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Please read and click to accept our terms and condtions:

Acceptance of Terms & Conditions and Order

1. Your contract will be with Podsystem Ltd (“Podsystem”), but Podsystem has the right to transfer this contract to a 3rd party (including Tata Communications) at any time.
2. By paying for SIM cards, data, Top-Ups, SMS, CSD and/or voice services (or other mobile network services) or billing services (collectively or singularly referred to as Product) to mokanix.io, the Customer acknowledges that he has been informed of and agrees to these Terms & Conditions for Pre-Pay (PRE-PAY) products and any other verbal, written or implied pre-contractual relations will be superseded by these Terms & Conditions.
3. Only on delivery of products by mokanix.io, mokanix.io agrees to be bound by these Terms & Conditions. mokanix.io reserves the right, at its sole discretion, not to supply any Customer order.
4. The Customer explicitly acknowledges that his Purchase Conditions will not apply and that these Terms & Conditions constitute the entire agreement between mokanix.io and the Customer. Furthermore, the Customer acknowledges that in entering into this agreement it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in this agreement.

Delivery

5. Unless agreed otherwise, the Customer will bear all costs of shipping products to the Customer, including re-deliveries.
6. mokanix.io shall bear no liability, consequential or otherwise for delay in delivering any Product supplied to the Customer.

Prices, Payments & Usage

7. Unless otherwise agreed in writing the prices and Contract Lengths for the Products will be as advertised at https://mokanix.io/pricing. Unless indicated otherwise, prices are exclusive of VAT and other applicable taxes.
8. Payments by the Customer will be either; made in advance of delivery and usage of the SIM card, or – if agreed by mokanix.io– by the end of the month in which the SIMs are used so long as mokanix.io is holding a deposit to cover one month’s usage for all the Customer’s SIMs. If invoices are not paid prior to the beginning of the next month, then mokanix.io will use the deposit held to cover the invoices, and no SIMs will be activated until the deposit is replenished.
9. Usage will be limited to an agreed level which will be dependent upon where the usage has taken place. Usage within a more expensive zone (e.g. Zone 3 as per the coverage table at https://mokanix.io will result in a lower usage allowance than that in a less expensive zone (e.g. Europe). Once this level is reached, regardless as to whether the SIM card was used intentionally, unintentionally, mistakenly or by another user, no further usage can be undertaken without further payment.
10. SIMs on PRE-PAY Products will stay active for an agreed period of time from the date of activation. If no Top-Up or purchase of another bundle of usage (i.e. further payment for usage) has been made within this period of time, unless agreed otherwise, the SIM will be deactivated and the unused data will not be refunded or carried over even if the SIM is reactivated at a later date.
11. No credits or refunds will be given for either an initial purchase of the SIM card (whether including or not including data usage) or for subsequent Top-Ups or additional bundles of usage.
12. At its own discretion, mokanix.io reserves the right to refuse any payments and not provide SIM cards or Top-Ups or additional bundles of usage.
13. In the event of a significant increase in charges or minimum charges by a supplier or mobile network on Products provided by mokanix.io, mokanix.io reserves the right, with 30 days’ notice, to change its prices for services for that Product. In this eventuality the Customer has a right of termination as set out in clause 30.

Warranty & Liability

14. In no event shall mokanix.io be liable to Customer for any kind of indirect damage, such as but not limited to any injury, damage, loss of use, loss of profit or claims of any third party based upon a claim for breach of warranty or claim of liability.
15. mokanix.io’s liability under these Terms & Conditions or in connection with its performance is expressly limited to the express provisions in these Terms & Conditions and the maximum sum of any and all claims will be the limited to the cost of Products supplied to the Customer in the preceding year or £10,000 whichever is the lower. mokanix.io makes no express or implied warranties, representations or endorsements regarding any merchandise, information, products or services provided in connection with these Terms & Conditions. Except for gross negligence and intent, mokanix.io shall not be liable to the Customer and/or its customers and users for any direct or indirect loss or damage (including economic losses or any loss or profit) arising out of or in connection with the performance of its obligations under this agreement. Under no circumstances shall mokanix.io be liable for any indirect or consequential losses.
16. mokanix.io does not guarantee the fault free working of the services and especially the fault free working of mobile networks. mokanix.io is not liable for any service or proof of service of Customer, which is carried over mokanix.io’s or any other mobile network. mokanix.io is also not liable for operators ceasing or terminating mobile or other services. Under no circumstances shall mokanix.io be liable for any direct, indirect or consequential damages, including but not limited to damages that result from the Users’ use of or inability to access any part of the Product or the Product’s functionality, or User’s reliance on or use of information and services provided on or through the Product or damages that result from mistakes, omissions, interruptions, loss, theft, or deletion of files, packet data or other information, errors, viruses, defects, delays in operation or transmission, or any failure of performance.
17. Except as expressly stated elsewhere in the Agreement, all representations, warranties, conditions and other terms, whether express or implied (by common law, statute, collaterally or otherwise) are hereby excluded. Furthermore, mokanix.io make no warranty as to any fitfulness for any particular purpose.
18. The Customer shall indemnify mokanix.io and hold mokanix.io harmless from and against all losses, damages, expenses (including, without limitation, legal expenses), costs and liabilities for personal injury, loss of life or personal property damage arising out of or in connection with (a) any breach of these Terms and Conditions by Customer; (b) the Customer’s negligent act or omission (c) any claims, demands, actions or proceedings made by any person or entity (including, without limitation, any Regulator) arising out of or in connection with the provision or use of the Product by the Customer (unless the same arises as a result of any breach of these Terms & Conditions by mokanix.io or mokanix.io’s negligent act or omission).
19. The provisions of Clauses 14,15,16,17 and 18 shall survive the termination or expiry of these Terms & Conditions.

Customer Obligations

20. The Customer is responsible for ensuring that any hardware equipment, or software application running on that equipment, that uses a Product provided by mokanix.io complies with any and all requirements of all GSM networks and will not cause any damage or interruption to any mobile phone network. The customer accepts all liabilities for damage or interruption to any mobile phone network caused as a direct result of the hardware equipment or software application running on that equipment. If the Customer is unsure whether the equipment or software being used may cause any damage to a mobile phone network, the customer may request mokanix.io to gain approval prior to use. Whether approval is sought is at the sole discretion of mokanix.io.
21. The Customer shall ensure that neither the Customer Content nor the Customer Data or its supply to or use by any End-user pursuant to these Terms & Conditions shall infringe the rights of any third parties or any laws or Regulations (including, without limitation, the Data Protection Directive (95/46/EC), the Directive on Privacy and Electronic Communications (2002/58/EC), the Electronic Commerce Directive (00/31/EC) and the Distance Selling Directive (97/7/EC), and any national implementations thereof, in any country where any message is originated, delivered or in respect of which any of service provided by the Product are performed.
22. The Customer agrees to comply with reasonable instructions as mokanix.io may from time to time notify to the Customer in regards to using the Product. However, even without such instructions, the Customer will not breach any laws, standards or codes, including but not limited to SIM Boxing, or infringe a third party’s rights, or breach any content requirements or codes stipulated by any relevant authority. Furthermore, the Customer shall refrain, and prevent others, from using the Product for any purpose other than that intended by the relevant telecommunications operator, in any way whatsoever, including ‘’annoyance’’, “spamming’’ or any other form of harassment, creating, or having third parties create, connections with buy lines (090x numbers) on a large scale or committing criminal offences or use the Product in a way which interferes with other users or harasses or restricts any other user from using or enjoying the Hosting MNO Network or the internet. Customer shall be liable for any damage, costs or usage (at standard overuse rates or rates charged by the network to mokanix.io– whichever is the higher), arising as a result of unlawful or fraudulent use of the Product, regardless as to whether the Customer was aware of such use or not. Fraudulent use includes, but is not limited to, using the SIM in a way that was not agreed with mokanix.io, including via satellite modem, WAP, voice, SMS, USSD and use of an APN which was not provided by and agreed with mokanix.io. Fraudulent use can only be prevented by canceling the SIM off the network. Once a SIM is registered on the network (SIMs are registered on the network prior to delivery to customer) there may be some services that are impossible to block. Therefore, whilst mokanix.io will endeavour to ensure that all services are blocked when requested, use of any services apart from those agreed with mokanix.io will be deemed to be fraudulent use.
23. The Hosting MNO, as a supplier of mokanix.io, has an independent right to claim for damages suffered as a result of the Customer’s failure to comply with clause 22. Therefore the Hosting MNO is allowed to directly claim for damages from the Customer.
24. Any SIM card we supply to you remains the property of mokanix.io but it is your responsibility to keep it safe. We reserve the right to recall any SIM card from you at any time to enhance or maintain the quality of the Services.
25. To the extent that mokanix.io makes the Customer aware or the Customer becomes aware of any company that provides Products to mokanix.io then the Customer hereby agrees not to make contact with such company (for example a national mobile network) without mokanix.io’s consent and accordingly there will be a non-circumvention obligation in that regard. It is understood and agreed by the Customer that money damages would not be a sufficient remedy for any breach of this clause and that the mokanix.io shall be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach and the Customer further agrees to waive any requirement for the security or posting of any bond in connection with such remedy. Such remedy shall not be deemed to be the exclusive remedy for the breach of this clause but shall be in addition to all other remedies available at law or equity to the mokanix.io. The Customer will also ensure that its customers or users will abide with this clause.
26. International Security. Customer represents, warrants and covenants that Customer: (a) is compliant in all respects relevant to this Agreement with all applicable sanction or embargo laws and regulations in effect from time to time, including trade and economic sanctions maintained by the United States Treasury Department’s Office of Foreign Assets Control (“OFAC”), and any other enabling legislation or government order relating thereto (collectively “Sanction Laws”); (b) is not listed on, or owned or controlled by an entity or person on, the U.S. Department of Treasury list of Specially Designated Nationals or any similar list in place in any jurisdiction where Customer is conducting business; (c) is not located in or organized under the laws of a country subject to U.S. or E.U. trade embargo (collectively, “Restricted Persons”); (d) will take all such steps as prudent to ensure that it will not provide Product to Restricted Persons; and (e) will not use the Product, or allow them to be used, for any purposes prohibited by applicable Sanction Laws, including nuclear, chemical, or biological weapons proliferation, or development of missile technology. Notwithstanding any other provision in this Agreement, mokanix.io reserves the right to terminate this Agreement immediately upon written notice to the Customer if mokanix.io reasonably determines that Customer is not in compliance with this Paragraph 26 or that its actions are causing mokanix.io to be exposed to prosecution or liability for violation of Sanction Laws.
27. In order to preserve the integrity of the network, mokanix.io reserves the right to request the Customer to change the firmware of their device so that it does not stop and start authentication requests and/or data session requests (including retries) more than on average 30 times per hour over any consecutive 12 hour period. If requested, the firmware change needs to be completed within 5 working days otherwise mokanix.io has the right to immediately without notice cease the use of that SIM card and mokanix.io will not be responsible for any consequential or other costs as a result of the SIM’s cessation.

Force Majeure

28. Either party’s performance of any part of these Terms & Conditions, other than payment obligations, shall be excused to the extent that it is hindered, delayed or otherwise made impractical by:
29. the acts or omissions of the other party or any Network Operator;
30. flood, fire, earthquake, strike or riot;
31. or any other cause (whether similar or dissimilar to those listed) beyond the reasonable control of that party (collectively referred to as “Force Majeure” below).
32. If a default due to an Event of Force Majeure shall continue for more than three months then either party may terminate its contract with the other without any liability to the other.

Service Suspension & Termination

33. mokanix.io may at any time immediately suspend all or part of the Product it provides until further notice without incurring any liability:
34. if it is obliged to comply with an order, instruction or request of Government, or emergency services organization, or other competent administrative authority; or
35. it needs to carry out work related to exceptional upgrading or maintenance of its facilities where those facilities must cease operation; or
36. in order to prevent damage or degradation of mokanix.io’s contracting party’s network integrity which may be caused by whichever reason; or
37. for behaviour that in mokanix.io’s reasonable discretion may be deemed to be illegal; or
38. in order to protect mokanix.io, at its sole discretion, from legal liability which relates to a breach of obligation and/or warranties by Customer; or
39. if any SIMs have undertaken a level of usage either in the amount and number of transmissions or costs, that exceeds the expected level of use; or
40. in case of notifications or signs of fraud or abuse of service; or
41. the services of one or more of the Network Operators upon which the provision of the Product hereunder is dependent suspends its provision of those services to mokanix.io under the terms of its or their relevant agreement(s) with mokanix.io; or
42. if payments have not been made in accordance with these Terms & Conditions.
43. Agreement of these Terms & Conditions may be terminated prior to expiration of the Term by notice in writing as follows:
44. by either party in the event the other has failed to perform any material obligation required to be performed under these Terms & Conditions and such failure is not corrected with thirty (30) days from receipt of written notice advising of such failure from the other party.
45. by the Customer after a period of 30 days in the event of a significant change in price as described in clause 13.
46. by mokanix.io by immediate notice in the event that one or more of the Network Operators upon which the provision of Services hereunder is dependent terminates its provision of those services to mokanix.io under the terms of its or their relevant agreement(s) with mokanix.io.
47. by mokanix.io by immediate notice in the event that the Customer is in material breach of its obligations under Clause 20, 21, 22, 25, 26 or 27 above.
48. by either party in the event that the other party (being a company) enters into liquidation (other than for the purposes of a bona fide reconstruction or amalgamation), enters into a voluntary arrangement with its creditors, has a receiver, administrative receiver or administrator of all or any of its undertakings or assets appointed, or is deemed by the relevant statutory provisions under the applicable law to be unable to pay its debts or (if an individual) presents or has presented against him a bankruptcy petition or (if a non UK national or corporation) shall suffer anything analogous to these matters to occur to him or it.

Disclosure

49. The Customer agrees to:
50. the disclosure to any telecommunications company, debt collection agency, credit reference agency, credit or fraud monitoring scheme, security agency or credit provider of any information relating to the Customer’s performance in meeting its obligations under these Terms & Conditions
51. any disclosure as may be permitted by mokanix.io’s Data Protection Act Registration and Data Protection Act 1998.
52. any disclosure required as a result of an order of any court of competent jurisdiction or by statutory authority.

Waiver & Severability

53. No waiver by either party of any breach of these Terms & Conditions by the other party shall be considered as a waiver of any subsequent breach of the same or any other provision.
54. If any provision of these Terms & Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Terms & Conditions and the remainder of the provision in questions shall not be affected thereby.

Governing Law & Term

55. This Agreement shall continue in force until the earlier of
56. the termination of this agreement as set out in clause 30 or
57. the SIM is no longer active.
58. These Terms & Conditions shall be governed by and construed and interpreted in accordance with the laws of England and Wales and will be subject to the exclusive jurisdiction of the relevant courts of England and Wales.

Your use of the mokanix is governed by the following terms and conditions:

  1. Definitions

 

Affiliatemeans an entity that now or in the future, directly or indirectly controls, is controlled by or is under common control with a Party.

 

Customer means the entity so named on the COF.

 

Customer Order Form(s)orCOF(s)means a request for Service submitted by Customer in the form designated by Supplier (including any attachments) and accepted by Supplier in accordance with this Agreement setting out matters relating to Supplier’s delivery of Services to Customer (in all events to the exclusion of any Customer proposed terms and conditions of purchase, purchase order(s) or other Customer proposed terms of business).

 

Customer Premises means the location or locations occupied by Customer or Customer’s End Users to which Service is delivered.

 

Electronic Signature” or “ESmeans a signature that consists of one or more letters, characters, numbers or other symbols in digital form incorporated in, attached to or associated with a human readable electronic version of this Agreement, or applicable COF, using Tata Communications’ or its designated third party ES platform.

 

End Usermeans any person or entity deriving or making use of the Services through Customer including but not limited to, Customer, an Affiliate of Customer or a customer of Customer.

 

Facilitiesmeans any and all devices supplied by Supplier that are used to deliver the Supplier Services, including but not limited to all terminal and other equipment, wires, fiber optic cables, lines, circuits, ports, routers, switches, cabinets, racks, private rooms and the like.  Facilities shall not include any such devices sold to Customer by Supplier or owned by Customer.

 

Governmental Authoritymeans any governmental or quasi-governmental body, whether foreign or domestic, including any department, agency, commission, bureau or other administrative or regulatory bodies, courts, public utilities and communications authorities (e.g., the U.S. Federal Communications Commission, USAC  or Telecom Regulation Authority of India).

 

“India Based Services” mean those Services which are telecommunications services which originate from and terminate into India at two or more points in India. Such Services may include without limitation national private leased circuit services, national dedicated ethernet services and domestic virtual private network services.

 

“India Global Services” mean those Services which are international telecommunications services where an Indian domestic portion of such services terminates into one or more points in India. Such Services may include without limitation global dedicated ethernet services, global virtual private network services.

 

“India Specific Customer” means the Customer entity that is incorporated in or formed under or established under the laws of India.

 

“India Specific Supplier” means the Supplier entity that is incorporated in or formed under or established under the laws of India.

 

Non-Indian Customer” means the Customer entity that is incorporated in or formed under or established under the laws of a country or state other than India.

 

Personal Informationmeans any information that may identify an individual, including without limitation names, addresses, telephone numbers, electronic addresses, passwords, credit card numbers or other account data, customer proprietary network information, or any information regarding an individual that is protected under any Privacy Laws applicable to the Services.

 

Privacy Lawsmeans any applicable law, regulation or binding policy of any Governmental Authority that relates to the security and protection of personally-identifiable information, data privacy, trans-border data flow or data protection.

 

Services Feesmeans charges for Supplier Services (including but not limited to monthly recurring charges and non-recurring charges) as identified in the COF and Service Schedules.

 

Servicesmeans all services set forth in one or more COF(s).

 

Service Schedulesmeans the forms so entitled (including any applicable statement of work) setting forth details of specific Services ordered by Customer pursuant to a COF.  References in any Service Schedule to the “General Terms and Conditions for Delivery of Service”, “Agreement”, “Master Services Agreement” or “MSA” shall be deemed a reference to this Agreement.

 

Service Term” or “Minimum Service Periodmeans the minimum duration for each Service or each component of the Service, as defined in the relevant Service Schedule or COF and calculated from the Service Commencement Date, continuing thereafter in accordance with Section 2.1 of this Agreement.

 

Suppliermeans the Tata Communications entity named in the applicable COF.  For the purposes of all remedies and limitations of liability set forth in this Agreement, Supplier means Supplier, its Affiliates and its and their employees, directors, officers, agents and representatives.

 

Supplier Networkmeans the telecommunications network which is owned and/or leased and operated and maintained by Supplier or its Affiliates.

 

  1. 2. Supplier Services

 

2.1          Term/Service Fees.  The term for each Service shall commence on the Service Commencement Date and continue for the duration of the Minimum Service Period (“Initial Term”).  At the end of the Initial Term, the Service Term shall automatically renew on a month-to-month basis until terminated by either Party in accordance with this Agreement (the Initial Term and any extension thereof is referred to as the “Service Term”). Customer agrees to pay for the Supplier Services for the duration of the Service Term or such longer time as Customer actually uses the Supplier Services.

 

2.2          Payment.  Billing for the Supplier Services shall commence in accordance with the COF. Supplier shall invoice all Service Fees, monthly (partial months will be pro-rated based on a calendar month) in advance except for charges that are dependent on usage which shall be billed in arrears.   Customer shall pay all amounts due within thirty (30) days from the date of invoice to the bank account designated by Supplier from time to time.  Unless otherwise specified in the COF, all amounts shall be invoiced and paid in U.S. Dollars.

 

2.3          Disputed Invoices. In the event Customer disputes in good faith any portion of Supplier’s invoice, Customer must pay the undisputed portion of the invoice and submit a written claim for the disputed amount, together with all information relevant to the dispute (including account numbers, circuit IDs and the reason for the dispute).  All disputes must be submitted to Supplier within forty-five (45) days of receipt of the first invoice for the applicable charges.  Customer acknowledges that it is reasonable for Supplier to require Customer to dispute charges within that time, and Customer therefore waives the right to dispute any charges not disputed within the time frame set forth above. Customer will be solely responsible for all charges incurred respecting the Services even if such charges were incurred through or as a result of fraudulent or unauthorized use of the Services.

 

2.4          Credit Approval and Deposits.  Supplier reserves the right to conduct a credit check of Customer at any time.  Customer hereby authorizes Supplier to obtain, and upon request shall assist Supplier in obtaining, information about Customer’s financial condition from third parties, including without limitation banks, credit reporting agencies and other businesses that provide like information.  Upon Supplier’s request, Customer will make a deposit or provide other security for the payment of Service Fees or any other charges, as specified by Supplier, (i) as a condition to Supplier’s acceptance of any COF, or (ii) in the event Customer fails to comply with the payment terms set forth in Section 2.2 twice in any twelve (12) month period, as a condition to Supplier’s continuation of delivery of any Services.  The deposit or other security will be held by Supplier as security for payment of the Service Fees.  When the provision of Services to Customer is properly terminated in accordance with this Agreement, the amount of the deposit will be credited to Customer’s account and any remaining credit balance will be refunded within thirty (30) days of such termination.  Customer acknowledges and agrees that any failure by it to comply with any request made by Supplier under this Section 2.4 shall constitute a material breach of this Agreement.

 

2.5          Taxes and Fees.

 

(a) All charges for Services are net of applicable taxes.  Except for taxes based on Supplier’s net income, Customer will be responsible for payment of all applicable VAT, GST, consumption tax, use, excise, access, bypass, franchise or other like taxes, fees, charges or surcharges whether now or hereafter enacted, however designated, imposed on or based on the provision, sale or use of the Supplier Services (hereafter “Taxes”.)

 

(b)  If Customer is or was required by law to make any deduction or withholding from any payment due hereunder to Supplier, then, notwithstanding anything to the contrary contained herein, the gross amount payable by Customer to Supplier will be increased so that, after any such deduction or withholding for Taxes, the net amount received by Supplier will not be less than Supplier would have received had no such deduction or withholding been required.  If any taxing or Governmental Authority asserts that Customer should have made a deduction or withholding for or on account of any Taxes with respect to all or a portion of any payments made hereunder, or that Supplier should have collected certain Taxes from Customer which Supplier did not collect, Customer hereby agrees to indemnify Supplier for such Taxes and hold Supplier harmless on an after-tax basis from and against any Taxes, interest or penalties levied or asserted in connection therewith.

 

(c)          The following additional provisions shall be applicable where Customer Order Form has been entered between: (1) India Specific Supplier and India Specific Customer; or (2) India Specific Supplier and Non-Indian Customer for supply of Services in India; in accordance with provisions of Section 2.1(a) of the Agreement.

 

(i) In case of any change in rate of Taxes or basis of levy of Taxes or any other change which results in a higher Tax rate being applicable to an invoice already issued for goods or Services provided by Supplier, such additional Tax shall be borne and payable by the Customer.

 

(ii) Customer shall not upload or make any amendment in relation to the Supplier’s invoice on the Governmental Authority’s goods and services tax network (GSTN) portal (or by any other name known in future) without informing the Supplier in advance. Further, where such changes are made by or on behalf of the Customer on the GSTN portal without prior notification to the Supplier, and where Supplier receives any notification from GSTN portal in regard to such changes, Supplier reserves the right to reject such changes or not act upon such changes on the GSTN portal.

(iii) Supplier will raise and issue a valid tax invoice, and receipt voucher along with other documents, strictly as per the details mentioned in the COF that has been signed by the Customer. Customer shall provide accurate details of the Customer Premises in the COF in accordance with the requirements of applicable goods and services taxation laws failing which Supplier shall proceed to issue the invoice on the basis of the Customer Premises address available to the Supplier.

 

(iv) In case of supply of Services, where the place of supply is dependent on the registered address provided by the Customer under the COF, such registered address would be treated as ‘location of service recipient’ on the records of the Supplier as required under applicable goods and services taxation laws.

 

(v) In case any taxation claim, penalty, credit loss or related claim is made against the Supplier on account of Customer’s failure to provide the correct address and or details in the COF, the Customer shall indemnify the Supplier against any such claim, penalty, credit loss or interest etc., as the case may be. Additionally, if any cost is incurred by the Supplier (including but not limited to tax, interest, or penalty) due to non-compliance with applicable goods and services taxation laws by or on behalf of the Customer, then the Customer shall indemnify the Supplier for any such cost, tax, penalty, interest etc. payable or paid by the Supplier.

 

(vi) Where any discount on charges has been provided by the Supplier to the Customer, before the supply of goods or Services, such discount shall be mentioned in the COF and on the applicable invoice. The net amount of the invoice shall be treated as consideration for the supply of such goods and Services.

 

(vii) In case of any price adjustments scenarios which include price revision, bandwidth upgrade, re-rating of traffic, parallel upgrade, etc., the Supplier may make an adjustment in the invoices and make the same available to the Customer.

 

(viii) Allocation of consideration value in relation to fixed lease line Services:

 

(1) In case of India Based Services consideration towards Services will be allocated in proportion of the Services to be availed of by each point of termination/origination in India.  Supplier will issue an invoice from each state in which each such point is located at a proportionate percentage or value of the total consideration ascribed to each such point. Such value or percentage will be identified in the relevant COF.

 

(2) In case of India Global Services where only one point is located within India, Supplier will issue an invoice for full consideration from the state in which such point is located within India.  However, in case two or more points are located in India, Supplier will issue an invoice for proportionate percentage or value of total consideration from each of the states in which each such point is located within India. Such value or percentage will be identified in the relevant COF.

 

(3) In case of link based Services such as internet leased line services, where there is only one point of installation with respect to such link based products or services, Supplier will issue an invoice for full consideration from the state in which such point is located within India.

 

(4) In each of the above-mentioned cases under sub-section (1) to (3), where the Customer has not provided in the Customer Order Form the details of Customer’s GST registration number and address of the state in which the place of supply is determined, credit of taxes paid may not be available to the Customer.

 

2.6          Customer-Provided Equipment and Customer Configuration.  If requested by Customer, Supplier may, at its option, install certain Customer-provided communications equipment.  Unless otherwise agreed by Supplier in writing, Supplier will not thereafter be responsible for the operation or maintenance of such Customer-provided equipment. Customer shall be solely responsible for the compliance of its own equipment with applicable standards and for obtaining any necessary approvals or authorizations prior to its use. Supplier will not be responsible for the transmission or reception of signals by Customer-provided equipment or for the quality of, or defects in, such transmission or reception.  Customer shall ensure that Customer-provided equipment does not interfere with or otherwise degrade the operation of the Facilities or the Supplier Network.  Supplier shall have full control over the configuration of the Supplier Network used in providing the Service and shall be entitled to alter the configuration.

 

2.7          Services Provided by Supplier Affiliates.  If a COF provides for the provision of Services in a jurisdiction other than a jurisdiction within which Supplier is authorized to provide services, such Services may be provided to Customer and/or to Customer’s End User by an Affiliate of Supplier and the Supplier may coordinate or manage that Affiliate’s Services in that jurisdiction.  In certain jurisdictions where an Affiliate of the Supplier is providing the Services, then the relevant Supplier Affiliate has the right to require a letter of undertaking or similar document (“LOU”) from Customer and/or Customer’s End User in a format prescribed by the Supplier Affiliate.  Supplier and the Supplier Affiliate shall have no obligation to provide any Services until it receives the LOU.  If a COF requires the delivery of Services in a jurisdiction where, in order for such COF to be enforceable, additional terms must be added, the Parties shall incorporate such additional terms in the COF (preserving to the fullest practicable extent this Agreement).

 

  1. 3. Obligations of the Parties; Customer Premises

Customer will allow Supplier access to and use of the Customer Premises to the extent required by Supplier for the installation, connection, inspection and scheduled or emergency maintenance or removal of the Facilities relating to the Services.  Customer will be responsible for providing and maintaining at its own expense, the level of power, heating and air conditioning necessary to maintain the proper environment for the Facilities on the Customer Premises. Customer will provide, and will ensure Supplier is provided, a safe place to work and comply with all laws and regulations regarding the working conditions on the Customer Premises.  In the event that Customer fails to meet its obligations regarding the Customer Premises hereunder and, as a result, Supplier is unable to install or continue the delivery of Services, then notwithstanding the absence of Services, Customer will pay all Service Fees for such Services during such period of time. Customer will provide the correct Customer Premises contact details and address(es) for installation and provision of the Service in the applicable COF. Supplier will not be liable for any delays in the installation or provision of Service resulting from Customer’s error, discrepancy, change or relocation relating to the Customer Premises. To the extent Customer changes the supplied Customer Premises contact details, addresses or specifications, Customer will communicate such changes in the format prescribed by Supplier with Supplier’s prior written consent (not to be unreasonably withheld).

 

  1. Ownership; Facilities

Except as otherwise agreed in writing, title to all Facilities shall remain with Supplier.  Supplier will provide and maintain the Facilities in good working order.  Customer shall not, and shall not permit others to, rearrange, disconnect, remove, repair, attempt to repair, or otherwise tamper with any Facilities, without the prior written consent of Supplier.  The Customer shall ensure that the Facilities shall not be used for any purpose other than that for which Supplier provides them.  In no event will Supplier be liable to Customer or any other person for interruption of service or for any other loss, cost or damage caused or related to improper use or maintenance of the Facilities by Customer or third parties provided access to the Facilities by Customer.

 

  1. Default/Termination

Except as otherwise required by law, if, after the Service Commencement Date, Customer: (i) fails to pay any amount required under this Agreement when due and such failure continues for ten (10) days after written notice to Customer that the same is due and payable; (ii) fails to comply with any other material provision of this Agreement and such noncompliance continues for thirty (30) days after written notice to Customer thereof; or (iii) Customer cancels or terminates Service at any time before completion of the Initial Term or any renewal Term, then Supplier may elect, in its sole discretion, to pursue one or more of the following courses of action, as applicable: (A) terminate Customer’s Service, whereupon Customer agrees to pay to Supplier, within ten (10) days of such termination: (1) an amount equal to the total of any and all waived installation charges as reflected on the terminated COF(s), (2) an amount equal to one hundred percent (100%) of the Service Fees payable for the unexpired remainder of the first twelve (12) months of the Service Term plus, if applicable, fifty percent (50%) of the Service Fees payable for the unexpired remainder of months thirteen (13) through the end of the Service Term(s) of the terminated Service or COF(s), plus (3) any documented third party charges or expenses not covered by (1) and (2) above incurred by Supplier in respect of the terminated COF (including any Local Loop charges); (B) take immediate appropriate action to enforce payment, including suspension or discontinuance of all or any part of the Services, and/or (C) pursue any other remedies as may be provided at law or in equity.

 

  1. 6. Liability and Limitation of Liability

6.1          Each Party shall indemnify the other from and against any claims by third parties (including any Governmental Authority) and expenses (including legal fees and court costs) arising from damage to tangible property, personal injury or death caused by such Party’s negligence or willful misconduct.  Customer shall also indemnify, defend and hold Supplier harmless from any and all claims (including claims by any Governmental Authority seeking to impose penal or criminal sanctions) (i) relating to Customer’s or its End Users’ use of the Services; and/or (ii) claims arising from Customer’s breach of any applicable law, rule or regulation. The indemnified Party under this Section: (i) must notify the other Party in writing promptly upon learning of any claim or suit for which indemnification may be sought, provided that failure to do so shall have no effect except to the extent the other Party is prejudiced thereby; (ii) shall have the right to participate in such defense or settlement with its own counsel and at its sole expense, but the other Party shall have control of the defense or settlement; and (iii) shall reasonably cooperate with the defense.

 

6.2          Limitations. Notwithstanding any other provision hereof, neither party shall be liable for (a) any indirect, incidental, special, consequential, exemplary or punitive damages; or (b) any damages for lost profits, lost revenues, loss of goodwill, loss of anticipated savings, loss of customers, loss of data, interference with business OR COST OF PURCHASING REPLACEMENT SERVICES; ARISING OUT OF THE PERFORMANCE OR FAILURE TO PERFORM UNDER THIS Agreement, whether or not caused by the acts or omissions or negligence (INCLUDING GROSS NEGLIGENCE OR WILFUL MISCONDUCT) of its employees or agents, and regardless of whether such party has been informed of the possibility OR likelihood of such damages.  FOR ANY LIABILITY NOT EXCLUDED BY THE FOREGOING, SUPPLIER SHALL IN NO EVENT BE LIABLE IN AN AMOUNT THAT EXCEEDS, IN THE AGGREGATE FOR ALL SUCH LIABILITIES, THE most recent TWELVE (12) MONTHS OF CHARGES COLLECTED BY SUPPLIER PURSUANT TO the APPLICABLE COF GIVING RISE TO THE LIABILITY.

 

6.3          Limitation For Services-Related MattersSUPPLIER’S SOLE LIABILITY AND CUSTOMER’S SOLE REMEDY FOR DAMAGES ARISING OUT OF OR RELATING TO ANY ACT OR OMISSION RELATING TO THE FURNISHING OF OR THE FAILURE TO FURNISH SERVICES (INCLUDING BUT NOT LIMITED TO MISTAKES, OMISSIONS, INTERRUPTIONS, FAILURE TO TRANSMIT OR ESTABLISH CONNECTIONS, FAILURE TO SATISFY SERVICE LEVELS OR SPECIFICATIONS, DELAYS, ERRORS OR OTHER DEFECTS) IS LIMITED TO ANY APPLICABLE CREDIT ALLOWANCES DUE AND/OR CUSTOMER’S RIGHT TO TERMINATE A PARTICULAR SERVICE UNDER THE APPLICABLE SERVICE LEVEL GUARANTEE AS SET FORTH IN THE RELEVANT SERVICE SCHEDULE(S).

 

6.4          CUSTOMER ACKNOWLEDGES AND AGREES THAT THE FOREGOING LIMITATIONS AND EXCLUSIONS OF LIABILITY ARE REASONABLE AND ARE A MATERIAL INDUCEMENT FOR SUPPLIER ENTERING INTO AND PROVIDING SERVICES PURSUANT TO THIS AGREEMENT.  NOTWITHSTANDING THE ABOVE, Nothing in this Agreement shall be construed as limiting the liability of either Party for (A) personal injury or death resulting from the negligence of a Party or its employees, (B) FRAUD OR FRAUDULENT MISREPRESENTATION, OR (c) wilful misconduct.

 

6.5          Disclaimer of Warranties.  EXCEPT FOR WARRANTIES EXPRESSLY MADE IN THIS AGREEMENT, SUPPLIER MAKES NO WARRANTIES OR REPRESENTATIONS EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, AND FITNESS FOR A PARTICULAR USE OR NON-INFRINGEMENT.

 

  1. Miscellaneous Provisions

7.1          Confidentiality.  “Confidential Information” means any non-public information disclosed by one party (the “Disclosing Party”) to the other (the “Receiving Party”), which the Receiving Party may gain access to or knowledge of as a result of this Agreement.  The Receiving Party shall keep confidential and not disclose the Confidential Information, and shall use its best efforts and take all reasonable steps to protect the Confidential Information from any use, reproduction, publication, disclosure or distribution.  Confidential Information may be disclosed to the Receiving Party’s employees, agents and representatives on a need-to-know basis, and only if such employees, agents or representatives agree to be bound by the obligations of this Section.  The Receiving Party shall promptly notify the Disclosing Party of any known unauthorized use or disclosure of the Confidential Information and shall cooperate with the Disclosing Party in any litigation brought by the Disclosing Party against third parties to protect its rights.  Each Party acknowledges and agrees that in the event of a material breach of this Section, the non-breaching Party shall be entitled to seek immediate injunctive relief, without limiting its other rights and remedies

 

7.2          Force Majeure.  Neither Party will be responsible for any delay or failure in performance caused by fire, explosion, war, strike, embargo, governmental requirement, civil or military authority, Act of God, or similar causes beyond such Party’s reasonable control.

 

7.3          Application of Tariffs/AUP.  Supplier may elect or be required to file with the appropriate regulatory agencies tariffs respecting the delivery of certain Services.  In the event that such tariffs are filed respecting Services ordered by Customer, then (to the extent such provisions are not inconsistent with the Service Fees) the terms set forth in the applicable tariff shall govern Supplier’s delivery of, and Customer’s consumption or use of, such Service but only to the extent required by law, rule or regulation. Customer’s use of Service shall at all times comply with Supplier’s then-current Acceptable Use Policy and Privacy Policy, which are available on Supplier’s web site (www.tatacommunications.com).

 

7.4             Personal Information.

(a)             Customer confirms it has read and understood Supplier’s privacy policy, a copy of which is available on http://www.tatacommunications.com/policies/privacy-policy, as updated from time to time.

(b)             Customer hereby consents to Supplier collecting and processing Personal Information relating to Customer during the tenure of this Agreement for:

  • the provision of Supplier’s Services that Customer has subscribed to, and for legal, administrative and management purposes, such as customer service, technical support, billing and reconciliation, operational maintenance, fraud detection and prevention, as required by law and to communicate with Customer; and
  • sending information to Customer via email, phone or postal mail about Supplier’s products, services and events that may be of interest to Customer.

(c)             Supplier may make such information available to its Affiliates, employees, agents, contractors and others who provide products or services to Supplier (such as advisers), and to regulatory authorities and potential purchasers of Supplier.

(d)             Customer acknowledges and understands that in order for Supplier to provide the Services, Personal Information may be transferred to countries outside the contracting jurisdiction, including the United States of America and/or India. Customer warrants to Supplier that Customer will obtain the necessary consents for such transfer of Personal Information.

(e)          Each Party represents and warrants to the other Party that it complies with its obligations under relevant Privacy Laws.  Customer further represents and warrants to Supplier that it shall provide proper notices to, and obtain necessary consents from, its end-users and/or employees about how their Personal Information may be used, stored, and disclosed to service providers engaged by Customer.

 

7.5          Governing Law; Dispute Resolution. This Agreement shall be governed by the laws of the jurisdiction as set out in the COF without reference to its conflict of law provisions and the Parties irrevocably submit to the exclusive jurisdiction of the courts of the jurisdiction set out in the COF and any court of appeal therefrom.  If the COF does not state a governing law or jurisdiction, then the laws of the state and/or country (as applicable) where the Supplier contracting entity which signs the COF is registered or incorporated will apply and the Parties irrevocably submit to the exclusive jurisdiction of the courts of such jurisdiction and any court of appeal therefrom.  In the event Customer fails to pay any invoiced amount which it has not disputed in accordance with Section 2.3, then Supplier may seek to recover the sum due in any court of competent jurisdiction without reference to its conflicts of law and Customer hereby submits to the jurisdiction of any such court.

 

7.6          Notice. Any notice or communication required or permitted to be given hereunder may be delivered by hand, sent by overnight courier, email (with confirmation of delivery and followed up by registered post) or facsimile (with confirmation of delivery), at the addresses set forth in the applicable COF(s) or at such other address as may hereafter be furnished by either Party to the other by notice in accordance herewith.  Such notice or communication will be deemed to have been given as of the date it is delivered, emailed, or faxed, as applicable.

 

7.7          Assignment.  Neither Party may assign this Agreement and/or a COF without first obtaining the other Party’s written consent; except that, however, either Party may assign this Agreement and/or a COF to an Affiliate or as part of a corporate reorganization, consolidation, merger or sale of substantially all of its assets by providing advance written notice to the other party of any such proposed assignment.  This Agreement and/or the COFs will bind and inure to the benefit of each Party and each Party’s successors and permitted assigns.

 

7.8          Relationship of Parties; No Third Party Beneficiary. Supplier and Customer are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between Supplier and Customer. Supplier and Customer agree that there shall be no third party beneficiaries to this Agreement or the COF.

 

7.9          Entire Understanding.  This Agreement constitutes the entire understanding of the Parties related to the subject matter hereof.  All prior written or oral agreements, understandings, communications or practices between Customer and Supplier are hereby superseded insofar as they relate to the Supplier Services hereunder.  This Agreement may be amended only in writing signed by a duly authorized representative of each of Supplier and Customer.

 

7.10           Electronic Signature Acceptance.  The Parties expressly acknowledge and agree: (i) a human readable electronic version of this Agreement or a COF containing the Parties’ Electronic Signatures, or containing a mix of physical signatures and Electronic Signatures of the Parties, shall constitute an original version of this Agreement or COF, as applicable; (ii) a Party’s use of a key pad, mouse or other device to select an item, button, icon or similar act/action, to otherwise insert their Electronic Signature into this Agreement or COF constitutes that Party’s signature as if it had manually signed the same; (iii) Tata Communications’ or its designated third party ES platform shall be accepted as a valid authentication technology; (iv) no certification authority or other third party verification is necessary to validate each Party’s Electronic Signature; and (v) the lack of such certification or verification will not in any way affect the validity of that Party’s signature or the enforceability of this Agreement or COF, as applicable.