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EdgeRay Technologies Service Contract          

                               Contract No. ___________          

 

THIS CONTRACT is made and entered into in _____ on the ____th day of _____, _____ , by and between:

                                    , (hereinafter referred to as Party A”), and EdgeRay Technologies Co., Ltd., (hereinafter referred to as “Party B”).

 

In accordance with the Civil Code of the People’s Republic of China, Telecommunication Supervising Statute, and other relevant laws and regulations, Party A and Party B, adhering to the principles of equality, voluntariness and mutual benefit, and through friendly consultation, have reached the agreement on the provision of EdgeRay Technologies Cloud Computing Service provided by Party B, and enter into this Contract with the following terms and conditions for the Parties to comply with:

 

1. Representation and Warranties

1.      Party A is a legitimate enterprise registered at the administrative organ for industry and commerce in due form and validly exists, has obtained all the qualifications and licenses necessary for the operation of Internet business and licenses complete.

Party A has full power and authority to execute this Contract, at the time of entering into this Contract, there is no legal barrier or significant event that may affect its normal operation or the performance of this Contract.

Party B is a high-tech company that holds the License for Cross-Province Operation of Value-Added Telecom Service issued by the Ministry of Industry and Information Technology of the People’s Republic of China (License No. B1.B2-20050405), and is eligible to operate Internet data center (IDC) business and Internet access business.

Party B has obtained all the qualifications and licenses necessary for the operation of Internet business and licenses complete.

Party B has full power and authority to execute this Contract, at the time of entering into this Contract, there is no legal barrier or significant event that may affect its normal operation or the performance of this Contract.  

2.      Both Parties warrant to each other that, during the negotiation and performance of this Contract, if any changes arise that may affect the performance of this Contract, the affected Party shall notify the other Party promptly, otherwise it shall be attributed as a breach of contract.

Such changes include, but are not limited to: changes to the qualification for business or records, mortgage and pledge, debt profile or important transformation of assets, bankruptcy liquidation, information of penalties resulting from the violation of telecom and/or Internet industry regulations, and other information that may affect the entry-into-force or the performance of this Contract.

3.    Both Parties warrant to each other that, the corporation between the Parties shall strictly comply with any and all laws and regulations made by the State and/or the competent authorities (including, but not limited to the laws and regulations currently in force or being released or updated from time to time).

 

2. Definitions and Interpretation

1.     “CLOUD COMPUTING SERVICE”, means the one-stop, on-demand IT computing resource rental service provided by Party B to Party A, which integrates computing, storage, and network resources, as well as the services of technical support, fault detection and repair, and other supporting and value-added services related. Cloud Computing Service could help developers and IT administrators deploy and manage large-scale, extensible IT infrastructure resources rapidly and with no need for one-off investment.

2.     “BASIC TELECOM SERVICE OPERATOR”, means the legal entity that operates telecom services in China, and has obtained the License for the Operation of Basic Telecom Services issued by the Ministry of Industry and Information Technology of the P.R.C..

3.       “TELECOMMUNICATIONS ADMINISTRATION”, means specially the Ministry of Industry and Information Technology of the P.R.C. and its subordinated departments, which carry out the administration over Internet and information technology, Internet access, and other kinds of services.

4.      “RELEVANT GOVERNMENTAL AUTHORITY”, means the governmental authority or third-party organization that carries out the administration over Internet access, information content, miscellaneous services, intellectual property rights and other relevant issues pursuant to the laws and regulations of the P.R.C.. Such governmental authorities include the Internet Surveillance Branches under Public Security Bureaus of the P.R.C., the respective Internet industry associations.

5.       “THIRD PARTY RIGHT HOLDER”, means the third-party organizations, governmental authorities or individuals that hold the legally effective documents legitimately. Such documents include, but are not limited to: certificate of copyright or patent, judgment, and any laws, regulations, departmental rules, or administrative orders which are closely relevant with the  legitimacy of the continuing performance or early termination of (all or part of) this Contract.

6.      “BOTH PARTIES AND THE OTHER PARTY”: “BOTH PARTIES” means the Contracting Parties under this Contract, which refers to Party A and Party B specifically; “THE OTHER PARTY” means the other Contracting Party that take part in the process of negotiation, execution and performance of this Contract.

7.      “CONTRACT PRINCIPAL”, means the persons as designated by the Parties, that could represent the authorizer’s intention, and are responsible for decision-making, explanation, and communication regarding technology, business and/or service matters for the performance of this Contract.

8.       “BOOKED ADDITIONAL SERVICES”, means the cloud server, could drive, bandwidth, IP, and/or other services provisionally purchased by Party A.

 

3. Scope of Service Purchased by Party A

1.  Please see Appendix 1(the Service Order) for details.

2.  Other supplementary agreements:

 

4. Term, Price, and Settlement of Payments

1.      As for the term, price, settlement of payments and payment methods for the services purchased by Party A, see Appendix 1 (Service Order) for details.

2.       Both Parties hereby confirm that all the service fees under this Contract shall be settled in RMB. Concerning the particularity of Internet and the Cloud Computing service, Party A agrees to, and voluntarily uses the Service Billing and Data Inquiry System provided by Party B. Party A’s doubts about the bill or data should not be the ground for its unilateral termination or suspension of this Contract, or the relief of its payment obligations.

3.     Where no written request for termination is submitted by either party ten (10) days before the expiry of this Contract, and Party A continues to use the service provided by Party B, this Contract will be automatically extended for the same contract period. Such extension shall have no limit on times.

Either party proposes to terminate this Contract shall give the other party a written notice at least thirty (30) days in advance.

Where no Agreement is submitted by either party or no written request for termination by Party A ten (10) days before the expiry of this Contract, and Party A continues to use the service provided by Party B, this Contract will be automatically extended for the same contract period. Such extension shall have no limit on times.

4.       During the performance of this Contract, where Party A needs to increase or decrease the usage amount within the scope of Service it purchased, it shall propose in writing five (5) working days in advance, and with Party B’s prior consent, amend the Service Order or sign a separate supplementary agreement with Party B. Except for the changes to the usage amount as aforementioned, other changes to this Contract shall be confirmed by signing supplementary agreement(s) after mutual consultation.

5.       Party B’s issuance of the respective invoice shall not be regarded as the confirmation of Party A’s payment; Party A’s payment status is subject to the actual receipt of payment at bank.

6.       The amended Service Order or Supplementary Agreement shall take effect when being signed and sealed by both Parties. The amended Service Order or the Supplementary Agreement shall constitute integral components of this Contract. In the event of any discrepancy between this Contract and the amended Supplementary Agreement/Service Order, the relevant provisions in the last Supplementary Agreement (or Service Order) shall prevail.

Subject to the amendments provided, the clauses which have not been amended shall continue to be in full force and effect.

 

5. Rights and Obligations

1.       Rights and Obligations of Party A

1     Party A warrants that it has all the qualifications necessary for the performance of this Contract as required by the relevant laws and regulations, all the legal liabilities resulting from Party A’s lack of the foregoing qualifications shall be borne by Party A.

2        Party A should provide its contact information for instance, e-mail address, telephone number, mailing address and zip code correctly and keep these information updated, so that Party B could contact Party A effectively. Any losses, damages, or increased expenses occurred because of the failure of communication should be solely borne by Party A.

Party A understands and agrees that it has the obligation to keep its information effective, where these information need updating, Party A should conduct operation as required by Party B.

3       Party A shall be fully responsible for all the operations and statements under its account. Party A agrees that:

                          i.        Party A only has the right to use its account on EdgeRay Technologies Cloud Computing Service Platform; Party A shall be responsible for its account, and only Party A itself could use this account.

If Party A intends to transfer, donate or allow other persons to use its account, it shall send a written notice to Party B, and the successor shall only acquire the right to use this account legally when Party B has agreed so, and the successor should also sign this Contract, otherwise Party B reserves the right to suspend or terminate all the services under this Contract at any time with no liability.

                        ii.       Party B will identify Party A’s instructions through Party A’s username and password. Party A should well keep its username and password, all the losses, damages or the subsequent adverse consequences arising from the disclosure of password shall be solely borne by Party A. Party A warrants that it will not disclose its username or password to any person, and will not use other person’s username and password on EdgeRay Technologies Cloud Computing Service Platform.

                       iii.         Where Party A has found any fraudulent use or illegal theft of its username or password, or any other situation lacking of authorization, it should notify Party B in an effective way immediately, and ask Party B to suspend the relevant services. Meanwhile, Party A understands that it needs a reasonable time for Party B to response to Party A’s request and take action, and Party B shall assume no liability for the instructions it has executed and all the losses caused thereby.

                       iv.           In the case Party A forgets its username or password, it shall contact Party B in time, and recover its password in accordance with the procedure listed on Party B’s website or instructed by the customer service staff.

4         Party A warrants not to make, copy, publish or propagate messages containing the following contents: oppose the basic principles stipulated in the Constitution; jeopardize national security, divulge state secrets, incite subversion of state power, undermine national unity; impair state honor and interests; incite hatred or discrimination among nationalities or harm the unity of the nationalities; break the national religion policy and/or blazon forth evil cults or superstitions; disseminate rumors, disturb social order and undermine social stability; spread obscenity, eroticism, gambling, violence, homicide and horror, or abet criminality; insult or slander other people, or impair other people’ legitimate rights and interest; and other contents prohibited by laws and regulations. Party A also warrants not using the services provided by Party B to engage in the activities endangering telecommunications and network security, or disrupting the normal order of the telecom market.

5      Party A warrants to conduct complete inspection and filter over the accessed contents, including but not limited to websites, instant messengers, network disks and videos; it further promises to entirely remove harmful messages which contains violence and/or terrorism, close the accounts which contain videos advocating violence and/or terrorism, and set up a working list for clearing violence and/or terrorism related videos.

6        Where Party A’s operating activities need authorization or permit from the relevant governmental authorities, Party A should obtain the respective authorization or permit, and ensure that such authorization or permit remains valid during the Term of this Contract. Party A shall assume the respective consequences or liabilities as a result of the defect on the effectiveness of the authorization or permit. Party B has no obligation or capacity to investigate whether Party A has obtained such authorization or permit or not, however where Party B requires, Party A shall be able to show the respective certificates.

In the case Party A points the unrecorded domain name to the IP address provide by Party B without the consent of Party B, Party B has the right to cease the hosting service of such domain name, and shall assume no liability for breach of contract, and Party A shall assume all the adverse consequences caused therefrom.

7        Party A should use the Services in accordance with the terms and conditions of this Contract, should not use the Internet resources provided by Party B to operate any service which it does not have qualification, should not use the Internet resources provided by Party B to engage in illegal activities, and should not use the bandwidth to provide access to other Internet service providers or Internet entities in any way (including but not limited to building VPN channel).

In case of any change to its scope of business, Party A shall sign supplementary agreement(s) with Party B to confirm such changes.

8       The server Party A rented shall be used mainly for the web-based information service, or for other legitimate purposes which are in conformity with this Contract. Party A could log into the server it rented remotely to conduct management. During the Service Period, Party A could stop the running of the server itself. The status of the server (in stop or in running) shall not affect the calculation of the relevant service fees.

9         Party A has right to use the WWW-based information service provided by Party B, including but not limited to: the configuration and usage of Internet  and database such as Email, FTP and Telnet, provided that Party A shall not use the Service provided by B as proxy server, otherwise Party B has the right to stop such action by any means, including but not limited to: shutting down the server, limiting network resources, requiring Party A to pay the supplementary fees for the overuse of resources. All the consequences caused therefrom shall be solely borne by Party A.

10      Party A shall not engage in any activity that breaches network security or attempts to breach network security, including, but not limited to: phishing; hacker; Internet fraud; or websites or spaces contain or may unleash: computer viruses, Trojan, and malicious code; and other activities that may attack other websites or servers through virtual server, for instance, scanning, sniffing, ARP cheating, and DOS.

11     Where Party A needs to install software or other works, data, etc. on the cloud server of the Cloud Computing Service it rented, it shall obtain the respective copyright or license(s) of such software, works, or data itself pursuant to the law. Party B shall be exempted from any dispute, lawsuit, or indemnification in relation with the intellectual property right issues therefrom, and Party A shall indemnify, and hold Party B harmless from any expenses and/or losses arising from its breach of this sub-Clause.

Party A is aware and acknowledges that, where the relevant governmental authority investigates Party A’s online information through Party B (for instance, the Internet access log, login history, details on distribution of information), Party A shall fully cooperate with such investigation, otherwise Party B reserves the right to suspend or terminate the Internet service.

12      Party A fully aware and acknowledges that, data backup is Party A’s obligation and responsibility. The cloud server rental service provided by Party B is the same reliable as the physical server, and Party A shall be responsible for the reliability of the Service and the backup of data.

13      Party A understands that it shall record the end users’ Internet history according to the requirements set forth in the Regulations on the Protection of the Right of Communication through Information Network, Administrative Protections on the Copyright in Internet, and other relevant laws and regulations. Such records shall be kept for ninety (90) days, and provided to the governmental authorities upon request in conformity with legal provisions.

Any economic, political, or legal liability caused by Party A’s use of the server shall be solely borne by Party A. Party B shall assume no obligation or responsibility to any third parties. Where Party B suffered any loss or damage caused thereby, Party A shall compensate such loss or damage. Party A should provide the backups to the relevant governmental authority in accordance with the inspection requirements—in this case Party B shall provide reasonable testimonial material.

14     After notifying Party B in advance and signing multi-party agreements, Party A could share the Service(s) under this Contract with its controlled company, subsidiary company, or other affiliates temporarily or chronically. The company which shares Service(s) with Party A shall also comply with the provisions regarding qualification, legal affairs, as well as price and quality issues as prescribed in this Contract. Unless otherwise agreed, Party A has the obligation to pay the service fees under this Contract to Party B on time, and shall undertake joint responsibility for the liabilities and service fees resulting from the sharing of Service(s).

15    Unless otherwise agreed by both Parties in writing, Party A acknowledges that Party B has the proprietary rights of the materials, software, data, etc. it provided to Par A. Party A has no right to copy, propagate, transfer, license or allow others to use these resources, otherwise Party A shall undertake the corresponding liabilities caused thereby.

16      Party A shall be liable for the normal operation of the Cloud Computing Service, and be responsible for the completeness and confidentiality of the data it stores on the cloud server. Any and all the losses caused as the consequence of the disclosure of Party A’s management account or password shall be solely borne by Party A.

17      Where the operating activities of Party A need authorization or permit from the relevant governmental authorities, Party A should obtain the respective authorization or permit.

Where Party A operates more than one website on the server, it shall guarantee that all the websites have obtained the respective authorization or permit from the governmental authorities. For instance, the operation of profit-making websites requires ICP License issued by the local telecommunications administration; the operation of non-profit websites needs the handling or alteration of ICP filing with the assistance of Party B; the operation of e-bulletin business (for instance, chat-room, BBS, etc.) or news releasing business requires approval or registration and filling in accordance with the relevant laws and regulations. Meanwhile, Party A shall provide documentary evidence on the legitimacy of the operation of its business.

If Party A breaches the provisions provided under this Clause, Party B has the right to suspend or terminate the Services under this Contract. Party B shall not be liable for the losses or damages caused to Party A therefrom; and any loss or damage caused to Party B arising therefrom shall be solely borne by Party A.

18     Party A shall use the resources and Services provided by Party B legitimately, and shall comply with the relevant laws and regulations of the P.R.C., including but not limited to: Administrative Measures for Protection of the Security of International Internetworking of Computer Information Networks, Interim Provisions Governing International Interconnection of Computer-based Information Networks, Regulations for Safety Protection of Computer Information Systems, Telecommunications Regulations, Decision of the Standing Committee of the National People's Congress on the Preservation of Internet Security, Administrative Measures on Internet Information Services, Provisions on the Administration of Electronic Bulletin Board Services on the Internet, Interim Provisions on the Administration of News Publication Business Undertaken by the Internet Websites, Administrative Measures for the Broadcast of Audiovisual Programs via Such Information Networks as the Internet, Interim Provisions on the Administration of Internet Culture, and other relevant public policies. Party A shall not offend other’s intellectual property rights, business secrets, and other legitimate rights; shall not transgress social morality, use the server to engage in the activities which are unwelcomed, or prohibited by laws and regulations. Party A warrants that it shall not provide convenience for others to publish the aforementioned messages, including but not limited to: URL, BANNER linkages. Such activities and messages include but are not limited to:

                          i.          Distributing email advertisements and spams, including but not limited to sending unwelcomed or unsolicited emails, email advertisements or emails containing harmful contents, for instance, reactionary and pornographic information in bulk; advertising, introducing or soliciting business for the website placed on the server by distributing unwelcomed or unsolicited emails, email advertisements, etc. in bulk; emails with no clear bounce method, sender, or return address; emails violating other ISP security strategy or service terms.

                        ii.           Messages involving state secret and/or security, containing feudal superstition and/or pornographic contents, abetting crimes; game of chance and gambling; messages breaching national ethnic or religion policy, interfering Internet security, damaging other’s legitimate rights, and/or other messages or contents which are harmful to social order, public security, or public moral.

Party A acknowledges that, at the sole discretion of Party B, Party B has the right to decide whether the contents published by Party A constitute a breach of contract or a violation of state regulations. In case of any breach, all the liabilities caused therefrom shall be solely borne by Party A. For the damages caused to Party B, Party A shall further undertake the compensation liability.

19      Party A shall submit the name list and contact information of the contract principal and the personnel who manages the server and user network (including but not limited to the effective email address and telephone number), and provide necessary assistance upon Party B’s request. In case Party A needs to change such information, it shall notify Party B promptly, and assist Party B’s customer service staff to change the corresponding information. The contract principal and administrative personnel should be reached 7x24 hours every week (Monday to Sunday, 0:00-24:00). Any consequence arising from the untruthfulness, inaccuracy, or incompleteness of the contact information, or resulting from the act or omission, or lost contact of the aforementioned personnel shall be solely borne by Party A.

20   For the delivery of service, party A shall provide necessary information and assistance to Party B, for instance, provide timely and effective contact information so that Party B could notify Party A promptly in the case of emergency. Party A shall fill in the EdgeRay Technologies Cloud Computing Service Order accurately so that Party B could complete the setup work. Party B shall bear no responsibility for the unavailability of service, delay in rendering the service, or the defect on the quality of service resulting from Party A’s failure of providing necessary conditions.

21      Party A has the right to inquire about the product, service, price, etc. with regard to this Contract. Where Party A chooses to use these products and services, it shall be regarded as Party A has no doubt over these issues, and Party A has committed that it has waived the right to claim damage in relation to its doubt about the Contract. Where the Services provided by Party B needs Party A’s banking information, Party B shall strictly comply with the relevant confidentiality agreement after such information has been provided by Party A.

22      Party A shall pay the service fees in full and on time; Party A has the right to get the invoice with the same amount as the service fees.

Party A shall still pay the service fees if the service interruption is due to Party A.

23      In the situation that the corporation between the Parties has been terminated, or Party A fails to recharge the service fees as mutually agreed, Party B reserves the right to terminate the Services immediately. Party A should backup its data stored in the server during the server available period. Party B shall format the server three (3) days after the termination of the Service. Party B shall bear no liability for the data losses because of Party A’s remissness in backing up the data.

24      On the Service Commence Date, Party B will notify Party A to sign-off in writing. Party A shall complete the sign-off work within one (1) working day on the receipt of the notice.  Any objection from Party A should be brought within one (1) working day. Where Party A did not file any written objection within the required time, it shall be deemed to constitute Party A’s acceptance of such Service(s).

25   Party A acknowledges that, the intellectual property rights of any material, technology, technical support, software, and/or service provided by Party B to Party A belong to Party B, without Party B’s prior written consent, party A has no right to use these resources through copying or propagating, or provide these resources to any third party through transfer or license, otherwise it shall undertake the corresponding liabilities caused thereby.

26      Notwithstanding otherwise stipulated in this Contract, both Parties confirm that: within the scope of the Service(s) provided by Party B to Party A, there is no declaration of intention on the transfer, authorization or permission of usage of Party B’s intellectual property rights.

27Before paying any bill, Party A shall notify Party B the service fees to be offset in writing precisely (including the kind and term of the service). Where Party A did not notify Party B in writing precisely, Party B has the right to confirm the kind of the service fees to be offset itself.

28      Where the Service Place is outside the mainland China, Party A shall also comply with all local laws, regulations, orders, business specifications and industry practices, and shall undertake the corresponding liabilities with respect to any breach therein.

2.       Rights and Obligations of Party B

1       Party B reserves the right to deactivate Party A’s account, suspend or terminate the Service in the case that Party A violates the laws and regulations or is in breach of this Contract.

2        Party B is responsible for hardware configuration, routine maintenance of server hardware, troubleshooting, and network connectivity. Party B shall provide Cloud Computing Service to Party A, and make formal response to Party A’s complaint. 

3       Party A understands that, the Cloud Computing Service provided by Party B is a kind of infrastructure rental service, thereafter, in order to monitor server health, conduct necessary maintenance and upgrade, safeguard the normal operation of the server, and comply with the laws and regulations for instance Administrative Measures on Internet Information Services, Detailed Rules for Internet Websites Administration Works, Provisions on Technical Measures for the Internet Security Protection, and Measures for the Administration of Telecom Service Operation, Party A consents that, Party B could take necessary technical measures to monitor the health of the server Party A rented, the contents of its website, and the program Party A runs.

4        In good faith and with responsible attitude towards Party A, through relevant technical measures, Party B shall try as much as possible to protect the safety of the data and information Party A stored on the server, and will not disclose user’s data and information to any third party on its own initiative, except that: it is required by public powers, for instance, the executive or judicial departments; it is submitted by Party B for handling complaints or litigations; it is provided to third party with Party A’s consent; it has to be submitted by Party B in order to take necessary measures to prevent the material breach of law or the commission of crime; it should be provided as required by the relevant laws and/or regulations.

5         Party A shall not remove or destroy the settings on the cloud server set by Party B (including but not limited to monitor settings, driver settings, and hardware configuration settings). For the removal or damage of the settings due to the reason of Party B, Party B shall re-install and re-debug the relevant equipment; for the removal or destruction of the settings due to the reasons not related to Party B, Party B has the right to terminate the Service.

6         During the Term of this Contract, Party B is responsible for the disposition of hardware failure, provided that such failure is not attributed to Party B, or due to the event of force majeure, or is beyond the reasonable control of Party B.

7         In the case that within the Cloud computing Service purchased by Party A, the hardware equipment (for instance, the server) provided by Party B breaks down, Party B shall repair, or replace the Equipment with the same configuration(s), so as to ensure that Party A could acquire normal service.

8         In the case that Party B needs to interrupt the Service for a short time for network adjustment and maintenance, Party B shall notify Party A in advance.

9        Where Party A becomes the user of EdgeRay Technologies Cloud Computing Service Platform through registration, or being added by Party B through EdgeRay Technologies Cloud Computing Service Operation Supporting Platform, Party B will require Party A to set its account and password in order to identify Party A’s status. Party A can only use its account with the password it set. If the password is disclosed by Party A, it may lose its identifying information, and further undertake the subsequent adverse legal consequences. Where the account and password are in actual or potential danger, Party A shall contact Party B immediately, any and all the consequences caused by the disclose of account and password shall be solely borne by Party A.

10      In order to safeguard the safety of the Service and constantly improve the quality of the Service, Party B shall record and save Party A’s corresponding information, for instance, login information and usage information of EdgeRay Technologies Cloud Computing Service. Party B warrants that it shall not provide such information to any third party (except as mutually agreed or required by laws and regulations or disclosed to Party B’s affiliates).

11     Party A shall be responsible for its operation behavior on the server, and Party B shall assume no liability caused thereby. Where Party A changes the settings without giving prior notice to Party B, and the actual configuration is inconsistent with the configuration provided in the Service Order, the changed configuration(s) shall prevail, and all the consequences caused thereof shall be solely borne by Party A.

12      Where Party B noticed that Party A uses the Services illegally, Party B has the right to request correction. Where Party A refuse to correct, Party B has the right to suspend or terminate the corresponding services and hold Party A responsible for breach of contract. During the Service Term, where Party B receives notice from the relevant governmental authority requiring Party B to suspend rendering Services to Party A, with notice sent to Party A, Party B will act in accordance with the relevant governmental authority’s requirements and will not take any liability for breach of contract.

13      Unless otherwise agreed by both Parties in writing, Party B acknowledges that any and all the intellectual property rights of the materials, software, data, etc. stored by Party A on the equipment are owned by Party A, and Party B has no right to communicate, transfer, license or offer the others to use these resources, otherwise Party B shall undertake the corresponding liabilities caused thereby.

14     Unless otherwise agreed by both Parties in writing, Party B shall not be responsible for the safety and management of the operating system, application, Party A’s data, and other system configurations on the server purchased by Party A. Party A shall be responsible for the backup of all materials, software, data, etc. stored on the cloud server of the Cloud Computing Service it rented. Party B will clean up the server three (3) days after the termination of the Service, and Party B shall not undertake any responsibility caused thereby.

15      During the Term of this Contract, Party B could provide other relevant supporting and value-added services to Party A. Party A could apply to add service(s) at any time, however the additional then-applicable fees should be paid accordingly. The arrangements in detail shall be confirmed by both Parties through the execution of the Technical Support Requisition or the Supplementary Agreement.

16      Party B has the right to supervise the purpose of the cloud server of the Cloud Service Computing used by Party A. In the case that Party B notices that Party A has breached the prohibitive provisions stipulated in this Contract, Party B has the right to propose suggestions for rectification, or terminate this Contract. Where Party A’s aforementioned activities caused damages to Party B, Party A shall assume all the compensation liabilities.

17     Party B has the right to take traffic controlling measures to the customers who purchased the shared bandwidth service in order to guarantee the interests of other share customers.

18    Party B has the right to charge the relevant service fees from Party A in accordance with the provisions stipulated in this Contract.

 

6. Dissolution, Termination, and Liability for Breach of Contract

1.       Unless otherwise stipulated in this Contract, where Party A fails to perform its obligations under this Contract, and has not made any effective amendment or remediation after the Letter of Exhortation is sent from Party B for fifteen (15) days, Party B has the right to terminate this Contract unilaterally. The termination of this Contract shall take effect when the notice reaches Party A’s place. Party A shall pay Party B the penalty for breach of contract with the amount equivalent to ten percent (10%) of the total service fees under this Contract, or two months’ service fees (whichever is higher). The penalty can be offset by the prepaid payment or the deposit, and the insufficient amount shall be further complemented by Party A.

2.      Party A full understands and acknowledges that, although the necessary technical measures have been developed on the EdgeRay Technologies Cloud Computing Service (and will be improved with the development of technology) to prevent the events or actions (collectively, actions) that damage the security of Internet, for instance, computer virtues, network intrusion, and destructive attacks (including but not limited to DDoS). However, concerning the limitation and relativity of the network security technology and the un-foreseeability of such actions, where Party A’s website encountered such action, and brought damages to EdgeRay Technologies Cloud Computing Service Cloud, or other websites and servers stored on EdgeRay Technologies Cloud Computing Service Cloud (including but not limited to local, foreign, and international networks, servers); or affects the connectivity between EdgeRay Technologies Cloud Computing Service Cloud and Internet, or between EdgeRay Technologies Cloud Computing Service Cloud and certain network and server, or within the scope of EdgeRay Technologies Cloud Computing Service Cloud, Party B has the right to suspend, or terminate to provide EdgeRay Technologies Cloud Computing Service. Where the service is terminated, the corresponding service fees shall be calculated based on the actual provision of the Service (service fees are calculated in complete months and any part of a month is counted as a full month), and the residual payments (if any) will be refunded back to Party A.

3.     While using the service provided by Party B, where Party A violates the prohibitive provisions stipulated in Clause 5 of this Contract, with the notice for correction sent to Party A, Party B has the right to temporarily suspend the Service as required by the competent authority, or the right holder who holds the relevant certificates. The Service shall only be restored after the rectification has been accepted by the competent authority, or Party A provides sufficient proof of non-infringement or non-violation. Where the circumstance is serious, or the violations happened for more than three (3) times, Party B has the right to dissolve this Contract immediately, the deposit (if any) or the service fees shall be used as the penalty (which is equivalent to ten percent of the total service fees under this Contract) for breach of contract and cannot be refunded back to Party A. Party A shall assume the liabilities, losses and adverse consequences caused therefrom, and Party B shall assume no liability for the suspension or termination of the Service(s). Where Party B’s reputation is damaged, or its qualification for business is limited because of the reason of Party A, Party B has the right to require compensation from Party A.

4.      Both Parties shall perform this Contract adhering to the principle of good faith. Where either party performs this Contract by means of fraud, coercion, or violence, the other party could terminate this Contract immediately and ask for compensation from such party.

5.       Where Party A pays the service fees under the Contract in delay, from the following day of the due date, Party B has right to charge the overdue fine with the amount equivalent to five thousandths (5‰) of the current due payment per day, and Party B has the right to terminate this Contract.

If the Contract is terminated due to the aforesaid reason, besides the service fees and the overdue fine payable, Party A shall also pay an amount equivalent to ten percent (10%) of the Service fees of the contract to Party B.

6.      Except the right to unilaterally terminate this Contract as otherwise stipulated, where either party requests the early termination of this Contract, it shall notify the other party thirty (30) days in advance in a written form. Such termination shall only take effect with the written consent of the other party. Meanwhile, the party who request the termination shall pay the other party compensation with the amount equivalent to ten percent (10%) of the total service fees under this Contract, or two months’ service fees (whichever is higher). Where Party A terminates this Contract in advance, the compensation can be offset by the prepaid payment or the deposit, and the insufficient amount shall be further complemented by Party A.

7.       In the case that the cloud server of Cloud Computing Service interrupted due to the reason of Party B, Party B shall provide compensation to Party A. The compensation is based on the monthly or annual service fees, and is twice over the service fees under the service interruption time (which is calculated by hour). The maximum compensation shall not exceed the aggregate amount of service fee of the failed server over the service interruption time, and shall not be accumulated to the next month in any way. Party A agrees that, except as stipulated in this sub-Clause, Party B shall not be liable for Party A’s any further loss caused by the interruption of the Cloud Computing Service.

8.      Where Party A has not accomplish the website recording or other approving work as required by the governmental departments, and Party A or Party B is subject to any administrative punishment therefrom, Party A shall undertake all the responsibilities. The losses caused to Party A shall be taken solely by Party A; for the punishment or other economic losses caused to Party B, Party A shall compensate Party B. Party B has the right to deduct the compensation from Party A’s paid service fees, meanwhile, Party B reserves the rights of further claim to Party A for the insufficient part(s).

9.       Where Party A rents Party B’s services for instance the cloud server of the Cloud Computing Service, after the termination of this Contract, Party A shall backup and transfer all the data stored in the server within forty eight (48) hours. Party B shall not be responsible for keeping these data. In the case of any breach of this sub-Clause, and the data is lost or damaged thereby, the corresponding liabilities and damages shall be solely borne by Party A.

 

7. Exemptions

1.      Party A acknowledges that, the following situations are normal, and should not be regarded as a breach of contract of Party B:

(i) the Service may be interrupted for a short time when Party B conducts network tuning and maintenance work;

(ii) the access speed to the cloud server may drop because of Internet traffic congestion.

Meanwhile, concerning the particularity of computer and Internet, for the event of hacking, virus attacks, telecommunications administration’s technical adjustment, and interruption of the backbone, Party A also acknowledges that these events should not be regarded as a breach of contract of Party B.

2.       Party A shall be responsible for the normal operation of the rented cloud server’s software, where the cloud server Party A rented encounters any event that may affect the stability of network, including but not limited to hacking, virus attacks, sending spams in bulk, or becoming a virus taker, and causes serious network security problem and affects other users thereby, Party B will notify Party A to correct by telephone or email (which written notice being sent later on), and reserves the right to suspend Party A’s network connection until the problem has been solved. Such event should not be regarded as Party B’s breach of contract. For any and all the losses caused to Party B and/or Party B’s other customers, Party A shall compensate such losses.

3.       Both Parties hereby confirm that, during the performance of this Contract, both Parties to this Contract shall be responsible to the other party only, and shall not bear any responsibilities for or perform any obligations towards any third party. Party B shall not be liable for the losses to Party A or to any third party due to the acts or omissions of other third parties, nor be responsible for the losses of the third party who indirectly receives Party B’s service through Party A.

4.       Party B shall not be liable for the service interruption due to the event of force majeure.

5.       The Exemptions herein shall remain in effectiveness after the termination of this Contract.

 

8. Governing Laws and Settlement of Disputes

1.       The formation, validity, construction, performance and settlement of dispute under this Contract shall be governed and construed in accordance with the laws and regulations of the People’s Republic of China, regulations issued by telecom administrations, as well as the respective industry standards.

2.     Any dispute arising from the performance of, or in connection with this Contract shall be settled through friendly negotiation between both Parties hereto.

3.      In case no settlement to dispute can be reached through friendly negotiation, the dispute shall be submitted to __Beijing_ Arbitration Commission for arbitration and is to be conducted in accordance with BAC’s Rules in force at the date hereof.

The arbitration award is final and binding upon both Contracting Parties.

 

9. Force Majeure

1.       Either party being prevented from performing all or part of this Contract or performed in delay owing to the event of force majeure shall notify the other party by a written notice within five (5) days of the occurrence of the event, and shall also provide a certificate for evidence to explain the reason of the impossibility of performance or delay in performance within twenty (20) days thereafter.

Either party fails to notify the other party the extent of the force majeure event promptly, or fails to provide the respective certificate in a timely manner shall assume the liability for breach of contract as required herein.

2.       The affected party shall take all appropriate measures to minimize or remove the effects of the force majeure event, and resume the performance of this Contract after the elimination of the event immediately, unless such performance has become impossible or unnecessary.

3.       “FORCE MAJEURE” under this Clause means an objective event or circumstance which could not be foreseen and/or could not be avoided or overcome, including but not restricted to:

(i) natural catastrophes such as flood, fire, explosion, thunder, earthquake and storm;

(ii) social events such as basic telecom service provider’s power breakdown or network error, disruption of communication circuit caused by construction works, war, insurrections, riots or civil disorders, governmental act, sudden change to public policies, strikes, hacking, and/or virus attacks.

4.     If either party is prevented from performing any of its obligations under this Contract due to an event of force majeure, the other party shall be entitled to terminate this Contract wholly or partially.

 

 

10. Confidentiality

Except as otherwise provided by laws and regulations currently in force in China or with the other party’s written consent, each Party shall treat the information listed below as confidential, and shall not disclose such information to any third party or misuse:

(i)  the contents of this Contract,

(ii) the other party’s business secrets and other practical information of technology and operation learned during the performance of this Contract.

This Confidentiality Clause shall continue in force notwithstanding the completion or early termination of this Contract. 

 

11. Notification

1.       The contact information and other relevant information of both Parties are provided as below:

Party A:

(i) Personal Delivery (Contract Principal):

(ii) Telephone No.

(iii) E-mail

(iv) Mailing Address

Party B:

(i) Personal Delivery (Contract Principal):

(ii)  Telephone No.

(iii) E-mail

(iv) Mailing Address

 

2.       Party A shall submit to Party B the name list and contact information of the authorized representatives who performs this Contract, and notify Party B of any changes to such information by a written notice within three (3) days. The act or omission of Party A’s such personnel shall be borne by Party A

3.       All notices delivered for the performance of this Contract are effective when: the notices are delivered to the confirmed mailing address and actually received by the recipient, irrespective of the transfer mode it actually used.

4.       The “actual receipt” in this Clause means the Notice (or Information) reaches the recipient’s afore-confirmed address.

Notices shall be deemed to have been received as follows:

(i)  upon delivery at the specified address if delivered by hand;

(ii)  on the third business day after deposit if sent by pre-paid post or express mail;

(iii) when delivered into the receiver’s email system if sent by email.

5.      Both Parties confirm specially that, the contract principals appointed by each Party are entitled to represent each party to execute agreements, propose requirements, provide materials, sign-off, and clear out payments. Except as otherwise agreed, signature of the contract principal could be regarded as the acknowledgement of the party it represents.

During the performance of this Contract, where the Parties cannot send written notice or confirm in writing in the case of emergency, the Parties shall act according to the contents as confirmed by both Parties’ contract principals via telephone; however a written notice or confirmation letter shall be signed within three (3) working days later on.

6.       In the case of any changes to the contact information or the contract principal, the other party should be informed promptly, and such changes shall only take effect when they are actually received by the other party. Where one party fails to inform the other party effectively, notices or communications sent to the previous confirmed address (or sent by the contract principal) in accordance with the provisions set forth in Clause 11.4 can also be regarded as EFFECTIVE DELIVERY.

7.       In the event of the occurrence of merger or division of one party, or any transference of rights, obligations or subjects in connection with this Contract, the Party shall notify such changes to the other Party promptly in accordance with the provisions set forth in Clause 11.6 above. Unless otherwise agreed by both Parties, the Party fails to address such notice effectively shall assume joint liability together with the transferee.

12. Appendices

The appendices under this Contract include:

(i) EdgeRay Technologies Cloud Computing Service Order;

(ii) Description of other value-added services as separately agreed by both Parties, Letter of Responsibility on the Access to Internet, Letter of Confirmation on the Commencement of Service, and other documents for instance the supplementary agreement(s) and the supplementary order(s);

(iii) If the Parties cooperate for the first time, Party A shall provide the photocopies of its qualification documents, for instance, the Business License, and the Certificate of Tax Registration.

All appendices listed above are integral parts of this Contract, the appendices and this Contract shall be equally valid.

 

 

13. Miscellaneous

1.  The representations, warranties and commitments under this Contract made by one Party to the other are true and complete as of the date of the execution of this Contract. It is hereby confirmed that the execution of this Contract is based on such representations and warranties, and these representations and warranties constitute the precondition of the signature of this Contract.

After the coming into force of the Contract, where one Party finds out that any situation is inconsistent with the representations and warranties made by that party to the other, the Party shall disclose such inconsistency to the other party immediately. The Contracting Parties warrant to each other that, it shall compensate all the losses, expenses, costs, or other damages the other party suffered as a result of its violation of the statements and/or warranties under this Contract.

2.  Each representation, warranty and comment provided under this Contract is separate and independent. Unless otherwise expressly stipulated, the representations, warranties and commitments shall not be limited by any terms and conditions of this Contract.

3. If any provision or portion of this Contract is determined to be invalid, illegal or unenforceable in any respect under the laws of the P.R.C., the remainder of this Contract shall continue in full force and effect. 

Where any provision or portion of this Contract is determined to be invalid, illegal or unenforceable, the Contracting Parties shall negotiate in good faith and amend this Contract in a manner acceptable to both Parties so as to implement their original intensions.

4.  This Contract constitutes the entire agreement between the Parties hereto. This Contract, together with its appendices, are the complete and exclusive expression of the Parties’ consensus on the matters contained herein and supersedes all prior intensions, expressions or understandings, whether oral or in writing.

5.  Unless otherwise provided in law, either party fails to or delays in exercising any right shall not be constituted as the waiver of such right. The single or partial exercise of any rights under this Contract shall not preclude any further exercise of it or the exercise of any other rights or powers.

6.  The terms and conditions of this Contract shall bind and benefit any successor or transferee of each Party. However, without the prior written consent of the other party, neither party shall assign (or transfer through other manners) its rights or obligations under this Contract to any third party directly or indirectly.

7.  While performing the obligations prescribed by this Contract, each Party shall comply with all laws and regulations. Each Party guarantees that, unless expressly disclosed to the other Party, it (or its authorized representative) has no relation with any entities that currently has business connections, or will have business connections in future; nor has any relation with any governmental officials, staffs, representatives or parties. Each Party promises not to pay, bound to pay, or authorize others to pay any money or any valuable articles, to any person (no matter governmental official or person) directly or indirectly, to have any governmental official or party make any decision, or use their influence to acquire or maintain business or get any illegal profits. Each Party promises to the other to duly keep its account books and records, and provide them to the other party upon reasonable request. Either party fails to comply with this sub-Clause shall compensate the other party, defend for that party, and hold that party harmless from any claims, losses, compensations, liabilities, expenses or costs arising from the defaulting party’s breach of contract.

8.  Nothing in this Contract shall constitute a solicitation for employment to the other party’s personnel, or constitutes one party an agent or representative for the other party. Unless otherwise expressly provided in this Contract, neither party has been granted any right by the other, or has any authority or power to represent the other, or has been appointed to assume any liabilities in the name of the other, whether express or implied. During the performance of this Contract, each Party shall act as an independent contractor.

9.  All the headings hereunder are for convenience of reference only, and shall not affect the meaning or interpretation of this Contract.

10.  Unless otherwise referred to in the Contract, the terms, conditions and appendices mentioned above refer to the terms, conditions and appendices of this Contract.

11.  Both Parties may execute supplementary agreement(s) for the purpose of this Contract and related matters. The supplementary agreement(s) and this Contract shall be equally authentic.

 

14. Effectiveness and Counterparts

1.  This Contract shall be made in four originals, and each Party shall hold two each with the equal legal effect.

2. This Contract shall become effective when being signed and sealed by both Parties.

 

 

 

 

 

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IN WITNESS WHEREOF, this EdgeRay Technologies Cloud Computing Service CONTRACT (Contract No.          ) has been signed and delivered as of the day and year first above written by the contract principals of Party A and Party B:

Party A:                                           

                                                     

            Seal             

Signature of Authorized Person:

 

Date

Party B: EdgeRay Technologies Co., Ltd

 

          Seal

Signature of Authorized Person:

 

Date

 

 

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