GENERAL TERMS & CONDITIONS
These Terms of Service (the “Agreement”) are an agreement between Ceswei Software Pvt. Ltd. (“MediaPropel.com” or “us” or “our”) and you (“User” or “you” or “your”). This Agreement sets forth the general terms and conditions of your use of the products and services made available by Ceswei Software Pvt. Ltd. and of the mediapropel.com website (collectively, the “Services”). By using the seervi e, you agree to be bound by this agreement. If youu\ do not agree to abide by the terms of this Agreement, you are not authorized to use or access the service.
Additional Policies and Agreements
A. Use of the services is also governed by the following policies, which are incorporated by reference. By using the services, you also agree to the terms of the following policies.
B. Additional terms may also apply to certain Services, and are incorporated by reference herein as applicable. For example, if you register a domain name with us, then the Domain Registration Agreement will also apply to you and would be incorporated herein.
Ceswei Software Private Limited provides internet related services including connectivity, co-location, dedicated and shared server, website hosting and domain name services under its own brand “MediaPropel”. These Conditions set out the terms under which Ceswei Software Private Limited will provide Services to the Client (as such terms are defined below). These Conditions will be supplemented from time to time by proposal forms setting out specific details relating to services requested by the Client and, as so supplemented, will apply to the exclusion of any other terms and conditions including any which the Client may attempt to introduce. Ceswei Software Private Limited reserves the right to change, add, subtract or in way alter these Conditions without the prior consent of the Client.
To the extent that the Client is deemed to be a consumer (as defined by the Unfair Contract Terms Act 1977) then these Conditions will not affect the rights of the Client as a consumer and will apply to the extent that applicable law allows.
By logging into your account or updating files you are deemed to have accepted these terms and conditions
These Conditions are divided into three parts, however all parts may not apply in every case:
Part 1 applies in all cases.
Part 2 applies where Ceswei Software Private Limited is to provide software and/or equipment in connection with the Services.
Part 3 applies where the Services include ongoing support and maintenance services.
PART 1: GENERAL PROVISIONS
In these Conditions, the following expressions will have the following meanings, unless inconsistent with the context:
the agreement between Ceswei Software Private Limited and the Client for the provision of Services formed by these Conditions and the Proposal(s)
any Software and/or Equipment
in respect of either party, a subsidiary or holding company of that party or any subsidiary of such holding company and the terms “subsidiary” and “holding company” will have the meanings given to them by Companies Act 2013
a day which is not a Saturday or Sunday or public holiday in any regions that we have offices
1030 to 1730 GMT +5:30 on each Business Day
data, text, images, graphics, videos, logos and other content and material, hardware or equipment provided by the Client in connection with the Agreement for use by Ceswei Software Private Limited in providing the Services.
as identified on the Proposal(s)
the Client’s computer system or server upon which the Software is loaded or otherwise in connection with which the Services are provided
these conditions (in five parts) to be read in conjunction with the Proposal(s)
any defect in systems having a material effect on the Client’s use or operation of the Services or any failure by any Ancillary System to comply with any term of Part 2 of these Conditions
those domain registration and other related services (if any) provided to the Client by Ceswei Software Private Limited pursuant to the Agreement, as described on a relevant Proposal
any hardware, cabling and/or other equipment provided to the Client by Ceswei Software Private Limited in connection with the Agreement
the charges due to Ceswei Software Private Limited under the Agreement in relation to the Services, as set out on the Proposal(s)
“ Ceswei Software Private Limited “
Ceswei Software Private Limited, registered in India (Company No. 4426731), whose registered office is at JP Nagar, 5th Phase, Bangalore, Karnataka (560078)
“Intellectual Property Rights”
any and all patents, trade marks, service marks, copyright, moral rights, rights in design, know-how, confidential information and all or any other intellectual or industrial property rights whether or not registered or capable of registration and whether subsisting in the India or any other part of the world together with all or any goodwill relating to the same
generally accepted standards and codes of practice for use of the internet including but not limited to sending bulk unsolicited email, mail bombing or impersonating another person, organisation or website
the proposal form(s) submitted by Ceswei Software Private Limited to the Client by email or otherwise in writing for the provision of the Services, in response to the Client’s order or request
those development, implementation, consultancy, hosting and other services (if any) provided to the Client pursuant to the Agreement, as described on a relevant Proposal, together with any Support Services and Domain Services
any communications or other software provided to or made available to the Client by Ceswei Software Private Limited in connection with the Agreement, including Third Party Software
those support and maintenance services provided to the Client pursuant to the Agreement, as described on a relevant Proposal
the hours during which Ceswei Software Private Limited will provide the Support Services, as set out on a relevant Proposal
“Third Party Software”
any software identified as third party software (if any) to be provided to the Client pursuant to the Agreement, as set out in a relevant Proposal
“Use the Software”
to load the Software onto and store and run it on the Client System and/or Equipment in accordance with the terms of the Agreement
2.1 The headings used in the Agreement are inserted for convenience only and are not intended to be part of nor to affect the meaning or interpretation of any of the Agreement.
2.2 In the Agreement the masculine includes the feminine and the neuter, and the singular includes the plural and vice versa as the context shall admit or require.
2.3 The expression “person” means any individual, firm, body corporate, unincorporated association, partnership, government, state or agency of a state or joint venture.
2.4 In the event of a conflict between any of these Conditions and any Proposal, the conflict will be resolved according to the following order of priority: these Conditions then the Proposal.
2.5 The words “include”, “includes”, “including” and “included” will be construed without limitation unless inconsistent with the context.
2.6 The Agreement (as varied in accordance with its terms) forms the entire understanding of the parties in respect of the matters dealt within it and supersedes all previous agreements, understandings and negotiations between the parties.
2.7 The parties do not intend that any of the terms of the Agreement will be enforceable by virtue of the Contracts (Third Party Beneficiary) Act 1999 by any person not party to it.
2.8 References in these Conditions to clauses means clauses of these Conditions. References in these Conditions to the provisions of statutes or statutory instruments are deemed to include those provisions as amended or substituted.
3. SERVICE PROVISION
3.1 The Services are described or referred to on the Proposal(s). Ceswei Software Private Limited agrees to supply Services to the Client on the following conditions, these conditions are not an offer to provide service but a statement of the terms on which we would provide them.
3.2 Ceswei Software Private Limited will use its reasonable endeavours to provide the Services in accordance with any timescale set out on the Proposal(s), but will not be liable to the Client where, using those endeavours, it fails to meet any timescale.
3.3 Ceswei Software Private Limited will not be liable for any failure to provide the Services resulting from any breach by the Client or its employees, agents or subcontractors of the Agreement.
3.4 Ceswei Software Private Limited will not be obliged to provide any services not referred to on the Proposal(s). Furthermore, Ceswei Software Private Limited cannot provide the Services where the Client makes use of what in the sole discretion of Ceswei Software Private Limited can be deemed as incompatible communication systems
3.5 The terms of the Agreement form the entire agreement between Ceswei Software Private Limited and the Client in relation to the Services and all other understandings, agreements, warranties, conditions, terms or representations, whether express or implied, statutory or otherwise, are excluded to the fullest extent permitted by law. The Client may not rely upon any representation made or given by any employee of Ceswei Software Private Limited prior to the Agreement being entered into unless confirmed in the Agreement.
3.6 Ceswei Software Private Limited reserves the right at any time and from time to time to improve, correct or otherwise modify all or any of the Services (including substituting Software and/or Equipment. Ceswei Software Private Limited will endeavour to give the Client reasonable notice of any such modification, where this is reasonably practicable.
3.7 Upon written (email or letter) or verbal notice being provided, Ceswei Software Private Limited may at its sole discretion suspend the provision of the whole or any part of the Services (temporarily or permanently) and will have no liability to provide the Services on the occurrence of any of the following events:
3.7.1 notified or unscheduled upgrade or maintenance of Ceswei Software Private Limited IT systems;
3.7.2 issue by any competent authority of an order which is binding on Ceswei Software Private Limited which affects the Services;
3.7.3 if the Client fails to pay any Fees or any other sums owing to Ceswei Software Private Limited by the Client when they fall due;
3.7.4 if an event occurs and Ceswei Software Private Limited deem it to be appropriate to terminate the Agreement (example of an event: Any inappropriate/legal images being uploaded into the CRM, system or sent to others. This example is by way of illustration and is not exhaustive);
3.7.5 if the bandwidth or computer memory used by the Client in relation to the Services exceeds any agreed or stipulated level and Ceswei Software Private Limited determines in its sole discretion that suspension is necessary to protect all and any internet solutions provided by Ceswei Software Private Limited from time to time;
3.7.6 if the size of an email, mailing list or cron job used by the Client exceeds any agreed or stipulated size, level or frequency and Ceswei Software Private Limited determines in its sole discretion that suspension is necessary to protect all and an internet solutions provided by Ceswei Software Pvt. Ltd. from time to time; or
3.7.7 failure or deficiencies in the Client System referring but not limited to hardware, server corruption and security breaches
3.7.8 failure by the Client to adhere to any of the provisions outlined in Ceswei Software Private Limited’s acceptable usage policy. Where Ceswei Software Private Limited suspends provision of the Services in accordance with clause 3.7.3, it will only be obliged to recommence provision during Business Hours and once the Client has paid all relevant outstanding sums in cleared funds together with any relevant reinstatement fee as published from time to time by Ceswei Software Private Limited and has accepted any revised payment terms requested by Ceswei Software Private Limited (such as payment by direct debit).
3.8 The Client will provide to Ceswei Software Private Limited those Client Materials identified on the Proposal(s) within a reasonable time period taking account of the obligations of Ceswei Software Private Limited under the Agreement.
3.9 The Client warrants that the Client Materials will be accurate in all material respects and will not knowingly include material which is illegal, the accessing holding transmitting or supplying of which would be a criminal offence or which is otherwise unlawful or in breach of any applicable law or code of practice applying to such materials. In particular, the Client warrants that all necessary licences, consents and waivers (including those from rights owners, performers and other contributors) are obtained and paid for by the Client. Without prejudice to the foregoing, Ceswei Software Private Limited may decline to use any Client Materials on any reasonable grounds.
3.10 The Client will supply in a timely manner all information, instructions, review and feedback reasonably required by Ceswei Software Private Limited in connection with the performance of its obligations under the Agreement and will appoint a representative who is fully empowered and authorised to provide the same.
4. SERVICE DELIVERY
4.1 The Client acknowledges that, given the nature of such services, Ceswei Software Private Limited cannot guarantee that the Services, when delivered via the internet, will be uninterrupted or error free.
4.2 To the fullest extent permitted by law and save as provided elsewhere in the Agreement, the Services and any Client Systems and Ancillary Systems are provided by Ceswei Software Private Limited to the Client on an “as is” and “as available” basis and no warranty or representation (express or implied) of any kind are given in connection with the Agreement including as to satisfactory quality and fitness for a particular purpose. In particular, Ceswei Software Private Limited gives no warranty or representation that:
4.2.1 the Services will meet the Client’s requirements;
4.2.2 the Services will be provided on an uninterrupted, timely, secure or error-free basis; or
4.2.3 any results obtained from use of the Services will be accurate, complete or current.
4.3 Ceswei Software Private Limited warrants that it will provide the Services with reasonable care, skill and to the satisfaction of the client. Ceswei Software Private Limited will not be liable for a breach of such warranty unless the Client notifies Ceswei Software Private Limited in writing of such failure within 7 days of the Client becoming aware of the failure.
4.4 If the Client makes a valid claim against Ceswei Software Private Limited based on a failure by Ceswei Software Private Limited to comply with the warranty set out in clause 4.3 Ceswei Software Private Limited may, at its option, take such steps as it deems necessary to remedy such failure or refund such part of the Fees as relates to such Services, provided that the liability of Ceswei Software Private Limited under such warranty will in no event exceed one and a quarter times the amount of the Fees paid to Ceswei Software Private Limited by the Client (excluding VAT and expenses) in the 6 month period prior to the date on which the Client makes the claim. If Ceswei Software Private Limited complies with this clause, it will have no further liability for a breach of the said warranty.
5. CLIENT’S OBLIGATIONS
5.1 The Client agrees that it will:
5.1.1 immediately notify Ceswei Software Private Limited on becoming aware of any unauthorised use of all or any of the Services and/or relevant part of the Client System;
5.1.2 not use the Services, Ancillary Systems and/or Client System or allow them to be used for any unlawful purpose or for the publication, linking to, issue or display of any unlawful material (including any pirated software or any material which is obscene, pornographic, threatening, malicious, harmful, abusive, defamatory or which breaches the rights including Intellectual Property Rights of any third party or which is or encourages criminal acts or contains any virus, worm, trojan horse or other harmful code) whether under Indian law or regulation, the laws or regulations of the Client’s country or any other place where the results of such purpose or the material in question can be accessed;
5.1.3 not use the Services, Ancillary Systems and/or Client System or allow them to be used for the publication, web forwarding, linking to issue of or display of any material which in the absolute discretion of Ceswei Software Private Limited may harm Ceswei Software Private Limited or any of its Associated Companies or clients or bring Ceswei Software Private Limited into disrepute or which calls into question any action taken by Ceswei Software Private Limited on the Client’s behalf;
5.1.4 not use the Services, Ancillary Systems and/or Client System or allow them to be used in breach of good Netiquette practices;
5.1.5 remove or prevent access to any material hosted on any of the Equipment and/or Client System which causes or is likely to cause the Client to be in breach of the Agreement;
5.1.6 ensure that it has all necessary consents, permissions and licences to make use of the Services including registration and appropriate consents and approvals under the Data Protection Bill 2013;
5.1.7 not provide any technical or other information obtained from Ceswei Software Private Limited and/or relating to the Services to any person which the Client is aware or ought reasonably be aware may directly or indirectly lead to a breach of any law or regulation;
5.1.8 not, in breach of good Netiquette practices, use any service provided by any third party (including an internet web site and/or email) for the publication, linking to, issue or display of any material which refers to an internet web site hosted by Ceswei Software Private Limited or any other products or services offered by Ceswei Software Private Limited from time to time without Ceswei Software Private Limited’s prior written consent;
5.1.9 ensure that all material or data hosted by Ceswei Software Private Limited on any web site operated by the Client from time to time or communicated through such site or using the Client System is checked for viruses and other harmful code and has appropriate security patches applied;
5.1.10 save as provided in any Proposal, be responsible for keeping regular and full back ups of all material and data hosted by Ceswei Software Private Limited on any web site or other system operated by the Client from time to time including the Client System and/or Ancillary Systems;
5.1.11 comply with any security policy notified to it from time to time by Ceswei Software Private Limited and, in particular, ensure that all passwords and user names provided to it by Ceswei Software Private Limited are at all times kept confidential, used properly and not disclosed to unauthorised people. If the Client has any reason to believe that any password or user name has become known to someone not authorised to use it or is being or is likely to be used in an unauthorised way or of any other breach of security then the Client will inform Ceswei Software Private Limited;
5.1.12 independently monitor its bandwidth in relation to the use of Services and report to Ceswei Software Private Limited any use of bandwidth over and above those agreed or stipulated levels as detailed on the Ceswei Software Private Limited website at the time of purchase. Exceeding stipulated levels will incur additional fees as noted in clause 6.1.3;
5.1.13 be entirely liable for all activities conducted and charges incurred under its passwords and user names whether authorised by it or not and the Client acknowledges that Ceswei Software Private Limited shall not be liable for any loss of confidentiality or for any damages arising from the Client’s inability to comply with these Conditions;
5.1.14 ensure that the Client obtains and maintains insurance over all parts of the Client System which are located on the premises of Ceswei Software Private Limited or any of its Associated Companies and to provide evidence that such insurance is in place, upon Ceswei Software Private Limited demand;
5.1.15 ensure that all communication details which it provides to Ceswei Software Private Limited are at all times true, current, accurate and complete. The Client will promptly notify Ceswei Software Private Limited of any change to such details and acknowledges that Ceswei Software Private Limited will not be liable for any loss suffered or incurred by the Client as a result of its failure to notify such changes to Ceswei Software Private Limited; and
5.1.16 ensure that its systems (including the Client System) meet any minimum system specifications notified to the Client from time to time.
5.2 The Client acknowledges that it has appropriate knowledge of how the internet functions, the systems and products provided to it in connection with the Agreement and what types of use and content are and are not acceptable, some of which are referred to in clause 5.1.2. The Client acknowledges that Ceswei Software Private Limited shall have no obligation to:
5.2.1 train the Client or its staff on its use of the Services or any Ancillary System;
5.2.2 manipulate any material which the Client wishes to and/or does post on any web site or other system it operates (including any Client System) or any communication which it issues or sends in connection with any Services; or
5.2.3 validate, vet or edit such material for usability, legality, content or correctness. The Client also acknowledges that the services and products provided by Ceswei Software Private Limited are standard packages which are not tailored to specific requirements of the Client, unless confirmed in writing by Ceswei Software Private Limited to the contrary.
5.3 The Client will promptly provide to Ceswei Software Private Limited and/or its consultants, employees and agents such information and assistance as they may reasonably require in order to be able to carry out the Services and, where relevant, deliver and install any Ancillary Systems.
5.4 The Client will procure all necessary rights from third parties (including intellectual property licences of computer software and website content including but not limited to ringtones, and music and any other relevant media which are from time to time required in order for Ceswei Software Private Limited to be able legally to provide the Services.
5.5 If, in Ceswei Software Private Limited opinion, the Client is in breach of the provisions of clauses 5.1.2 to 5.1.4 then Ceswei Software Private Limited may without prejudice to its other rights and remedies immediately by written notice to the Client:
5.5.1 suspend provision of the Services;
5.5.2 terminate the Agreement.
Ceswei Software Private Limited may also notify appropriate public authorities governmental or otherwise including the police or other enforcement authority) of any such breach, where it deems necessary.
5.6 Where as part of the Services the Client is entitled (having obtained Ceswei Software Private Limited prior written consent) to resell the whole or any part of the Services to a third party then the Client will:
5.6.1 procure such third party’s compliance with and acceptance of these Conditions;
5.6.2 be fully responsible for the acts and omissions of any such third party; and
5.6.3 indemnify Ceswei Software Private Limited for any losses it suffers as a result of such acts or omissions.
6. PAYMENT TERMS
6.1 The Fees are payable to Ceswei Software Pvt. Ltd. subject to the following conditions:
6.1.1 Fees payable monthly or yearly will be paid in advance and will not be refundable in whole or part if the Agreement or relevant part is terminated during the period to which the payment relates;
6.1.2 any set up fee will (unless stated to be included within later payments) be payable immediately;
6.2 All additional costs must be written by proposal to be accepted and signed by both parties.
6.3 Any sums payable by the Client to Ceswei Software Pvt. Ltd. under the Agreement are inclusive of taxes.
6.4 The Client agrees to pay Ceswei Software Pvt. Ltd.’s invoices within 7 days of invoice due date. If invoices are not settled in full by then, the Client will without prejudice to its other rights and remedies (including the right to suspend the Services under clause 3.8.3) be liable to pay interest on any sum outstanding from the due date for payment at the annual rate of 6% above the base lending rate from time to time of Yes Bank accruing on a daily basis until payment is made whether before or after any judgment.
6.5 All sums payable to Ceswei Software Pvt. Ltd. under the Agreement must be paid in full with no set off or deduction.
6.6 Ceswei Software Pvt. Ltd. has a general and particular lien over the Client System until all claims and money payable by the Client to Ceswei Software Pvt. Ltd. on any account whatsoever have been received in full clear funds. If the Client fails to discharge any lien within a reasonable time from the date of notice of exercise then the Client System may be sold in or towards satisfaction of that lien and Ceswei Software Pvt. Ltd. will account to the Client for any excess.
6.7 Ceswei Software Pvt. Ltd. may make a search in relation to the Client with a credit reference agency (and make other credit enquiries from time to time), keep a record of that search and enquiries. Ceswei Software Pvt. Ltd. may also make enquiries about the principle directors/proprietors of the Client with a credit reference agency.
6.8 Where the Client authorises payment of any of the Fees by credit and or debit card then Ceswei Software Pvt. Ltd. may deduct other amounts becoming payable to it under the Agreement from that credit or debit card without obtaining additional authorisation from the Client. For the avoidance of all doubt the Client must have an active credit or debit card stored on Ceswei Software Pvt. Ltd.’s systems for the duration of the Agreement.
6.9 Ceswei Software Pvt. Ltd. will not refund to the Client the cost of registering a domain name after the Client has submitted a domain name application form provided that the domain name has been registered with the appropriate registrar. This is due to the bespoke nature of domain names.
7. CONFIDENTIAL INFORMATION
7.1 Each party will (unless contrary to law):
7.1.1 keep confidential all information obtained from the other under or in connection with the Agreement (“Information”);
7.1.2 not disclose any Information to any third party without the prior written consent of the other except to such persons and to such extent as may be strictly necessary for the performance of the Agreement;
7.1.3 not use any Information otherwise than for the purposes of the Agreement.
7.2 The provisions of clause 7.1 do not apply to Information which:
7.2.1 is or becomes public knowledge (otherwise than by breach of this clause); or
7.2.2 was in the possession of the party concerned without restriction as to its disclosure before receiving it from the disclosing party; or
7.2.3 is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;
and nothing in this clause 7 prevents either party from disclosing any Information for a proper purpose to a public authority or any regulatory body, or to a court of law in the United Kingdom or elsewhere in legal proceedings, or to its senior management, its auditors, bankers, lawyers or other professional advisers.
7.3 The provisions of this clause 7 will continue to apply notwithstanding termination of the Agreement.
7.4 The Client, by entering into the Agreement, consents to Ceswei Software Pvt. Ltd. sending to the Client by whatever means Ceswei Software Pvt. Ltd. deems appropriate (whether by email or otherwise) information concerning new products and other services that Ceswei Software Pvt. Ltd. and its Associated Companies may from time to time offer.
8. INTELLECTUAL PROPERTY
8.1 The Client acknowledges and agrees that it will not own or acquire ownership of any Intellectual Property Rights in or relating to the Services or created in performing the Services and that it will have no rights in or to the Services other than the rights expressly granted by the Agreement.
8.2 The Client will indemnify and keep Ceswei Software Pvt. Ltd. indemnified from and against all costs (including the costs of enforcement), expenses, liabilities (including any tax liability), injuries, losses, damages, claims, demands, legal costs (on a full indemnity basis) and judgments which Ceswei Software Pvt. Ltd. incurs or suffers as a consequence of infringement of any Intellectual Property Right of any third party arising directly or indirectly from:
8.2.1 the provision by Ceswei Software Pvt. Ltd. of Services making use of information or specifications supplied by the Client;
8.2.2 the Client’s failure to procure all necessary rights from third parties which are from time to time required in order for Ceswei Software Pvt. Ltd. to be able legally to provide the Services; or
8.2.3 the use by Ceswei Software Pvt. Ltd. in connection with the Agreement of the Client System and the Client Materials.
8.3 No Intellectual Property Rights created or acquired by Ceswei Software Pvt. Ltd. will transfer or be assigned to the Client unless Ceswei Software Pvt. Ltd. and the Client have signed a written assignment document to that effect.
8.4 The Client shall keep the Ancillary Systems in good condition during the continuance of the Agreement and free of all charges, liens and encumbrances and protect it from any and all judicial process.
9.1 The provisions of this clause 9 and the provisions of clauses 4 and 24 set out the entire liability of Ceswei Software Pvt. Ltd. (including any liability for the acts or omissions of its consultants, employees, agents and authorised representatives) to the Client in respect of:
9.1.1 any breach of the Agreement; and
9.1.2 any representation, statement or tortious act or omission including negligence arising under or in connection with the Agreement.
9.2 Nothing in the Agreement excludes or limits the liability of Ceswei Software Pvt. Ltd. for death or personal injury caused by the negligence of Ceswei Software Pvt. Ltd., fraud or a breach of section 12 of the Sale of Goods Act 1979.
9.3 Subject to clauses 9.2 the total liability of Ceswei Software Pvt. Ltd. in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of the Agreement is limited to:
9.3.1 £500 per breach for loss of or damage to tangible property; and
9.3.2 for any other kind of loss, two times the amount of sums paid by the Client to Ceswei Software Pvt. Ltd. pursuant to the Agreement (excluding VAT and expenses) during the preceding 6 month period.
9.4 Ceswei Software Pvt. Ltd. will not be liable to the Client in contract, tort, misrepresentation or otherwise (including negligence), for any indirect or consequential loss or damage, costs, expenses or other claims for consequential compensation whatsoever, or for any loss of profit, loss of business, loss of contract loss of revenue, depletion of goodwill or otherwise (whether direct or indirect), and whether or not caused by the negligence of Ceswei Software Pvt. Ltd. or its employees, agents or authorised representatives, which arises out of or in connection with the Agreement.
9.5 The Client acknowledges that the allocation of risk in the Agreement reflects the price paid for the Services and that it is not within the control of Ceswei Software Pvt. Ltd. how or for what purposes they are used.
9.6 Where the Client accesses Ceswei Software Pvt. Ltd.’s services from locations outside the India, the Client does so, on the Client’s own initiative and is responsible for compliance with all and any applicable local laws.
10. CLIENT INDEMNITY
The Client will fully indemnify and keep Ceswei Software Pvt. Ltd. and its Associated Companies, officers, partners, employees and agents fully indemnified from and against all actions, demands, costs (on a full indemnity basis), losses, penalties, damages, liability, claims and expenses (including legal fees) whatsoever incurred by it and arising from any of the following:
10.1 the Client’s breach of the Agreement, negligence or other default;
10.2 the operation or break down of any IT systems owned or used by the Client including the Client System but not the Equipment; or
10.3 the Client’s use or misuse of the Services.
11. FORCE MAJEURE
Neither party is under any liability to the other party in respect of anything which, apart from this provision, may constitute a breach of the Agreement arising by reason of force majeure which means, in relation to either party, circumstances beyond the reasonable control of that party including acts of God, acts of any governmental or supra-national authority, war or national emergency, riots, civil commotion, fire, network failure, systems fault, unauthorised use or access to the IT systems of Ceswei Software Pvt. Ltd. or the Client, explosion, flood, epidemic, lock outs (whether or not by that party), strikes and other industrial disputes (in each case, whether or not relating to that party’s workforce), restraints or delays affecting shipping or carriers, inability or delay in obtaining supplies of adequate or suitable materials and currency restrictions, to the extent outside of its reasonable control.
12. TERM AND TERMINATION
Without prejudice to the remaining provisions of this clause 12 and any other rights and remedies available to Ceswei Software Pvt. Ltd.:
12.1 Ceswei Software Pvt. Ltd. will provide the Services for the period of 12 months from the date of the relevant Proposal or, where different, any other period of supply stated on the Proposal (such period being termed the “Initial Period”) and will automatically renew for subsequent periods of the same length as the initial period, subject to termination by:
12.1.1 The client; must provide by written notice to Ceswei Software Pvt. Ltd.; 90 days notice for licences and 30 days notice for hosting to terminate services; or
12.1.2 Ceswei Software Pvt. Ltd. must provide by written notice to the customer; 90 days notice for licences and 30 days notice for hosting to terminate the services.
12.2 Ceswei Software Pvt. Ltd. may immediately terminate the Agreement (or at its option, any part of it) by notice in writing to the Client if the Client fails to pay to Ceswei Software Pvt. Ltd. any sum due under the Agreement on the due date for payment.
12.3 Either party may terminate the Agreement (or, at its option, any part of it) forthwith by notice in writing to the other if the other party:
12.3.1 is in material breach of the Agreement and fails (where the breach is capable of remedy) to remedy the breach within 30 days of the receipt of a request in writing to remedy the breach, such request setting out the breach and indicating that failure to remedy the breach may result in termination of the Agreement;
12.3.2 becomes the subject of a voluntary arrangement under the The Insolvency and Bankruptcy Code, 2016;
12.3.3 is unable to pay its debts within the meaning of sections of the The Insolvency Code 2016;
12.3.4 has a receiver, manager, administrator or administrative receiver appointed over all or any parts of its undertaking, assets or income, has passed a resolution for its winding-up, or has a petition presented to any court for its winding-up or for an administration order; or
12.3.5 has ceased or threatened to cease to trade.
12.4 Clients that have purchased the Services as Consumers have the right to cancel the Agreement within 7 days at no additional cost from either (a) the date the contract is formed; or (b) the date that the Client receives confirmation that the contract is formed from Ceswei Software Pvt. Ltd. or whichever is the later. For the purposes of this clause, the date the contract is formed shall be the date that the Client presses the ‘Order’ button thereby granting consent that the Service commences.
12.4.1 The Client can exercise their right to cancel by contacting Ceswei Software Pvt. Ltd. through our support site.
12.4.2 The Client will no longer have the right detailed in clause 12.4 when, Ceswei Software Pvt. Ltd. has commenced the Service with the Client’s consent. For the purposes of this clause the Client’s consent will be deemed to be given upon the Client pressing the ‘Order’ button.
12.4.3 If you do not wish to waive these rights, then Ceswei Software Pvt. Ltd. will be unable to commence the Service until the end of the relevant cooling off period which is 7 days.
13. CONSEQUENCES OF TERMINATION
13.1 Termination of the Agreement is without prejudice to the rights and duties of either party accrued prior to termination.
13.2 The clauses of the Agreement which expressly or impliedly have effect after termination will continue to be enforceable notwithstanding termination. 13.3 Ceswei Software Pvt. Ltd. will without notice remove the Client’s data from its systems and any Equipment following termination. For the purposes of this clause, the date of termination will be either the date that Ceswei Software Pvt. Ltd. receives authorisation from the Client instructing cancellation of account or the date of expiry of notice of termination served in accordance with these Conditions.
13.4 Upon termination of the Agreement, the Client will forthwith:
13.4.1 cease to use the Software, Equipment and Services;
13.4.2 erase the Software from the Client System and certify to Ceswei Software Pvt. Ltd. that this has been done;
13.4.3 return to Ceswei Software Pvt. Ltd. any hardware or other equipment loaned to the Client in connection with the Services or any other materials and equipment owned by Ceswei Software Pvt. Ltd.; and
13.4.4 pay all outstanding invoices raised by Ceswei Software Pvt. Ltd. pursuant to the Agreement and pay for all work in progress not previously paid for on a reasonable pro-rata basis (subject to receipt of an invoice for the same from Ceswei Software Pvt. Ltd.).
13.5 In the event of termination of the Agreement by the Client part way through the Initial Period, the Client remains obliged to pay for Services comprising the provision of dedicated server hosting for the remainder of that period.
13.6 Where following termination, Ceswei Software Pvt. Ltd. is unable to cancel any registration of a domain name registered on behalf of the Client, it may levy a minimum charge to cover the cost of the domain registration fee. For the avoidance of all doubt Ceswei Software Pvt. Ltd. will not refund to the Client the cost of registering a domain name after the Client has submitted a domain name application form, provided that the domain name has been registered with the appropriate registrar. This is due to the bespoke nature of domain names.
13.7 Where the Client services include the purchase of licensing for software by Ceswei Software Pvt. Ltd. on behalf of the client, in the event of termination of the agreement by the client, Ceswei Software Pvt. Ltd. are unable to refund any proportion of the software and/or licensing fees incurred.
The illegality, invalidity or unenforceability of any provision of the Agreement will not affect the legality, validity or enforceability of the remainder. If any such provision is found by any court or competent authority to be illegal, invalid or unenforceable, the parties agree that they will substitute provisions in a form as similar to the offending provisions as is possible without thereby rendering them illegal, invalid or unenforceable.
15.1 The failure or delay by either party in exercising any right, power or remedy of that party under the Agreement will not in any circumstances impair such right, power or remedy nor operate as a waiver of it. The single or partial exercise by either party of any right, power or remedy under the Agreement will not in any circumstances preclude any other or further exercise of it or the exercise of any other right, power or remedy.
15.2 Any waiver by either party of a breach of or default under any of the terms of the Agreement by the other party is not deemed a waiver of any subsequent breach or default and in no way affects the other terms of the Agreement.
16. ASSIGNMENT AND SUBCONTRACTING
The Client may not assign the benefit or delegate the burden of the Agreement nor sub-license any of its rights under the Agreement (including to its Associated Company) without the prior written consent of Ceswei Software Pvt. Ltd. Any consent provided by Ceswei Software Pvt. Ltd. under this clause is given on condition that the assignee or licensee, as the case may be, agrees to comply with the terms of the Agreement as if they were the Client. Ceswei Software Pvt. Ltd. may sub-contract or assign any or all of its rights and obligations under the Agreement.
No variation or amendment to the Agreement (including any Proposal) is effective unless agreed in writing and signed by an authorised representative of Ceswei Software Pvt. Ltd.
Any notice to be given or made by either party under or in connection with the Agreement must be in writing and given or made to the other party at its address stated in the Order Form or to such other address as either party may from time to time notify to the other. Every notice, if so addressed, is deemed to have been duly given or made, if delivered by hand, upon delivery at the address of the relevant party, if sent by prepaid first class post, two Business Days after the date of posting and if transmitted by facsimile, at the time of transmission (provided a confirmatory letter is sent by prepaid first class post) provided that, where, in accordance with the above provisions, any notice would otherwise be deemed to be given or made on a day which is not a Business Day or after 4.00 p.m. on a Business Day, such notice shall be deemed to be given or made at 9.00 a.m. on the next Business Day. Ceswei Software Pvt. Ltd. may additionally serve notice on the Client under or in connection with the Agreement by email to the Client by sending an email to the contact email address stated on the Proposal(s),and in such a case the email will be deemed sent once transmitted from Ceswei Software Pvt. Ltd.’s email server.
19. Applicable Law and Jurisdiction
The construction, performance and validity of the Agreement will be governed by English law and the English courts have jurisdiction to settle any disputes which may arise out of or in connection with it.
PART 2: ANCILLARY SYSTEM SUPPLY
20. PROVISION OF SOFTWARE
20.1 In these Conditions, the following expressions will have the following meanings, unless inconsistent with the context:
20.2 In consideration of payment by the Client of the Fees, Ceswei Software Pvt. Ltd. will supply to the Client one copy of the Software and Third Party Software in object code form.
20.3 Ceswei Software Pvt. Ltd. grants to the Client the non-exclusive, non-transferable right to Use the Software for so long as the relevant Services continue to be provided subject to the remaining terms of these Conditions.
21. CLIENT’S UNDERTAKINGS
The Client undertakes:
21.1 to maintain accurate and up-to-date records of the number and locations of all copies of the Software;
21.2 to take good care of the Ancillary Systems; and
21.3 not to provide or otherwise make available the Software in whole or in part (including program listings, object and source program listings, object code and source code) in any form to any person other than the Client’s employees without the prior written consent of Ceswei Software Pvt. Ltd.
The Client may make only so many copies of the Software as are reasonably necessary for operational security and to Use the Software. Such copies and the media on which they are stored will remain the property of Ceswei Software Pvt. Ltd., and the Client will ensure that all such copies bear Ceswei Software Pvt. Ltd.’s proprietary notices. The provisions of Part 2 of these Conditions will apply to such copies as it applies to the Software.
23.1 Except to the extent and in the circumstances expressly required to be permitted by Ceswei Software Pvt. Ltd. by law, the Client may not:
23.1.1 alter, modify, adapt or translate the whole or any part of the program listings, object and source program listings, object code or source code in the Software in any way whatsoever;
23.1.2 permit the whole or any part of the Software to be combined with or become incorporated in any other computer programs; or
23.1.3 decompile, disassemble or reverse engineer the Software; nor attempt to do any of these things.
23.2 To the extent that the law applicable to the Agreement grants the Client the right to decompile the Software in order to obtain information necessary to render the Software interoperable with other computer programs used by the Client, Ceswei Software Pvt. Ltd. undertakes to make that information readily available to the Client. Ceswei Software Pvt. Ltd. may impose reasonable conditions (including a reasonable fee) for doing so. In order to ensure that the Client receives the appropriate information, the Client must first give to Ceswei Software Pvt. Ltd. sufficient details of the Client’s objectives and the other computer programs concerned
24.1 The Client acknowledges that:
24.1.1 software in general is not error-free, and agrees that the existence of such errors will not constitute a breach of the Agreement; and
24.1.2 the Ancillary Systems will operate only in conjunction with the Client System and other operating systems that may be notified by Ceswei Software Pvt. Ltd. in writing from time to time.
24.2 Ceswei Software Pvt. Ltd. will use its reasonable endeavours to check the Software for the most commonly known viruses prior to delivery to the Client. However, the Client is solely responsible for virus scanning the Software and Ceswei Software Pvt. Ltd. gives no warranty that the Software will be free from viruses.
24.3 Ceswei Software Pvt. Ltd. warrants that (subject to the other provisions of the Agreement) the Ancillary Systems will as at delivery be free from material errors which prevent the Client’s use of the Services and conform in all material respects with any applicable specification agreed in writing between the Client and Ceswei Software Pvt. Ltd. Ceswei Software Pvt. Ltd. will not be liable for a breach of this warranty:
24.3.1 if the error in question has been caused by any modification variation or addition to any part of the Ancillary Systems not performed by Ceswei Software Pvt. Ltd., their incorrect use by the Client, or use with or in connection with systems with which they are incompatible; or
24.3.2 where the Client does not notify Ceswei Software Pvt. Ltd. in writing of a failure within 14 days of becoming aware of the same.
24.4 If the Client makes a valid claim against Ceswei Software Pvt. Ltd. based on the failure by Ceswei Software Pvt. Ltd. to comply with the warranty set out in clause 24.3 Ceswei Software Pvt. Ltd. will at its option take such steps as it deems necessary to remedy such failure or refund such part of the Fees as relates to the defective Ancillary Systems.
24.5 If Ceswei Software Pvt. Ltd. complies with clause 24.4 it will have no further liability for a breach of the warranty set out in clause 24.3.
25. THIRD PARTY SOFTWARE AND SERVICES
Any Third Party Software is supplied to the Client on the basis of the relevant third party’s standard licence terms provided to the Client with the relevant Third Party Software and with which the Client agrees to comply.
PART 3: SUPPORT SERVICE
26.PROVISION OF SUPPORT SERVICES
26.1 Ceswei Software Pvt. Ltd. will provide the Support Services to the Client upon the terms and conditions set out in this Part 3 and Part 1 of these Conditions.
26.2 Ceswei Software Pvt. Ltd. will only be obliged to provide the Support Services during Support Hours.
26.3 The obligation of Ceswei Software Pvt. Ltd. to provide Support Services will not extend to:
26.3.1 rectification of lost or corrupted data;
26.3.2 Ancillary Systems altered modified or varied by other than Ceswei Software Pvt. Ltd.;
26.3.3 attendance to faults arising from the Client’s failure to comply with Ceswei Software Pvt. Ltd. instructions with regard to the use of the Services or any documentation or manuals provided by Ceswei Software Pvt. Ltd., or operator error or omission; or
26.3.4 attendance to faults attributable to the use or interaction of an Ancillary System with other software or systems with which it is not compatible.
26.3.5 Ceswei Software Pvt. Ltd. will charge its standard employee charge out rates (as published from time to time by Ceswei Software Pvt. Ltd.) in addition to the Fees for the carrying out any remedial work described in clauses 26.3.1 to 26.10
26.4 Ceswei Software Pvt. Ltd. will use its reasonable endeavours to provide the Support Services
26.5 Scope of Support Services
26.6 Ceswei Software Pvt. Ltd. will at no additional charge to the Client initially install the standard operating system Software on to the Client System or, where appropriate, the Equipment. Any re-install will incur a charge, such charge will be detailed on the Ceswei Software Pvt. Ltd. website.
26.7 Ceswei Software Pvt. Ltd. will operate a helpline service to assist the Client and its staff in relation to the Client’s use of the Services and the identification and correction of Defects. Assistance via this helpline service may be requested by the Client and provided by Ceswei Software Pvt. Ltd., by telephone, e-mail or helpdesk ticket system provided by Ceswei Software Pvt. Ltd.. The helpline service will be obtained by telephoning and or, e-mailing such numbers or addresses or logging into such ticketing systems, as are notified by Ceswei Software Pvt. Ltd. from time to time. For the avoidance of all doubt the helpline service can only be obtained by using the preceding methods of contact. Any other method applied or used by the Client or its staff shall not be deemed as a request for assistance and Ceswei Software Pvt. Ltd. may at its sole discretion choose not to answer such a request.
26.8 If a Defect occurs, the following procedure will be followed:
26.8.1 the Client will notify Ceswei Software Pvt. Ltd. of the Defect and provide such information and assistance as Ceswei Software Pvt. Ltd. reasonably requires in connection with such Defect; and
26.8.2 Ceswei Software Pvt. Ltd. will analyse the Defect and use its reasonable endeavours to rectify the Defect in question or propose a solution in connection with the same and of being notified of the same.
26.9 Software upgrades will be at the discretion of Ceswei Software Pvt. Ltd. and Ceswei Software Pvt. Ltd. will not be required to provide notice of such upgrades. Ceswei Software Pvt. Ltd. will also provide maintenance for the server hardware.
26.10 These additional terms may be amended by Ceswei Software Pvt. Ltd. at any time and without notice to the Client. Any changes will be published on the website and will be deemed to have been accepted 7 days after publication.
v 1.0 September 2017 Edited & Customised by: Ceswei Software Pvt. Ltd., JP Nagar, 5th Phase, Bangalore