All copyright © 2005 ~ 2016 Capitalonline Data Service Co.,Ltd
IMPORTANT NOTICE
PLEASE CAREFULLY READ THE FOLLOWING TERMS OF USE, WHICH IS LEGALLY BINDING. BY USING THE SERVICES OF CAPITALONLINE DATA SERVICES CO., LTD (EITHER AN INDIVIDUAL OR LEGAL ENTITY) AGREE TO THE TERMS AND CONDITIONS OF THIS CLOUD SERVICES AGREEMENT (THE “AGREEMENT”), WHICH IS A LEGAL AGREEMENT BETWEEN YOU AND CAPITALONLINE DATA SERVICES LTD., 10000 N. CENTRAL EXPRESSWAY, SUITE447 DALLAS, TX 75231 (“PROVIDER”). IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE PROVIDER’S SERVICES.
IF YOU ARE ENTERING INTO THIS AGREEMENT AS AN INDIVIDUAL, YOU REPRESENT AND WARRANT THAT YOU ARE OVER THE AGE OF EIGHTEEN (18) AND POSSESS THE LEGAL CAPACITY TO BIND YOURSELF TO ITS TERMS AND CONDITIONS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A BUSINESS ORGANIZATION OR ENTITY, YOU REPRESENT AND WARRANT THAT YOU ARE DULY AUTHORIZED TO BIND THAT ENTITY TO THIS AGREEMENT. THE PERSON OR ENTITY ENTERING INTO THIS AGREEMENT WITH PROVIDER SHALL HEREAFTER BE REFERRED TO AS THE “CUSTOMER.”
This Agreement governs Customer’s purchase and use of the Services ordered by Customer that, when accepted by Provider, Provider provides to Customer (the “Services”). This Agreement incorporates the following additional documents by reference: (i) Provider’s Acceptable Use Policy posted at gic.capitalonline.net.com (“Acceptable Use Policy” or “AUP”); and (ii) the Service Levels set forth in Appendix 1 hereto.
1.SERVICES TERM; COMMENCEMENT OF SERVICES. The term of this Agreement (“Term”) will begin when the first of the following occurs: (i) Customer completes the online account registration process and accepts the terms and conditions of this Agreement, or (ii) Customer uses the Services. The Term will continue until terminated by either party in accordance with the provisions of this Agreement.
2.PROVIDER’S WARRANTIES. Provider warrants that it will perform the Services using commercially reasonable care and skill. THESE ARE THE EXCLUSIVE WARRANTIES FROM PROVIDER AND REPLACE ALL OTHER WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OR CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. The warranty for Services ends when the Services end. These warranties will not apply if there has been misuse, modification, damage not caused by Provider, or failure to comply with Provider’s instructions. ANY THIRD PARTY SERVICES THAT MAY BE PROVIDED TO CUSTOMER UNDER THIS AGREEMENT ARE PROVIDED “AS IS,” WITHOUT WARRANTIES OF ANY KIND, THOUGH THIRD PARTIES MAY PROVIDE THEIR OWN WARRANTIES TO CUSTOMER DIRECTLY.
3.COMPLIANCE WITH LAWS; RESPONSIBILITY FOR ACCOUNT ACTIVITY. Each party to this Agreement is responsible for complying with: i) all laws and regulations applicable to its business and content, including, without limitation, any local filing, monitoring licensing, permitting, or reporting requirements (such as, without limitation, ICP registration in China), and ii) import, export and economic sanction laws and regulations, including those of the United States that prohibit or restrict the export, re-export, or transfer of products, technology, services or data, directly or indirectly, to or for certain countries, end uses or end users. Customer is responsible for its use of the products and services of Provider and of any third parties. Without limiting the foregoing, Customer is responsible for all activities that occur under Customer’s account(s), regardless of whether the activities are undertaken by Customer, any end users, Customer’s employees, or some other third party (including Customer's contractors or agents) and, except to the extent caused by Provider’s breach of this Agreement, Provider and its affiliates are not responsible for unauthorized access to Customer’s account. Customer will contact Provider immediately if Customer believes an unauthorized third party may be using Customer’s account or if Customer’s account information is lost or stolen. Customer shall ensure that its end users’ use of the Services is not illegal, unlawful, or in violation of the Acceptable Use Policy. Customer will be solely responsible for any penalties or liabilities incurred as a result of Customer’s noncompliance with the provisions of this Section 3. Customer shall not use the Services for unlawful, obscene, offensive or fraudulent content or activity, in any jurisdiction for any user, such as advocating or causing harm, interfering with or violating the integrity or security of a network or system, evading filters, sending unsolicited, abusive or deceptive messages, viruses or harmful code, or violating third party rights. If there is a complaint or notice of violation, use may be suspended until resolved, and terminated if not resolved promptly. Customer may only have one account.
4.CUSTOMER’S RESPONSIBILITIES; PROHIBITED USES.
4.1 Customer is solely responsible for the selection, compatibility, licensing, development, accuracy, performance, operation, maintenance, and support of all content. Provider may immediately (and without prior notice) block access to any content (i) that Provider believes violates the law, misappropriates or infringes the intellectual property rights of a third party, or violates the terms and conditions of this Agreement; or (ii) pursuant to the Digital Millennium Copyright Act, a subpoena, or an order issued by a court or government agency.
4.2 Customer is responsible for obtaining all necessary permissions to use, provide, store and process content in or with the Services and grants Provider permission to do the same. Customer is responsible for adequate content back-up. Some of Customer’s content may be subject to governmental regulation or may require security measures beyond those specified by Provider for an offering. Customer will not input or provide such content unless Provider has first agreed in writing to implement additional required security measures.
4.3 Customer must use reasonable security precautions (including, without limitation, keeping its password and other account details secret) in connection with its use of the Services. Customer is responsible for use of the Services by any person who accesses the Services with Customer’s account credentials. NEITHER PROVIDER NOR ANY OF ITS EMPLOYEES, AGENTS, REPRESENTATIVES, SUPPLIERS OR LICENSORS WILL BE LIABLE FOR ANY UNAUTHORIZED ACCESS (E.G., HACKING) INTO PROVIDER’S SERVERS OR SERVICES, OR CUSTOMER’S TRANSMISSION FACILITIES, PREMISES OR EQUIPMENT, OR FOR UNAUTHORIZED ACCESS TO CONTENT, PROGRAMS, PROCEDURES, OR INFORMATION THEREON, UNLESS AND ONLY TO THE EXTENT THAT THIS DISCLAIMER IS PROHIBITED BY APPLICABLE LAW. Provider will give Customer notice of any unauthorized third party access to Customer’s content of which Provider becomes aware and will use reasonable efforts to remediate identified security vulnerabilities. If content is lost or damaged, Provider will assist Customer in restoring it to the Services from Customer’s last available backup copy in compatible format.
4.4 Customer represents and warrants to Provider that: (a) Customer or Customer’s licensors own all right, title, and interest in and to content provided by Customer or that Customer is authorized to use such content in accordance with this Agreement; (b) Customer has all rights in such content necessary to grant the rights contemplated by this Agreement; and (d) the information Customer provided in connection with Customer’s registration for, subscription to, and use of the Services is accurate and complete.
4.5 Customer may not use the Services for any application where a failure of those Services could result in death, serious injury, environmental damage, or property damage. Examples of prohibited uses include medical life support devices, water treatment facilities, nuclear facilities, weapons systems, chemical facilities, mass transportation, aviation and flammable environments. Customer acknowledges that Provider makes no assurances that the Services are suitable for any high-risk uses.
5.PAYMENTS, BILLING DISPUTES, AND TAXES ON SERVICES.
5.1 Customer agrees to pay all applicable charges specified by Provider, charges for use in excess of authorizations, any customs or other duty, tax, levy, or fee imposed by any authority resulting from Customer’s activities under this Agreement, and any late payment fees. All fees for Services will be charged to Customer’s credit card or account without invoice. The calculation of all fees for Services will be based solely on Provider’s records and data. Any amounts due not received by Provider within thirty (30) days of the date that payment becomes due will be subject to interest at the lesser of 1.5% per month or the highest rate permitted by applicable law plus any attorneys' fees and costs incurred by Provider in collecting any such amounts.
5.2 For prepaid Services, in order to activate the Services, Customer shall deposit funds to Customer’s account in accordance with Provider’s instructions. The Services shall not be activated until Customer’s account contains sufficient funds. Provider shall decrement Customer’s account balance in increments that are rounded up to the nearest minute, reflecting Customer’s actual minutes of usage. For Customer’s convenience, provider will provide estimates of monthly/weekly/daily cost upon written request. Customer may, at Customer’s option, set up recurrent payments to avoid service interruption for non-payment. When the balance in the account is insufficient to cover amounts due, provider will push a low balance alert on Customer’s network management page. Provider will also send alerts to Customer via email or text messages if applicable. Customer shall replenish the account balance within 72 hours after receiving such alert. The Services will be suspended immediately when Customer’s account balance drops to zero. If Customer fails to timely replenish its account balance to levels sufficient to cover amounts due, Provider may immediately terminate this Agreement or the Services upon the expiration of the 72-hour period set forth above.
In the case that Customer is not obtaining prepaid Services, Customer’s credit card will automatically be charged at the end of each month without invoice. Customer may access and download invoices at any time from Provider’s web portal.
Upon termination of this Agreement or the Services, Provider may permanently delete data associated with Customer’s account, including, if applicable, any data of Customer’s users. Any amounts added by Customer to an insufficient balance shall first be applied toward delinquent payments.
5.3 Provider may change pricing for the Services on thirty (30) days’ prior notice.
5.4 Any prepaid balance remaining in Customer’s account upon termination of this Agreement will be refunded, provided, however, that Provider shall first deduct processing fees from such amount, so that any refund will be net of processing fees.
5.5 Fees that are not disputed within within thirty (30) days after of the date on which they are charged will be conclusively deemed to be accurate. Any billing disputes must be in writing, and include a detailed statement describing the nature and amount of the disputed charge(s) and the reason(s) why a credit or refund is being requested. Customer shall cooperate fully with Provider to promptly address and attempt to resolve the disputed charge(s). Irrespective of the foregoing, Customer shall pay the full amount of the invoice, including the disputed amounts, in a timely manner and in accordance with the payment terms set forth in this Agreement.
5.6 Customer agrees to pay all taxes on the Services that Provider is required by law to collect, including transaction, local, value-added, sales, and service taxes. All fees charged by Provider are exclusive of any such taxes, duties, levies or fees. In no event will Customer be responsible for any taxes on Provider’s income. If Customer is exempt from paying taxes on the Services, Customer agrees to promptly furnish to Provider reasonable written proof of Customer’s tax exempt status.
5.7 Customer will i) maintain, and provide upon request, records, and system tools output, as reasonably necessary for Provider and its independent auditor to verify Customer’s compliance with this Agreement, and ii) promptly pay charges and liabilities determined as a result of such verification. These compliance verification obligations remain in effect during the Term and for two years thereafter.
6. CHANGES TO THE SERVICES AND ACCEPTABLE USE POLICY.
6.1 Provider reserves the right to change or discontinue the Services, including changing or removing Services features or functionality, at any time and without advance notice.
6.2 Provider may change the AUP to add or modify restrictions on use of the Services, provided that the changes are reasonable and consistent with hosting industry norms. If Provider makes a change to the AUP, Provider will publish a revised version of the AUP at gic.capitalonline.net If compliance with the revised AUP would adversely affect Customer’s use of the Services, and Customer gives Provider written notice of objection no later than thirty (30) days following the date that the revised AUP takes effect, Provider will not enforce the revision as to Customer until forty-five (45) days following the date the revision would otherwise have become effective as to Customer and Customer will continue to be subject to the prior version of the AUP. During the forty-five (45) day period, Customer may elect to terminate this Agreement and any Services on these grounds by giving written notice to Provider. Provider will not charge Customer an early termination fee for a termination on these grounds. If Customer does not elect to terminate during the forty-five (45) day period, then the revised AUP will become effective as to Customer as of the end of the forty-five (45) day period. If Customer terminates under this Section, Provider may decide to waive that AUP change as to Customer and keep the Agreement and Services in place for the remainder of the term then in effect.
7. SUSPENSION OF SERVICES. Provider may suspend, revoke or limit Customer’s or any end user’s use of the Services if Provider determines there is a material breach of Customer’s obligations, a security breach, or violation of law. Charges will continue to accrue for the Services during any suspension. If the cause of the suspension can reasonably be remedied, Provider will provide notice of the actions Customer must take to reinstate the Services. If Customer fails to take such actions within a reasonable time, Provider may terminate the Services and this Agreement.
8. TERMINATION
8.1 Customer may terminate this Agreement for any reason by: (i) providing notice to Provider and (ii) closing Customer’s account for all Services for which Provider provides an account closing mechanism. Provider may terminate this Agreement for any reason by providing Customer 30 days’ advance notice. Either party may terminate this Agreement for cause if the other party is in material breach of this Agreement, provided the one who is not complying is given notice and reasonable time to comply. Failure to pay is a material breach. Upon any termination of this Agreement, Customer shall remain responsible for all fees and charges Customer has incurred through the date of termination, including fees and charges for in-process tasks completed after the date of termination. Upon termination of this Agreement, all Services charges accrued but unpaid as of the termination date and any out-of-pocket expenses incurred by Provider or imposed on Provider (e.g., ordered and non-cancellable equipment, licenses, termination charges) shall become immediately due and payable.
8.2 Customer agrees and acknowledges that, effective seventy-two (72) hours after the expiration or termination of this Agreement for any reason, Provider has the right, without liability or further obligation, to permanently erase all content and data stored by Provider.
9. CONFIDENTIAL INFORMATION. “Confidential Information” means information disclosed by one party to the other that, due to its character, nature, or method of transmittal, a reasonable person under like circumstances would treat as confidential and proprietary, even in the absence of a "confidential" or "proprietary" designation on such information and the absence of any subsequent written confirmation or identification of such information¸ including, without limitation, Provider’s unpublished prices and other terms of service, audit and security reports, product development plans, data center designs (including non-graphic information Customer may observe on a tour of a data center), and other proprietary information or technology. Information that is independently developed by a party without reference to the other party’s Confidential Information, or that becomes available to a party other than through violation of this Agreement or applicable law, shall not be “Confidential Information” of the other party. Each party agrees not to use the other’s Confidential Information except in connection with the provision, performance or use of the Services, as applicable, the exercise of the parties’ respective legal rights under this Agreement, or as may be required by law. Each party agrees not to disclose the other’s Confidential Information to any third person except as follows: (i) to each of its service providers, contractors, agents, and representatives on a need to know basis, provided that such service providers, contractors, agents and representatives agree in writing to confidentiality measures that are at least as stringent as those stated in this Agreement; (ii) to a law enforcement or government agency if required, or if the party 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, if permissible to do so, each party agrees to give the other party prompt written notice prior to disclosing Confidential Information under this subsection, unless the law forbids such notice. The receiving party acknowledges that disclosure of the disclosing party’s Confidential Information could cause substantial harm to the disclosing party for which damages alone might not be a sufficient remedy and, therefore, that, upon any actual or threatened disclosure by the receiving party of the disclosing party’s Confidential Information, the disclosing party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
10. LIMITATION OF LIABILITY.
10.1 PROVIDER WILL NOT BE LIABLE FOR SPECIAL, INCIDENTAL, EXEMPLARY, INDIRECT, OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS, BUSINESS, VALUE, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS.
10.2 EXCEPT AS EXPRESSLY REQUIRED BY LAW WITHOUT THE POSSIBILITY OF CONTRACTUAL WAIVER, PROVIDER’S ENTIRE LIABILITY FOR ALL CLAIMS RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT OF ANY ACTUAL DIRECT DAMAGES INCURRED BY CUSTOMER UP TO THE AMOUNTS PAID (IF RECURRING CHARGES, UP TO 12 MONTHS’ CHARGES APPLY WITH RESPECT TO THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE MONTH IN WHICH THE CLAIM FOR DAMAGES FIRST AROSE) FOR THE SERVICE THAT IS THE SUBJECT OF THE CLAIM, REGARDLESS OF THE BASIS OF THE CLAIM. THIS LIMIT APPLIES COLLECTIVELY TO PROVIDER, ITS PARENT, SUBSIDIARIES, AFFILIATES, CONTRACTORS, AND SUPPLIERS.
10.3 PROVIDER DOES NOT WARRANT UNINTERRUPTED, COMPLETELY SECURE OR ERROR-FREE OPERATION OF THE SERVICES. CUSTOMER ACKNOWLEDGES THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF PRIVACY, CONFIDENTIAL INFORMATION, CONTENT, AND PROPERTY. THE SERVICES ARE PROVIDED “AS IS”, “WHERE IS”, “AS AVAILABLE” AND “WITH ALL FAULTS.”
10.4 CUSTOMER ACKNOWLEDGES AND AGREES THAT PROVIDER SHALL HAVE NO LIABILITY ASSOCIATED WITH OR ARISING FROM CUSTOMER’S FAILURE TO MAINTAIN ACCURATE CONTACT OR OTHER INFORMATION, INCLUDING, BUT NOT LIMITED TO, CUSTOMER’S FAILURE TO RECEIVE CRITICAL INFORMATION ABOUT THE SERVICES.
11. INDEMNIFICATION.
11.1 Customer will defend, indemnify, and hold harmless Provider , Provider’s affiliates, contractors, and licensors, and each of their respective employees, officers, directors, and representatives from and against any claim, damage, loss, liability, cost, and expense (including reasonable attorneys’ fees) arising out of or relating to any third party claim concerning: (a) Customer’s or any end user’s use of the Services (including any activities under Customer’s account and use by Customer’s employees, agents, contractors, and personnel); (b) Customer’s or any end user’s negligence, willful misconduct, breach of this Agreement (including, without limitation, any fines or penalties imposed on Provider as a result of Customer’s noncompliance with Section 3 of this Agreement), or the violation of any applicable law by Customer or any end users; (c) content or the combination of content with other applications, content, or processes, including any claim involving alleged infringement, or misappropriation of third party rights by content or by the use, development, design, production, advertising or marketing of content; (d) a dispute between Customer and any end user or other third party; (e) Customer’s relationship with the manufacturer, licensor, or distributor of any software installed or stored on or through the Services; (f) the actions or omissions of any person who gains access to the Services as a result of Customer’s failure to use reasonable security precautions and measures. If Provider or any of its affiliates are obligated to respond to a third party subpoena or other compulsory legal order or process relating to the above, Customer will also reimburse Provider for reasonable attorneys’ fees and expenses, as well as Provider’s employees’ and contractors’ time and materials spent responding to the third party subpoena or other compulsory legal order or process at Provider’s then-current hourly rates.
11.2 Customer may: (a) Use counsel of Customer’s own choosing to defend against any such claim; and (b) settle the claim as Customer deems appropriate, provided that Customer obtains Provider’s prior written consent before entering into any settlement, which consent shall not be unreasonably delayed or denied.
11.3 Provider has no responsibility for claims based in whole or part on non-Provider products and services, items not provided by Provider, or any violation of law or third party rights caused by content, materials, designs, or specifications.
12. SOFTWARE
12.1 Customer may not copy any software provided for Customer’s use unless expressly permitted by this Agreement. Customer may not remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on any software or documentation provided for Customer’s use. Unless permitted by the terms of an open source software license, Customer may not reverse engineer, decompile or disassemble any software provided for Customer’s use except and to the extent that Customer is expressly permitted by applicable law to do this, and then following at least ten (10) days advance written notice to Provider . If Customer uses any software provided by a third party on or in connection with Customer’s hosted system, software and/or technology, Customer represents and warrants to Provider that Customer has the legal right to use the software in that manner. On Provider’s written request, Customer will certify in writing that Customer is in compliance with the requirements of this paragraph and any other software license restrictions that are part of this Agreement, and will provide evidence of Customer’s compliance as Provider may reasonably request.
12.2 If Provider has agreed to install, patch or otherwise manage software in reliance on Customer’s license with a software vendor or any third party (rather than Provider’s license with the software vendor), then Customer represents and warrants that Customer has a written license agreement with the vendor or third party that permits Provider to perform these activities. Customer agrees that Customer will provide Provider with evidence of licensing as Provider may reasonably require prior to the scheduled deployment date, and from time to time as necessary to update the status of the license.
13. NOTICES. (a) FROM PROVIDER. Except as otherwise provided herein, notices Provider sends to Customer under this Agreement must be sent by email to the email address included in Customer’s account profile at the time the notice is sent. Customer is responsible for keeping its email address current and accurate at all times. Any notice sent to the then-current email address will be deemed to be received when it is sent even if Customer does not actually receive it. (b) FROM CUSTOMER. Except as otherwise provided herein, notices Customer sends to Provider under this Agreement must be in writing and sent at Customer’s own cost either (i) by email toidckf@capitalonline.net; or (ii) by certified mail, return receipt requested, or nationally recognized courier (e.g., FedEx or U.P.S.) with a signature required to the following address: 10000 N. Central Expressway, Suite 447, Dallas, TX 75231. (c) WHEN EFFECTIVE. A notice under this Agreement is effective when received. An email notice under this Agreement will be deemed received when sent. All other notices will be deemed received when signed for as indicated by the signed delivery receipt.
14. OWNERSHIP OF INTELLECTUAL PROPERTY; INTELLECTUAL PROPERTY INFRINGEMENT.
14.1 Except as otherwise expressly set forth in this Agreement, this Agreement does not convey to either party any ownership right or license to use, sell, exploit, copy or further develop the other party’s Confidential Information or intellectual property, including patents, copyrights, trademarks, trade names and trade secrets. Each party retains all right, title and interest in and to its respective trade secrets, inventions, copyrights, and other intellectual property. Customer acknowledges that Provider or its licensors or vendors own all right, title and interest in and to the Services, all copies thereof, and all proprietary rights therein, including copyrights, patents, trademarks, logos, domain names, or other brand features of Provider. Any intellectual property developed by Provider during the performance or provision of the Services shall belong to Provider. The Services may include various utility and deployment scripts, customizations to templates, code extending the functionality of third party applications licensed to Provider, printed and electronic documentation, and other data that Provider has or may develop at its expense before and while this Agreement is in effect (the “Provider Content”). Subject to Customer’s compliance with this Agreement, Provider grant to Customer a limited, revocable, non-exclusive, non-transferable, non-assignable, worldwide, royalty-free license to use Provider Content while the Agreement is in effect solely to access and use the Services in accordance with the terms and conditions of this Agreement. Customer may not translate, reverse engineer, decompile, disassemble, rent, lease, assign, transfer, redistribute, or sublicense any Provider Content.
14.2 If Provider or any of its customers are faced with a credible claim that any portion, component, or element of the Services infringes the intellectual property rights of a third party, and Provider is not reasonably able to obtain the right to use the infringing element or modify the Services such that they do not infringe, then Provider may, in its sole discretion, terminate the Services on reasonable written notice of at least ten (10) business days, and will not have any liability on account of such termination except to refund amounts prepaid by Customer for Services not received as of the time of termination.
15. ASSIGNMENT/SUBCONTRACTORS. Customer may not assign this Agreement or resell the right to use the Services without Provider’s prior written consent. Provider may assign this Agreement at any time. Provider may use third party service providers and contractors to perform and/or provide all or any part of the Services, but Provider remains responsible to Customer under this Agreement for Services performed and/or provided by its third party service providers to the same extent as if Provider performed the Services itself. Any subcontractor will be deemed to be an independent contractor and not Provider’s partner, agent, or employee. Provider may collect and report information regarding Customer’s use of the Services to its subcontractors, licensors or suppliers as required to provide Customer with the Services.
16. GOVERNING LAW, JURISDICTION AND VENUE; WAIVER OF JURY TRIAL. Both parties agree to the application of the laws of the State of Texas, without regard to conflict of law principles. The parties agree that the state and federal courts located in Dallas County, Texas shall have exclusive jurisdiction with regard to any claim, action, suit or proceeding arising out of or otherwise relating to this Agreement and hereby further irrevocably and unconditionally waive and agree not to plead in any such court that any such claim, action, suit or proceeding brought in any such courts has been brought in an inconvenient forum. Neither party will bring a legal action arising out of or related to this Agreement more than two years after the cause of action arose. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY IRREVOCABLY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PARTIES’ RELATIONSHIP.
17. MISCELLANEOUS.
17.1 Except as provided in this Section 17.1, no amendment to this Agreement will be effective unless it is in writing signed by both parties. Provider may modify this Agreement (including any Policies) at any time by posting a revised version on Provider’s website or by otherwise notifying Customer in accordance with Section 13. Amendments to this Agreement will become effective upon the earlier to occur of (i) Customer’s acceptance of the amended terms by clicking an online confirmation or acceptance button, or by clicking an acceptance link provided in an email sent to Customer; or (ii) thirty (30) days after Provider provides Customer with notice of the amendment in accordance with the notice provisions in Section 13. Customer’s continued use of the Services after the effective date of an amendment to this Agreement will be deemed to be Customer’s acceptance of that amendment.
17.2 If any provision of this Agreement is invalid or unenforceable, the remaining provisions remain in full force and effect.
17.3 If there is a conflict between the terms of any of the documents that comprise this Agreement, the documents will govern in the following order: this Agreement, and the Acceptable Use Policy.
17.4 Each party may enforce each of its respective rights under the Agreement even if it has waived the right or failed to enforce the same or other rights in the past.
17.5 Provider and its affiliates, and their subcontractors, may process and store business contact information of Customer personnel in connection with the performance of this Agreement wherever they do business. Provider may use personnel and resources in locations worldwide and third party suppliers to support the delivery of Services.
17.6 Provider is an independent contractor, not Customer’s agent, joint venturer, partner, or fiduciary, and does not undertake to perform any of Customer’s regulatory obligations, or assume any responsibility for Customer’s business or operations. Each party is responsible for determining the assignment of its personnel and contractors, and for their direction, control, and compensation. Provider does not have a landlord-tenant relationship with Customer, and Provider is not Customer’s bailee or warehouseman with respect to any data or content.
17.7 Customer has no right to access Provider’s premises or data centers and no right to possess or own any IP address, software, server hardware or other equipment included in the Services.
17.8 Customer will be notified of scheduled maintenance.
17.9 The section headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement.
17.10 This Agreement will be construed and interpreted in a neutral manner. Should any provision of this Agreement require interpretation or construction, the parties agree that this Agreement will be interpreted or construed without any presumption that the provisions of this Agreement are to be construed against the party who prepared this Agreement.
17.11 Any terms that by their nature extend beyond the termination of this Agreement remain in effect until fulfilled, and apply to successors and assignees.
17.12 Neither party is responsible for failure to fulfill its non-monetary obligations due to causes beyond its control.
17.13 No right or cause of action for any third party is created by this Agreement or any transaction under it.
17.14 This Agreement is the complete and exclusive agreement between Customer and Provider regarding its subject matter and supersedes and replaces any prior agreement, understanding or communication, written or oral.
1. Service Availability. Provider will provide service availability of 99.9%, calculated on a calendar month basis. The service availability will be calculated as follows:
[Total number of minutes service is available in a calendar month DIVIDED BY (Total number of minutes in a calendar month LESS Excused Downtime)]
2. Excused Downtime. “Excused Downtime” means downtime caused by:
(a) Customer environment issues affecting connectivity or interfering with the Services or any other Customer software or equipment, or operator error by Customer;
(b) scheduled outages;
(c) Customer’s violation of the Cloud Services Agreement including the Acceptable Use Policy, Customer-authored/initiated code, upgrades or other changes to the Services, interruptions or use that exceeds Customer’s plan capacity;
(d) third party attacks, including, without limitation, hacks, distributed denial-of-service attacks or any other third party actions intended to cause harm or disrupt the Services;
(e) emergency maintenance of the Services (for which Customer may not receive advance notice);
(f) force majeure events.
3. Proactive Monitoring. Provider will proactively ping the cloud server in 5 minute intervals. Upon receiving two consecutive “ping, no answers,” Provider will automatically open a trouble ticket after the second ping, no answer. Provider will then notify customer. The appropriate parties will be engaged and the necessary escalations will be executed in order to clear the trouble. If access to Customer’s equipment is required to assess the problem and clear the trouble and Provider is unable to access Customer’s equipment, Provider will not be responsible for clearing the trouble in a timely manner. All status updates are communicated to Customer via email from open to close of the trouble ticket.
4. Customer Service Contact Information.
Customer service is available 24 x 7.
Email address: idckf@yun-idc.com
5. Technical Support. Technical support is available 365 days per year, 24 x 7. Support is provided with respect to general consultation with respect to technical problems with the Services, assistance with problems stemming from Customer’s server, and emergency notification. In order to allow Provider to provide support requiring access to Customer’s server, Customer must designate an individual who can authorize such access and whom Provider may contact with access requests. It is Customer’s responsibility to notify Provider of changes in the contact information of such designated individual. Authorization for server access will consist of the designated contact person’s signature, or, if signature cannot be obtained, by means of a call or mailing to a designated mailbox, with the authorizing individual providing such person’s ID number to confirm authorization.
6. Service Credits. Customer will receive a credit of five percent (5%) of Customer’s monthly fee for each hour in which Provider fails to meet the Service Availability for such month (“SLA CREDITS”). In order to receive SLA Credits, Customer must make a request in writing to Provider via Customer Support or to Customer’s account manager (if applicable) within 30 days of the event giving rise to such SLA Credits. SLA Credits are based on Provider’s monitoring, may not exceed the total amount of fees Customer has paid for the month in which Provider failed to meet the service availability, are forfeited at the expiration or termination of the Agreement, may not be aggregated, and will not be paid in cash.
Last updated April 25th, 2016
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This agreement is entered into effectively between Beijing Capital Online Technologies Co. Ltd – the operator of Capital Online Website that includes www.yun-idc.com and gic.yun-idc.com and is individually or collectively referred to as the website hereinafter, which is referred to as "Capital Online" hereinafter, and the user who is referred to as you hereinafter. The agreement is binding on both parties.
You have confirmed your careful reading of this agreement that will be the basis where both you and the Capital Online have rights and obligations thereto. Prior to use of the Capital Online services (referred to as "these services" hereinafter), you have fully read, understood and accepted all articles in terms of these services (particularly those highlighted and / or underlined). Your consent to observe all covenants in this agreement is presented by choosing that "I have read and agreed" and completing the registration process or log-in into the website.
1. According to the Method for Administration of Internet Information Services by State Council, those who are engaged in Internet information services in the People's Republic of China must perform filing procedures with the Ministry of Industry and Information Technology and the Ministry of Public Security. Your website will be subject to penalty administration measures that include termination of all relevant services and fining for its online running without filing and obtaining an ICP file number.
2. The Capital Online promises that it is a company incorporated legally under Chinese laws and acts as a professional service provider of IDC (Internet Data Center) and cloud computing.
3. You have confirmed that you shall be a natural person or legal person or organization (collectively referred to as the legal entity) that is completely capable of civil rights and civil behaviors once you have completed registration procedures at the website or actually used these services in other manners allowed by the Capital Online.
4. You will lease a host from the Capital Online and have cloud services provided by the Capital Online for your business needs (it is referred to as "the cloud host" hereinafter) so that your product end-users will be connected to the Internet.
5. Cloud hosts referred in this agreement are a number of computer hosts independent from and non-interactive to each other, which are visualized in one computer host system by means of specific software techniques and hardware supports.
6. You shall maintain the record backup for minimum 60 days with record maintenance measures implemented in accordance with Decree 82 by Ministry of Public Security of the People's Republic of China.
7. Account Security
(1) You shall be at your discretion to take your confidentiality obligation for your account (with the log-in name and password) registered at the website and take your responsibilities for all of your activities occurring under the log-in name and password, which include but are not limited to information disclosure, information issuance, online clicking to agree on or submit various rule agreements or purchase services. You have agreed that: (a) you will notify the Capital Online immediately of unauthorized use of your account (with the log-in name and password) registered at the website by any one or other matters that constitute breach of the confidentiality prescriptions; and (b) you will be sure to leave the website properly when each of your online periods is over. The Capital Online will not be liable to any loss or damage incurred from your failure to observe this article. It is understandable to you that the Capital Online requires a reasonable amount of time to act upon your request and is not responsible for consequences made before its action (including but not limited to any of your losses).
(2) Unless otherwise specified in laws or judged and agreed by the Capital Online, your account must not be transferred, presented or inherited (except for property interests related to the account).
(3) You understand and agree that the Capital Online reserves the right to know your authentic background and purpose of using products and services at the website and ask you to provide the true, comprehensive and correct information. The Capital Online is entitled to temporary or permanent restricting of all or part of functions for all the products and / or services used under your account, when the Capital Online suspects reasonably that you provide the untrue information, make a false transaction or break website rules by the Capital Online.
(4) You understand and agree that the Capital Online reserves the right to temporarily stop or restrict all or part of money payment functions under your account for operation and transaction security needs. The Capital Online will notify you of the above via mail, website message, short message or telephone. You shall promptly pay attention to it and perform subsequent operations such as appeal in accordance with procedures.
(5) You understand and agree that the Capital Online reserves the right to check your personal information and check and deduct the amount in your website account as required by national judicial, administrative, military and security authorities (including but not limited to public security agencies, prosecutors, courts, customs, tax agencies and security departments).
1. Service content: You are required to complete registration at the website and you can have one account only. Products provided by the Capital Online are consistent with what exhibited at the website.
2. Effectiveness of the agreement: The agreement becomes effective since the date on which you choose that "I have read and agreed" or log-in into the website.
3. Period of the service lease and fee charging: from the date on which you open services at the website at your discretion to the date on which you close or delete services at the website at your discretion.
1. Subscription method: The Capital Online will provide you with the cloud host services under relevant articles in the agreement after you have selected products to be purchased at the website and made payment thereof with the method as agreed in Article Two of the agreement. The service fee will be calculated per minute since the time on which you open services at the website at your discretion.
2. The Capital Online is entitled to immediate service termination when the sum of your account balance and credit amount at the website is 0.
3. The account credit amount at the website is the amount you can expend in advance but you shall reimburse to the Capital Online by money charging within a specified time after expenditure.
4. The Capital Online will notify you that the balance is about to be insufficient via short message, mail or website message.
5. The Capital Online has the right to delete your data after 72 hours since the time of service termination as specified in the item 2 of this article. The data that have been deleted are not recoverable. Please transfer your data and log backup earlier.
6. The Capital Online has the right to deduct the fee you have owed previously from the fee payment you have made subsequently within 72 hours since the time of service termination due to your failure to make payment on time. The Capital Online still has the right to act as specified in the item 5 of this article if the payment made subsequently is not sufficient for the fee owed previously.
7. Payment method:
(1) You can make payment by money charging at the website.
(2) You can also pay the service fee to the Capital Online via your public account. The payment made with other methods must be noted of "the payment made on behalf of <the company name >" in remittance. You are responsible for losses incurred from the delayed or incorrect money charging.
8. The Capital Online will complete money charging for your primary account at the website within 4 hours upon receipt of your payment that you have chosen to make via the public account. The money charging can not be performed outside the working time (from 9:00 to 18:00) and in legal holidays. The information of the account for payment receiving by Capital Online is as below:
Account name: Beijing Capital Online Technologies Co. Ltd
Account bank: the sub-branch of Minsheng Bank in Taoranqiao, Beijing
Account number: 694585972
You must perform filing procedures with the Ministry of Industry and Information Technology and the Ministry of Public Security if you are engaged in Internet information services in the People's Republic of China. Your website will be subject to penalty administration measures that include termination of all relevant services and fining for its online running without filing and obtaining an ICP file number.
1. You are required to cooperate with Capital Online, provide the website filing information, IP filing information and other information required in terms of Internet information security to Capital Online, and ensure that the information provided is correct and effective and the website content is compliant with relevant laws and regulations. You are required to do so for approval or filing of Internet information services as mandated by other national authorities. You are responsible for all consequences from your failure or failure of your end users to promptly provide the relevant information, or provision of the untrue or inaccurate information, or breach of laws or regulations.
(1) If you are engaged in operating Internet information services, then you shall provide Capital Online with qualification evidences showing that you are engaged in Internet information services such as the business license for value-added telecommunication operations related to Internet information services as well as legal evidences for information issuance at your website. You shall also perform filing procedures in ICP/IP Address Information Filing Management System by the Ministry of Industry and Information Technology and fill the true filing code in it to ensure legal existence of your qualification evidences as above in validity of the agreement. You are required to do so for approval or filing of Internet information services as mandated by other national authorities.
(2) If you are engaged in non-operating Internet information services, then you shall perform filing procedures in ICP/IP Address Information Filing Management System by the Ministry of Industry and Information Technology and fill the true filing code in it to ensure legal existence of your qualification evidences as above in validity of the agreement. You are required to do so for approval or filing of Internet information services as mandated by other national authorities.
(3) If you use your own IP address, then you shall perform filing procedures in ICP/IP Address Information Filing Management System by the Ministry of Industry and Information Technology and fill the true filing code in it. You are required to do so for approval or filing of those with own IP addresses as mandated by other national authorities.
Capital Online has the right to terminate the agreement without any responsibilities if the qualification documents you provided or the filing information you completed is untrue, or becomes overdue without supportive documents for renewal. You have no rights to ask for return of the fee that has been paid.
2. As an Internet information publisher, you shall ensure that the information operating and publication be compliant with relevant laws and regulations and no activities being engaged be allowed to break laws and infringe legal rights by others. The content you published and provided at your website shall observe relevant national laws and public ethics. You are not allowed to provide the connectivity, host space lease or other services to a website operator who has not dealt with filing procedures. If you have broken any case specified in the item 8 of this article, then Capital Online will have the right to suspend or terminate the cloud host service, disconnect the network connectivity, keep relevant records and make reporting to the competent government agency, and you will be responsible for any consequences incurred from it. At the same time, Capital Online will have the right to terminate the agreement without any responsibilities, and you will have no rights to claim for return of the fee that has been paid and you shall compensate Capital Online for damages to Capital Online that are caused by the aforesaid.
3. You shall be responsible for outside liabilities of Capital Online that are incurred from illegality or infringement and compensate Capital Online for all losses from it. At the same time, Capital Online has the right to terminate the agreement directly without any responsibilities and you have no rights to claim for return of the fee that has been paid.
4. You shall use the cloud host service within the qualification scope that has been verified or filed and the cloud host service application scope as agreed in the agreement. You shall not perform other operations for which you are not qualified by means of services provided by Capital Online. You shall not be engaged in illegal activities by means of services provided by Capital Online. If you have broken the aforesaid promise, then Capital Online has the right to terminate the agreement without any responsibilities and you have no rights to claim for return of the fee that has been paid. You shall compensate Capital Online for damages to Capital Online that are caused by the aforesaid.
5. You are responsible to monitor and govern your users who have been licensed for Internet information services (ICP) for development of their clients. You shall intensify the daily administration and supervision of sub-users in filing and shall not provide the Internet connectivity service to organizations or individuals who are engaged in non-operating Internet information services without filing. You shall not perform filing, filing modification, filing cancellation or other procedures for organizations or individuals who provide the untrue filing information upon the fact that you have known or shall know they are engaged in non-operating Internet information services. You shall ensure that no behaviors break laws and regulations related to the telecommunication and other laws and regulations and social public ethics. You shall submit the supervision and inspection records for review by Capital Online as required by Capital Online. You are legally responsible for damages to Capital Online or third persons arising from behaviors of those who have been developed by your users. If you have broken the aforesaid promise, then Capital Online has the right to terminate the agreement without any responsibilities and you have no rights to claim for return of the fee that has been paid. You shall compensate Capital Online for damages to Capital Online that are caused by the aforesaid.
6. You are obliged to pay the fee to Capital Online as agreed in the agreement.
7. You shall provide the ICP business license obtained from the communication administration bureau in your company registration place within 30 working days since the date on which the agreement becomes effective. The filing form for filing at the communication administration bureau shall be provided in terms of non-operating websites or provision of BBS services. You shall perform filing procedures in ICP/IP Address Information Filing Management System by the Ministry of Industry and Information Technology. Capital Online will send the host opening notice to you and open the host on the date indicated in the notice upon receipt of the ICP business license or filing form as aforesaid. If you have not provided the aforesaid document within the specified time, then Capital Online has the right to terminate the agreement without any responsibilities and you have no rights to claim for return of the fee that has been paid. You are independently responsible for all legal liabilities and expenses incurred in the aforesaid period and Capital Online is not liable to it.
8. According to prescriptions by the Ministry of Information Industry and the Ministry of Public Security in the People's Republic of China about intensification of the information management in public information services as well as prescriptions by other relevant national authorities, you shall ensure that as a cloud host user, you promise to perform legal operating of information services you are engaged and observe the following rules in management of the information content:
(1) Do not disseminate the political news with coverage of the information content downloaded from Internet, which breaks national laws.
(2) Do not disseminate the information content involved in national secrets, threatening the national security, or infringing other people's legal rights.
(3) Do not disseminate the information content detrimental to social order or security. Do not disseminate the information content that renders violent behaviors or describes obscene matters. Do not run gambling and sexual websites.
(4) The information content disseminated throughout Internet shall have been approved by local propaganda and administration agencies. Downloading the Internet information outside borders for publication at domestic websites at will is not allowed.
(5) Make periodical self-examination of the information content management system for any problems that shall be disposed of immediately and reported to relevant authorities. Implement the information security responsibility system in a tangible manner. Intensify education and examination of those who are engaged in the information management.
(6) Ensure submission of the network application matters (such as IP address, domain name, etc) as required by Capital Online, completion of the materials to be provided as required by Capital Online and acceptance of the examination by Capital Online.
(7) IP addresses allocated by Capital Online can be used without transferring them to other people. The IP address access right are cancelled automatically upon withdrawal. Acceptance of the IP address application investigation by Capital Online is obligatory. Capital Online has the right to dispose IP addresses that have been allocated until recovery if false materials were provided.
(8) Capital Online can immediately delete webpages or notify users to delete webpages or stop network services, if they are found or reported to constitute breach of the above rules or upon receipt of a notice by the administration agency. You are fully responsible for all losses of Capital Online that are incurred from breach of the above rules by you or your company.
1. Capital Online has the right to ask you for remedy of your failure to perform filing procedures on time or your failure to provide the complete filing information or your breach of the agreement and suspend or stop services. Services suspended by Capital Online due to your improper behaviors will be resumed after remedy of your behaviors. The suspension time is counted as being within the service time, and the service fee in the suspension time is not exempted.
2. Capital Online has the right to legally shut down the cloud host you leased if you were disqualified for legal engagement in Internet information services or a relevant authority decided to stop your businesses in validity of the agreement. Capital Online has the right to shut down the cloud host you leased as specified in the item 2 in Article Two of the agreement and delete all of your content in the host after 72 hours since the date of cloud host shutdown.
3. Capital Online has the obligation to assist you in cloud host management as per your written authorization.
4. Capital Online has the obligation to ensure that the host housing is compliant with relevant national standards during validity of the agreement.
5. Capital Online shall keep your data confidential during validity of the agreement, but except that a relevant national agency or judicial judgment authority or arbitration authority requires provision of such data, or the data become disclosed due to Force Majeure, hacker attack or other factors. In addition, Capital Online is not responsible for your losses incurred from disclosure of your information as aforesaid in this article that is not caused by Capital Online.
1. Capital Online provides services in accordance with telecommunication service standards by the Ministry of Industry and Information Technology. If new laws, regulations and service standards are published by the country in fulfillment of the agreement, then the compliance with new laws, regulations and service standards will be made.
2. Capital Online will notify you in advance of matters such as construction and network partition/incorporation by Capital Online that may affect normal operation of the host and eliminate troubles as soon as possible to resume communication lines. The time during which the host can not be operated normally is not counted as being within the service time, and the service fee in such period of time is exempted.
3. The SLA agreement on cloud hosts is referred to the appendix – Service Quality Articles.
1. Any party's failure to fulfill its obligations under the agreement is considered as a default. The default party shall be responsible for the other party's losses due to default.
2. Capital Online has the right to suspend or terminate all or part of your services at its discretion if your information operating or publication breaks relevant national laws or regulations or the agreement to the extent that the following problems happen to the cloud host. You shall delete or modify the improper content during service suspension. Capital Online will resume these services after you have made deletion or modification and taken effective measures to eliminate such problems. The suspension time is counted as being within the service time, and the service fee in the suspension time is not exempted.
1) There are programs or software works in the cloud host, which may attack or disturb normal operation by others.
2) The cloud host is occupied or utilized by a third party to attack or disturb normal operation by others.
3) The cloud host is attacked by a third party to the extent that normal operation by others has been disturbed.
4) You are involved in sending junk emails or you are sending them in any manner (a junk email is an email sent to its receiver without the receiver's consent).
5) There is such content in the cloud host that may infringe others' legal rights or have an adverse impact on others.
6) You have broken what promised in the cloud host user guarantee.
7) The national network supervision agency or security agency or other government agencies require suspension or shutdown.
3. Capital Online has the right to stop the Internet connectivity service and even terminate the agreement without any defaults if Capital Online is complained or claimed by a third party or subject to an administrative penalty due to your reasons as specified in the above items 2), 3) and 5) and the item 2 in Article Six. You shall be responsible for all losses of Capital Online from it. Capital Online will not return the service fee you have paid (the service fee is not included in the compensation you shall make).
4. Capital Online has the right to stop the Internet connectivity service and even terminate the agreement, if your illegal programming, running or use of programs or software works has caused damages to Capital Online's equipments or made other users unable to use equipments in Capital Online's machine room. You shall be responsible for all losses of Capital Online from it. Capital Online will not return the service fee you have paid (the service fee is not included in the compensation you shall make).
5. Capital Online will compensate you for the service time twice as much as the service time that corresponds to the connectivity of network and cloud host promised by Capital Online less than 99.9%.
6. One party is not responsible for proceeds or profit loss, un-achievement of the expected saving, business repute loss and other indirect losses that happen to the other party due to behaviors under the agreement, regardless of being contrarily agreed in other articles of the agreement.
1. The force majeure referred in the agreement is an objective situation occurring from earthquake, typhoon, flood, fire, war, governmental enforcement or relevant authority's enforcement that parties under the agreement can not foresee, prevent, avoid and overcome.
2. If either of you and Capital Online can not fulfill all or part of its obligations under the agreement due to force majeure, then it is not liable to the other for default but shall notify the other in writing as soon as possible and take necessary measures to minimize the loss from it and negotiate with the other to extend the contract period as appropriate. The party who encounters force majeure shall notify the other party within 10 working days since occurrence of the force majeure and provide it with evidences given by relevant departments.
3. Either party under the agreement has the right to terminate the agreement due to failure to achieve the agreement purpose that is caused by force majeure, but it shall notify the other party in writing five working days earlier.
4. Capital Online will suspend or terminate services without any responsibilities as required by a governmental administration agency.
1. Capital Online has the right to suspend or terminate services provided to you at any time if you have notified Capital Online in writing of your refusal to accept the new service agreement modified by Capital Online.
2. Either party has the right to terminate the agreement at any time if you can not continue to use these services or Capital Online can not provide these services due to force majeure.
3. Capital Online has the right to suspend or terminate services provided to you at any time if other suspension or termination conditions as agreed in relevant articles of the agreement were met.
4. Capital Online has the right to unilaterally suspend or terminate these services if you have been registered in other names for use of these services after termination of services provided to you that was made by Capital Online as agreed in the agreement due to your breach of the agreement.
1. Disputes between both parties arising from fulfillment of the agreement shall be resolved amicably through negotiation between both parties. If not negotiable within 30 days since the date on which either party sends the written negotiation notice to the other, either party can submit disputes to Beijing Arbitration Commission for arbitration as per its arbitration rules. The arbitrational decision is final and binding on both parties.
2. Both parties will continue to perform other parts of the agreement that are not involved in disputes and arbitration while disputes are being resolved.
1. Both parties shall continue to perform effective parts of the agreement not subject to any article of the agreement that becomes illegal, invalid or unenforceable but does not result in the failure to continue fulfilling the entire agreement.
2. Titles in the agreement are for prompt only and shall not have impact on rights and obligations of the agreement parties, which shall be determined in accordance with the article content.
3. Either party shall not use or imitate the other party's business name, trade name, pattern, service logo, symbol, code, model or acronym in advertisements or public instances without the other party's written permission. Either party shall not declare to have the ownership of the other party's business name, trade name, pattern, service logo, symbol, code, model or acronym, but except for fulfillment of the information disclosure obligation as required by a relevant authority.
4. No content of the agreement shall be considered or construed as the joint venture or partnership between both parties.
5. You shall notify Capital Online of your contact information modified at the website after signing the agreement.
6. The agreement becomes effective since the date on which you choose that "I have read and agreed" or log-in into the website. For inconsistency between the agreement and the written signature version, the written signature version prevails.
7. The prompt sent or shown to you by Capital Online within the website is deemed such that Capital Online has completed notification since the date of sending.
8. The agreement covers prompts sent or shown to you by Capital Online within the website, which become indivisible parts of the agreement upon official publication. You shall also comply with them.
《Appendix – Service Quality Agreement》
The following quality assurance articles are established to better specify Capital Online's service promise to you and provide you with high-quality services:
1.1 "Availability of the network and cloud host" is referred to provision of normal services through the mainframe system where your cloud host is located as well as the network, CPU, memory and disk IO.
1.2 Cloud host availability criteria:
1) Capital Online will open the monitoring interface to you or provide you with the performance monitoring data in designated time sections if the mainframe where the cloud host is located supports performance monitoring.
2) Capital Online will establish a comparative host in the mainframe where the cloud host is located and open the monitoring interface on the comparative host to you if the mainframe does not support performance monitoring.
1.3 Capital Online ensures that your network system and cloud host operate in 99.9% of the availability.
1.4 Capital Online can calculate the time in which the network and cloud host is not available in every month. The time in which the network and cloud host is not available includes the time (in minute) in which your cloud host is not available due to Capital Online, but does not include the time in which your network system and cloud host are not available due to the following:
1) The network maintenance made by Capital Online upon your consent;
2) Your improper operations;
3) Your application programs or program setups;
4) Your omission or operations authorized by you;
5) The network attack or hacker attack;
6) Unexpected situations or measures taken to protect the host safety;
7) Government action or force majeure.
2.1 Capital Online checks your cloud host for connectivity with Internet through PING in the local area network every five minutes. The failure to connect with Internet that occurs consecutively twice and is determined through PING will be deemed as an emergency.
2.2 The following are deemed as emergencies that you shall be notified promptly of and assisted in resuming the normal operation by Capital Online:
1) Failure of the cloud host;
2) Network disconnection.
2.3 Capital Online will contact the person you have designated with the method you have chosen (telephone, email, fax or pager).
2.4 Capital Online has no rights to operate your system equipments before your official authorization via mail.
2.5 Capital Online's "reporting assurance" means that Capital Online will notify you of your failure to obtain Capital Online's services within 5 minutes.
2.6 You shall be responsible to provide Capital Online with accurate contact information of the person you have designated so that Capital Online can contact him/her. You shall notify Capital Online promptly of the changed contact information of the person you have designated.
2.7 Capital Online will be relieved from the reporting assurance responsibility if the contact information of the person you have designated is out of time or inaccurate due to your omission or force majeure defined in the framework agreement.
2.8 Capital Online will be relieved from the reporting assurance responsibility if Capital Online failed to contact you or the person you designated due to your reasons.
3.1 The customer service center of Capital Online provides you with the following services:
1) Initial installation acceptance and reporting;
2) Service modification acceptance and reporting;
3) Complaint acceptance and reporting.
3.2 Capital Online provides customer services in 7*24 hours.
Customer service hot-line : +86-104008105300
Email : idckf@yun-idc.com
4.1 The operation and maintenance engineers of Capital Online provide you with the following services:
1) Emergency notification;
2) Server operations under your authorization via mail;
3) Technical consultation.
4.2 The operation and maintenance engineers of Capital Online work 24 hours a day, 7 days a week and 365 days a year.
4.3 You shall authorize Capital Online's engineers for their operations of your server via mail or in writing.
4.4 You shall designate the authorization person (maintenance person) in the maintenance agreement between Capital Online and the user of Chinese telecommunication IDC. Only the authorization person has the right to ask Capital Online's engineers for operations of your server. You shall notify Capital Online in writing of change of your authorization person (maintenance person).
4.5 The written authorization must be signed by your authorization person or stamped with the company seal. Your authorization person can authorize Capital Online's engineers via telephone or mail to the designated mailbox if he/she can not authorize them in writing. The authorization person must give a notice of his/her ID card number for verification.
5.1 You can complain Capital Online and its employees in writing about:
1) Network quality;
2) Customer service quality;
3) Technical support quality.
5.2 Capital Online has set up a complaint hot-line to accept your complaint.
5.3 Capital Online has set up a complaint mailbox to accept your complaint:
1) Complaint mailbox : CDS.Service@yun-idc.com
2) Complaint telephone : +86-1051994489
6.1 Capital Online will compensate you for the service time twice as much as the service time that corresponds to the connectivity of network and cloud host promised by Capital Online less than 99.9%.
6.2 You will negotiate with Capital Online about the compensation method and amount if your data were lost due to Capital Online.