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
Aladdin Cloud 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 “Aladdin Cloud”/ “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;
The purpose of these Specific Terms and Conditions, which are complementary to Aladdin Cloud’s General Terms and Conditions of Service, is to define the technical and financial terms and conditions pursuant to which Aladdin Cloud agrees to rent and host on its platform the Customer’s dedicated internet server.
The Customer hereby recognizes expressly that Aladdin Cloud 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.
The Aladdin Cloud 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.
Technical assistance is made available to the Customer by Aladdin Cloud pursuant to the terms and conditions provided under the General Terms and Conditions of Service.
Aladdin Cloud 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 Aladdin Cloud 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 Aladdin Cloud. Any server rented or hosted by Aladdin Cloud has a static IP address. The server shall be hosted on Aladdin Cloud’s server platform.
The Customer is the administrator of the server rented from Aladdin Cloud. He/It may install on his/its own the software applications on the server. He/It is fully responsible for the software installation, and Aladdin Cloud may not be held liable for any server malfunction following such installation.
Aladdin Cloud 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. Aladdin Cloud agrees to:
5.1. Keep the material in good working condition. In the event of failure of the material rented out to the Customer, Aladdin Cloud 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, Aladdin Cloud shall immediately notify the Customer.
5.2. Ensure access to the server via internet 24 hours a day, every day of the year. Aladdin Cloud 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.
Aladdin Cloud reserves the right to interrupt the rented server’s internet connection if such server constitutes a danger regarding the maintenance of security on Aladdin Cloud’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.
Aladdin Cloud 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. Aladdin Cloud shall restore the connection as soon as the corrective measures have been completed.
Aladdin Cloud 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.
Aladdin Cloud 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 Aladdin Cloud AUTHORIZES OTHER SERVICE USERS TO INSTALL THEIR WEBSITES AND SERVERS IN ITS FACILITIES. Aladdin Cloud 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. Aladdin Cloud’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 Aladdin Cloud UNDER THIS AGREEMENT IN THE THREE (3) MONTHS PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM AROSE. IN NO EVENT SHALL Aladdin Cloud BE LIABLE FOR ANY LOST PROFITS, OR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES.
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 Aladdin Cloud 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. Aladdin Cloud 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.
Aladdin Cloud 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 Aladdin Cloud 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, Aladdin Cloud 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 Aladdin Cloud’s request, Aladdin Cloud reserves the right to interrupt the server’s connection to the internet network.
Similarly, in the event Aladdin Cloud 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 Aladdin Cloud after backing up all his/its data. While awaiting the computer’s reinstallation, Aladdin Cloud reserves the right to interrupt the server’s connection to the internet network. Aladdin Cloud is not required to transfer the data from the pirated system to the new system; such operation is the Customer’s responsibility. Aladdin Cloud hereby agrees to limit its intervention to the installation of the new system.
7.5 For security reasons, Aladdin Cloud 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 Aladdin Cloud 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 Aladdin Cloud, or with a third party, failing which, Aladdin Cloud reserves the right to suspend the service without prior notice.
7.8 Aladdin Cloud reserves the right to check the Customer’s compliance with the provisions regarding use of the service.
Aladdin Cloud reserves the right to suspend the service without prior notice, as provided under section 7 of Aladdin Cloud’s general service terms and conditions, in the event the Customer fails to comply with Aladdin Cloud’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 Aladdin Cloud’s intervention in connection with the contract on a dedicated server is limited to installing the server. Aladdin Cloud 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 Aladdin Cloud 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 Aladdin Cloud’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 Aladdin Cloud. The Customer also agrees that the same right applies on IP addresses and the Customer acknowledges Aladdin Cloud’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, Aladdin Cloud may suspend all the IP address of the Customer registered in the same location.
Bandwidth: computer data rate in bits per second, and determining the exchange capacity between the server and the Aladdin Cloud network.
Aladdin Cloud guarantees bandwidth up to the rate shown on the Aladdin Cloud site for the concerned range of server. The bandwidth is no longer guaranteed when the server or servers are used for the following activities:
· Anonymization service (proxy), CDN service;
· Storage Platform or file exchange (including but not limited to cyberlocker);
· Downloading platform;
· Service bypassing limitations imposed by downloading platforms (downloaders);
· Platform for watching online videos;
· Server(s) used for downloading and sending files on peer to peer networks (including but not limited to seedbox).
In addition, Aladdin Cloud cannot guarantee the bandwidth when the server activity requires an intensive bandwidth use. In this case, Aladdin Cloud will contact the client to explore his consumption in detail.
Aladdin Cloud 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, Aladdin Cloud 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: Aladdin Cloud does not tag emails, and does not alter in any way the emails sent by the Client. No information is stored by Aladdin Cloud 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, Aladdin Cloud will inform the Client by email and will block the SMTP server port.
Aladdin Cloud 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, Aladdin Cloud reserves the right to refuse any request to unblock the SMTP port.
Aladdin Cloud 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 Aladdin Cloud 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, Aladdin Cloud 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, Aladdin Cloud 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 Aladdin Cloud 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, Aladdin Cloud 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 Aladdin Cloud’s Infrastructure.
If, despite the activation of mitigation, the cyber attack is likely to jeopardize the integrity of the Aladdin Cloud’s or of other Aladdin Cloud customers, Aladdin Cloud 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 Aladdin Cloud 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 ...).
The rates indicated on Aladdin Cloud’s do not include applicable taxes.
The given pricing by Aladdin Cloud which is duly agreed by Customer as follows;
Pricing Payable as per agreed Terms
The rates and quotes given by Aladdin Cloud 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 Aladdin Cloud 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.
Aladdin Cloud 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, Aladdin Cloud 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 is license cost from time to time from top of the above agreed prices, as the case may be from time to time. Aladdin Cloud 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.
Aladdin Cloud 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, Aladdin Cloud 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. Aladdin Cloud shall ensure that its employees, consultants or any other personnel comply with the terms of this Clause.
In the event Aladdin Cloud 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 Aladdin Cloud, and Aladdin Cloud shall be liable to pay to Customer liquidated damages.
Aladdin Cloud 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 Aladdin Cloud or any right of lien or set off thereof.
Aladdin Cloud 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.
Aladdin Cloud shall, upon the request of Customer immediately return to it all Confidential Information of Aladdin Cloud in its possession or control, which is in a physical form or recorded or stored by electronic means or otherwise, including all copies thereof.
Aladdin Cloud 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 Aladdin Cloud after reasonable verification. On receipt of such certified copy, liability of Aladdin Cloud 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 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.
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.
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.
Each Party shall be liable to pay for their respective tax obligations.
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.
While performing Services under this Agreement, Aladdin Cloud 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, Aladdin Cloud shall take suitable steps to remedy the defects in the services. Aladdin Cloud shall be solely responsible in the event that such defects are not remedied to meet the requirements of this agreement.
Aladdin Cloud shall strictly adhere to all relevant manuals, instructions and information as mutually agreed between the Parties provided by Customer from time to time. Aladdin Cloud 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 Aladdin Cloud in the best possible manner and to the best of Aladdin Cloud’s ability, provided that the quality of the Services shall always be to the satisfaction of Customer.
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.
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.
This Agreement is executed in two Originals. Both the parties shall retain one original each.
Any controversy or claim arising out of or in relation to the terms of this Agreement including the interpretation thereof during the subsistence of this Agreement or conclusion thereof shall be referred to the Arbitration of a Sole Arbitrator to be mutually appointed in accordance with the provisions of the Arbitration and Conciliation Act, 1996 or any replacement or statutory modifications thereof. The proceedings will be held at Chennai as the case may be and shall be conducted in English language.
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 Aladdin Cloud Web Services Pvt. Ltd. For and on Behalf of Client Ltd
Mr. Hirenkumar Shah, Director