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1.
AGREEMENT:
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In
this service Agreement ("Agreement")
you and your refer to each customer, we, us
and our refer to Trak Online Net India (P)
Limited (hereinafter referred to as 'Trak')
and services refer to the Internet Telephony
Pre paid calling cards service provided by
us. This Agreement explains our obligation
to you and explains your obligation to us
for the service. By using the services under
this Agreement, you acknowledge that you have
read and agree to be bound by all the terms
and conditions of this Agreement and any pertinent
rules or policies that are or may be published
/ mailed by us.
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2.
SERVICES:
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Trak
has agreed to provide Internet Telephony against
the company's pre paid calling cards.
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Definition:
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Licensed
User: Client including its employee,
partner, student, member or other user entitled
to bona fide access to the Service for reasons
linked to the activities of the Client; in
the case of a personal license the Client
is the only Licensed User;
Client:
The person, company, organisation, institution
or other corporate body subscribing to the
Service;
Card:
Pre paid Internet telephony Calling Card;
Order Form:
The initial document and any subsequent document,
whether in paper or electronic format, delivered
from the client and accepted by the Trak indicating
the Service required initially and subsequent
changes to the Service required;
Software: All parts of any software
and any electronic user interface provided
by the Trak to the client in connection with
the Service;
Start
Date: The Date when the providing of
service is started by Trak.
Subscription Fee: The fee payable by
the client for use of the Service for the
period indicated on the Order Form from the
Start Date;
Usage Fee(s): the fees payable for
usage of the Service as indicated on the Order
Form.
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3.
LICENSE
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3.1
This Agreement is a license agreement for
the use of the Service by the Client and not
an agreement for sale.
3.2
From the Start Date, Trak grants to the client
a non-exclusive, non-transferable license
to use the Service in accordance with this
License and only for the legal purposes.
3.3 Where
the Client makes acknowledgements, gives undertakings,
or undertakes liabilities under this Agreement,
it does so for itself and the Licensed users
and where limitations or exclusions are imposed
on the Client under this Agreement, the client
accepts that these will bind both the client
and the Licensed Users as if they were one
entity. The Client warrants that it is authorised
to agree to this Clause by the Licensed Users.
3.4 Where
the client is a body other than an individual,
the person accepting this Agreement represents
that s/he is authorised by the client to accept
this Agreement for and on behalf of the Client,
and to bind the Client and Licensed Users
thereby.
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4.
Fees & Payments
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As
consideration for the services you have selected,
you agree to pay us the applicable service(s)
fees. All fees payable hereunder are non-refundable
unless we provide otherwise. As further consideration
for the Services, you agree to: (1) provide
current, complete and accurate information
about you as required by the registration
process and (2) maintain and update this information
as needed to keep it current, complete and
accurate. All such information shall be referred
to as account information ("Account Information").
You hereby grant us the right to disclose
to third parties such Account Information.
The Registrant, by completing and submitting
the Agreement ("Agreement"), represents
that the statements in its application are
true and so far as the Registrant is aware,
does not interfere with or infringe upon the
rights of any third party. The Registrant
also represents that the service is not used
for any unlawful purpose.
All payments are to be made in favour of "Trak
Online Net India (P) Limited" payable
at New Delhi and is to be sent at the mailing
address as mentioned in this Agreement by
courier/registered post. No outstation cheques
are accepted. In case payment is made by Credit
Card then the registrant is required to send
at the sole discretion of 'Trak Online Net
India (P) Limited', where it deems fit a Confirmation
Letter duly signed by him through fax/courier/registered
post. 'Trak Online Net India (P) Limited'
reserves the right to stop the services, in
case the confirmation letter as required is
not received back within 10 days of allotment
of Order ID Number.
In the event of a charge back by a credit
card company or dishonour of cheque / demand
draft in connection with your payment of the
registration or renewal fee, you acknowledge
and agree that the 'Trak online Net India
(P) Limited' can stop providing the services
unless it receives the due payment alongwith
the administrative charges. We will reinstate
any such registration solely at our discretion,
and subject to our receipt of the applicable
registration, renewal or transfer fee.
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5.
SERVICE ACCESS
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5.1
Where access to the Database(s) is provided
online the Service will normally be available
24 hours a day throughout the subscription
period. The normal availability of the Service
may be varied on occasions. The Trak reserves
the right to suspend the Service temporarily
and without notice for reasons beyond its
control.
5.2
Trak reserves the right to make modifications
or improvements to the Service and will make
every reasonable effort to give the Client
notice of such changes.
5.3
The Trak may allocate to the Client any necessary
usernames and/or passwords, which control
access to the Service. Only those usernames
and/or passwords may be used by the Client
to access the Service. Trak shall not be responsible
if the Clients Pre paid card is misused by
unauthorised persons. Client shall take adequate
steps to ensure that the cards are not misused.
5.4 The
Client shall pay for all usage of the Service(s)
provided online which accrues under usernames
and/or passwords allocated to the Client.
Responsibility for limiting usage of the service
remains with the Client.
5.5
The Client shall pay all third party telecommunications
or Internet service charges incurred by the
Client connecting through the telecommunications
network in order to access the Service.
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6.
PERMITTED ACTIVITIES
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6.1
The client is made to make calls from his
PC located in India to
(a) PC within or outside India
(b) Telephone outside India
The client can also make Internet Telephony
from IP based H.323/SIP Terminals connected
directly to ISP nodes to similar terminals
within or outside India.
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7.
PROHIBITED ACTIVITIES
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7.1
Except as permitted by law, and as permitted
expressly by this Agreement, the Client shall
not itself, nor allow any third party to duplicate
or otherwise reproduce in whole or in part
the Service or any part thereof.
7.2
Except to the extent permitted by law, the
Client shall not modify, reverse assemble,
decompile, or reverse engineer the Service
or any part thereof or merge the Database
or Software with any other software.
7.3 Except as
permitted by law, and as permitted expressly
by this Agreement, the Client shall not itself,
nor allow any third party to use the service
in violation of Law.
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8.
PRIVACY OF COMMUNICATIONS.
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TRAK
intends to respect its subscribers' privacy
and will not monitor the communications. However,
you agree that TRAK has the right, but not
the obligation, to monitor or disclose the
contents of private communication, if Trak
is ordered by Statutory Authority to do so
:
(a) to comply with applicable law or valid
legal process;
(b) to protect national integrity or other
like matter; or
(c) in emergencies when a person's physical
safety is at issue.
In addition, TRAK reserves the right under
appropriate circumstances to disclose the
identity of a subscriber to third parties
in response to a valid legal subpoena and
to otherwise cooperate with legitimate police
inquiries and lawful civil proceedings.
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9.
ONLINE GOODS AND SERVICES.
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TRAK
does not control or take responsibility for
any Content, goods, or services which independent
third parties may available on or through
the Service. Subscribers may receive blind
opportunity advertisements, pyramid schemes,
and other "get rich quick" schemes
on or through the Service. These should be
avoided or approached with ample skepticism.
Please remember that TRAK does not endorse,
warrant, or guarantee the accuracy, completeness,
usefulness, quality, or availability of any
such Content, goods, or services, and your
use thereof is solely at your own risk.
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10.
GENERAL RESPONSIBILITIES OF THE CLIENT
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10.1
The Client will take all reasonable steps
to ensure that the Service is used in accordance
with the terms and conditions of this Agreement.
10.2 The Client
agrees to indemnify the Trak for losses and
expenses incurred by the Trak which arise
out of any misuse of the Service by the Client
or any misuse by any third party, where such
misuse occurs as a result of breach by the
Client of this Agreement.
10.3
The Client agrees that it is in a better position
to foresee and evaluate any loss it may suffer
in connection with this Agreement and that
the fees payable to the Trak have been calculated
on the basis of limitations and exclusions
below and that it is the Client's responsibility
to effect such insurance as the Client considers
necessary in respect of such loss having regard
to its particular circumstances.
10.4
The Client undertakes to take all reasonable
steps to prevent unauthorised access to the
Service including usage beyond the limits
indicated on the Order Form.
10.5
The Client is responsible for ensuring that
its hardware and software are capable of accessing
the Service. The Client is advised to use
appropriate anti-virus software when accessing
the Service. The Trak is not responsible for
the availability
10.6
The Pre paid cards once sold are neither returnable
nor refundable under any circumstance.
10.7 The card
shall be valid for a period of one year from
the date of the activation i.e. from the date
of first call or for such other period as
may be specified in card.
10.8
In order to make call from the card the client
shall ensure that the minimum 1 minute talk
time worth of the credit value in the card
shall be available, if the same is not available,
then the client can not make the call to the
desired destination. For example: 1 minute
call cost Rs. 4.95 for anywhere in USA and
in case the available balance in your card
is Rs. 4.00, the call can not be made.
10.9 The balance
in card is not returnable or adjustable against
another card for any reason, whatsoever.
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11.
LIMITATION OF LIABILITIES
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11.1
The Trak warrants that it owns or has obtained
all necessary rights to grant this License.
11.2 The Service
is supplied to the Client on an "as is"
basis and neither the Databases nor the Software
nor any part thereof has been written to meet
the individual requirements of the Client.
It is the sole responsibility of the Client
to satisfy itself prior to entering this Agreement
that the Service will meet its requirements
and be compatible with its hardware/software
configuration. The Trak makes no warranty
or representation in that respect and no failure
of any part or the whole of the Service to
be suitable for the Client's requirements
shall entitle the Client not to accept the
same or give rise to any right or claim against
the Net4India.
11.3
None of the clauses above shall apply so as
to restrict liability for death or personal
injury resulting from the negligence of the
Trak or its appointed agents.
11.4
The Trak is not liable for any indirect or
consequential loss (including without limitation
loss of profits, goodwill or data) howsoever
arising suffered by the Client and arising
in any connection with this Agreement, whether
or not the possibility of such loss has been
discussed by the parties pre-contract.
11.5 Save where
such liability arises out of breach of the
warranty contained in Clause
11.1,
the Trak will have no liability for any liability
of the Client to any third party.
11.6
The Trak makes no express representations
or warranties which are to the effect that
the Database is free of errors or omissions
and the Client shall not base any commercial
decisions on the Data without independent
verification of the Data.
11.7
The Trak's aggregate maximum liability to
the Client in respect of any direct loss (or
any other loss to the extent that such loss
is not excluded by Clauses 11.3 and 11.4 above
or otherwise) whether such claim arises in
contract or in tort shall not exceed a sum
equal to the total Subscription Fee or Usage
Fee paid.
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12.
NO WARRANTY.
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12.1.
YOU AGREE THAT YOUR USE OF THE SERVICE, SOFTWARE
AND INTERNET IS SOLELY AT YOUR OWN RISK. YOU
AGREE THAT THE SERVICE AND THE SERVICE SOFTWARE
IS PROVIDED ON AN "AS IS," "AS
AVAILABLE" BASIS WITHOUT WARRANTIES OF
ANY KIND, EITHER EXPRESS OR IMPLIED, UNLESS
SUCH WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION.
12.2. EXCEPT
TO THE EXTENT THAT SUCH DISCLAIMERS ARE EXPRESSLY
PROHIBITED BY LAW, Trak DISCLAIMS ANY AND
ALL LOSS, DAMAGE OR LIABILITY ARISING OUT
OF OR RELATING TO YOUR USE OF THE SERVICE.
12.3. You may
not rely on oral or written information or
advice given by Trak officers, directors,
employees, agents, authorized representatives,
subcontractors or affiliates and/or their
officers, directors, employees, agents, authorized
representatives, or subcontractors or affiliates
to create a warranty or increase the scope
of warranty already established in these terms
and conditions. Your rights and Trak responsibilities
are limited to the warranties that are expressed
in these written terms and conditions that
have been established by TRAK to govern the
use of the Service.
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13.
INDEMNIFICATION.
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13.1.
You agree to defend, release, indemnify, and
hold Trak, its affiliated companies and licensors,
and its and their respective officers, directors,
employees, agents, authorized representatives,
and subcontractors harmless from all liabilities,
claims and expenses, including without limitation
reasonable attorneys fees, arising from breach
of the Agreement by use of, or in connection
with the posting or transmission of any Content
or other material by or through your account
on the Access Service.
13.2.
You agree that Trak has the right, but not
the obligation, at its own expense, to assume
the exclusive defense and control of any matter
otherwise subject to indemnification by you
pursuant to Paragraph 1 of this section. In
such event, you shall have no further obligations
pursuant to Paragraph 1 of this section.
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14.
TITLE AND ASSIGNMENT
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14.1
Neither this License nor any of the
rights and obligations of the Client hereunder
may be assigned, transferred, charged, sub-licensed,
delegated or disposed of in whole or in part
on a temporary or a permanent basis without
the prior written consent of the Trak.
14.2 The physical
media on which any part of the Service is
delivered to the Client remains the legal
property of the Trak.
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15.
TERMINATION
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15.1
This License shall have an initial period
of 12 months from the Start Date unless a
different initial period is indicated on the
Packages as mentioned in the site.
15.2
The Trak may terminate this Agreement at any
time immediately by written notice to the
Client in the event of an irremediable breach
by the Client of this Agreement or after the
Client, in the Trak's reasonable opinion,
has failed to remedy a remediable breach of
these terms and conditions within 14 days
of being given notice to do so. Trak can terminate
contract on non receipt of due service fees
within the due period.
15.3
The Trak may terminate this Agreement immediately
on written notice if an agreement between
the provider of one or more of the Databases
and the Trak is terminated. In this event,
the Trakshall promptly make a pro rata refund
to the Client of any monies paid by the Client
for the Service covering a period, which has
not expired.
15.4
In the event of termination of this Agreement
other than in accordance with Clause 15.2,
the Client shall cease to have access to or
have any rights or license in respect of any
Service provided on any media.
15.5
Termination of this Agreement shall be without
prejudice to the parties' other rights or
remedies.
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16.
GENERAL
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Force Majeure Neither party shall
be liable for any loss suffered by the other
or be deemed to be in default for any delays
or failures in performance (other than failure
to make payments) hereunder resulting from
acts or causes beyond its reasonable control.
16.2 No Waiver
Any delay or forbearance by the Trak in
enforcing any provisions of this Agreement
or any of its rights hereunder shall not
be construed as a waiver of such provision
or right thereafter to enforce the same.
16.3 Entire Agreement
This Agreement, Packages as mentioned in
the site constitutes the entire agreement
between the parties hereto.
16.4 Severability
If any provision of this Agreement or part
thereof shall be void for whatever reason,
it shall be deemed deleted and the remaining
provisions shall continue in full force
and effect.
16.5 Variations
This Agreement may only be varied in writing
by means of a variation of its clauses signed
by both parties or by an updated Order Form.
16.6 Independent
Contractors
The parties are independent contractors
and nothing in this agreement shall be deemed
to place the parties in the relation of
employer-employee, principal-agent or partners
or in joint venture.
16.7. NOTICE:
Any notices required or permitted hereunder
shall be given to the appropriate party
at the address specified below or at such
other address as the party shall specify
in writing. Such notice shall be deemed
given: upon personal delivery; if sent by
telephone facsimile, upon confirmation of
receipt; or if sent by registered mail or
courier, postage prepaid, 5 days after the
date of mailing.
Trak Online Net India (P) Limited
504, Bhikaji Cama Bhawan,
Bhikaji Cama Place,
New Delhi- 110 066
16.8. ENTIRE AGREEMENT:
This Agreement sets forth the entire understanding
and Agreement of the parties and supersede
any and all oral or written Agreements or
understandings between the parties as to
the subject matter of this Agreement. It
can be changed only by a writing signed
by both parties. Neither parties is relying
upon any warranties, representations, assurances
or inducements not expressly set forth herein.
16.9 Governing
Law
This Agreement shall be governed by the
law of Union of India and the parties thereto
submit to the non-exclusive jurisdiction
of the Courts National Capital Territory
of Delhi.
16.11 Heading
Heading used in this agreement are for
reference purpose only and in no way define,
limit, construe or describe the scope or
extent of such clause or in any way affect
this agreement.
16.12 Non Assignment:
This Agreement shall be binding upon, and
inure to the benefit of, the parties hereto
and their respective successors and assigns.
Notwithstanding the above, this Agreement
may not be assigned in whole or in part
by a party, without the written consent
of the other party, without the written
consent of the other party, which shall
not be unreasonably withheld, provided,
however that this Agreement may be assigned
to the successor to the whole of a party's
business without such consent. Any assignment
in violation of this paragraph shall be
null and void.
16.13. INFANCY:
You attest that you are of legal age to
enter into this Agreement.
16.14. ACCEPTANCE
OF AGREEMENT:
You acknowledge that you have read this
Agreement and agree to all its terms and
conditions. You have independently evaluated
the desirability of prticipating in the
affiliate network and are not relying on
any representation, guarantee or Statement
other than as set forth in this Agreement.
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Provided by: Trak Online Net India |
All rights reserved, Net 4 India Ltd. |
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