This Master Service Agreement (“Agreement” or “MSA”) dated 01 June 2022 is made by and
between Rackbank Datacentres Private Limited, a company registered under the laws of India with its
primary offices situated at Building No 1, Crystal IT Park (SEZ), Ring Road, Indore – 452014
(hereinafter referred to as “Service Provider” which expression shall include its successors and
assignees) and [●], a company incorporated under laws of [●] and having its primary offices situated
at [●] (hereinafter referred to as the “Customer” which expression shall include its successors and
permitted assignees) shall become effective from [●] (“Effective Date”).
Service Provider and Customer shall individually be referred to as a “Party” and collectively
as “Parties”.
The Parties agree that as of the Effective Date, this Agreement shall constitute the complete exclusive
statement of the agreement between them and that this Agreement shall supersede and replace any
prior agreements between the Parties regarding the subject matter herein.
WHEREAS this Agreement describes the terms and conditions under which the Customer will obtain
Service Provider’s Services (defined later) and the Parties intend that any specific business
transactions will be implemented through individual separately executed Purchase Orders (defined
later) unless otherwise provided under Part A of Schedule I to this Agreement.
WHEREAS the following Schedules are attached hereto and incorporated into this Agreement by this reference:
Schedule I, Part A – Specific Terms Addendum and Schedule 1, Part B (together referred to
as “STA”)Schedule II – Service Level Agreement (“SLA”)
NOW, THEREFORE, in consideration of the mutual promises herein, The service provider and the Customer agree as follows:
1. Definitions:
1.1 “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the entity referred to, but only for so long as such control exists;
1.2 “Agreement” means, collectively, the MSA, any applicable Purchase Order, STA, AUP, SLA, and other addenda which govern the provision of Services mutually agreed between the Parties.
1.3 “Applicable Laws” means all laws/rules/regulations applicable to the Services according to the governing laws of the Governing Law Country mentioned under Section 7 of the STA.
1.4 “AUP” means Service Provider’s Acceptable User Policy found Here!
1.5 “Billing Commencement Date” means the date on which the billing period shall commence as mentioned under Section 9 of STA.
1.6 “Business Day” means Monday through Saturday, excluding public holidays, in the country whose laws govern this Agreement.
1.7 “Confidential Information” means non-public information disclosed by one party to the other in any form that: (i) is designated as “Confidential”; (ii) a reasonable person knows or reasonably should understand to be confidential; or (iii) includes either party’s products, customers, marketing and promotions, know-how, or the negotiated terms of the Agreement; and which is not independently developed by the other party without reference to the other’s Confidential Information or otherwise known to the other party on a non-confidential basis prior to disclosure.
1.8 “Cure Period” shall mean the period mentioned under Section 12 of the STA.
1.9 “Customer Configuration” means an information technology system (hardware, software, and/or other information technology components) that is the subject of the Services or to which the Services relate.
1.10 “Customer Data” means all data which Customer receives, stores, or transmits on or using the Customer Configuration.
1.11 “Due Date” means the date on which a period of thirty (30) days from the date of a valid invoice raised by the Service Provider on the Customer for the Services.
1.12 “End User” means any individual or entity that directly or indirectly through another user: (a) accesses or uses Customer’s Content; or (b) otherwise accesses or uses the Services under Customer’s account. The term “End User” does not include individuals or entities when they are accessing or using the Services or any content under their own account with the Service Provider, rather than under the Customer’s account.
1.13 “Fees” mean the fee payable by the Customer to the Service Provider for the Services as per the terms of this Agreement
1.14 “Hosted System” means a Customer Configuration provided by the Service Provider for the Customer’s use of Services.
1.15 “Initial Term” means the term of this Agreement as specified under Section 13 of STA.
1.16 “Jurisdiction” means the courts of law situated in and having jurisdiction in the city/region mentioned under Section 8 of the STA.
1.17 “Purchase Order(s)” shall mean all purchase orders pertaining to the Services and/or additional/supplemental services, raised by the Customer and duly accepted by the Service Provider under this Agreement.
1.18 “Renewal Term” means the automatic renewal period following the expiry of the Initial Term, for consecutive rolling 90-day terms unless otherwise provided under the STA.
1.19 “Services” shall mean all services provided by the Service Provider to which the Customer subscribes, by the virtue of this Agreement as described under Schedule I, Part B, and/or any subsequent Purchase Orders.
1.20 “Service Level Agreement” or “SLA” means the Services Levels Agreement entered
between the Parties as provided under Schedule II to this Agreement.
1.21 “STA” means the Specific Terms Addendum provided under Schedule I to this Agreement.
1.22 “Tax” means all taxes applicable on the provision of Services as per the Applicable Laws.
2. Terms Governing Provision of Services:
The Parties agree that this Agreement shall be read together with the purchase order(s) for Services
issued by the Customer and accepted by Service Provider, and together they shall constitute the terms and conditions on which the Services shall be provided by Service Provider to the Customer. In case of conflict among different documents or sections, each of the following would prevail over
the subsequent ones:
- STA
- SLA
- AUP
- MSA
- Purchase Order
3. Services:
Subject to the terms and conditions set forth in this Agreement, Service Provider shall provide the Services to the Customer. In case the relevant section in Schedule 1, Part B is blank, the services mentioned in the Purchase Order issued by the Customer and duly accepted by the Service Provider shall constitute Services.
4. Change in Scope of Services:
4.1 Customer may request additional services during the Term by (i) executing a statement of work prepared by the Service Provider (“SOW”); or (ii) by placing a Purchase Order. SOWs and Purchase Orders may also be collectively referred to as “Orders”. SOWs will not be effective unless signed by both Parties. Customer and Service Provider may execute multiple Orders under this Agreement and all Orders will be governed by the terms and conditions of this Agreement. Each additional Order will supplement rather than replace the prior Orders, unless
otherwise stated by the Parties in writing.
4.2 If the Customer requests a change to an existing Order, Service Provider will prepare a change order (“Change Order”) as per the Change Request Procedure provided under Section 14 of
the STA which will be effective when signed by the Parties. Change Orders will amend existing Orders but will not replace them unless otherwise agreed to by the Parties in writing. Service Provider has no obligation to execute, or to amend, any Order, including any Change
Order, with Customer.
5. Lock-In Period:
The Customer acknowledges and accepts that the provision of Services by the Service Provider shall be subject to Lock-In Period as provided under Section 11 of STA. The Customer shall not be entitled
to terminate this Agreement during the Lock-In Period for any reasons whatsoever except for the sole reason as specified under Clause 13.3 (a) and (b). Notwithstanding anything contained herein,
if the Customer terminates this Agreement before the expiry of the Lock-In Period, then the Customer undertakes and agrees to pay the Service Provider, on or before the effective date of termination of this Agreement, an early termination compensation of an amount equivalent to the fee payable for the balance period of such Lock-In Period, calculated as per such effective date of termination of this Agreement.
6. Fees and Payment Terms:
6.1 The fees that the Service Provider shall charge for Services shall be agreed upon by Parties from time to time and set forth in the relevant Purchase Order. Unless otherwise agreed between the Parties in writing, Fees for the Services will begin to accrue on the Billing
Commencement Date. The Service Provider will invoice the Customer for the Services in advance at the beginning of every Billing Cycle, as defined under Section 10 of the STA. The Customer shall pay all undisputed invoices raised by the Customer on or before the Due Date. Partial
months will be billed on a pro-rata basis based on a thirty (30) day month and the Customer will pay for the Services in accordance with this Section.
6.2 Invoices that are not disputed within thirty (30) days of the invoice date are conclusively deemed to be accepted as accurate by the Customer.
6.3 Any overdue amounts owed by the Customer will accrue interest at the lesser of two percent (2%) per month or the highest rate permitted by Applicable Laws.
6.4 In the instance if the actual consumption by the Customer under this Agreement exceeds the mutually agreed consumption levels as per the scope of Services, the Parties agree and affirm that the Service Provider shall be entitled to raise a demand note evidencing such excess
consumption, charging the Customer as per the agreed rates calculated on a pro-rata basis and the Customer undertakes to honor such undisputed demand note(s) and pay the additional fee
charged therein. The Service Provider undertakes that it shall provide the necessary
documents/evidence to establish such excess consumption of Services on part of the
Customer.
6.5 All amounts due to the Service Provider under the Agreement are exclusive of Tax. Service Provider shall invoice all taxes applicable on the Services as per Applicable Laws to the
Customer and Customer shall pay Service Provider any Tax that is due or provide Service
Provider with satisfactory evidence of Customer’s exemption from the Tax in advance of invoicing. Customer shall provide Service Provider with accurate and adequate documentation sufficient to permit Service Provider to determine if any Tax is due.
6.6 All payments to the Service Provider shall be made without any withholding or deduction for any taxes except for local withholding taxes. The customer agrees to provide the Service Provider with accurate factual information and documentation of the Customer’s payment of any such local withholding taxes in a timely manner. Service Provider shall remit such cost to Customer in the form of a credit on the Customer’s outstanding account balance following receipt of sufficient evidence of payment of any such local withholding taxes as per applicable laws.
7. Representations and Undertakings:
7.1 Each Party represents that:
7.1.1 It has the legal right and authority to enter into this Agreement and is not barred by any agency or under Applicable Laws.
7.1.2 All the information and disclosures made with respect to this Agreement are true and accurate.
7.1.3 It has taken all necessary authorizations and approvals for the purpose of executing of this Agreement.
7.2 Customer represents that except to the extent caused by Service Provider’s breach of this
Agreement, (a) Customer is responsible for all activities that occur under the Hosted System,
regardless of whether the activities are authorized by the Customer or undertaken by the
Customer, Customer’s employees or a third party (including Customer’s contractors, agents or
End Users), and (b) Service Provider is not responsible for unauthorized access (not
attributable to the Service Provider) to Customer’s Hosted System.
7.3 Customer further represents that it owns and/or has the lawful right to possess contents,
materials and the data (including the Customer Data) which runs on the Services or causes to
interface with the Services or which is uploaded for the Services or posted or submitted or
otherwise used during availing of the Services by the Customer and such contents do not
violate any terms of this Agreement or any Applicable Laws. Customer is solely responsible
for the development, content, operation, maintenance, and use of Customer Data and content
on the Hosted System.
7.4 Customer agrees to utilize the Services strictly in accordance with the AUP. Service Provider
shall be entitled to modify the AUP from time to time and such amended AUP, made available
at the website of Service Provider, shall be applicable. In all events where the Parties have
mutually agreed to modify the terms of the AUP and such modifications shall be captured
under this Agreement, the terms so modified shall prevail over the AUP and shall be read
harmoniously with the terms of the AUP. If no such modifications are mentioned under this
Agreement, then the standard AUP shall remain applicable.
7.5 Service Provider represents that the Services provided under this Agreement are not in
violation of any Applicable Laws and undertakes to provide Services in accordance with this
Agreement.
7.6 Service Provider does not provide any support or services to End Users unless Service Provider has a separate agreement with the Customer stating otherwise or an End User obligating us to provide such support or services.
8. Confidentiality:
8.1 Each Party (“Receiving Party”) agrees that it will not disclose to third party/ies any information
belonging to the other Party (“Disclosing Party”) which is provided to it by the Disclosing
Party before, during and after the execution of this Agreement. All such information belonging
to the Disclosing Party and provided to the Receiving Party shall be considered Confidential
Information. Confidential Information includes prices, quotations, negotiated issues made
before the execution of the Agreement, server configuration, design and other related
information and information relating to the contents to be transmitted to and from the servers
of Service Provider or Customer. All information provided by a Party to the other shall be
considered confidential even if it is not conspicuously marked as confidential.
8.2 Notwithstanding the foregoing, neither Party shall have any obligations regarding non-use or
non-disclosure of any confidential information which (i) is already known to the Receiving
Party at the time of disclosure; (ii) is or becomes part of the public domain without violation
of the terms hereof; (iii) is shown by conclusive documentary evidence to have been developed
independently by the Receiving Party without violation of the terms hereof; (iv) is disclosed
by the Disclosing Party to a third party without similar restrictions on the third party’s rights;
or (v) is received from a third party without similar restrictions and without violation of this
or a similar agreement.
8.3 Each Party agrees not to disclose any of the Confidential information obtained from the other
under any circumstances to any third party unless it is so required by law to be disclosed or if
it falls under any of the exceptions mentioned in Clause 8.2 above. Any disclosure to be made
by the Customer as per the requirements of law shall be so disclosed on providing advance
notice to Service Provider with the reasons for such disclosures.
8.4 The terms and conditions of this Agreement, and all annexes, attachments, and amendments
hereto and thereto shall be considered Confidential Information. No news release, public announcement, advertisement, or publicity concerning this Agreement and/or its contents
herein shall be made by either Party without the prior written approval of the other Party unless
such disclosure or public announcement is required by applicable law. Notwithstanding any
provision to the contrary, Service Provider shall be entitled to freely disclose the information
that it is providing / has provided the Services to the Customer in its marketing, promotion or
other materials.
9. Temporary Suspension of Services:
9.1 Service Provider may suspend or limit Customer’s or any End User’s right to access or use any portion or all of the Services immediately upon prompt notice to the Customer if the Service Provider determines:
9.1.1 Customer’s or an End User’s use of the Services;
i. poses an immediate security risk to the Hosted System or any third-party,
ii. could adversely impact Service Provider’s systems, the Services or the systems or
content of any other customer,
iii. could be fraudulent or be utilized to cause fraud or be illegal or be utilized to aid or abet illegal activities;
9.1.2 Customer is in breach of this Agreement and fails to cure such breach within a period of ten (10) days (or such mutually agreeable period) of Service Provider notifying the
Customer of such breach;
9.1.3 Customer is in breach of its payment obligations under Section 5 and fails to cure such breach within the Cure Period.
9.1.4 In all events where such suspension or limitation is required by law.
In all events of suspension under Clause 9.1(a)(i) and Clause 9.1(a)(ii), the Service Provider must
furnish a detailed Root Cause Analysis (RCA) Report to the Customer evidencing and justifying
such reason for suspension and the cause for such suspension attributable to the acts and/or
omissions of the Customer/End User. Further, Service Provider will limit a suspension and/or
limitation in time and scope as reasonably possible under the circumstances
9.2 Effect of Suspension.
In the event Service Provider suspends Customer’s right to access or use any portion or all of
the Services under Clause 9.1 above:
a. Customer remains responsible for all fees and charges the Customer incurs during the period of suspension; and
b. Customer will not be entitled to any service credits as provided under the SLA for such period of suspension.
10. Data Privacy:
10.1 The Service Provider shall without limiting Clause 15 or Customer’s obligations under
Clause 7.3, implement and undertake reasonable and appropriate measures designed to help the Customer secure Customer Data against accidental or unlawful loss, access or disclosure.
10.2 All data privacy laws/rules as per the laws of the Governing Law Country (defined under
Section 7 of STA) shall be applicable to the Services. Further, the Parties agree and affirm that
in all cases where the Customer Services pertain to colocation services only, the Service
Provider shall not have any access to Customer Data. Hence, this clause will not be applicable
in such cases.
10.3 The Customer acknowledges that the Service Provider may require to disclose information
and data provided to it by Customer, including information that identifies an individual or a
person either directly or indirectly and alone or in combination with other information
available (such identifying information being referred to as “Personal Information”), such
as a person’s name, phone number and email address, to Service Provider’s affiliates and
associates to carry out Services under this Agreement. Service Provider may also disclose
Personal Information obtained from Customer if required (i) under applicable laws including
in connection with law enforcement, fraud prevention, or other legal action, or as required by
law or regulation, or (ii) for optimisation of Services or (iii) if it reasonably considers it
necessary to protect itself, its customers, or the public; All disclosures under this Clause shall
be subject to prior intimation of such disclosure by the Service Provider to the Customer
unless specifically barred thereto.
10.4 The Customer shall be deemed to have consented to disclosure of Personal Information
by the Service Provider in the instances mentioned under Clause 10.3 above by providing such the Personal information to the Service Provider in the course of Service Provider’s performance
of the Services.
10.5 The Service Provider hereby undertakes that the Service Provider shall comply with all
applicable data privacy laws while handling Personal Information belonging to the Customer.
All such disclosures and compliances will be governed and monitored by the Service
Provider’s dedicated Committee on GDPR and Data Protection Laws which shall ensure
Service Provider’s compliance with such applicable data protection laws. However, the Parties
agree and affirm unequivocally due to the nature of the Services, the Service Provider does not
have any access to Customer Data and hence cannot be held liable for any losses/damages that
the Customer may suffer on account of Customer Data.
11. Indemnity
11.1 Service Provider will indemnify, defend and hold harmless the Customer including their,
directors, employees, agents and contractors from any and all liability, damages, costs and
expenses (including reasonable attorneys’ fees and expenses) that the Customer may incur as
a result of (a) gross negligence or wilful misconduct of the Service Provider solely, in provision
of Services to the Customer; and (b) .any third-party claim alleging that the Services infringe
or misappropriate that third party’s intellectual property rights, and undertakes to pay the
amount of any adverse final judgment or settlement.
11.2 Customer will defend, indemnify, and hold harmless the Service Provider, its Affiliates
and licensors, and each of their respective employees, officers, directors, and representatives
from and against any Losses arising out of or relating to any third-party claim concerning: (a)
Customer’s or any End Users’ use of the Services (including any activities and use by
Customer’s employees and personnel); (b) violation of this Agreement or applicable law by
the Customer or Customer’s End Users; or (c) a dispute between Customer and any of its End
User (d) an allegation that any of Customer Content infringes or misappropriates that third
party’s intellectual property rights, and will pay the amount of any adverse final judgment or
settlement; except in cases where such third party claim is solely attributable to gross
negligence or wilful misconduct on part of the Service Provider.
11.3 The obligations under this Section 11 will apply only if the party seeking defense or
indemnity: (a) gives the other party prompt written notice of the claim; (b) permits the other
party to control the defense and settlement of the claim; and (c) reasonably cooperates with
the other party (at the other party’s expense) in the defense and settlement of the claim. In no
event will a party agree to any settlement of any claim that involves any commitment, other
than the payment of money, without the written consent of the other party.
12. Limitation on damage
12.1 Notwithstanding anything in the Agreement to the contrary:
a. Either Party’s liability arising out of any loss or damages for which limitation is expressly prohibited by Applicable Laws, shall be unlimited.
b. Subject to Clause 12.1(a), the maximum aggregate monetary liability of either Party and
any of its representatives in connection with the Services or this Agreement under any
theory of law shall not exceed the actual damages incurred up to the greater of: (i) an
amount equal to six times the Fees payable by Customer for the Services in the first month
of the Initial Term, or (ii) the total amount paid by Customer to the Service Provider for
the Services that are the subject of the claim in the 12 months immediately preceding the
event(s) that first gave rise to the claim.
12.2 Neither party (nor any of its representatives) is liable to the other party for any indirect,
special, incidental, exemplary, or consequential loss or damages of any kind. Neither party is
liable for any loss that could have been avoided by the damaged party’s use of reasonable
diligence, even if the party responsible for the damages has been advised or should be aware
of the possibility of such damages. In no event shall either party be liable to the other for any
punitive damages; or for any loss of profits, data, revenue, business opportunities, customers,
contracts, goodwill, or reputation.
12.3 As an essential part of the Agreement, the liquidated damages payable under the SLA(s) shall
be the creditsstated in any applicable SLA(s) which are Customer’s sole and exclusive remedy
for Service Provider’s failure to meet those guarantees for which credits are provided; and the
parties agree that the credits are not a penalty, are fair and reasonable and represent a
reasonable estimate of loss that may reasonably be anticipated from any breach. The maximum
credit(s) for failures to meet any applicable SLA(s) for any calendar month shall not exceed
100% of the then current monthly recurring Fee for the Services. Customer is not entitled to a
credit if Customer is in breach of the Agreement at the time of the occurrence of the event
giving rise to the credit, until such time as Customer has remedied the breach. No credit shall
be due if the credit would not have accrued but for Customer’s action or omission.
13. Term and Termination
13.1 Term: The term of this Agreement shall commence on the Effective Date and shall remain
valid till the expiry of Initial Term and any Renewal Term thereto, unless terminated under
Clause 13 of this Agreement.
13.2 Termination for Convenience: Either Party may terminate this Agreement for any reason
by providing the other Party, a written notice of termination at least ninety (90) days prior
to such date of termination.
13.3 Termination for Cause:
a. Either party may terminate this Agreement for cause if the other party is in material
breach of this Agreement and if the other party fails to cure the material breach within the Cure Period.
b. Customer may terminate this Agreement if the Service Provider fails to provide
Services as agreed between the Parties under this Agreement.
c. Service Provider may terminate this Agreement upon the breach of monetary terms under Clause 5 above fails to cure such breach within the Cure Period.
14. Effects of Termination
The Parties agree and affirm that upon the date of termination/expiry of this Agreement:
a. Except as provided in Sub-Clause (d) hereunder, all rights of the Customer under this Agreement immediately terminate.
b. Customer shall remain responsible for all fees and charges payable through the date of termination for Services rendered by the Service Provider.
c. Either Party shall immediately return/destroy all Confidential Information belonging to the other party that may be in its possession as instructed by such party.
d. The Service Provider must allow the Customer to retrieve any data/remove any physical
assets/equipment belonging to the Customer within a period of ten (10) days from the date of termination, provided that the Customer has cleared all outstanding dues payable to the Service Provider till such date of termination.
e. Termination shall not affect the rights and liabilities of a Party that have accrued before the effective date of termination.
15. DISCLAIMER
THE SERVICES ARE PROVIDED “AS IS.” EXCEPT TO THE EXTENT PROHIBITED BY
LAW, OR TO THE EXTENT ANY STATUTORY RIGHTS APPLY THAT CANNOT BE
EXCLUDED, LIMITED OR WAIVED, SERVICE PROVIDER AND ITS AFFILIATES (A)
MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS,
IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SERVICE OFFERINGS OR
THE THIRD-PARTY CONTENT, AND (B) DISCLAIM ALL WARRANTIES, INCLUDING
ANY IMPLIED OR EXPRESS WARRANTIES (I) OF MERCHANTABILITY,
SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-
INFRINGEMENT, OR QUIET ENJOYMENT, (II) ARISING OUT OF ANY COURSE OF
DEALING OR USAGE OF TRADE, (III) THAT THE SERVICE OFFERINGS OR THIRD-
PARTY CONTENT WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL
COMPONENTS, AND (IV) THAT ANY CONTENT WILL BE SECURE OR NOT OTHERWISE
LOST OR ALTERED.
16. Notices
16.1 Customer’s routine communications to the Service Provider regarding the Services should
be sent to Customer’s Account Manager via authorised e-mail ID of the Customer. To serve
any notice/communications regarding termination of the Agreement for breach,
indemnification, or other legal matter, Customer shall send the same via electronic mail
and/or through postal service to the address mentioned under Section 3 of theSTA.
16.2 All communications by the Service Provider with respect to this Agreement should be sent to the Customer via electronic mail/fax/registered post/courier at the address or email address mentioned under Section 6 of the STA.
17. Force Majeure
A Party shall not be liable to the other Party if, and to the extent, that the performance of any of its
obligations under this Agreement (excluding obligations in relation to the Customer’s payment for
Services already rendered and/or being rendered during the Force Majeure event) is prevented,
restricted, delayed or interfered with due to circumstances beyond the reasonable control of that
Party, including, but not limited to, circumstances such as change in legislation, fire, flood,
explosion, epidemic, accident, act of God, war, riot, terrorist activities, strike, lockout and/or act of
government (Force Majeure).
The Party claiming an event of Force Majeure as aforesaid shall promptly notify the other Party in
writing, and provide full particulars of the event of Force Majeure and the date of first occurrence
thereof, as soon as possible after the event and also keep the other Party informed of any further
developments. The Party so affected shall use its commercially reasonable efforts to remove the
cause of non-performance, and shall, unless otherwise agreed to by the other Party in writing,
resume performance hereunder with utmost dispatch when such cause of non-performance is
removed.
18. Governing Law and Dispute Resolution
18.1 This Agreement shall be governed by the laws of the region/country as provided under Section 7 of the STA.
18.2 In case of any disagreement or dispute between the Customer and the Service Provider, the
dispute will be resolved in the manner as outlined hereunder.
The Customer and the Service Provider shall make every effort to resolve amicably by direct
informal negotiations any disagreement or dispute between them on any matter connected
with this Agreement or in regard to the interpretation thereof. If, after thirty (30) days from
the commencement of informal negotiations, the Customer and Service Provider have not
been able to resolve the dispute amicably, such differences and disputes shall be referred, at
the option of either Party, to arbitration by a single arbitrator to be mutually agreed upon
between the Parties. In the event of no consensus, the courts of the relevant Jurisdiction shall
appoint an Arbitrator.
Such arbitration will be conducted in accordance with the prevailing arbitration laws/rules
of such country whose laws govern this Agreement. The arbitration shall take place in the
Jurisdiction city, unless otherwise mutually agreed by the Parties and shall be conducted in
the English language.
19. Assignment/Subcontractors
Neither party shall assign this Agreement and/or any Purchase Orders without the prior consent of
the other party, except to an Affiliate or successor as part of a corporate reorganization or a sale of
some or all of its business, provided the assigning party notifies the other party of such change of
control. The Service Provider may use its Affiliates or subcontractors to perform all or any part of
the Services, but the Service Provider remains responsible under the Agreement for work
performed by its Affiliates and subcontractors to the same extent as if the Service Provider
performed the Services itself.
20. Ownership
20.1 Each Party acknowledges and agrees that the other Party retains exclusive ownership and
rights in its trade secrets, inventions, copyrights, and other intellectual property and any
hardware provided by such Party in relation to this Agreement.
20.2 Neither Party shall remove or misuse or modify any copyright, trade mark or any other
proprietary right of the other Party which is known by virtue of this Agreement, in any
circumstances.
21. Declaration with regard to Internet Bandwidth and Public IPs
The Service Provider hereby declares that in all instances where Internet Bandwidth and/or public
IPs are provided to the Customer as a part of the Services, such Internet Bandwidth and/or public IPs
are sourced through Tata Communications (formerly VSNL) and Vodafone India Limited, a ‘Class
A’ ISP License holding company incorporated under the Companies Act, 1956. Tata
Communications (formerly VSNL) and Vodafone India Limited are the Service Provider, owned and
managed by the same promoter group as the Service Provider. All billings on account of the said
Internet Bandwidth and/or public IPs that may form the part of the Services under this Agreement,
are done by the Service Provider on behalf of Tata Communications (formerly VSNL) and Vodafone
India Limited.
22. Miscellaneous
22.1 The provisions that by their nature are intended to survive expiration or termination of the
Agreement shall survive expiration or termination of this MSA including all terms of the Agreement requiring Customer to pay any Fees for Services provided prior to the time of
expiration or termination.
22.2 The Agreement constitutes the complete and exclusive understanding between the Parties
regarding its subject matter and supersedes and replaces any prior or contemporaneous
representation(s), agreement(s) or understanding(s), written or oral.
22.3 Amendment/Modification of this Agreement: This Agreement may be amended only by the
written agreement of both Parties.
22.4 Except where otherwise expressly stated herein, and subject to the limitations set forth under
this Agreement, the rights and remedies provided for herein are cumulative and not exclusive
of any rights or remedies that a Party would otherwise have.
22.5 Each Party recognizes and agrees that the warranty disclaimers and liability and remedy
limitations in this Agreement are material bargained for bases of this Agreement and that they
have been taken into account and reflected in determining the consideration to be given by
each Party under this Agreement and in the decision by each Party to enter into this Agreement.
22.6 Service Provider and Customer are independent contractors and this Agreement will not
establish any relationship of partnership, joist venture, employment, franchise or agency
between the Service Provider and Customer. Neither the Service Provider 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.
22.7 The Parties agree that there will be no third party beneficiaries to this Agreement, including,
but not limited to any Authorized Person, end user, customer or the insurance providers for
either Party.
22.8 No waiver of any breach of any provision of this Agreement will constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver will be effective unless made in writing and signed by an authorized representative of
the waiving Party.
CONTACT US
If you ever come to know about any breach security of this site, please contact us immediately at our Toll-Free Number: 1800-102-0088 or send a mail on [email protected].