MASTER SERVICE AGREEMENT (MSA)
SPECIFIC TERMS AND CONDITIONAL AGREEMENT
ON THE RENTAL OF A DEDICATED SERVER
This Agreement is made and entered into on the 7th September, 2017 at Mumbai for the period for ______________ starting from ____________________ until ______________________, unless extended by any subsequent written indication.
BY AND BETWEEN
QualiSpace Web Services Pvt. Ltd., a Company incorporated under the Indian Companies Act, 1956, having its Registered Office at 602, Avior – Nirmal Galaxy, Opp. Johnson & Johnson, LBS Road, Mulund (W), Mumbai – 400080, represented by its Authorized Signatory Mr. Hirenkumar Shah hereinafter referred to as the “QUALISPACE”/ “FIRST PARTY” (which expression shall, unless repugnant to the context or meaning thereof, be deemed to mean and include its subsidiaries, group companies successors, administrators, executors, successors-in-interest and assigns)of the ONE PART;
Client Ltd, A Company incorporated under the Indian Companies Act, 1956, having its Registered Office at _______________ and, represented by its Authorized Signatory ____________________________ hereinafter referred to as the “CUSTOMER”/ “SECOND PARTY” (which expression shall, unless repugnant to the context or meaning thereof, be deemed to mean and include its subsidiaries, group companies’ successors, administrators, executors, successors-in-interest and assigns) of the OTHER PART;
SECTION 1: PURPOSE
The purpose of these Specific Terms and Conditions, which are complementary to QualiSpace’s General Terms and Conditions of Service, is to define the technical and financial terms and conditions pursuant to which QualiSpace agrees to rent and host on its platform the Customer’s dedicated internet server.
The Customer hereby recognizes expressly that QualiSpace shall not participate in any way in the design, development, realization and set–up of the Customer’s website and/or services and of its management and administrative computer tools within the meaning of this agreement.
In the event of a conflict between the General Terms and Conditions and these Specific Terms and Conditions, the latter shall prevail.
SECTION 2: MEANS
The QualiSpace platform server, where the Customer’s dedicated server will be installed shall be accessible to the public on the internet network via stations connected to the network.
SECTION 3: TECHNICAL SUPPORT
Technical assistance is made available to the Customer by QualiSpace pursuant to the terms and conditions provided under the General Terms and Conditions of Service.
SECTION 4: DELIVERY OF SERVICE TERMS AND CONDITIONS
QualiSpace shall inform the Customer by e-mail when the dedicated server becomes available. Invoicing shall begin on the effective date of the online launching of the dedicated server.
The server shall become available within a maximum of 7 days of the effective payment date by the Customer of the purchase order.
After such deadline has expired and if QualiSpace fails to make available the server to the Customer, said Customer shall be entitled to request the cancellation of the transaction and the reimbursement of amounts already paid.
The server rented to the Customer shall remain the property of QualiSpace. Any server rented or hosted by QualiSpace has a static IP address. The server shall be hosted on QualiSpace’s server platform.
The Customer is the administrator of the server rented from QualiSpace. He/It may install on his/its own the software applications on the server. He/It is fully responsible for the software installation, and QualiSpace may not be held liable for any server malfunction following such installation.
SECTION 5: QUALISPACE’S OBLIGATIONS
QualiSpace agrees to use all due care and due dispatch to provide a quality service in compliance with professional standards and the state of the art. QualiSpace agrees to:
5.1 Keep the material in good working condition. In the event of failure of the material rented out to the Customer, QualiSpace agrees to replace any defective parts at its earliest convenience, except in cases where it is not liable for the failure, or of any other intervention which would require an interruption of service beyond the usual replacement wait times. In the latter case, QualiSpace shall immediately notify the Customer.
5.2 Ensure access to the server via internet 24 hours a day, every day of the year. QualiSpace reserves the right to interrupt the server for a technical intervention designed to improve its operation.
5.3 At the customer’s request intervene quickly in the event of a malfunction not resulting from a misuse of the server by the Customer.
5.4 Ensure that its tools are maintained at the highest quality level in compliance with professional rules and standards.
SECTION 6: QUALISPACE’S LIABILITIES
QualiSpace reserves the right to interrupt the rented server’s internet connection if such server constitutes a danger regarding the maintenance of security on QualiSpace’s hosting platform, whether this is as a result of the piracy of such server, the detection of a flaw in the security system, or the need to update the server.
QualiSpace shall, to the extent possible, notify the Customer in advance and within a reasonable deadline, by informing him/it of the nature and the length of the intervention, in order to enable such Customer to make arrangements in that regard. QualiSpace shall restore the connection as soon as the corrective measures have been completed.
QualiSpace shall not be liable for the content of information, sound, text, images, elements of form, or data accessible on the websites hosted on the Customer’s server, which are transmitted or placed online by the Customer for any reason whatsoever.
QualiSpace shall not be liable in case of a violation, in whole or in part, of an obligation or of a network operators’ flaw in transmission to the internet, especially if it involves its access provider(s).
THE CUSTOMER ACKNOWLEDGES THAT QUALISPACE AUTHORIZES OTHER SERVICE USERS TO INSTALL THEIR WEBSITES AND SERVERS IN ITS FACILITIES. QUALISPACE SHALL NOT BE LIABLE IN ANY WAY WHATSOEVER FOR DAMAGES, COSTS OR LOSSES INCURRED BY THE CUSTOMER (OR BY THE LATTER’S OWN CUSTOMERS) AND CAUSED BY ANOTHER SERVICE USER’S ACT, MATERIAL OR FAILURE TO ACT. QUALISPACE’S LIABILITY IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE) BY STATUTE, OR OTHERWISE, TO THE CUSTOMER (OR THE LATTER’S OWN CUSTOMERS), CONCERNING PERFORMANCE OR NON-PERFORMANCE, AS APPLICABLE, OF ANY OBLIGATION CREATED UNDER THIS AGREEMENT, WITH REGARD TO ANY CLAIM, SHALL BE LIMITED AND SHALL NOT, IN THE AGGREGATE, EXCEED THE TOTAL FEES PAID BY THE CUSTOMER TO QUALISPACE UNDER THIS AGREEMENT IN THE THREE (3) MONTHS PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM AROSE. IN NO EVENT SHALL QUALISPACE BE LIABLE FOR ANY LOST PROFITS, OR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES.
SECTION 7: CUSTOMER’S OBLIGATIONS AND LIABILITIES
7.1 With respect to hosting, the Customer shall remain solely and exclusively responsible the server. It is therefore the Customer’s responsibility to take all the required measures to insure the server. The Customer may either elect to become his/its own insurer or to purchase appropriate insurance. In such cases, the Customer shall not be entitled to request any reimbursement, replacement or compensation whatsoever from QualiSpace for damages or failures to the server.
7.2 The Customer acts as an independent entity and therefore assumes all the risks related to his/its activities. The Customer is solely liable with regard to the use of the services and websites hosted on his/its dedicated server, the content of the information transmitted, posted or collected, including operations and updates, as well as with regard to all files, including address files. The Customer agrees, more specifically, to comply with the rights of third parties, human rights, and intellectual property rights, such as copyrights, patent rights or trademarks. QualiSpace shall therefore not be liable, in any way whatsoever, for the content of information transmitted, posted or collected, used, and updated, as well as for any files, including address files.
QualiSpace alerts the Customer as to the legal consequences that could result from unlawful activities on the server, and disclaims any joint and several liabilities regarding the use of the data made available by the Customer to internet users.
The Customer shall also refrain from any breach or attempted breach activities (such as port scanning, sniffing, spoofing, etc.) while using the server.
In such cases, the Customer shall not be entitled to the reimbursement by QualiSpace of amounts already paid in.
7.3 The Customer alone shall bear the consequences of a server malfunction resulting from the use by his/its staff or by any other person to whom the Customer has provided his/its password(s). The Customer shall also bear alone the consequences resulting from the loss of such password(s).
7.4 In order to maintain the security level of the Customer’s server, and of all its servers on its hosting platform, QualiSpace agrees to notify the Customer of the availability of updates for its applications where security flaws have been reported. If these application updates are not carried out at QualiSpace’s request, QualiSpace reserves the right to interrupt the server’s connection to the internet network.
Similarly, in the event QualiSpace detects that a Customer’s computer is subject to piracy, an e-mail shall be sent to such Customer, advising him/it that he/it should use a reinstallation procedure in order to ensure the integrity of his/its server and of the entire hosting platform. The Customer may order such procedure from QualiSpace after backing up all his/its data. While awaiting the computer’s reinstallation, QualiSpace reserves the right to interrupt the server’s connection to the internet network. QualiSpace is not required to transfer the data from the pirated system to the new system; such operation is the Customer’s responsibility. QualiSpace hereby agrees to limit its intervention to the installation of the new system.
7.5 For security reasons, QualiSpace can proceed with the immediate suspension (without notice) of any server on which would be offered paid or free public proxies, such as IRC, VPN, TOR for which QualiSpace have knowledge of misuse, fraudulent or unlawful use.
7.6 The Customer shall take all required measures to ensure the backup of his/its data.
7.7 The Customer shall pay for any license or right to use he/it has agreed to with QualiSpace, or with a third party, failing which, QualiSpace reserves the right to suspend the service without prior notice.
7.8 QualiSpace reserves the right to check the Customer’s compliance with the provisions regarding use of the service.
QualiSpace reserves the right to suspend the service without prior notice, as provided under section 7 of QualiSpace’s general service terms and conditions, in the event the Customer fails to comply with QualiSpace’s specific and general terms and conditions of service and, generally, with all laws and regulations in force, as well as with rights of third parties.
7.9 The Customer is reminded that QualiSpace’s intervention in connection with the contract on a dedicated server is limited to installing the server. QualiSpace only insures in that regard the rental of a specialized infrastructure, without any control whatsoever over the content of the hosted websites or the contractual relationship between the sites’ editor and their Web host, an QualiSpace Customer under a dedicated server rental contract. The Customer shall therefore be considered a Web host.
7.10 The Customer acknowledges and agrees to be also subject to the laws applicable in the territory on which the equipment are installed. Hence, the Customer acknowledges QualiSpace’s right to suspend his service if it is used for a prohibited activity at the place of physical location of the equipment provided by QualiSpace. The Customer also agrees that the same right applies on IP addresses and the Customer acknowledges QualiSpace’s right to suspend an IP if it is used for a prohibited activity at the place of registration of the IP. In the event of such use, QualiSpace may suspend all the IP address of the Customer registered in the same location.
SECTION 8: BANDWIDTH
Bandwidth: computer data rate in bits per second, and determining the exchange capacity between the server and the QualiSpace network.
QualiSpace guarantees bandwidth up to the rate shown on the QualiSpace site for the concerned range of server. The bandwidth is no longer guaranteed when the server or servers are used for the following activities:
8.1 Downloading platform;
8.2 Platform for watching online videos;
8.3 Anonymization service (proxy), CDN service;
8.4 Storage Platform or file exchange (including but not limited to cyberlocker);
8.5 Service bypassing limitations imposed by downloading platforms (downloaders);
8.6 Server(s) used for downloading and sending files on peer to peer networks (including but not limited to seedbox).
In addition, QualiSpace cannot guarantee the bandwidth when the server activity requires an intensive bandwidth use. In this case, QualiSpace will contact the client to explore his consumption in detail.
SECTION 9 : MEASURES AGAINST SPAM SENDING FROM QUALISPACE NETWORK
QualiSpace is implementing a set of technical measures to fight against the sending for fraudulent e-mails as well of SPAM from its infrastructures.
To this end, QualiSpace performs some verification on the traffic sent from the server used by the client to port 25 (SMTP) on the Internet. The traffic is analyzed by automatic tools .
Emails sending are neither filtered nor intercepted but checked with a time lag of a few seconds. These operations are performed in parallel and in sequentially before the emails are sent to the Internet.
Similarly, no operation is performed on the emails sent: QualiSpace does not tag emails, and does not alter in any way the emails sent by the Client. No information is stored by QualiSpace during these operations outside of statistics.
This operation is done regularly and is fully automatic. No human intervention is performed when checking traffic to port 25 (SMTP port).
In the case of the emails sent from a Client’s server identified as spam or fraudulent, QualiSpace will inform the Client by email and will block the SMTP server port.
QualiSpace does not retain any copies of emails sent from the SMTP Server even when identified as spam.
The Customer may request the unblocking of the SMTP port through the management interface.
Any new email identified as spam will result in a new blocking of the SMTP port for a longer time.
From the third blocking, QualiSpace reserves the right to refuse any request to unblock the SMTP port.
SECTION 10: MITIGATION (PROTECTION FROM DOS AND DDOS ATTACKS)
QualiSpace is implementing a protection against Denial of Service (DOS) and Distributed Denial Of Service (DDOS) computer attacks and provided when made in a massive way. This feature is intended to prevent the Customer’s operations to be inaccessible during the attack.
This object of this feature is to check the traffic to the Customer’s Service and from outside of the QualiSpace network. The illegitimate qualified traffic is then rejected upstream in the Client’s infrastructure, allowing legitimate users to access the Service despite the undergoing cyberattack.
These safeguards do not prevent other computer attacks such as SQL injection, bruteforce, security vulnerabilities’ exploitation etc.
Due to the great complexity of this Protection Service, QualiSpace is not subject to an obligation of means; it is possible that the attack is not detected by the tools in place, and that the tools developed do not prevent the operation of the Service to be interrupted.
Depending on the nature of the attack and its complexity, QualiSpace deploys a protection at different levels of traffic to preserve its infrastructure and the Customer Service.
Mitigation is activated only after the attack is detected by QualiSpace tools, and a minimum of 48 hours. Therefore until the activation of mitigation, the Service is frontally affected by the attack, which can lead to its unavailability.
As soon as the cyber attack is identified and mitigation is automatically activated, mitigation can not be disabled until the end of a 48 hours period.
Throughout the duration of the activation of mitigation, QualiSpace can not guarantee the availability and accessibility of the Client’s applications but will try to limit the impact of this attack on Customer’s Service and on QualiSpace’s Infrastructure.
If, despite the activation of mitigation, the cyber attack is likely to jeopardize the integrity of the QualiSpace’s or of other QualiSpace customers, QualiSpace will strengthen its protective measures which may cause a degradation of the Customer Service or impact its availability.
Finally, it is possible that some of the data generated by the attack can not be detected by the QualiSpace equipment and reach the Customer Service. The effectiveness of mitigation also depends on the configuration of the Customer’s Service; as such, it is up to them to verify that they have the necessary skills to ensure proper administration.
The mitigation does not exempt the Client to secure its Service, to implement security tools (firewalls …), to regularly update its system, backup its data or to ensure the security of its computer programs (scripts, codes …).
SECTION 11: RATES AND INVOICING
The rates indicated on QualiSpace’s do not include applicable taxes.
Period Pricing payable as per terms
The rates and quotes given by QualiSpace at the time of siging and executing this agreement are fixed to the Customer for this agreement, based on the range of services and the rent term selected by the Customer when ordering. The rate indicated on the purchase order edited by QualiSpace shall represent the total amount to be paid by the Customer.
Because the offer may not be modified once the contract is in effect, the Customer shall be required to determine which offer best suits his/its needs.
The main IPv4 address of a dedicated server is included in the server‘s renting cost and can never be charged for as an independent element of the service.
QualiSpace can offer a number of additional IPv4 addresses, which may or may not be charged for.
Since the growing scarcity of IPv4 addresses in different countries across the world means growing purchase costs, QualiSpace may apply charges to IPv4 addresses that have previously been offered free of charge.
In the case where an IPv4 address that had previously been free of charge becomes billable, the client will be offered the choice to either accept the charge, or release the concerned IPv4 address.
The Customer agrees and shall pay for any change in license cost from time to time on top of the above agreed prices, as the case may be from time to time. QualiSpace will intimate to Customer for any price changes against all license provided to the Customer under the ambit of this Agreement from time to time, as the case may be.
SECTION 12: CONFIDENTIALITY
QualiSpace agrees to regard and preserve as confidential, all Confidential Information of Customer which may be obtained from any source as a result of this Agreement. In maintaining confidentiality hereunder, QualiSpace agrees it shall not disclose or make available to any third party, person, firm or enterprise, reproduce or transmit, or use (directly or indirectly) for its own benefit or the benefit of others, any Confidential Information of Customer.
QualiSpace shall ensure that its employees, consultants or any other personnel comply with the terms of this Clause.
In the event QualiSpace violates or causes to be violated any of the provisions of this Clause during the term of this Agreement and for a period of 1 (one) year after it’s expiry or sooner termination, Customer shall, without prejudice to its other rights to claim injunctive relief and other remedies, be entitled to claim from QualiSpace, and QualiSpace shall be liable to pay to Customer liquidated damages.
QualiSpace acknowledges the exclusive proprietary right of Customer to all Confidential Information and agree that nothing in this agreement nor the performance of any Services shall be construed as giving rise to any proprietary interest for QualiSpace or any right of lien or set off thereof.
QualiSpace shall not,
(a)use the Confidential Information in any manner or for any purpose other than in connection with the provision of the Services under this Agreement,
(b)disclose, sell, assign or lease or otherwise provide the Confidential Information to third parties, or
(c)commercially exploit the same.
QualiSpace shall, upon the request of Customer immediately return to it all Confidential Information of QualiSpace in its possession or control, which is in a physical form or recorded or stored by electronic means or otherwise, including all copies thereof.
QualiSpace shall as per agreed timelines (monthly/bi-monthly/quarterly/yearly) purge/delete/return the Confidential Information to Customer and provide a certificate to this effect, and Customer in return shall provide duly certified copy of the aforesaid certificate to QualiSpace after reasonable verification. On receipt of such certified copy, liability of QualiSpace regarding such purge/deletion/return shall cease.
This Clause shall survive expiry or sooner termination of this Agreement and shall continue for a period of twelve (12) months from the date thereof.
The provisions of this Clause shall not apply to any information that:
- If it is already in the lawful possession of QualiSpace as of the date of disclosure hereunder;
- If it is already in the public domain, or become available to the public other than through an act or omission of QualiSpace or of any other person to whom such information is disclosed pursuant to this Agreement;
- If it is acquired independently from a third party having lawful possession including the right to disseminate such information at the time it is acquired by QualiSpace;
- If it has previously been developed by QualiSpace entirely independently of the Confidential Information received from Customer; or
- If it is ordered to be disclosed by a competent court, or is required to be disclosed under applicable law, stock exchange regulations or any governmental order, decree, regulation or rule, provided that QualiSpace shall give prompt written notice to Customer in sufficient time prior to such disclosure in order to afford Customer an adequate opportunity to mount a proper defense in opposition to such order.
- Notwithstanding anything contained in this Agreement, QualiSpace hereby undertakes and agrees that it would not by default or otherwise share confidential information provided to QualiSpace by Customer or which came into the possession of QualiSpace for any reason whatsoever, with any individual, entity or any other person outside the pursuit of Customer provided that QualiSpace may share such information with its staff who have a need to know such information.
SECTION 13: SEVERABILITY
If any provision of this Agreement is declared by any judicial or other competent authority to be void, voidable, illegal or otherwise unenforceable it may be severed from this Agreement and the remaining provisions of this Agreement shall remain in full force and effect. The parties shall seek to amend such provision in such reasonable manner as achieves the intention of the parties without illegality.
SECTION 14: AMENDMENT
This Agreement or any of the terms contained herein shall not be amended except by a written document duly executed by the authorized representatives of both the Parties.
SECTION 15: ENTIRE AGREEMENT
This Agreement contains the whole Agreement between the parties and supersedes all previous written or oral agreements relating to it.
SECTION 16: TERMINATION
Either Party may cancel or terminate this Agreement before the expiry date mentioned above by giving 1 (One) months advance notice in writing to this effect to the other Party.
SECTION 17: TAX OBLIGATIONS
Each Party shall be liable to pay for their respective tax obligations.
SECTION 18: RELATIONSHIP
It is agreed between the Parties that this Agreement entered into between them is strictly on a principal to principal basis.
This document is not intended to and shall not be deemed to bring into existence a relationship of principal and agent, or employer and employee, or partners or a joint Venture between the Parties.
SECTION 19: QUALITY
While performing Services under this Agreement, QualiSpace and its employees shall ensure that its business and activities are conducted in such a manner that the reputation, standing, status and goodwill of Customer is in no way adversely affected or compromised.
The performance of the Services shall be of the standard and quality as mutually agreed between the parties in writing. If at any time Customer feels that the Services are not being performed as mutually agreed between the parties, QualiSpace shall take suitable steps to remedy the defects in the services. QualiSpace shall be solely responsible in the event that such defects are not remedied to meet the requirements of this agreement.
QualiSpace shall strictly adhere to all relevant manuals, instructions and information as mutually agreed between the Parties provided by Customer from time to time. QualiSpace shall provide Customer with up-to-date information relating to all activities undertaken by it for Customer and shall submit periodic written reports as Customer may require from time to time.
It is clearly understood that this Agreement is for provision of Services by QualiSpace in the best possible manner and to the best of QualiSpace’s ability, provided that the quality of the Services shall always be to the satisfaction of Customer.
SECTION 20: WAIVER
Any delay, inability, omission or failure of a Party to exercise any of its rights under this Agreement shall not affect or impair or be deemed to be a waiver of its rights under this Agreement and neither shall it be deemed to affect or impair such Party’s rights with respect to any continuing or subsequent default of the other Party of the same or different nature under this Agreement.
It is agreed that no specification in this Agreement of any particular remedy shall be construed as a waiver or prohibition of any other remedies in the event of a breach or threatened breach of this Agreement.
SECTION 21: NOTICE
Notices given under this Agreement must be in writing and shall be either delivered by hand or by Registered Post with Acknowledgment due/courier to the relevant party’s address as set out above or by fax. The acknowledgement by the other party shall be proof of delivery.
SECTION 22: COUNTERPARTS
This Agreement is executed in two Originals. Both the parties shall retain one original each.
SECTION 23: DISPUTE RESOLUTION
All disputes, controversies and differences arising out of or relating to this Agreement, including a dispute relating to the validity or existence of this Agreement
(“Dispute”) shall be referred to and resolved by arbitration in Mumbai, India under the provisions of the Arbitration and Conciliation Act, 1996; provided that, to the extent a party may suffer immediate and irreparable harm for which monetary damages would not be an adequate remedy as a result of the other party’s breach or threatened breach of any obligation hereunder, such party may seek equitable relief, including an injunction from a court of competent jurisdiction, which shall not be subject to this Section. The arbitration tribunal shall consist of one (1) arbitrator jointly appointed by the parties within fifteen (15) days from the date of the first recommendation for an arbitrator in written form for a party to the other. If the parties fail to agree on the appointment of such arbitrator, then the arbitrator shall be appointed as per the provisions of Arbitration and Conciliation Act, 1996. The proceedings shall be conducted in the English language. As part of the terms of the appointment of the arbitrator(s), the arbitrator(s) shall be required to produce a final and binding award or awards within six (6) months of the appointment of the sole arbitrator (jointly appointed by the parties). Parties shall use their best efforts to assist the arbitrator(s) to achieve this objective, and the parties agree that this six (6) month period shall only be extended in exceptional circumstances, which are to be determined by the arbitrator(s) in its absolute discretion. The arbitral award passed by the arbitrator shall be final and binding on the parties and shall be enforceable in accordance with its terms. The arbitrator shall state reasons for its findings in writing. The parties agree to be bound thereby and to act accordingly. All costs of the arbitration shall be borne equally by the parties.
SECTION 24: GOVERNING LAWS
This Agreement shall be governed by and construed in accordance with the laws of India and, subject to Clause 20, both Parties hereby unconditionally submit to the exclusive jurisdiction of the Courts at Mumbai as the case may be.
IN WITNESS WHEREOF, the PARTIES have signed and executed this Agreement on the above date, month and year first above written.
For and on Behalf of QualiSpace Web Services Pvt. Ltd. For and on Behalf of Client Ltd
Mr. Hirenkumar Shah, Director