This User Agreement (“Agreement”) is an agreement between Inspedium Corp. (SMC Pvt) Ltd. (“Company”), and the party set forth in the related order form (“Client” or “you”) incorporated herein by reference (together with any subsequent order forms submitted by Client, the “Order Form”), and applies to the purchase of all services ordered by Client on the Order Form (collectively, the “Services”).
PLEASE READ THIS AGREEMENT CAREFULLY.
PLACING AN ORDER VIA THE ONLINE ORDER FORM ON THIS WEBSITE CREATES A CONTRACT BETWEEN YOU THE CLIENT AND COMPANY.
THIS CONTRACT CONSISTS OF:
- THE ORDER
- THE APPLICABLE SERVICE DESCRIPTION
- THIS USER AGREEMENT
- THAT YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALL TERMS AND CONDITIONS INCORPORATED BY REFERENCE IN THIS AGREEMENT, INCLUDING COMPANY’S USAGE POLICY. YOUR USE OF THE SERVICES CONSTITUTES ACCEPTANCE OF THIS AGREEMENT.
1. Acceptable Use Policy
Under this Agreement, Client shall comply with Company’s then current Acceptable Use Policy (“AUP”), as amended, modified or updated from time to time by Company, which currently can be viewed under the Legal section of this web site, and which is incorporated in this Agreement by reference. Client hereby acknowledges that it has reviewed the AUP and that the terms of the AUP are incorporated herein by reference. In the event of any inconsistencies between this Agreement and the AUP, the terms of the AUP shall govern. Company does not intend to systematically monitor the content that is submitted to, stored on or distributed or disseminated by Client via the Service (the “Client Content”). Client Content includes content of Client’s Clients and/or users of Client’s website. Accordingly, under this Agreement, you will be responsible for your Clients content and activities on your website. Notwithstanding anything to the contrary contained in this Agreement, Company may immediately take corrective action, including removal of all or a portion of the Client Content, disconnection or discontinuance of any and all Services, or termination of this Agreement in the event of notice of possible violation by Client of the AUP. In the event Company takes corrective action due to a violation of the AUP, Company shall not refund to Client any fees paid in advance of such corrective action. Client hereby agrees that Company shall have no liability to Client or any of Client’s Clients due to any corrective action that Company may take (including, without limitation, disconnection of Services).
2. Term; Termination; Cancellation Policy.
a. The initial term of this Agreement shall be as set forth in the Order Form (the “Initial Term”). The Initial Term shall begin upon commencement of the Services to Client. After the Initial Term, this Agreement shall automatically renew. ADDITIONALLY AFTER THE INITIAL TERM, YOU ACKNOWLEDGE, AGREE AND AUTHORIZE Company TO AUTOMATICALLY BILL AND/OR CHARGE ON YOUR CREDIT CARD FOR SUCCESSIVE TERMS OF EQUAL LENGTH AS THE INITIAL TERM, UNLESS TERMINATED OR CANCELLED BY EITHER PARTY AS PROVIDED IN THIS SECTION. The Initial Term and all successive renewal periods shall be referred to, collectively, as the “Term”.
b. This Agreement may be terminated
i. by Company following a written notice to the Client at least seven (7) days in advance
ii. by Client following a written notice to the Company at least thirty (30) days in advance
iii. by Company in the event of nonpayment by Client,
iv. by Company, at any time, without notice, if, in Company’s sole and absolute discretion and/or judgment, Client is in violation of any term or condition of the this Agreement and related agreements, AUP, or Client’s use of the Services disrupts or, in Company’s sole and absolute discretion and/or judgment, could disrupt, Company’s business operations and/or
v. by Company in accordance with Sections 1, 7, and 11 of this Agreement.
vi. If Service is within the initial 30 days since activation, there have been no previous accounts, and there has not been a violation of the Agreement the Client will be eligible for a full refund of any Hosting Service fees if utilizing any of Inspedium’s shared hosting services, less domain registration, transfer, renewal, or Service overusage fees. Clients utilizing Reseller, Dedicated or VPS offers are not eligible for this promotion.
c. If you cancel this Agreement prior to the end of the Initial Term or any Term thereafter,
i. you shall be obligated to pay all fees and charges accrued prior to the effectiveness of such cancellation,
ii. you shall be obligated to pay 100% of all charges for all Services for each month remaining in the Term (other than basic hosting fees as provided in (ii) above). Any cancellation request shall be effective seven (7) days after receipt by Company, unless a later date is specified in such request.
d. Company may terminate this Agreement
i. if the Services are prohibited by applicable law, or become impractical or unfeasible for any technical, legal or regulatory reason, by giving Client as much prior notice as reasonably practicable or
ii. immediately by giving written notice to Client, if Company determines in good faith that Client’s use of the Client Web site or the Client Content violates any term or condition, including the AUP. If Company cancels this Agreement prior to the end of the Term for your breach of this Agreement and related agreements, the AUP or Client’s use of the Services disrupts, Company shall not refund to you any fees paid in advance of such cancellation and you shall be obligated to pay all fees and charges accrued prior to the effectiveness of such cancellation; further, you shall be obligated to pay 100% of all charges for all Services for each month remaining in the Term and Company shall have the right to charge you an administrative fee of $50.00.
e. Upon termination of this Agreement for any cause or reason whatsoever, neither party shall have any further rights or obligations under this Agreement, except as expressly set forth herein. The provisions of Sections 2(e), 3, 4, 8, 10, 11, 13 and 15 of this Agreement shall survive the expiration or termination of this Agreement for any cause or reason whatsoever, and, notwithstanding the expiration or termination of this Agreement, the parties shall each remain liable to the other for any indebtedness or other liability theretofore arising under this Agreement. Termination of this Agreement and retention of pre-paid fees and charges shall be in addition to, and not be in lieu of, any other legal or equitable rights or remedies to which Company may be entitled.
3. Client’s Responsibilities.
a. CLIENT MUST ENSURE THE PRIMARY EMAIL ADDRESS ON FILE IS KEPT UP TO DATE AND IS AVAILABLE IN THE EVENT OF A PROBLEM WITH YOUR ACCOUNT, SUCH AS AN ABUSE RELATED INCIDENT WHERE YOUR ACCOUNT COULD BE SUSPENDED, OR TO NOTIFY YOU OF A PROBLEM WITH YOUR HOSTING SERVICE. THEREFORE, THE USE OF AN EMAIL ADDRESS AT YOUR DOMAIN HOSTED WITH US FOR THIS REASON IS PROHIBITED AS IN THIS EVENT YOU WOULD NOT BE REACHABLE.
b. Client is solely responsible for the quality, performance and all other aspects of the Client Content and the goods or services provided through the Client Web site.
c. Client will cooperate fully with Company in connection with Company’s performance of the Services. Client must provide any equipment or software that may be necessary for Client to use the Services. Delays in Client’s performance of its obligations under this Agreement will extend the time for Company’s performance of its obligations that depend on Client’s performance on a day for day basis. Client will notify Company of any change in Client’s mailing address, telephone, e-mail or other contact information.
d. Client assumes full responsibility for providing end users with any required disclosure or explanation of the various features of the Client Web site and any goods or services described therein, as well as any rules, terms or conditions of use.
e. Because the Services permit Client to electronically transmit or upload content directly to the Client Web site, Client shall be fully responsible for uploading all content to the Client Web site and supplementing, modifying and updating the Client Web site. Client is also responsible for ensuring that the Client Content and all aspects of the Client Web site are compatible with the hardware and software used by Company to provide the Services, as the same may be changed by Company from time to time. Specifications for the hardware and software used by Company to provide the Services will be available through Company’s control panel software. Client shall periodically access Client’s control panel to determine if Company has made any changes thereto. Company shall not be responsible for any damages to the Client Content, the Client Web site or other damages or any malfunctions or service interruptions caused by any failure of the Client Content or any aspect of the Client Web site to be compatible with the hardware and software used by Company to provide the Services.
f. Although the nature of the service automatically backs up data, you are solely responsible for making back-up copies of the Client Web site and Client Content.
g. It is your responsibility to ensure that scripts/programs installed under your account are secure and permissions of directories are set properly, regardless of installation method. When at all possible, set permissions on most directories to 755 or as restrictive as possible. Users are ultimately responsible for all actions taken under their account. This includes the compromise of credentials such as user name and password. It is required that you use a secure password. If a weak password is used, your account may be suspended until you agree to use a more secure password. Audits may be done to prevent weak passwords from being used. If an audit is performed, and your password is found to be weak, we will notify you and allow time for you to change/update your password.
4. Reseller Client’s Responsibilities.
a. Reseller’s are permitted the number of Client accounts as referenced in their service. For example, if the package ordered has 20 cPanel accounts then you would be permitted 20 Clients to use the account in total. Resource limitations are allocated to Reseller as one account and set in accordance with Section 12 of this Agreement. You as the Reseller may then allocate the resources to your Client accounts as you see fit.
b. Reseller’s are also responsible for the support of their Clients. We will not provide support to Reseller’s Clients. If a Reseller’s Client contacts us, they will be directed back to the Reseller for support. Support requests for a Reseller’s Client must be made on behalf of the Reseller.
c. Reseller’s are also responsible for Client’s content that is stored or transmitted under their Reseller account and the action of their Clients. Company will hold Reseller responsible for any violations of the Terms of Service as a result of Reseller’s Client violation, whether knowingly or not.
5. Client’s Representations and Warranties.
a. Client hereby represents and warrants to Company, and agrees that during the Initial Term and any Term thereafter Client will ensure that:
i. Client is the owner or valid licensee of the Client Content and each element thereof, and Client has secured all necessary licenses, consents, permissions, waivers and releases for the use of the Client Content and each element thereof, including without limitation, all trademarks, logos, names and likenesses contained therein, without any obligation by Company to pay any fees, residuals, guild payments or other compensation of any kind to any Person;
ii. Client’s use, publication and display of the Client Content will not infringe any copyright, patent, trademark, trade secret or other proprietary or intellectual property right of any person, or constitute a defamation, invasion of privacy or violation of any right of publicity or any other right of any person, including, without limitation, any contractual, statutory or common law right or any “moral right” or similar right however denominated;
iii. Client will comply with all applicable laws, rules and regulations regarding the Client Content and the Client Web site and will use the Client Web site only for lawful purposes; and
iv. Client has used its best efforts to ensure that the Client Content is and will at all times remain free of all computer viruses, worms, Trojan horses and other malicious code.
b. Client shall be solely responsible for the development, operation and maintenance of Client’s web site, online store and e-commerce activities, for all products and services offered by Client or appearing online and for all contents and materials appearing online or on Client’s products, including, without limitation
i. the accuracy and appropriateness of the Client Content and content and material appearing in its store or on its products,
ii. ensuring that the Client Content and content and materials appearing in its store or on its products do not violate or infringe upon the rights of any person, and
iii. ensuring that the Client Content and the content and materials appearing in its store or on its products are not defamatory or otherwise illegal. Client shall be solely responsible for accepting, processing and filling Client orders and for handling Client inquiries or complaints. Client shall be solely responsible for the payment or satisfaction of any and all taxes associated with its web site and online store.
c. Client grants Company the right to reproduce, copy, use and distribute all and any portion of the Client Content to the extent needed to provide and operate the Services.
6. License to Company. Client hereby grants to Company
a. non-exclusive, royalty-free, worldwide right and license during the Initial Term and any Term thereafter to do the following to the extent necessary in the performance of Services under the Order: (a) digitize, convert, install, upload, select, order, arrange, compile, combine, synchronize, use, reproduce, store, process, retrieve, transmit, distribute, publish, publicly display, publicly perform and hyperlink the Client Content; and (b) make archival or back-up copies of the Client Content and the Client Web site. Except for the rights expressly granted above, Company is not acquiring any right, title or interest in or to the Client Content, all of which shall remain solely with Client.
7. Billing and Payment.
a. Client will pay to Company the service fees for the Services in the manner set forth in the Order Form.
b. Company may increase the Service Fees (i) in the manner permitted in the service description and (ii) at any time on or after expiration of the Initial Term by providing seven (7) days prior written notice thereof to Client.
c. The Service Fees do not include any applicable sales, use, revenue, excise or other taxes imposed by any taxing authority with respect to the Services or any software provided hereunder (excluding any tax on Company’s net income). All such taxes will be added to Company’s invoices for the fees as separate charges to be paid by Client. All fees are fully earned when due and non-refundable when paid.
d. Unless otherwise specified, all fees and related charges shall be due and payable within thirty (30) days after the date of the invoice. If any invoice is not paid within thirty (30) days after the date of the invoice, Company may charge Client a late fee of $25.00 for such invoice; in addition any amounts payable to Company not paid when due will bear interest at the rate of one and one half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less.
e. If Company collects any payment due at law or through an attorney at law or under advice therefrom or through a collection agency, or if Company prevails in any action to which the Client and Company are parties, Client will pay all costs of collection, arbitration and litigation, including, without limitation, all court costs and Company’s reasonable attorneys’ fees.
f. If any check is returned for insufficient funds Company may impose a processing charge of $25.00 or PKR 2,500.00.
g. In the event that any amount due Company remains unpaid sthirty (30) days after such payment is due, Company, in its sole discretion, may immediately terminate this Agreement, and/or withhold or suspend Services.
h. Wire transfers will be assessed a $30.00 charge or PKR 3,000.00.
i. Client acknowledges and agrees that Company may pre-charge Client’s fees for the Services to its credit card supplied by Client during registration for the Initial Term.
j. YOU ACKNOWLEDGE, AGREE AND AUTHORIZE Company TO AUTOMATICALLY BILL AND/OR CHARGE ON YOUR CREDIT CARD FOR SUCCESSIVE TERMS OF EQUAL LENGTH AS THE INITIAL TERM, UNLESS TERMINATED OR CANCELLED BY EITHER PARTY AS PROVIDED IN SECTION 2.
8. Company as Reseller or Licensor.
Company is acting only as a reseller or licensor of the hardware, software and equipment used in connection with the products and/or Services that were or are manufactured or provided by a third party (“Non-Company Product”). Company shall not be responsible for any changes in the Services that cause the Non-Company Product to become obsolete, require modification or alteration, or otherwise affect the performance of the Services. Any malfunction or manufacturer’s defects of Non- Company Product either sold, licensed or provided by Company to Client or purchased directly by Client used in connection with the Services will not be deemed a breach of Company’s obligations under this Agreement. Any rights or remedies Client may have regarding the ownership, licensing, performance or compliance of Non-Company Product are limited to those rights extended to Client by the manufacturer of such Non- Company Product. Client is entitled to use any Non-Company Product supplied by Company only in connection with Client’s permitted use of the Services. Client shall use its best efforts to protect and keep confidential all intellectual property provided by Company to Client through any Non-Company Product and shall make no attempt to copy, alter, reverse engineer, or tamper with such intellectual property or to use it other than in connection with the Services. Client shall not resell, transfer, export or re-export any Non-Company Product, or any technical data derived therefrom, in violation of any applicable United States or foreign law.
9. Internet Protocol (IP) Address Ownership.
If Company assigns Client a Dedicated Internet Protocol (“IP”) address for Client’s use, the right to use that IP address shall belong only to Company, and Client shall have no right to use that IP address except as permitted by Company in its sole and absolute discretion in connection with the Services, during the term of this Agreement. Company shall maintain and control ownership of all Internet Protocol numbers and addresses that may be assigned to Client by Company, and Company reserves the right to change or remove any and all such Internet Protocol numbers and addresses, in its sole and absolute discretion.
Client expressly (i) grants to Company a license to cache the entirety of the Client Content and Client’s web site, including content supplied by third parties, hosted by Company under this Agreement and (ii) agrees that such caching is not an infringement of any of Client’s intellectual property rights or any third party’s intellectual property rights.
11. CPU Usage.
Client agrees that Client shall not use excessive amounts of CPU processing on any of Company’s servers. An example of excessive usage would be utilizing 25% or more of system resources for longer than 90 seconds. Any violation of this policy may result in corrective action by Company, including assessment of additional charges, disconnection or discontinuance of any and all Services, or termination of this Agreement, which actions may be taken in Company’s sole and absolute discretion. If Company takes any corrective action under this section, Client shall not be entitled to a refund of any fees paid in advance prior to such action.
12. Bandwidth and Disk Usage.
Client agrees that bandwidth and disk usage shall not exceed the number of megabytes agreed to in the stipulated measurements outlined on the web site at the time of sign-up (or other measurements of services in the form of gigabytes, terabytes, etc.) per month for the Services ordered by Client on the Order Form (the “Agreed Usage”). Company will monitor Client’s bandwidth and disk usage. Company shall have the right to take corrective action if Client’s bandwidth or disk usage exceeds the Agreed Usage. Such corrective action may include the assessment of additional charges, disconnection or discontinuance of any and all Services, or termination of this Agreement, which actions may be taken in Company’s sole and absolute discretion. If Company takes any corrective action under this section, Client shall not be entitled to a refund of any fees paid in advance prior to such action.
13. Property Rights.
a. Company hereby grants to Client a non-exclusive, non- transferable, royalty-free license, exercisable solely during the term of this Agreement, to use Company technology, products and services solely for the purpose of accessing and using the Services. Client may not use Company’s technology for any purpose other than accessing and using the Services. Except for the rights expressly granted above, this Agreement does not transfer from Company to Client any Company technology, and all rights, titles and interests in and to any Company technology shall remain solely with Company. Client shall not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any of the Company.
b. Company owns all right, title and interest in and to the Services and Company’s trade names, trademarks, service marks, inventions, copyrights, trade secrets, patents, know-how and other intellectual property rights relating to the design, function, marketing, promotion, sale and provision of the Services and the related hardware, software and systems (“Marks”). Noting in this Agreement constitutes a license to Client to use or resell the Marks.
14. Disclaimer of Warranty.
Client agrees to use all Services and any information obtained through or from Company, at Client’s own risk. Client acknowledges and agrees that Company exercises no control over, and accepts no responsibility for, the content of the information passing through Company’s host computers, network hubs and points of presence or the Internet. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED ON AN AS IS, AS AVAILABLE BASIS. NONE OF COMPANY, ITS PARENT, SUBSIDIARY OR AFFILIATED CORPORATIONS, OR ANY OF THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, AFFILIATES, AGENTS, ATTORNEYS, SUPPLIERS, THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS, LICENSORS OR THE LIKE (EACH, AN “COMPANY PERSON”) MAKE ANY WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, FOR THE SERVICES OR ANY EQUIPMENT COMPANY PROVIDES. NO COMPANY PERSON MAKES ANY WARRANTIES THAT THE SERVICES WILL NOT BE INTERRUPTED OR ERROR FREE; NOR DO ANY OF THEM MAKE ANY WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICES OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH THE SERVICES. COMPANY IS NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM CLIENT OR STORED BY CLIENT OR ANY OF CLIENT’S CLIENTS VIA THE SERVICES PROVIDED BY COMPANY. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY ANY COMPANY PERSON, WILL CREATE A WARRANTY; NOR MAY YOU RELY ON ANY SUCH INFORMATION OR ADVICE. THE TERMS OF THIS SECTION SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT.
15. Limited Warranty.
a. Company represents and warrants to Client that the Services will be performed (a) in a manner consistent with industry standards reasonably applicable to the performance thereof; (b) at least at the same level of service as provided by Company generally to its other Clients for the same services; and (c) in compliance in all material respects with the applicable Service Descriptions. Client will be deemed to have accepted such Services unless Client notifies Company, in writing, within thirty (30) days after performance of any Services of any breach of the foregoing warranties. Client’s sole and exclusive remedy, and Company’s sole obligation, for breach of the foregoing warranties shall be for Company, at its option, to re-perform the defective Services at no cost to Client, or, in the event of interruptions to the Services caused by a breach of the foregoing warranties, issue Client a credit in an amount equal to the current monthly service fees pro rated by the number of hours in which the Services have been interrupted. Company may provision the Services from any of its data centers and may from time to time re-provision the Services from different data centers.
b. The foregoing warranties shall not apply to performance issues or defects in the Services (a) caused by factors outside of Company’s reasonable control; (b) that resulted from any actions or inactions of Client or any third parties; or (c) that resulted from Client’s equipment or any third-party equipment not within the sole control of Company. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES OR ANY SOFTWARE PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND COMPANY HEREBY EXPRESSLY DISCLAIMS THE SAME. WITHOUT LIMITING THE FOREGOING, ANY THIRD-PARTY SOFTWARE PROVIDED TO CLIENT HEREUNDER IS PROVIDED “AS IS” WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER. COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE.
16. Limitation of Liability.
a. IN NO EVENT WILL COMPANY’S LIABILITY IN CONNECTION WITH THE SERVICES, ANY SOFTWARE PROVIDED HEREUNDER OR ANY ORDER, WHETHER CAUSED BY FAILURE TO DELIVER, NON-PERFORMANCE, DEFECTS, BREACH OF WARRANTY OR OTHERWISE, EXCEED THE AGGREGATE SERVICE FEES PAID TO COMPANY BY CLIENT DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
b. COMPANY CANNOT GUARANTEE CONTINUOUS SERVICE, SERVICE AT ANY PARTICULAR TIME, INTEGRITY OF DATA, INFORMATION OR CONTENT STORED OR TRANSMITTED VIA THE INTERNET. COMPANY WILL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO, OR ANY CORRUPTION, ERASURE, THEFT, DESTRUCTION, ALTERATION OR INADVERTENT DISCLOSURE OF, DATA, INFORMATION OR CONTENT TRANSMITTED, RECEIVED OR STORED ON ITS SYSTEM.
c. EXCEPT AS EXPRESSLY PROVIDED BELOW, NEITHER PARTY SHALL BE LIABLE IN ANY WAY TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY LOST PROFITS OR REVENUES, LOSS OF USE, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LICENSES OR SERVICES OR SIMILAR ECONOMIC LOSS, OR FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES OF ANY NATURE, WHETHER FORESEEABLE OR NOT, UNDER ANY WARRANTY OR OTHER RIGHT HEREUNDER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON- PERFORMANCE OF ANY ORDER, OR FOR ANY CLAIM AGAINST THE OTHER PARTY BY A THIRD PARTY, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES.
d. The limitations contained in this Section apply to all causes of action in the aggregate, whether based in contract, tort or any other legal theory (including strict liability), other than claims based on fraud or willful misconduct. The limitations contained in Section 15(c) shall not apply to Client’s indemnification obligations.
e. Notwithstanding anything to the contrary in this Agreement, Company’s maximum liability under this Agreement for all damages, losses, costs and causes of actions from any and all claims (whether in contract, tort, including negligence, quasi- contract, statutory or otherwise) shall not exceed the actual dollar amount paid by Client for the Services which gave rise to such damages, losses and causes of actions during the 12-month period prior to the date the damage or loss occurred or the cause of action arose.
f. Client understands, acknowledges and agrees that if Company takes any corrective action under this Agreement because of an action of Client or one if its Clients or a reseller, that corrective action may adversely affect other Clients of Client or other reseller Clients, and Client agrees that Company shall have no liability to Client, any of its Clients or any Reseller Client due to such corrective action by Company.
g. This limitation of liability reflects an informed, voluntary allocation between the parties of the risks (known and unknown) that may exist in connection with this Agreement. The terms of this section shall survive any termination of this Agreement.
Client agrees to indemnify, defend and hold harmless Company and its parent, subsidiary and affiliated companies, and each of their respective officers, directors, employees, shareholders, attorneys and agents (each an “indemnified party” and, collectively, “indemnified parties”) from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable attorney’s fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of or relating to Client’s use of the Services, (ii) any violation by Client of the AUP, (iii) any breach of any representation, warranty or covenant of Client contained in this Agreement or (iv) any acts or omissions of Client. The terms of this section shall survive any termination of this Agreement.
a. Independent Contractor.
Company and Client are independent contractors and nothing contained in this Agreement places Company and Client in the relationship of principal and agent, master and servant, partners or joint ventures. Neither party has, expressly or by implication, or may represent itself as having, any authority to make contracts or enter into any agreements in the name of the other party, or to obligate or bind the other party in any manner whatsoever.
b. Governing Law; Jurisdiction.
Any controversy or claim arising out of or relating to this Agreement, the formation of this Agreement or the breach of this Agreement, including any claim based upon arising from an alleged tort, shall be governed by the substantive laws of the Islamic Republic of Pakistan. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. ANY SUIT, ACTION OR PROCEEDING CONCERNING THIS AGREEMENT MUST BE BROUGHT IN A COURT LOCATED IN KARACHI, PAKISTAN, AND EACH OF THE PARTIES HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS (AND OF THE APPROPRIATE APPELLATE COURTS THEREFROM) IN ANY SUCH SUIT, ACTION OR PROCEEDING AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT ANY SUCH SUIT, ACTION OR PROCEEDING WHICH IS BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
The headings herein are for the purpose of convenience only and are not part of this Agreement.
d. Entire Agreement; Amendments.
This Agreement, including documents incorporated herein by reference, supersedes all prior discussions, negotiations and agreements between the parties with respect to the subject matter hereof, and this Agreement constitutes the sole and entire agreement between the parties with respect to the matters covered hereby. In case of a conflict between this Agreement and any purchase order, service order, work order, confirmation, correspondence or other communication of Client or Company, the terms and conditions of this Agreement shall control. No additional terms or conditions relating to the subject matter of this Agreement shall be effective unless approved in writing by any authorized representative of Client and Company. This Agreement may not be modified or amended except by another agreement in writing executed by the parties hereto; provided, however, that these Terms of Service may be modified from time to time by Company in its sole discretion, which modifications will be effective upon posting to Company’s web site.
All rights and restrictions contained in this Agreement may be exercised and shall be applicable and binding only to the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary so that they will not render this Agreement illegal, invalid or unenforceable. If any provision or portion of any provision of this Agreement shall be held to be illegal, invalid or unenforceable by a court of competent jurisdiction, it is the intention of the parties that the remaining provisions or portions thereof shall constitute their agreement with respect to the subject matter hereof, and all such remaining provisions or portions thereof shall remain in full force and effect.
All notices and demands required or contemplated hereunder by one party to the other shall be in writing and shall be deemed to have been duly made and given upon date of delivery if delivered in person or by an overnight delivery or postal service, upon receipt if delivered by facsimile the receipt of which is confirmed by the recipient, or upon the expiration of five days after the date of posting if mailed by certified mail, postage prepaid, to the addresses or facsimile numbers set forth below the parties’ signatures. Either party may change its address or facsimile number for purposes of this Agreement by notice in writing to the other party as provided herein. Company may give written notice to Client via e-mail to the Client’s e-mail address as maintained in Company’s billing records.
No failure or delay by any party hereto to exercise any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy by any party preclude any other or further exercise thereof or the exercise of any other right or remedy. No express waiver or assent by any party hereto to any breach of or default in any term or condition of this Agreement shall constitute a waiver of or an assent to any succeeding breach of or default in the same or any other term or condition hereof.
h. Assignment; Successors.
Client may not assign or transfer this Agreement or any of its rights or obligations hereunder, without the prior written consent of Company. Any attempted assignment in violation of the foregoing provision shall be null and void and of no force or effect whatsoever. Company may assign its rights and obligations under this Agreement, and may engage subcontractors or agents in performing its duties and exercising its rights hereunder, without the consent of Client. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
i. Limitation of Actions.
No action, regardless of form, arising by reason of or in connection with this Agreement may be brought by either party more than two years after the cause of action has arisen.
If this Agreement is signed manually, it may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. If this Agreement is signed electronically, Company’s records of such execution shall be presumed accurate unless proven otherwise.
k. Force Majeure.
Neither party is liable for any default or delay in the performance of any of its obligations under this Agreement (other than failure to make payments when due) if such default or delay is caused, directly or indirectly, by forces beyond such party’s reasonable control, including, without limitation, fire, flood, acts of God, labor disputes, accidents, acts of war or terrorism, interruptions of transportation or communications, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment or material required for such party to perform its obligations hereunder.
l. No Third-Party Beneficiaries.
Except as otherwise expressly provided in this Agreement, nothing in this Agreement is intended, nor shall anything herein be construed to confer any rights, legal or equitable, in any Person other than the parties hereto and their respective successors and permitted assigns. Notwithstanding the foregoing, Client acknowledges and agrees that any supplier of third-party supplier that is identified as a third-party beneficiary in the Service Description, is an intended third-party beneficiary of the provisions set forth in this Agreement as they relate specifically to its products or services and shall have the right to enforce directly the terms and conditions of this Agreement with respect to its products or services against Client as if it were a party to this Agreement.
m. Government Regulations.
Client may not export, re-export, transfer or make available, whether directly or indirectly, any regulated item or information to anyone outside the United States in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the United States government and any country or organization of nations within whose jurisdiction Client operates or does business.
Client agrees that during the term of this Agreement Company may publicly refer to Client, orally, in writing or by use of Client’s logo on Company’s website as a Client of Company. Any other public reference to Client by Company requires the written consent of Client.