THE FOLLOWING TERMS AND CONDITIONS (“TERMS”) APPLY TO YOUR USE OF THE WEBSITES OF PROFFUS, INCLUDING ANY CONTENT, FUNCTIONALITY, PRODUCTS, AND SERVICES OFFERED ON OR THROUGH SUCH WEBSITES (COLLECTIVELY, THE “WEBSITE”), WHETHER AS A GUEST OR A REGISTERED USER. THESE TERMS ALSO APPLY TO YOUR USE OF OTHER PROFFUS SERVICES THAT DISPLAY OR INCLUDE THESE TERMS (“ADDITIONAL SERVICES”). IN THESE TERMS, THE WEBSITE AND ADDITIONAL SERVICES ARE COLLECTIVELY REFERRED TO AS THE “SERVICES.”
PLEASE READ THESE TERMS CAREFULLY BEFORE YOU START TO USE THE SERVICES. BY USING THE SERVICES, YOU ACCEPT AND AGREE TO BE BOUND AND ABIDE BY THESE TERMS OF SERVICE. IF YOU DO NOT WANT TO AGREE TO THESE TERMS OF SERVICE, YOU MUST NOT USE THE SERVICES. IN PARTICULAR, WE WANT TO HIGHLIGHT SOME IMPORTANT TERMS, POLICIES, AND PROCEDURES IN THESE TERMS. BY ACCEPTING THESE TERMS:
1. Description of Services
“Services” in this Agreement, shall mean:
(i) Graphic Designing;
(ii) Digital Marketing;
(iii) Website Develpment;
(iv) Application Development;
2. Right to Use the Services
Proffus has agreed to grant to Customer a non- exclusive, non-transferable and revocable right to use the Services in accordance with the terms and conditions of this Agreement, and Customer has agreed to use the Services subject to such terms and conditions. The non-exclusive, non-transferable and revocable right to use the Services will cease to exist when this Agreement is terminated as per clause 16 on Termination of this Agreement. It is clarified that Proffus is not creating any right or interest in the Proffus Numbers in favour of the Customer or its Authorized Users under this Agreement except for the limited purpose as defined in this Agreement.
Also, Proffus or any of Proffus’ group companies and partners can use customer brand names, logos, and testimonials for marketing/promotion-related activities.
3. Restrictions and Limitations to the Right to Use the Services
Customer understands and agrees to the following restrictions and limitations that are applicable to the Customer’s right to use the Services under this Agreement:
(a) Proffus numbers provided by Proffus can be used only for Customer’s own use as mentioned in the documents. This number cannot be used for any other company without obtaining the requisite Authorization from the third party and prior written approval from Proffus.
(b) The change of name of Customer is not permitted as the Services or any other resources in use is not transferable. The change in name between the blood relatives/ legal heirs is permitted provided new Customer Acquisition Form (CAF), and all the procedure as for registering a new subscriber is followed, and Services, or any other resources are issued. However, after the change in name the connection shall be treated as new connection. In such case, change in address is not permitted. Further, No Objection Certificate from the original user shall also be taken. In case of death of the original Customer, death certificate will suffice instead of No Objection Certificate.
(c) The Services can be used only by Customer and/or a person whom Customer may specifically authorize to use Proffus Services, (hereinafter referred to as an “Authorized User”) for business communication purposes. It is hereby further clarified that Customers or its Authorized User(s) are not permitted to resell the right to use our Services.
(d) All the Customers either individual or bulk should intimate to Servetel, any change of address within one week of such change along with new proof of address. If during re-verification process by Proffus or any other Security Agencies, it is found that Customer address is not correct in the database, then the connection may be disconnected forthwith, and the Customer shall be solely responsible of any consequent hardship. The Customer shall be suitably advised by Proffus in this regard while booking for new connection. The database of Proffus must be updated at all points of time.
(e) Being a public cloud user, Customer will share the Services or Proffus’ telephony resources on a shared network. Customer experience may vary depending on volumes from other customers.
(h) Proffus is an intermediary and has no control over the way Customer use the Services. Customer is required to use the Services in accordance with all the applicable laws. If Customer uses the Services outside of India, Customer expressly understands and agrees that Customer is responsible for determining compliance with different laws, regulations, or customs that may apply in connection with Proffus use of the Services.
(i) In order to give Customer a better experience and/or to deal with certain external factors, Proffus reserves the right to modify the attributes and resources available to the APIs from time to time. Cutomer will be notified about any such changes made to the API through e-mail to the primary admin and through popup notifications in the application. Please note that Proffus will not be liable to Customer or any third party for such modifications to the API/(s) or adverse effects (if any) that may result to Customer from such modifications.
(j) The Services may not be available to Customer for use if Customer exceeds their Credit Limit as defined below in clause 4.1, if applicable.
(l) The standard delivery time for any service is one week starting from the date of receipt of payment, verification of KYC and acceptance by Servetel. However, the same is subject to the mutually agreed delivery lead times during the acceptance stage.
(m) Proffus ensures superior service. We are available for customer service from Monday to Friday, 8am to 9pm; and on Saturdays from 9am to 6pm, except in the case of a planned maintenance or when the telecommunication service providers’ networks and servers are down. The functionality of the Services will also be subject to limitations, delays and other problems due to the use of external infrastructure, technology and services. Customer understands that Proffus will not be responsible for any delays, default, or any other loss or damage caused by a person outside Proffus control.
(n) Before beginning a planned maintenance, Proffus will notify the Enhanced Customer Support registered contact details.
4. Charges, Bill Plan, Credit Limit and Invoice
4.1 Charges and Bill Plan: Customer agree to pay the charges for the use of the Services (hereinafter referred to as “Charges”) in accordance with the pricing and the bill plan to which the Customer would have subscribed as agreed over the email.
4.2 Credit Limit: If applicable, Customer’s current Credit Limit will be accessible. Customer agrees that it is Customer’s responsibility to ensure that the Credit Limit is not breached. Customer Credit Limit may be modified by Proffus during the use of Customer Services and the Term of this Agreement.
By “Credit Limit” Proffus means the maximum amount of credit that Proffus may extend to Customer for the use of its Services. Be sure to keep a tab on the Customer credit limit. If Customer breaches its credit limit, the Services will be suspended till the payment is received.
4.3 Payment of Invoices: Proffus will raise an invoice and it will be automatically settled against the prepayment deposit made by Customer in accordance with the Pricing and Bill Plan. Usage charges will be ongoing and deducted from the minutes purchased by the Customer, at the commencement of the Plan. The invoice(s) submitted by Servetel shall be subject to inspection and verification by the User and any discrepancies therein shall be brought to the notice of Proffus within 7 working days of receipt of the invoice(s). If necessary, Servetel shall modify and provide an amended invoice(s) and
User will make the payments as per the modified invoice(s).
Services to the Customer shall be suspended if bills remain unpaid for more than 10 days after the due date. The account shall get permanently closed, and all the associated resources will get released after 30 days of non-payment or non-renewal from due date.
All kind of payments are to be made in favour of Proffus. All tariffs, octroi, or other kind of taxes are applicable at the prevailing rates varying from time to time.
4.4 Revision of Charges: Before making any upward revision of Charges, Proffus will give Customer a 30 (Thirty) days’ prior written notice. However, in the event of any changes that result in rise in any third-party cost including but not limited to telecom operators etc., Servetel may revise the Charges payable by the Customer on giving a 15 (Fifteen) days’ prior written notice. In case there is a dispute with respect to the revised Charges between the parties, the parties will try to resolve the dispute through discussions from the date a party notifies such dispute. In case the dispute about revision of Charges stays unresolved, the parties can terminate this Agreement in accordance with clause 16 (Termination).
4.5 Disputed Invoice: In the event Customer disputes any Invoice, in whole or in part, Customer will notify Proffus within Ten (10) Days from the date of receipt of such an Invoice of Customer’s intention to do so.
4.6 Upon receipt of such a notification, parties will amicably discuss such a disputed Invoice and make all reasonable endeavours to resolve such a dispute.
5. Customer’s Representations and Warranties
Customer represents and warrant that:
5.1 Customer will ensure that he and/or his Authorized User(s) use the Services in accordance with applicable laws and this Agreement. It is clarified that Customer and/or its Authorized User(s) will not use our Services to make any calls or send any messages in contravention of the applicable laws. Before using our Services in any jurisdiction, Customer and/or its Authorized User(s) will familiarize themselves with all laws applicable to Proffus Services in such a jurisdiction and only use Servetel Services if and in the manner the law permits. Proffus provides no representation or warranty in this regard.
While using our Services, Customer and their Authorized Users must be sure to comply with all the laws applicable to them.
5.2 Our use of the service is subject to all applicable local, state, national laws and regulations (including without limitation those governing account collections, export control, consumer protection, unfair competition, anti-discrimination, securities laws and false advertising).
5.3 Customer and/or its Authorized User(s) will not copy, modify, duplicate, mirror, republish, download, transmit, license, sell, transfer, assign, display or otherwise commercially exploit or distribute all or any portion of the Proprietary Technology and the Services in any form or assist third parties in obtaining access to the Services or build a Services or service which competes with the Services.
5.4 Customer understands and agrees to use the service only for lawful purposes. At any time, Customer shall not use the service for any illegal, fraudulent, improper or abusive purpose or in any way, which interferes with Proffus’ ability to provide the service to other customers, prevents or restricts other customers from using the services, or damages any Proffus or other customer’s property. Prohibited uses include, but are not limited, to uses in connection with the following:
1. Behaviour that is obscene, threatening, harassing, defamatory, libellous, deceptive, fraudulent, malicious, infringing or invasive of another’s privacy.
2. Sending unsolicited bulk messages or advertisements, including voicemails or photocopies.
3. Harvesting or otherwise collecting information about others without their consent.
4. Creating a false Caller ID Identity or otherwise attempting to mislead others as to the identity of the sender or the origin of any communication made using the services.
5. Pretending to be anyone or any entity, Customer is not, including impersonating or misrepresenting as another person (including a celebrity), a civic or government leader or otherwise misrepresenting Customer’s affiliation with a person or entity.
6. Transmitting any material that may violate the intellectual property rights or other rights of third parties.
7. Violating any TRAI regulations concerning the transmission of technical data through the service.
8. Violation or non-adherence to any existing laws of the land governing the business associated with this agreement.
9. Data/Service usage that
a) belongs to another person and to which Customer does not have any right to use;
b) is grossly harmful, harassing, blasphemous, defamatory, obscene, pornographic, paedophilic, libelous, invasive of another’s privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or is otherwise unlawful in any manner whatsoever;
c) harms minors in any way;
d) deceives or misleads the addressee about the origin of such messages or communicates any information which is grossly offensive or menacing in nature;
e) threatens the unity, integrity, defence, security or sovereignty of India or any country, friendly relations of India or any country with foreign states, or public order or causes incitement to the commission of any cognizable offence or prevents investigation of any offence or is insulting to any nation;
f) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource;
g) is aimed at inflicting hatred or dissension based on ethnic groups, religions, races, and inter-groups;
h) relates to gambling is prohibited by law
i) relates to any extortion and/or threats;
j) leads to the spreading of false and/or misleading information resulting in consumer loss, whether knowingly or unknowingly; and/or
k) violates any law for the time being in force.5.5 Customer confirms and undertakes that the telecom resources provided to Customer are non-transferable and shall not be further assigned or transferred on any other commercial basis to any authorized person.
5.6 Further, Customer undertakes that they shall be personally responsible for any misuse of any telecom resources allocated to the Customer and are also liable for the proceedings that may be initiated by any of the government agencies/DoT for any acts, deeds & things that may be done/caused to be done or alleged to have been caused or done by them from the above mobile numbers and Customer will keep Proffus indemnified against any such proceedings.
5.7 Customer shall be solely liable for any transmissions sent through the service and that Proffus has no control over the content of any transmission.
5.8 Customer will abide by all applicable Proffus agreements, policies and procedures from time to time.
5.9 Customer shall not attempt to gain unauthorized access to the service, other accounts, or computer systems or networks connected to the service through password mining or any other means.
5.10 Customer shall not interfere with other customers or third parties’ use and enjoyment of the service or use the service in any manner which disrupts, prevents or restricts any other customer from using the service.
5.11 Customer shall be solely responsible for all acts or omissions that occur under Proffus Account or password, including the content of our transmission through the Service.
5.12 Customer and/or its Authorized User(s) shall protect the privacy of the information collected/received by them through the use of the Services.
5.14 Customer and/or its Authorized User(s) will only make system recordings and use such system recordings in accordance with the applicable laws.
5.15 Customer(s) and/or its Authorized User(s) agree to take approval of the Sender ID from Proffus before sending out any Transactional Messages via SMS/voice. Further, such a Customer agrees to send out a Transactional Message to a Subscriber pertaining to its services or activities only in response to a verifiable request from such a Subscriber and/or in accordance with applicable law (as amended from time to time).
“Transactional Message(s)” means the transactional message(s) as defined under the Telecom Commercial Communications Customer Preference Regulations, 2018 (as amended from time to time) or any other law as amended from time to time.
“Sender ID”, means the sender ID created by the Customer in accordance with the local telecom or other such applicable laws relating to commercial communication or otherwise, such as the Telecom Commercial Communications Customer Preference Regulations, 2018 (as amended or re-enacted from time to time) that are applicable to Customers.
5.16 Customer and/or its Authorized User(s) agree not to use Servetel Services to make a conference call or send a message to any Subscriber registered under the NDNCR and/or NCPR or any other applicable customer preference-based do-not-disturb database for sharing unsolicited commercial communication (except in accordance with the applicable law).
5.17 Customer is validly existing and in good standing under the applicable laws.
5.18 Customer has the full right, power, authority and capacity to execute this Agreement.
5.19 Customer and/or its Authorized User(s) have obtained and will continue to obtain a clear written consent from every person for (i) the purpose and (ii) the duration, for which their information will be processed by Proffus on Customer’s behalf during Customer use of the Services. This consent may be through letter or email or any other manner prescribed by the applicable data protection law. Customer also agrees to provide a copy of the written consent to Proffus immediately, upon request, and in such a manner so as not to cause Proffus or a service provider of Proffus, to be in violation of any applicable laws.
6. Know Your Customer Obligations
Customer agrees to provide with complete and accurate information at the Customer Info Page, KYC Page and such other URLs as informed to Customer by Proffus from time to time.
“Company Info Page” means Proffus company info page wherein you, if you are a Customer, are required to input details about your company such as your registered company address, tax deduction and collection account number (TAN), goods and services tax (GST) number and such other details as may be requested from time to time (if so required). The Company Info Page is accessible at https://customer.servetel.in/login, or maybe available at another location, indicated from time to time.
7. Data Sharing
7.1 During the Term of this Agreement, Customer will be able to download Customer Data and Servetel Data for the previous 1 Year. Customer Data and Proffus Data beyond this period may be made available to Customer on request, if commercially feasible.
“Customer Data” means the data provided by Customer and/or their Authorized User(s) in the course of Customer’s use of the Services. Customer Data will include (as applicable) phone numbers, email
addresses and names provided by Customer or their Authorized User(s) in relation to Customer’s use of the Services.
“Proffus Data” means the data automatically generated and recorded by Servetel system pursuant to Customer’s and/or Customer’s Authorized User(s)’ use of the Services which includes but is not limited to billing and pricing information, data about a call (time of call and duration), activities that Customer or Customer’s Authorized User(s) do in creating workflows (call work flows/ IVR/auto attendant) SMS templates, audio uploads and activities performed either by Customer or their Authorized User(s) in and during a call such as dual tone multi frequency key access and details of the Authorized User.
7.3 Before terminating this Agreement in accordance with clause 16 (Termination), Customer will be responsible for downloading the Customer Data and Proffus Data for their records.
7.4 On termination of the Agreement your Customer Data and Proffus Data will be deleted as soon as reasonably possible. However, it is hereby clarified that Proffus will retain Customer Data and Servetel Data if required by applicable laws.
8. Proffus Access
Customer and its Authorized User(s) agree to regularly regenerate the login passwords through Servetel dashboard in order to avoid unauthorized access to our Services through Customer account. In the event of any unauthorized access, Customer agrees to indemnify Proffus against all claims, loss or damage arising from such unauthorized access. Customer also agrees to pay the Charges for the use of the Services on account of such unauthorized access.
9. Regulatory Violation
Notwithstanding any other provision of this Agreement, a Customer agrees to indemnify Proffus against any liability that we may accrue due to a violation of the Regulations and other applicable law by such Customer and/or its Authorized User(s), while using Servetel Services, such as by sending out Promotional Message/(s) or Transactional Message/(s) or making conference calls for communicating unsolicited commercial information to any Subscriber registered under the NDNCR and/or NCPR and/or such similar consumer preference-based do-not-disturb database/register, without first obtaining the Subscriber’s necessary consent in the appropriate manner under applicable law
10. Regulatory Disclosure
Customer understands and agrees that in order to comply with the applicable laws, Servetel may either review or disclose the content of the conference calls or messages transmitted by Customer and/or Customer’s Authorized User(s) using Servetel Services under this Agreement and perform any other act, as may be required by law from Servetel. On request, Customer’s point of contact will provide all information that Servetel seeks within twenty-four Enhanced Customer Support. Customer agrees to provide all information required for compliance with the applicable laws, and in such a manner and in such a timeline so as not to cause Servetel or a service provider of Proffus, to be in violation of any applicable laws.
11. Intellectual Property Rights
1. Customer acknowledges that Proffus owns and has the right to use all the Intellectual Property Rights in our Services. Proffus is only granting a limited right to use Services (as stipulated in clause 3 (Right to Use the Services)) in accordance with this Agreement and are is granting Customer any Intellectual Property Rights in the Services (including any new software, content, corrections or enhancements, adaptations and additions made in relation to the Services).
2. Customer will not, at any time claim and/or apply for any right in and right to Proffus Services and any new software, content, corrections or enhancements, adaptations and additions in respect of our Services. Customer has agreed to assign to us all present and future rights (including Intellectual Property Rights), title and interests, in, over and upon any and all content, corrections or enhancements, adaptations and additions in relation to our Services, in India or any part of the world. Customer also agrees that the rights assigned to us by Customer are absolute, exclusive, perpetual and irrevocable. We will be entitled to transfer the rights to any person and use it anywhere in the world without requiring any interference or interruption from Customer.
12. Confidentiality Obligations
12.1 Parties agree that:
“Confidential Information” means all information disclosed (whether in oral, written, or other tangible or intangible form) by one party (hereinafter referred to as the “Disclosing Party”) to the other party (hereinafter referred to as the “Receiving Party”) concerning or related to this Agreement, Services or the Disclosing Party (whether before, on or after the Effective Date), be it expressly designated as confidential or not and that which may reasonably be inferred/ considered to be confidential from its nature or circumstances surrounding its disclosure. It is clarified that Confidential Information will include without limitation: (a) any data or information that is competitively sensitive material, and not generally known to the public, including, but not limited to, information relating to the Services; activities related to marketing, finance, operations; and our vendors/service providers; (b) any scientific or technical information, design, process, procedure, formula, or improvement that is commercially valuable and secret in the sense that its confidentiality affords a party a competitive advantage over its competitors; and (c) all confidential or proprietary concepts, documentation, reports, data, specifications, computer software, source code, object code, flow charts, databases, inventions, know-how, show-how and trade secrets, whether or not patentable or copyrightable.
12.2 The Receiving Party will maintain in confidence the Confidential Information of the Disclosing Party. The Receiving Party will use the same degree of care in protecting the Disclosing Party’s Confidential Information as the Receiving Party uses to protect its own Confidential Information from unauthorized use or disclosure, but in no event less than reasonable care. Any Confidential Information of the Disclosing Party will be used by the Receiving Party solely for the purpose of carrying out the Receiving Party’s obligations under this Agreement. Further, it is clarified that the Receiving Party may disclose the Confidential Information to its employees, advisors, professional consultants and lawyers (hereinafter referred to as “Representative/(s)”) on a strict need to know basis, provided such Representative/(s) have entered into a non-disclosure or other confidentiality agreement with the Receiving Party containing terms substantially similar to the terms of confidentiality contained in this Agreement.
12.3 Confidential Information will not include information that: (a) is in or enters the public domain without breach of the provisions of this Agreement through no fault of the Receiving Party; (b) the Receiving Party can demonstrate (from the files/documents in existence at the time of disclosure) was in its possession prior to first receiving it from the Disclosing Party; (c) the Receiving Party can demonstrate was developed by the Receiving Party independently and without use of or reference to the Disclosing Party’s Confidential Information; (d) the Receiving Party receives from a third-party without restriction on disclosure and without breach of a nondisclosure obligation; or (e) is required to be disclosed to our service providers, including payment gateway providers, pursuant to a legal proceeding or investigation; or (f) is required to be disclosed pursuant to a judicial or legislative order or proceeding; provided that, to the extent permitted by and practical under the circumstances, Receiving Party will provide to the Disclosing Party prior notice of the intended disclosure and an opportunity to respond or object to the disclosure; or if prior notice is not permitted or practical under the circumstances, a prompt notice of such disclosure.
13. Limitation of Liability
Proffus will not be liable to Customer or any third party for any indirect, special, incidental, exemplary, punitive or consequential damages of any kind, including but not limited to loss of profits, loss of use, loss of revenue, loss of goodwill, interruption of business, arising out of or in connection with this Agreement, whether in contract, tort, strict liability or otherwise, even if we have been advised as such or are otherwise aware of the possibility of such damages. To the maximum extent permitted by law, our total liability arising out of or in connection with this Agreement will be limited to the actual direct loss incurred by a Customer, up to a limit of Rupees one-month value of Customer service or Fifty thousand (INR 50,000/-) whichever is lower. In case where monthly value is not defined, then the monthly value will be calculated by dividing by 12 to arrive at the value.
14. Indemnity Obligations
Subject to clause 13 (Limitation of Liability) of this Agreement, Proffus and the Customer agree that: Customer (hereinafter referred to as the “Indemnifying Party”), at their sole expense, will defend, indemnify and hold Proffus, its directors and employees (collectively referred to as the “Indemnified Party”) harmless from and against any, damages, losses, settlements, liabilities, penalties, fines, costs and expenses (including, but not limited to, reasonable attorneys’ fees) resulting from any claim, suit, action or proceeding (hereinafter referred to as the “Claim”) against Proffus arising from or related to a breach or alleged breach of any provision of this Agreement by Customer and/or their Authorized User(s). The Indemnifying Party’s indemnification obligations under this clause 19 are conditioned upon the Indemnified Party: (a) giving notice of the Claim to the Indemnifying Party once the Indemnified Party becomes aware of the Claim; (b) However, it is clarified that Indemnified Party reserves the right to select and appoint its separate counsel in connection with the Claim. It is further clarified that if in the Indemnified Party’s view, the Indemnifying Party has not responded to and/or defended the Claim to the satisfaction of the Indemnified Party, the Indemnified Party reserves the right to assume control of the defence at the cost of the Indemnifying Party; and (c) providing reasonable cooperation to the Indemnifying Party and, at the Indemnifying Party’s request and expense, assistance in the defense or settlement of the Claim.
Without limiting Proffus’ express warranties and obligations under this Agreement, Proffus hereby disclaims any and all other warranties, express or implied, including but not limited to warranties of merchantability, title, non-infringement, and fitness for a particular purpose and warranties related to third-party equipment, material, services or software. Our Services are provided on “as is” basis to the fullest extent permitted by law. To the extent this disclaimer conflicts with applicable law, the scope and duration of any applicable warranty will be the minimum permitted under that law.
Proffus can guarantee services & issue from its own network only. Proffus shall not be liable, to the customer for any loss or damage suffered by the Customer due to any act or omission of third parties, If there is an issue at telephony operator or internet provider and it results in hamper or shutdown in our services, then Proffus will not be liable for the business loss of its Customers.
16. Term and Termination
16.1 Term: This Agreement will commence from the Effective Date and will remain in force unless terminated in accordance with the provision of clause
a) Customer may stop using the Services at any time at their sole discretion by sending an email to Proffus and Proffus will terminate this Agreement.
c) Customer agrees that we may terminate this Agreement, without cause, by providing Customer an advance notice of 30 (Thirty) days.
d) On termination of this Agreement for any reason, any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, will not be affected or prejudiced (including but not limited to our right to be paid for the use of our Services).
e) Upon termination of the services or agreement, Proffus may immediately deactivate or delete any service account and all related information and files in said account and bar any further access to such files, information, or the services. Proffus shall not be liable to Customer or any third party for any reason for terminating any use or access to the service.
Notwithstanding anything else contained in this Agreement, Customer agrees that clauses (Customer’s Representations and Warranties), (Intellectual Property Rights), (Confidentiality Obligations), (Limitation of Liability), (Indemnity Obligations), (Warranty), (Governing Law) and (Dispute Resolution) and such other clauses which by their nature and context are intended to remain binding post the termination of the Agreement, will survive and remain in effect even after the Agreement is terminated.
18. Entire Agreement
This Agreement and its schedules constitute the entire agreement between the parties and supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter Each party agrees that it will have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.
19. Governing Law
Customer understands and agrees that Servetel is operated in India and will be deemed to be solely based in India. This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation will be governed by and construed in accordance with the laws of India, without regard to conflicts of laws and principles that would cause laws of another jurisdiction to apply.
20. Dispute Resolution
All or any dispute arising out of or touching upon or in relation to the terms of this Agreement or its termination, including the interpretation and validity thereof and the respective rights and obligations of, the Parties shall be settled amicably by mutual discussion, failing which the same shall be settled through arbitration. The arbitration proceedings shall be governed by the Arbitration & Conciliation Act, 1996, or any statutory amendments, modifications or re-enactment thereof for the time being in force. A Sole Arbitrator, who shall be nominated by Servetel, shall hold the arbitration proceedings. The Courts at Delhi shall, to the specific exclusion of all other courts, alone have the exclusive jurisdiction in all matters arising out of/or concerning this Agreement, regardless of the place of execution or subject matter of this Agreement.
21. Restrictions on Transfer
Neither this Agreement nor any right or duty under this Agreement may be transferred, assigned or delegated by a party, by operation of law or otherwise, without the prior written consent of the other party. Notwithstanding the foregoing, each party will have the right to assign this Agreement to any successor to substantially all of its business or assets, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective representatives, administrators, successors and permitted assigns.
22. Invalid Provision
If any provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other provisions of this Agreement will nonetheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner adverse to any party. Upon such determination that any provision is invalid, illegal, or incapable of being enforced, if required, the parties will negotiate in good faith to modify this Agreement so as to affect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled.
23. Nature of Relationship
Nothing in this Agreement is intended to, or will be deemed to, establish any partnership or joint venture between any of the parties, constitute any party as the agent, franchisor, franchisee, employee, representative, owner or partner of the other party, or authorize any party to make or enter into any commitments for or on behalf of any other party, and the relationship between the parties will only be that of independent contractors.
All notices, requests, demands and other communications which are required or may be given under this Agreement will be in writing and will be deemed to have been duly given: when received, if personally delivered and an acknowledgement in writing is obtained; when transmitted, if transmitted by e-mail; upon receipt of an acknowledgement, if sent by registered post with acknowledgement due. In each case, notice will be sent to the respective addresses of the parties set forth below. Any change in the address of a party should be notified to the other party in a manner set out under this clause 24.
Any notice or other communication was given to a party under or in connection with this Agreement will be addressed to:
If to Proffus, at email@example.com
If to the Customer, customer’s registered email id as specified in the Company Info Page.
No failure or delay (in whole or in part) on the part of a party to exercise any right or remedy under this Agreement will operate as a waiver thereof or effect any other right or remedy. The waiver of one breach or default or any delay in exercising any rights will not constitute a waiver of any subsequent breach or default.
27. Force Majeure
Except for the obligation related to payment of Charges, neither party will be responsible for any failure to perform or delay attributable in whole or in part to any cause beyond its reasonable control, including but not limited to acts of God, government actions, war, civil disturbance, insurrection, sabotage, shortage of energy, or equipment, disruption of communication network/(s) or cloud storage facilities (hereinafter referred to as the “Force Majeure Event”). Provided however, that if a Force Majeure Event occurs, the affected party will, as soon as practicable:
(i) notify the other party of the happening of the Force Majeure Event and its impact on the performance of the obligations of the affected party under this Agreement; and
(ii) use all reasonable efforts to resolve any issues resulting from the Force Majeure Event and perform its obligations hereunder.