Azure China Marketplace Service Provider Agreement
Thank you for your interest in publishing your products through the marketplace on Microsoft Azure operated by 21Vianet (hereinafter referred to as the “Azure China Marketplace”).The Azure China Marketplace Service Provider Agreement (hereinafter referred to as the “Agreement”) describes your relationship with 21Vianet (hereinafter referred to as “we” or “us”) and applies to any products (as defined below) that you publish on the Azure China Marketplace and the Azure portal (hereinafter collectively referred to as the “Azure Marketplace” or “Marketplace”).
By selecting Accept and/or submitting a product on Azure China Marketplace for publication on the Marketplace, you indicate that you give a declaration or guarantee to us that you have permission to accept the Agreement and you agree to be bound by the terms and conditions of the Agreement.
Article 1: Definitions.
a) “21Vianet” or “we” refers to Shanghai Blue Cloud Technology Co. Ltd., a wholly-owned subsidiary of Beijing 21Vianet Broadband Data Center Co. Ltd., licensed by Microsoft (China) Co., Ltd., and its affiliates (“Microsoft”) to use Azure technology to operate, sell, and provide “Microsoft Azure operated by 21Vianet” within China.
b) “Affiliates” refers to any legal entity that one party owns, that owns another party, or that is jointly controlled with one party.“Own” refers to holding 50 percent or more of the ownership rights or rights to determine the entity’s management.
c) A “Bring-your-own-license” (BYOL) product refers to a product that the customer has already obtained viewing rights or usage rights to outside the Marketplace.
d) “Customer” refers to any “Microsoft Azure operated by 21Vianet” customer or end user that has obtained, used, or otherwise viewed a particular product published via the Marketplace.
e) “Customer data” refers to all information that is provided to you by the customer or agents thereof in the course of using your product, including all text, audio, video and image files, and software.
f) “Customer information” refers to any information that you collect via the Marketplace or that we provide to you (to be confirmed by us) pertaining to a customer that has viewed your product, including contact details, information about your product, and usage information.
g) “Put-up information” refers to information and images that are specified by you when you publish a particular product or by other means, that is attached to the product, and which stipulates the properties, capacity, usage terms and conditions, and other characteristics of the product.
h) “Azure China Marketplace” refers to a limited link resource library for products published through Azure China Marketplace by third-party service providers in accordance with the Agreement.The customer can reach the Marketplace by means of the network management portal, Azure app interface, or other mechanism provided by 21Vianet.
i) “Marketplace Participation Policy” refers to the commercial policy and requirements for the release of products in the Marketplace. See the /articles/azure-marketplace/isvpolicy main menu or service provider webpage for further details.
j) “Marketplace Publication Technical Guidelines” refers to the documentation on technical guidance and basic requirements that we provide to service providers to help them create, test, and release products in the Marketplace. See the Azure Marketplace Registration Platform and Azure Marketplace Image Publishing Platform technical support sections for more details.
k) Within the context of this Agreement, “Microsoft Azure” and “Azure” refer to “Microsoft Azure operated by 21Vianet.
l) “Product” refers to any image, software, data, media, or service that is published or intended for publication on the Marketplace in accordance with the terms of the Agreement, including but not limited to the product categories stipulated in the Marketplace Participation Policy.See Appendix A for details of supplementary terms and conditions for specific product categories.
m) “Product content” refers to all data, software, and services that are included in a specific product, installed via a specific product, or otherwise associated with a specific product.Product content includes but is not limited to all operating system application software that is related to the specific app, but it does not include 21Vianet and/or Microsoft software products, regardless of whether you are the owner of such software.
n) “Privacy Statement” refers to the privacy protection statements that are recorded in the put-up information pertaining to your product and that are relevant to your collection and use of customer data and customer information.
o) "Publishing Portal" refers to the portal entered after clicking the Cloud Partner Portal service provider portals, or other websites designated by us, through which the service provider submits products for market approval and publication, views associated information, and receives market-related information published by 21Vianet.
p) “Azure Portal” refers to the portal that Azure customers sign into to provision and manage Azure resources, that is, https://portal.azure.cn.
q) “Terms of Use” refers to the legal terms and conditions that are the basis on which you authorize customers to use and view your products and all product content that is associated with them. For details, see the put-up information that pertains to your product.
All other terms that are not defined in Article 1 have the meaning assigned to them in the main text of this Agreement.
Article 2: Service provider account.
When you submit certain types of products to the Marketplace, we may require you to create a service provider account using the Publication portal.We may check the information that you submit when you create the service provider account.We may use the contact details that you provided for your service provider account to send you text messages and information about events, competitions, and offers.Your service provider account is provided solely for your use, and you are responsible for all activities that occur within your service provider account.If your service provider account does not maintain a good reputation (for example, it provides inaccurate or out-of-date information, engages in dishonest or fraudulent activities, repeatedly submits products that violate the terms of the Agreement, abuses Marketplace services, or interferes with other people’s use of the marketplace), we will cancel your service provider account, take down your products, delete product ratings and reviews, withhold the relevant account fees (if any), and pursue any remedies that are available to us.VM images and Azure Resource Manager templates published by the service provider account will be displayed on the Azure China Market website and the Azure portal, but customized services (solutions) will be displayed only on the Azure China Market website.
Article 3: Product submission, approval, and publication.
a) Submission process.You must submit an application for every product that you want to publish on the Marketplace.We will approve or decline any potential products based on the situation, and we may require you to modify the product or the put-up information as a condition of receiving our approval.It is your responsibility to ensure the accuracy of the put-up information for the product and ensure that it does not infringe the intellectual property rights of any third party, including third-party logos and trademark-associated rights.Before we approve and publish a particular product, we may require you to provide one or multiple prototypes of the product or submit the product for testing.After we have approved a particular product, you can publish the product on the Market in accordance with the terms and conditions of the Agreement and the put-up information that you submitted with the application, via a method that complies with the guidance in the Market Participation Principles and Market Publication Technical Guidelines.You cannot publish any products on the Marketplace without first obtaining our approval in accordance with these rules.
b) Publication process.The Marketplace Publication Technical Guidelines provide technical information on how to publish various categories of product on the Marketplace.In terms of the relationship between you and 21Vianet, you are fully responsible for your actions in providing your products to customers.
c) Providing products.We reserve the right to decide which methods are used to provide and promote to customers all products published on the Marketplace by you or others.We may display on-shelf information relevant to your product and include other information from the following content: information provided by you that allows the customer to understand the product, the content included in the product, the lifecycle of any software within the product, support options relevant to the product, and details of how the customer can obtain and use the product through Azure.
d) Service logo and trademark terms.You hereby grant us a free, non-exclusive license, permitting us to display the logos and trademarks that you provide via the Publication portal or other method (“the service provider trademarks”) in scenarios that are relevant to your product or the marketing and promotion of the Market for the duration of the Agreement.You are the owner and/or authorized licensor of the service trademarks.Between all the parties, all business reputations related to the service trademarks should be consistent with your interests.We may make necessary changes to the format and size of the service logos/trademarks without changing the overall appearance of the service logo/trademark.If you believe that our use of your service logo/trademark is inappropriate, you may notify us at any time and we will rectify our usage activity within a reasonable period of time.
Article 4: Product licensing and support.
a) Product licensing.You are responsible for licensing customers to use your products (including all associated product content), or for otherwise authorizing customer to use your products or product content.Such licensing or authorization is applicable only to your customers and shall not require 21Vianet to assume any obligations or liabilities.Customers can use your products only after they have selected “Agree” to accept your Terms of Use and Privacy Protection Statement in the Marketplace’s Network Management portal.21Vianet may also allow customers to view products through the Marketplace app interface.You acknowledge that 21Vianet does not grant any product authorization or licensing as a result of its operation of the Marketplace or by enabling you to provide your products via the Marketplace.
b) Support.You are responsible for providing support for your products.You must ensure that as long as the relevant product is still published on the Marketplace, or is being provided to customers as the end of the publication period approaches, you consistently provide customers with any support option services that are described in the put-up information.You must provide customers with support for every product that you publish on the Marketplace, regardless of whether the support service is free or can be purchased separately outside the Marketplace.For queries about products configured via the Marketplace, you must provide customers with commercially reasonable support.Your technical support contact must maintain contact with 21Vianet by email and phone, so that technical issues with any product can be reported as soon as they occur.If we contact you to request support from you for a particular issue, you must respond in a timely manner and provide a solution in a commercially reasonable time.You agree to cooperate with us to determine or isolate the root cause and identify the emergency measures to take if necessary.Our only customer service obligation for any product is to provide the customer with your customer service contact details in a reasonable manner.We reserve the right to require customers to purchase an Azure support plan before providing them with any support (including root cause analysis) for Azure Services.You must ensure that the contact details that you provide in the Publication portal and the put-up information for each product remain accurate and up to date.
Article 5: Privacy protection
a) Use of customer information and customer data.You may use customer data only to provide products.You may use customer information to provide products, contact customers within the scope permitted by Article 5 (c), prevent fraud, provide support, or perform statistical analysis.You may not use customer data or customer information for any other purposes unless you have obtained permission within your Privacy Protection Statement or by another method.
b) Privacy Protection Statement.Your Privacy Protection Statement must: (1) Comply with the provisions of the applicable laws and regulations. (2) Inform the customer of any customer data or customer information that you collect, as well as of how you will use, store, protect, and disclose this information. And (3) Explain what rights customers have with regard to controlling the use and sharing of their customer data and customer information, and how they can view their data and information.Our Privacy Protection Policy is applicable only to customers' use of Azure Services, and does not apply to their use of any third-party products.If any service products (see Market Participation Policy for definitions) are managed or any product includes managed elements, you must stipulate the countries in which they may be managed and in which any customer data may be stored.This information must be specified in your Privacy Protection Policy and your put-up information, so that customers can determine how to comply with the applicable laws and regulations or determine which policies are applicable to the usage and transfer of their data.
c) Correspondence with customers.You may use customer information to contact customers only for transactional purposes.You must not contact any customers for promotional purposes unless a customer has acknowledged this and chosen to agree to receive such correspondence from you.The provisions of this article do not restrict you from using independently-obtained customer contact information for any purpose, even if such information is the same as the customer information provided by us or which you obtained from the Marketplace. However, you may not specifically send such correspondence to Azure customers.“Transactional purposes” refers to correspondence that is directly relevant to the product you provide or operate, including correspondence related to your product support, service downtime, changes to your terms of use, and the delivery of notifications and invoices.“Promotional purposes” refers to any other correspondence that is directly relevant to products, advertising products or services, feedback requests, training, or other resources, but which is not used purely for transactional purposes.Your correspondence with customers must comply with all applicable laws and regulations.
Article 6: Appointment of 21Vianet.
The Marketplace is a platform that service providers can use to provide products.21Vianet has a duty to provide the relevant technologies and services to allow you to use the platform.To this end, you appoint 21Vianet as your agent or indirect agent (whichever is appropriate) and you acknowledge that you (and not 21Vianet) are the provider, publisher, and licensor of the products that you provide to customers.
Article 7: Product take-down and termination.
a) Product take-down.Taking down a particular product causes the product to no longer be viewable on the Marketplace or available for other customers to configure.However, customers who configured the product before it was taken down may continue to use the product within the same scope as that before it was taken down.
Products taken down by the service provider.You may submit a request in accordance with the provisions of Article 12(b), requesting that a particular product be taken down from the Marketplace.We will take your product down from the Marketplace within 30 days of receiving your request.
Products taken down by 21Vianet.We reserve the right to take down or suspend provision of any product on the Marketplace, regardless of whether there are any grounds to do so.Reasons for taking down a product may include, but are not limited to: (a) You violated the terms of the Agreement (including the Market Participation Policy or Market Participation Technical Guidelines). (b) There are discrepancies between your product and the associated put-up information. (c) Your product has been accused of infringing a third party’s intellectual property rights. (d) Your product is the subject of content or quality complaints. Or (e) You have not provided appropriate support to customers or 21Vianet in accordance with the terms of this Agreement.
v) Product termination.
The termination of a particular product means that we will notify existing customers that the product has been terminated, and customers will no longer be able to use the product after a designated cut-off date that falls after the termination date for the product.You agree that we shall not undertake any liabilities or obligations if the customer makes unauthorized use of your product after the cut-off date.
If a product is terminated, existing customers will be able to continue to use the product for a further 90 days or until the expiration date agreed by the customer at the time of purchase (whichever is longer, hereinafter referred to as the “phase-out period”).During the phase-out period, you must continue to provide existing customers with any services that comprise part of your product.
We will not terminate any product before the end of its phase-out period unless we are legally required or otherwise compelled to do so (for example, because of accusations of fraud or the infringement of intellectual property rights), and we will not terminate any non-service product before the Agreement expires.
Article 8: Confidentiality and data protection.
a) Confidentiality.We will abide by the terms of any confidentiality agreements that are currently in effect between the two parties.If there are no confidentiality agreements between the two parties, the recipient of confidential information under the terms of this Agreement shall maintain the confidentiality of such information and shall not use or disclose such information to third parties (excluding subcontractors that perform work on behalf of the recipient and are required to abide only by confidentiality clauses that offer at least an equivalent level of protection to this article).“Confidential information” refers to all information that one party designates as confidential or that a reasonable person would know to be or reasonably understand to be confidential in nature.Confidential information does not include information that the receiver becomes aware of without violating this Agreement or any other confidentiality obligations that it should undertake with respect to the disclosing party.The provisions of this Article do not prohibit either party from responding to legal requests from law enforcement agencies.
b) Data protection.Both parties shall abide by all applicable data protection and privacy laws during the performance of this Agreement.
Article 9: Guarantees.You hereby make the following declarations, guarantees, and commitments to 21Vianet:
a) You have already obtained any and all consents, approvals, and licenses (including written consent from third parties, if applicable) that are necessary to provide your products on the Marketplace.
b) Our exercise of the rights granted by you under the terms of this Agreement does not oblige us or our affiliates, licensors, or suppliers to pay any amounts to you or any third party.
c) The information you provide to us on the basis of this Agreement or for the purposes of this Agreement is genuine, accurate, update, and complete. And
d) During the performance of the obligations set out in this Agreement, you will abide by all applicable laws, including privacy laws.
Article 10: Disclaimers, limits of liability, and defense of compensation claims.
a) Disclaimers. With regard to publishers and their products, we provide Azure Services and perform Marketplace translations on the basis of the “status quo” and “availability,” and we “do not guarantee that there are no defects.” You undertake the risks arising from publishing your products for use by customers through the Marketplace. To the extent permitted by the law, we exclude any implied warranties or conditions, including implied warranties or conditions pertaining to Azure Services and the Market for the relevant product liabilities, fitness for sale, suitability for a specific purpose, freedom from technical defects, and non-infringement. We explicitly refute any warranties with regard to the following matters on condition that this does not limit the provisions above: access to or use of Azure Services or the Market will not suffer from any interference and no errors exist.
b) Limits of liability. Unless otherwise stipulated in Article 10 (d), the liabilities of both parties and their affiliates, licensors and/or suppliers under the terms of this Agreement are limited to direct damages up to a maximum of US$5,000. Both parties agree not to seek and to explicitly waive any right to claim compensation for any other losses or damages, including but not limited to lost profits and consequential damages, special damages, indirect damages, or punitive damages. The previously mentioned liability limitations and exclusions continue to apply, even if the relevant party was or should have been aware of the possibility of occurrence of such damage.
c) Scope.For the purposes of clarity, the disclaimer and limit of liability provisions in Article 10 are relevant to you only as a Market publisher.The preceding provisions and any other provisions of this Agreement are not intended to apply to your use of any Azure Service as an Azure customer (if applicable).
d) Responsibility to defend claims.You agree to defend our affiliates, licensors, and suppliers (if applicable) against any and all third-party compensation claims that meet the following conditions, to compensate them and indemnify them from damages (including the payment of any relevant costs, losses, damages, expenses, and legal fees):
The claims allege that your product or put-up information infringes any exclusive or individual rights of third parties.
The claims arise from any disputes between you and customers that relate to your products. Or
The claims are based on your failure to collect, pass on, or declare any sales tax, use tax, goods and services tax (GST), value added tax (VAT), or other similar taxes that you are obliged to collect, pass on, or declare, including any relevant penalties and interest.
We will (a) give you prompt written notice that you should pay compensation, but the notice we send you does not indemnify you from any liability unless such failure to send a notification has seriously damaged your legal rights. And (b) provide reasonable assistance to your defense of the compensation claim (if you make a reasonable request to this effect).You agree to compensate us and our affiliates, licensors and/or suppliers (whichever is applicable) for any reasonable costs actually paid during the provision of such assistance.You must not reach any settlements or compromises for a particular claim, or allow or stipulate that we or our affiliates or licensors and/or suppliers (if applicable) accept any fault or liability for any claim involved in this article, without obtaining express prior consent in writing from us, our affiliates, or licensors and/or suppliers.
Article 11: Expiration and termination of the Agreement. a) General provisions.This Agreement shall remain in force until such time as it is terminated.Either party may terminate this Agreement on any grounds or without any particular grounds by giving 30 days’ advance notice in writing.
b) Validity of the Agreement.Within 30 days of either party sending a Termination Notice, we will take down all your products from the Market and cease providing any paid products within any relevant buffer period specified in Article 7(b) section (2).If we terminate the Agreement because of a significant breach of contract on your part, we reserve the right to take down and/or cease providing products at an earlier date.The articles pertaining to the exercise or affirmation of all rights or protections shall remain in force after the Agreement has been terminated.
Article 11: Expiration and termination of the Agreement.
a) General provisions.This Agreement shall remain in force until such time as it is terminated.Either party may terminate this Agreement on any grounds or without any particular grounds by giving 30 days’ advance notice in writing.
b) Validity of the Agreement.Within 30 days of either party’s sending a Termination Notice, we will take down all your products from the Market and cease providing any paid products within any relevant buffer period specified in Article 7(b) section (2).If we terminate the Agreement because of a significant breach of contract on your part, we reserve the right to take down and/or cease providing products at an earlier date.The articles pertaining to the exercise or affirmation of all rights or protections shall remain in force after the Agreement has been terminated.
Article 12: Other provisions
a) Associates.We have the right to perform some of the obligations under the terms of this Agreement through one or multiple affiliates.We also have the right to designate one or multiple affiliates to act as our representatives in different regions.
b) Reserved rights.Unless otherwise stated in this Agreement, the Agreement does not transfer, cede, or grant any rights, ownership, or entitlements pertaining to any software or other materials that are exchanged by the two parties.The two parties reserve all rights not specifically granted within the Agreement.
c) Non-exclusivity.The two parties hereby acknowledge and agree that all rights granted by one party to the other and all obligations undertaken by one party to the other within the Agreement are non-exclusive. Consequently, no provision of this Agreement may be regarded or interpreted as prohibiting either party from engaging in business arrangements that are similar to or that compete with the arrangements described in this Agreement, either alone or with one or multiple third parties.
d) Jurisdiction and applicable laws.This Agreement is subject to the laws of the People’s Republic of China.Any disputes or compensation claims arising because of or in connection with this Agreement, or any breach of contract, termination, or annulments (including the effect, scope, and enforceability of this article), should be submitted to the China International Economic and Trade Arbitration Commission (“CIETAC”) for arbitration in accordance with the CIETAC arbitration rules in force at the time of the arbitration application.Arbitrations rulings are final and binding upon both parties to the Agreement.However, the provisions of this article do not prevent either party from seeking injunctive relief for the following matters within the relevant jurisdiction: (i) Infringement of the party’s intellectual property rights. (ii) Violation of the confidentiality obligations to the party undertaken in accordance with the Agreement. Or (iii) Enforcing or affirming any rulings or orders in any relevant jurisdictions.
e) Fees.Each party must independently cover all costs and expenses incurred as a result of performing the Agreement.
f) Responding to rights claims.If we receive a third-party request to change or remove your product’s rights claims, we will submit the claims document to you.You must comply with the requirements of the notification in a timely manner as soon as is reasonably practicable.If you discover that your product violates the provisions of this Agreement, you must notify us immediately and work with us to remedy the breach of contract.
g) Forfeiture.If either party does not exercise or delays the exercise of any right or remedy, such action shall not result in the forfeiture of the right or remedy, or constitute the forfeiture of any right or remedy.
h) Inseparability.If any article of the Agreement is found to be illegal, ineffective, or unenforceable by the courts in any jurisdiction, the remaining articles of the Agreement shall remain in full force.
i) Transferal.Neither party may transfer the Agreement (or any rights or obligations under the terms of this Agreement) without the prior written consent of the other party. However, without the consent of the other, one party may: (i) transfer the Agreement to an affiliate, or (ii) transfer the Agreement to merge, acquire, or sell all or the vast majority of its assets.Despite the existence of the preceding provision, if we no longer have the right to continue providing Azure Services, we will still be able to send you a notice forty-five (45) days in advance that we will transfer the Agreement to another entity.If either party is permitted to transfer the Agreement in accordance with Article 12(j), it must notify the other party in a timely manner.Assuming that it does not violate the preceding provisions, this Agreement is binding on both parties and their respective approved successors and transferees, and also benefits all the aforementioned parties.
j) Subcontractors.We have the right to sublicense rights under the terms of the Agreement to third parties, or to authorize third parties by other means to assist us in performing the obligations or exercising rights under the terms of the Agreement.Assuming that it does not violate the preceding provisions, we will accept liability for the actions of such third parties.
k) Force majeure.Neither party is required to accept any liability for failure to perform any obligations under the terms of the agreement resulting from a force majeure, which includes acts of God, natural disasters, wars, domestic rioting, the actions of government entities, strikes, and other events that exceed the party’s reasonable extent of control under the right to claim compensation under Article 12(k).The party affected by the force majeure shall notify the other party within a commercially reasonable period of time and make every reasonable effort to continue to perform the Agreement.The affected party shall perform any obligations it was unable to perform because of the force majeure as quickly as possible under reasonable circumstances after the force majeure has ended.Lack of funds does not constitute a force majeure.
l) Relationship between the two parties.Neither this Agreement nor any of the terms and conditions herein establish a partnership, joint venture, employment relationship, or franchise relationship between the two parties to the Agreement.
m) Updates.We have the right to update this Agreement from time to time.If we update the Agreement, we will notify you 30 days before the updated version enters into force, and we will mark the date of the latest update at the top of the Agreement.By continuing to provide products after this notice period ends you indicate that you agree to be bound by the terms and conditions of the updated version of the Agreement.The notice period does not apply to updates to the Marketplace Publication Technical Guidelines or Marketplace Participation Policy (which we may update at any time).If there are any discrepancies between the terms of this document and the terms of the Market Publication Technical Guidelines or Market Participation Policy, this document shall prevail in every case.
n) Complete Agreement.This Agreement (including all appendices thereto) constitute the complete agreement between the two parties to the Agreement regarding the subject of the Agreement, and supersedes all previous and current correspondence.
Appendix A
Terms for Special Product Categories
Article 1: Virtual machine images (“Images”)
Base images.If any of your image products are based on images provided on the Market by any other service provider (hereinafter “base images”), you must obtain the necessary licenses from the base image’s owner and/or service provider before you publish the image product.
Article 2: Custom services (solutions)
A set of Azure-based software or hardware and software solutions that address a certain type of IT issue that is prevalent in a particular industry.It is provided to business analysts, development, operations and maintenance personnel, or IT specialists, for reference and consultation purposes.Users can contact the service provider to request a custom service tailored to their individual scenario and requirements.
Article 3: Resource Manager templates.
If you publish a Resource Manager template that references another service provider’s products (hereinafter “third-party products”), you must not claim to be the service provider for the third-party product.You also acknowledge and agree that other service providers may reference your products in their Resource Manager templates by using methods that comply with the provisions of this Agreement.Although your product may be included in another service provider’s Resource Manager template, you are still the service provider for that product in all customer configurations of that Resource Manager template. Your Terms of Use and Privacy Protection Statement will continue to apply to your relationship with such customers, and such other service providers do not have the right to obtain any service provider net income because the customer uses your product.Even if they are obtained from external sources, any software or data that is installed by extension scripts within the Resource Manager template should still be regarded as product content, and you should provide users with the relevant support.
Article 4: Products used in the customer’s on-premises environment
If you choose to provide customers with a specific product for use in their on-premises environment (e.g. on Azure Stack), we may allow customers to download and use the product in their on-premises environment.You agree that if a customer accepts the Terms of Use for this type of product, they will be entitled to use the product in their on-premises environment.You acknowledge that you (and not 21Vianet) are the publisher of this type of product.