Terms of Service - Master Service Level Agreement
This Master Service Level Agreement ("Agreement") operates and regulates the relationships between DigitalSkys Limited (DL) and its Customers. This is a publically available document and contains the terms the terms and conditions governing the way we do business with our customers and the conditions under which our customers accept our services.
DL provides managed services through its holding company, its subsidiaries and affiliates and third party suppliers and whereas, Customer desires to purchase these managed services, as set forth within the contents of this Agreement.
It is therefore agreed as follows:
1. MANAGED SERVICES
During the term of this Agreement and its component Service Orders, DL shall provide Customer with the specific managed services (the Services) as identified in the relevant "Service Order", which the Customer shall pay for said Services as invoiced. Since this Agreement is intended to allow Service Orders to be attached, as agreed to by the parties, only those Services, identified and specifically priced in the Service Order, will be provided under this Agreement, despite the fact that other services are mentioned herein.
2. TERM
The term of this Agreement shall be specified in each Service Order. The Service Order specifies the length of the term in months and or / years. However, DL may immediately terminate this Agreement, or in its sole discretion give notice to terminate and / or suspend Services hereunder at any time upon: (a) any failure of Customer to pay any amounts as provided in this Agreement on time; (b) any breach by Customer of any provision of this Agreement or any law, rule, or regulation governing the Services provided hereunder; (c) any insolvency, bankruptcy, assignment for the benefit of creditors, appointment of trustee or receiver or similar event with respect to Customer; (d) any governmental prohibition or required alteration of the Services to be provided hereunder. Any termination shall not relieve Customer of its obligation to pay any charges incurred hereunder prior to such termination. Upon termination, DL may terminate communication access to Customers managed network access devices, if any, and remove such access and related links without penalty. Any failure of DL to enforce its rights under this Agreement will not act as a waiver of any future rights.
3. CUSTOMER CANCELLATION
If Customer cancels the service before the term in the Service Order is complete, and for reasons other than DL's non-performance, the Customer is responsible for maximum termination charges up to the remaining balance of the Agreement. Therefore, Customer agrees to pay for Service through the end of the term specified in the applicable Service Order, regardless of actual usage by Customer: (1) unless Customer terminates this Agreement for a material breach by DL that is reported to DL in writing and not cured within thirty (30) days of receipt by DL; or (2) unless DL terminates this Agreement absent any fault, negligence or misconduct of Customer, in which case DL agrees to refund Customer for any prepaid but unused time. In addition, Customer expressly agrees to indemnify DL for any costs DL must pay any underlying affiliated or non affiliated third party provider, subcontracted by DL, to provide Services to Customer hereunder.
4. PAYMENTS
During the term as specified in the applicable Service Order, Customer shall pay DL for the Services as set forth in the applicable Service Order, without deduction or offset.
5. CUSTOMER EQUIPMENT
No failure of Customer to maintain any equipment that the Services provided hereunder depend upon (regardless of who Customer has contracted with to provide said equipment) and nothing herein shall relieve Customer from paying all amounts due until the end of the term of this Agreement, as specified in the attached Service Order. Notwithstanding any other requirement of this Section, any responsibility for loss of or damage to any equipment shall lie solely with Customer. If performance of Services hereunder requires connection of Customer equipment with DL equipment, the devices and equipment provided and used by Customer shall be of a type approved by DL, which approval shall not be unreasonably withheld. DL shall have the sole and exclusive right to select its own equipment, software and communications carriers to provide the Services.
6. SERVICE RELOCATION
If Customer elects to relocate or otherwise change the location of Service after commencement of any installation or facilities, Customer agrees that it is solely responsible to pay any additional installation charges for both the original and new location.
7. LIMITATION OF LIABILITY
Customer agrees that DL provide its Services "as is" and "as available" and makes no warranties or representations of any kind, whether expressed or implied, for its Services, unless specifically set forth herein. DL specifically disclaims without limitation, any implied warranties of merchantability, fitness for a particular purpose, or warrants of title or non-infringement. No advice or information given by DL's employees, agents or contractors shall create a warranty. Customer agrees that DL will under no circumstances be responsible for any losses or damages resulting from delays, non-deliveries, mis-deliveries, service interruptions, use of software, system corruptions, action or inaction, performance, viruses, non-performance, termination or Customer's negligence, misconduct, errors or omissions, for loss of profit or revenue, or any direct or indirect, consequential or incidental, special, punitive, exemplary or similar or additional damages, including without limitation, damages for loss of: business profits or information business interruption electronically transmitted data, documents and or funds, or use in conjunction with High Risk Activities and the like, arising out of the use of or inability to use the Services provided herein, or out of Customers or Customers users reliance on or use of information, service or products provided on or through the use of the Services, or that result from interruptions, omissions, mistakes, deletion of files, errors, defects, delays in operation, or transmission, or any failure of performance, even if DL has been advised of the possibility of such damages. Customer agrees, except for any wilful misconduct or gross negligence by DL, Customer agrees to indemnify DL against all liabilities, losses, claims, demands and reasonable expenses, including but not limited to legal fees and expenses and internal management time and administrative costs, brought against DL by any party or person whatsoever, other than Customer, in connection with or arising out of the Services to Customer, including: any third party suits or claims which may arise in connection with the possession, use, operation in accordance with the manufacturer's service and operation manuals, performance, non-performance, failure, degradation or deterioration of DL's equipment; any claim for injury to property or persons arising out of the operation of DL's equipment in accordance with the manufacturer's service and operations manuals: any third party suits or claims which arise in connection with content , or provision, interruption or degradation of the Service supported by the DL system and not caused by DL's wilful act or gross negligence. Customer accepts and acknowledges that legal proceedings, not withstanding DL's liability for the acts and omissions of its directors and employee's, that no legal proceedings arising from or in connection with the services shall be commenced against DL's directors or employees personally and that any legal proceedings must be commenced within 3 months of the expiry of the agreement or date upon which the agreement is terminated. The maximum liability of DL shall be limited in all events to the amounts received by DL from Customer with respect to the specific Services upon which the claim of liability is made and Customer agrees that its sole remedy in the event of any breach by DL of this agreement shall be a refund of such amounts paid to DL. However, Customer agrees that in no event shall the cumulative liability of DL under this agreement exceed Thirty (30) days total payment, as specified in the relevant Service Order, paid by the Customer to DL with respect to the Thirty (30) days of Service immediately preceding the date of the default, act or omission by DL.
8. ASSIGNMENT
Customer may not assign this Agreement without the written consent of DL, which shall not be unreasonably withheld. Customer expressly understands and agrees that some Services provided under this Agreement may be provisioned through an affiliated company and / or a separate third party supplier, therefore DL may freely assign its obligations or rights under this Agreement at any time.
9. SOFTWARE AND LICENSES
No licenses or property interests, including, but not limited to, intellectual property interests, express or implied, are granted by DL pursuant to this Agreement. Customer is aware that it may be required to execute separate software agreements with DL or third parties for the provision of certain Services requested hereunder. DL is not responsible for the installation, maintenance, compatibility or performance of any software used in conjunction with DL Services, whether or not provided by DL hereunder and Customer shall indemnify, defend and hold DL harmless for any infringement claims arising out of Customer's use of such software with the Services. If such use by Customer of the software impairs the Services provided hereunder, Customer remains liable for payment and if such software is likely to cause hazard or service obstruction, Customer shall eliminate such likelihood, if possible, at DL's request. DL may from time to time make software and / or documentation available to Customer in connection with a Service. In such event, DL grants to Customer, subject to the terms of this Agreement and any agreement with the software provider, a non-assignable and non-exclusive license to use the software and documentation (whether in written or electronic form), together with all updates, enhancements, modifications and fixes thereto, which are made available to Customer by DL for use with the Service (collectively the "Software"). Customer agrees: (1) to use the Software solely in connection with its use of the Services provided hereunder and only in accordance with any documentation user guides or instructions (written or electronic) that may be provided to Customer; (2) not to copy the Software or decompile, reverse compile, reverse engineer, reverse assemble or otherwise derive source code equivalent for the Software; (3) to use the Software only on personal computer(s) for which Customer controls access to the Software; (4) not to download any of the Software unless expressly instructed or authorised by DL; (5) not to permit any third parties to access the Software or Services; (6) that DL or its suppliers and licensors retain ownership of all aspects of the Software and the Services and any DL or third party trademarks, service marks, trade names, or logos incorporated therein; and (7) that Customer will comply with any additional terms and conditions applicable to the Software sublicensed to Customer under this Agreement following notice of such terms and conditions. This license shall continue in effect until the end of the applicable Service Order, this Agreement or any earlier termination pursuant to this Agreement. Customer agrees that DL shall have no liability for any Software, whether or not provided under this Agreement and Customers expressly agrees to pursue the Software manufacturer for any claims or loss and to indemnify, defend and hold DL harmless from any loss DL sustains through the failure of Customer to comply with this Section. Customer shall be solely responsible for compliance with any applicable foreign governmental regulations relating to the exportation and / or importation of data.
10. GOVERNING LAW AND VENUE
(a) This Agreement shall in all respects be construed in accordance with and governed by the laws of the Emirate of Dubai and the United Arab Emirates, without regard to the principles of conflicts of law thereof, as if all duties, rights and obligations hereunder were performed entirely within the UAE. (b) Each party hereto hereby irrevocably and unconditionally submits, for itself and its property, to the non-exclusive jurisdiction of any UAE court, in any action or proceeding arising out of or relating to this Agreement, or for recognition or enforcement of any judgment and each party irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in any such UAE court, or, to the extent permitted by law, in such court. Each party agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. (c) Each party hereto irrevocably and unconditionally waives, to the fullest extent any of them may legally and effectively do so, any objection that any of them may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement in any UAE court. Each party hereby irrevocably waives to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court. (d) Customer agrees to pay all collections costs and the prevailing party in any legal proceeding shall be entitled to recover reasonable attorneys' fees and other costs incurred in such proceeding, in addition to any other relief to which such party may be entitled. If any dispute arises between DL and Customer, then both will attempt to resolve the dispute in good faith by senior level negotiations. Where both DL and Customer agree that it may be beneficial, then both will seek to resolve the dispute through mediation or appropriate center for arbitration. If the dispute is not resolved through negotiation or mediation, the DL and Customer agree that the Courts of the Emirate of Dubai and the United Arab Emirates will have exclusive jurisdiction in connection with the resolution of the dispute.
11. PROPRIETARY INFORMATION
Each party agrees to maintain in strict confidence all plans, designs, drawings, trade secrets, pricing and other proprietary information of the other party which is disclosed pursuant to this Agreement ("Confidential Information"), and continue to abide by any other existing (if any) written confidentiality and non-disclosure agreements. The parties hereto shall: (i) Keep all Confidential Information secret and confidential, using at least the same degree of care that it would normally use in protecting its own proprietary and confidential information of a similar nature and not to disclose or divulge any such information to any third party, except solely for the purposes of this Agreement. (ii) Not use or allow Confidential Information to be used, for any other purpose, in whole or in part, except solely in relation to this Agreement and for the duration of this Agreement, unless and only to the extent which such further use is previously specifically authorised in writing by the party disclosing such Confidential Information. (iii) Not to copy or cause to be made copies of Confidential Information, in whole or in part, other than solely for the purposes of this Agreement and for any re-disclosure or divulgence thereof, whether directly or indirectly, to any third party. (iv) Not to disclose Confidential Information, in whole or in part, to any personnel within the parties' organisations, who do not need to receive such information for the purposes of this Agreement. (v) Upon the disclosing party's written request and option either return to the disclosing party such of the disclosing party's Confidential Information as is in tangible form (together with all copies thereof within its possession or control) or make such other disposal or disposition thereof as may be stipulated in writing by the disclosing party. Any release of Confidential Information, when considered necessary, to any third party shall be coordinated and approved by both parties in writing prior to dissemination and release. Such release shall be made subject to said third party's agreement in writing on the same terms as set out in this Agreement not to make further disclosure and to use the Confidential Information solely for the purposes of this Agreement. If a party becomes aware of any disclosure concerning Confidential Information not permitted by this Agreement, it shall immediately inform the other party and they shall jointly seek to remedy the situation, without prejudice to any other rights the proprietor of the information may have against the other party. Neither party shall be liable for the disclosure of such information, provided that such disclosure comes about despite the exercising of the same degree of care usually taken so as to maintain and secure it's own Confidential Information of a similar nature. The protection of any proprietary and Confidential Information hereunder does not and shall not extend to any information which it can be proved by the party receiving it, upon the written request of the party disclosing it, that: (i) at the time of the disclosure was, or thereafter became, part of the public domain otherwise than through the fault or negligence of the party receiving, or (ii) was lawfully obtained by the party receiving from a third party with full rights of disclosure, or (iii) was already in the unrestricted possession of the party receiving at the date of receipt of such information pursuant to this Agreement, as evidenced by written documentation in the files of the party receiving, or (iv) has since become known or developed in good faith independently by the party receiving without making use of the Confidential Information of the party disclosing, or (v) has been or is published without violation of this Agreement, or (vi) has been approved for unlimited release or use by written authorisation of the party disclosing, or (vii) if the party receiving is legally obliged to disclose the same by reason of any Law, Regulation, Rule or other requirement of any government or any agency or department thereof provided always that the party disclosing is given prior warning of such disclosure and the party receiving uses all reasonable endeavors to minimise such disclosure, or (viii) is specifically and expressly referred to in writing as not being confidential. In the event that either party provides the other party with Confidential Information, the disclosing party will indemnify the receiving party against any liability (including any professional costs) incurred by the receiving party relating to or arising out of any alleged infringement or misuse of such information on the basis that it is subject to confidentiality restrictions in favour of a third party or is confidential to a third party. The Parties hereto acknowledge that the Confidential Information is of a particularly sensitive nature and so prohibitory interim or absolute measures are necessary for its protection.
12. CREDIT VERIFICATION
DL or its agents may conduct a credit verification of Customer. If DL is unable to obtain the necessary information through standard channels, DL or its agents may request information, and / or a financial statement and / or a service deposit and / or a letter of credit from Customer prior to commencement or continuation of service. Customer must provide, in a timely manner as requested by DL, acceptable credit information to DL or its agents or the aforementioned security may be required as determined by DL.
13. BILLING
Customer agrees to pay all fixed and recurring amounts in advance as invoiced. Customer agrees to be responsible for any required taxes, fees and governmental charges which will be passed through by DL. Some services may be invoiced separately. Any amount under this Agreement not paid within thirty (30) calendar days is subject to an interest charge, which will be at an interest rate of Libor US$ 6 month rate plus 8%. In addition DL may immediately terminate service to Customer pursuant to Section 2.
14. PUBLICITY
Neither party may use the other party's trademarks, trade names, service marks, logos, or other intellectual property ("Marks") for any purpose whatsoever or issue a press release regarding the existence of this Agreement without the prior written consent of the other party. Notwithstanding the foregoing, Customer hereby grants DL a non-exclusive, royalty-free, worldwide license to use Customer's Marks (a) on DL's website for the purposes of marketing, promotion, directories or indexes and linking to Customer's website; (b) in such electronic or print advertising, publicity, press releases, newsletters and mailings about DL's website, as DL may reasonably require; and (c) Summary Experience Citation material for inclusion within DigitalSkys proposals.
15. FORCE MAJEURE
Notwithstanding any other provision of this Agreement, no default, delay or failure to perform on the part of either party, except for Customer's failure to pay any monies when due, shall be considered a breach of this Agreement if such default, delay or failure to perform is shown to be due to events beyond a party's reasonable control including, without limitation, strikes, lockouts, work stoppages, or other labour disputes or shortages, riots, civil disturbances, war, acts of the public enemy, terrorism, espionage, nuclear disaster, acts of God, sever weather, earthquakes, floods, actions or inactions of governmental authorities or suppliers, epidemics, embargoes, failure of underlying suppliers to provide required services, internet traffic congestion, outages, cut or downed lines, system overloads, satellite failures, or default of a common carrier, provided, that the party failing to perform takes commercially reasonable efforts to complete performance as soon as practicable. In the event of interruption of DL services because of a force majeure event, DL's sole obligation shall be to use commercially reasonable efforts to restore services as soon as practicable. Customer agrees that services provided by DL and its suppliers are not fault tolerant and are not designed, manufactured or intended for use or resale in hazardous environments requiring fail-safe controls, such as in the operation of nuclear facilities, aircraft navigation or aircraft communication systems, air traffic control, life support, or weapons systems ("High Risk Activities"). Customer represents and warrants that it will not use, or allow the use of services provided by or through DL for such High Risk Activities and that it will ensure that its end-users are aware of this notice. The party effected by the Force Majeure situation shall give written notice to the other party of the Force Majeure event immediately upon its occurrence. DL and Customer shall work together for the purposes of alleviating the effects of the Force Majeure situation.
16. ACCEPTABLE USE POLICY
It is Customer's responsibility to be conversant and comply with the terms and conditions of the Acceptable Use Policy, in particular: (A) Customer warrants that it shall not use any services provided under this Agreement in violation of any law or regulation, including but not limited to, rights of privacy or publicity, prohibitions of libel or slander and violations of defamation, infringement, misappropriation, intellectual property rights laws, invasion of privacy, unfair competition, antidiscrimination, consumer protection, credit, false advertising, obscenity, pornography, indecency or tax laws, or relevant communications, privacy, computer fraud and or computer abuse legislation. Customer shall not use DL services to conduct any business or activity or solicit the performance of any activity that is prohibited by law. This includes but is not limited to: posting, storing, transmitting or disseminating information, data or material which is libellous, obscene, unlawful, threatening, defamatory, or which infringes the intellectual property rights of any person or entity, or which in any way constitutes or encourages conduct that would constitute a criminal offence, give rise to a civil liability, or otherwise violate any local, emirate, state, federal or international law, order or regulation; post, store, send, transmit, or disseminate any information or material, which a reasonable person could deem to be objectionable, offensive, indecent, pornographic, harassing, threatening, embarrassing, distressing, vulgar, hateful, racially or ethnically offensive, or otherwise inappropriate, regardless of whether this material or its dissemination is unlawful; access any person's computer or computer system, software, or data without their knowledge and consent, breach the security of another user, or attempt to circumvent the user authentication or security of any host, network, or account, which includes, but is not limited to, accessing data not intended for use of such user, logging into or making use of a server or account not expressly authorised for access, or probing the security of other hosts, networks or accounts; use or distribute tools designed or used for compromising security, such as password guessing programs, decoders, password gatherers, analysers, cracking tools, packet sniffers, encryption circumvention devices or Trojan horse programs. Network port scanning or probing tools are only permitted when used in conjunction within an internal network, or if explicitly authorised by the destination host and or network. Unauthorised port scanning, for any reason, is strictly prohibited; restrict, inhibit, or otherwise interfere with the ability of any other person, regardless of intent, purpose or knowledge, to use or enjoy the Service, including without limitation, posting or transmitting any information or software which contains a worm, virus, or other harmful feature, or generating levels of traffic sufficient to impede others or DL's ability to send or retrieve information or provide the Service; upload, post, publish, transmit, reproduce, create derivative works of, or distribute in any way information, software or other material obtained through the Service or otherwise that is protected by copyright or other proprietary right, without obtaining permission of the owner; restrict, inhibit, interfere with, or otherwise disrupt or cause a performance degradation, regardless of the intent, purpose or knowledge, to the Service or any DL host, server, backbone network, node or service, or otherwise cause a performance degradation to any DL facilities used to deliver the Service; resell the Services or make otherwise available to anyone outside the premise of Customer, the ability to use the Service via Wi-Fi or other methods of networking, in whole or in part, directly or indirectly, or on a bundled or unbundled basis; transmit unsolicited bulk or commercial messages or spam. This includes but is not limited to, unsolicited advertising, promotional materials or other solicitation material, bulk mailing of commercial advertising, chain mail and or similar type communications that constitute numerous copies of the same or substantially similar messages, empty messages, or messages that contain no substantive content, or send very large messages and or files to a recipient that disrupts a server, account, news group and or chat service; distribute programs that remove locks or time-outs built into software; participate in the collection of e-mail addresses, screen names, or other identifiers of other without their prior consent, or participate in the use of software designed to facilitate this activity; impersonate any person or entity, engage in sender address falsification, forge anyone else's digital or manual signature, forge any TCP/IP packet header or part thereof, or gain access to any account or computer resource without authorisation or otherwise hack, crack into, monitor, access, use, probe, or scan without authorisation any system, network, data, traffic or security authentication measure or perform any other similar fraudulent activity; interfere with computer networking or telecommunications service to any user, host or network, including, without limitation, denial of attacks, flooding of a network, overloading of a service, improper seizing and abuse of operator privileges and attempts to crash any host. Customer understands that any criminal use or threatened criminal use of DL Services by Customer may be referred to an appropriate governmental agency and may result in termination to protect other Service users. Customer agrees that DL does not operate or control the Internet, and therefore Customer is using the Internet at its own risk. It is Customer sole responsibility to secure its own equipment from external threats, such as viruses, spam, malicious intent and other methods of intrusion. Customer shall be responsible for any end-users who use the Services to any extent, and shall be required to immediately terminate service to any end-user who violates any provision of this Agreement. It is Customer's sole responsibility to inform its end-users of their obligations in using DL Services. DL may terminate Services to Customer if Customer fails to terminate Service with its end-user(s) who have violated this Agreement after notification by DL. (B) Customer shall not use any DL Service to obtain passwords of Customers of DL or its affiliates or of any other system. Customer shall not use any DL Service to make unauthorised attempts to access systems accounts and networks of others, or alter, destroy, delete, or modify another's data without authorisation. Customer shall not use DL Services to violate copyright or other intellectual property rights of any author or publisher. Customer shall not upload or download software in violation of software license agreements. (C) DL reserves the right to monitor Customers actions when necessary to help Customer or to protect itself or other users or systems, without penalty to DL. Customer expressly agrees to be responsible for any loss DL sustains through Customer's breach of this Section 16. DL and Customer agree that the terms and conditions in this Section are reasonable and necessary for DL to be able to provide Services hereunder and to protect the proper, efficient functioning of the managed network and are material in any interpretation of this Agreement. DL may revise the terms of the Acceptable use policy from time to time, without notice, by posting a new version of this document on www.digitalskys.com or any successor URL. All subsequently revised copies are effective immediately upon posting. Customers are therefore advised to regularly visit and review this information to ensure that Customer understanding and activities are current and consistent with the most recent version.
17. NOTICE
Any legal notice or communication required to be given by either party to this Agreement shall be in writing and shall be hand delivered or sent by certified mail, return receipt requested, by internationally-recognised courier, or by confirmed electronic means, to Customer at the address or facsimile number specified in relevant Service Orders or to DL at the contact details specified in of DL's relevant Service Orders, in the first instance, or to DL's website contact addresses as applicable.
18. ENTIRE AGREEMENT
This Master Service Level Agreement together with any attached and referenced Service Order(s) sets forth the entire agreement of the parties with respect to the subject matter hereof and supersedes any prior agreement of understanding. If any provision hereof is held by a court to be invalid, void or unenforceable, the remainder of this Agreement shall nevertheless remain unimpaired and in effect. No rule of construction requiring interpretation against the drafting party hereof shall apply in the interpretation of this Agreement. To the extent of a conflict between any provision in this Agreement and any Service Order, the Agreement shall prevail. Any modification to the terms and conditions of this Agreement and / or an attached Service Order shall have no force or effect unless agreed to by the parties in writing. The headings in this Agreement are inserted for convenience and identification only and shall not be considered in the interpretation of this Agreement. No representations, understandings, agreements, or warranties, expressed or implied, have been made or relied upon in the making of this Agreement other than those specifically set forth herein.
19. INDEMNIFICATION
Customer agrees to indemnify, defend, release and hold harmless DL, including its directors, officers, employees, agents, attorneys, shareholders and assigns, from any and all loss, claims, fines, demands, damages, injury, expenses, suits, or other actions, or any liability whatsoever including, but not limited to, costs and attorney's fees, third party claims and claims for lost business profits or revenues, whether suffered, made, instituted, or asserted by Customer or any other party or person, for personal injury to, or death of any person or persons, or for losses, damages, or destruction of property or any loss of use thereof, whether or not owned by others, arising out of this Agreement or any provision of Services by DL hereunder, or any breach of any representation, warranty or any provision of this Agreement by Customer. Customer agrees to request that DL be named as an additional insured on any policy issued to Customers pursuant to which there could be coverage for any of the forms of legal liability described in this Agreement.