1) Agreement:
 In this service Agreement ("Agreement") “you” and “your” refer to each client/customer and “we”, “us” and “our” refer to Trak Online Net India (P) Limited (hereinafter referred to as Net4') and services refer to the Internet Telephony 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 agreed 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 from time to time.
2) Services:
Net4 has agreed to provide Internet Telephony Services as permitted by Government of India.
Definition:
Licensed User: The 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;
Customer Registration Form (CRF): The initial document and any subsequent document, whether in paper or electronic format, delivered from the client and accepted by Net4 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 Net4 to the client in connection with the Service;
Start Date: The Date when the client/Licensed user login in first time for availing Net4’s services;
Subscription Fee: The fee payable by the client for use of the Service as per the rates prescribed under different plans;
Usage Fee(s): The fees payable for usage of the Service as prescribed under different plans.
3) License:
This Agreement is a license agreement for the use of the Service by the Client and not an agreement for sale.
From the Start Date, Net4 grants to the client a non-exclusive, non-transferable license to use the Service in accordance with this License Agreement and only for the legal purposes.
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.
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.
4) Fees & Payments:
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:
(a) provide current, complete and accurate information about you as required for the registration process and
(b) 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 Client , by completing and submitting the Agreement ("Agreement"), represents that the statements in its application are true and so far as the Client is aware, does not interfere with or infringe upon the rights of any third party. You 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. No outstation cheques are accepted. In case payment is made by Credit Card then at the sole discretion of 'Net4 the Client is required to send a Confirmation Letter duly signed by him through fax/courier/registered post. Net4 ' 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 'Net4 ' can stop providing the services unless it receives the due payment alongwith the administrative charges.
5) Service Access:
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. Net4 reserves the right to suspend the Service temporarily and without notice for reasons beyond its control.
Net4 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.
Net4 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. Net4 shall not be responsible for any misuse of such usernames and /or passwords by unauthorized persons.
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.
The Client shall pay all third party telecommunications or Internet service charges for their usage incurred by the Client connecting through the telecommunications network of Client in order to access the Service.
You understand that Client Premises Equipment (herein after referred as “CPE”) shall preferably be purchased from Net4 for efficient services. CPE shall be maintained by client in conformity with manufacturer’s instruction booklet. After the installation, Net4 shall not be responsible for any kind of damage to the CPE in any manner.
6) Permitted Activity:
The client is permitted 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 SIP Terminals connected directly to ISP nodes to similar terminals within or outside India.
7) Prohibited Activities:
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.
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.
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.
Client agrees not to engage in the activities, which are outside the purview of Internet Telephony service and are illegal in India including:
(a) Voice communication from anywhere to anywhere by means of dialing a telephone number (PSTN/ISDN/PLMN) as defined in National Numbering Plan;
(b) Originating the voice communication service from a Telephone in India and terminating the voice communication to Telephone within India;
(c) Establishing connection to any Public Switched Network in India and /or establishing gateway between Internet & PSTN/ISDN/PLMN in India;
(d) Dial up lines with outward dialing facility from nodes
You shall not send unsolicited messages, whatever the purpose may be. You agree not to post or cross post, unsolicited commercial messages regardless of content.
You shall not use or allow any and all its licensed users to use the Service to disrupt the normal flow of online dialogue, including but not limiting to, by way of uploading data contain any viruses, Trojan horses, worms, time bombs, cancel bots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information, or otherwise act in a manner that negatively effects use of Internet by other subscribers, users, individuals, or entities.
8) Privacy of Communications:
NET4 intends to respect its subscribers' privacy and will not monitor the communications. However, you agree that NET4 has the right, but not the obligation, to monitor or disclose the contents of private communication, if Net4 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, NET4 reserves the right under appropriate circumstances to disclose the identity of a Client to third parties in response to a valid legal subpoena and to otherwise cooperate with legitimate police inquiries and lawful civil proceedings.
9) Online Goods and Services:
NET4 does not control or take responsibility for any content, goods, or services which independent third parties may available on or through the Service. Client 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 NET4 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.
10) General Resposibilities of the Client:
The Client will take all reasonable steps to ensure that the Service is used in accordance with the terms and conditions of this Agreement.
The Client agrees to indemnify Net4 for losses and expenses incurred by Net4 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.
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 Net4 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.
The Client undertakes to take all reasonable steps to prevent unauthorised access to the Service including usage beyond the limits indicated on the CRF.
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 Pre paid cards or minutes offered under any plan, once sold are neither returnable nor refundable under any circumstance.
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.
The balance in card is neither returnable nor adjustable against another card for any reason, whatsoever.
11) Limitation of Liabilities:
Net4 warrants that it owns or has obtained all necessary rights to grant this License.
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. Net4 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 Net4.
None of the clauses above shall apply so as to restrict liability for death or personal injury resulting from the negligence of Net4 or its appointed agents.
Net4 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.
Save where such liability arises out of breach of the warranty contained in Clause 11.1, Net4 will have no liability for any liability of the Client to any third party.
Net4 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.
Net4'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 paid towards the last invoice/Bill.
12) No Warranty:
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.
EXCEPT TO THE EXTENT THAT SUCH DISCLAIMERS ARE EXPRESSLY PROHIBITED BY LAW, Net4 DISCLAIMS ANY AND ALL LOSS, DAMAGE OR LIABILITY ARISING OUT OF OR RELATING TO YOUR USE OF THE SERVICE.
You may not rely on oral or written information or advice given by Net4 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 Net4 responsibilities are limited to the warranties that are expressed in these written terms and conditions that have been established by NET4 to govern the use of the Service.
13) Indemnification:
You agree to defend, release, indemnify, and hold Net4, 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.
You agree that Net4 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.
14) Title and Assignment:
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 Net4.
The physical media on which any part of the Service is delivered to the Client remains the legal property of Net4.
15) Termination:
Net4 may terminate this Agreement without any notice if client fails to comply with the terms of this agreement. Net4 shall be entitled to and have unquestionable right to suspend/disconnect/terminate the service if Net4 detects or suspects or has reason to believe or is advised by statutory agencies/authorities that the service provided by Net4 to the client is misused/used for illegal and/or unlawful purposes/carrying obnoxious messages etc. without notice to the client. Net4 shall not be responsible for any loss or damages suffered by the client due to discontinuation of the services consequent to breach of terms & conditions or failure to fulfill the obligations. Termination of this Agreement shall be without prejudice to the parties' other rights or remedies.
16) General:
Force Majeure: Other than with respect to failure to make payments due for Services actually provided, the Client’s obligations under this Agreement are subject to, and neither Party shall be liable for delays, failures to perform, damages, losses or destruction, or malfunction of any equipment or any consequence thereof caused or occasioned by, or due to fire, flood, water, the elements, utility curtailments, power failures, explosions, civil disturbances, governmental actions, shortages of equipment for supplies, unavailability of transportation, acts or omissions of third Parties, or any other cause beyond the Party’s reasonable control.
No Waiver: Any delay or forbearance by Net4 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.
Entire Agreement: This Agreement and prevailing Packages/Plans of Net4 shall constitutes the entire agreement between the parties hereto.
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.
Variations: The Client agrees that Net4 may revise the terms and conditions of this Agreement; change the rate plans, services etc. from time to time. Any such revision or change will be binding and effective immediately on posting of the revised Agreement or change to the service(s) on our web site, or on notification to you by e-mail or regular mail. Client agrees to review our web site including the Agreement, periodically to be aware of any such revisions. If client does not agree with any revision to the Agreement, client may terminate this Agreement at any time by providing us with notice by e-mail at legal@net4india.net or regular mail at registered office of the company. Client agrees that, by continuing to use the Services following notice of any revision to this Agreement or change in service(s), client abide by any such revisions or changes.
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.
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. All notices shall be sent to:
Trak Online Net India (P) Limited
AB-11, Community Centre,
Safdarjung Enclave,
New Delhi-110029
Tel No.: 91-11-26711150-55
Fax No.: 91-11-41653217
Email: legal@net4india.net
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.
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.
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.
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, Client shall not assign or transfer this Agreement or any rights, duties, obligations or benefits there under to any person without prior consent in writing by Net4. Net4 shall be entitled to refuse to give such consent without assigning any reasons. Any purported assignment made without such written consent shall terminate this Agreement and such termination shall be effective as of the date of the purported assignment.
Infancy: You attest that you are of legal age to enter into this Agreement.
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 participating 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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