Clients shall be responsible for any and all actions performed by their account, whether done by the account holder or by any other person on his behalf. If server security is compromised due to actions attributable to the account holder or any other person acting on his behalf, the account holder shall be responsible for the same in accordance with these Terms of Service (so called herein) and E Server Store’s Acceptable Use Policy (“AUP”), including policy related to SPAM, and shall also be liable for all disconnect and reconnect fees associated with violations. The account holder acknowledges that E Server Store does not strengthen or enable additional server security outside of operating system defaults.
The following terms constitute an agreement between you, the “Client”/ “account holder” and E Server Store India Limited. (“E Server Store”). These Terms of Service govern your use of the services provided by E Server Store (the “Services”).
By using the services, you signify that you agree to these terms of service, including your agreement to transact with us electronically, consent to the information retention and disclosure practices stated in the AUP and your consent to resolve in New Delhi, India any dispute that you may have with us, our suppliers, relating to this Agreement or the Services. Please note that we offer the Services “AS IS” and without any warranties.
These Terms of Service govern your relationship with us and our suppliers. We may change these Terms of Service at any time, as we deem appropriate, without prior notice. If we make changes that we believe will have a material impact on your use of the Services, we will let you know by sending you an email at the current email address available with us if any and by posting notice thereof on our website. If you disagree with the changes to these Terms of Service, you are requested to discontinue your use of the Services. Your ongoing use of any Services after the changes take effect shall be construed to signify your agreement to the new terms. We encourage you to review these Terms of Service regularly.
PROHIBITED CONTENT & CONSENT
E Server Store does not permit a Client to host, display, upload, modify, publish any information, transmit, update or share or provide any services or data, information or any Illegal/Prohibited Content. The Client hereby represents and warrants that it shall not display, list, upload, modify, publish any information, data or materials and/or transmit or share anything that:
Belongs to another person and to which the Client does not have any right to;
Is grossly harmful, harassing, blasphemous, defamatory, obscene, pornographic, pedophilic, libelous, invasive of another’s privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatsoever;
Harm minors in any way;
contains fraudulent information or makes fraudulent offers of items or involve the sale or attempted sale of counterfeit or stolen items or Illegal/Prohibited items or items whose sales and/or marketing is prohibited by applicable law, or otherwise promote other illegal activities;
Infringes any patent, trademark, copyright or other proprietary rights of any party;
Violates any law for the time being in force;
Is a part of a scheme to defraud other User(s) of the Site or for any other unlawful purpose?
Communicates any information which is grossly offensive or menacing in nature;
relates to sale of products or services that infringe or otherwise abet or encourage the infringement or violation of any third party’s copyright, patent, trademarks, trade secrets or other proprietary right or rights of publicity or privacy, or any other third party rights;
Impersonates another person;
contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource; and/or codes that have the effect of damaging, interfering with, intercepting or expropriating any software or hardware system, data or personal information;
contains any material that constitutes unauthorized advertising or harassment (including but not limited to spamming), invades anyone’s privacy or encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any law or regulation;
threatens the unity, integrity, defense, security or sovereignty of India, friendly relations with foreign states, or public order or causes incitement to the commission of any cognizable offence or prevents investigation of any offence or is insulting any other nation;
Is in contravention of the Information Technology Act, 2000 and any other law for the time being in force;
Opens links directly or indirectly to or include descriptions of goods or Services that are prohibited under the prevailing law; or
Otherwise creates any liability or adverse publicity for E Server Store.
One Photo ID Proof Needed for our legal verification while making order to E Server Store
E SERVER STORE’ RESPONSIBILITIES
E Server Store agrees to render services, which are paid for in advance by the Client, Client subject to complete compliance with the AUP and these Terms of Service. E Server Store reserves the right to refuse the provision of Services to any potential Client and/or to deny renewal of Services to any existing Client, at its sole discretion.
CHANGES TO TERMS OF SERVICE AND AUP
E Server Store‚ Terms of Service and AUP are both subject to change at any time and without notice at the sole discretion of E Server Store. A change in policy shall not be grounds for early contract termination or non-payment. Client recognizes that the nature of the service supplied and the initial rates and charges have been communicated to the Client. The Client is aware that from time to time rates may change based on availability of hardware, overall market conditions or other factors. Clients will be notified of any increases in rates or charges prior to the billing renewal date on which such increases will take effect.
Services interrupted for non-payment may be subject to a penalty of Rs.1000/– as late fee. Data stored on a Client’s services will not be available to the Client until reconnection is established or alternative arrangements are made to the sole satisfaction of E Server Store. Clients’ accounts deactivated for non-payment or charge-back are subject to their data being destroyed seven (7) days from suspension/charge-back date. E Server Store is not responsible for data integrity, in such circumstances. E Server Store strongly recommends that the Client should keep up to date and off network backups to protect against data loss.
No Services rendered by E Server Store are eligible for a refund. Prepayments and account credit are ineligible to be refunded, or transferred to alternate accounts. Any and all charge disputes must be reported directly to E Server Store within thirty (30) days of the date which the charge originally occurred. If a charge which is deemed valid by E Server Store, and validated by our Terms of Service or AUP, is disputed to a financial institution by performing a charge-back, then the Client agrees to pay an ‘Administrative Fee’ of Rs.12000/- in addition to original amount of funds which were reclaimed.
In the event a service is suspended for non-payment, it will be subject to termination seven (7) days from the time of suspension. At which time, a termination fee of Rs.1000/– will be applied to the account which must be paid within 15 days to avoid full account suspension. E Server Store assumes no liability for the integrity of the data stored on a suspended server.
E Server Store requires a thirty (30) days’ notice of cancellation prior to the billing renewal date for the upcoming billing cycle, submitted via support ticket. A thirty (30) days’ notice before the upcoming billing date is also required for any downgrades. All Client data will be destroyed immediately after the cancellation date. If the notice of cancellation is not provided within thirty (30) days, the server will still be canceled however a termination fee of Rs.1000/– will be applied to the account and must be paid within 15 days to avoid full account suspension.
In the event of allegations of fraud by third parties against E Server Store or against the Client attributable to any account held or operated by a Client, being made known to E Server Store, the fraudulent account, and all related accounts, are subject to immediate suspension or termination at the sole discretion of E Server Store. All information available with E Server Store about the fraudulent account/service shall be submitted to local authorities, financial institutions or any police or Government authority. . Client
DISCLAIMERS OF LIABILITY; INDEMNIFICATION
We provide the services on “as is”, “with all faults” and “as available” basis and we and our suppliers make no express or implied warranties or guarantees about the services. To the extent permitted by law, we and our suppliers disclaim implied warranties that the services are merchantable, of satisfactory quality, accurate, fit for a particular purpose or need, or non-infringing. We and our suppliers do not guarantee that the results that may be obtained from the use of the services will be effective, reliable, and accurate or meet your requirements. We do not guarantee that you will be able to access or use the services (either directly or through third-party networks) at times or locations of you’re choosing.
Your sole and exclusive remedy for any dispute with us or our suppliers is the cancellation of your account. In no event shall our, our affiliates’ and our suppliers’ aggregate and cumulative liability to you for any and all claims relating to the use of the services exceed the total amount of fees, if any, that you paid during the period during which such claims arose. We, our affiliates, and our suppliers shall not be liable for any indirect, special, incidental, consequential or exemplary damages arising from your use of or inability to use the services. These exclusions apply to any claims for lost profits, lost data, loss of goodwill, work stoppage, computer failure or malfunction, or any other commercial damages or losses, even if we knew or should have known of the possibility of such damages.
You agree to defend, indemnify, and hold harmless us, our employees, contractors, officers, directors, agents, affiliated companies, and suppliers, from all liabilities, claims, and expenses, including attorneys’ fees, which arise from your use or misuse of the Services. We reserve the right to assume control of the defense of any third party claim that is subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
E Server Store provides hardware support related to each direct Client’s service functioning. E Server Store does not offer software support of any kind. E Server Store does not provide software support/troubleshooting for the software items chosen from the order form. E Server Store only ensures the correct default installation of any software item chosen from the order form, and in no way assumes liability for the configuration of any of the installed software. E Server Store is not responsible for any downtime associated with the incorrect configuration of operating system kernels or any software, whether installed by E Server Store or the Client. E Server Store may provide enhanced software support (including kernel configuration) for an additional fee. Please contact sales or support for enhanced support pricing. E Server Store will only provide support directly to Clients of E Server Store.
ABUSE/SPAM/BULK EMAIL POLICY
E Server Store reserves the right to deny mail delivery from any servers hosted on our network if they are believed to be involved in SPAM or SPIM activities. This includes spam support services such as DNS or spam vertised web sites. Our abuse department will locate abusive servers based on public blacklist monitors, abuse reporting from external networks, and other means. If our abuse department receives a report or otherwise becomes aware of abuse-related activities active on our network, we will identify the server the abuse was initially sent from (via IP and in some cases by domain) and create a ticket on behalf of the user who occupies the server with information regarding the abuse such as logs describing the abuse and an explanation of what abuse took place.
The following actions will be taken on a case-by-case basis:
An abuse ticket serves as notification that our abuse department has received reports of abuse originating from the server. We require a Client response to ALL abuse tickets within 48 hours of the ticket being opened. Typically no service will be suspended or filtered within the first 48 hours of an abuse ticket being opened. If a response is not received within 48 hours, or the server is determined to be abusive (or likely to be abusive in the case of spam blacklisting) after the ticket is opened, our abuse technicians may filter or disable ports or IPs assigned to the server temporarily to prevent further abuse until a response is received.
If a response has not been received to an abuse ticket within 7 days of being opened, the server is eligible for suspension and may be completely disabled until we receive a response.
Habitual neglect of abuse occurring on a Client’s server may lead to service termination or longer-term port filters as some blacklisting can take several weeks to time out or be removed.
E Server Store reserves the right to refuse services to any Client whose account(s) have been fined or terminated for abuse–related activities.
Compromised servers issued abuse notifications: If our abuse department suspects that abuse reports associated with a Client‚s server are a result of the server’s security being compromised, our abuse department will offer the following options:
At the discretion of our abuse department, we will typically offer the ability to log in to the server and remedy the security compromise while leaving the abusive traffic filtered.
Offer an Operating System reinstallation, setting the configuration back to the original state it was provisioned in.
If Operating System reinstallation is not accepted as an option, E Server Store may offer to manually retrieve/repair the files on the server, at a fee to be assessed and paid prior to any work being done.
Habitual security compromises that result in abusive traffic being transmitted or received from the server may result in service termination.
If a Client wishes to dispute any abuse reports, or any fine assessed in connection with abuse reports or blacklisting, the Client must provide E Server Store with an explanation via WHMCS’s ticketing system within 10 days of the abuse ticket being opened.
The Client agrees that E Server Store shall not be liable for the content posted, shared, stored or otherwise made available on the website by the Client through its account. Any claims of infringement arising from Client generated material/ information shall be directed to the Client/ account holder. The Client/ account holder additionally agrees to indemnify and hold harmless E Server Store from any claims, dispute, settlement, loss or damage resulting from such claims whether by third parties or by servants, employees, associates, agents or other persons claiming from the Client.
E Server Store shall comply with all requirements laid down under the Copyright Act, 2012, the Information Technology Act, 2000 or any other applicable legislation and requirements thereunder when in conflict with the interests of the Client and the same shall supersede provisions of the present Agreement. In compliance with legal obligations of E Server Store, any request or instruction for information required to be shared with or provided to or any action required to be taken, including but not limited to removal of content, prevention of access or blacklisting of Client, by any government authority, court of competent jurisdiction or regulatory body shall be complied with. Client agrees not to make any claims against E Server Store, its servants, agents, employees or any person claiming thereunder for any loss, injury, damage sustained by the Client.
Clients agree to pay any and all bandwidth overage charges accrued on their account from the previous billing cycle. Bandwidth overage charges are billed per gigabyte at a rate of Rs.20/– over the allotted bandwidth on the service. E Server Store reserves the right to suspend any account which does not pay bandwidth overage charges within 15 days. E Server Store is not responsible for spikes in bandwidth that are caused on a Client’s service for any reason. Client assumes liability for all bandwidth to and from their services. If issued an expected to exceed bandwidth notification, Clients are required to make payment arrangements within 24 hours of that notification to prevent possible service interruption until adequate arrangements are made. These arrangements may include being required to pro-actively upgrade bandwidth.
Clients agree to submit to identity verification measures, designed for both the security of the Client as well as the security of E Server Store. The identity verification measures may include the faxing of two forms of government issued identification to E Server Store, as well as a front and back copy of the credit card used for payment, as well as a copy of a utility bill with the billing address. In certain circumstances additional identity verification may be required, in addition to the previously listed forms.
E Server Store keeps all Client information private and will not publicly disclose that they are providing services to the Client unless permission is received on a case-by-case basis. E Server Store reserves the right to use Client quotes for promotional uses. Such quotes will be anonymous unless the Client agrees to disclosure of their name.
All communications from E Server Store and the Client are strictly confidential and for the intended use of the addressee only. Any disclosure, use or copying of the information by anyone other than the intended recipient is prohibited and you agree to be held liable for damages if you violate this agreement, forward the information, post it or allow it to be posted online in public or private forums or venues.
Your affirmative act of using the Services constitutes your electronic signature to these Terms of Service and your consent to enter into agreements with us electronically. You agree that we may send to you in electronic form any privacy or other notices, disclosures, reports, documents, communications or other records regarding the Services (collectively, “Notices”). We can send you electronic Notices to the e–mail address that you provided to us during registration. The delivery of any Notice from us is effective when sent by us, regardless of whether you read the Notice when you receive it or whether you actually receive the delivery. You can withdraw your consent to receive Notices electronically by canceling or discontinuing your use of the applicable Services. In order to receive Notices electronically, you must have a personal computer with a modem connected to a communications source (telephone, wireless or broadband), and a Windows-based or a Macintosh-based operating system with an Internet browser. You will need a printer attached to your personal computer to print any Notices. You can retrieve an electronic copy and a printable version of this contract by clicking on the “Terms of Service” link on any web page that hosts any of the Services. All contracts completed electronically will be deemed for all legal purposes to be in writing and legally enforceable as a signed writing.
This contract and any supplemental terms, policies, rules and guidelines posted on our website constitute the entire agreement between you and us and supersede all previous or contemporaneous written or oral agreements. If any part of these Terms of Service is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect.
CHOICE OF LAW AND LOCATION FOR RESOLVING DISPUTES
You agree that the laws of the Delhi, India govern this contract and any claim or dispute that you may have against us or our suppliers, without regard to the conflict of laws rules thereunder, and that the United Nations Convention on Contracts for the International Sale of Goods shall have no applicability. You further agree that any disputes or claims that you may have against us or our suppliers will be resolved exclusively by a court located in Delhi, India.
Waiving claims that you might otherwise have against us based on the laws of other jurisdictions, including your own;
Irrevocably consenting to the exclusive jurisdiction of, and venue in, Delhi, India over any disputes or claims you have with us relating to or arising out of the services, the service or the agreement.
Submitting yourself to the personal jurisdiction of courts located in Delhi/NCR, India for the purpose of resolving any such disputes or claims.
* Term and condition apply