21Vianet Online Services Standard Agreement for Azure
This agreement is between the party accepting this agreement and Shanghai Blue Cloud Technology Co., Ltd. (“21Vianet” or “we”), a wholly owned subsidiary of Beijing 21Vianet Broadband Data Center Co., Ltd. and consists of the below terms and conditions, the Acceptable Use Policy, the Services Terms, the SLAs, and the pricing and related terms listed on the Portal for your Subscription. It is effective on the date we provide you with confirmation of your first order (the “Effective Date”).
Operation of Services. The Services we provide to you are based on Azure technology that we have licensed from Microsoft (China) Co., Ltd. and its Affiliates (“Microsoft”). While Microsoft develops and maintains the underlying Azure technology, the Services are operated and provided to you independently by us, not by Microsoft. Microsoft is not a party to this agreement, and this agreement does not provide you with any contractual or other rights or remedies against Microsoft.
Location of Services. The Services are provided from data center(s) located in the People’s Republic of China (which for the purpose of this agreement excludes Hong Kong and Macau Special Administrative Regions and Taiwan). This agreement does not provide any right to access or use the Azure services from other data centers or other operators.
Preview releases and Limited Offerings. We may make available Services identified as Previews and/or Limited Offerings. PREVIEWS AND LIMITED OFFERINGS ARE PROVIDED “AS-IS,” “WITH ALL FAULTS,” AND “AS AVAILABLE,” AND ARE EXCLUDED FROM THE SLAS AND LIMITED WARRANTY. Previews and/or Limited Offerings may be subject to reduced or different security, compliance and privacy commitments, as further explained in the Privacy Statement and any additional notices provided with the Preview and/or Limited Offerings. Customer support for Previews may be limited or not available. We may change or discontinue Previews at any time without notice. We also may choose not to release a Preview into “General Availability.”
2.Use of Services.
Right to use. We grant you the right to access and use the Services and to download, install and use Software included with your Subscription, as further described in this agreement and the Portal, subject to the Services Terms and the Acceptable Use Policy, which we may update periodically, and your compliance with this agreement. You may create and maintain a Customer Solution, which you may permit third parties to access and use, provided the Customer Solution adds material functionality to the Services and is not primarily a substitute for the Services. We reserve all other rights.
Limitations. You may not reverse engineer, decompile, disassemble or work around technical limitations in any of the Services, except where applicable law permits it despite this limitation. You may not disable, tamper with or otherwise attempt to circumvent any billing mechanism, including any mechanism that meters your use of the Services. You may not rent, lease, lend, resell, transfer, or sublicense any Services to or for third parties. You may not access or use the Services in any way that violates the rights of any third party or purports to subject any of our suppliers to any obligations to third parties.
End Users. You control access by your End Users, and you are responsible for their use of the Services in accordance with this agreement.
Customer Data. You are solely responsible for the content of your Customer Data. You will secure rights in Customer Data necessary for us to provide you the Services without violating the rights of any third party, or otherwise obligating us to you or to any third party. We do not and will not accept any obligations set forth in any separate license or other agreement that may apply to Customer Data or your use of the Services.
(i) We may make Third-Party Products available to you. The use of a Third-Party Product will be governed by separate terms between you and the third party providing that Third-Party Product. For your convenience, we may include charges for the Third-Party Product as part of your bill for the Services. We (and our suppliers), however, assume no responsibility or liability whatsoever for the Third-Party Product.
(ii) You are solely responsible for any Third-Party Product that you install or use with the Services. We are not a party to and are not bound by any terms governing your use of any Third-Party Product.
(iii) If you install or use any Third-Party Product with the Services, then you, not we, direct and control the installation and use of it in the Services through your actions (for example, through your use of application programming interfaces and other technical means that are part of the Services). We will not run or make any copies of such Third-Party Product outside of our relationship with you.
(iv) If you install or use any Third-Party Product with the Services, you may not do so in any way that would subject our intellectual property or technology to obligations beyond those included in this agreement.
Responsibility for your accounts. You are responsible for all activities associated with your online service accounts, including, if applicable, the activities of users you provision and your dealings with third parties that take place through your accounts or associated accounts. You are also responsible for maintaining the confidentiality of any non-public authentication credentials associated with your use of the Services. You must promptly notify our customer support team about any possible misuse of your accounts or authentication credentials, or any security incident related to the Services.
Use by Affiliates. You may place orders for your Affiliates under this agreement and may grant your Affiliates administrative rights to manage their accounts, but Affiliates may not place orders under this agreement. You are responsible for your Affiliates’ use of the Services in accordance with this agreement and you agree to be jointly and severally liable for any actions of such Affiliates related to their use of the Services.
Updates. We may make changes to the Services from time to time.
Customer support. We will provide you with support for the Service as set forth in the Portal.
State secret representation and warranty. You represent and warrant that Customer Data does not include state secrets or, if any Customer Data does constitute state secrets, that you have obtained necessary approvals to disclose those state secrets to us and our Affiliates, contractors and suppliers.
3.Security, privacy, and data protection.
Security. We maintain appropriate technical and organizational measures, internal controls, and data security routines intended to protect Customer Data against accidental loss or change, unauthorized disclosure or access, or unlawful destruction. These measures include logical isolation designed to prevent your Customer Data from being accessible to another customer. Current information on our security practices can be found on our website.
Privacy. We treat Customer Data in accordance with our Privacy Statement. We are a data processor (or sub-processor) acting on your behalf, and you appoint us to do these things with Customer Data in order to provide the Services to you. You will obtain any necessary consent from End Users or others whose personal information or other data you will be hosting in the Services.
Ownership of Customer Data. Except for Software we license to you, as between the parties, you retain all right, title and interest in and to Customer Data. We acquire no rights in Customer Data, other than the right to host Customer Data on our systems, including the right to use and reproduce Customer Data within our systems solely for such hosting purposes.
Use of Customer Data. We will use Customer Data only to provide you the Services. This use may include troubleshooting to prevent, find and fix problems with the operation of the Services. It may also include improving features for finding and protecting against threats to users. We will not use Customer Data or derive information from it for any advertising or other commercial purposes without your consent.
Third party requests. We will not disclose Customer Data to a third party except as you direct, as authorized in this agreement, or pursuant to applicable laws and regulations. If compelled to disclose Customer Data to a third party, we will use commercially reasonable efforts to notify you in advance of a disclosure unless legally prohibited. Should a third party contact us with a complaint about your use of the Services (for example, allegation of infringement by you or your End User), we may ask the third party to contact you directly and may provide your basic contact information to the third party.
Other Companies. We use other companies to provide limited services on our behalf, such as customer support. Any such other companies will be permitted to obtain Customer Data only to deliver the services we have retained them to provide, and they are prohibited from using Customer Data for any other purpose. We remain responsible for these other companies’ compliance with the obligations set forth in this agreement.
Compliance with law. We will comply with all laws applicable to our provision of the Services, including applicable security breach notification laws, but not including any laws applicable to you or your industry that are not generally applicable to information technology services providers. You will comply with all laws applicable to your Customer Solution, Customer Data, and use of the Services.
You acknowledge that under Chinese regulations:
(i) An Internet information service provider shall not produce, reproduce, publish or disseminate information that includes the following content (“Prohibited Content”). Prohibited Content is content that:
a. is against the basic principles determined by the Constitution;
b. impairs national security, divulges State secrets, subverts State sovereignty or jeopardizes national unity;
c. damages the reputation and interests of the State;
d. incites ethnic hostility and ethnic discrimination or jeopardizes unity among ethnic groups;
e. damages State religious policies or that advocates sects or feudal superstitions;
f. disseminates rumors, disrupts the social order or damages social stability;
g. disseminates obscenity, pornography, gambling, violence, homicide and terror, or that incites crime;
h. insults or slanders others or that infringes their lawful rights and interests;
i. is otherwise prohibited by laws or administrative regulations.
(ii) If an Internet information service provider discovers that information distributed on its website falls within the scope of the Prohibited Content, it shall promptly terminate the distribution, keep relevant records, and report to the relevant authorities.
You further agree:
(iii) If the business or organization you operate by using the Services is subject to permit or approval by related governmental authorities, you will obtain such related permit or approval, including without limitation:
a. if your website provides non-operational Internet information services, you will make the filing for the non-operational website with the governmental authority;
b. if your website provides operational Internet information services, you will obtain the VAT permit for operational website from the governmental authority.
(iv) If you are an Internet information service provider, you will keep records of the information provided, the time of publishing and the Internet address or domain name, and assist in providing such information when inquired by related government authorities in accordance with applicable laws.
(v) You will provide your real identity and contact information in registering for the Services and promptly update that information in the Portal if it changes. We will use this information to contact you as detailed in the Privacy Statement. You warrant that the information you provide is true, complete and valid, and you are wholly responsible for the consequences if it is not.
Customer Data Persistence. The Storage Service is designed to provide over 99.999999999% durability of objects over a given year. The SQL Database Service is designed to provide over 99.99999999% durability of objects over a given year. Your sole remedy for issues with data durability would be to submit a claim for SLA credits consistent with our standard SLA for the applicable Service. Cloud Services and Traffic Manager may use Storage and/or SQL Database for persistent storage of data, which are subject to the durability figures as set forth above.
Customer Data Import/Export. You may import or export Customer Data into or out of the Services using the functionality detailed in the technical documentation for the Services.
Retirement of Storage Media and Devices. Storage media and devices retired from the production environment will be purged of all data through either a secure wipe or physical destruction.
Available Offers. The Portal provides pricing and related terms for available Subscription offers, which will be one or a combination of the following:
(i) Prepaid Offering. You purchase in advance a specific quantity of Services for use during a Term and pay upfront or on a periodic basis during the Term in advance of use. Services will be suspended if you exceed the prepaid quantity. Prepaid funds not used by the end of the Term will be forfeited.
(ii) Limited Offering. You receive a limited quantity of Services for a limited term for no charge or for a nominal charge (for example, a trial for 1 RMB). Services will be suspended if you exceed the specified quantity provided. Limited Offerings may not be renewed.
Ordering. A Subscription may be ordered through the Portal. By submitting an order, you agree to the offer terms for that Subscription as described on the Portal. You may place multiple orders and purchase multiple Subscriptions under this agreement. Unless otherwise specified in those terms, Services are offered on an “as available” basis and we make no guarantee of available capacity.
Pricing and payment. Payments are due and must be made according to the pricing and payment terms for each Subscription as described on the Portal. We may change prices at any time and will provide you with at least thirty (30) days’ notice of any increase in price for an existing Service.
Taxes. Prices are inclusive of value added tax. You shall be responsible for any applicable stamp taxes and for all other taxes that you are legally obligated to pay including any taxes that arise on the provision of Services to your Affiliates. We shall be responsible for all taxes based upon our net income or on our property ownership. If any taxes are required to be withheld on payments you make to us, you may deduct such taxes from the amount owed to us and pay them to the appropriate taxing authority, provided however that you promptly secure and deliver an official receipt for those withholdings and other documents we reasonably request to claim a foreign tax credit or refund. You will make certain that any taxes withheld are minimized to the extent possible under applicable law.
5. Term, termination, and suspension.
Term. This agreement will remain in effect for the Term of any Subscription ordered under this agreement. The initial Term of a Subscription is twelve (12) calendar months from the date of your initial order unless otherwise specified on the Portal. If you make subsequent orders, the Term of the subsequent order will be twelve (12) months from the date of that order unless otherwise specified on the Portal.
Termination. You may terminate any Subscription during the Term by calling customer support or otherwise as described on the Portal. If you terminate a Subscription during its Term, however, you must pay all amounts due and owing before the termination is effective and no refunds will be provided. To the extent necessary to implement the termination provisions of this agreement, both parties waive any rights they have, or obligation that they may have, now or in the future under any applicable law or regulation, to request or obtain the approval, order, decision or judgment of any court to terminate this agreement.
Renewal. Except for Limited Offerings, Subscriptions will automatically renew at the end of the Term for a period equal to the applicable initial Term. Limited Offerings terminate on the expiration and will not automatically renew. We will provide you with written notice of the automatic renewal before the expiration of the Term. If you want your Subscription to expire at the end of the Term, you must notify customer support no less than thirty (30) days before the end of the Term.
Customer Data return and deletion. You may extract and/or delete Customer Data at any time. When you terminate a Subscription or it expires it, we will retain any Customer Data you have not deleted for at least ninety (90) days so that you may extract it, except for Limited Offerings, where we may delete Customer Data immediately without any retention period. You remain responsible for all storage and other applicable charges during this retention period. Following the expiration of this retention period, we will delete all Customer Data, including any cached or back-up copies, after the end of the retention period. You agree that we have no additional obligation to continue to hold, export or return Customer Data and that we have no liability whatsoever for deletion of Customer Data pursuant to these terms.
Regulatory. If developments with government regulation or requirements cause us to believe this agreement or the Services may be in conflict with any such regulation or requirement, we may change the Services or terminate the agreement without any liability.
Suspension and termination for breach. We may suspend your use of the Services if: (1) reasonably needed to prevent unauthorized access to Customer Data; (2) you fail to respond to a claim of alleged infringement within a reasonable time; (3) you do not pay amounts due under this agreement or exceed the prepaid or limited quantity provided with your Subscription; or (4) you do not abide by the Acceptable Use Policy or violate other terms of this agreement or applicable laws and regulations. A suspension will apply to the minimum necessary part of the Services and will be in effect only while the condition or need exists. We will give notice before we suspend, except where we reasonably believe we need to suspend immediately. If you do not fully address the reasons for the suspension within sixty (60) days after we suspend, we may terminate your Subscription and delete your Customer Data without any retention period.
Effect of termination or expiration of Software. If this agreement or a Subscription is terminated or expires, then you must delete all copies of Software licensed under this agreement and destroy any associated media. We may also disable it at that time.
Limited warranty. We warrant that the Services will meet the terms of the SLAs during the Term. Your only remedies for breach of this warranty are those in the SLAs.
Limited warranty exclusions. This limited warranty is subject to the following limitations:
(i) any implied warranties, guarantees or conditions not able to be disclaimed as a matter of law will last one year from the start of the limited warranty;
(ii) this limited warranty does not cover problems caused by accident, abuse or use of the Services in a manner inconsistent with this agreement, or resulting from events beyond our reasonable control;
(iii) this limited warranty does not apply to problems caused by the failure to meet minimum system requirements; and
(iv) this limited warranty does not apply to Previews or Limited Offerings.
DISCLAIMER. OTHER THAN THIS WARRANTY, WE AND/OR OUR AFFILIATES, LICENSORS, SUPPLIERS AND/OR CONTRACTORS PROVIDE NO WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THESE DISCLAIMERS WILL APPLY TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
7.Defense of claims.
Defense. We will defend you against any claims made by an unaffiliated third party that the Services infringes its patent, copyright or trademark or makes unlawful use of its trade secret. You will defend us and our Affiliates against any claims made by an unaffiliated third party that (1) any Customer Solution, or Customer Data, or Third-Party Product you provide or use directly or indirectly in using the Services infringes the third party’s patent, copyright, or trademark or makes unlawful use of its trade secret or (2) arise from violation of the Acceptable Use Policy.
Limitations. Our obligation to defend you will not apply to a claim or award based on: (1) Customer Solution, Customer Data, Third-Party Product, modifications you make to the Software, or materials you provide or make available as part of using the Services; (2) your combination of the Services with, or damages based upon the value of, Customer Data, a Third-Party Product, data or business process; (3) your use of a 21Vianet or Microsoft trademark without express written consent, or your use of the Services after we notify you to stop due to a third-party claim; or (4) your redistribution of the Software to, or use for the benefit of, any unaffiliated third party; or (5)Services provided free of charge.
Remedies. If we reasonably believe that a claim may bar your use of the Services, we will seek to: (1) obtain the right for you to keep using it; or (2) modify or replace it with a functional equivalent. If these options are not commercially reasonable, we may terminate your rights to use the Services and then refund any advance payments for unused Subscription rights.
Obligations. Each party must notify the other promptly of a claim under this Section 7. The party seeking protection must (1) give the other sole control over the defense and settlement of the claim; and (2) give reasonable help in defending the claim. The party providing the protection will (1) reimburse the other for reasonable out-of-pocket expenses that it incurs in giving that help and (2) pay the amount of any resulting adverse final judgment (or settlement that the other consents to). The parties’ respective rights to defense and payment of judgments or settlements under this Section are in lieu of any statutory indemnification rights or analogous rights, and each party waives such rights.
8.Limitation of liability.
Limitation. To the extent permitted under applicable law, the aggregate liability of each party (and/or its Affiliates, suppliers and contractors) under this agreement is limited to direct damages up to the amount paid under this agreement for the Services giving rise to that liability during the twelve (12) months before the liability arose. In the case of a Preview or Limited Offering, or any code that you are authorized to redistribute to third parties without separate payment to us, our and our Affiliates’ and contractors’ liability to you arising under this agreement is limited to fifty (50) RMB.
EXCLUSION. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, NEITHER PARTY (NOR ITS AFFILIATES, SUPPLIERS, AND/OR CONTRACTORS) WILL BE LIABLE FOR LOSS OF REVENUE OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, EVEN IF THE PARTY KNEW THEY WERE POSSIBLE.
Exceptions to Limitations. The limits of liability in this Section apply to the fullest extent permitted by applicable law, but do not apply to: (1) the parties' obligations under the section entitled “Defense of claims” or the subsection entitled “Force majeure”; or (2) violation of the other's intellectual property rights.
Software provided for use on devices. We may provide you with Software for use with the Services. If the Software is provided to you with its own proprietary license terms, those terms control and may require that you enter into an end user license agreement directly with a supplier. If the Software does not have its own license terms, then we grant you a license to install and use the number of copies of Software you ordered on your devices for use with Services. We may check the version of the Software you are using and recommend or download updates, with or without notice, to your devices. Software licenses you obtained under this agreement last only for the term of the applicable Subscription or until we update the Services such that they no longer support the Software, whichever comes first. This subsection does not apply to Software provided for use within the Services.
Software provided for use within the Services. We may provide you with the option of running Software within the Services (for example, in a virtual machine). Your use of the Software is subject to the proprietary license terms contained in the Software, as modified below:
(i) You may use such Software only within the Services and only in conjunction with your permitted use of any applicable Services role. To the extent of any conflict between this paragraph and the proprietary license terms contained in the Software, this paragraph controls.
(ii) You have no other rights under the Software’s license terms or under this agreement to run the software (for example, you may not run copies on your on-premise servers or other devices unless you separately obtain the license to do so).
Effect of termination or expiration on Software. If this agreement or a Subscription is terminated or expires, then you must delete all copies of Software licensed under this agreement and destroy any associated media. We may also disable it at that time.
Other rights. Rights to access Software on any device do not give you any right to implement patents or other intellectual property in software or devices that access that device.
Notices. You must send notices by mail to the address below:
Shanghai Blue Cloud Technology Co., Ltd, a wholly owned subsidiary of Beijing 21Vianet Broadband
Data Center Co., Ltd.
M5, 1 Jiuxianqiao East Road, Chaoyang District, Beijing
Post code: 100015
You agree to receive electronic notices from us, which will be sent by email to the account administrator you specify in the Portal. Notices are effective on the date on the return receipt or, for email, when sent.
(i) You may not assign this agreement. We may assign this agreement to our Affiliates.
(ii) In the event that our right to continue providing you the Services ends, we may assign this agreement to another entity with forty-five (45) days’ notice to you. If you object to assignment to the new entity, you may terminate this agreement and all Subscriptions (without accruing any early cancellation payments) by providing us with notice before the end of the forty-five (45) day period.
Identification of a Partner of Record. When you place an order, you may be given the option to identify a “Partner of Record” associated with your Subscriptions. By identifying a Partner of Record, directly or by authorizing a third party to do so, you acknowledge that the Partner of Record may receive fees for their support. The fees are for pre-sales support and may also include post-sales support. The fees are based on, and increase with, the size of your order. Our prices for Services are the same whether or not you identify a Partner of Record.
Severability. If any part of this agreement is held unenforceable, the rest remains in full force and effect.
Waiver. Failure to enforce any provision of this agreement will not constitute a waiver.
No agency. We are independent contractors. This agreement does not create an agency, partnership or joint venture.
Your responsibility for use of Communities. You are responsible for your users’ use of the Communities, if any, including ensuring compliance with the terms governing the Communities located at the Communities website. We specifically disclaim any liability arising from or related to your or your users’ use of or inability to use the Communities website.
Force majeure. Neither party will be liable for any failure in performance due to causes beyond its reasonable control (such as fire, explosion, power blackout, earthquake, flood, severe storms, strike, embargo, labor disputes, acts of civil or military authority, war, terrorism (including cyber terrorism), acts of God, acts or omissions of Internet traffic carriers, actions or omissions of regulatory or governmental bodies (including the passage of laws or regulations or other acts of government that impact the delivery of Services). This section will not, however, apply to your payment obligations under this agreement.
Governing Law and Dispute Resolution. This agreement will be construed with and governed by the laws of the People’s Republic of China. Any dispute or claim arising out of or in connection with or relating to this Agreement, or the breach termination or invalidity hereof (including the validity, scope and enforceability of this Section) will be submitted to China International Economic and Trade Arbitration Commission (“CIETAC”) for arbitration, which arbitration shall be conducted in Beijing in accordance with the CIETAC's arbitration rules in effect at the time of applying for arbitration. The arbitral award will be final and binding upon both parties. This Section, however, will not prevent either party from seeking injunctive relief in the appropriate jurisdiction for any (i) violation of that party’s intellectual property rights, (ii) breach of any confidentiality obligations owed to that party under this Agreement, or (iii) enforcement or recognition of any award or order in any appropriate jurisdiction.
Modifications. We may require you to sign a new agreement on renewal of a Subscription, but we will not modify this agreement during the Term without your consent unless new features or updates to the Service require new or different terms or if otherwise required by law. We will notify you of any such required changes in accordance with the subsection entitled “Notices,” and you will be bound by such modified terms by continuing to use the Services after receiving notice.
Any reference in this agreement to “day” will be a calendar day.
"Acceptable Use Policy" lists prohibited uses of Services, and is published at https://www.azure.cn/support/legal/ or at an alternate site that we identify.
“Affiliate” means any legal entity that a party owns or that owns a party, with a 50% or greater interest.
“Communities” means one or more forum(s) that we or an Affiliate may establish for customers or the general public to obtain information or collaborate regarding the use of the Services, as may be accessible via the Portal or at an alternate website we identify.
“Limited Offering,” and “Prepaid Offering” describe categories of Subscription offers and are defined in Section 4.
“Customer Data” means all data, including all text, sound, software, or image files, that are provided to us by, or on behalf of, you or End Users through your or End Users’ use of the Services.
“Customer Solution” means the application(s) you run with Services.
“End User” means any user of a Customer Solution or any person permitted by you or any of your Affiliates to access and use the Services, the Customer Data hosted in the Services or otherwise use the Services.
“Portal” means the online portal from which you purchase a Subscription for Services at http://www.azure.cn/pricing/ , or at an alternate site we identify.
“Previews” means preview, beta, or other pre-release versions of the Services or Software offered to obtain customer feedback.
“Privacy Statement” means the Privacy Statement for Services published at https://www.azure.cn/support/legal/privacy-statement/ , or at an alternate site that we identify.
“Services” means one or more of the Azure services or features identified at https://www.azure.cn/ and operated by us from data centers located in the People’s Republic of China, excluding Hong Kong, Taiwan and Macau, and any included Software. “Services” includes any open source component incorporated by us or our licensors or suppliers in those services and features, except when provided under separate license terms (such as via gallery, marketplace, console, or dialog).
“SLAs” means the commitments we make regarding delivery or performance of the Services, as published in the service level agreements available for Services at https://www.azure.cn/support/legal/sla/ , or at alternate sites that we identify.
“Software” means software we provide to you as part of the Services for use with or within the Services.
“Subscription” means the right to use the Services for a defined Term as specified on the Portal. You may purchase multiple Subscriptions, which may be administered separately, or may extend the term of an existing Subscription by making additional purchases.
“Term” means the duration of a Subscription (for example, 12 months) and may be extended by making additional purchases.
“Third-Party Product” is any software, data, service, website or other product licensed, sold or otherwise provided to you by an entity other than us, whether you obtained it via our Services or elsewhere.
“we” and “us” means 21Vianet, as defined at the beginning of this agreement.
“you” and “your” means the entity signing this agreement to use the Services.