THIS AGREEMENT is made and executed at Mumbai on this __ day of ___, 20__, by and
________________________________________________,a company incorporated under the provisions of Section 25 of the Companies Act, 1956 and having its registered office at
_____________________________________________________________________________________________________ ________________________________________________________________________, (hereinafter referred to as “CUSTOMER” which expression shall unless repugnant to the context or meaning thereof be deemed to mean and include its successors and assigns) of the ONE PART,
XCELLHOST CLOUD SERVICES PVT. LTD., a private company incorporated under the provisions of the Companies Act, 1956 and having its registered office at 209, Laxmi Plaza, Bldg.9, New Link Road, Andheri (W), Mumbai – 400053 (hereinafter referred to as “the Service Provider” which expression shall unless repugnant to the context or meaning thereof be deemed to mean and include its successors) of the OTHER PART;
(CUSTOMER and the Service Provider shall hereinafter be jointly referred to as the
“Parties” and severally as a “Party”.)
- CUSTOMER is a company incorporated under the provisions of Section 25 of the Companies Act, 1956.
- CUSTOMER inter alia is desirous of having the services of the Service Provider for Hybrid Backup (Local Backup & Cloud Backup) and Hybrid Setup for both End Device Backup directly to cloud and Server Backup to Local Backup Server.
- The Service Provider has represented to CUSTOMER that it has necessary expertise and experience to inter alia provide the Hybrid Setup for both End Device Backup directly to cloud and Server Backup to Local Backup Server.
- Relying upon the aforesaid representations made by the Service Provider, CUSTOMER is now desirous of appointing the Service Provider for providing the services, upon the terms and conditions more particularly set out hereinafter.
NOW THIS AGREEMENT WITNESSETH AND IT IS HEREBY AGREED BY AND BETWEEN THE PARTIES HERETO AS UNDER:
ARTICLE 1 APPOINTMENT
1.1. Subject to and in accordance with the terms hereof, CUSTOMER hereby appoints the Service Provider as the one of the preferred agencies for providing the Hybrid Setup for both End Device Backup directly to cloud and Server Backup to Local Backup Server, and such other services and obligations as set out in detail in Article 3 and 4 of this Agreement.
ARTICLE 2 TERM OF THE AGREEMENT
2.1. This Agreement shall come into force with effect from the date of execution hereof and shall subsist for the period of 1 (one) year from the date of execution, subject to the provisions of termination as provided in Article 10 hereunder, unless mutually extended by the Parties hereto in writing.
ARTICLE 3 SCOPE OF WORK
The Service Provider agrees to extend the Services during the Term of this Agreement, as detailed hereunder:
3.1. The Service Provider should provide OS, Files & Folders, VM Image backups available to CUSTOMER on demand or in case of disaster
3.2. The Service Provider should ensure integrity of the above images by monthly checks / recoveries ensuring availability of the same at all times.
3.3. The Service Provider should backup the data of CUSTOMER from the Local storage to a backup server automatically using required tools and software and from Server copy to Cloud storage.
3.4. The Service Provider should provide Hybrid Setup for both End Device Backup directly to cloud and Server Backup to Local Backup Server.
3.5. The service provider shall ensure that the backup of data should be scheduled as per CUSTOMER’s requirement.
3.6. The Service Provider would ensure minimum two copies of the image available any time to CUSTOMER.
3.7. Backup tool should have a capability to do a bare metal backup & replicating the data to a data center.
3.8. The Service Provider should provide a secure portal/Web based Console to monitor the backup of its instances and data.
3.9. The Service Provider should also be responsible for taking hot backup.
3.10. The Service Provider should also provide backup solution for all type of mobile devices. i.e. Android, IPhone and Windows phone etc.
3.11. The detailed specifications of the above scope is as under:
- Full and Incremental user data Backup
- Secure access rights for customer admin.
ARTICLE 4 DUTIES AND OBLIGATIONS OF THE SERVICE PROVIDER
4.1 The Service Provider shall provide Hybrid Setup for both End Device Backup directly to cloud and Server Backup to Local Backup Server;
4.2 For the purpose of providing the services as mentioned in Article 3 hereinabove, the Service Provider may be required to purchase any number of software or hardware applications, the cost of which will be borne by the Service Provider. The Service Provider hereby agrees that any such application purchased by it under and for purpose of this Agreement shall be owned by CUSTOMER and secure all the rights therein in favour of CUSTOMER at all times.
4.3 The Service Provider shall take care of all cyber security norms and shall assist IT Security firms appointed by CUSTOMER in performing cyber security audit.
4.4 The Service Provider shall ensure that all technical details should be used with latest technology / details of the technology.
4.5 The Service Provider shall involve on full time basis necessary core team & support team on the requisite skills profile to enable timely completion of the Project as per the defined timelines and if CUSTOMER feels the need to change the core team involved in the project, the same shall be intimated to the Service Provider by CUSTOMER in writing and the Service Provider shall immediately act upon to change the Core team as per the requirement of CUSTOMER.
4.6 The Service Provider shall make sure that all the due-diligence has been taken care before, during and after providing the services to CUSTOMER.
4.7 The Service Provider warrants that any complaint received by it from CUSTOMER shall be attended to promptly at no additional cost.
ARTICLE 5 DUTIES AND OBLIGATIONS OF CUSTOMER
5.1 CUSTOMER shall make a project manager available who shall co-ordinate and supervise the project and provide the Service provider with the necessary clarifications, as and when required, with respect to the Services to be delivered by the Service provider.
5.2 CUSTOMER shall make the payment of the fees to the Service Provider as agreed in Article 7 of this agreement.
5.3 CUSTOMER shall notify in writing to the Service Provider the deficiency in services anytime during the term of this Agreement, in case no feedback is received from CUSTOMER within such period, the Service Provider shall consider it as the services are free from any deficiencies and a deemed acceptance.
ARTICLE 6 EXECUTION OF THE AGREEMENT
6.1. The execution of the agreement shall be completed in accordance to the timeline defined by CUSTOMER and the same is as under:
ARTICLE 7 REPRESENTATIONS AND WARRANTIES
8.1. The Service Provider warrants that the services provided will be performed and supervised by personnel qualified in the performance and supervision of such services.
8.2. The Service Provider acknowledges that the data for Hybrid backup (Local backup & Cloud backup) belongs and shall always belong to CUSTOMER and at all times shall be the exclusive property of CUSTOMER only and, CUSTOMER shall have the exclusive right to make use of the same, in any manner whatsoever without any intimation or approval of the Service Provider.
8.3. The Service Provider warrants that the work done for Hybrid backup (Local backup & Cloud backup) or the services rendered to CUSTOMER by the Service Provider are purely done on a “Work on Hire” basis and CUSTOMER shall own all rights to the product obtained after the aforesaid work are customised. In respect of the Hybrid backup (Local backup & Cloud backup), CUSTOMER shall have the exclusive and absolute right on the data back up by the Service Provider.
8.4. The Parties warrant hereto that time is of the essence to the contract and for any default in compliance with the timelines set herein, CUSTOMER may have a right against the Service Provider towards indemnification, save and except, in case the default is by reason of a force majeure event or any unforeseen event;
8.5. Except for the warranty expressly set forth in this Article 8 [Representations and Warranties], CUSTOMER acknowledges and agrees that it has relied on no other representations or warranties and that no other representations or warranties have formed the basis of signing this Agreement with the Service Provider.
ARTICLE 8 INDEMNITY
9.1. Both Parties agree and undertake that in the event of any action, claim, suit, damages, penalties or proceeding instituted against CUSTOMER by any third party in relation to the scope of work, then all costs, expenses, damages or penalties incurred by CUSTOMER will be as per the SLA mentioned below.
9.2. The Service Provider will be responsible and liable for and will indemnify CUSTOMER and keep CUSTOMER indemnified and safe and harmless at all times, against any and all claims, liabilities, damages, losses, costs (including reasonable
legal fees), charges, expenses, proceedings and actions of any nature whatsoever made or instituted against or caused to or suffered by CUSTOMER directly or indirectly by reason of: -
- any third party claim arising out of breach of representation made by the
Service Provider; ii. any wrongful, incorrect, dishonest, criminal, fraudulent or negligent work, default, failure, misfeasance, bad faith, disregard of its duties and obligations hereunder, service, act or omission of or by the Service
Provider and / or its employees, and / or; iii. any breach of the Service Provider’s obligations under this Agreement including, without limitation, any breach concerning to any representations or warranties made or given by the Service Provider, in respect of the Services.
9.3. To the fullest extent permitted by applicable law CUSTOMER shall not be liable for any direct, indirect, special, consequential, or incidental damages (including but not limited to damages for loss of business profits, business interruption, loss of business information, and the like) arising out of this Agreement, any documents referenced in this Agreement, or any addenda or amendment hereto.
9.4. During the term of this Agreement, if the Service Provider fails to provide the services specified in Article 3 or fails to comply with the provisions of Article 4 or if the Service Provider exits the project midway for causes other than contract termination by CUSTOMER or closing the business, CUSTOMER shall employ any other agency to complete the work and no further payments would be made to the Service Provider and further a penalty of 10% of the amount equivalent to the consideration paid to the Service Provider till that date, as per Article 7, shall be imposed on the Service Provider. CUSTOMER shall be free to engage any other firms or companies or people to complete the remaining task as described in the scope of work.
ARTICLE 9 TERMINATION
10.1. This Agreement shall expire automatically on completion of the term as set out in
Article 2 hereinabove, unless mutually altered/ extended in writing by the Parties.
10.2. Either Party may voluntarily terminate the Agreement at any time without giving any reason whatsoever by giving 30 (thirty) days prior written notice to the other party.
10.3. Either Party shall be entitled to terminate this Agreement immediately by a written notice to the other Party in the following circumstances:
10.3.1. if the other Party commits a breach of this Agreement, which cannot be remedied fully or within 30 (thirty) days of receipt of such notice requiring its remedy; or
10.3.2. if the other Party has a receiver appointed over its assets or makes any voluntary arrangement with its creditors or becomes subject to an administration order or goes into liquidation (except for the purposes of an amalgamation, reconstruction or other reorganization); or
10.3.3. if the other Party ceases, or threatens to cease, to carry on its business.
10.4. CUSTOMER may terminate this Agreement forthwith without giving any reason whatsoever if:
10.4.1. The Service Provider materially breaches any of the terms of this Agreement; or
10.4.2. The Service Provider: -
- is not paying its debts when such debts legally become due; or
- becomes insolvent; or
- files or has filed against it a petition (or other document) for insolvency, bankruptcy or winding-up which is unresolved within sixty (60) days of the filing of such petition (or document); or
- proposes any dissolution, liquidation, composition, financial reorganization or recapitalization with creditors; or
- makes a general assignment or trust mortgage for the benefit of creditors; or
- if a receiver, trustee, custodian or similar agent is appointed or takes possession of any of its property or business.
10.5. Upon termination of this Agreement for any reason whatsoever,
- CUSTOMER shall reconcile the Bank Account and other financial accounts (if any) and forthwith settle any outstanding dues payable to the Service Provider.
- The Service Provider shall, at CUSTOMER’s discretion, either return or destroy (and subsequently certify such destruction) the media on which the data/ information was provided to the Service Provider by CUSTOMER and all copies thereof within a period of 1 (one) month from date of termination or expiry as the case may be. The Service Provider shall further destroy all copies and residue of the Content on the Equipment which is in Service Provider’s possession. Further, the Service Provider shall purge all the mailers, if any, from its system and give necessary confirmation in this behalf to CUSTOMER after providing all the back-up of such mailers to CUSTOMER.
- The Service Provider shall provide CUSTOMER all such current material pertaining to the development made for the events, created, modified or developed by the Service Provider, including but not limited to, the source code, programs, applications, data files, etc. and permanently remove such material from the Equipment.
- The Service Provider shall fully co-operate with CUSTOMER by providing all necessary material and assistance to successfully enable the latter to host the events either by itself or through a third party. Further, the Service Provider shall upon the termination of the Agreement co-operate on the best effort basis with the subsequent service provider, while handing over the details of the Services / assignments contemplated herein, pursuant to the timelines and for such consideration as may be stipulated by CUSTOMER in consultation with the Service Provider, for implementing such transition. Notwithstanding anything contained
herein, it shall be the Service Provider’s obligation to provide the Services to CUSTOMER during the transition period in same manner and on same efforts as provided by the Service Provider during the term of this Agreement.
- The Service Provider shall forthwith cease to access and use the Trademarks or any passwords pursuant to the data for Hybrid backup (Local backup & Cloud backup). The Service Provider hereby further covenants that it shall not, at any time after termination hereof, use any of the Trademarks and shall further remove from or destroy, at CUSTOMER’s option, all material carrying the Trademarks. The Service Provider shall certify such destruction to CUSTOMER within fifteen (15) days of termination thereof.
- CUSTOMER may, at its sole option, direct the Service Provider to finish any particular assignment(s) forming the part of the Services, which may, on the date of termination notice, be under process or outstanding. In such an event, the Service Provider shall complete the given assignment, which continues to be under process and has remained uncompleted as on the date of the said termination notice, within the stipulated notice period.
- The Service Provider shall continue to render the Services to CUSTOMER on the BEST EFFORT BASIS even during the notice period and shall endeavour to complete the outstanding project or assignment before the termination date. In doing so the Service Provider shall be responsible for 100% (hundred percent) delivery of the service level and in the event the Service Provider fails to comply with the service level, for completing the given project / assignment during the notice period, CUSTOMER reserves the right to withhold any payments to be made to the Service Provider and shall also be liable to make suitable set-offs from the amounts payable, if any, to the Service Provider.
- If any change of law or requirements of any regulatory or government authority materially affects the ability of either Party to perform its obligations under the Agreement, such Party shall give written notice thereof to the other Party and both Parties shall mutually agree upon such changes to the Agreement as may be necessary to enable the affected Party to perform its obligations. If the Parties are unable to agree upon such changes within thirty (30) days from the date of receipt of notice by the non affected Party, either Party shall be entitled to terminate the Agreement by written notice to the other Party in accordance to the terms of this Agreement pertaining to termination.
- In the event of the Service Provider exiting the project midway for causes other than contract termination by CUSTOMER or closing the business, CUSTOMER shall employ any other agency to complete the work and no further payments will be made to the Service Provider and a penalty of 10% of the service fees already paid will be imposed on the Service Provider.
- Any waiver by either Party of a breach of any of the provisions of this Agreement shall not be considered as a waiver of any subsequent breach of the same or any other provision(s).
- Each Party shall be liable for its own obligations hereunder accrued unto the date of expiry or termination and accruing in relation to matters which have arisen prior to and upto such expiry or termination.
- The right of either party to terminate this Agreement, as provided for under this Article (i.e. Article 10), shall not in any manner whatsoever prejudice any other right or remedy available to either Party, in respect of the concerned breach or any other breach(s), if any.
ARTICLE 10 PROPRIETARY RIGHTS
11.1 The Service Provider hereby, acknowledges, confirms and agrees the data for Hybrid backup (Local backup & Cloud backup), the process, the material pertaining to the scope of work (“Works”) are created, modified or developed by the Service Provider, in the course of performance of this Agreement, as work for hire, including but not limited to the source code, programmes, applications, data files, etc., and have been specifically commissioned and ordered by CUSTOMER. The Service Provider hereby acknowledges, confirms and agrees that all proprietary rights, title and interest in and to the Works, the specifications pertaining to the Work provided by CUSTOMER and the Services are and shall continue to be owned by CUSTOMER. Furthermore, the Service Provider hereby expressly covenants that it does not and shall not, at any point of time in present or in future, stake claim to ownership and/or any other right in and to the aforesaid data the process, and all such aforesaid material.
11.2 The Service Provider has acquired and/or shall acquire from each of its employees / representatives all rights to all such Works produced or developed by such employees / representatives in performing Services under this Agreement that are or may be necessary for Service Provider to convey to CUSTOMER the rights granted in this Clause. Service Provider shall obtain the cooperation of each such party to secure to CUSTOMER or its nominees the rights that CUSTOMER has acquired and shall hereafter acquire in accordance with the provisions of this Clause.
11.3 The Service Provider irrevocably assigns, transfers and conveys in perpetuity to CUSTOMER, the Service Provider's entire legal and beneficial right, title and interest in the aforesaid Works on worldwide basis.
11.4 The Service Provider agrees to do such further acts and execute and deliver to CUSTOMER such instruments and documents as may be required to perfect, register or enforce CUSTOMER’s ownership of the rights so conveyed in and to the Works. If the Service Provider fails or refuses to execute any such instruments and documents, the Service Provider appoints CUSTOMER as the Service Provider's attorney to act on the Service Provider's behalf solely for the purpose of executing such instruments and documents. This appointment shall be irrevocable.
11.5 Further, the Service Provider acknowledges, confirms and agrees that CUSTOMER has and shall continue to have exclusive rights to add, delete, change or modify
the data. All or any data shall become the exclusive property of CUSTOMER. The documentation and processes constituting the Hybrid backup (Local backup & Cloud backup) shall be the exclusive property of CUSTOMER.
11.6 The Service Provider hereby acknowledges, confirms, accepts and agrees that CUSTOMER is the exclusive owner of all the Trademarks. The Service Provider hereby covenants that it shall not, at any time during the subsistence or after termination of this Agreement, attempt to register the Trademarks, or any confusingly similar Trademarks, trade names and domain name(s) either in its individual name or jointly with any other party or through any of its past/present associates, office bearers or constituted attorneys. The Service Provider shall neither do nor cause to be done any act or thing that would impair CUSTOMER’s rights in the Trademarks and domain names nor damage the reputation for quality inherent in the Trademarks without prior written permission of CUSTOMER for every incidence of such usage.
11.7 The Service Provider hereby agrees that all data and/or information generated from or gathered by rendition of or in relation to the Hybrid backup (Local backup & Cloud backup) shall be solely and exclusively owned by CUSTOMER and any sharing or providing of such data/information to the Service Provider shall not create any right of whatsoever nature in and to such data/information in favour of the Service Provider.
ARTICLE 11 CONFIDENTIALITY & EXCLUSIVITY
12.1. The Parties shall keep and continue to keep confidential, during the subsistence of this Agreement and after termination hereof, any and all information and/or data (collectively hereinafter referred to as the “Confidential Information”) exchanged, shared or provided, whether orally or in writing, under or pursuant to this Agreement. Such Confidential Information may include but shall not be limited to the Content, technical information, commercial information and advertiser information. Further the Parties hereby agree that such Confidential Information shall be disseminated only to such of its representatives and/or employees who have a need to know and are entitled to such information and for the furtherance of this Agreement and who have individually agreed in writing with their respective organisations to be bound by the terms of confidentiality similar to the terms mentioned herein. Confidential information shall, however, exclude information that:
12.1.1. is, or becomes, publicly known, otherwise than through a wrongful act of a Party; or
12.1.2. is already in the possession of a Party prior to receipt from the other Party, which infact needs to be proved if it becomes necessary; or
12.1.3. is independently developed by the receiving Party without restrictions similar to those herein on the right of such others to use or disclose; or
12.1.4. is approved in writing by a disclosing Party for disclosure;
12.1.5. is required to be disclosed by law or under any order or judgment of the appropriate court of law, provided that the receiving party shall give prior information to the disclosing party of such disclosure to be made, thereby enabling the disclosing party to seek the protective or preventive measures under the law.
12.2. The Service Provider further agrees that it shall neither come out with the Media Release nor make any other publication, written or otherwise, including without limitations any presentation at the business meetings or conferences, disclosing the arrangement between the Parties as contemplated under this Agreement without express written consent of CUSTOMER. Notwithstanding anything contained herein the restriction under this clause 12.2 will not be applicable to the oral disclosure (by way of indication or reference) made by the Service Provider to any of its clientele during such client’s visit at the Service Provider’s premises.
12.3. Any and all software developed by the Service Provider in connection with the services agreed, during the term of this Agreement, shall be used for CUSTOMER on an exclusive basis. The Service Provider shall take utmost care to avoid comingling of the specifications provided by the CUSTOMER with that of any other specification of the other client. Further, the Service Provider undertakes that it shall not use the specifications or the software for providing the services similar to the Services as contemplated under this Agreement to any of its clientele.
12.4. The Service Provider shall not act in the manner detrimental to the interest of CUSTOMER. In case the Service Provider is aware of some common interest between it and CUSTOMER, then the Service Provider shall forthwith disclose the same to CUSTOMER, along with the nature of interest. In event of the actual conflict of interest, the interest of CUSTOMER shall prevail over that of the Service Provider.
12.5. Notwithstanding anything to the contrary contained in this Agreement or otherwise, this Article (i.e. Article 12) shall survive the termination of this Agreement.
ARTICLE 12 AUTHORITY, WARRANTIES & COVENANTS
13.1. Each party warrants that it has full power and authority to enter into and perform this Agreement when executed and will constitute its binding obligation in accordance with its terms. The execution and performance of the Agreement will not result in any breach of any provision of the Memorandum and/or Articles of Association or equivalent constitutional documents of the Party or result in any breach of any order, judgment or any agreement or arrangement by which the Party is bound.
13.2. Each Party warrants that all licenses, consents, registrations, permits and authorities necessary to enable the Party to perform its obligations hereunder have been obtained and are and will remain valid and subsisting and that it has complied with and will continue to comply with all relevant legislation and guidelines laid down by any statutory or other regulatory authorities in performing its obligations under the Agreement.
ARTICLE 13 NON ASSIGNMENT
14.1 Neither Party shall assign, transfer, sub-contract or in any other manner make over to any third party the benefit and/or burden of this Agreement without prior written consent of the other Party.
ARTICLE 14 FORCE MAJEURE
15.1. Neither Party shall be responsible for any failure to perform its obligation due to unforeseen circumstances or due to causes beyond its control even after exertion of best efforts to prevent such failure, which failure may include, but is not limited to, acts of God, fire, floods, war, riots, embargoes, strikes, lockouts, acts of any Government authority, rejection of applications under the Statutes, delays in obtaining licenses or repeal, passing or amendment of a Statute.
ARTICLE 15 GOVERNING LAW
16.1 This Agreement shall be interpreted in accordance with and governed by the laws of India and the Parties hereby consent to the jurisdiction of the appropriate courts in India.
ARTICLE 16 ARBITRATION
17.1 The Parties shall attempt in good faith to resolve any dispute or claim arising out of or relating to this Agreement promptly through negotiations between the respective senior executives of the Parties possess the authority to settle the same.
17.2 In the event that no amicable settlement by way of negotiations can be arrived at between the Parties, within a period of 30 (thirty) days of commencement of such negotiations, then such dispute and/or claim arising out of or relating to this Agreement shall be referred to the arbitration of a sole arbitrator, to be jointly appointed by the Parties and where the Parties are unable to agree upon a sole arbitrator, to the arbitration of three arbitrators, one to be appointed by each Party and the third arbitrator to be appointed by the two arbitrators so appointed by the Parties. The seat of arbitration shall be Mumbai, India and the language of arbitration shall be English. The arbitrator(s) shall have power to regulate its own procedure, including summary powers and the place of its arbitration will be Mumbai. The award of the arbitrator shall be final and binding on the Parties. The Arbitration and Conciliation Act, 1996, or any statutory modification subsequent thereof shall in all respects govern the arbitration. The arbitration shall be governed by the laws of India.
17.3 Subject to the provisions of Clause 17.2 above, any suit, petition, reference or other filing permitted or required to be made pursuant to the Arbitration and
Conciliation Act, 1996, in respect of the matters arising out of this Agreement including, but not limited to a petition for appointment of an arbitrator(s) under section 11 of the Arbitration and Conciliation Act, 1996, shall be instituted only in the court of competent jurisdiction at Mumbai.
ARTICLE 17 NOTICE
18.1 Any notice or any other document to be given under this Agreement shall be in writing and shall be addressed to the Parties at their respective addresses mentioned in the title of this Agreement or such other addresses as may be notified by the Parties to each other from time to time and shall be deemed to have been duly given if left at or sent by hand delivery or first class post or facsimile or other electronic media to a Party at the address or relevant number for such Party then appearing on its letter-heading.
18.2 Hand delivered notices shall take effect immediately. Postal notices shall take effect two working days after posting. Notices sent by facsimile or other electronic means shall be deemed received one hour after transmission.
18.3 Any notice or other communication received on a day other than a working day or after business hours in the place of receipt shall be deemed to be given on the next following working day in such place.
STAMP DUTY, ETC.
19.1. All stamp duty, registration charges and other taxes as applicable and payable on this Agreement shall be borne and paid by the Parties equally.
ARTICLE 19 MISCELLANEOUS
20.1. This Agreement may be executed in several counter parts, each of which shall be original but all of which shall together constitute on and the same instrument.
20.2. This Agreement consists of all the terms and conditions mentioned herein and the Annexure, if any, attached hereto. This Agreement constitutes the entire understanding and agreement of the Parties, and supersedes all previous or contemporaneous agreements or communications, both oral and written, representations and understandings among the Parties with respect to the subject matter hereof. Any other procedural or functional matters decided in the course of this Agreement will be deemed to be part and parcel of this Agreement.
20.3. With the execution of this Agreement, any understanding or arrangement or any modus operandi whether conveyed orally or in any manner, to the extent it is inconsistent with the terms of this Agreement unless individually ratified in each case, such understandings or arrangements or any modus operandi will have no validity from such date of execution of this Agreement and CUSTOMER shall not be responsible or liable for any claims/ actions arising out of action, by the Service Provider or any third party, against CUSTOMER and CUSTOMER stands fully indemnified by the Service Provider in this regard.
20.4. If any one or more provision(s) of this Agreement is held to be illegal, invalid or unenforceable under any present or future law, such provision shall be fully severable and the remaining provision of this Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid, or unenforceable provision or by its severance here from.
20.5. No modification, amendments, variation or alteration to this Agreement shall be valid or binding on the Parties unless made in writing and signed on behalf of each Party by their respective duly authorised officers or representatives.
20.6. Any provision of this Agreement which, either expressly or by implication, survives the termination or expiration of this Agreement, shall be complied with by the Parties in the same manner as if the present Agreement is valid and in force.
20.7. If either Party should waive any breach of any provision of this Agreement, it shall not thereby be deemed to have waived any preceding or succeeding breach of the same or any other provision thereof.
20.8. No failure to exercise nor any delay in exercising any right, power, privilege or remedy under this Agreement shall in any way impair or affect the exercise thereof or operate as a waiver thereof in whole or in part.
20.9. No single or partial exercise of any right, power, privilege or remedy under this Agreement shall prevent any further or other exercise thereof or the exercise of any other right, power, privilege or remedy.
20.10. The Parties acknowledge that this Agreement does not constitute an order by one Party to the other to engage in any joint research, development or other work and does not constitute a partnership or a joint venture or a principal and agent relationship.
ARTICLE 20 SERVICE LEVEL AGREEMENT
Schedule - A : Cloud Backup
- Definitions: Terms used herein but not otherwise defined shall have the same meanings ascribed to them in the General Terms and Conditions for Delivery of
- “Cloud Backup Service” means, collectively the Managed Backup Service platform (Compute / Storage / Professional Support Services), or independent services such as Professional Services, Security Services, as further described in Service Schedules.
- “Hosting Infrastructure” Hosting Infrastructure shall mean physical premises controlled by XcellHost, where IT systems, devices and components are installed covering stabilized power, cooling, network and space. Customer device uptime will not be the responsibility of XcellHost unless XcellHost provides the device and XcellHost has taken the specific responsibility of managing the same.
- "Service Window" - XcellHost will provide 24x7 support for the proposed engagement.
- “Schedules” means the forms so entitled attached hereto, containing the specific terms and conditions that apply to each Service element.
- “Users” means the persons authorized by the Customer to use the Service.
- “Support Portal and Monitoring”: XcellHost’s service offering and will be a single point for information on customer’s infrastructure that is being managed. The portal offers 24x7x365 access to trouble ticket & change management systems, events, inventory and SLA performance reports.
- “Business Day” is any day other than Saturday, Sunday or Public Holiday on which commercial banks are generally open for business in India.
- “Content” means information made available, displayed, transmitted or stored.
- "Service Desk" means XcellHost ‘S Customer Support Centre which will be operational 24x7x365 basis for the proposed engagement.
- “Customer Hardware” means the hardware owned by the Customer that is acceptable to XcellHost, and is supported by XcellHost as part of its service delivery.
- “Customer Software” means the software owned by the Customer that is acceptable to XcellHost, and is supported by XcellHost as part of its service delivery.
- “Emergency Maintenance” means the repair or replacement of facility components or equipment requiring immediate attention because the functioning of a critical system is impaired or because health, safety or security of human life is endangered. The service unavailability during Emergency Maintenance will be excluded from the downtime calculations.
- "Fault" means a fault, failure or malfunction in the Proper Operational Condition of the Service.
- “Hardware” means server, switches and appliances deployed by XcellHost in providing the Service.
- “Software Licenses” means the software used by XcellHost for rendering the DC-VAS service. The term “Software” shall also include any updates, upgrades, bug-fixes or new versions of the Software delivered by XCELLHOST hereunder. Software licenses may include Hypervisor Layer (VMware, Hyper-V, others), Microsoft OS and other software, Linux OS, etc., including any necessary updates and upgrades thereto, to be used by Customer to use the Service. XcellHost will sub-license to the Customer the right to allow its Users to use such software for the applicable Term. Customer, at its sole expense, will provide Users with the Client workstations and make such sub-licensed Client software available for use by its Users.
- “Data Centre Network” means the portion of the XcellHost Data Centre network extending from the network egress point of customer XCELLHOST server host to the outbound port of the Data Centre border router. The Internet access to the Customer via XcellHost’s IP backbone is further described in this Agreement.
- “Professional Support Service(s)” means any and all second-line labor or services provided by XcellHost to Customer in connection with this Agreement, including but not limited to, consultation, engineering, installation, removal, maintenance, training, and 24x7 technical support.
- “Operation Percentage / Operational Condition” means that the XCELLHOST Service, including all XcellHost Hardware and Software, is functioning properly in accordance with the OEM’s specifications and parameters set forth in this Agreement. The Operational Percentage means the percentage of the total time during any given calendar month that the Services are not subject to a Service Outage.
- “Service Outage” An “Service Outage” means that the Service fails in accordance with Customer’s configuration selection and the parameters defined in respective schedules. Outage does not include service suspension (i) for reasons outside of XcellHost’ s reasonable control or (ii) during times of maintenance. If a dispute arises about whether or not an Outage occurred, XcellHost shall make a determination in good faith based on its system logs, monitoring reports and configuration records. The “Outage Percentage” means the total duration of an Outage during a given month divided by the total time during such month.
- “Scheduled Outage or Scheduled Maintenance” is the time window during which XCELLHOST Service may be temporarily interrupted for any or all services, for doing upgrades or maintenance or for any other mutually agreed upon reason or purpose; in order to prevent or remedy a defect which may affect Customer’s use or access to the Services. The service unavailability during Scheduled Outage or Scheduled Maintenance will be excluded from the downtime calculations. Scheduled Maintenance will be normally be carried out between 10 p.m. Saturday and 6:00 a.m. the following Sunday. XcellHost shall give Customer at least seven (7) days’ notice of any scheduled maintenance / outage event.
1.21 “Service Levels”
XcellHost is committed to the success of its Customers and understands the importance of responsiveness and fast resolution times in case of a technical error.
XcellHost Support can change the severity of the incident, if it was not set reasonably.
||Target Temporary Solution
≤ 4 hours
≤ 1 day
15 business days
≤ 4 hours
≤ 2 days
20 business days
≤ 8 hours
≤ 3 days
≤ 24 hours
XcellHost Support may require additional information related to environment or need you to perform tests to assist in the resolution of the issue. Customer’s prompt and full cooperation in providing any necessary information and performing necessary tests will influence meeting XcellHost’ Service Level targets.
What information should Customer gather before contacting XcellHost
Please have the following information available before contacting XcellHost Technical Support:
Define the issue
- Explain the symptoms of the issue;
- Provide error messages or error output associated with the issue (if there is any);
- Provide as many details related to the issue as possible, including steps to recreate the issue;
- Define the desired action or outcome you want from the product; Attach screen shots of the issue you are facing, if possible;
Determine the business impact
Please determine how this affects your system and your ability to meet your business needs.
|Critical: Backup Systems are down or non-operational in key aspects, e.g.
Management Console is unavailable, Backup Creation/Backup Recovery,
Data Loss, Unbootable/Crashing System, Significant Performance
Degradation preventing backup core functions, causing critical disruption to business operations. No workaround available.
|High: Major product functionality doesn't work, e.g. Backup
Creation/Backup Recovery, Deployment, Validation, Product Installation Failure, Account Activation issue, with critical time sensitivity, but with no massive or severe impact on business operations
|Normal: Product functionality is impacted, but most operations continue, e.g. Product Performance/Compatibility issues, Logging errors, Undocumented Behavior, with moderate priority
|Low: Product functionality is not impacted. Customer service, pre-sales, website-related queries; minor usability, GUI issues; how-to questions, product information (functionality, requirements, setup, etc.) requests.
Gathering relevant information
Know the current product build number installed
Explain if the issue occurred before or if this is an isolated incident
Explain what occurred before the issue was detected
List the hardware, software or other environmental changes recently made to the system
Provide the proper contact information for XcellHost Customer Support followup
- Delivery Service Level Guarantee. The Service is backed by the following Delivery Service Level Guarantee (hereafter “Delivery Guarantee”):
- Delivery Guarantee. XcellHost guarantees that the Service will be provided to Customer on the Committed Ready for Service Date (“CRFS Date”) whereby the system resources are allocated and Customer is given access to start the use of Service. The CRFS Date may be a different date to the Requested Ready for Service Date (“RRFS Date”) specified in the Service Order Form.
- Delivery Credits. In the event XcellHost fails to meet the CRFS Date, Customer will be entitled to receive a credit against the non-recurring charge (NRC) (if any) (“Implementation Service One Time Charge”) applicable to the affected Service. The credit will be calculated based upon the number of days after the CRFS Date when the Service is actually made available to Customer. Delivery credits are calculated as follows:
Number of day(s) delay ( after CRFS
Delivery Credit (percentage of Setup / One Time
5 – 7
8 – 14
15 – 30
Greater than 30
These credits are not cumulative (i.e. if Service is 9 days late, credit will be 25% of the Implementation Service One Time Charge).
- Service Acceptance / Commencement Date. If no Fault of Severity Level 1 is reported by Customer to XcellHost within 2 Business Days from the CRFS Date or Actual Delivery date, the Service shall be deemed to have been accepted for the purpose of commencement of billing.
- Service Outage Reporting. Customer must inform XcellHost’s Customer Support in writing, by email or by call each time it notices any Service Outage within Five (5) business days of the time it first notices or first believes that there has been an Outage. XcellHost will provide 24x7x365 access to its On line (XcellHost) support portal for customer to report any service outage / performance issues.
XcellHost Customer Support must be provided with a 24*7*365 emergency number to reach a support person and their backup in the event of customer equipment failure or a data centre outage. Escalation matrix is also required from the Customer.
- Request for Service Outage Credit. Customer must provide XcellHost with a written request for a credit due hereunder within thirty (30) days of the applicable event giving rise to the credit. Failure to do so will void Company's eligibility for any credit for such event(s). This notice must include sufficient information including, without limitation, the Trouble Ticket number and the customer request and the date and time such request was made to XcellHost Datacentre, to allow the claim to be investigated. There shall be no Third Party beneficiaries of the Service Level Agreements unless the same is agreed upon by the parties in writing.
- Data Centre- Managed Services Service Availability Parameters. For the purpose of uniformity, the Service Availability for each XCELLHOST Service will be calculated as under. The Availability Guarantee for each component is covered in respective service schedule(s).
XCELLHOST Service will be considered unavailable if the Fault reported to the
XcellHost’s Support Center by Customer or identified by XcellHost itself is of Severity Level 1 or Severity Level 2 (“Service Outage”). XcellHost will calculate, on a monthly basis, the time of Service Outage experienced by each XCELLHOST Service Component. A month shall be deemed to begin at 12:00 AM Greenwich Mean Time (GMT) on the first day of a calendar month and end 12:00 GMT on the first day of the next calendar month (“Month”). At the end of a month, XcellHost shall calculate the total amount of time the XCELLHOST Service was unavailable measured from the time when a Fault of Severity Level 1 or 2 was reported to the XcellHost’s Customer Support or is identified by the XcellHost, whichever first occurs, until the time the Fault is repaired and the Service restored (the “XCELLHOST Service Outage Time”).
Such XCELLHOST Service Outage Time shall be used to determine any Service
Outage credit that the Customer shall be entitled to (“XCELLHOST Service Outage
Credit”). The XCELLHOST Service Outage Credit will be a percentage of the Monthly Recurring Charge (“MRC”) for the XCELLHOST Service as set forth in respective service schedules and will apply only to the XCELLHOST Service(s) for which such credit was derived (“Affected XCELLHOST Service(s)”), and the XCELLHOST Service Outage Credit will be calculated individually for each Affected XCELLHOST Service.
(a) SLA Adherence Matrix and applicable Outage Duration:
Service Outage Duration (in Hours) in a Month Rounded off to nearest hour
0.072 (4.32 minutes) – 0.72 hours (43.2 minutes)
0.36 (.5) hour – .72 (1) hour
0.72 (1) hour – 3.6 (4) hours
3.6 (4) – 7.2 (8) hours
7.2 (8) – 14.4 (15) hours
14.4 (15) – 21.6 (22) hours
21.6 (22) – 24 hours
7 Exclusions. Customer will not be entitled to receive any credits pursuant to the Delivery Guarantee or Service Availability Guarantee, for administrative setup delays or Service Outage experienced, which are associated with (in whole or in part):
- Interruption due to emergency & scheduled maintenance, alteration, or implementation;
- Negligence or other conduct of Customer or its agent/client including a failure or malfunction resulting from applications;
- A shut down due to circumstances reasonably believed by XcellHost to be a significant threat to the normal operation of the Services, the XcellHost facility, or access to or integrity of Customer IT infrastructure or its data (e.g., hacker or virus attack);
- Failure or malfunction of any equipment or services not provided by XcellHost;
- Failure of Customer to purchase minimum redundant systems necessary to support this warranty
- Failure of access to Customer’s network and the Internet, unless such failure is caused solely by XcellHost;
- Any act or omission of Customer or any of its agents, contractors or vendors, including without limitation, custom scripting or coding (for example, CGI, Perl, HTML, ASP) or Customer's failure to follow agreed-upon procedures or to provide the requisite Client Hardware or Software in respect of the Services;
- Force Majeure Events (Section 13.10), including without limitation, outages on the Internet;
- DNS issues beyond the reasonable direct control of XcellHost; or
- Service Level Agreements do not apply in the event of disconnection and subsequent reconnection of the services due to non-payment of any charges payable to XcellHost.
- Any unavailability or other degradation of the Service which is associated with or caused by Scheduled Maintenance events on the XcellHost Facilities (which are not otherwise due to the fault or negligence of XcellHost);
8 Service Outage Credits
7.1. Customer must provide XcellHost with a written request for a credit due hereunder as defined in Service Outage Reporting (Section 4).
7.2. If Customer is entitled to receive credits on more than one guarantee as set forth herein due to the same service-affecting incident, Customer will only receive the credit that it would otherwise be entitled to receive under a single guaranteed criterion for service which has least guarantee.
7.3. In no event shall the total amount of Service Outage credits issued to Customer per month exceed fifty percent (50%) of the MRC invoiced to Customer for the affected Service for that month.
7.4. Credits are calculated after deduction of all discounts and other special pricing arrangements, and may not be applied to governmental fees, taxes, surcharges, local access charges or any other charges other than monthly recurring service (MRC) charges.
7.5. Credits will generally be reflected on the subsequent invoice following the billing month in which the Service Outage occurs. The credits provided in this Service Level Agreement are Customer's sole and exclusive remedies for all matters related to the guaranteed criteria.
7.6. Any credits accrued but remaining unused after termination of the applicable Service may only be applied to charges accruing to the affected Service or new purchases of XcellHost Services. All unused credits will expire the later of twelve months after their accrual or upon the expiration or termination of the last Order
Form with XcellHost. Termination of a Service Order Form, the General Terms
and Conditions due to Customer's non-payment or other breach will immediately void all accrued, but unused credits.
9 Customer Obligations.
- Customer Undertakings. The Customer represents warrants and agrees that it will not use, nor authorize, assist or permit any User or third party to use, the Service:
- In violation of any applicable laws or with all policies and instructions communicated by XcellHost.
- For any unlawful, fraudulent or immoral purpose, including, without limitation, the transmission of any Content in violation of applicable laws
- To tamper with, alter or change the Service or the XcellHost’s Facilities, or otherwise abuse the Service in any manner that interferes with XcellHost’s Facilities or the use of Service by any other person.
- Rights to Suspend. If XcellHost reasonably believes that there is, or is likely to be, a breach of any of the Customer’s obligations hereunder, XcellHost may, in its sole discretion, immediately restrict or suspend all or a portion of the Service or prevent the display or transmission of Content, without any liability to the XcellHost, and then notify the Customer of such action and the reason for it. XcellHost will attempt to provide such notification to the Customer prior to taking such action if, in XcellHost’ s judgment, it can do so without interfering with its ability to prevent the breach from occurring or continuing.
10 Non Disclosure Agreement (NDA)
- a) Confidentiality. "Confidential Information" shall mean and encompass information, know-how and data, of a technical, commercial, financial or any other nature, disclosed to either Party by or on behalf of the other Party prior to or during the term of this agreement. Customer and XCELLHOST each agree to retain in confidence all information disclosed by a party to the other partypursuant to this Agreement which is either designated as proprietary and/or confidential, or by the nature of the circumstances surrounding disclosure, should reasonably be understood to be confidential (the “Confidential Information”).
- It shall cover all messages, documents and files or other communication in writing and marked "confidential" by the disclosing Party; (or)
- Drawings, models, prototypes, photographs, software programs or in any machine readable form, which information is stated by the disclosing Party to be confidential; (or)
- Orally, and identified in writing as confidential to the disclosing Party within 15 (fifteen) days from disclosure;
Each party agrees to:
- preserve and protect the confidentiality of the other party’s Confidential Information;
- refrain from using the other party’s Confidential Information except as contemplated herein; and
- not disclose such Confidential Information to any third party except to employees as is reasonably required in connection with the exercise of its rights and performance of its obligations under this Agreement (and only subject to binding use and disclosure restrictions which are at least as protective as those set forth herein and which are agreed to in writing by such employees).
XcellHost further agrees that it will not change or copy, read or distribute Customer’s data, except as required to perform the Services. XcellHost hereby agrees that it has implemented industry standard procedures to: (1) ensure the security and confidentiality of Customer’s Confidential Information; (2) protect against any anticipated threats or hazards to the security or integrity of such information; and (3) protect against unauthorized access to or use of such information. The parties agree to comply with the applicable laws and shall negotiate in good faith, if necessary, to execute any other documents that may be required to comply with any applicable laws.
Notwithstanding the foregoing, either party may disclose Confidential Information which is: (i) already publicly known;
- independently developed by the receiving party without reference to the Confidential Information of the disclosing party;
- Otherwise known to the receiving party through no wrongful conduct of the receiving party, or required to be disclosed by law or court order.
Neither party shall disclose any of the terms of this Agreement to any third party without the prior written consent of the other party; provided, however, that either party may disclose the existence of this Agreement to any third party and either party may disclose the terms of this Agreement:
- to legal counsel of the parties;
- in confidence, to accountants, banks, and financing sources and their advisors solely for the purposes of a party’s securing financing;
- in connection with the enforcement of this Agreement or rights under this Agreement; or
- in confidence, in connection with an actual or proposed merger, acquisition, or similar transaction solely for use in the due diligence investigation in connection with such transaction.
(i) In the event that one of the Parties, or anyone to whom Confidential Information is disclosed pursuant to this agreement becomes legally compelled to disclose any of the confidential Information, such party (the "Compelled Party") shall provide the other party with prompt notice so that such other party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Article. In the event that such protective order or other remedy is not obtained or in the event that the other Party waives compliance with the provisions of this Article, the compelled Party will furnish only that portion of the Confidential Information which the Compelled Party is legally required to disclose and will seek to obtain reliable assurance that confidential treatment will be accorded to the Confidential Information.
11 TERM & TERMINATION
- The term of this XCELLHOST shall commence on the XCELLHOST effective date and shall renew automatically for successive one (1) year periods unless either party gives the other written notice of intent to terminate and not renew at least ninety (90) days prior to the end of the initial term or any renewal term.
- This XCELLHOST may be terminated by either party in the event that such party has the right to terminate the customer Agreement.
- Upon termination of this XCELLHOST, Customer shall relinquish use of the Internet protocol addresses or address blocks assigned to it by XCELLHOST in connection with the Services.
- Unless and otherwise specified in the Customer Agreement, if after the termination or expiration of the Agreement, the Customer fails to remove all equipment and/or other properties belonging to them from the XcellHost Data Centre premises within 45 days of such termination or expiration, the
- agrees that XcellHost Datacentre may dispose off such property as it deems appropriate and
- releases XcellHost Datacentre from any and all liability arising out of such disposal
11.1 TERMINATION TRASITION ASSISTANCE:
Upon any notice of termination of this Agreement, to the extent technically feasible, XcellHost shall assist Customer in the migration of the data of Customers that are located on XcellHost’s servers/storage, in a comma separated values file or other format reasonably requested by Customer. If termination of this Agreement is due to XcellHost’s breach, XcellHost shall migrate Customer’s data to a setup as reasonably requested by Customer, at no cost to Customer.
12 WARRANTY LIMITATIONS
- Disclaimer of Actions Caused by and/or Under the Control of Third Parties Except for warranties and representations made herein, XcellHost MAKES NO REPRESENTATIONS AND DISCLAIMS ALL WARRANTIES AND LIABILITY REGARDING THE DATA, PRODUCTS, OR SERVICES OF ANY THIRD PARTY, INCLUDING THE PROVIDERS OF ELECTRICAL OR TELECOMMUNICATIONS
PRODUCTS OR SERVICES. CUSTOMER ACKNOWLEDGES THAT AN
INTERRUPTION IN THE HOSTING SERVICES DUE TO CIRCUMSTANCES BEYOND THE CONTROL OF XcellHost, SUCH AS A FAILURE OF TELECOMMUNICATIONS SYSTEMS, SHALL NOT BE CONSIDERED A SERVICE OUTAGE FOR PURPOSES OF ANY WARRANTY PROVIDED IN THIS XCELLHOST.
- Sole Remedies to Service outage: SOLE REMEDY IN THE EVENT OF ANY SERVICE OUTAGE, INTERRUPTION OF SERVICES DUE TO OUTAGES, OR OTHER BREACH OF WARRANTY SHALL BE THE OUTAGE CREDIT PROVIDED IN THIS XCELLHOST. XcellHost AND ITS XCELLHOSTS DISCLAIM ANY AND ALL OTHER LIABILITIES OR REMEDIES FOR SUCH OUTAGES, INTERRUPTIONS, OR BREACH OF WARRANTY. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE LIABILITY OF XcellHost AND ITS XCELLHOSTS ARISING FROM ANY SUCH OUTAGE, INTERRUPTION, OR BREACH OF WARRANTY SHALL BE EXPRESSLY LIMITED AS SET FORTH IN THIS XCELLHOST.
13 MISCELLANEOUS PROVISIONS
Any notice or other communication required or permitted hereunder shall be sufficiently given if manually delivered or sent by registered or certified airmail or fax or E-mail, and, in the case of airmail, prepaid and directed to the other party at its mailing address first set forth above. Any party may, by giving notice as provided sent by registered or certified airmail shall be deemed to have been given ten (10) days after the date on which it is proved to have been so mailed. Any such notice or communication sent by fax or email shall be deemed to have been given one (1) day after the date on which it is sent and receipt has been confirmed.
13.2 GOVERNING LAW
This Agreement and the obligations of the parties hereto shall be interpreted, construed and enforced in accordance with the internal laws of India, without giving effect to the conflict of laws / principles thereof. The Courts at Mumbai shall have exclusive jurisdiction over all matters connected with this agreement.
No express or implied consent to or waiver of any breach or default by any party hereto in the performance by the other parties of its obligations under this Agreement shall be deemed or construed to be a consent to or waiver of any other breach or default in the performance by such party of the same or any other obligations of such party under this Agreement. Failure on the part of any party to complain of any act or failure to act or to declare the other party as defaulting, irrespective of how long such failure continues, shall not constitute a waiver against such failing party of the rights of the other party under this Agreement.
If any provision of this Agreement or the application thereof to any person or circumstance shall be invalid or unenforceable to any extent, the remainder of this Agreement and the application of such provisions to any other person or circumstance shall not be affected thereby and shall be enforced to the greatest extent permitted by law.
13.5 ENTIRE AGREEMENT – AMENDMENT
This agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof. Except as specifically provided herein, neither this agreement nor any provision hereof can be changed, waived, discharged or terminated orally, but only by an instrument in writing signed by all of the parties
All personal pronouns used in this Agreement, whether used in the masculine, feminine or neuter gender, shall include all other genders; the singular shall include the plural; and the plural shall include the singular. Titles of articles, sections, subsections and paragraphs in this Agreement are for convenience only, and neither limit nor amplify the provisions of this Agreement
This Agreement can be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall comprise but a single instrument
This Agreement cannot be assigned by any party hereto without the express written consent of the other two parties
13.9 LEGAL FEES
In any legal action brought in connection with this agreement for the operations of the Customer, the prevailing party shall be entitled to recover its legal fees from the non-prevailing parties
13.10 FORCE MAJEURE
If the performance of any obligation of any of the parties is prevented or restricted or interfered with by reason of fire, explosion, strike, labor dispute, casualty, riots, sabotage, accident, lack or failure of transportation facilities, flood, war, civil commotion, terror attack, lightning, acts of God, any law, order or decree of any government or subdivision thereof or any other cause similar to those above enumerated, beyond the reasonable control of the party, the party so affected shall, upon the giving of prompt notice to the other parties, be excused from performance hereunder to the extent and for the duration of such prevention, restriction or interference.
No provision of this Agreement shall be construed against or interpreted to the disadvantage of any party by any court or other governmental or judicial authority by reason of such party having or being deemed to have structured or drafted such provision
Any dispute and/or difference that may arise between the Parties hereto in regard to this Agreement and/or the arrangement there under, the carrying out of its terms and conditions and/or the interpretation thereof in any way whatsoever shall be referred to the conciliation of any authorized representative of the Parties and a solution shall be sought within 15 days of such referral. In the event of any resolution not being found despite conciliatory efforts, the dispute and/or difference shall be referred to a sole Arbitrator to be mutually appointed by the Parties. In the event of differences on appointment of a sole arbitrator, the Parties agree to appoint three arbitrators, one to be appointed by Customer and another to be appointed by XCELLHOST. The two arbitrators shall appoint the third arbitrator who shall act as the governing arbitrator. The Arbitration proceedings shall be governed by the provisions of the Arbitration and Conciliation Act 1996 and its statutory modification in force for the time being. Language of arbitration shall be English. Place of Arbitration shall be Mumbai
SCHEDULE - D MANAGED SUPPORT SERVICES
XcellHost's Hosting Professional Support (HPS) service offerings for cloud customers includes Backup and Disaster Recovery Services and Technical Support Services.
This Hosting Professional Support Services (HPS) is applicable only to Service Order Forms for Data Centre- Managed Services which have been subscribed by Customer and accepted by XcellHost in accordance with, and subject to the Terms and Conditions for Delivery of Services.
- "Service Window": XcellHost will provide 24x7 support for the proposed engagement.
- “XcellHost Portal and Monitoring”: XcellHost’s service portal offering and will be a single point for information on customer’s infrastructure that is being managed. The portal offers access to trouble ticket & change management systems, events, inventory and SLA performance reports.
- “Proactive Monitoring”: XcellHost will provide Customer with proactive monitoring services out of its Global Management Operations Center (GMOC). Key tasks executed part of the proactive monitoring services include: a) Monitoring of the inscope infrastructure.
- Recording of incidents and problems reported by users and the monitoring tools on the trouble ticket system available on XCELLHOST.
- Monitoring the progress of the incidents and problems recorded and ensuring that they are resolved on time.
- Carrying out incident notification and escalations to defined designated contacts.
- Periodic trend analysis and capacity requirement identification and notifications.
- “Technical support Services”: XcellHost will ensure availability of technical support services for managing incident, problem and change management processes. Skilled resources relevant to Customer’s environment will be made available.
- Scope of Hosting Professional Support Service: The Service consists of the following components as per the subscribed plan, as specified in the Order Form. The detailed management task list is captured in Hosting Professional Support Service Descriptor and is subject to change as defined by XcellHost time to time.
- “Management Tasks”: means the tasks and schedule of activities covered under specific service management. The detailed management task list is captured in Hosting Professional Support Service Descriptor and is subject to change as defined by XcellHost time to time.
- “Server and OS Management”: XcellHost will provide technical support for Customer’s server hardware and operating system. XcellHost will also monitor the server and critical availability and performance attributes.
- “Database Replication, Monitoring and Management”: XcellHost will provide technical support for database management, availability and performance attributes, as per the plan subscribed and defined in Hosting Professional Support Service Descriptor.
- “Backup and Restore Services”: XcellHost will provide support for monitoring and managing server backup processes. XcellHost will be responsible for the following as part of the backup management process:
- Creating Backup Plan [Frequency of Backup, What to Backup, Restoration Plan]
- Backup Plan Review [Speed of Backup & Restoration, Mock Restore, Backup
- Assess & Define Comprehensive Backup & Recovery Plan
- Integrate Backup Plan into Overall Managed Hosting Plan
- Minimize impact of backup activities
- Segregate Backup Activity on a Separate Backup Network
- Define Backup Retention Periods & Encryption Standards
- Design Optional Application Specific Backup Strategies
- Complete Backup System Verification
- Verify completion of each backup session
- Provide Optional Test Recovery Strategies
- Schedule Regular Backup during off peak hours
- Aggregate Backup Usage
- Determine Impending Backup Limit Alerts
- Evaluate Backup Usage Trends
- Apply Scalability foresight to anticipate backup capacity needs
- “Incident and Problem Management Process”: XcellHost will follow the problem management process and provide level II support for resolving problems identified in the in-scope infrastructure. As part of the problem management process XcellHost will Investigate and diagnose the problems reported. a) Perform root cause analysis.
- Provide temporary fixes to problems and also work on permanent solutions.
- Raise changes requests for providing permanent solutions to problems identified
on the in-scope security infrastructure.
- “Change Management Process”: XcellHost will raise change requests for carrying out configuration changes and maintenance of the in-scope infrastructure. XcellHost will obtain the approval from a predefined distribution list at Customer, before carrying out any changes. XcellHost will use the change management system available on XcellHost.
- “Reporting”: Weekly and monthly reports on the events that have occurred, fixed and information on the response, resolution including SLA performance reports will be made available online on XcellHost. XcellHost will during the transition phase agree on the reporting requirements and methods with Customer.
- “Service Availability Guarantee”: The Maximum Service Level Attributes shall be as follows:
Incident response time (Mean
Time To Respond)
Severity 1 - 15 min
Severity 2 - 30 min
Severity 3 - 120 min
Incident / Problem resolution
(Mean Time To
Severity 1 – 2 hours
Severity 2 – 8 hours
Severity 3 – 16 hours
Service Outage Duration (in Hours) in a month
HPS Service Outage
Less than 4 Hours
4 – 8 Hours
5% of MRC
8 – 15 Hours
10% of MRC
15 – 22 Hours
15% of MRC
22 – 24 Hours
20% of MRC