This Master Services Agreement, the Service Schedule(s), the Acceptable Use Policy and Service Order Form(s)”/ “Customer Application Form(s)/subscription on the Polarin Platform” or “SOF”/“CAF/subscription on the Polarin Platform”) set out the terms and conditions that apply to Customer’s access to and use of the Services and forms an agreement (this “Agreement”) between Lightstorm Data Centers Private Limited and its Affiliates (to the extent designated on a Service Order Form) (the providing entity being “LDC”); and the Customer (detailed in the table below) and its Affiliates (to the extent designated on a Service Order Form).
LDC and the Customer may be referred to in this Agreement individually as a “Party” and/or collectively as the “Parties.”
The Parties that the Customer executes this Agreement by clicking on “I accept” button which shall be construed as equivalent to a physical signature made by the Customer and any Agreement executed online on platform shall be construed as a legally binding agreement.
NOW THEREFORE, in consideration of the mutual covenants, agreements, representations and warranties set forth in this Agreement, the sufficiency of which is hereby acknowledged by the Parties, the Parties hereby agree as follows:
(i)“Intellectual Property Rights” means all intellectual and industrial property rights and interests (including common law rights and interests) including, without limitation:
(j) “MSF/Subscription Fee” shall have the meaning as set forth in Clause 5.3.
(k) “Upfront Fee” shall have the meaning as set forth in Clause 5.2.
(l) “Party” shall mean LDC or Customer individually.
(m) “Parties” LDC and the Customer collectively.
(n) “Payment Date” shall have the meaning as set forth in Clause 6.1.
(o) “Receiving Party” shall have the meaning as set forth in Clause 16.1.
(p) “Renewal Service Term” shall have the meaning as set forth in Clause 3.1.
(q) “RMA” shall have the meaning as set forth in Clause 14.1.
(r) “Sanctioned Person” means any person, organization or vessel (i) designated on the Office of Foreign Assets Control of the Department of the Treasury of the United States of America list of “Specially Designated Nationals and Blocked Persons” or on any list of targeted persons issued under any Economic Sanctions Law; (ii) that is, or is part of, a government of any country or other territory subject to a general export, import, financial or investment embargo under any Economic Sanctions Law; (iii) owned or controlled by, or acting on behalf of, any of the foregoing; (iv) located within or operating from any country or other territory subject to a general export, import, financial or investment embargo under any Economic Sanctions Law; or (v) otherwise targeted under any Economic Sanctions Law
(s) “Services” shall mean network as a services (NaaS) online platform providing cloud connectivity services including connectivity from clouds to datacenters and vice versa, datacenter connectivity services and other services integrated therein.”.
(t) “Service Outage” shall have the meaning as set forth in Clause 9.1.
(u) “Service Schedule” shall have the meaning as set forth in Clause 18.4.
(v) “SOF”/”CAF/Subscription on the Polarin Platform” shall mean any written request for Services, or for the change of Services, setting out the details of the Services to be provided by LDC as per its standard format, as may be amended from time to time to the Customer.
(w) “SOW” shall have the meaning as set forth in Clause 19.4.
(x) “Service Creation Date” shall have the meaning as set forth in Clause 4.1.
(y) “Taxes” shall have the meaning as set forth in Clause 5.1.
(z) “Term” shall have the meaning as set forth in Clause 3.1.
In this Agreement, unless the context otherwise requires:
(a) The term “Clause” refers to the specified Clause of this Agreement;
(b) The words “directly or indirectly” mean directly or indirectly through 1 (one) or more intermediary persons or through contractual or other legal arrangements, and “direct or indirect” shall have the correlative meanings;
(c) Reference to any legislation or law or to any provision thereof shall include references to any such law as it may, after the Effective Date, from time to time, be amended, supplemented or re-enacted, and any reference to statutory provision shall include any subordinate legislation made from time to time under that provision;
(d) Applicable Law includes its amendments and re-enactments;
(e) the use of the singular shall include the plural and vice-versa and the use of the masculine shall include the feminine and vice-versa;
(f) The descriptive headings of clauses and paragraphs are inserted solely for convenience of reference and are not intended as complete or accurate descriptions of the content thereof and shall not be used to interpret the provisions of this Agreement;
(g) The words “include” and “including” shall be deemed to be followed by the phrase “without limitation”;
(h) The terms “herein”, “hereof”, “hereto”, “hereunder” and words of similar purport refer to this Agreement as a whole;
(i) Any reference to day shall mean a reference to a calendar day;
(j) Any reference to month shall mean a reference to a calendar month;
(k) Annexures, Schedules, Exhibits to this Agreement form an integral part of this Agreement;
(l) Any reference to any period commencing “from” a specified day or date and “till” or “until” a specified day or date shall include both such days or dates;
(m) Words and abbreviations which have well known technical or trade or commercial meanings are used in this Agreement in accordance with such meanings;
(n) In case any sections of the Agreement conflicts with terms of any other document referred to in the Agreement, the following order of precedence will be prevailing over the Parties:
(i) the Clauses of this Agreement;
(ii) the Schedules of this Agreement; and
(iii) any other document referred to in the Agreement;
(o) Time is of the essence in the performance of the Parties’ respective obligations. If any time period specified herein is extended, such extended time shall also be of the essence;
(p) Any word or phrase defined in the body of this Agreement as opposed to being defined in Clause 1.1 shall have the meaning assigned to it in such definition throughout this Agreement, unless the contrary is expressly stated or the contrary clearly appears from the context; and
3.1. This Agreement will commence on the Effective Date and will remain in effect until expiry of last SOF/ CAF place by the Customer on LDC, unless otherwise terminated as set out in this Agreement (“Term”). Subject to Clause 8 below, the Service will be provided for the term specified in the relevant SOF/ CAF/subscription taken on Polarin Platform (“Initial Service Term”). Any Service being provided at the time of termination of this Agreement will continue upon the terms and conditions of this Agreement until the end of the applicable Service Term. Subject to Clause 2 or Clause 8 below, unless one of the Parties provides written notice of termination to the other Party on or before ninety (90) days prior to the expiration of a Service Term, the term of the related Service will automatically continue in full force on an annual basis (each an “Renewal Service Term”). The “Service Term” will be defined as the Initial Service Term and Renewal Service Term, collectively.
4.1. LDC will notify the Customer (in writing or electronically) that the Service is live and is available for use”). when the port physical cross connection is completed or 30 days from the date on which Service is ordered on the Platform (“Service Creation Date”) whichever is earlier (“Go Live Date”). In cases where Services do not require a physical cross-connect, the services go live on the Service Creation Date. LDC may incrementally deliver individual Services or locations specified in a SOF/CAF/ Polarin Platform, when ready, which may result in different Service Creation Dates for each incrementally delivered Service or location.
5.1. LDC or its Affiliate charges the Customer for each Service commencing on the Go Live Date as per the rates, currency and charges mentioned in the SOF/CAF/ Polarin Platform.
5.2 . The Customer can choose either the reserved plan or PAYG plan on the Polarin Platform
5.2.1 In the event the Customer opts for the Reserved plan, the first invoice will be generated on Go Live Date on a pro-rated basis while the subsequent invoices will be generated on the 1st of every month.
5.2.2 In the event the Customer opts for a PAYG Plan, then all the invoices under the said plan will be generated on the first of every month basis on the usage in the previous billing period.
5.3 LDC may invoice the Customer an upfront fee (“UF”) for Services on or before the Go Live Date if specified in a SOF/CAF/ Subscription on the Polarin Platform as upfront fee, and the Customer shall pay such UF in accordance with terms set out in the SOF/CAF. LDC will invoice the Customer via electronic delivery
5.3. If a monthly subscription fee (“MSF”) is specified in a SOF/CAF/Subscription on the Polarin Platform, LDC or its Affiliate shall invoice the Customer for MSF as per the terms set out in the SOF/CAF/Subscription on the Polarin Platform.
5.4. Subject to the plan opted by the Customer as mentioned in clause 5.2, LDC or its Affiliate shall begin to invoice the MSF from the Go Live Date. For Services where there is no need of port cross connection, the billing will start instantly. The invoice start dates for individual Service under the SOF/CAF/Subscription on the of Polarin Platform may differ if Services under the SOF/CAF/Polarin Platform are provisioned on different Go Live Date. Invoices for partial months shall be pro-rated.
5.5. The base price shall be stated in SOF/CAF/ subscription on the Polarin Platform. All the payment shall be made to a LDC’s or its Affiliate’s designated account electronically.
5.6. Usage based charges or professional fee charges will be invoiced in the billing period after such Services have been provided. All payments made by the Customer under this Agreement will be made without any deduction or withholding for or on account of any charges/ fees and all applicable GST, excise, sales, use, VAT, customs and import taxes or other taxes, fees, surcharges, and/or recovery charges, however designated, imposed upon or authorized as a result of LDC’s sale of the Services (collectively, “Taxes”). LDC may adjust charges for a Renewal Service Term, upon thirty (30) days written notice to the Customer.
5.7. If any taxing or governmental authority asserts that the Customer should or should have made a deduction for withholding for or on account of any Taxes with respect to all or a portion of any payment made under this Agreement, the Customer agrees to increase the gross amount payable by the Customer to LDC by the amount of such withholding and indemnify LDC for Taxes and to hold LDC harmless on an after-tax basis from and against any such Taxes, interest or penalties levied or asserted against LDC or any other levies by whatever name it may be called.
6.1. All invoices are due upon receipt, payable by the Customer’s electronic transfer in available funds. If any undisputed amount due on any invoice is not received by LDC within thirty (30) days of the invoice date (“Payment Date”), then, in addition to any other remedies available to LDC (including but not limited to those set out in Clause 8), LDC may in its sole discretion charge interest, at the rate of the lesser of one and one-half percent (1.5%) per month or the maximum rate allowable under law, commencing as of the Payment Date through the date of LDC’s receipt of payment.
6.2. Except for bona fide disputes submitted in accordance with Clause 7 of this Agreement, payments due are not subject to reduction, set-off, or adjustment of any nature by the Customer. If LDC initiates legal action to pursue collection of any undisputed amount due under this Agreement or any SOF/ CAF/ Subscription on the Polarin Platform, the Customer will be responsible for and agrees to pay for any and all reasonable attorneys’ fees and expenses incurred by LDC.
7.1. If the Customer reasonably and in good faith disputes any portion of LDC’s invoice, the Customer will, within thirty (30) days of the invoice date, submit written notice to LDC of such dispute, identifying in specific detail the reason for the dispute and the amount being disputed.
7.2. If the Customer does not deliver such written notice within thirty (30) days of the invoice date, the invoice and all relevant charges will be deemed correct, and the Customer will have waived its rights to dispute the invoice. The Customer’s dispute as to any portion of the invoice will not excuse the Customer’s obligation to pay the undisputed portion of the invoice by the Payment Date. The Parties will negotiate in good faith to resolve any disputes within fifteen (15) days following LDC’s receipt of the Customer’s timely written notice. Any amounts that LDC determines to be in error will be adjusted on the Customer’s next invoice. Any disputed amounts that LDC determines to be correct as billed will be due and payable by the Customer, upon notification and demand by LDC, along with any charges that LDC may impose under Clause 5 above.
9.1. Services will be activated, provided and provisioned in accordance with the delivery, availability, reporting, response time, restoration and maintenance objectives of the applicable Service Schedule(s). In the event of a failure to perform in accordance with objectives of the applicable Service Schedule(s) or interruption in the Service (“Service Outage”), the Customer will be entitled to a service credit as per the applicable Service Schedule(s). Credit allowances will be measured only after LDC’s receipt of written notice of a Service Outage from the Customer, and will be provided via credit note only if the Customer provides written notice with respect to obtaining such credit within thirty (30) days of the Service Outage occurring. Under no circumstance will a Service Outage be deemed a breach under this Agreement, any Service Schedule or any SOF/ CAF/ subscription on the Polarin Platform.
9.2. Service availability, and Service Outages, are subject to the following exclusions: a Service Outage will be deemed to have occurred only if the Service becomes unusable to the Customer as a result of the inability of LDC’s facilities, equipment or personnel to provide the Service, and only when the Service Outage is not the result of:
9.2.1. fault or negligence of the Customer or its contractors, agents, representatives, or users;
9.2.2. the failure of interconnecting facilities or other equipment not part of LDC’s Service or facilities or not within LDC’s reasonable control;
9.2.3. any planned interruption, emergency maintenance or routine maintenance; or
9.2.4. other circumstances beyond the reasonable control of LDC. LDC will use commercially reasonable efforts to perform routine maintenance at mutually agreeable times.
9.3. Notwithstanding any other provision of this Agreement, LDC shall have the right, from time to time, to reconfigure, modify, vary or otherwise alter the configuration of the Services, including by introducing new technology or modifying transmission characteristics, or substituting any capacity provided as part of the Service onto alternative fibre cables or route(s), or by replacing the infrastructure or cables comprising the Services with new infrastructure or cables, whether provided by LDC directly or supplied by a third party, and whether or not on the same route (each of the aforesaid being a reconfiguration), to the extent such actions do not materially adversely affect the Customer’s use of the Services. LDC shall give the Customer as much notice of any such reconfiguration as is reasonably practicable, but LDC shall not be liable for any costs, losses or expenses incurred by the Customer as a result of or in connection with any reconfiguration.
10.1. Neither Party will be in default or otherwise liable for any Service Outage, delay, or failure of its performance under this Agreement or any SOF/ CAF/ subscription on the Polarin Platform to the extent such Service Outage, delay, or failure to perform arises by reason of any cause or circumstance beyond the reasonable control of the affected Party, including but not limited to, reason of act of God, the elements, adverse weather conditions, fire, flood, riots, strikes, accident, war, governmental requirement or any action of government in its sovereign capacity, act of civil or military authority, action or inaction of a supplier or other third party (including but not limited to failure of an underlying third party provider to timely process an application), fiber or cable cut, subsea fiber damage, inability to secure materials, labour or transportation, epidemic or catastrophe (each constituting a “Force Majeure”).
10.2. Any Party that is subject to an event of Force Majeure shall not be in breach of this Agreement provided that it promptly notifies the other Party in writing of the nature and extent of the event of Force Majeure causing its failure or delay in performance.
11.1. Except as expressly set out in this Agreement, Service Schedule, a SOF/ CAF/ subscription on the Polarin Platform and to the extent permissible under applicable law, LDC does not make, and expressly disclaims and excludes to the fullest extent, any warranties, conditions, representations or other agreements, express or implied (either in fact or by operation of law, statutory or otherwise), to the Customer or any third party with respect to the Service or equipment, including, without limitation, any conditions or warranties of merchantability, satisfactory quality or fitness for a particular purpose or otherwise. LDC will provide and maintain the Service to the Customer as specified in this Agreement.
11.2. In no event will LDC's third-party suppliers be liable to the Customer or any other party for any loss or damage arising out of the provision of Services or equipment under this Agreement. In no event will a Party be liable to the other Party under any circumstances, howsoever arising out of, or in connection with, this Agreement for any loss of actual or anticipated profit, loss of income or revenue, loss of goodwill, opportunity, business or contract, loss, destruction or corruption of data or technology, business interruption, downtime costs, or any wasted expenditure or time, loss of anticipated savings, loss of use of any property, cost of substitute performance, equipment or services, in each of the foregoing cases, whether such loss or cost is direct, indirect or consequential; or any indirect, special, incidental, exemplary, punitive or consequential losses or damages. The exclusions in this Clause will apply whether or not the costs, losses or damages were caused by the acts or omissions of a Party’s employees or agents, and regardless of whether it has been informed of, or could have foreseen, the possibility or likelihood of such losses. The Customer’s sole remedy for the failure or non-performance of the Service or equipment to meet the performance and Service levels of the applicable Service Schedule will be to receive a credit as set out in applicable Service Schedule. A Party’s entire liability to the other Party for any claim, loss, cost, expense, or damages under this Agreement or the SOF/ CAF/ subscription on the Polarin Platform will in no event exceed the sum actually paid by the Customer to LDC for the affected Service during the twelve (12) month period preceding the date such claim first arose. The foregoing exclusions and limitations apply to all causes of action and claims of any kind arising out of or related to this Agreement or any SOF/ CAF/subscription on the Polarin Platform including, without limitation, breach of contract, breach of warranty or condition, under an indemnity or otherwise (unless expressly provided), strict liability, breach of statutory duty, negligence, misrepresentation, or any other tort. The Customer acknowledges and accepts the reasonableness of the foregoing disclaimers and limitations of liability. For purposes of this Clause 11, all references to a Party will include its affiliates, agents, suppliers, officers, directors, shareholders, and employees.
11.3. Each Party will protect, defend and indemnify, and hold harmless the other Party, its officers, employees, contractors, and agents, from and against any and all liabilities, allegations, claims, losses, damages, expenses, judgements and causes of action arising from or in connection with damage to tangible, real and personal property caused by the gross negligence or wilful misconduct of the indemnifying Party, or its employees, affiliates, representatives, agents or contractors in the performance of the indemnifying Party’s obligation under this Agreement, except those damages, costs, expenses and liabilities arising from the negligence or wilful misconduct of the indemnified Party.
11.4. This indemnification requires the party seeking indemnification to give prompt notification of any claim to the indemnifying Party and to give the indemnifying party reasonable control over the management of the third-party claim and any settlement negotiations or arrangements relevant to it.
11.5. Each Party’s indemnification obligations hereunder survive the expiration or termination of this Agreement.
11.6. Except for the credits for a Service Outage, if any, LDC shall not be liable to the Customer for any loss or damage sustained by reason of any delay in completion, failure or breakdown of the Service or for any interruption of Service, regardless of the cause of such delay in completion, failure, breakdown or interruption, and regardless of how long it shall last. The Customer hereby agrees and acknowledges that any service credits shall be in full and final settlement of any claim and the sole remedy in relation to any claim concerning Service unavailability or outage.
11.7. LDC shall not, in any manner, be held responsible for any breach of contract by the Customer or any of its clients, strategic partners, suppliers or Affiliates. Any acts of omissions of any third party under any arrangements with /to the Customer (including, without limit, End User) will be deemed to be to the Customer’s acts or omissions for the purpose of this Agreement
11.8. Nothing in this Agreement will exclude or limit a Party’s liability for wilful misconduct; for death or bodily injury caused by a Party’s gross negligence; for use of Service (or any service derived therefrom) for any illegal or unlawful purpose; to pay charges (including any cancellation charges or other early termination charges) which have already become due; or in respect of any other liability which cannot be excluded or limited by applicable law. The Parties will use best endeavours to mitigate any losses that may arise from any SOF/ CAF/subscription on the Polarin Platform or under this Agreement.
12.1. The Customer acknowledges and agrees that:
12.1.1. the Customer is solely responsible for obtaining all licenses, approvals, and regulatory authority for its operation and the provision of the Customer’s services which incorporate LDC’s Services to its end user and/or other customers; and
12.1.2. the Customer is solely responsible for complying with the terms and conditions set out in the CAF;
12.1.3. the Customer is solely responsible for complying with all the applicable laws and shall not be involved: i) in any unlawful activity like sending unsolicited commercial messages or communications in any form ("SPAM"), falsifying user or other Service related information; ii) in any activity that threatens the integrity and/or security of any network or computer system (including, but not limited to, transmission of worms, viruses and other malicious codes and accessing any device or data without proper authorisation) etc.;
12.1.4. the Customer is solely responsible for obtaining all local permits, landlord consents, access licenses and permissions, and other consents and waivers necessary for installation of facilities and equipment to allow LDC to provide the Service and make use of the Service. Equipment used by the Customer or the Customer’s customers, suppliers, agents, employees or end users in connection with any Service will not:
12.1.4.1.interfere with or impair service over any facilities and equipment of LDC and its suppliers;
12.1.4.2.impair the privacy of any communications carried over LDC's Services; or
12.1.4.3.cause damage of any nature to the system or prejudice the proper use of the system by LDC or any third party;
12.1.4.4.create hazards to the employees of LDC or the public.
12.2 Save to the extent that it is an obligation of LDC, the Customer shall procure, comply with and maintain all permits required under applicable laws necessary to allow the Customer to connect to and use the Service. The Customer shall use the Service only in accordance with, and subject to, all such applicable permits and shall not do or permit any act or omission that would cause LDC or any of its Affiliates to be in breach of any law applicable to LDC or any of its Affiliates in any jurisdiction. The Customer shall indemnify LDC in respect of any breach by the Customer of this Clause.
12.3 The Customer shall be entitled to lease or provide any capacity or other service derived from the Service to end-users (each an “End-User”) provided always that: (a) the rights and obligations of the End-User shall be subject to all of the terms of this Agreement read with the CAF as may be applicable; and (b) the term of any lease or other agreement with the End-User shall not be for a period that would expire after the term applicable to the relevant Service.
12.4 The Customer shall ensure that the Service is not used for any illegal or unlawful purpose and the Customer shall indemnify LDC in respect of any third party claims arising from the Customer’s and/or End-User’s use of the Service (or any service derived therefrom) including claims for defamation, libel, violation of the rights of privacy or any other tortious or illegal conduct.
12.5 The Customer shall provide to LDC, any information requested by it as well as access to its premises.
12.6 In addition to any other remedies available under this Agreement, LDC may, in its sole discretion, suspend Service upon the provision of notice if the Customer does not comply with the foregoing sentences. LDC will have no liability to the Customer’s end user, suppliers and/or customers arising from or relating to this Agreement or any SOF/ CAF/subscription on the Polarin Platform. The Customer’s obligations to LDC under this Agreement and all SOFs/ CAFs/ subscriptions on the Polarin Platform including, without limitation, its payment obligations, are independent covenants from the Customer’s ability to collect payment from its end user and/or carrier customers. LDC will have no obligation to interact with the Customer’s end users or customers for any reason or purpose. LDC will not be liable for any fraudulent use of the Services by the Customer or any third party, including, but not limited to, fraudulent calls. LDC has no obligation to investigate the authenticity of any use of the Services charged to the Customer's account. The Customer will protect, defend, indemnify, and hold harmless LDC, its officers, directors, employees, contractors, and agents, from and against any and all liabilities, allegations, claims, losses, damages, expenses (including reasonable attorney’s fees and costs), judgments, and causes of action arising from or related to any claim relating to or arising from this Clause and/ or the acts or omissions of the Customer or its End Users.
13.1. LDC or its Affiliates or its vendors or subcontractors will retain ownership of all Intellectual Property Rights in any of the LDC’s or its Affiliate’s or its vendors’ or subcontractors’ works that pre-exist or were developed outside the Agreement (“Pre-existing Works”). LDC or its Affiliate hereby grants to the Customer a fully paid up, royalty free, worldwide, perpetual, irrevocable transferable and non-exclusive license to use (only to the extent required to use the Services) any and all such Pre-Existing Works of LDC or its Affiliates which is (a) included or embodied in the Services or (b) used avail the Services, provided, notwithstanding the foregoing, the Customer shall not be entitled to provide, transfer, or distribute (whether directly or directly) any Pre-existing Works or copies thereof in any form to third parties. Customer confirms and acknowledges that LDC or its Affiliate is not the original equipment manufacturer (“OEM”) of the software/ solution, if provided to the Customer as a part of any Services and/ or otherwise is made available as a part of Services to the Customer then it is on as is basis without any liability, whatsoever. In the event of a third party claim of intellectual property infringement in such Services, LDC or its Affiliate will make available the remedies made available to LDC or its Affiliate by the OEM on as is basis and shall not be liable for any other or additional claims.
13.2.Where any person makes a claim for Intellectual Property Right infringement in connection with the provision of Services or materials/equipment supplied by LDC or its Affiliate, LDC or its Affiliate must perform one of the following, at its own expense, to avoid further infringement:
a) modify or replace the Services or material/equipment to avoid the infringement. Such modification or replacement must be accomplished in a manner that is reasonably acceptable to Customer and that does not impact the performance of the affected Services or material/equipment.
b) obtain a license or other right for the Customer to continue using the infringing Services or material; or
c) if neither 13.2(a) or 13.2(b) can be achieved on reasonable commercial terms by LDC or its Affiliate using its best endeavours, LDC or its Affiliate shall so notify Customer and terminate such infringing Services.
8.3.LDC or its Affiliate shall not be liable for any infringement claims arising as a result of (a) any modification of the Services not made by LDC or its Affiliate, (b) work done by LDC or its Affiliate in accordance with specifications by or on behalf of Customer when such Customer’s specifications are outside of the normal specifications of LDC’s or its Affiliate's Services, (c) use or combination of the Services in combination with products, equipment, software, or data not owned/ supplied/ licensed by LDC or its Affiliate, or (d) Customer ’s violation of applicable law.
16.1. Neither Party will disclose to any third party during the term of this Agreement and for two (2) years following the expiration or termination of this Agreement, any of the terms of this Agreement or the SOF/ CAF/ subscription on the Polarin Platform, including any rate information, unless such disclosure is required by any state or federal governmental agency, is otherwise required by law, or is necessary in any proceeding establishing or applying rights or obligations under this Agreement. By virtue of this Agreement, each Party (the “Receiving Party”) will have access to or may learn certain confidential or proprietary technical, business, scientific, strategic, financial, legal (including intellectual property), commercial, regulatory, organizational, and/or operational information and data of the other Party (the “Disclosing Party”), including the existence of this Agreement and the terms of any supplemental document, work order, SOF/ CAF/ subscription on the Polarin Platform or statement of work, whether disclosed by or on behalf of the Disclosing Party and in any form of disclosure whether or not expressly identified as confidential ("Confidential Information"). Each Party will, both during the Term and for a period of two (2) years after expiration or termination of this Agreement, hold the Confidential Information in confidence. Each Party will not make the Confidential Information available in any form to any third party or use the Confidential Information for any purpose other than the implementation of this Agreement. Each Party will take all reasonable steps to ensure that Confidential Information is not disclosed or distributed to any other individual or entity in violation of the provisions of this Agreement. Each Party will disclose the Confidential Information only to those employees, directors, officers, agents, professional advisers or consultants who need to know the Confidential Information for the purpose of any business interaction between the Parties and who are bound in writing to observe the terms and conditions of this Clause 16.
16.2. Confidential Information will not include (i) information that is publicly available as of the Effective Date or subsequently becomes publicly available through no fault or act of such Receiving Party or representative of such Receiving Party; provided that such information will not be deemed to be publicly available merely because more general information may be publicly available; (ii) information that is known to such Receiving Party prior to disclosure from the Disclosing Party as evidenced by such Receiving Party; provided that such information is not known by such Receiving Party to have been received in violation of any obligation to the Disclosing Party to keep such information confidential; (iii) information that such Receiving Party receives from any third party not under any obligation to the Disclosing Party to keep such information confidential; and (iv) information that is independently developed by such Receiving Party or its representatives without reliance upon or use of the Confidential Information of the Disclosing Party.
16.3. For purposes of clarification, under no circumstances will either Party utilize any information obtained in connection with this Agreement to contract directly with any vendors, contractors, or customers of the other Party with respect to that specific Service or a replacement or substitute for that Service; provided, however, that nothing in this Agreement will be construed to preclude either Party from purchasing, selling or utilizing any other telecommunications, information, or ancillary services from or to any other entity or from using information independently developed to purchase, sell, or utilize such services.
18.1 Each Party warrants that: (a) it has full capacity, power and authority to enter into, and to perform its obligations under, this Agreement; and (b) it shall perform its obligations under this Agreement in a manner consistent with applicable law.
18.2 Except as expressly set out in this Agreement, no warranties or representations are expressed or implied by LDC in relation to the Service, and any such warranties or representations are expressly disclaimed to the extent permitted by applicable law. LDC also, except to the extent expressly specified in this Agreement, disclaims any warranty or representation that the Services will be error free, secure or uninterrupted. In particular, the Customer acknowledges that LDC cannot guarantee, and nor is it liable for, any loss, damage or security of information or data transmitted using the Services.
19.1. Each Party acknowledges that this Agreement has been jointly drafted by the Parties and that it has not been induced to enter into this Agreement by any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement, and agrees that it will have no remedy in respect of the same. In the event that any provision of this Agreement conflicts with the law under which this Agreement is to be construed or if any provision is declared invalid by a court with jurisdiction over the Parties to this Agreement, such provision will be deemed to be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law. Each provision of this Agreement is severable from the whole, and if one provision is declared invalid, the other provisions will remain in full force and effect. Failure of either Party to enforce any of the provisions of or its rights under this Agreement, or the waiver of such rights in any instance, will not be construed as a general waiver or relinquishment of any rights.
19.2. The representations, covenants, obligations, rights, and agreements of the Parties set out in this Agreement are not intended for, nor will they be for the benefit of or enforceable by, any third party or person not a Party to this Agreement including, without limitation, the Customer’s end user, suppliers and/or carrier customers. Under this Agreement, LDC will have no relationship with the customers to which the Customer may provide service. The Customer acknowledges and agrees that no fiduciary relationship arises under this Agreement or the SOF/ CAF/ subscription on the Polarin Platform and will indemnify LDC from any third-party claims.
19.3. The Customer and its End Users and customers will comply with terms of CAF (to the extent applicable) in its use of the Service(s). The Customer will indemnify, defend, and hold harmless LDC from any losses, damages, costs or expenses resulting from any third-party claim or allegation arising out of any alleged or actual violation of the CAF. The Parties acknowledge LDC’s Privacy Policy located on LDC’s website.
19.4. All Services are subject to the terms and conditions of this Agreement, LDC’s operational and service schedules, guides and service level agreement(s) applicable to the specific Service (collectively a “Service Schedule”), the SOF/ CAF/subscription on the Polarin Platform and any statement of work or other written instrument (collectively a “SOW”) between the Parties that applies to Services. LDC will provide the Customer with the Services as described on any SOF/ CAF issued under this Agreement, which constitute the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes any and all prior offers, communications, representations, understandings, and agreements, whether verbal or written, made between the Parties. LDC will not be bound by any provision in any purchase order, confirmation, correspondence or other communication from the Customer which is at variance with, in addition to, seeks to define or clarify, and/or conflicts with any provision of this Agreement, SOW, a Service Schedule, or any SOF/ CAF/ subscription on the Polarin Platform, unless such variance, addition, definition/clarification, or conflict is specifically identified in a written agreement signed by the Customer and LDC which expressly references the appropriate provision of this Agreement, a SOW, a Service Schedule, and/or a SOF/ CAF/ subscription on the Polarin Platform, as applicable. The order of precedence in interpretation will be (i) any SOF/ CAF/ subscription on the Polarin Platform; (ii) a SOW; (iii) a Service Schedule and then (iv) this Agreement.
19.5. LDC may for any operational reasons or change in applicable law, may change the technical specification of a Service upon thirty (30) days advance written notice to the Customer. In the event that the Customer does not accept the revised specifications for such Service, LDC and the Customer shall mutually discuss the agreeable specifications and in the event that the Parties are unable to agree, then LDC shall have the right to terminate the service upon thirty (30) days prior written notice to the Customer.
19.6. Any SOF/ CAF is signed by the Customer only. This Agreement and any SOW may be executed in one or more counterparts, whether by original, electronic signature, photocopy or facsimile, each of which will constitute an original, but all of which will constitute one and the same instrument.
19.7. Any notice given or made under to this Agreement will be effective if in writing and delivered by overnight courier, first class or certified mail, or electronic delivery (email) and delivered at the address provided in the SOF/CAF/ Polarin Platform or such other address as may be provided in writing by either Party to the other from time to time.
19.8. The Parties will be considered independent contractors for the purposes of this Agreement and the relationship between the Parties will not be that of partners, agents, fiduciaries or joint venturers for one another, and nothing in this Agreement will be deemed to constitute a partnership, agency agreement, or joint venture between the Parties for any purpose whatsoever.
19.9. Both Parties shall at their own cost obtain and maintain the necessary insurance to cover all risks in respect of the provision or procurement of Services, personnel, materials and equipment used under the terms of this Agreement during the Term.
19.10. Provisions contained in this Agreement that by their sense and context are intended to survive completion, performance, termination, suspension, cancellation, or expiration of this Agreement will survive.
19.11. This Agreement and all SOFs/ CAFs/ subscriptions on the Polarin Platform, or any other applicable contract document that incorporates by reference the terms of this Agreement or SOFs/ CAFs/ subscriptions on the Polarin Platform, and any dispute or claim arising under any of them will be governed by and construed in accordance with the law of the India and the Parties further consent to exclusive jurisdiction of New Delhi. Any dispute or difference between the parties arising out of or in connection to this Agreement, including but not limited to performance, termination or breach thereof, that cannot be settled first through mutual negotiations and in case Parties fail to settle such dispute through mutual negotiations within 30 days, such dispute shall be settled by the Parties shall be resolved in accordance with the arbitration procedures stipulated under the Arbitration and Conciliation Act, 1996 as amended from time to time. The arbitration proceeding shall be conducted through a sole arbitrator appointed mutually by the Parties failing which the sole arbitrator shall be appointed in accordance with the Arbitration and Conciliation Act, 1996 as amended from time to time. The proceedings shall be conducted in English language and the venue of arbitration shall be in Delhi, India. The award rendered in any arbitration commenced herein under shall be binding on both Parties.
19.12. Each Party shall comply with all applicable laws, statutes, regulations relating to anti-bribery and anti-corruption including but not limited to the Indian Prevention of Corruption Act, 1988 and Prevention of Money Laundering Act, 2002, UK Bribery Act 2010 and US Foreign Corrupt Practices Prevention Act, 1977, as may be applicable and shall also comply with other Party’s anti-corruption and anti-bribery policy as may be applicable in context of this Agreement and communicated from time to time. With regards to the aforesaid, neither Party shall engage in any activity, practice or conduct which would constitute an offence under the aforesaid laws. Breach hereof shall be deemed a material breach of this Agreement entitling the non-breaching Party to terminate the Services / Agreement immediately without prejudice to other remedies such Party may hold under law, equity or otherwise.
19.13. Neither Party shall engage in any activity, practice or conduct any business with a Sanctioned Person. Breach of this covenant shall be deemed a material breach of this Agreement entitling the non-breaching Party to terminate the Services / Agreement immediately without prejudice to other remedies such Party may hold under law, equity or otherwise.
19.14 Except as otherwise set forth herein, any amendment to or restatement of this Agreement may be adopted and be effective as an amendment or restatement hereto if approved by all Parties in writing and signed by or on behalf of each Party.
To be executed electronically over platform
