Terms of Use Dedicated Servers

Transcription

1 Terms of Use Dedicated Servers Overview This Agreement states the terms and conditions by which GIP will deliver and Customer will receive any or all of the services provided by GIP, including dedicated servers, bandwidth, managed services and professional services. The specific services and/or products to be provided hereunder are identified in the order Form or First Invoice are applicable to this agreement. GIP will provide its customer services and/or products as described in the order form or First invoice at the usage prices mentioned in Invoice. Delivery of Services; Terms; Fees By submitting an Order Form, placing an order through our website, or by verbally asking GIP to provide services Customer agrees to take and pay for, and, by accepting the Order Form / not disputing the first invoice within one week of invoice date, GIP agrees to provide, the Service's described in the order form or the first invoice. Supplemental Services: The purpose of this provision is to enable GIP to provide Customer with certain limited services and equipment needed by Customer on a one-off or emergency basis (Supplemental Services) where such services are not included within the scope of the Services as described in the order form / First invoice. All requests for Supplemental Services should be made via the GIP support system. GIP will quote for the associated charges and seek customers approval before providing any Supplemental Services. Customer agrees to pay GIP the fees charged by GIP for Supplemental Services. Customer will be charged for Supplemental Services upon delivery of such services. GIP will use commercially reasonable efforts to provide Supplemental Services, provided that GIP has no obligation to determine the need for or provide Supplemental Services. All Supplemental Services provided pursuant to this paragraph 2.1(b) are provided on an as-is basis and exclude warranties of any kind, whether express or implied. Term Unless otherwise mentioned on the Order Form / First Invoice, all services are provided on a month-tomonth basis. Payments (a) Acceptable Payment Methods: GIP accepts payments via: 1. Cheques, Money Order and Bankers Cheques: Drawn in favor of GIP Pvt. Ltd.; cheques should be mailed to Accounts Receivable, Global IT Providers. D-138, Gautam Marg, Nirman Nagar, Ajmer Road, Jaipur, Rajasthan, Pin: , INDIA. 2. Credit Cards: GIP accepts Visa and Master Card. Please note that on your credit card statement, charges would appear in accordance with Global IT Providers (b) Payment Terms:

2 All payments towards monthly services are due and payable by the due date mentioned on the invoice. The date of your first order with GIP would be your monthly billing anniversary and all future orders would be prorated to this day. All other charges for Services received and expenses incurred for Professional Services during a billing period (e.g., bandwidth usage fees, server administration tasks) will be billed either on the day service is delivered or at the end of the billing period in which the Services were provided. Payment for all such fees is due upon receipt of each GIP invoice. All payments should be made in Indian Currency (Rupees) Late Payments: Any payment not received within seven (7) days of the due date will be considered late and would result in service interruption. Services interrupted due to late payments would be reinstated only after receiving the overdue amounts in full, a re-connection fee of Rs and a late fee of Rs or half percent (0.5%) of the outstanding amount whichever is higher. Payments not received within fifteen (15) days would result in suspension of services. Upon suspension of services, GIP will have rights to decommission the equipment. GIP would not be responsible for any loss of data that may occur due to suspension of services. Reactivation of suspended services would result in a charge of Rs 5, or one (1%) of the outstanding amount. GIP reserves right not to reactivate a suspended account. (c) Refunds and Disputes: All payments to GIP are nonrefundable. This includes the one time setup fee and subsequent charges regardless of usage. All overcharges or billing disputes must be reported within 60 days from the date of invoice. If you dispute a charge to your credit card issuer that, in GIP sole discretion is a valid charge under the provisions of the TOS, GIP, at its own discretion, may suspend services on your account. Reactivation of suspended services would result in a charge of Rs 5, or one (1%) of the outstanding amount. GIP reserves right not to reactivate a suspended account. (d) Failure to Pay: GIP strongly suggests that to cancel your account, you follow the Termination process. GIP reserves the right to report any default in payment to a collection agency. Termination Either party may terminate this Agreement by providing a written notice, at least one week (7 days) but not more than thirty (30) days in advance to the other party. The Customer may send termination notice to GIP either by: 1. Mailing the written request to Customer Service, GIP, D-138, Gautam Marg, Nirman Nagar, Ajmer Road, Jaipur, Rajasthan, Pin: Submitting a ticket by logging on to the Customers area on the GIP support system.

3 Neither party will be liable to the other for any termination or expiration of any Service or this Agreement in accordance with its terms. However, if Customer terminates this Agreement, under the terms that are not in accordance with the terms of this Agreement, Customer would be liable to pay the balance monies payable to GIP for the remaining term of the Agreement. Support Services GIP is responsible only for hardware and network related issues. Customer acknowledges that, unless Customer subscribes to a Support Services package, GIP provides only limited Basic Support for any Operating System and Control Panel software related issue. This support is limited to 2 hours of support per server or maximum of 4 support requests in a billing period. This Basic Support offered is limited to responding to the issues reported by the Customer. GIP does not provide support for any third party applications. Taxes All fees charged by GIP for Services are exclusive of all taxes and similar fees now in force or enacted in the future imposed on the transaction and/or the delivery of Services, all of which Customer will be responsible for and will pay in full, except for taxes based on GIP net income. Title The GIP Supplied Equipment shall always remain the personal property of GIP. Customer shall have no right or interest in or to the GIP Supplied Equipment except as provided in this Agreement and shall hold the GIP Supplied Equipment subject and subordinate to the rights of GIP. Customer will, at its own expense, keep the GIP Supplied Equipment free and clear from any liens or encumbrances of any kind (except any caused by GIP) and will indemnify and hold GIP harmless from and against any loss or expense caused by Customer's failure to do so. Customer shall give GIP immediate written notice of any attachment or judicial process affecting the GIP Supplied Equipment or GIP ownership. Customer understands and agrees that GIP does not guarantee and will not be responsible for any performance related issues Customer my experience by using GIP Supplied Equipment. Security Breach Customer agrees that the security of its account is solely its own responsibility. Customer understands that Internet and other various networking communication medium are not secure, unless explicitly specified as such, and may be subjected to interception or loss. GIP makes no warranties of any kind, express, implied or statutory concerning the data or information available through the GIP network. In no event, GIP would be liable to the customer for any indirect, incidental or consequential damages arising out of the services or any products provided under this agreement, even if the company has been advised of the possibility of such damages. Customer further agrees that if it believes the security of its account has been compromised in any way, he will notify GIP immediately by telephone at and in writing through registered mail requested to GIP, D-138, Gautam Marg, Nirman Nagar, Ajmer Road, Jaipur, Rajasthan, Pin: , India. Customer shall be held fully responsible for any misuse or compromise to its account for which GIP is not properly notified. Customer agrees that if any security violations are believed to have occurred in association with its account, GIP has the right to suspend access to the account pending an investigation and resolution. Customer also agrees that GIP has the right to co-operate in any government or legal investigation regarding any aspect of its services, including services sold to Customer. In case of customer being delinquent on its payment for services provided by GIP, GIP has full right to deny access to, stop services and possess / assume title of Customer's equipment and its contents and

4 sell it to recover the payable amount to GIP. Limitations of Liability In no event will GIP would be liable or responsible for any type of incidental, punitive, indirect or consequential damages, including, but not limited to, lost revenue, lost profits, replacement goods, loss of technology, rights or services, loss of data, or interruption or loss of use of service or equipment, even if advised of the possibility of such damages, whether arising under theory of contract, tort (including negligence), strict liability or otherwise. The parties acknowledge that GIP has set its prices and entered into this Agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between the parties. The parties agree that the limitations and exclusions of liability and disclaimers specified in this Agreement will survive and apply even if found to have failed of their essential purpose. Indemnification Customer will indemnify, defend and hold the other harmless from and against any and all costs, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys' fees) (collectively) resulting from any claim, suit, action, or proceeding (each, an "Action") brought by any third party against the other or its affiliates alleging. 1. The infringement or misappropriation of any intellectual property right relating to the delivery or use of the Service's (but excluding any infringement contributory caused by the other party). 2 Any violation of or failure to comply with the Rules and Regulations. Customer will indemnify, defend and hold GIP, its affiliates and customers harmless from and against any and all Losses resulting from or arising out of any Action brought against GIP, its affiliates or customers alleging any damage or destruction to the Customer Area, the Internet Data Centers, GIP equipment or other customer equipment caused by Customer, its Representative's or designees. Miscellaneous Provision 1. Force Majeure: Except for the obligation to make payments, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including acts of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet (not resulting from the actions or inactions of GIP). 2. Marketing: Customer agrees that during the term of this Agreement GIP may publicly refer to Customer, orally and in writing, as a Customer of GIP. Any other reference to Customer by GIP requires the written consent of Customer. 3. Non-Solicitation: Except for the obligation to make payments, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including acts of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet (not resulting from the actions or inactions of GIP). 4. No Third Party Beneficiaries: GIP and Customer agree that, except as otherwise expressly provided in this Agreement, there shall be no third party beneficiaries to this Agreement, including but not limited to the insurance providers for either party or the customers of Customer.

5 5. Governing Law; Dispute Resolution: This Agreement is made under and will be governed by and construed in accordance with the laws of INDIA. The parties will endeavor to settle amicably by mutual discussions any disputes, differences, or claims whatsoever related to this Agreement. Failing such amicable settlement, any controversy, claim, or dispute arising under or relating to this Agreement, including the existence, validity, interpretation, performance, termination or breach thereof, shall finally be settled by arbitration. There will be three (3) arbitrators (the Arbitration Tribunal), the first of which will be appointed by the claimant in its notice of arbitration, the second of which will be appointed by the respondent within thirty (30) days of the appointment of the first arbitrator and the third of which will be jointly appointed by the party-appointed arbitrators within thirty (30) days thereafter. The language of the arbitration shall be English. The Arbitration Tribunal will not have the authority to award punitive damages to either party. Each party shall bear its own expenses, but the parties will share equally the expenses of the Arbitration Tribunal. This Agreement will be enforceable, and any arbitration award will be final, and judgment thereon may be entered in any court of competent jurisdiction. The arbitration will be held in JAIPUR, INDIA. Notwithstanding the foregoing, claims for preliminary injunctive relief, other pre-judgment remedies, and claims for Customer's failure to pay for Services in accordance with this Agreement may be brought in a court of law over the subject matter and parties. 6. Severability Waiver: In the event any provision of this Agreement is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of this Agreement will remain in full force and effect. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party. 7. Assignment: This Agreement shall not be assignable by Customer without prior written consent. This Agreement shall be binding upon and accrue to the benefit of any permitted assignee, and any such assignee shall agree to perform the obligations of the assignor. 8. Notice: Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, sent by , confirmed facsimile, or mailed by registered mail, return receipt requested, postage prepaid, in each case to the address of the receiving party as listed on the latest invoice or at such other address as may hereafter be furnished in writing by either party to the other party. Such notice will be deemed to have been given as of the date it is delivered, mailed, ed, faxed or sent, whichever is earlier. 9. Relationship of Parties: GIP and Customer are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between GIP and Customer. Neither GIP nor Customer will have the power to bind the other or incur obligations on the other's behalf without the other's prior written consent, except as otherwise expressly provided herein. Authorized representatives of Customer and GIP have read the foregoing and all documents incorporated therein and agree and accept such terms effective as of the date first above written.