InfraStack-Labs Technologies Private Limited provides Cloud Services (IaaS, PaaS, SaaS) and other Data Center infrastaructure Related services together with such other services and consulting and Training as are agreed between it and the client.
1.1 These terms and conditions (“Terms”) together with the following supplementary documents make up the contract that is formed between Client and InfraStack-Labs Technologies Private Limited on acceptance of an Order (the “Agreement”) from client.
These terms and conditions set out the basis on which InfraStack-Labs Technologies Private Limited offer services and should be read and agreed to carefully.
This agreement is supported by varios Supporting policy document as listed below and must be read as part of the the this document.
Below Supplementary Terms to be read as part and parcel of the Agreement when provided and wherever applicable to fullenst extent.
1.1.1 Third Party Software Terms. The Services include software components provided to InfraStack-Labs Technologies Private Limited by other companies and these companies require certain terms and conditions to be included in the Agreement.
1.1.2 Service Descriptions. These documents describe the features and functions of the Services.
1.1.3 Service Level Terms and Policies(SLA Terms). These documents describes the performance and other metrics applicable to the Services.
1.1.4 Pricing Terms. These documents describes Prices and charges application for Services provided by InfraStack-Labs Technologies Private Limited.
1.1.5 Accepted Usability Practices Policy. This policy prohibits certain types of activity e.g. hacking and spamming, and sets out general rules that apply to use of the Services.
1.2 The Agreement governs InfraStack-Labs Technologies Private Limited’s provision and Client’s use of the Services.
2. Ordering Services Policies
2.1 Client may order for Services by submitting orders on-line, in electronic or paper format and must include the applicable Fees,if any, and be in a form approved by InfraStack-Labs Technologies Private Limited.
2.2 An Order is only binding on InfraStack-Labs Technologies Private Limited once accepted as follows:
(a) in the case of Client’s first Order for Services, the earlier of when InfraStack-Labs Technologies Private Limited: (i) sends the Welcome Pack containing Credentials to Client by email; and
(b) in the case of subsequent Orders for Services and Orders for Optional Services, the earlier of when InfraStack-Labs Technologies Private Limited: (i) sends to Client an email confirming acceptance of the Order; and (ii) commences performing the applicable Services.
2.3 In its first applicable Order for Services Client will designate one Administrator. The initial set of login credential will be sent to administrator as part of welcome mail. The Administrator is authorised by Client to provision Services, order additional Services, manage Client’s use of Services, appoint Sub-Administrators and issue Credentials. Client may also automate the provisioning, ordering and management of Services through the API,if available. Any and all actions, requests and Orders made using Credentials or through the API will be deemed to have been authorised by Client and Client will be responsible for the associated Fees.
2.4 The Administrator may designate one or more Sub-Administrators. Sub-Administrators may perform all acts of the Administrator. Appointment of Sub-Administrators may constitute additional Usage and be subject to additional Fees as described in the Usage Pricing Terms.
2.5 Client is responsible for: (i) maintaining the security of Credentials; (ii) ensuring Credentials are only used by the Administrator or Sub-Administrators; and (ii) the acts and omissions of the Administrator, all Sub-Administrators and any person using Client’s Credentials.
2.6 Client will notify InfraStack-Labs Technologies Private Limited immediately in writing if it becomes aware of: (i) any loss, theft, or unauthorised use of Credentials; or (ii) any breach of this Agreement by the Administrator or a Sub-Administrator.
2.7 Following acceptance of an Order InfraStack-Labs Technologies Private Limited will perform the Services from the Service Commencement Date.
2.8 Client will access the Services from, and store and process all Client Content in, the Location and Geography designated in the Order,if any specified
2.9 Locations and Geographies may be changed upon Client’s request for change(s) through the Service Portal,if applicable.
2.10 Client acknowledges that the addition of any Locations may affect the calculation of Client’s Usage, Fees and Service Level Credits and decision of InfraStack-Labs Technologies Private Limited will be binding and acceptable to client, if approved and agreed upon by both parties.
3. Services Access Policies
3.1 InfraStack-Labs Technologies Private Limited grants to Client a limited, non-exclusive, non-transferable, non-sublicenseable right and license during the term of each applicable Order for Client to access and use the Services, Subject to: (i) Client’s payment of all Fees; and (ii) the terms and conditions of the Agreement, as described in the applicable Service Description(s). This license includes the right to use the Documentation and APIs in connection with the Services.
3.2 Except as expressly permitted by the Agreement or otherwise by InfraStack-Labs Technologies Private Limited , Client will not and will ensure that its administrators or Users do not:
(a) reproduce, download, frame, mirror, or create derivative works from the Services;
(b) decompile, disassemble, or otherwise reverse engineer any Services;
(c) license, sub-license, sell, rent, lease, transfer, assign, distribute, disclose, or otherwise make available any Services to any third party, or use any Services on a service bureau basis however, nothing in this paragraph (d) prohibits Client from providing access to any Client Content to Users;
(d) access or use any Services in violation of the Authorised Usability Practices Policy of InfraStack-Labs Technologies Private Limited or any law or regulation;
(e) remove, obscure or alter any trademarks, brand names, or other proprietary notices appearing on or contained within the Third Party Software, APIs or any of the Services;
3.3 Client may access the Services either through a web-based user interface or with a Client Application using the API. InfraStack-Labs Technologies Private Limited may modify and republish the API from time to time and Client must ensure that Client Applications and systems are compatible with the then-current API. If InfraStack-Labs Technologies Private Limited removes or changes a material feature or function of the API, InfraStack-Labs Technologies Private Limited will use commercially reasonable efforts to maintain backwards compatibility with the previous version of the API as possible and viable, from the date of the change.
3.4 The Services may include Third Party Software in which case the Third Party Software Terms will apply. If there is any conflict or inconsistency between the Third Party Software Terms and the other documents comprising this Agreement with respect to Third Party Software then the Third Party Software Terms will prevail to the extent of the conflict or inconsistency.
3.5 As between the parties, InfraStack-Labs Technologies Private Limited is the owner of all right, title and interest (including intellectual property rights) in and to the Services.
4. Content and Software Hosting
4.1 Client may install, host, process and use Client Content on the Services. Client is solely responsible for: (i) ensuring that Client has the necessary rights, permissions and licences to install, host, process and use the Client Content on the Services; (ii) the acts and omissions of any Users of the Client Content; (iii) the functionality and operation of the Client Content; and (iv) the support and maintenance arrangements for the Client Content.
4.2 As between the parties, Client is the owner of all right, title and interest (including intellectual property rights) in and to the Client Content. Client grants to InfraStack-Labs Technologies Private Limited a limited, non-exclusive, right and license during the term of each applicable Order to host, process and use the Client Content solely in connection with providing the Services and performing its obligations under the Agreement.
5. Service Levels Terms
5.1 The Service Levels are set out in the Service Level Terms of respective services. Client is entitled to Service Level Credits as set out in the Service Level Terms and this Section of Agreement. Failure to meet Service Levels is not a breach of the Agreement by InfraStack-Labs Technologies Private Limited and Service Level Credits are Client’s sole and exclusive remedy and InfraStack-Labs Technologies Private Limited’s sole and exclusive liability for failure to meet Service Levels.
5.2 Client must request Service Level Credits in writing by sending an email to email@example.com within one week of the first event giving rise to the applicable Service Level Failure. Following receipt of the request, InfraStack-Labs Technologies Private Limited will review the request and determine whether Client is eligible for the applicable Service Level Credit.
If InfraStack-Labs Technologies Private Limited determines that Client is eligible for the Service Level Credit, then InfraStack-Labs Technologies Private Limited will apply the Service Level Credit to Client’s invoice for the calendar month following the calendar month in which Client requested the Service Level Credit.
If InfraStack-Labs Technologies Private Limited determines that Client is not eligible for the Service Level Credit and Client then disputes this determination, then if the dispute is resolved in Client’s favour, InfraStack-Labs Technologies Private Limited will apply the Service Level Credit to Client’s invoice for the calendar month following the calendar month in which the dispute is resolved.
The invoice to which the Service Level Credit is applied by InfraStack-Labs Technologies Private Limited can be called the “Service Level Credit Invoice” for reference purpose.
5.3 Service Level Credits may only be applied against the Service Level Credit Invoice, may not be applied against any other invoices and may not be redeemed for cash. Following expiration or termination of the applicable Order, Service Level Credits that have not been redeemed will be treated as follows:
(a) if the Order expired in accordance with its terms, then Client will be entitled to apply the unused Service Level Credit against purchases of Services by Client during the 3 months following the month during which the Service Level Credit was incurred;
(b) if Client terminated the Order for InfraStack-Labs Technologies Private Limited’s breach in accordance with the Terms, then InfraStack-Labs Technologies Private Limited will pay the Service Level Credit to Client by way of purchases of Services by Client during the 3 months following the month during which the Service Level Credit was incurred; and
(c) if InfraStack-Labs Technologies Private Limited terminated the Order for Client’s breach, then on termination, the Service Level Credit will expire and will no longer be redeemable by Client.
5.4 Any Service Level Credits not requested or not redeemed by Client will automatically expire 3 months after the Service Level Credit was incurred.
5.5 In order to be eligible for Service Level Credits, Client must be current on all outstanding invoices both at the time the Service Level Credits would otherwise have accrued and at the time the Service Level Credits would otherwise be payable.
6. Regular Maintenance and Community Forums
6.1 InfraStack-Labs Technologies Private Limited performs scheduled maintenance on the Services including maintenance related to the Software and other equipment and materials used for providing the Services.
Occasionally InfraStack-Labs Technologies Private Limited may need to perform emergency or unscheduled maintenance. Maintenance may cause interruptions to the Services although InfraStack-Labs Technologies Private Limited will use reasonable efforts to inform Client in advance about maintenance related Service interruptions including the likely duration and same will not be considered as a breach of the terms of service level agreements.
6.2 InfraStack-Labs Technologies Private Limited will provide Client with access to InfraStack-Labs Technologies Private Limited’s online community forum like Company blog and Private Youtube channels. Client may use these channels to ask questions about the Services and may use the Community Forum to receive online Technical Support and, in some circumstances, guidance for self-administering Incident Corrections.
Client acknowledges and agrees that all content that Client posts to the Community Forums is non-confidential. InfraStack-Labs Technologies Private Limited reserves the right to review and remove any content posted to the Community Forum, including any content that InfraStack-Labs Technologies Private Limited believes, in its sole discretion, to be:
(a) illegal, inappropriate or in violation of the AUP; or
(b) the subject matter of a complaint by any client.
6.3 Client will retain ownership of content that Client posts to the Community Forum (“Client Community Content”). Client grants to InfraStack-Labs Technologies Private Limited a worldwide, non-exclusive, transferable, sub-licenseable (including to other clients in the Community Forum), royalty-free right and license to use, reproduce, publicly display, distribute and otherwise exploit the content. Client may use the content posted in the Community Forum during the term of this Agreement solely for the purpose of accessing and using the Services.
6.4 InfraStack-Labs Technologies Private Limited makes no warranty with respect to the accuracy, completeness or usefulness of any content found on the Community Forum, whether posted by InfraStack-Labs Technologies Private Limited or other clients. Client further agrees that InfraStack-Labs Technologies Private Limited is not liable for any losses or damages Client may suffer resulting from:
(a) any use or access by InfraStack-Labs Technologies Private Limited or other clients of Client Community Content; and
(b) any content posted to the Community Forums by InfraStack-Labs Technologies Private Limited or clients.
7. Confidentiality Impositions
7.1 “Confidential Information” means all information (whether in written, oral, electronic, or other form) that is disclosed or otherwise made available by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) in connection with this Agreement or the Services. To be Confidential Information the information must be identified as being confidential or proprietary or a reasonable person would assume, under the circumstances, that it is confidential. Confidential Information of InfraStack-Labs Technologies Private Limited includes any non-public Services, Documentation and pricing information. Confidential Information of Client includes all Client Content(except as mentioned in section 6 in this agreement) . The Agreement is deemed to be the Confidential Information of both parties. Confidential Information does not include information that: (i) is lawfully in the public domain when the Receiving Party received it; (ii) lawfully becomes part of the public domain afterwards; (iii) was already known to the Receiving Party before receiving it from the Disclosing Party; (iv) is given to the Receiving Party by a third person who is allowed to reveal it; or (iv) is independently created by the Receiving Party without reference to the Disclosing Party’s Confidential Information.
7.2 Subject to Section 8.4, the Receiving Party agrees to protect the interests of the Disclosing Party in the Confidential Information and will: (i) not disclose the Confidential Information except to its employees, contractors or agents that need it, and only give them as much as they need; (ii) protect the Confidential Information of the Disclosing Party with at least the same degree of care it uses to protect its own Confidential Information; (iii) get promises of confidentiality from those employees, contractors or agents who need access to the Confidential Information; (iv) not reveal the Confidential Information to anyone else; and (v) not use it for any purposes other than as required by the Services and this Agreement.
7.3 The Receiving Party must promptly advise the Disclosing Party in writing of any loss, wrongful disclosure or access, breach of confidentiality or misappropriation or misuse of the Disclosing Party’s Confidential Information of which the Receiving Party becomes aware.
7.4 The Receiving Party may disclose Confidential Information if required by law or judicial or other order. However, the Receiving Party must: (i) take all reasonable steps to promptly notify the Disclosing Party of the disclosure; (ii) allow intervention by the Disclosing Party; and (iii) cooperate with the Disclosing Party to contest or minimise the extent of the disclosure obligation.
7.5 Each party acknowledges that damages may not be a sufficient remedy for unauthorised disclosure or use of the other party’s Confidential Information and that the other party will be entitled, without waiving any other rights or remedies, to seek injunctive or other equitable relief to protect its Confidential Information.
8. Data Privacy and Security obligations
8.1 Client has control over its use of the Services, including options to install third party software, implement security controls including encryption, establish and enforce user access controls.
Client acknowledges that it is responsible for using the Services properly and for determining and taking appropriate technical and organisational measures to maintain security, protection, and backup of Client Content. This may include: (i) the use of encryption technology to protect Client Content from unauthorised access; and (ii) routine back-up and archiving of Client Content. Client will comply with all applicable laws with respect to Client Content and Client’s use of the Services.
8.2 Subject to section 8.3, Client acknowledges that the Services are designed and operate so that InfraStack-Labs Technologies Private Limited does not have possession of, control over or access to Client Content and InfraStack-Labs Technologies Private Limited has no power or ability to manipulate, modify or deal in Client Content.
8.3 The functionality and operation of certain Services do involve InfraStack-Labs Technologies Private Limited having limited and controlled access to Client Content including: (i) where Client requests support from InfraStack-Labs Technologies Private Limited that requires access to Client Content (in which case, Client may be required to issue temporary Credentials to InfraStack-Labs Technologies Private Limited to permit that access); (ii) the Tech Operations Services like software upgrade, patching and maintenance and so on; and (iii) Cloud Services .
8.4 To the extent InfraStack-Labs Technologies Private Limited does have access to Client Content, InfraStack-Labs Technologies Private Limited will maintain appropriate technical and organisational measures to protect the Client Content in its possession or under its control against accidental, unauthorised or unlawful access, acquisition, processing, disclosure, alteration, loss or destruction.
8.5 Client agrees that unless backup services are included in the applicable Order as part of Optional Services, InfraStack-Labs Technologies Private Limited will not create, maintain or implement backups of any Client Content and that Client is solely responsible for all backup, archiving and data retention of Client Content.
9. Fees and Payment
9.1 Client will pay the Fees to InfraStack-Labs Technologies Private Limited. Unless otherwise specified in the applicable Order: (i) Fees are due immediately upon invoice; and (ii) Client will make all payments by Electronic mode of payment unless otherwise agreed upon.
9.2 Fees are calculated based on the Usage Pricing Terms in effect on the date of each applicable invoice. Any changes to the Usage Pricing Terms will take effect from the date of the change announced by InfraStack-Labs Technologies Private Limited.
9.3 The following types of Fees (not limiting to the list below) apply to the Services:
(a) Set-up Fee: A one-time Fee for activation of Services as described in the applicable Order.
(b) Usage Fees: The Fees payable by Client each month based on Client’s Usage as agreed upon during the registration of services.
(c) For Usage-Based Plans, InfraStack-Labs Technologies Private Limited will deliver an invoice each month for the Usage Fees that accrued in the previous billing month. The date on which the first and each subsequent invoice will be delivered depends on the Effective Date of the applicable Order.
(d) In case of the usage being limited to part of the month the usage fees will be adjusted pro-rata for the usage duration of the then current calendar month.
9.4 Any Client-specific payment terms, including currency, dates and manner of payment, interest rates on late payment, and aplicable taxes, will be described in the applicable Order during and upon completion of regstration of services.
9.5 InfraStack-Labs Technologies Private Limited may charge Client additional Fees on a time and materials basis at InfraStack-Labs Technologies Private Limited’s then current rates for any of the following:
(i) re-establishment of Services, after suspension due to whatsever reason, or other assistance requested by Client outside the scope of the applicable Order; or (ii) Support, where InfraStack-Labs Technologies Private Limited determines on reasonable grounds that Client’s request was not related to an Incident.
9.6 Where InfraStack-Labs Technologies Private Limited adds a new offering to the Services (which was (i) not available and (ii) not included in the Usage Pricing Terms on the Effective Date of the applicable Order) the Fees payable for such new offering will be based on the then current Usage Pricing Terms, regardless of whether Client was a user for previously existing Services to whihc additions were made.
9.7 Notwithstanding anything to the contrary in this Agreement, InfraStack-Labs Technologies Private Limited may increase the Fees in an Order (including for Minimum Commitment Plans) if the costs or charges incurred by InfraStack-Labs Technologies Private Limited for electricity materially increase. InfraStack-Labs Technologies Private Limited will promptly notify Client in the event of such an increase and such increased Fees will go into effect from the day of the calendar month immediately following such notice and grace period of 15 days will be provided to the client for raising any concerns about same.
Notwithstanding anything to the contrary in this Agreement, if Client does not agree to such a price increase for a particular Order, Client may terminate such Order at any time prior to the end of grace period date post such increase by providing InfraStack-Labs Technologies Private Limited with written notice of such termination. Failure to terminate in accordance with the foregoing will constitute acceptance of such Fee increase.
9.8 InfraStack-Labs Technologies Private Limited may apply any payment received from Client under any Order towards any amounts that Client owes to InfraStack-Labs Technologies Private Limited under this Agreement or otherwise.
Client gives InfraStack-Labs Technologies Private Limited permission to provide any registered credit bureau with information about the payment of amounts Client makes under this Agreement.
9.9 Subject to section 12.12, Client may not withhold payment of any amount due to InfraStack-Labs Technologies Private Limited for any reason.
9.10 If Client disputes any part of an invoice on genuine grounds, Client must pay the undisputed part of the invoice before the due date.
10. Indemnification Clauses Concerning both parties
InfraStack-Labs Technologies Private Limited Indemnification
10.1 InfraStack-Labs Technologies Private Limited will defend Client from any third party claim, suit, action or proceeding, and will pay all related damages, costs, expenses, judgments, settlement amounts, and other liabilities (including reasonable attorney’s fees and costs) finally awarded against Client by a court or tribunal of competent jurisdiction, arising from any allegation that the Services, when used as authorised by the Agreement, in the form provided by InfraStack-Labs Technologies Private Limited, infringe any copyright, patent, trade secret, trademark or other intellectual property rights of a third party. If Client seeks indemnification under this Section, it must:
(a) provide InfraStack-Labs Technologies Private Limited with prompt notice of the claim;
(b) give InfraStack-Labs Technologies Private Limited sole control of the defence and related settlement negotiations; and
(c) fully cooperate with InfraStack-Labs Technologies Private Limited, in defending or settling the claim.
10.2 Despite the foregoing, Client may participate with InfraStack-Labs Technologies Private Limited in (but not control) the claim using counsel of its choice at its own expense. InfraStack-Labs Technologies Private Limited will not enter into any settlement or other compromise of the claim that materially affects Client without Client’s written approval. The approval will not be unreasonably withheld.
10.3 Client will defend InfraStack-Labs Technologies Private Limited from any third party claim, suit, action or proceeding, and will pay all related damages, costs, expenses, judgments, settlement amounts, and other liabilities (including reasonable attorney’s fees and costs) finally awarded against InfraStack-Labs Technologies Private Limited by a court or tribunal of competent jurisdiction, to the extent arising from:
(a) any violation (or alleged violation) of applicable law by Client or any Client Content or Client Community Content;
(b) any allegation that any Client Content or Client Community Content infringes, misappropriates or violates any copyright, patent, trade secret, trademark or other intellectual property rights of a third party;
(c) any dispute with third party licensors or providers of any Client Content or Client Community Content; or
(d) any act or omission of Users, including any breach of the license restrictions set out in Section 4.2.
10.4 However InfraStack-Labs Technologies Private Limited has no obligation to Client under this Section 10 in connection with:
(a) any modification of the Services by anyone other than InfraStack-Labs Technologies Private Limited;
(b) any Third Party Software;
(c) any combination of the Services with any Client Content or other software, hardware, network, infrastructure, or other materials not provided by InfraStack-Labs Technologies Private Limited if the claim would not have arisen but for that combination;
(d) use of the Services other than as permitted by the Agreement or contrary to the applicable Service Description(s); or
(e) Client’s continued use of the Services after notice of the alleged or actual infringement.
Additional Options and substitution clause
10.5 If the Services are the subject of an infringement claim (or InfraStack-Labs Technologies Private Limited reasonably believes that the claim is likely), then InfraStack-Labs Technologies Private Limited may at its option and expense:
(a) procure for Client the right to continue to use the Services;
(b) modify the Services to be non-infringing or provide non-infringing substitutes with substantially similar functionality; or
(c) if InfraStack-Labs Technologies Private Limited cannot accomplish (a) or (b) using commercially reasonable efforts, terminate the Services and refund to Client the unused portion of any Fees paid in advance for the affected Services.
11. Limited Liability Clause
11.1 Notwithstanding anything in this Agreement to the contrary, except for Client’s obligations under Section 10 (Indemnification) or Client’s breach of Section 4.2 (Restrictions), to the full extent permitted by applicable law:
(a) neither party will be liable for any indirect, incidental, consequential, special, punitive, or exemplary damages arising out of or related to the Services or this Agreement, including damages for interruption of business, loss of profits, loss of goodwill, or loss or corruption of data, regardless of the form of action, whether in contract, tort (including negligence), strict liability or other legal theory, even if the party was advised in advance of the possibility of those damages and even if those damages were foreseeable; and
(b) in no event and circumstances will either party’s maximum aggregate liability to the other arising out of or related to the Services or this Agreement exceed the amounts paid by Client during the 12 month period preceding the event or circumstances giving rise to that liability. For avoidance of doubt, the foregoing limitation of liability does not apply to Client’s obligation to pay Fees.
12.1 InfraStack-Labs Technologies Private Limited reserves the right to suspend or restrict Client’s or any User’s access to and use of the Services if:
(a) Client or any User breaches this Agreement;
(b) Client or any User fails to cooperate with any reasonable investigation by InfraStack-Labs Technologies Private Limited of a suspected breach of this Agreement;
(c) InfraStack-Labs Technologies Private Limited reasonably determines that suspension is necessary to prevent or mitigate damage or disruption to InfraStack-Labs Technologies Private Limited’s services, systems or networks;
(d) Client fails to pay any Fees when due and not delay is not communicated or not agreeable to InfraStack-Labs Technologies Private Limited;
(e) there is an unusual spike or increase in Client’s use of the Services that impacts InfraStack-Labs Technologies Private Limited’s ability to deliver the Services; or
(f) as the result of any Excusing Event, (collectively “Service Suspensions”).
InfraStack-Labs Technologies Private Limited will use commercially reasonable efforts to provide: (i) prior notice of a Service Suspension; and (ii) updates regarding resumption of Services following a Service Suspension.
12.2 Client Content stored on the Services may be unavailable during a Service Suspension. Without limiting Section 11(Limited Liability Clauses) , InfraStack-Labs Technologies Private Limited will have no liability for any damages, liabilities, or losses resulting from a Service Suspension.
13.Term and Termination
13.1 This Agreement commences on the Effective Date of Client’s first Order and, unless terminated earlier, continues until the last expiration or termination date of any of Client’s Orders provided the client undertakes and duly complies with payment of the various fees and usage chanrge as levied during the tenure of the services.
The initial terms and durations of services of each Order will be stated in the Order details provided upon successful completion of payment for the first order or subsequent renewal orders.
13.3 Either party may terminate this Agreement (and all Orders) or any individual Order upon notice to the other party if the other party materially breaches any term or condition of this Agreement or any Order and fails to correct the breach within 15 days following notice specifying the breach. Without limitation, Client’s failure to pay Fees on time and Client’s (or any User’s) noncompliance with Section 4.2 will constitute material breaches. In addition, InfraStack-Labs Technologies Private Limited may terminate an Order or Services under an Order by notice to Client if it is unable to continue to provide the applicable Services because of a Force Majeure Event.
13.4 Upon expiration or termination of this Agreement or any Order:
(a) InfraStack-Labs Technologies Private Limited will cease providing and Client’s rights to access the applicable Services will stop
(b) all outstanding invoices will become immediately due;
(c) the remainder of all monthly Fees for the remaining Minimum Commit Term (if applicable) will become immediately due (termination by Client due to InfraStack-Labs Technologies Private Limited’s breach excepted); and
(d) InfraStack-Labs Technologies Private Limited will not be required to maintain or store, and may delete, Client Content hosted or stored in connection with the terminated Services, unless otherwise agreed in the applicable Order.
13.5 Either party’s termination of this Agreement or any Order will be without prejudice to any other remedies that it may have at law or otherwise, and will not relieve either party of breaches occurring prior to the effective date of termination.
The following sections of these Terms will continue and survive after any expiration or termination: sections 3.2, 3.4, 3.5, 7,9,10, 11, 13.4, 14.4, 15, and 16.
14.1 Each party represents and warrants to the other that: (i) it has the full power and authority to enter in and perform this Agreement; (ii) it will comply with all applicable laws, rules, regulations and ordinances in the performance of this Agreement;and (iii) its performance of this Agreement does not put it in breach of any other agreement.
14.2 InfraStack-Labs Technologies Private Limited represents and warrants to Client that it will perform the Services materially in accordance with the applicable Service Description(s).
14.3 InfraStack-Labs Technologies Private Limited will pass on to Client the benefit of any warranties and indemnities it receives under the Third Party Software Terms to the extent InfraStack-Labs Technologies Private Limited has the right to do so. Otherwise InfraStack-Labs Technologies Private Limited makes no, and expressly disclaims all, representations and warranties with respect to Third Party Software and Client’s use of Third Party Software is at Client’s sole risk.
14.4 The Services are provided on an “as is” and “as available” basis. Except for the representations and warranties in this Agreement, InfraStack-Labs Technologies Private Limited expressly disclaims all other representations, warranties and conditions whether express or implied including as to merchantability, satisfactory quality, fitness for a particular purpose, non-infringement, title, that the Services will meet Client requirements or be timely, uninterrupted, error free or secure. No advice, results or information obtained by Client from InfraStack-Labs Technologies Private Limited or through the Services, any documentation or the Community Forum, will create any warranty, condition or obligation on InfraStack-Labs Technologies Private Limited.
15. General Conditions and Regulations Enforcement
15.1 Any waiver by either party of a breach of or a default under any provision of this Agreement must be in writing and will not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor will any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have under the Agreement operate as a waiver of any right or remedy.
15.2 If Client provides suggestions for changes or improvements or other feedback (“Feedback”) about the Services or any of InfraStack-Labs Technologies Private Limited’s products or services, InfraStack-Labs Technologies Private Limited may use the Feedback for any purpose without obligation or payment of any consideration and Client assigns to InfraStack-Labs Technologies Private Limited all right, title and interest (including intellectual property rights) in and to the Feedback.
15.3 Except for the payment of Fees, neither party will be liable to the other for failure or delay in performing its obligations under the Agreement if the failure or delay is due to circumstances beyond its reasonable control, including acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labour disturbance, interruption of or delay in transportation, interruption of or delay in telecommunications or third party services, or inability to obtain raw materials, supplies or power used in or equipment needed for provision of the Services (each, a “Force Majeure Event”).
15.4 Nothing contained in this Agreement will be deemed or construed as creating a joint venture, partnership, agency, employment, or fiduciary relationship between the parties. Neither party, nor either party’s agents, have any authority of any kind to bind the other party in any respect whatsoever, and the relationship of the parties is, and at all times will continue to be, that of independent contractors.
15.5 Nothing in this Agreement, express or implied, confers or is intended to confer on, any person other than the parties and the respective successors or permitted assigns of the parties, any rights, remedies, obligations or liabilities.
15.6 Subject to Section 16.14, InfraStack-Labs Technologies Private Limited may change these Terms from time to time including when required by law or governmental entities (a “Regulatory Change”). InfraStack-Labs Technologies Private Limited may provide notice to Client of changes including by uploading and making available the updated version of these Terms to website. Client’s continued use of the Services following a change will be deemed acceptance by Client of the change provided that any material change to these Terms will not apply retrospectively to a claim or dispute between Client and InfraStack-Labs Technologies Private Limited in connection with these Terms that arose prior to the date of the change.
15.7 If Client is using Services under an Order with a Minimum Commitment Term, then Client may, on giving InfraStack-Labs Technologies Private Limited notice within grace period applicable for the order with respect to the applicable change, elect not to have the change apply and may choose to avail the option granted and provided by InfraStack-Labs Technologies Private Limited at that point in time.
15.8 If an ambiguity or question of interpretation arises the Agreement will be construed as if drafted jointly by the parties and no presumption or burden of proof based on authorship will arise favouring one party over the other. Client waives any claims or defences regarding the validity or enforceability of this Agreement arising from the fact of electronic submission or presentation of the Agreement to Client.
15.9 If the application of any provision of this Agreement to any particular facts or circumstances is held to be invalid or unenforceable by a court or tribunal of competent jurisdiction, then:
(a) the validity and enforceability of that provision as applied to any other particular facts or circumstances and the validity of other provisions of this Agreement will not in any way be affected or impaired thereby, and
(b) the provision will be enforced to the maximum extent possible so as to effect the intent of the parties and be deemed to have been amended without further action by the parties to the extent necessary to make the provision valid and enforceable.
15.10 This Agreement intend to be a subject to the governing law and jurisdiction only of the courts of Bangalore, India.
15.11 Any notice, request, demand or other communication required or permitted by these Terms will:
(a) be in writing;
(b) reference the Agreement and the applicable Order; and
(c) be directed to the recipient’s address or email address (or facsimile number if applicable) specified in the applicable Order by prepaid registered post, hand delivery, or facsimile, and will be deemed to be properly given when received. In addition, InfraStack-Labs Technologies Private Limited may provide general notices related to the Services (including updates to the Service Descriptions, Service Level Terms and Third Party Software Terms) onits Official Company Blog or offcial Social Media Platforms (Facebook/Twitter/Linked-In) and on its official website, and the parties may communicate regarding support related issues through the Community Forum and by way of directly reaching out to Comapny offices.
15.12 Neither party may assign, delegate or otherwise transfer, whether voluntarily or involuntarily, by operation of law or otherwise, this Agreement or any of its rights or obligations under this Agreement without the prior written consent of the other party, except that:
(a) InfraStack-Labs Technologies Private Limited may assign this Agreement without the prior written consent of Client to an affiliate or in connection with a merger, consolidation, or sale of all or a portion of InfraStack-Labs Technologies Private Limited’s assets or business; and
(b) InfraStack-Labs Technologies Private Limited may have any of the Services performed on its behalf by its affiliates or other third parties.
15.13 Subject to the foregoing, the rights and liabilities of the parties are binding on, and will inure to the benefit of, the parties and their respective successors and permitted assigns. Any attempted assignment, delegation or other transfer except in accordance with this section will be ineffective.
15.14 If a dispute (“Dispute”) arises out of this Agreement or in connection with the Services the parties will attempt to settle it by negotiation. A party may initiate Dispute negotiations by emailing a demand for Dispute resolution (“Dispute Notice”) as follows: (i) for Client, to the InfraStack-Labs Technologies Private Limited email address notified to Client; (ii) for InfraStack-Labs Technologies Private Limited, to Client’s email address as indicated in the applicable Order. Within five days of a Dispute Notice the parties must refer the matter to a committee of four consisting of two representatives from each party (the “Committee”). The Committee will meet and attempt to resolve the Dispute within 30 days of referral. The Committee will determine its own procedures and any decision of the Committee will be binding on the parties. If the parties are unable to resolve the Dispute they may commence legal proceedings in the relevant court having jurisdiction as determined by the table at section 17.1. Nothing in this section prevents a party from seeking interim or provisional relief concerning a Dispute, including a temporary restraining order or preliminary injunction.
15.15 Unless Client advises InfraStack-Labs Technologies Private Limited otherwise in writing, Client consents to InfraStack-Labs Technologies Private Limited using its name in any of InfraStack-Labs Technologies Private Limited’s marketing, sales materials, press releases, public announcements and case studies.
15.16 This Agreement (along with the supplementary addendums as mentioned in section 1.1.1,1.1.2,1.1.3,1.1.4,1.1.5) is the entire agreement of the parties on the subject matter and supersedes any previous understanding or agreements. Except as otherwise provided with respect to updating of certain terms by InfraStack-Labs Technologies Private Limited in client specific order, no modifications, additions, or amendments to this Agreement will be effective unless set out in a writing referencing this Agreement and signed by a duly authorised representative of each Party.
15.17 If there is any conflict or inconsistency between these Terms and the terms in any other document that forms the Agreement then:
(a) the terms in an Order will take precedence and resolve the conflict or inconsistency solely with respect to the specific variable terms included in the Order concerning pricing, payment, term, termination, or specific Services ordered; and
(b) these Terms will take precedence with respect to all other matters.
15.18 For the purposes of interpreting this Agreement unless the context otherwise requires:
(a) the singular includes the plural, and the plural includes the singular;
(b) the words “include” and “including” will not be construed as terms of limitation, and will mean “including without limitation”;
(c) the words “writing” or “written” mean reduced to writing whether in electronic or hard copy form;
(d) references to the parties will refer to their permitted successors and assigns; and
(e) references to any document, agreement, instrument or statute mean that document, agreement, instrument or statute as amended from time to time.