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Order, Acceptance and Service
 

When Accepted by Effervescent Technologies Pvt. Ltd., the Order submitted by Customer creates a contract between Customer and Effervescent Technologies Pvt. Ltd., consisting of the Order, the applicable Service Description and these Terms of Service. An Order is "Accepted" by Effervescent Technologies Pvt. Ltd. when

(i) With respect to Orders submitted online, Effervescent Technologies Pvt. Ltd. provisions Services in response to the order or bills Customer for payment and

(ii) With respect to Orders reduced to writing and signed on an approved Effervescent Technologies Pvt. Ltd. form, when an authorized representative of Effervescent Technologies Pvt. Ltd. executes and delivers such form signed by Customer.

Effervescent Technologies Pvt. Ltd. will provide, and Customer will purchase and pay for, the Services specified in the Order for the service fees specified in the Order and the applicable Service Description (the "Service Fees").

In connection with any Hosting Services, Customer will not use storage space in excess of the storage limits established for the Services in the Service Descriptions, plus any storage space purchased by Customer. If Customer uses storage space in excess of such amounts, Effervescent Technologies Pvt. Ltd. may, without limiting its other rights or remedies, assess Customer with additional fees.

In connection with any Hosting Services, if Customer's actual bandwidth usage in any month exceeds the limit, Customer will pay Effervescent Technologies Pvt. Ltd. such additional fees as may be specified in the Service Description.

Fees, Taxes and Payment. Customer will pay to Effervescent Technologies Pvt. Ltd. the Service Fees in the manner set forth in the Order. Effervescent Technologies Pvt. Ltd. may increase the Service Fees (i) in the manner permitted in the Service Description and (ii) at any time on or after expiration of the Initial Term by providing ten (10) days prior written notice thereof to Customer. The Service Fees do not include any applicable sales, use, revenue, excise or other taxes imposed by any taxing authority with respect to the Services or any software provided hereunder (excluding any tax on Effervescent Technologies Pvt. Ltd.'s net income). All such taxes will be added to Effervescent Technologies Pvt. Ltd.'s invoices for the Service Fees as separate charges to be paid by Customer. All fees are fully earned when due and non-refundable when paid. Unless otherwise specified, invoices for the Service Fees and related charges shall be due and payable within 30 days after the date of the invoice. Any amounts payable to Effervescent Technologies Pvt. Ltd. not paid when due will bear interest at the rate of one and one half percent (4.5%) per month or the maximum rate permitted by applicable law, whichever is less. If Effervescent Technologies Pvt. Ltd. collects any payment due at law or through an attorney / lawyer at law or under advice there from or through a collection agency, Customer will pay all costs of collection, including, without limitation, all court costs and reasonable attorneys' / lawyer's fees. If any check is returned for insufficient funds, Effervescent Technologies Pvt. Ltd. may impose a processing charge of $20.

Hosting Services will commence on the Effective Date indicated in the Order and continue for the duration of the Initial Term. Thereafter, the Order will automatically renew for successive periods (i) of twelve months (with respect to Non-Prepaid Plans) or (ii) as specified in the Service Description (with respect to Prepaid Plans) unless the Order is earlier terminated in accordance with its terms, or either party gives written notice to the other party of non-renewal at least 30 days prior to expiration of the then-current term.

Either party may terminate this Agreement immediately upon the occurrence of any one or more of the following events: (i) the other party fails to pay when due any amounts required to be paid under this Agreement; (ii) the other party breaches any material term or provision of this Agreement (other than a breach described in subsection (i) above), and if capable of cure, such breach remains uncured 30 days after the non-breaching party gives written notice thereof to the breaching party; or (iii) the other party becomes insolvent, makes an assignment for the benefit of its creditors, institutes or becomes subject to any proceeding under any bankruptcy or similar laws for the relief of debtors, or seeks the appointment of, or becomes subject to the appoint of, any trustee or receiver for all or any portion of such party's assets.

Effervescent Technologies Pvt. Ltd. may terminate this Agreement (i) if the Services are prohibited by applicable law, or become impractical or unfeasible for any technical, legal or regulatory reason, by giving Customer as much prior notice as reasonably practicable or (ii) immediately if Effervescent Technologies Pvt. Ltd. determines in good faith that Customer's use of the Customer Web site or the Customer Content violates the Acceptable Use Policy.

Upon termination of this Agreement for any cause or reason whatsoever, neither party shall have any further rights or obligations under this Agreement, except as expressly set forth herein. The provisions of Sections 3(d), 3(e), 4, 8, 10, 11, 13 and 14 of this Agreement shall survive the expiration or termination of this Agreement for any cause or reason whatsoever, and, notwithstanding the expiration or termination of this Agreement, the parties shall each remain liable to the other for any indebtedness or other liability theretofore arising under this Agreement. Termination of this Agreement and retention of pre-paid fees and charges shall be in addition to, and not be in lieu of, any other legal or equitable rights or remedies to which Effervescent Technologies Pvt. Ltd. may be entitled.

With respect to Non-Prepaid Plans, within 30 days after the termination of this Agreement, Customer will pay the Termination Charge to Effervescent Technologies Pvt. Ltd. unless (i) Effervescent Technologies Pvt. Ltd. terminated the Order under Section 3(c) or (ii) Customer terminated the Order under Section 3(b). With respect to Prepaid Plans, Customer will pay the Termination Charge as provided in the Service Description. The parties agree that the Termination Charge constitutes consideration for Effervescent Technologies Pvt. Ltd.'s time, effort and expense in preparing and reserving the capacity to perform its obligations hereunder, as actual damages are difficult to ascertain. If Customer terminates the Order in accordance with Section 3(b), or if Effervescent Technologies Pvt. Ltd. terminates the Order under Sections 3(c)(i) or 12(c), Effervescent Technologies Pvt. Ltd. shall return to Customer, and Customer shall accept, as Customer's sole and exclusive remedy for Effervescent Technologies Pvt. Ltd.'s breach of the Order, any Service Fees paid in advance by Customer hereunder attributable to Services not yet rendered as of the date of termination.

Customer's Representations and Warranties. Customer hereby represents and warrants to Effervescent Technologies Pvt. Ltd., and agrees that during the Term Customer will ensure that: Customer is the owner or valid licensee of the Customer Content and each element thereof, and Customer has secured all necessary licenses, consents, permissions, waivers and releases for the use of the Customer Content and each element thereof, including without limitation, all trademarks, logos, names and likenesses contained therein, without any obligation by Effervescent Technologies Pvt. Ltd. to pay any fees, residuals, guild payments or other compensation of any kind to any Person; Customer's use, publication and display of the Customer Content will not infringe any copyright, patent, trademark, trade secret or other proprietary or intellectual property right of any Person, or constitute a defamation, invasion of privacy or violation of any right of publicity or any other right of any Person, including, without limitation, any contractual, statutory or common law right or any "moral right" or similar right however denominated; Customer will comply with all applicable laws, rules and regulations regarding the Customer Content and the Customer Web site and will use the Customer Web site only for lawful purposes; and Customer has used its best efforts to ensure that the Customer Content is and will at all times remain free of all computer viruses, worms, trojan horses and other malicious code.

License to Effervescent Technologies Pvt. Ltd.. Customer hereby grants to Effervescent Technologies Pvt. Ltd. a non-exclusive, royalty-free, worldwide right and license during the Term to do the following to the extent necessary in the performance of Services under the Order: digitize, convert, install, upload, select, order, arrange, compile, combine, synchronize, use, reproduce, store, process, retrieve, transmit, distribute, publish, publicly display, publicly perform and hyperlink the Customer Content; and make archival or back-up copies of the Customer Content and the Customer Web site). Except for the rights expressly granted above, Effervescent Technologies Pvt. Ltd. is not acquiring any right, title or interest in or to the Customer Content, all of which shall remain solely with Customer.

Effervescent Technologies Pvt. Ltd.'s Acceptable Use Policy. Customer will abide by, and utilize the Services and the Customer Web site only in accordance with, the Acceptable Use Policy (the "Acceptable Use Policy") that Effervescent Technologies Pvt. Ltd. posts on its Web site, as such Acceptable Use Policy may be changed by Effervescent Technologies Pvt. Ltd. from time to time. The Acceptable Use Policy is hereby incorporated herein and made a part hereof by this reference. Customer shall impose the Acceptable Use Policy on its customers and End Users to the extent necessary to ensure their compliance. Customer shall familiarize itself with the Acceptable Use Policy and periodically access Effervescent Technologies Pvt. Ltd.'s Web site to determine if Effervescent Technologies Pvt. Ltd. has made any changes thereto.


 
 
Customer's Responsibilities
 

Customer is solely responsible for the quality, performance and all other aspects of the Customer Content and the goods or services provided through the Customer Web site.

Customer will cooperate fully with Effervescent Technologies Pvt. Ltd. in connection with Effervescent Technologies Pvt. Ltd.'s performance of the Services. Customer must provide any equipment or software that may be necessary for Customer to use the Services. Delays in Customer's performance of its obligations under this Agreement will extend the time for Effervescent Technologies Pvt. Ltd.'s performance of its obligations that depend on Customer's performance on a day for day basis. Customer will notify Effervescent Technologies Pvt. Ltd. of any change in Customer's mailing address, telephone, e-mail or other contact information.

Customer assumes full responsibility for providing End Users with any required disclosure or explanation of the various features of the Customer Web site and any goods or services described therein, as well as any rules, terms or conditions of use.

Customer will provide Effervescent Technologies Pvt. Ltd. with a registered domain name for the Customer Web site, or, upon Customer's request and subject to the terms and conditions set forth below, Effervescent Technologies Pvt. Ltd. will register an Internet domain name on behalf of Customer with a registrar approved by ICANN. Effervescent Technologies Pvt. Ltd.'s registration of any domain name is subject to (i) Effervescent Technologies Pvt. Ltd. receiving from Customer all information needed from Customer in order to complete such registration, and (ii) such domain name not being in violation of any applicable law, rule or regulation or the policies of the applicable registration service. Registration of a domain name is subject to availability of such domain name for registration, and Effervescent Technologies Pvt. Ltd. will not be responsible if a domain name is not available for any reason. Effervescent Technologies Pvt. Ltd. will also not be responsible for any infringement of third-party rights caused by its registration of a domain name for Customer. Customer waives any claims it may have against Effervescent Technologies Pvt. Ltd. for, and hereby releases Effervescent Technologies Pvt. Ltd. of and from, any loss, damage, liability or expense arising out of, or relating to, the registration of such domain name in any online or offline network directories, membership lists or registration lists, or the release of the domain name from such directories or lists following the termination of services by Effervescent Technologies Pvt. Ltd. for any reason. Customer will reimburse Effervescent Technologies Pvt. Ltd. for all costs and expenses incurred by Effervescent Technologies Pvt. Ltd. in registering or maintaining a domain name for Customer, including, without limitation, all fees charged by the applicable registrar. Customer acknowledges that its rights to any domain name registered by Effervescent Technologies Pvt. Ltd. are not being granted by Effervescent Technologies Pvt. Ltd. but are subject to the rules and regulations of the applicable registrar and applicable law. Customer agrees to be bound by the terms and policies of the applicable registrar and the policies of the national DNS registration authorities to which Customer becomes subject upon registration of the domain name. Customer's inability to use a domain name shall not entitle Customer to a refund by Effervescent Technologies Pvt. Ltd. of any fees paid with respect to the registration of such unusable domain name. The domain name for the Customer Web site shall be the property of Customer.

Because the Hosting Services permit Customer to electronically transmit or upload content directly to the Customer Web site, Customer shall be fully responsible for uploading all content to the Customer Web site and supplementing, modifying and updating the Customer Web site. Customer is also responsible for ensuring that the Customer Content and all aspects of the Customer Web site are compatible with the hardware and software used by Effervescent Technologies Pvt. Ltd. to provide the Hosting Services, as the same may be changed by Effervescent Technologies Pvt. Ltd. from time to time. Specifications for the hardware and software used by Effervescent Technologies Pvt. Ltd. to provide the Hosting Services will be available on Effervescent Technologies Pvt. Ltd.'s Web site. Customer shall periodically access Effervescent Technologies Pvt. Ltd.'s Web site to determine if Effervescent Technologies Pvt. Ltd. has made any changes thereto. Effervescent Technologies Pvt. Ltd. shall not be responsible for any damages to the Customer Content, the Customer Web site or other damages or any malfunctions or service interruptions caused by any failure of the Customer Content or any aspect of the Customer Web site to be compatible with the hardware and software used by Effervescent Technologies Pvt. Ltd. to provide the Hosting Services.

Unless the applicable Service Description provides otherwise, Customer is solely responsible for making back-up copies of the Customer Web site and Customer Content.

Effervescent Technologies Pvt. Ltd. Intellectual Property.

Effervescent Technologies Pvt. Ltd. hereby grants to Customer a non-exclusive, non-transferable, royalty-free license, exercisable solely during the term of this Agreement, to use applicable Effervescent Technologies Pvt. Ltd. Technology solely for the purpose of accessing and using the Services. Customer may not use the Effervescent Technologies Pvt. Ltd. Technology for any purpose other than accessing and using the Services. Except for the rights expressly granted above, this Agreement does not transfer from Effervescent Technologies Pvt. Ltd. to Customer any Effervescent Technologies Pvt. Ltd. Technology, and all rights, titles and interests in and to the Effervescent Technologies Pvt. Ltd. Technology shall remain solely with Effervescent Technologies Pvt. Ltd.. Customer shall not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any of the Effervescent Technologies Pvt. Ltd. Technology.

Effervescent Technologies Pvt. Ltd.'s trademarks, trade names, service marks, logos, other names and marks, and related product and service names, design marks and slogans are the sole and exclusive property of Effervescent Technologies Pvt. Ltd.. Customer may not use any of the foregoing in any advertising, publicity or in any other commercial manner without the prior written consent of Effervescent Technologies Pvt. Ltd.. Effervescent Technologies Pvt. Ltd. shall maintain and control ownership of all Internet protocol numbers and addresses that may be assigned by Effervescent Technologies Pvt. Ltd. to Customer. Effervescent Technologies Pvt. Ltd. may, in its sole discretion, change or remove any and all such Internet protocol numbers and addresses.

Any feedback, data, answers, questions, comments, suggestions, ideas or the like which Customer sends to Effervescent Technologies Pvt. Ltd. relating to the Services will be treated as being non-confidential and non-proprietary. Effervescent Technologies Pvt. Ltd. may use, disclose or publish any ideas, concepts, know-how or techniques contained in such information for any purpose whatsoever.


 
 
Limited Warranty
 

Effervescent Technologies Pvt. Ltd. represents and warrants to Customer that the Services will be performed (i) in a manner consistent with industry standards reasonably applicable to the performance thereof; (ii) at least at the same level of service as provided by Effervescent Technologies Pvt. Ltd. generally to its other customers for the same services; and (iii) in compliance in all material respects with the applicable Service Descriptions. Customer will be deemed to have accepted such Services unless Customer notifies Effervescent Technologies Pvt. Ltd. within 30 days after performance of any Services of any breach of the foregoing warranties. Customer's sole and exclusive remedy, and Effervescent Technologies Pvt. Ltd.'s sole obligation, for breach of the foregoing warranties shall be for Effervescent Technologies Pvt. Ltd., at its option, to re-perform the defective Services at no cost to Customer, or, in the event of interruptions to the Services caused by a breach of the foregoing warranties, issue Customer a credit in an amount equal to the current monthly Service Fees pro rated by the number of hours in which the Services have been interrupted.

The foregoing warranties shall not apply to performance issues or defects in the Services (i) caused by factors outside of Effervescent Technologies Pvt. Ltd.'s reasonable control; (ii) that resulted from any actions or inactions of Customer or any third parties; or (iii) that resulted from Customer's equipment or any third-party equipment not within the sole control of Effervescent Technologies Pvt. Ltd..

EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 9, Effervescent Technologies Pvt. Ltd. MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES OR ANY SOFTWARE PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND Effervescent Technologies Pvt. Ltd. HEREBY EXPRESSLY DISCLAIMS THE SAME. WITHOUT LIMITING THE FOREGOING, ANY THIRD-PARTY SOFTWARE PROVIDED TO CUSTOMER HEREUNDER IS PROVIDED "AS IS" WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER. Effervescent Technologies Pvt. Ltd. DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE.


 
 
Limitation of Liability
 

IN NO EVENT WILL Effervescent Technologies Pvt. Ltd.'S LIABILITY IN CONNECTION WITH THE SERVICES, ANY SOFTWARE PROVIDED HEREUNDER OR ANY ORDER, WHETHER CAUSED BY FAILURE TO DELIVER, NON-PERFORMANCE, DEFECTS, BREACH OF WARRANTY OR OTHERWISE, EXCEED THE AGGREGATE SERVICE FEES PAID TO Effervescent Technologies Pvt. Ltd. BY CUSTOMER DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.

Effervescent Technologies Pvt. Ltd. CANNOT GUARANTEE CONTINUOUS SERVICE, SERVICE AT ANY PARTICULAR TIME, INTEGRITY OF DATA, INFORMATION OR CONTENT STORED OR TRANSMITTED VIA THE INTERNET. Effervescent Technologies Pvt. Ltd. WILL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO, OR ANY CORRUPTION, ERASURE, THEFT, DESTRUCTION, ALTERATION OR INADVERTENT DISCLOSURE OF, DATA, INFORMATION OR CONTENT TRANSMITTED, RECEIVED OR STORED ON ITS SYSTEM.

EXCEPT AS EXPRESSLY PROVIDED BELOW, NEITHER PARTY SHALL BE LIABLE IN ANY WAY TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY LOST PROFITS OR REVENUES, LOSS OF USE, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LICENSES OR SERVICES OR SIMILAR ECONOMIC LOSS, OR FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES OF ANY NATURE, WHETHER FORESEEABLE OR NOT, UNDER ANY WARRANTY OR OTHER RIGHT HEREUNDER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF ANY ORDER, OR (EXCEPT AS PROVIDED IN SECTIONS 11 AND 12) FOR ANY CLAIM AGAINST THE OTHER PARTY BY A THIRD PARTY, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES.

The limitations contained in this Section 10 apply to all causes of action in the aggregate, whether based in contract, tort or any other legal theory (including strict liability), other than claims based on fraud or willful misconduct. The limitations contained in Section 10(c) shall not apply to liability arising on account of a party's breach of Section 13 or to Customer's indemnification obligations under Section 11.

Indemnification of Effervescent Technologies Pvt. Ltd.. Customer shall defend, indemnify and hold harmless Effervescent Technologies Pvt. Ltd., its affiliates and their respective present, former and future officers, directors, employees and agents, and their respective heirs, legal representatives, successors and assigns (collectively the "Effervescent Technologies Pvt. Ltd. Indemnities"), from and against any and all losses, damages, costs, liabilities and expenses (including, without limitation, amounts paid in settlement and reasonable attorneys' / lawyers fees) which any of the Effervescent Technologies Pvt. Ltd. Indemnities may suffer, incur or sustain resulting from or arising out of (i) Customer's breach of any representation, warranty, or covenant contained in the Agreement, (ii) the Customer Content, the Customer Web site or any End User's use of the Customer Content or the Customer Web site, (iii) violation by Customer or any of its officers, directors, employees or agents of the Acceptable Use Policy or any applicable law, (iv) claims or actions of third parties alleging misappropriation of trade secrets or infringement of patents, copyrights, trademarks or other intellectual property rights arising from the use, display or publication of Customer's domain names, the Customer Web site, the Customer Content, or the use of the Services in combination with hardware, software or content not provided by Effervescent Technologies Pvt. Ltd., (v) claims or actions by third parties relating to or arising out of Customer's use of the Services, and (vi) any failure of the Customer Content or any aspect of the Customer Web site to be compatible with the hardware or software used by Effervescent Technologies Pvt. Ltd. to provide the Services, including any damage to Effervescent Technologies Pvt. Ltd.'s servers or other hardware caused thereby.


 
 
Indemnification of Customer
 

Subject to Section 10, Effervescent Technologies Pvt. Ltd. shall, at its own expense, indemnify, defend and hold Customer harmless from any claim or suit alleging that the Services infringe any patent, copyright or trademark existing on the Effective Date, or that Effervescent Technologies Pvt. Ltd. has knowingly misappropriated any trade secret or other intellectual property right of any other Person, including any losses, damages or expenses arising from any such claim or suit. Customer agrees to cooperate with and assist Effervescent Technologies Pvt. Ltd. in the defense or settlement of any such claim or suit. Customer shall be reimbursed for all reasonable out-of-pocket expenses incurred in providing any cooperation or assistance requested by Effervescent Technologies Pvt. Ltd., but Effervescent Technologies Pvt. Ltd. will not be liable for any costs or expenses incurred without its prior written authorization.

Promptly after receipt by Customer of a threat of any claim or suit, or a notice of the commencement or filing of any claim or suit, against which Customer may be indemnified hereunder, Customer shall give written notice thereof to Effervescent Technologies Pvt. Ltd., provided that failure to give or delay in giving such notice to Effervescent Technologies Pvt. Ltd. shall not relieve Effervescent Technologies Pvt. Ltd. of any liability it may have to Customer hereunder, except to the extent that the defense of such claim or suit is prejudiced thereby. Effervescent Technologies Pvt. Ltd. shall have sole control of the defense, and of all negotiations for settlement, of such claim or suit. Subject to the foregoing, Customer may participate in the defense of any such claim or suit at Customer's own expense.

If an injunction, decree or judgment is, or Effervescent Technologies Pvt. Ltd. believes in its sole discretion is likely to be, entered providing that Customer may not use the Services as contemplated in this Agreement without violating the intellectual property rights of a third party, Effervescent Technologies Pvt. Ltd. may, at its sole option and expense, either (i) procure for Customer the right to use the Services or affected part thereof as provided in this Agreement; (ii) replace the Services or affected part thereof with other non-infringing services or modify the Services or affected part thereof so as to be non-infringing; or (iii) terminate this Agreement upon written notice to Customer.

Notwithstanding Section 12(a), Effervescent Technologies Pvt. Ltd. assumes no liability for infringement claims arising from (i) use of the Services with third-party products or services where the third-party products or services cause the infringement, (ii) any modification of the Services not authorized by Effervescent Technologies Pvt. Ltd. in writing, (iii) the Customer Content, the Customer Web site or any content, data or information provided or supplied by an End User, or (iv) Customer's use of any third-party software provided hereunder. THE FOREGOING DEFENSE AND INDEMNIFICATION PROVISIONS STATE THE ENTIRE LIABILITY AND OBLIGATION OF Effervescent Technologies Pvt. Ltd., AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT BY THE SERVICES PROVIDED HEREUNDER.


 
 
Confidentiality; Non-Solicitation
 

Each party will not, without the prior written consent of the other party, use or disclose to any Person any Proprietary Information of the other party disclosed or made available to it, except for use of such Proprietary Information as required in connection with the performance of its obligations or use of the Services hereunder. Subject to Section 13(b), each party will (i) treat the Proprietary Information of the other party as secret and confidential, (ii) limit access to the Proprietary Information of the party to those of its employees who require it in order to effectuate the purposes of this Agreement, and (iii) not disclose the Proprietary Information of the other party to any other Person without the prior written consent of the other party.

Notwithstanding Section 13(a), the following shall not be considered Proprietary Information: (i) any information that the receiving party can demonstrate by written documentation was within its legitimate possession prior to the time of disclosure by the disclosing party; (ii) any information that was in the public domain prior to disclosure by the disclosing party as evidenced by documents that were published prior to such disclosure; (iii) any information that, after disclosure by the disclosing party, comes into the public domain through no fault of the receiving party, (iv) any information that is disclosed to the receiving party without restriction by a third party who has legitimate possession thereof and the legal right to make such disclosure; or (v) any information that, two years after expiration or termination of this Agreement, does not constitute a trade secret under applicable law.

Each party acknowledges that disclosure of any aspect of the Proprietary Information of the other party shall immediately give rise to continuing irreparable injury to the other party inadequately compensable in damages at law, and, without prejudice to any other remedy available to the other party, shall entitle the other party to injunctive or other equitable relief. Upon expiration or termination of this Agreement for any reason, each party shall promptly return to the other party all Proprietary Information of the other party (including all copies thereof) in its possession or control.

During the term of this Agreement and for two years following expiration or termination of this Agreement, Customer will not, directly or indirectly, solicit or recruit the services of any employee of Effervescent Technologies Pvt. Ltd. performing services under this Agreement, while such employee is employed by Effervescent Technologies Pvt. Ltd. and for a period of ten months after such employee has left the employment of Effervescent Technologies Pvt. Ltd..


 
 
Optional Services. In connection with any Optional Services
 

Customer must provide Effervescent Technologies Pvt. Ltd. with any information, login identifications, passwords or other information or access to facilities that Effervescent Technologies Pvt. Ltd. may reasonably require to provide the Optional Services Effervescent Technologies Pvt. Ltd. will have no responsibility for any delays or increased costs or expenses associated with Customer's failure to provide any of such information. If Customer does not provide any such information or access requested by Effervescent Technologies Pvt. Ltd. within thirty (30) days of Effervescent Technologies Pvt. Ltd.'s request therefore, Effervescent Technologies Pvt. Ltd. may terminate the Order and retain any Service Fees paid.

If Customer requested that Effervescent Technologies Pvt. Ltd. perform the Optional Services by a particular deadline or that Effervescent Technologies Pvt. Ltd. achieve some particular result or outcome, Effervescent Technologies Pvt. Ltd. will use commercially reasonable best efforts to perform the Services by any such deadline and achieve the result requested by Customer; provided, however, that (i) Effervescent Technologies Pvt. Ltd.'s ability to perform the Services is subject to Customer's provision of information and access as provided above and (ii) Effervescent Technologies Pvt. Ltd. has no liability or obligation to complete the Services by any deadline or achieve any particular outcome of result.

If Customer wishes to convey documents or files to Effervescent Technologies Pvt. Ltd., Customer should deliver to Effervescent Technologies Pvt. Ltd. a copy or duplicate of such documents or files and not the original copy. Effervescent Technologies Pvt. Ltd. will not return to Customer any documents or files conveyed to Effervescent Technologies Pvt. Ltd..


 
 
Miscellaneous
 

Independent Contractor. Effervescent Technologies Pvt. Ltd. and Customer are independent contractors and nothing contained in this Agreement places Effervescent Technologies Pvt. Ltd. and Customer in the relationship of principal and agent, master and servant, partners or joint ventures. Neither party has, expressly or by implication, or may represent itself as having, any authority to make contracts or enter into any agreements in the name of the other party, or to obligate or bind the other party in any manner whatsoever.

Governing Law; Jurisdiction. The validity and effect of this Agreement shall be governed by and construed and enforced in accordance with the laws of the India and are subject to Mumbai Jurisdiction only, without regard to its conflicts of laws principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. ANY SUIT, ACTION OR PROCEEDING CONCERNING THIS AGREEMENT MUST BE BROUGHT IN A INDIAN COURT LOCATED IN MUMBAI, STATE MAHARASHTRA, INDIA AND EACH OF THE PARTIES HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS (AND OF THE APPROPRIATE APPELLATE COURTS THERE FROM) IN ANY SUCH SUIT, ACTION OR PROCEEDING AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT ANY SUCH SUIT, ACTION OR PROCEEDING WHICH IS BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

Headings. The headings herein are for convenience only and are not part of this Agreement.

Entire Agreement; Amendments. This Agreement, including documents incorporated herein by reference, supersedes all prior discussions, negotiations and agreements between the parties with respect to the subject matter hereof, and this Agreement constitutes the sole and entire agreement between the parties with respect to the matters covered hereby. In case of a conflict between this Agreement and any purchase order, service order, work order, confirmation, correspondence or other communication of Customer or Effervescent Technologies Pvt. Ltd., the terms and conditions of this Agreement shall control. No additional terms or conditions relating to the subject matter of this Agreement shall be effective unless approved in writing by any authorized representative of Customer and Effervescent Technologies Pvt. Ltd.. This Agreement may not be modified or amended except by another agreement in writing executed by the parties hereto; provided, however, that these Terms of Service may be modified from time to time by Effervescent Technologies Pvt. Ltd. in its sole discretion, which modifications will be effective upon posting to Effervescent Technologies Pvt. Ltd.'s Web site.

Severability. All rights and restrictions contained in this Agreement may be exercised and shall be applicable and binding only to the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary so that they will not render this Agreement illegal, invalid or unenforceable. If any provision or portion of any provision of this Agreement shall be held to be illegal, invalid or unenforceable by a court of competent jurisdiction, it is the intention of the parties that the remaining provisions or portions thereof shall constitute their agreement with respect to the subject matter hereof, and all such remaining provisions or portions thereof shall remain in full force and effect.

Notices. All notices and demands required or contemplated hereunder by one party to the other shall be in writing and shall be deemed to have been duly made and given upon date of delivery if delivered in person or by an overnight delivery or postal service, upon receipt if delivered by facsimile the receipt of which is confirmed by the recipient, or upon the expiration of five days after the date of posting if mailed by certified mail, postage prepaid, to the addresses or facsimile numbers set forth below the parties' signatures. Either party may change its address or facsimile number for purposes of this Agreement by notice in writing to the other party as provided herein. Shared Customers may give, and be given, notice by electronic means in certain circumstances as provided in the Service Description.

Waiver. No failure or delay by any party hereto to exercise any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy by any party preclude any other or further exercise thereof or the exercise of any other right or remedy. No express waiver or assent by any party hereto to any breach of or default in any term or condition of this Agreement shall constitute a waiver of or an assent to any succeeding breach of or default in the same or any other term or condition hereof.

Assignment; Successors. Customer may not assign or transfer this Agreement, or any of its rights or obligations hereunder, without the prior written consent of Effervescent Technologies Pvt. Ltd.. Any attempted assignment in violation of the foregoing provision shall be null and void and of no force or effect whatsoever. Effervescent Technologies Pvt. Ltd. may assign its rights and obligations under this Agreement, and may engage subcontractors or agents in performing its duties and exercising its rights hereunder, without the consent of Customer. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.

Limitation of Actions. No action, regardless of form, arising by reason of or in connection with this Agreement may be brought by either party more than two years after the cause of action has arisen.

Counterparts. If this Agreement is signed manually, it may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. If this Agreement is signed electronically, Effervescent Technologies Pvt. Ltd.'s records of such execution shall be presumed accurate unless proven otherwise.

Force Majeure. Neither party is liable for any default or delay in the performance of any of its obligations under this Agreement (other than failure to make payments when due) if such default or delay is caused, directly or indirectly, by forces beyond such party's reasonable control, including, without limitation, fire, flood, acts of God, labor disputes, accidents, interruptions of transportation or communications, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment or material required for such party to perform its obligations hereunder.

No Third-Party Beneficiaries. Except as otherwise expressly provided in this Agreement, nothing in this Agreement is intended, nor shall anything herein be construed to confer any rights, legal or equitable, in any Person other than the parties hereto and their respective successors and permitted assigns. Notwithstanding the foregoing, Customer acknowledges and agrees that Microsoft, and any supplier of third-party supplier that is identified as a third-party beneficiary in the Service Description, is an intended third-party beneficiary of the provisions set forth in this Agreement as they relate specifically to its products or services and shall have the right to enforce directly the terms and conditions of this Agreement with respect to its products or services against Customer as if it were a party to this Agreement.

Government Regulations. Customer may not export, re-export, transfer or make available, whether directly or indirectly, any regulated item or information to anyone outside the United States / India in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the United States / India government and any country or organization of nations within whose jurisdiction Customer operates or does business.

Marketing. Customer agrees that during the term of this Agreement Effervescent Technologies Pvt. Ltd. may publicly refer to Customer, orally and in writing, as a customer of Effervescent Technologies Pvt. Ltd.. Any other public reference to Customer by Effervescent Technologies Pvt. Ltd. requires the written consent of Customer.

Telephone Monitoring. To ensure Effervescent Technologies Pvt. Ltd.'s customers receive quality service, Effervescent Technologies Pvt. Ltd. randomly selects phone calls for monitoring. These calls, between Effervescent Technologies Pvt. Ltd.'s customers and employees, are evaluated by supervisors. This is to guarantee that prompt, consistent assistance and accurate information is delivered in a professional manner.

Definitions. For purposes of this Agreement, the following terms have the meanings specified below :

"Agreement" means each contract created between Effervescent Technologies Pvt. Ltd. and Customer for the provision of Services consisting of an Order, the applicable Service Description and these Terms of Service.

"Customer Content" means all data, graphics, text, names, marks, logos, hypertext links to other Web sites and other information incorporated in, transmitted through or published or displayed on the Customer Web site.

"End User" means any Person who accesses or uses the Customer Web site via the Internet.

"Effervescent Technologies Pvt. Ltd. Technology"; means Effervescent Technologies Pvt. Ltd.'s proprietary technology, including, without limitation, Effervescent Technologies Pvt. Ltd. services, software tools, hardware designs, algorithms, software (in source code and object code forms), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), network designs, know-how, trade secrets and any related intellectual property rights throughout the world (whether owned by Effervescent Technologies Pvt. Ltd. or licensed to Effervescent Technologies Pvt. Ltd. from a third party), and also including any derivatives, improvements, enhancements, updates, modifications or extensions of Effervescent Technologies Pvt. Ltd. Technology conceived, reduced to practice or developed during the term of this Agreement by either party.

"Person" means any individual, partnership, joint venture, corporation, limited liability company, trust, unincorporated association or organization, or government or any agency or political subdivision thereof.

"Proprietary Information" means all technical, business and other information of a party (i) that is not generally known to the public, (ii) that derives value, economic or otherwise, from not being generally known to the public or to other Persons who can obtain value from its disclosure or use, and (iii) which information is subject to efforts that are reasonable under the circumstances to maintain the secrecy thereof.

"Order" means the Order submitted by the Customer to Effervescent Technologies Pvt. Ltd. for Services, whether such Order is submitted online through Effervescent Technologies Pvt. Ltd.'s Web site or on a written Order form.

"Prepaid Plan" means Hosting Service provided by Effervescent Technologies Pvt. Ltd. to Customer where the Order provides that the Customer must pay for the Hosting Service in advance for the Initial Term. "Non-Prepaid Plan" means any Hosting Service provided by Effervescent Technologies Pvt. Ltd. to Customer that is not a Prepaid Plan.

"Termination Charge" means, with respect to Non-Prepaid Customers only, as of any date of calculation, an amount equal to one hundred percent (100%) of the fees that would become due over the balance of the then-current Term.

"Terms of Service" means these Terms of Service, as the same may be modified, altered or amended from time to time by Effervescent Technologies Pvt. Ltd..

"Service" means either Hosting Service or Optional Service. "Hosting Service" means the Service provided by Effervescent Technologies Pvt. Ltd. in response to an Order whereby Effervescent Technologies Pvt. Ltd. provides the Customer with specified connectivity, storage space and bandwidth for the hosting of a Customer Web site as more particularly described in the applicable Service Description. "Optional Service" means any additional Service (other than Hosting Service) Effervescent Technologies Pvt. Ltd. may provide in response to an Order, as more particularly described in the applicable Service Description.

"Service Description" means the applicable documents made available by Effervescent Technologies Pvt. Ltd. to Customer to describe the applicable Services at the time the Order is accepted by Effervescent Technologies Pvt. Ltd..

"Term" means the duration of any Agreement between Effervescent Technologies Pvt. Ltd. and Customer. With respect to Hosting Services, the "Initial Term" is the initial term specified in the Order and the "Renewal Term" is the period of time beginning on the expiration of the Initial Term and ending on the termination of expiration of the Order in accordance with its terms. With respect to Optional Services, the "Term" begins when Effervescent Technologies Pvt. Ltd. accepts the Order and ends on the first to occur of (i) Effervescent Technologies Pvt. Ltd.'s completion of performance, or (ii) the earlier termination of the Order in any manner permitted by these Terms of Service.


 
 
Annexure A
 
General Terms and Conditions

Effervescent Technologies Pvt. Ltd. exercises no control whatsoever over the content of any information located on or passing through our network. Effervescent Technologies Pvt. Ltd. specifically denies any responsibility for the accuracy of information obtained through our services. Any and all information obtained through Effervescent Technologies Pvt. Ltd. services is at your own risk.

Effervescent Technologies Pvt. Ltd. services are to be used for lawful purposes.

Use of any network reachable through Effervescent Technologies Pvt. Ltd. must comply with the rules and regulations of that network.

As a customer of Effervescent Technologies Pvt. Ltd. and a user of our services you and your company agree to indemnify and to hold harmless Effervescent Technologies Pvt. Ltd. from any and all claims resulting from your use of the service which causes damage to you or any other party. Effervescent Technologies Pvt. Ltd. shall not be liable, either in contract or in tort, for the protection from unauthorized access of its customers transmission facilities or customer owned premise equipment, or for unauthorized access to or alteration, theft or destruction of a customers data files, programs, or information through accident, fraudulent means or devices, or any other method.

Effervescent Technologies Pvt. Ltd. will not be responsible for performance of its obligations hereunder where delayed or hindered by war, riots, embargoes, strikes, acts of God, or acts of its vendors or , suppliers. Should such occurrence continue for more than 30 days, Effervescent Technologies Pvt. Ltd. , or its customers may cancel service for the affected , services or products with no further liability.

Effervescent Technologies Pvt. Ltd. will not be responsible for any damages your business may suffer. Effervescent Technologies Pvt. Ltd. makes no warranties of any kind, expressed or implied for services we provide. Effervescent Technologies Pvt. Ltd. disclaims any warranty or merchantability or fitness for a particular purpose. This includes loss of data resulting from delays, nondeliveries, wrong deliveries, and any and all service interruptions caused.

Installation charges, if any, and setup charges are required to be paid in full at the time services are ordered. These charges are non-refundable. Effervescent Technologies Pvt. Ltd. will subsequently r synchronize your payments to the first year, independent of actual start date. Service is invoiced yearly in advance for all services. Payment is due in full by the first of the month. There is a 5 day grace period. Failure to meet this deadline may result in service interruption. If your payment is returned to us unpaid you are immediately in default and subject to a returned check charge of Rs. 500.00. Accounts in default are subject to an interest charge of 1.5% per month on the outstanding balance. If you default, you agree to pay Effervescent Technologies Pvt. Ltd. its reasonable expenses, including attorney and collection fees, incurred in enforcing its rights under these Terms and Conditions.

Only a written request to terminate service relieves you and/or your company from the obligation to pay your charges. To terminate service, a company or an individual must provide Effervescent Technologies Pvt. Ltd. with notice any time prior to the end of the current billing cycle. Effervescent Technologies Pvt. Ltd. will not pro-rate the final month of service with all services ending on the last day of the current billing cycle.

Customers are responsible for the use and compatibility of their own hardware and software. In the event that the customer uses hardware and/or software that impairs the customers use of Effervescent Technologies Pvt. Ltd. services, the customer shall nonetheless be liable for regular payments to Effervescent Technologies Pvt. Ltd. . Upon notice from Effervescent Technologies Pvt. Ltd. that the hardware and/or software is causing, or, in the sole opinion of Effervescent Technologies Pvt. Ltd. , is likely to cause hazard, interference, or service obstruction, the customer shall eliminate the hazard, interference, or service obstruction at once. Customers may, if necessary, pay Effervescent Technologies Pvt. Ltd. to troubleshoot problems caused by such equipment. Effervescent Technologies Pvt. Ltd. will not be responsible if any changes in hardware, software, or services cause the customers equipment to become obsolete, or require modification or alteration. Effervescent Technologies Pvt. Ltd. will, at its option, supply technical services in the form of consulting and/or service to customers at their request. Such services will be billed at rates that are in effect at the time such services are requested. Effervescent Technologies Pvt. Ltd. reserves the right to refuse any such technical services at its sole option. Payments are due after the delivery of account invoice.

Effervescent Technologies Pvt. Ltd. reserves the right to charge customers requesting a refund or returned check via postal mail a handling charge if applicable.

Effervescent Technologies Pvt. Ltd. reserves the right to assess legal fees, including attorney and court fees, upon any customer who, by their action or inaction, directly or indirectly causes Effervescent Technologies Pvt. Ltd. to be a defendant or co-defendant in any civil or criminal legal action.

As a customer of Effervescent Technologies Pvt. Ltd. you may not assign or transfer your service order without prior written consent of Effervescent Technologies Pvt. Ltd.. Effervescent Technologies Pvt. Ltd. may at any time sell, assign, or transfer this agreement with no notice. Effervescent Technologies Pvt. Ltd. reserves the right to terminate service at anytime.

Effervescent Technologies Pvt. Ltd. reserves the right to change its rates and otherwise modify the Terms and Conditions .These Terms and Conditions supersede all previous representations, understandings, or agreements and shall prevail notwithstanding any variance with the Terms and Conditions of any and all orders submitted.

These Terms and Conditions cannot be modified except by written amendment by the parties. No agent, employee, or representative of Effervescent Technologies Pvt. Ltd. has the authority to bind the parties to any representation or warranty unless such is specifically included in these Terms and Conditions, Effervescent Technologies Pvt. Ltd. Price List or with a written amendment thereto. Disputes arising under this agreement shall be sent by registered mail to the parties to the address shown on the most recent service order.

Client will use the Provider's services in a manner consistent with any and all applicable laws of India and the US Federal Government.

CLIENT HEREBY AGREES THAT ANY MATERIAL SUBMITTED FOR PUBLICATION ON PROVIDER THROUGH CLIENT'S ACCOUNT(S) WILL NOT VIOLATE OR INFRINGE ANY COPYRIGHT, TRADEMARK, PATENT, STATUTORY, COMMON LAW OR PROPRIETARY RIGHTS OF OTHERS, OR CONTAIN ANYTHING LIBELOUS OR HARMFUL. ANY POTENTIALLY ILLEGAL ACTIVITY MAY BE DEACTIVATED WITHOUT WARNING BY THE PROVIDER. CLIENT HEREBY AGREES TO INDEMNIFY AND HOLD HARMLESS THE PROVIDER FOR ANY CLAIM RESULTING FROM THE SUBMISSION OF ILLEGAL MATERIALS.

When you as a company and/or an individual use Effervescent Technologies Pvt. Ltd. Services, this constitutes acceptance of these Terms and Conditions. If you have any questions please send them to legal@effervescent.in