DFINITY transfers the resulting cycles in full to the ICP protocol, which then, automatically and outside DFINITY's control: (a) burns cycles corresponding to 20% of your payment, as the protocol's fee for provisioning and operating your Cloud Engine; and (b) distributes the remaining 80% of the cycles to the Node Providers of your Cloud Engine according to their advertised node prices.

3.3 Merchant of record. DFINITY acts solely as merchant of record and collection agent in respect of your purchase. The Network Services you are paying for are supplied by the protocol and the Node Providers. DFINITY's responsibility in respect of your payment is limited to correctly invoicing you, converting the amounts received and transferring the resulting cycles to the protocol as described in Section 3.2, and remitting taxes under Section 3.6. In converting and transferring amounts under Section 3.2, DFINITY acts as principal on its own account and not as your broker, agent, trustee, adviser, or fiduciary.

3.4 Funding. You are solely responsible for keeping your Cloud Engine funded. If an engine runs out of funds or a payment fails, the engine and the applications on it may be suspended, throttled, or deleted by the protocol, and data may be permanently lost. This Section is subject to Section 11 (Consumer rights).

3.5 Refunds. Fees are non-refundable except where required by applicable law. See Section 11 (Consumer rights).

3.6 Taxes. Prices indicate whether they are exclusive or inclusive of VAT, GST, sales tax, and similar indirect taxes. Where DFINITY is required to charge and collect such taxes, it will add them to your invoice and remit them to the relevant authority, or apply a reverse charge where applicable. You are responsible for all other taxes, duties, and government charges associated with your use of the Services, other than taxes on DFINITY's income.

4. Your applications and content

You retain full ownership of the applications, code, and data you deploy through the Services ("Your Content"). You are solely responsible for Your Content, including holding all rights necessary to deploy it, its lawfulness, and maintaining your own backups. You grant DFINITY only the limited rights necessary to perform the DFINITY Services. DFINITY has no access to Your Content on a running Cloud Engine, does not monitor it, and is not responsible for it.

5. Your Cloud Engine: node selection, jurisdictions, and control

5.1 You select the nodes. You choose the nodes that make up your Cloud Engine, including the Node Providers and the jurisdictions in which the nodes are located. Nodes may be spread across multiple jurisdictions (the common case) or, where offered, located in a single jurisdiction of your choice.

5.2 Regulatory suitability is your responsibility. You are solely responsible for assessing whether your node selection, including any single-jurisdiction configuration, meets the legal and regulatory requirements that apply to you and to the data you process (for example data-protection or data-residency requirements such as those under the GDPR). Node locations and characteristics are declared by the Node Providers; DFINITY does not verify them and gives no warranty, and makes no representation, that any configuration of nodes achieves compliance with any law or regulation. You are likewise solely responsible for determining whether your compliance requires contractual arrangements with other parties (for example data processing agreements with Node Providers, data transfer mechanisms for nodes located in other countries, or terms with your own users) and for putting any such arrangements in place before processing the relevant data. DFINITY is not a party to such arrangements, does not procure them, and does not warrant that any Node Provider (including DFINITY in its separate capacity as a Node Provider, Section 7) will enter into them; where a required arrangement cannot be put in place, you must not carry out the processing concerned. See Section 11 (Consumer rights).

5.3 You control the engine. Once created, your Cloud Engine is available exclusively to you and is controlled by you. All processing of data on a Cloud Engine occurs as instructed by you through the applications you run on it. You are the sole controller of, and solely responsible for, that processing. DFINITY does not process data on your Cloud Engine and cannot access, erase, modify, or recover data or applications on it.

6. Acceptable use

6.1 General. You may use the Services only for lawful purposes and in accordance with this policy. You are responsible for all activity carried out through your use of the Services, including by anyone you permit to use them. This policy applies in addition to the other terms of this agreement.

6.2 Prohibited uses. You must not use, or allow anyone to use, the Services to:

• (a) violate any applicable law or regulation, or use the Services for any unlawful, fraudulent, or infringing purpose;
• (b) infringe, misappropriate, or otherwise violate the intellectual property, privacy, publicity, or other rights of DFINITY, Node Providers, other users, or any other person;
• (c) create, store, or distribute material that sexually exploits or endangers minors, or that is otherwise related to child sexual abuse. We have zero tolerance for such material;
• (d) distribute content or engage in conduct that is unlawful, defamatory, harassing, threatening, or that incites or facilitates violence against others;
• (e) deploy or distribute malware, ransomware, or other malicious code, or engage in activity designed to harm, disable, or disrupt any system, network, or data;
• (f) attack, disrupt, or gain unauthorized access to any system or network, including by probing, scanning, or testing the vulnerability of any system without authorization, or by circumventing any security or authentication measure;
• (g) interfere with or disrupt the integrity, availability, or performance of the Services, the network, or the underlying protocol, including through denial-of-service attacks or by imposing an unreasonable or disproportionate load;
• (h) engage in fraud, phishing, impersonation, or other deceptive practices, or send spam or unsolicited bulk communications;
• (i) engage in money laundering, terrorist financing, or transactions that violate applicable sanctions;
• (j) use the Services in violation of export control or sanctions laws, including to design, develop, produce, stockpile, or proliferate nuclear, chemical, or biological weapons, or missiles or other means of their delivery; or
• (k) circumvent or attempt to circumvent any usage limit, quota, security control, or billing or metering mechanism of the Services.

6.3 Enforcement. We may investigate suspected violations and take appropriate action to the extent we are technically able, which may include suspending or terminating the DFINITY Services we provide to you, reporting activity to the NNS, the affected Node Providers, law enforcement, or other authorities where required or appropriate, and removing or disabling access to offending content where we are technically able to do so.

6.4 Decentralized operation. Because the Network Services are decentralized and your Cloud Engine is under your control, DFINITY's technical ability to access, modify, remove, or block content or activity is limited and in most cases absent. This does not relieve you of your obligations under this policy; you remain solely responsible for your use of the Services and for its compliance with applicable law.

7. Node Providers and the network

Cloud Engines run on nodes operated by independent Node Providers. Because the network is decentralized and the Node Providers are not controlled or operated by DFINITY, DFINITY cannot guarantee, and assumes no liability for, the availability, performance, conduct, data-processing practices, or security measures of any Node Provider, and cannot control, erase, modify, or alter data once it has been processed on the network. You assume the risks of using decentralized infrastructure.

DFINITY also supplies nodes to the network in a separate capacity as a Node Provider. Where you select DFINITY-supplied nodes, DFINITY acts in that capacity under the protocol's node provider framework and on the same terms as any other Node Provider, and not under these Terms. Nothing in these Terms expands DFINITY's obligations or liability in its capacity as a Node Provider, subject, for Consumers, to Section 11.

8. Warranty disclaimer and limitation of liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT WARRANTY OF ANY KIND. DFINITY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING IMPLIED WARRANTIES OR CONDITIONS OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, QUALITY, RESULTS, AND NON-INFRINGEMENT. DFINITY DOES NOT GUARANTEE THAT THE SERVICES WILL BE AVAILABLE, UNINTERRUPTED, SAFE, OR SECURE, OR THAT DATA OR APPLICATIONS WILL NOT BE LOST.

WITHOUT LIMITING THE FOREGOING, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DFINITY IS NOT RESPONSIBLE FOR AND GIVES NO WARRANTY IN RESPECT OF: (A) THE OPERATION, AVAILABILITY, OR PERFORMANCE OF THE NETWORK SERVICES, THE PORTAL, THE NNS, THE PROTOCOL, ANY NODE PROVIDER, OR ANY THIRD-PARTY PAYMENT PROCESSOR; (B) MOVEMENTS IN EXCHANGE OR MARKET RATES BETWEEN FIAT CURRENCIES, ICP, AND CYCLES, ANY LOSS OF VALUE OF ICP, OR THE RATE, VENUE, OR TIMING AT WHICH THE CONVERSION OF FIAT CURRENCY INTO ICP UNDER SECTION 3.2 IS EXECUTED; (C) CHANGES TO THE PROTOCOL, ITS FEES, OR ITS OPERATION ADOPTED THROUGH NNS GOVERNANCE; (D) THE ACCURACY OF NODE LOCATIONS OR CHARACTERISTICS DECLARED BY NODE PROVIDERS, OR THE REGULATORY SUITABILITY OF ANY NODE CONFIGURATION (SECTION 5.2); OR (E) ANY LOSS OF DATA, FUNDS, OR CYCLES, REGARDLESS OF THE CAUSE. YOU ASSUME THE RISKS OF USING DECENTRALIZED INFRASTRUCTURE.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL DFINITY BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES WHATSOEVER ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICES, EVEN IF DFINITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DFINITY'S AGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF THIS AGREEMENT OR YOUR USE OF THE SERVICES WILL NOT EXCEED THE GREATER OF THE FEES YOU PAID FOR THE SERVICES IN THE THREE MONTHS BEFORE THE EVENT GIVING RISE TO THE LIABILITY, OR CHF 100.

SERVICES, FEATURES, OR ALLOWANCES PROVIDED FREE OF CHARGE (INCLUDING PROMOTIONS) ARE PROVIDED WITHOUT ANY WARRANTY, AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DFINITY HAS NO LIABILITY ARISING FROM THEM.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DFINITY IS NOT LIABLE FOR ANY FAILURE OR DELAY IN PERFORMING ITS OBLIGATIONS CAUSED BY CIRCUMSTANCES BEYOND ITS REASONABLE CONTROL, INCLUDING FAILURES, OUTAGES, OR CHANGES OF THE NETWORK OR THE PROTOCOL, FAILURES OR ACTS OF EXCHANGES, PAYMENT PROCESSORS, OR OTHER THIRD PARTIES, FREEZING OR BLOCKING OF ASSETS, SANCTIONS, ACTS OF AUTHORITIES, AND OTHER FORCE MAJEURE EVENTS. TO THE EXTENT PERMITTED BY APPLICABLE LAW AND SUBJECT TO SECTION 11 (CONSUMER RIGHTS), ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT MUST BE BROUGHT WITHIN 12 MONTHS AFTER THE DATE ON WHICH YOU BECAME AWARE, OR REASONABLY SHOULD HAVE BECOME AWARE, OF THE EVENT GIVING RISE TO THE CLAIM.

NOTHING IN THESE TERMS EXCLUDES OR LIMITS DFINITY'S LIABILITY FOR UNLAWFUL INTENT OR GROSS NEGLIGENCE, FOR DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE, OR FOR ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW, INCLUDING UNDER SECTION 11 (CONSUMER RIGHTS). WHERE ANY EXCLUSION OR LIMITATION IN THIS SECTION IS HELD UNENFORCEABLE, IT APPLIES TO THE MAXIMUM EXTENT PERMITTED AND THE REMAINDER IS UNAFFECTED.

9. Indemnity

Subject to Section 11 (Consumer rights), you agree to indemnify and hold harmless DFINITY and its affiliates, and their respective officers, directors, employees, agents, suppliers and licensors (each an "Indemnified Party"), from and against any third-party claim, and any resulting liabilities, damages, losses and costs (including reasonable attorneys' fees) actually incurred, to the extent arising out of or relating to: (a) your use or misuse of the Services; (b) Your Content; (c) your node selection and the processing carried out on your Cloud Engine; or (d) your breach of this agreement or violation of any applicable law or regulation. At our request, you will also defend the Indemnified Parties against any such claim.

This obligation does not apply to the extent a claim arises from an Indemnified Party's own negligence, willful misconduct, or breach of this agreement. We will promptly notify you of the claim, give you control of its defense and settlement (except that you may not settle in a way that imposes liability on, or admits fault by, an Indemnified Party without its prior written consent), and reasonably cooperate with you at your expense.

If you are a Consumer, this Section is subject to Section 11 (Consumer rights): you are required to indemnify us only for loss actually and reasonably caused by your own breach of this agreement or misuse of the Services, and this Section does not apply to the extent it is unenforceable against consumers under the law of your country of residence.

10. Third parties and other services

We do not own, control, endorse, or adopt any third-party content, applications, services, websites, payment processors, Node Providers, or other items ("Third-Party Items") you may access or connect with when using the Services. We disclaim any responsibility related to or arising out of Third-Party Items. Your dealings with third parties are solely between you and the third party, and you engage with them at your own risk. Nothing in this agreement confers any rights or remedies on any third party.

11. Consumer rights

11.1 Who this applies to. This Section applies if you are a Consumer, meaning an individual (a natural person) who uses the Services wholly or mainly outside your trade, business, craft or profession. The Services are supplied as a decentralized cloud service, being the supply of a digital service and, where applicable, digital content.

11.2 Your rights and precedence. Nothing in these Terms excludes, restricts, modifies or waives any right or remedy you have as a Consumer that cannot lawfully be excluded (your "Mandatory Consumer Rights"). Where any provision of these Terms conflicts with a Mandatory Consumer Right, this Section prevails and that provision is modified only to the minimum extent needed to comply. The rights below are in addition to your Mandatory Consumer Rights.

11.3 EU and EEA. You keep the mandatory protections of the law of your country of residence despite Section 13 (Governing law). The Services must conform to the contract, with free remedies under Directive (EU) 2019/770 (bringing into conformity, price reduction or termination). For distance contracts you may withdraw within 14 days without giving reasons. If you ask us to begin supplying a service within the withdrawal period and later withdraw, you pay a proportionate amount for what was supplied before withdrawal, and the right is lost once the service has been fully performed with your prior express consent. For digital content supplied with your express prior consent and acknowledgement of the loss of the right, the right is lost once supply begins. You may refer disputes to a competent national ADR body. Terms that are unfair under Directive 93/13/EEC do not bind you.

11.4 United Kingdom. Under the Consumer Rights Act 2015 we must perform services with reasonable care and skill and supply digital content of satisfactory quality, fit for purpose and as described, with statutory remedies if we do not. You have a 14-day cancellation right under the Consumer Contracts Regulations 2013, on the same proportionate-payment basis as in Section 11.3. We do not exclude liability for death or personal injury caused by negligence, for fraud, or for anything else that cannot lawfully be excluded.

11.5 United States. We do not limit any non-waivable right you have under the consumer protection laws of your state, including the California Consumer Legal Remedies Act. If we offer subscriptions or automatic recharges, we will obtain your express affirmative consent, send the renewal and price-change notices required by California's Automatic Renewal Law and the federal Restore Online Shoppers' Confidence Act, and let you cancel easily by the same medium you used to subscribe. California notice (Civ. Code § 1789.3): Complaint Assistance Unit, Division of Consumer Services, 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, (800) 952-5210.

11.6 All other regions. You keep every Mandatory Consumer Right under the law of your country of residence, which prevails over any conflicting provision. Wherever you live, we will provide the DFINITY Services with reasonable care and skill and materially as described, will not exclude liability that cannot lawfully be excluded, and will give any refund, repair, re-performance or price reduction the law requires.

11.7 How this Section is referenced. This Section prevails over, and is incorporated into, the provisions of these Terms dealing with warranties and disclaimers, limitation of liability, indemnities, node selection and regulatory suitability, fees, funding and engine suspension or deletion, refunds and any automatic renewal, cancellation, suspension and termination, time limits for claims, changes to the Terms, governing law, and dispute resolution (including any arbitration clause or class-action waiver, if and when adopted). Each such provision is to be read subject to this Section.

12. Term and termination

This agreement remains in effect until terminated. Your rights under it terminate immediately upon your material breach. DFINITY may suspend or terminate the DFINITY Services it provides to you for cause, including actual or reasonably suspected violation of Section 6 (Acceptable use) or where required by law, and will give you reasonable prior notice where practicable. This Section is subject to Section 11 (Consumer rights).

Effect of termination. Termination ends the DFINITY Services, including billing and purchase support. Because a Cloud Engine runs on the decentralized protocol for as long as it is funded with cycles, termination of this agreement does not stop, and DFINITY cannot stop, erase, recover or alter, a running Cloud Engine or any data or applications on it. See Sections 5, 7 and 15.

Funds and cycles. Prepaid amounts and unused cycles are non-refundable on termination, except as required by applicable law and subject to Section 11 (Consumer rights).

Survival. Termination does not affect rights, obligations or liabilities accrued before it took effect. Sections 3 (in respect of amounts and taxes already due), 4, 5, 7, 8, 9, 10, 11, 13, 14 and 15 survive, together with any other provision that by its nature is intended to survive.

13. Governing law and venue

Any claim relating to the Services is governed by the laws of Switzerland, to the exclusion of its rules on conflicts of laws and of the United Nations Convention on Contracts for the International Sale of Goods. Any claim or dispute relating to this agreement (including non-contractual disputes or claims and their interpretation) is subject to the exclusive jurisdiction of the courts of Zurich, Switzerland, subject to an appeal to the Swiss Federal Supreme Court. If you are a Consumer, this does not deprive you of the protection of mandatory provisions of the law of your country of residence, and where mandatory law so provides you may bring proceedings, and may only be sued, in the courts of your place of residence. This Section is subject to Section 11 (Consumer rights).

14. Severability and entire agreement

If any provision of these Terms is held to be unlawful, void, or unenforceable, that provision is severed, or where possible reduced to the enforceable extent, and the remaining provisions remain in full force and effect. These Terms, together with any policies referenced in them, constitute the entire agreement between you and DFINITY regarding the Services and supersede any prior agreements. Our failure to enforce any right or provision is not a waiver of it.

15. Personal information

Please review our Privacy Policy to understand how DFINITY processes the personal data collected for the purchase process. The Privacy Policy does not cover data you process on your Cloud Engine: that processing occurs solely on your instructions, under your control, and DFINITY is not a controller or processor of it (Section 5.3). It also does not cover DFINITY's separate capacity as a Node Provider (Section 7). If you deploy applications or otherwise use decentralized technologies, you share information with a global, decentralized network that is separate from and not controlled by us. Data on the network is controlled by the applications that process it and the parties controlling those applications, not by us; we cannot access, erase, modify, or alter it.

16. Changes to these Terms

We may update these Terms from time to time, for example to reflect changes in the Services, our operations, or applicable law. If we make a material change, we will give you reasonable advance notice before it takes effect, including by posting the updated Terms with a new effective date. Non-material changes take effect when posted. Where a change is required by law or needed for security or safe operation, it may take effect immediately.

If you do not agree to a change, you must stop using the Services before its effective date; continuing to use the Services after that date means you accept the updated Terms. If you are a Consumer and terminate because a material change adversely affects you, we will refund unused prepaid amounts to the extent required by applicable law (Section 11).

17. Contact

For questions about these Terms, contact us at legal@dfinity.org.