Western Cloud Data Customer Agreement for Amazon Web Services (Ningxia Region)
Last Updated: January 20, 2024
This Western Cloud Data Customer Agreement for Amazon Web Services (Ningxia Region) (this “Agreement”) contains the terms and conditions that govern your access to and use of the Services (as defined below) and is an agreement between Ningxia Western Cloud Data Technology Co., Ltd. (“Western Cloud Data”, “we”, “us”, or “our”) and you or the entity you represent (“you” or “your”). This Agreement takes effect when you click an “I Accept” button or check box presented with these terms or, if earlier, when you use any of the Services (the “Effective Date”). You represent to us that you are lawfully able to enter into contracts (e.g., you are not a minor). If you are entering into this Agreement for an entity, such as the company you work for, you represent to us that you have legal authority to bind that entity. Please see Section 12 for definitions of certain capitalized terms used in this Agreement.
1. Our Responsibilities.
1.1 Generally. THE SERVICES WE PROVIDE TO YOU ARE BASED ON TECHNOLOGY OF THE TECHNICAL PROVIDERS. ALTHOUGH THE TECHNICAL PROVIDERS DEVELOP AND MAINTAIN THE UNDERLYING TECHNOLOGY, THE SERVICES ARE OPERATED AND PROVIDED TO YOU BY US, NOT BY THE TECHNICAL PROVIDERS. THE TECHNICAL PROVIDERS ARE NOT PARTIES TO THIS AGREEMENT, AND THIS AGREEMENT DOES NOT PROVIDE YOU WITH ANY CONTRACTUAL OR OTHER RIGHTS OR REMEDIES AGAINST THE TECHNICAL PROVIDERS. YOU MAY ACCESS AND USE THE SERVICES IN ACCORDANCE WITH THIS AGREEMENT. SERVICE LEVEL AGREEMENTS AND SERVICE TERMS APPLY TO CERTAIN SERVICES. THE SERVICES PROVIDED TO YOU UNDER THIS AGREEMENT WILL BE PROVIDED TO YOU BY WESTERN CLOUD DATA FROM THE AMAZON WEB SERVICES CHINA (NINGXIA) REGION LOCATED WITHIN CHINA. THIS AGREEMENT DOES NOT AUTHORIZE YOU TO RECEIVE OR USE ANY SERVICES FROM ANY OTHER AMAZON WEB SERVICES REGION IN CHINA OR AMAZON WEB SERVICES REGIONS OUTSIDE OF CHINA.
1.2 Third-Party Content. Third-Party Content may be used by you at your election. Third-Party Content is governed by this Agreement and, if applicable, separate terms and conditions accompanying such Third-Party Content, which terms and conditions may include separate fees and charges.
1.3 Security. Without limiting Section 8 or your obligations under Section 2.2, we will implement reasonable and appropriate measures designed to help you secure Your Content against accidental or unlawful loss, access or disclosure.
1.4 Data Privacy. Your Content will be stored only in the Amazon Web Services China Network. You consent to the storage of Your Content in, and transfer of Your Content into, the Amazon Web Services China Network. We will not access or use Your Content except as necessary to maintain or provide the Services, or as necessary to comply with the law, China Compliance Procedures, or requests of governmental or regulatory authorities. We will not (a) disclose Your Content to any government or third party or (b) move Your Content outside of the Amazon Web Services China Network; except in each case as necessary to comply with the law, China Compliance Procedures, or requests of governmental or regulatory authorities. Unless it would violate the law, China Compliance Procedures or requests of governmental or regulatory authorities, we will give you notice of any legal requirement or order referred to in this Section 1.4. We will only use your Account Information in accordance with the Privacy Policy, and you consent to such usage. The Privacy Policy does not apply to Your Content. The service provider(s) of services from Other Amazon Web Services China Regions will have access to your Account Information, and you consent to such access. Their use of your Account Information will be subject to the privacy policies applicable between you and them.
1.5 Notice of Changes to the Services. WE MAY CHANGE OR DISCONTINUE ANY OF THE SERVICES FROM TIME TO TIME. WE WILL PROVIDE YOU AT LEAST 12 MONTHS’ PRIOR NOTICE BEFORE DISCONTINUING A MATERIAL FUNCTIONALITY OF A SERVICE THAT WE MAKE GENERALLY AVAILABLE TO CUSTOMERS AND THAT YOU ARE USING. WE WILL NOT BE OBLIGATED TO PROVIDE SUCH NOTICE UNDER THIS SECTION 1.5 IF THE DISCONTINUATION IS NECESSARY TO (A) ADDRESS AN EMERGENCY, OR RISK OF HARM TO THE SERVICES OR US, (B) RESPOND TO CLAIMS, LITIGATION, OR LOSS OF LICENSE RIGHTS RELATED TO THIRD PARTY INTELLECTUAL PROPERTY RIGHTS, OR (C) COMPLY WITH LAW OR REQUESTS OF GOVERNMENTAL OR REGULATORY AUTHORITY, BUT SHOULD ANY OF THE PRECEDING OCCUR WE WILL PROVIDE YOU WITH AS MUCH PRIOR NOTICE AS IS REASONABLY PRACTICABLE UNDER THE CIRCUMSTANCES.
1.6 Notice of Changes to the Service Level Agreements. WE MAY CHANGE, DISCONTINUE OR ADD SERVICE LEVEL AGREEMENTS, PROVIDED, HOWEVER, THAT WE WILL PROVIDE AT LEAST 90 DAYS’ ADVANCE NOTICE FOR ADVERSE CHANGES TO ANY SERVICE LEVEL AGREEMENT.
2. Your Responsibilities.
2.1 Your Accounts and Governmental Approvals. You will comply with the terms of this Agreement and all laws, rules and regulations applicable to your use of the Services. To access the Services, you must have an account associated with a valid e-mail address and one or more valid forms of identification. You must provide sufficient supporting documents (e.g., business license for company or a government issued ID), as requested by us, to allow us to verify your identity. You must promptly inform us of any changes to your identity and provide supporting documents to update your identification information associated with your account. FAILURE TO SATISFY THESE IDENTITY VERIFICATION REQUIREMENTS MAY RESULT IN RESTRICTED ACCESS TO THE SERVICES, SUSPENSION AND/OR TERMINATION OF YOUR ACCOUNT, OR OTHER ACTIONS AND CONSEQUENCES TO YOUR ACCOUNT OR YOUR USE OF THE SERVICES AT OUR SOLE DISCRETION. UNLESS EXPLICITLY PERMITTED BY THE SERVICE TERMS, YOU WILL ONLY CREATE ONE ACCOUNT PER EMAIL ADDRESS. EXCEPT TO THE EXTENT CAUSED BY OUR BREACH OF THIS AGREEMENT, (A) YOU ARE RESPONSIBLE FOR ALL ACTIVITIES THAT OCCUR UNDER YOUR ACCOUNT, REGARDLESS OF WHETHER THE ACTIVITIES ARE AUTHORIZED BY YOU OR UNDERTAKEN BY YOU, YOUR EMPLOYEES OR A THIRD PARTY (INCLUDING YOUR CONTRACTORS, AGENTS OR END USERS), AND (B) WE AND OUR AFFILIATES ARE NOT RESPONSIBLE FOR UNAUTHORIZED ACCESS TO YOUR ACCOUNT.
Through your account, you may access and use certain services that are based on technology of the Technical Providers but operated and provided to you by other service provider(s), not by us, from other Amazon Web Services region(s) within China (“Other Amazon Web Services China Regions”, previously called “Other AWS China Regions”).
Your use of such services from Other Amazon Web Services China Regions will be subject to the agreement(s) between you and such other service provider(s), not by this Agreement. None of such other service provider(s) is a party to this Agreement, and this Agreement does not provide you with any contractual or other rights or remedies against such other service provider(s). If any of your accounts are used to conduct a business that is subject to any relevant license, permit or approval by a relevant governmental or regulatory authority (each such license, permit or approval, a “Governmental Approval”), you must obtain all such Governmental Approvals prior to using any Service to conduct such business under such account and maintain such Governmental Approvals during such use, including without limitation:
(b) If you use the Services to host a website providing commercial Internet information services, you must obtain a value-added telecommunications license for a commercial website (an “ICP License”) from the relevant governmental or regulatory authority.
Except as specifically requested by you and agreed by us in writing, we assume no obligation to assist you in procuring or maintaining an ICP Recordal, ICP License or any other Governmental Approval. We may require you to produce all of your Governmental Approvals before providing Services or at any time during the course of providing the Services to you. IF YOU ARE UNABLE TO PRODUCE ANY SUCH GOVERNMENTAL APPROVALS, WE WILL HAVE THE SOLE DISCRETION TO REFUSE TO CONTINUE PROVIDING THE SERVICES TO YOU (INCLUDING, WITHOUT LIMITATION, BY PREVENTING YOU FROM USING THE SERVICES TO POST ANY CONTENT ON THE INTERNET IF YOU DO NOT SUPPLY A VALID ICP RECORDAL OR ICP LICENSE), OR TO SUSPEND OR TERMINATE YOUR USE OF THE SERVICES IN ACCORDANCE WITH SECTION 4 OR SECTION 5.
2.2 Your Content. You are responsible for Your Content. You will ensure that Your Content and your and End Users’ use of Your Content or the Services will not violate any of the Policies or any applicable law.
2.3 Your Security and Backup. You are responsible for properly configuring and using the Services and otherwise taking appropriate action to secure, protect and backup your accounts and Your Content in a manner that will provide appropriate security and protection, which might include use of encryption to protect Your Content from unauthorized access and routinely archiving Your Content.
2.4 Log-In Credentials and Account Keys. LOG-IN CREDENTIALS AND PRIVATE KEYS GENERATED BY THE SERVICES ARE FOR YOUR INTERNAL USE ONLY AND YOU WILL NOT SELL, TRANSFER OR SUBLICENSE THEM TO ANY OTHER ENTITY OR PERSON, EXCEPT THAT YOU MAY DISCLOSE YOUR PRIVATE KEY TO YOUR AGENTS AND SUBCONTRACTORS PERFORMING WORK ON YOUR BEHALF.
2.5 End Users. You will be deemed to have taken any action that you permit, assist or facilitate any person or entity to take related to this Agreement, Your Content or use of the Services. You are responsible for End Users’ use of Your Content and the Services, and for their compliance with your obligations under this Agreement. If you become aware of any violation of your obligations under this Agreement caused by an End User, you will immediately suspend access to Your Content and the Services by such End User. We do not provide any support or services to End Users unless we have a separate agreement with you or an End User obligating us to provide such support or services.
2.6 Prohibited Content. If either you or we determine that any of Your Content contains any Prohibited Content, you agree that you will immediately terminate access to such content, keep relevant records and report the violation to the relevant governmental or regulatory authority. YOU ACKNOWLEDGE AND AGREE THAT IF WE DETERMINE THAT ANY OF YOUR CONTENT CONTAINS ANY PROHIBITED CONTENT, WE WILL HAVE THE RIGHT TO IMMEDIATELY REMOVE YOUR CONTENT AND SUSPEND YOUR OR ANY END USER’S RIGHT TO ACCESS OR USE ANY OR ALL OF YOUR CONTENT AND THE SERVICES.
2.7 Internet Information Service Providers. If you or an End User is using the Services to offer an Internet information service, you agree to record the content, time of release, Internet protocol address or domain name of any information provided by you or an End User and to provide the same during any inquiry made by a relevant governmental or regulatory authority according to the law.
3. Fees and Payment.
3.1 Service Fees. WE CALCULATE AND BILL FEES AND CHARGES MONTHLY. YOU WILL PAY US THE APPLICABLE FEES AND CHARGES FOR USE OF THE SERVICES AS DESCRIBED ON THE AMAZON WEB SERVICES CHINA SITE USING ONE OF THE PAYMENT METHODS WE SUPPORT WITHIN 30 DAYS OF THE DATE OF THE BILL. WE MAY BILL YOU MORE FREQUENTLY FOR FEES ACCRUED OR ACCELERATE YOUR PAYMENT DUE DATE UNDER ISSUED BILLS BY NOTIFYING YOU IF WE REASONABLY SUSPECT THAT YOUR ACCOUNT IS FRAUDULENT, ABNORMALLY USED OR AT RISK OF NON-PAYMENT. ALL AMOUNTS PAYABLE BY YOU UNDER THIS AGREEMENT WILL BE PAID TO US WITHOUT SETOFF OR COUNTERCLAIM, AND WITHOUT ANY DEDUCTION OR WITHHOLDING. FEES AND CHARGES FOR ANY NEW SERVICE OR NEW FEATURE OF A SERVICE WILL BE EFFECTIVE WHEN WE POST UPDATED FEES AND CHARGES ON THE AMAZON WEB SERVICES CHINA SITE, UNLESS WE EXPRESSLY STATE OTHERWISE IN A NOTICE. WE MAY INCREASE OR ADD NEW FEES AND CHARGES FOR ANY EXISTING SERVICES YOU ARE USING BY GIVING YOU AT LEAST 30 DAYS’ PRIOR NOTICE. WE MAY ELECT TO CHARGE YOU INTEREST AT THE RATE OF 1.5% PER MONTH (OR THE HIGHEST RATE PERMITTED BY LAW, IF LESS) ON ALL LATE PAYMENTS. IF WE SUSPEND YOUR ACCOUNT UNDER SECTION 4.1 OR TERMINATE YOUR USE OF THE SERVICES PURSUANT TO SECTION 5.2(B)(II), WE MAY ELECT NOT TO BILL YOU FOR FEES AND CHARGES AFTER SUSPENSION UNLESS YOUR ACCOUNT IS REINSTATED.
3.2 Taxes. Each party will be responsible, as required under applicable law, for identifying and paying all taxes and other governmental fees and charges (and any penalties, interest, and other additions thereto) that are imposed on that party upon or with respect to the transactions and payments under this Agreement. All fees payable by you are exclusive of Indirect Taxes, except where applicable law requires otherwise. We may charge and you will pay applicable Indirect Taxes that we are legally obligated or authorized to collect from you. You will provide such information to us as reasonably required to determine whether we are obligated to collect Indirect Taxes from you. We will not collect, and you will not pay, any Indirect Tax for which you furnish us a properly completed exemption certificate or a direct payment permit certificate for which we can claim an available exemption from such Indirect Tax. All payments made by you to us under this Agreement will be made free and clear of any deduction or withholding, as required by law. If any such deduction or withholding (including cross-border withholding taxes) is required on any payment, you will pay such additional amounts as are necessary so that the net amount received by us is equal to the amount then due and payable under this Agreement. We will provide you with such tax forms as are reasonably requested in order to reduce or eliminate the amount of any withholding or deduction for taxes in respect of payments made under this Agreement.
3.3 Tax Invoices. We will issue tax invoices (“Fapiao”) to you, at your request, based on the fees and charges we receive from you under this Agreement.
4. Temporary Suspension.
4.1 Generally. WE MAY SUSPEND YOUR OR ANY END USER’S RIGHT TO ACCESS OR USE ANY PORTION OR ALL OF THE SERVICES IMMEDIATELY UPON NOTICE TO YOU IF WE REASONABLY DETERMINE:
(a) YOUR OR AN END USER’S USE OF THE SERVICES (I) VIOLATES LAW OR DOES NOT COMPLY WITH CHINA COMPLIANCE PROCEDURES, INCLUDING WITHOUT LIMITATION, FAILURE TO OBTAIN OR MAINTAIN GOVERNMENTAL APPROVALS, (II) POSES A SECURITY RISK TO THE SERVICES OR ANY THIRD PARTY, (III) COULD ADVERSELY IMPACT OUR SYSTEMS, THE SERVICES OR THE SYSTEMS OR CONTENT OF ANY OTHER CUSTOMER, (IV) COULD SUBJECT US, OUR AFFILIATES, OR ANY THIRD PARTY TO LIABILITY, OR (V) IS ABNORMAL OR COULD BE FRAUDULENT;
(b) YOU ARE, OR ANY END USER IS, IN MATERIAL BREACH OF THIS AGREEMENT;
(c) YOU ARE IN BREACH OF YOUR PAYMENT OBLIGATIONS UNDER SECTION 3;
(d) YOUR USE OF SERVICES FROM OTHER AMAZON WEB SERVICES CHINA REGIONS THROUGH YOUR ACCOUNT IS SUSPENDED; OR
(e) YOU HAVE CEASED TO OPERATE IN THE ORDINARY COURSE, MADE AN ASSIGNMENT FOR THE BENEFIT OF CREDITORS OR SIMILAR DISPOSITION OF YOUR ASSETS, OR BECOME THE SUBJECT OF ANY BANKRUPTCY, REORGANIZATION, LIQUIDATION, DISSOLUTION OR SIMILAR PROCEEDING.
4.2 Effect of Suspension. IF WE SUSPEND YOUR RIGHT TO ACCESS OR USE ANY PORTION OR ALL OF THE SERVICES:
(a) YOU WILL BE RESPONSIBLE FOR ALL FEES AND CHARGES YOU INCUR DURING THE PERIOD OF SUSPENSION THAT WE BILL TO YOU; AND
(b) YOU WILL NOT BE ENTITLED TO ANY SERVICE CREDITS UNDER THE SERVICE LEVEL AGREEMENTS FOR ANY PERIOD OF SUSPENSION.
YOU CONSENT TO OUR RIGHT TO INFORM EACH OTHER SERVICE PROVIDER RESPONSIBLE FOR OPERATING AND PROVIDING SERVICES FROM OTHER AMAZON WEB SERVICES CHINA REGIONS OF ANY SUSPENSION UNDER THIS AGREEMENT.
5. Term; Termination.
5.1 Term. THE TERM OF THIS AGREEMENT WILL COMMENCE ON THE EFFECTIVE DATE AND WILL REMAIN IN EFFECT UNTIL TERMINATED UNDER THIS SECTION 5. ANY NOTICE OF TERMINATION OF THIS AGREEMENT BY EITHER PARTY TO THE OTHER MUST INCLUDE A TERMINATION DATE THAT COMPLIES WITH THE NOTICE PERIODS IN SECTION 5.2.
5.2 Termination.
(b) Termination for Cause.
(i) By Either Party. EITHER PARTY MAY TERMINATE THIS AGREEMENT FOR CAUSE IF THE OTHER PARTY IS IN MATERIAL BREACH OF THIS AGREEMENT AND THE MATERIAL BREACH REMAINS UNCURED FOR A PERIOD OF 30 DAYS FROM RECEIPT OF NOTICE BY THE OTHER PARTY. NO LATER THAN THE TERMINATION DATE, YOU WILL CLOSE YOUR ACCOUNT.
(ii) By Us. WE MAY ALSO TERMINATE THIS AGREEMENT IMMEDIATELY UPON NOTICE TO YOU:
(A) FOR CAUSE IF WE HAVE THE RIGHT TO SUSPEND UNDER SECTION 4, AND THE ISSUE GIVING US THE RIGHT TO SUSPEND EITHER:
a. IS NOT CAPABLE OF BEING REMEDIED; OR
b. HAS NOT BEEN REMEDIED WITHIN 30 DAYS OF US SUSPENDING YOUR SERVICE UNDER SECTION 4.1;
(B) IF OUR RELATIONSHIP WITH A THIRD-PARTY PARTNER WHO PROVIDES SOFTWARE, HARDWARE, FACILITIES OR OTHER TECHNOLOGY WE USE TO PROVIDE THE SERVICES EXPIRES, TERMINATES OR REQUIRES US TO CHANGE THE WAY WE OPERATE OR PROVIDE THE SOFTWARE, HARDWARE, FACILITIES OR OTHER TECHNOLOGY AS PART OF THE SERVICES;
(C) IN ORDER TO COMPLY WITH THE LAW OR REQUESTS OF GOVERNMENTAL OR REGULATORY AUTHORITIES; OR
(D) IF ANY OTHER AGREEMENT GOVERNING YOUR USE SERVICES FROM OTHER AMAZON WEB SERVICES CHINA REGIONS THROUGH YOUR ACCOUNT IS TERMINATED.
5.3 Effect of Termination.
(a) Generally. UPON THE TERMINATION DATE:
(ii) YOU REMAIN RESPONSIBLE FOR ALL FEES AND CHARGES YOU HAVE INCURRED THROUGH THE TERMINATION DATE AND ARE RESPONSIBLE FOR ANY FEES AND CHARGES YOU INCUR DURING THE POST-TERMINATION PERIOD DESCRIBED IN SECTION 5.3(B) THAT WE BILL TO YOU;
(iii) YOU WILL IMMEDIATELY RETURN OR, IF INSTRUCTED BY US, DESTROY ALL SERVICE CONTENT IN YOUR POSSESSION; AND (iv) SECTIONS 2.1, 2.6, 2.7, 3, 5.3, 6 (EXCEPT THE AUTHORIZATION GRANTED TO YOU IN SECTION 6.3), 7, 8, 9, 11 AND 12 WILL CONTINUE TO APPLY IN ACCORDANCE WITH THEIR TERMS.
YOU CONSENT TO OUR RIGHT TO INFORM EACH OTHER SERVICE PROVIDER RESPONSIBLE FOR OPERATING AND PROVIDING SERVICES FROM OTHER AMAZON WEB SERVICES CHINA REGIONS OF THE TERMINATION OF THIS AGREEMENT.
(i) WE WILL NOT TAKE ACTION TO REMOVE FROM THE SYSTEMS ANY OF YOUR CONTENT AS A RESULT OF THE TERMINATION; AND
(ii) WE WILL ALLOW YOU TO RETRIEVE YOUR CONTENT FROM THE SERVICES ONLY IF YOU HAVE PAID ALL AMOUNTS DUE UNDER THIS AGREEMENT.
FOR ANY USE OF THE SERVICES AFTER THE TERMINATION DATE, THE TERMS OF THIS AGREEMENT WILL APPLY AND YOU WILL PAY THE APPLICABLE FEES AT THE RATES UNDER SECTION 3. WE WILL NOT BE OBLIGATED TO PROVIDE THE POST-TERMINATION ASSISTANCE DESCRIBED IN THIS SECTION WHERE: (A) IT IS PROHIBITED BY LAW OR THE REQUEST OF A GOVERNMENTAL OR REGULATORY AUTHORITY OR (B) IT MAY SUBJECT US TO LIABILITY.
6. Proprietary Rights.
6.1 Your Content. Except as provided in this Section 6, we obtain no rights under this Agreement from you (or your licensors) to Your Content. You consent to our use of Your Content to provide the Services to you and any End Users.
6.2 Adequate Rights. You represent and warrant to us that: (a) you or your licensors own all right, title, and interest in and to Your Content and Suggestions; (b) you have all rights in Your Content and Suggestions necessary to grant the rights contemplated by this Agreement; and (c) none of Your Content or End Users’ use of Your Content or the Services will violate the Acceptable Use Policy.
6.3 Authorization. We or the Technical Providers or our and their respective affiliates and licensors own all right, title, and interest in and to the Services, Service Content, and all related technology and intellectual property rights. Subject to the terms of this Agreement, you may, on a limited, revocable, non-exclusive, non-sublicensable, non-transferrable license do the following: (a) access and use the Services solely in accordance with this Agreement; and (b) copy and use the Service Content solely in connection with your permitted use of the Services. Except as provided in this Section 6.3, you obtain no rights under this Agreement from us or the Technical Providers or our and their respective affiliates or our licensors to the Services or Service Content, including any related intellectual property rights. Some Service Content and Third-Party Content may be provided to you under a separate license, such as the Apache License, Version 2.0, or other open source license. In the event of a conflict between this Agreement and any separate license, the separate license will prevail with respect to the Service Content or Third-Party Content that is the subject of such separate license.
6.4 Restrictions. Neither you nor any End User will use the Services or Service Content in any manner or for any purpose other than as expressly permitted by this Agreement. Neither you nor any End User will, or will attempt to (a) modify, distribute, alter, tamper with, repair, or otherwise create derivative works of any Content included in the Services or Service Content (except to the extent such Content is provided to you under a separate license that expressly permits the creation of derivative works), (b) reverse engineer, disassemble, or decompile the Services or Service Content or apply any other process or procedure to derive the source code of any software included in the Services or Service Content (except to the extent applicable law doesn’t allow this restriction), (c) access or use the Services or Service Content in a way intended to avoid incurring fees or exceeding usage limits or quotas, or (d) resell or sublicense the Services or Service Content. The Trademark Use Guidelines apply to your use of the Amazon Web Services Marks. You will not misrepresent or embellish the relationship between us and you (including by expressing or implying that we support, sponsor, endorse, or contribute to you or your business endeavors). You will not imply any relationship or affiliation between us and you except as expressly permitted by this Agreement.
6.5 Suggestions. If you provide any Suggestions to us or our affiliates, we and our affiliates will be entitled to use and authorize any third party to use the Suggestions without restriction. You hereby irrevocably assign to us all right, title, and interest in and to the Suggestions and agree to provide us any assistance we require to document, perfect, and maintain our rights in the Suggestions.
7. Indemnification.
7.1 General. YOU WILL DEFEND, INDEMNIFY, AND HOLD HARMLESS US AND THE TECHNICAL PROVIDERS AND EACH OF OUR AND THEIR RESPECTIVE AFFILIATES, LICENSORS, EMPLOYEES, OFFICERS, DIRECTORS, AND REPRESENTATIVES FROM AND AGAINST ANY LOSSES ARISING OUT OF OR RELATING TO ANY THIRD-PARTY CLAIM CONCERNING: (A) YOUR OR ANY END USERS’ USE OF THE SERVICES (INCLUDING ANY ACTIVITIES UNDER YOUR ACCOUNT AND USE BY YOUR EMPLOYEES AND PERSONNEL); (B) BREACH OF THIS AGREEMENT OR VIOLATION OF APPLICABLE LAW BY YOU, END USERS OR YOUR CONTENT; OR (C) A DISPUTE BETWEEN YOU AND ANY END USER. YOU WILL REIMBURSE US AND THE TECHNICAL PROVIDERS AND EACH OF OUR AND THEIR RESPECTIVE AFFILIATES FOR REASONABLE ATTORNEYS’ FEES, AS WELL AS OUR AND THE TECHNICAL PROVIDERS’ AND EACH OF OUR AND THEIR RESPECTIVE AFFILIATES’ EMPLOYEES’ AND CONTRACTORS’ TIME AND MATERIALS SPENT RESPONDING TO ANY THIRD PARTY SUBPOENA OR OTHER COMPULSORY LEGAL ORDER OR PROCESS ASSOCIATED WITH THIRD PARTY CLAIMS DESCRIBED IN (A) THROUGH (C) ABOVE AT OUR AND THE TECHNICAL PROVIDERS’ AND EACH OF OUR AND THEIR RESPECTIVE AFFILIATES’ THEN-CURRENT HOURLY RATES.
7.2 Intellectual Property.
(a) Subject to the limitations in this Section 7, we will defend you and your employees, officers, and directors against any third-party claim alleging that the Services infringe or misappropriate that third party’s intellectual property rights, and will pay the amount of any adverse final judgment or settlement.
(b) Subject to the limitations in this Section 7, you will defend us and the Technical Providers and each of our and their respective affiliates, employees, officers, and directors against any third-party claim alleging that any of Your Content infringes or misappropriates that third party’s intellectual property rights, and will pay the amount of any adverse final judgment or settlement.
(c) NEITHER PARTY WILL HAVE OBLIGATIONS OR LIABILITY UNDER THIS SECTION 7.2 ARISING FROM INFRINGEMENT BY COMBINATIONS OF THE SERVICES OR YOUR CONTENT, AS APPLICABLE, WITH ANY OTHER PRODUCT, SERVICE, SOFTWARE, DATA, CONTENT OR METHOD. IN ADDITION, WE WILL HAVE NO OBLIGATIONS OR LIABILITY ARISING FROM YOUR OR ANY END USER’S USE OF THE SERVICES AFTER WE HAVE NOTIFIED YOU TO DISCONTINUE SUCH USE. THE REMEDIES PROVIDED IN THIS SECTION 7.2 ARE THE SOLE AND EXCLUSIVE REMEDIES FOR ANY THIRD-PARTY CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE SERVICES OR BY YOUR CONTENT.
(d) For any claim covered by Section 7.2(a), we will, at our election, either: (i) procure the rights to use that portion of the Services alleged to be infringing; (ii) replace the alleged infringing portion of the Services with a non-infringing alternative; (iii) modify the alleged infringing portion of the Services to make it non-infringing; or (iv) terminate the allegedly infringing portion of the Services or this Agreement.
7.3 Process. The obligations under this Section 7 will apply only if the party seeking defense or indemnity: (a) gives the other party prompt written notice of the claim; (b) permits the other party to control the defense and settlement of the claim; and (c) reasonably cooperates with the other party (at the other party’s expense) in the defense and settlement of the claim. IN NO EVENT WILL A PARTY AGREE TO ANY SETTLEMENT OF ANY CLAIM THAT INVOLVES ANY COMMITMENT, OTHER THAN THE PAYMENT OF MONEY, WITHOUT THE WRITTEN CONSENT OF THE OTHER PARTY.
8. Disclaimers.
THE SERVICES AND SERVICE CONTENT ARE PROVIDED “AS IS.” EXCEPT TO THE EXTENT PROHIBITED BY LAW, OR TO THE EXTENT ANY STATUTORY RIGHTS APPLY THAT CANNOT BE EXCLUDED, LIMITED OR WAIVED, WE AND THE TECHNICAL PROVIDERS AND EACH OF OUR AND THEIR RESPECTIVE AFFILIATES AND LICENSORS (A) MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SERVICES OR SERVICE CONTENT OR THE THIRD-PARTY CONTENT, AND (B) DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES (I) OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, (II) ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE, (III) THAT THE SERVICES OR SERVICE CONTENT OR THIRD-PARTY CONTENT WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, AND (IV) THAT ANY CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR ALTERED.
9. Limitations of Liability.
9.1 Liability Disclaimers. EXCEPT FOR PAYMENT OBLIGATIONS UNDER SECTION 7, NEITHER WE NOR YOU, NOR THE TECHNICAL PROVIDERS, NOR ANY OF OUR OR THEIR RESPECTIVE AFFILIATES OR LICENSORS, WILL HAVE LIABILITY TO THE OTHER UNDER ANY CAUSE OF ACTION OR THEORY OF LIABILITY, EVEN IF ANY ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY AND EVEN IF THEY ARE OTHERWISE FORESEEABLE, FOR (A) INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, (B) THE VALUE OF YOUR CONTENT, (C) LOSS OF PROFITS, REVENUES, CUSTOMERS, OPPORTUNITIES, OR GOODWILL, OR (D) UNAVAILABILITY OF THE SERVICES OR SERVICE CONTENT (THIS DOES NOT LIMIT ANY SERVICE CREDITS UNDER SERVICE LEVEL AGREEMENTS).
9.2 Damages Cap. EXCEPT FOR PAYMENT OBLIGATIONS UNDER SECTION 7, THE AGGREGATE LIABILITY UNDER THIS AGREEMENT OF EITHER WE OR YOU, OR THE TECHNICAL PROVIDERS OR ANY OF OUR OR THEIR RESPECTIVE AFFILIATES OR LICENSORS, WILL NOT EXCEED THE AMOUNTS PAID BY YOU TO US UNDER THIS AGREEMENT FOR THE SERVICES THAT GAVE RISE TO THE LIABILITY DURING THE 12 MONTHS BEFORE THE LIABILITY AROSE; EXCEPT THAT NOTHING IN THIS SECTION 9 WILL LIMIT YOUR OBLIGATION TO PAY US FOR YOUR USE OF THE SERVICES PURSUANT TO SECTION 3, OR ANY OTHER PAYMENT OBLIGATIONS UNDER THIS AGREEMENT. YOU ACKNOWLEDGE AND AGREE THAT WE AND THE TECHNICAL PROVIDERS AND EACH OF OUR OR THEIR RESPECTIVE AFFILIATES AND LICENSORS HAVE LIMITED ABILITY TO FORESEE DAMAGES THAT MAY BE CAUSED BY US OR THE TECHNICAL PROVIDERS OR ANY OF OUR OR THEIR RESPECTIVE AFFILIATES OR LICENSORS DUE TO THE VARIETY OF MANNERS IN WHICH YOU OR YOUR END USERS MAY USE THE SERVICES, EVEN IF WE MAY HAVE HAD EXCHANGES WITH YOU ON THE POTENTIAL AND THEORETICAL CONSEQUENCES. THEREFORE, YOU AGREE THAT YOU BEAR THE BURDEN TO PROVE ALL ACTUAL, FORESEEABLE DAMAGES.
10. Modifications to the Agreement.
WE MAY MODIFY THIS AGREEMENT (INCLUDING ANY POLICIES) AT ANY TIME BY POSTING A REVISED VERSION ON THE AMAZON WEB SERVICES CHINA SITE OR BY OTHERWISE NOTIFYING YOU IN ACCORDANCE WITH SECTION 11.10. THE MODIFIED TERMS WILL BECOME EFFECTIVE UPON POSTING OR, IF WE NOTIFY YOU BY EMAIL, AS STATED IN THE EMAIL MESSAGE. BY CONTINUING TO USE THE SERVICES OR SERVICE CONTENT AFTER THE EFFECTIVE DATE OF ANY MODIFICATIONS TO THIS AGREEMENT, YOU AGREE TO BE BOUND BY THE MODIFIED TERMS. IT IS YOUR RESPONSIBILITY TO CHECK THE AMAZON WEB SERVICES CHINA SITE REGULARLY FOR MODIFICATIONS TO THIS AGREEMENT. We last modified this Agreement on the date listed at the beginning of this Agreement.
11. Miscellaneous.
11.1 Assignment. YOU WILL NOT ASSIGN OR OTHERWISE TRANSFER THIS AGREEMENT OR ANY OF YOUR RIGHTS AND OBLIGATIONS UNDER THIS AGREEMENT, WITHOUT OUR PRIOR WRITTEN CONSENT. ANY ASSIGNMENT OR TRANSFER IN VIOLATION OF THIS SECTION 11.1 WILL BE VOID. YOU CONSENT TO THE ASSIGNMENT OR TRANSFER OF THIS AGREEMENT OR ANY OF OUR RIGHTS OR OBLIGATIONS UNDER THIS AGREEMENT, TO ANY SUCCESSOR, ASSIGNEE OR TRANSFEREE BY US PROVIDING NOTICE TO YOU IN ACCORDANCE WITH SECTION 11.10. YOU ACKNOWLEDGE THIS ASSIGNMENT OR TRANSFER TAKES EFFECT UPON THE POSTING OR SENDING OF OUR NOTICE, OR AS OTHERWISE STATED IN THE NOTICE. SUBJECT TO THE FOREGOING, THIS AGREEMENT WILL BE BINDING UPON, AND INURE TO THE BENEFIT OF THE PARTIES AND THEIR RESPECTIVE PERMITTED SUCCESSORS AND ASSIGNS.
11.2 Entire Agreement. THIS AGREEMENT INCORPORATES THE POLICIES BY REFERENCE AND IS THE ENTIRE AGREEMENT BETWEEN YOU AND US REGARDING THE SUBJECT MATTER OF THIS AGREEMENT. THIS AGREEMENT SUPERSEDES ALL PRIOR OR CONTEMPORANEOUS REPRESENTATIONS, UNDERSTANDINGS, AGREEMENTS, OR COMMUNICATIONS BETWEEN YOU AND US, WHETHER WRITTEN OR VERBAL, REGARDING THE SUBJECT MATTER OF THIS AGREEMENT (BUT DOES NOT SUPERSEDE PRIOR COMMITMENTS TO PURCHASE SERVICES SUCH AS AMAZON EC2 RESERVED INSTANCES). NONE OF THE PARTIES WILL BE BOUND BY ANY TERM, CONDITION OR OTHER PROVISION THAT IS DIFFERENT FROM OR IN ADDITION TO THE PROVISIONS OF THIS AGREEMENT (WHETHER OR NOT IT WOULD MATERIALLY ALTER THIS AGREEMENT) INCLUDING FOR EXAMPLE, ANY TERM, CONDITION OR OTHER PROVISION (A) SUBMITTED BY YOU IN ANY ORDER, RECEIPT, ACCEPTANCE, CONFIRMATION, CORRESPONDENCE OR OTHER DOCUMENT, (B) RELATED TO ANY ONLINE REGISTRATION, RESPONSE TO ANY REQUEST FOR BID, REQUEST FOR PROPOSAL, REQUEST FOR INFORMATION, OR OTHER QUESTIONNAIRE, OR (C) RELATED TO ANY INVOICING PROCESS THAT YOU SUBMIT OR REQUIRE US TO COMPLETE. IF THE TERMS OF THIS DOCUMENT ARE INCONSISTENT WITH THE TERMS CONTAINED IN ANY POLICY, THE TERMS CONTAINED IN THIS DOCUMENT WILL CONTROL, EXCEPT THAT THE SERVICE TERMS WILL CONTROL OVER THIS DOCUMENT.
11.3 Force Majeure. Except for payment obligations, neither party nor any of their affiliates will be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond its reasonable control, including acts of God, labor disputes or other industrial disturbances, electrical or power outages, utilities or other telecommunications failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of governmental or regulatory authorities (including, without limitation, the passage of laws or regulations or other acts of regulatory or governmental authorities that impact the delivery of Services), acts of terrorism, or war.
11.4 Governing Law. THIS AGREEMENT IS GOVERNED BY THE LAWS OF THE PEOPLE’S REPUBLIC OF CHINA EXCLUDING ANY CONFLICTS OF LAWS RULES OR PRINCIPLES.
11.5 Disputes. ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THE SERVICES OR THIS AGREEMENT WILL BE SUBMITTED TO THE CHINA INTERNATIONAL ECONOMIC AND TRADE ARBITRATION COMMISSION FOR ARBITRATION IN BEIJING, WHICH SHALL BE CONDUCTED IN ACCORDANCE WITH THE COMMISSION’S ARBITRATION RULES IN EFFECT AT THE TIME OF APPLYING FOR ARBITRATION. THE ARBITRAL AWARD IS FINAL AND BINDING UPON BOTH PARTIES. THE NUMBER OF ARBITRATORS SHALL BE THREE.
11.6 Trade Compliance. In connection with this Agreement, each party will comply with all applicable import, re-import, sanctions, anti-boycott, export, and re-export control laws and regulations. For clarity, you are solely responsible for compliance related to the manner in which you choose to use the Services or Service Content, including your transfer and processing of Your Content and the provision of Your Content to End Users.
11.7 Independent Contractors; Non-Exclusive Rights. We and you are independent contractors, and this Agreement will not be construed to create a partnership, joint venture, agency, or employment relationship. Neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other. Both parties reserve the right (a) to develop or have developed for it products, services, concepts, systems, or techniques that are similar to or compete with the products, services, concepts, systems, or techniques developed or contemplated by the other party, and (b) to assist third party developers or systems integrators who may offer products or services which compete with the other party’s products or services.
11.8 Language. All communications and notices made or given pursuant to this Agreement must be in the Chinese language. If we provide a translation of the Chinese language version of this Agreement, the Chinese language version of the Agreement will control if there is any conflict.
11.9 Confidentiality and Publicity. You may use Confidential Information only in connection with your use of the Services or Service Content as permitted under this Agreement. You will not disclose Confidential Information during the Term or at any time during the 5-year period following the end of the Term. You will take all reasonable measures to avoid disclosure, dissemination or unauthorized use of Confidential Information, including, at a minimum, those measures you take to protect your own confidential information of a similar nature. You will not issue any press release or make any other public communication with respect to this Agreement or your use of the Services or Service Content.
11.10 Notice.
(a) To You. WE MAY PROVIDE ANY NOTICE TO YOU UNDER THIS AGREEMENT BY: (I) POSTING A NOTICE ON THE AMAZON WEB SERVICES CHINA SITE; OR (II) SENDING A MESSAGE TO THE EMAIL ADDRESS THEN ASSOCIATED WITH YOUR ACCOUNT. NOTICES WE PROVIDE BY POSTING ON THE AMAZON WEB SERVICES CHINA SITE WILL BE EFFECTIVE UPON POSTING AND NOTICES WE PROVIDE BY EMAIL WILL BE EFFECTIVE WHEN WE SEND THE EMAIL. IT IS YOUR RESPONSIBILITY TO KEEP YOUR EMAIL ADDRESS CURRENT. YOU WILL BE DEEMED TO HAVE RECEIVED ANY EMAIL SENT TO THE EMAIL ADDRESS THEN ASSOCIATED WITH YOUR ACCOUNT WHEN WE SEND THE EMAIL, WHETHER OR NOT YOU ACTUALLY RECEIVE THE EMAIL.
(b) To Us. TO GIVE US NOTICE UNDER THIS AGREEMENT, YOU MUST CONTACT US AS FOLLOWS: (I) BY FACSIMILE TRANSMISSION TO 86-10-8748-9005, OR (II) PERSONAL DELIVERY, OVERNIGHT COURIER OR REGISTERED OR CERTIFIED MAIL TO 201, BUILDING A, ZHONGGUANCUN PARK, NINGXIA UNIVERSITY ZHONGWEI CAMPUS, SHAPOTOU DISTRICT, ZHONGWEI, 755000, NINGXIA HUI AUTONOMOUS REGION, P.R. CHINA, NINGXIA WESTERN CLOUD DATA TECHNOLOGY CO., LTD. WE MAY UPDATE THE FACSIMILE NUMBER OR ADDRESS FOR NOTICES TO US BY POSTING A NOTICE ON THE AMAZON WEB SERVICES CHINA SITE. NOTICES PROVIDED BY PERSONAL DELIVERY WILL BE EFFECTIVE IMMEDIATELY. NOTICES PROVIDED BY FACSIMILE TRANSMISSION OR OVERNIGHT COURIER WILL BE EFFECTIVE ONE BUSINESS DAY AFTER THEY ARE SENT. NOTICES PROVIDED REGISTERED OR CERTIFIED MAIL WILL BE EFFECTIVE THREE BUSINESS DAYS AFTER THEY ARE SENT.
11.11 No Third-Party Beneficiaries. Except as set forth in Section 7 or as otherwise explicitly provided in this Agreement, this Agreement does not create any third-party beneficiary rights in any individual or entity that is not a party to this Agreement.
11.12 No Waivers. The failure by us to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit our right to enforce such provision at a later time. All waivers by us must be in writing to be effective.
11.13 Severability. If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to effect and intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement, but the rest of the Agreement will remain in full force and effect.
12. Definitions.
“Acceptable Use Policy” means the policy located at http://www.amazonaws.cn/en/aup/ningxia (and any successor or related locations designated by us), as may be updated by us from time to time.
“Account Information” means information about you that you provide to us in connection with the creation or administration of your account. For example, Account Information includes names, usernames, phone numbers, email addresses and billing information associated with your account.
“API” means an application program interface.
“Amazon Web Services China Network” (previously called “AWS China Network”) means the data center facilities, servers, networking equipment, and host software systems (e.g., virtual firewalls) that are physically located in China within our control and used to provide the Services.
“Amazon Web Services China Site” (previously called “AWS China Site”) means http://amazonaws.cn (and any successor or related locations designated by us), as may be updated by us from time to time.
“Amazon Web Services Marks” (previously called “AWS Marks”) means any trademarks, service marks, service or trade names, logos, and other designations that we or the Technical Providers may make available to you in connection with this Agreement.
“China” means the People’s Republic of China. For purposes of this Agreement, the Hong Kong Special Administrative Region, Macao Special Administrative Region and Taiwan are excluded.
“China Compliance Procedures” means any compliance procedures mandated under applicable law in China for the Services. Such procedures may be modified in our sole discretion in accordance with applicable law.
“Confidential Information” (previously called “AWS Confidential Information”) means all nonpublic information disclosed by us, or the Technical Providers, or our or their respective affiliates, business partners or our or their respective employees, contractors or agents that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Confidential Information includes: (a) nonpublic information relating to our or the Technical Providers’ or our or their respective affiliates or business partners’ technology, customers, business plans, promotional and marketing activities, finances and other business affairs; (b) third-party information that we are obligated to keep confidential; and (c) the nature, content and existence of any discussions or negotiations between you and us or our affiliates. Confidential Information does not include any information that: (i) is or becomes publicly available without breach of this Agreement; (ii) can be shown by documentation to have been known to you at the time of your receipt from us; (iii) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or (iv) can be shown by documentation to have been independently developed by you without reference to the Confidential Information.
“Content” means software (including machine images), data, text, audio, video or images.
“End User” means any individual or entity that directly or indirectly through another user: (a) accesses or uses Your Content; or (b) otherwise accesses or uses the Services under your account. The term “End User” does not include individuals or entities when they are accessing or using the Services or any Content under their own account, rather than under your account.
“Indirect Taxes” means applicable taxes and duties, including, without limitation, VAT.
“Losses” means any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees).
“Policies” means the Acceptable Use Policy, Privacy Policy, the Site Terms, the Service Terms, and the Trademark Use Guidelines.
“Privacy Policy” means the privacy policy located at http://www.amazonaws.cn/en/privacy/ningxia (and any successor or related locations designated by us), as may be updated by us from time to time.
“Prohibited Content” has the meaning given to such term in the Acceptable Use Policy, as it may be updated by us from time to time.
“Service” means each of the services made available by us or our affiliates, including those web services described in the Service Terms. Services do not include Third-Party Content.
“Service Content” (previously called “AWS Content”) means APIs, WSDLs, sample code, software libraries, command line tools, proofs of concept, templates, advice, information, programs (including credit programs) and any other Content made available related to use of the Services or on the Amazon Web Services China Site and other related technology (including any of the foregoing that are provided by our personnel). The Service Content does not include the Services or Third-Party Content.
“Service Level Agreement” means all service level agreements that we offer with respect to the Services and post on the Amazon Web Services China Site, as they may be updated by us from time to time. The service level agreements we offer with respect to the Services are located at http://www.amazonaws.cn/en/sla/ (and any successor or related locations designated by us), as may be updated by us from time to time.
“Service Terms” means the rights and restrictions for particular Services located at http://www.amazonaws.cn/en/serviceterms/ningxia (and any successor or related locations designated by us), as may be updated by us from time to time.
“Site Terms” means the terms of use of the Amazon Web Services China Site located at http://www.amazonaws.cn/en/terms/ (and any successor or related locations designated by us), as may be updated by us from time to time.
“Suggestions” means all suggested improvements to the Services or Service Content that you provide to us.
“Technical Providers” means Amazon Cloud Technology Services (Ningxia) Co., Ltd., and its affiliates.
“Term” means the term of this Agreement described in Section 5.1.
“Termination Date” means the effective date of termination provided in a notice from one party to the other in accordance with Section 5.
“Third-Party Content” means Content made available to you by any third party on the Amazon Web Services China Site or in conjunction with the Services.
“Trademark Use Guidelines” means the guidelines and trademark license located at http://www.amazonaws.cn/en/trademark-guidelines/ (and any successor or related locations designated by us), as they may be updated from time to time.
“Your Content” means Content that you or any End User transfers to us for processing, storage or hosting by the Services in connection with your account and any computational results that you or any End User derive from the foregoing through their use of the Services. For example, Your Content includes Content that you or any End User stores in Amazon Simple Storage Service. Your Content does not include Account Information.