This eSurfing Cloud Elastic Cloud Server Service Agreement is entered into between the user ("Party A" or the "Customer") and China Telecom ("Party B"). Party B shall provide the eSurfing Cloud Elastic Cloud Server Services to Party A through the eSurfing Cloud Website (www.esurfingcloud.com, the "Site" or "eSurfing Cloud") in accordance with this Agreement. Party A shall use the eSurfing Cloud Elastic Cloud Server Services in accordance with this Agreement.

Before using the eSurfing Cloud Elastic Cloud Server Services, Party A should read this Agreement carefully. By clicking the 'agree' button Party A agrees to and accepts this Agreement in whole, and this Agreement shall become a legally binding document between Party A and Party B. If Party A does not agree with this Agreement, it shall not use the eSurfing Cloud Elastic Cloud Server Services.

If Party A has any questions about this Agreement, it shall make queries via the means set out in this Agreement or on the Site and Party B will explain to and clarify with Party A. If Party A does not agree with any of the contents of this Agreement or is unable to accurately understand Party B's explanations, it shall not subscribe to or use the eSurfing Cloud Services.

Article 1   Product and Service Description

Party B will provide the eSurfing Cloud Elastic Cloud Server Services (the "Services" or the "ECS Services") to the Customer on the terms and conditions of this Agreement. The ECS Services are a type of cloud computing services, where the elastic cloud server is a readily accessible, elastic, and scalable virtual computing server consisting of a CPU, memory, mirrors, and cloud drives.

Article 2   Service Content

2.1 Party B shall provide Party A with the ECS services in accordance with this Agreement. The specific content of the Services is subject to the service displayed on the Site , applied by Party A and actually provided by Party B. Party B has the right to continuously update the service content.

2.2 Pre-conditions for provision of the Services: In order to use the Services, Party A shall first meet all the following conditions:

(1)   Agree to and accept the eSurfing Cloud Website User Agreement, successfully register as a user of the Site, and continue to have a legal and valid user account of the Site as at the time of signing this Agreement and throughout the performance of this Agreement;

(2)   Agree to and accept the terms of this Agreement;

(3)   Agree to and accept the eSurfing Cloud Service Agreement;

(4)   Subscribe to and use the Services in accordance with the Service Rules of the Site;

(5)   At the time of signing and during the performance of this Agreement, all the qualifications or government approval procedures required for legal operations have been obtained and maintained in accordance with the relevant national regulations, and the relevant qualification documents have been submitted in accordance with this Agreement to Party B and approved by Party B. The relevant licenses or approvals that Party A shall obtain and maintain include but are not limited to the following: 

1)     If Party A operates a website, it shall ensure that all the websites it operates have been licensed or approved by the relevant authorities of the relevant countries or regions;

2)     If Party A provides non-commercial Internet information services, it shall go through the filing procedures of non-commercial websites, and ensure that all the filing information submitted is true and valid, and submit the updated information in the filing system in a timely manner if there is any change in the filing information;

3)     If the website provides commercial Internet information services, Party A shall also obtain a commercial website license from the local communications administrative department;

4)     If Party A provides BBS and other electronic bulletin services, it shall conduct filing or obtain corresponding approval according to relevant laws and policies;

5)     If Party A operates an Internet game website, it shall obtain an Internet culture business permit in accordance with laws;

6)     If Party A operates an Internet video website, it shall obtain a license for publication of audio-visual programs through information network in accordance with laws;

7)     If Party A engages in Internet information services such as news, publishing, education, medical care, pharmaceuticals, and medical devices, it shall obtain the approval by relevant competent authorities in accordance with laws, administrative regulations, and relevant state regulations. Party A shall obtain the approval by relevant competent authorities in accordance with laws before applying for business licence or performing the filing procedures.

The above list does not exhaust all types of licenses or approvals required for commercial or non-commercial activities that Party A engages in. Party A shall obtain relevant licenses or approvals and shall comply with relevant laws and regulations promulgated by relevant countries and regions from time to time.

2.3 Party B promises to provide the Services to the Customer in accordance with the requirements of Appendix 1, "the eSurfing Cloud Elastic Cloud Server Service Level Agreement".

Article 3   Service Activation

3.1 After carefully reading the Service Rules corresponding to the purchased service, Party A can purchase the required service online through the Site according to its own needs, or have the account manager assist in activating it at the service console. After the service is activated, Party A can log in to the Site and complete the configuration and operation of the ECS services in the management console.

3.2 If there is any inconsistency in the text of this Agreement, attachments, Service Rules, service descriptions, price descriptions, confirmation terms on the order page, they shall be appliable on the following order of precedence: (1) service descriptions and price descriptions on the relevant webpages on the Site, and confirmation terms on the order page, (2) Service Rules, (3) the text of this Agreement, and (4) the attachments to this Agreement.

Article 4 Service Fees

4.1 Both monthly/yearly billing and on-demand billing are available for the ECS Services. The Customer shall pay Party B the service fee as instructed on the subscription page and as agreed herein.

4.2 Resources Expiration / Data Deletion and Consequences of Payment Default

4.2.1    For monthly/yearly subscriptions, if the Customer intends to continue its use of the ECS Services upon the expiration of the current service period, it shall renew and pay for the subscription in a timely manner. Otherwise, Party B will suspend the Customer's permissions to perform operation and freeze the resources on the ECS instance upon the expiration of the service period. Party B will, following the expiration of the service period, reserve the resources of the ECS instance and retain the Customer's data for another fifteen (15) days (i.e., starting from the moment the Customer's permissions to perform operations are suspended on the day of such suspension and ending on the same moment on the fifteenth day thereafter); if the Customer fails to renew and pay for the subscription within the said period of fifteen (15) days, Party B has the right to release the resources of the ECS instance occupied by the Customer and delete the data thereon upon the expiration of such period.    

4.2.2    If the Customer opts for services of the on-demand billing mode, the Customer shall deposit funds into its account and pay the service fee so as to ensure its continuous use of the Services. In case of a default on the service fee, Party B will suspend the Customer's permissions to perform operation on and freeze the resources of the ECS instance. Party B will then reserve the resources of the ECS instance and retain the Customer's data for another fifteen (15) days (i.e., starting from the moment the Customer's permissions to perform operation are suspended on the day of such suspension and ending on the same moment on the fifteenth day thereafter); if the Customer fails to deposit funds into its account and pay the service fee in full within the said period of fifteen (15) days, Party B has the right to release the resources of the ECS instance occupied by the Customer and delete the data thereon upon the expiration of such period.

Article 5 Service Specifications

5.1 The Customer understands and agrees that the use of the Services is its sole decision made after it has exercised independent and careful judgement, and that the Customer shall be responsible for its own judgement and operations, including but not limited to:

5.1.1   The Customer shall exercise its own judgment on the adaptability of the ECS Services to the operating system, mirror, elastic IP and other software and hardware it selects;

5.1.2   If the Customer performs operations through the ECS Services with respect to specified services/products, such as installation and deployment, the Customer shall ensure that it has the permissions to perform operation on such services/products. The performance of the said operations by the ECS Services as instructed by the Customer shall be deemed to have been authorized by the Customer, and the Customer shall be solely responsible for all such operations and the consequences thereof;

5.1.3   The Customer shall be responsible for its own operations (such as application programming and business logic setting in the mirror)；

5.1.4   Unless otherwise agreed by the Parties, if the Customer uses other eSurfing Cloud services along with the ECS Services, the Customer shall pay the service fee to Party B as set forth in the fee schedule for such other services and comply with the service terms thereof;

5.2 Party B will provide the ECS Services on the terms and conditions of this Agreement, which only cover the technical architecture and components for the ECS instance. The Customer shall be solely responsible for applications on the ECS Services. In addition, upgrading the operating system by the Customer itself may cause a breakdown or other adverse effects, and the Customer shall be aware of the risk and cautious about such operation.

5.3 Dependence and Impact of Product Effectiveness

5.3.1   In general, during its use of the ECS Services, if the Customer needs other eSurfing Cloud services (such as mirrors, cloud drives, elastic IPs, or shared bandwidth), it shall activate, subscribe to, and pay separately for such infrastructure products (such as mirrors, cloud drives, elastic IPs, or shared bandwidth), and Party B will provide services in accordance with the terms of service and service level agreements for such infrastructure products.

5.3.2   The Services function on the basis of infrastructure services such as mirrors, cloud drives, elastic IPs, and shared bandwidth. Therefore, the unavailability or termination of such services based on which the Customer activates the Services will lead to a malfunction of the Services.

5.4 Use of the Mirror

5.4.1   The mirror is owned by Party B or its mirror service provider.

5.4.2   Pursuant to this Agreement, the mirror provided by Party B shall only be used by the Customer for creating an eSurfing Cloud Server, and the Customer has no right to sublicense or relicense the mirror. The Customer shall not, in its use of the mirror, engage in any of the following acts:

(1)       to use the mirror for any purposes other than creating an eSurfing Cloud Server; 

(2)       to sell, resell, or duplicate the mirror without the permission of Party B; or

(3)       to alter the content or make derivatives of the mirror without the permission of Party B.

           5.4.3   The Customer understands and agrees that:

(1)       Due to the limitation of the existing technology, the mirror provided by Party B may have defects, and Party B cannot guarantee that it will function well or achieve the results expected by the Customer under all circumstances; Party B provides technical support only with respect to the mirror (the operating system and preinstalled software) on the eSurfing Cloud Server created by the Customer, and the Customer shall be responsible for the other parts (applications installed by the Customer on the system); and     

(2)       The Customer shall assess the risk carefully and back up and store its data before upgrading the mirror; the Customer shall be solely liable for any consequences resulting from such upgrading, such as a breakdown or data loss.

5.4.4   To the maximum extent permitted by the laws governing this Agreement, Party B will not be liable for any direct, indirect, incidental, special, punitive, or other damages of any kind arising out of or in connection with the use of or inability to use the mirror (including but not limited to damages for personal injury or property damage; damages for loss of profits, loss of data, business interruption, computer failure or malfunction, or loss of business information; damages for breach of privacy as a result of a failure to exercise good faith, due care, or any other duties; damages incurred due to negligence; or damages for any pecuniary or other loss), even if Party B has been informed of the possibility of such damages.

Article 6   Customer Service Warranty

6.1 Party B provides Party A with customer service via the service hotline +852 3100 0000. 

6.2 Party B shall provide 24/7 after-sales service to Party A.

6.3 Party B provides Party A with customer services within a response time of no more than 30 minutes after acceptance of a fault; and of no more than 12 hours after acceptance of a non-fault case.

Article 7   Technical Support Warranty

7.1 After Party B accepts Party A's fault or after Party B’s non-fault acceptance, Party B will provide Party A with technical support warranty according to the specific situation and Party A's needs. The service time of Party B's engineers is 7 days x 24 hours.

7.2 Party A understands and agrees that, out of concern about Party A’s data and system security, when Party A requires Party B’s engineers to directly operate its ECS Services, Party A should authorize it by email, ticket, telephone, and other means. Party A shall designate the only contact person as the authorizer (maintainer) who shall authorize Party B when necessary, which means that only the authorizer has the right to require Party B's engineers to operate its ECS Services. Party B is only responsible for the operation and maintenance of the underlying part below the operating system; the operating system and the above part (such as the application program installed by Party A on the system) are the responsibility of Party A. In addition, during the period of authorization, if Party A fails to communicate with Party B's engineers and conducts operations on its own, the business unavailability and other risks resulting from such failure shall be borne by Party A.

Article 8   Party A's Rights and Obligations

8.1 Party A has the right to use the ECS Services and obtain technical support and after-sales service from Party B in accordance with this Agreement.

8.2 Party A shall provide Party B with necessary technical parameters, including but not limited to IP address segments and corresponding application types, server-related parameters, network structure and network resources, actively cooperate with Party B to complete the implementation and commissioning of the ECS Services project to ensure the normal operation of the Services.

8.3 Party A understands and agrees that, out of concern about Party A’s data and system security, when Party A requires Party B’s engineers to directly operate its ECS Services, Party A should authorize it by email, ticket, telephone, and other means. Party A shall designate the only contact person as the authorizer (maintainer) who shall authorize Party B when necessary, which means that only the authorizer has the right to require Party B's engineers to operate its ECS Services. Party B is only responsible for the operation and maintenance of the underlying part below the operating system; the operating system and the above part (such as the application program installed by Party A on the system) are the responsibility of Party A. In addition, during the period of authorization, if Party A fails to communicate with Party B's engineers and conducts operations on its own, the business unavailability and other risks resulting from such failure shall be borne by Party A.

8.4 When Party A uses the Services, it shall back up data and bear the risk of data loss, omission, or damage caused by its own reasons, and Party B shall not be liable for this.

8.5 If Party A violates any of the warranties in this Agreement, the eSurfing Cloud Website User Agreement and the eSurfing Cloud Service Agreement, including but not limited to the following circumstances, Party A shall bear the corresponding liability for breach of contract:

8.5.1    Where Party A does not have all the qualifications and permits required to carry out business and perform relevant procedures when signing this Agreement, or loses all or part of its qualifications and permits during the validity period of this Agreement, Party B has the right to suspend the provision of cloud business services and require Party A to make corrections within the time limit. If Party A fails to make corrections within the time limit, Party B has the right to terminate this Agreement without assuming any responsibility. Party A shall bear the liability for breach of contract and compensate Party B for the corresponding losses;

8.5.2   Where Party A uses the eSurfing Cloud Serve to upload, download, store, and publish content that violates laws and regulations, departmental regulations, or national policies, and information that infringes on the legitimate rights and interests of others and/or other information or content that is detrimental to social order, public security, and public morals;

8.5.3    Where Party A carries out fraudulent and misleading behaviors such as gambling prizes and gambling games, or conducts Internet activities such as “private servers” and “plug-ins” that infringe on the intellectual property rights or other legitimate rights and interests of others;

8.5.4    Where Party A conducts malicious scanning, illegal intrusion into the system, illegal acquisition of data and other behaviors that damage or attempt to damage network security;

8.5.5   Where Party A runs irrelevant programs or intentionally writes malicious codes, resulting in a large amount of server memory, CPU or IP resources, and network bandwidth resources to be occupied;

8.5.6   Where Party A engages in any activities including but not limited to “DNS resolution”, “security services”, “domain name proxy”, “reverse proxy” that may cause users to be frequently attacked (including but not limited to DDoS attacks), thereby affecting the eSurfing Cloud service platform or others.

8.6 Party A understands and fully recognizes that although Party B has established (and will continue to improve according to technological development) necessary technical measures to defend against matters or behaviors that endanger network security including computer viruses, network intrusions and attack damage (including but not limited to DdoS) (hereinafter collectively referred to as such Behavior), but in view of the limitations and relativity of network security technology and the unpredictability of such Behaviour, if Party A’s account experiences such Behavior, which does harm to Party B or Party B’s network or server (including but not limited to local, foreign and international networks, servers), or affects the smooth communication between Party B and the Internet or between Party B and specific networks, servers, and Party B’s internal communications, Party B has the right to decide to suspend or terminate the Services. If a major network accident is caused to Party B for reasons attributable to Party A, Party B will reserve the right to claim compensation from Party A. If a crime is involved, Party A shall bear criminal responsibility according to the laws.

If Party B terminates the provision of the Services to Party A due to reasons set out in the above clauses (other than due to breach by Party A), Party B will calculate the service fee based on the actual number of days used by Party A, and return the remaining payment (if any) to Party A’s eSurfing Cloud account.

8.7 Party A shall be responsible for the integrity and confidentiality of the data stored on the eSurfing Cloud platform and the codes and passwords for entering and managing various products and services on the eSurfing Cloud platform, and shall take necessary and effective confidentiality and security protection measures, including but not limited to standardizing permission administration for data access and account use, setting strong passwords and changing them regularly. Party A shall bear the losses and consequences caused by the loss or leakage of the above-mentioned data, codes, passwords, and alike due to improper maintenance or confidentiality by Party A.

8.8 If services in Mainland China are involved, Party A must keep the access log records of its website in accordance with the provisions of the Network Security Law, the Administrative Measures on Internet Information Services and other laws and regulations, including the content of the published information, the time of publication, and the Internet Protocol address (IP), domain names, and alike, which shall be provided to the relevant state agency when it requires according to the law. Party A shall bear the corresponding legal liabilities arising from failure to keep relevant records as required.

Article 9   Term and Termination of the Agreement

9.1 This Agreement becomes effective from the date when Party A successfully purchases or applies for activation of the product, and terminates when the subscription service period of Party A expires, unless otherwise agreed by the Parties.

9.2 This Agreement may be terminated earlier if the Parties reach a consensus.

9.3 Party B has the right to terminate this Agreement under the following circumstances:

9.3.1    According to the requirements of laws and regulations or government agencies;

9.3.2    Where Party B believes that continuing to provide services to Party A will cause huge economic or technical burdens or major security risks to Party B;

9.3.3    Due to any legal or policy changes, it is not practical for Party B to continue to provide services to Party A;

9.3.4    Where Party A fails to pay relevant fees in full and on time;

9.3.5    Where Party A violates the eSurfing Cloud Website User Agreement, the eSurfing Cloud Service Agreement, the eSurfing Cloud Legal Statement or the eSurfing Cloud Privacy Policy;

9.3.6    Where Party A does not meet any of the pre-conditions for the Services set out in Article 2.2 herein;

9.3.7    Where Party A violates other terms of this Agreement.

9.4 Except as stipulated in Article 9.3, if Party B terminates this Agreement according to this Agreement, Party B will calculate the service fee based on the actual number of days used by Party A, return the remaining payment (if any) to Party A's eSurfing Cloud account, and reserve the right to pursue liabilities from Party A for its breach of contract.

9.5 Party B may terminate the Services by publishing an announcement on the Site, sending Party A an internal notice or a written notice 30 days in advance, at which time, Party B shall return the amount paid by Party A but not consumed (without interest) to Party A's eSurfing cloud account.

9.6 If any clause in this Agreement is completely or partially invalid or unenforceable for any reason, the rest of the clauses in this Agreement shall still be valid and binding.

Article 10   Others

10.1 The termination of this Agreement will not affect the effectiveness of the eSurfing Cloud Website User Agreement and the eSurfing Cloud Service Agreement between Party A and Party B. If the eSurfing Cloud Website User Agreement or the eSurfing Cloud Service Agreement between Party A and Party B is terminated, this Agreement will be automatically terminated.

10.2 For matters not stipulated in this Agreement, the Parties shall abide by the provisions set out in the eSurfing Cloud Website User Agreement and the eSurfing Cloud Service Agreement. If there is any conflict on the same matter in this Agreement, the eSurfing Cloud Website User Agreement and the eSurfing Cloud Service Agreement, this Agreement shall prevail.

10.3 Latest version of eSurfing Cloud Service Agreement can be found at: https://www.esurfingcloud.com/portal/protocol/20685742

Latest version of eSurfing Cloud Website User Agreement can be found at:

https://www.esurfingcloud.com/portal/protocol/10144340

10.4 In the event of any conflict or inconsistency between the English and the Chinese versions of this Agreement, the English version shall prevail. If there is any unclear part in the Chinese version, please refer to the English version. 

Appendix I

eSurfing Cloud Elastic Cloud Server Services Service Level Agreement

Article 1  General Provisions

China Telecom ("Party B", www.esurfingcloud.com) provides the eSurfing Cloud Elastic Cloud Server Services (hereinafter referred to as the "Services") to the Customers (also referred to as "Party A") in accordance with the provisions of this Agreement and operating rules issued by Party B from time to time. Party B reserves the right to amend the terms of this Service Level Agreement (hereinafter referred to as "SLA") at any time.

Article 2  Service Description and Commitment 

2.1 Definitions

A Service Cycle means one calendar month.

Aggregate Time of a Service Cycle means the aggregate time for each Service Cycle calculated by reference to the following formula: the total number of days in each Service Cycle x 24 (hours) x 60 (minutes).

Service Unavailability does not include circumstances where the Services become unavailable due to the exclusions specified below.

Service Unavailability Duration means the aggregate time within a Service Cycle during which the Services are unavailable. The Service Unavailability Duration shall not be counted more than once, i.e. the Service Unavailability Duration of a given Service Cycle shall not be counted for purpose of calculating the Service Unavailability Duration of the next Service Cycle.

Single-Instance Service Unavailability means that the logs in the ECS System indicate that the inaccessibility and unavailability of the ECS continuously persists for more than one minute due to any reason attributable to Party B, excluding any duration of service unavailability less than one minute.

When a Customer uses ECSs deployed in multiple availability zones in a given region, if none of the ECSs in a given availability zone in the region is available and other availability zones in the same region also experience service unavailability concurrently, the ECS instance is deemed to have experienced Multi-Availability Zone Service Unavailability in a Single Region in such region during such period of time.

2.2 Calculation of Service Availability Rates

Subject to its Service Cycle, the availability rate of each ECS instance is calculated separately in two dimensions as follows:

(1)   For a single ECS:

Service Availability Rate= (the Aggregate Time of a Service Cycle of an instance in minutes - the aggregate time of Single-Instance Service Unavailability in minutes) / the Aggregate Time of a Service Cycle of an instance in minutes x 100%

(2)   For ECSs deployed in multiple availability zones within the same region:

Service Availability Rate= (the Aggregate Time of a Service Cycle of an instance in minutes - Service Unavailability Duration of Multi-Availability Zone Service Unavailability of a single instance in a Single Region in minutes) / the Aggregate Time of Service Cycle of a single instance in minutes x 100%

2.3 Service Availability Rate Commitment

Party B guarantees a service availability rate not lower than 99.975% per Service Cycle for a single ECS, and a service availability rate not lower than 99.995% per Service Cycle for ECSs in multiple availability zones within the same region.

Article 3 Exclusions

The duration of unavailability of Party A’s ECSs will not be considered for the purpose of calculating the Service Unavailability Duration if such unavailability arises from:

(1)    system maintenance conducted by Party B with prior notice to Party A, including cutovers, repairs, upgrades and simulated failure drills;

(2)    any network or equipment failure of or configuration adjustment to the equipment other than those owned by Party B;

(3)    applications of or installation operations by Party A;

(4)    hacking attack against the applications or data information of Party A;

(5)    negligence on the part of Party A or any operation authorized by Party A;

(6)    loss or leakage of data, passwords, codes, and so forth caused by improper maintenance or inadequate confidentiality measures by Party A;

(7)    upgrade of the operating system by Party A itself;

(8)    operating system vulnerabilities;

(9)    suspension or termination of the services provided to Party A in accordance with laws and regulations, at the request of regulatory authorities or under this Agreement and the policies cited herein;

(10) reliance on data in local disk storage where such data accessed by a ultra-high I/O and GPU-accelerated ECS that uses a local disk for storage are at a risk of data loss (such as local disk corruption, and alike);

(11) Party A's failure to use the Services (for instance, to stop, restart or detach the Cloud Drive from an ECS instance by using the console, API, and other control methods) in accordance with the service documentation or operating instructions;

(12) other unavailability not attributable to Party B; 

(13) force majeure and unforeseen events. A force majeure or an unforeseen event refers to any objective event that is unforeseen, insurmountable and unavoidable and has a significant impact on one or both parties, including but not limited to natural disasters such as floods, earthquakes, epidemics, and social events such as wars, strikes, riots, acts of the government, disruption along telecommunications trunk lines, hacking, network congestion, technical adjustments in the telecommunications sector and governmental regulation.

Article 4  Service Credit as Compensation

Compensation mode: If Party B fails to fulfill its service availability rate commitment under this SLA, Party A will be entitled to request compensation therefor in accordance with this SLA. Such compensation provided in the form of service credit in service minutes will be the sole and exclusive remedy offered to Party A by Party B for its failure to fulfill its service availability rate commitment hereunder.

Time limit for request: For each Service Cycle, Party A may, upon the settlement of the invoices therefor, submit a request for compensation with respect to the cloud services that fail to meet the service availability rate commitment, provided that such request must be submitted within two (2) months from the end of the Service Cycle during which the failure that is the subject of Party A’s request occurs. Any late request beyond such time limit will not be accepted. Party B will, in accordance with this SLA, evaluate such request in a reasonable manner and decide whether Party A is eligible for such compensation in good faith.

How to request compensation: Party A may request compensation by submitting a ticket via the customer center of eSurfing Cloud.

Article 5  The Effectiveness of this Agreement and Miscellaneous

This Agreement shall be effective and binding as of the date of application for the eSurfing Cloud Elastic Cloud Server Services by the Customer. The termination date hereof is subject to the termination of the eSurfing Cloud Server Services Agreement.