The terms and conditions set forth herein constitute the full and complete agreement between you (“you” or “Customer”) and vSplash Techworks Private Limited (“VSPLASH” or "VSPLASH"). By using the VSPLASH Web Services, any Support Services, any VSPLASH software (the VSPLASH Software), or any other products or services of VSPLASH (together the "VSPLASH Web Services"), you agree to be bound by the terms of this Agreement. The terms contained herein supercede and replace any other agreement or negotiation between you and VSPLASH, whether oral, written or otherwise, including any statements made to you by any representative of VSPLASH at any time. Any amendments, changes, additions, deletions or other modifications of this Agreement are void unless specifically expressed in writing and agreed to by VSPLASH.
 
     
  1. FEES; PAYMENT OF FEES  
 

1.1. Fees
1.1.1. VSPLASH charges Account Set-Up Fees, Service Fees and Domain Service Fees where applicable. All such fees are subject to change without notice. Unless otherwise specified in any offer or promotion, the fees published on the VSPLASH website are applicable to all transaction between you and VSPLASH. The contract between you and VSPLASH is effective from the earlier of (1) the activation of your account or (2) your receipt of an email from VSPLASH confirming your order.

1.1.2. VSPLASH reserves the right to offer subsequent promotional rates which may or may not be more favorable than the terms under which you entered this agreement. Any such periodic special rates shall not effect the then existing rights and responsibilities of each party. VSPLASH reserves the right to change the rate charged for any such fee under this agreement without notice. Promotional offers and rates may not be combined.

1.2. Payment of fees
1.2.1. Payment of fees must be made by Credit Card (American Express, Visa and MasterCard), Cheque, Draft or any other payment method as provided by VSPLASH. Payment for all products and services is due in advance, unless specifically stated otherwise in the offer or promotion pursuant to which you have ordered or are ordering the VSPLASH Web Services. All payments shall be made in Indian Rupees.

1.2.2. Payment by Credit Card: prior to activation of your user account and at any applicable time thereafter you authorize VSPLASH to charge the credit card provided by you for the amount of the fees due for the agreed upon services, together with any applicable set-up charges, registration fees, or any other charges outlined herein as may be applicable. You further authorize VSPLASH to charge your credit card for all subsequent period fees at, or a reasonable period in advance of, the commencement of any such subsequent period. Should you fail to provide credit card authorization to pay for the overage, VSPLASH, at its sole discretion will have the right to suspend your account and/or terminate it at under Article 8 hereof. Refusal or rejection of any charge or any portion thereof is grounds for account suspension and/or termination at the sole option of VSPLASH under Article 8 herein.

1.3. Refunds of Service fees will be made only for pre-payment of Service fees beyond the renewal date following the effective notice and termination of this agreement under Section 9. All refunds shall be pro-rated based upon the number of days for which service remains unused as of that renewal date.

1.4. All setup fees are non-refundable and will not be refunded for any reason whatsoever.


 
   2. VSPLASH WEB SERVICES  
 

2.1. For the term of the agreement as set forth herein, VSPLASH agrees to provide the VSPLASH Web Services, to the extent they have been subscribed to by you, upon activation of your account. VSPLASH reserves the right to change, amend and/or otherwise alter the VSPLASH Web Services with equivalent or otherwise equal services without prior notice to you.

2.2. Account activation and provision of the VSPLASH Web Services will commence as soon as is practicable after receipt of your order, dependent on the timely receipt of any payment due from you in connection therewith.

2.3. Subscribers to VSPLASH Web Services must be at least 18 years of age or require the approval of the minor's legal guardian.


 
  3. ADMINISTRATIVE ACCESS  
 
Administrative access to the VSPLASH Web Services is limited to you and your authorized agents. As a general rule, VSPLASH does not access the contents of your email space. Nevertheless, VSPLASH reserves the right to require, at its discretion, software and/or hardware upgrades for the purposes of maintaining security and stability of the services provided and may require the installation of such upgrades. Standard fees for such upgrades shall be set by VSPLASH from time to time.


 
   4. ACCEPTABLE USE  
 

4.1. VSPLASH strictly enforces compliance with its acceptable use terms under this Article 4. You agree to maintain your website in full compliance with the terms set forth below. Failure to so comply is cause for immediate suspension and possible termination under Article 8 herein. You agree that:

4.1.1. VSPLASH Web Services may only be used for lawful purposes; you will not violate the laws, regulations, ordinances or other such requirements of any applicable Central, State or local government or any other international laws;

4.1.2. you will not engage in any activity of any kind that causes harm to minors or to perform any activity which is likely to cause such harm;

4.1.3. you will not take any action which encourages or consists of any threat of harm of any kind to any person or property;

4.1.4. you will not transmit any unsolicited commercial or bulk email, will not engage in any activity known or considered to be "spamming" or "Mail Bombing," and you will not carry out any "denial of service" attacks on any other website or internet service;

4.1.5. you agree not to make any inappropriate, illegal or otherwise prohibited communication to any Newsgroup, Mailing List, Chat Facility, or other Internet Forum;

4.1.6. you agree not to make or attempt any unauthorized access to any VSPLASH website or the website of any VSPLASH customer;

4.1.7. you agree not to infringe any copyright, trademark, patent, trade secret, or other proprietary rights of any third party, including, but not limited to, the unauthorized copying of copyrighted material, the digitization and distribution of photographs from magazines, books, or other copyrighted sources, and the unauthorized transmittal of copyrighted software;

4.1.8. you agree not to post or transmit any unlawful, threatening, abusive, libelous, defamatory, obscene, offensive, indecent, pornographic, profane, or otherwise objectionable information of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, central or international law, including without limitation the Indian export control laws and regulations, and laws protecting intellectual property including copyright, trademark, trade secret, misappropriation and anti-dilution laws;

4.1.9. you agree not to collect or attempt to collect personally identifiable information of any person or entity without their express written consent and you shall maintain records of any such written consent throughout the terms of this agreement and for three years thereafter;

4.1.10. you agree not to undertake any action which is harmful or potentially harmful to the VSPLASH server structure.

4.1.11 you agree not to operate any device, software or routine to interfere or attempt to interfere with the proper working of the Site or any activity being conducted on the Site;

4.1.12 you agree not to commence any action which imposes an unreasonable or disproportionately large load on the Site's infrastructure;

4.1.13 you agree not to interfere with or disrupt the Site or servers or networks connected to the Site, or disobey any requirements, procedures, policies or regulations of networks connected to the Site;

4.1.14 you agree not to access the Site by any means other than through the interface that is provided by vSplash for use in accessing the Site;

4.1.15 Intentionally or unintentionally violate any applicable local, state, national or international law and any regulations having the force of law;

4.1.16 If you have a password allowing access to a non-public area of the Site, you agree not to disclose or share your password with, any third parties or use your password for any unauthorized purpose;

4.1.17 you agree not to use or attempt to use any engine, software, tool, agent or other device or mechanism (including without limitation browsers, spiders, robots, avatars or intelligent agents) to navigate the Site other than the navigation available from vSplash on the Site and other than generally available third party web browsers (e.g., Microsoft Explorer, NeoPlanet, Netscape Navigator);

4.1.18 you agree not to engage in the practices of screen scraping or database scraping to obtain lists of URLs, users, emails, customers, affiliates, or other information;

4.1.19 you agree not to attempt to decipher, decompose, disassemble or reverse the engineering of any of the software comprising or in any way making up a part of the Site;

4.1.20 you agree not to frame site content in another web page;

4.1.21 you agree not to, except as expressly provided elsewhere on the Site, reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes, any portion of the Site, use of the Site, or access to the Site.

4.1.22 you agree not to attempt to gain access to the software and host the site elsewhere. VSPLASH does not provide access to the source or compiled software in any form.

4.2. In order to maintain the data-transfer volume restrictions set forth in Section 11.1 below, you agree to check all of your email accounts in regular intervals and to download the email stored therein. VSPLASH may, should the capacity of your email boxes be exceeded at any time, return all subsequently received emails to the senders without notice to you.

4.3. You agree to use your websites in such a manner as to avoid overloading of the VSPLASH Servers, by limiting the use of CGI-Scripts that require overly high processor capacity, and to use good judgment to provide a website that is designed in a technically competent manner. VSPLASH has the right, should your website be the cause of interruptions in VSPLASH's ability to provide its services to other customers, to temporarily disable access to your website. In case VSPLASH takes such a step, you will be informed thereof as soon as is practicable and VSPLASH may work with you to remove the condition that led to the suspension.

4.4. You agree not to operate any chat rooms via the VSPLASH Web Services, unless permission for the operation of a chat room was specifically included in the service package ordered and paid for by you.

4.5 You agree that you must use software configurations that conform with VSPLASH requirements. Use of any particular software configuration may be declined at the sole discretion of VSPLASH. Customers have no right or expectation to receive a hardware or software configuration on their hosting server that is more capable than that which was initially ordered from VSPLASH, nor can a Customer expect to receive support from VSPLASH with respect to the correction of errors caused by mistakes, faulty settings, and installation errors caused by the Customer.


 
  5. BLOCKING OF BULK EMAIL ("SPAM")  
 
5.1. VSPLASH reserves the right to block email from any open mail relay, IP address or other source that VSPLASH believes are being used to send unsolicited commercial or bulk email, commonly known as spam.


 
  6. THIRD PARTY SOFTWARE LICENSE  
 
VSPLASH may provide its customers with the ability to use certain third-party software (the “Third Party Software”), depending on the package ordered. The license conditions governing the use of the Third Party Software may differ from VSPLASH's own software licenses. Customers of VSPLASH are bound by the conditions of all licenses pertaining to such Third Party Software and should make themselves familiar with their terms and conditions. The provision and offering of such Third Party Software by VSPLASH does not constitute an endorsement of the Third Party Software, nor can VSPLASH make any representations or warranties regarding the use and functionality of such Third Party Software. Third party software is offered to VSPLASH customers without any warranty of any kind, whether express or implied, including, but without limitation, any implied warranty of merchantability, or fitness for a particular purpose.


 
  7. OWNERSHIP OF INTELLECTUAL PROPERTY; CONFIDENTIALITY  
 

7.1. It is understood and agreed that during the term of this agreement and thereafter you may come into possession of information which is the confidential and proprietary information of VSPLASH including but not limited to the VSPLASH customer service and maintenance tools. You acknowledge that all right and title to any such VSPLASH intellectual property shall remain the sole property of VSPLASH and that you have no right, title or interest therein. You further agree not to provide access to the VSPLASH Web Services to any third party. Any and all right or title to any engineering, coding, programming or customer service work around or other modification of the VSPLASH Web Services shall also remain the sole property or VSPLASH.

7.2. During the term of this agreement you may have access to certain information and materials relating to the VSPLASH business, customers, software technology and marketing which VSPLASH treats as confidential (hereinafter "Confidential Information"). You agree to at all times during the term of this agreement and otherwise as set forth herein: (i) hold in confidence, and not disclose or reveal to any person or entity, any "Confidential Information" without the express prior written consent of VSPLASH; and (ii) not use or disclose any of the "Confidential Information" for any purpose at any time, other than pursuant to your rights under this agreement for the purpose intended. These obligations shall continue indefinitely for so long as the Confidential Information is a trade secret under applicable law and shall continue for three (3) years following termination of this Agreement with respect to Confidential Information, which does not rise to the level of a trade secret.

7.3. For purposes of this Article 7, Confidential Information also includes passwords and access codes.

7.4 It is understood and agreed that VSPLASH shall not provide the source code of any software in any form whatsoever – be it proprietary VSPLASH software, third-party software, open-source software or any other software or scripts that may have been used in providing the VSPLASH Web services. It is also understood that VSPLASH shall not provide any code or software technology for hosting your site at any other location or server.


 
  8. TERM  
 
8.1. The initial term of this Agreement shall be one (1) year with automatic renewal for subsequent additional year after the expiration of the initial term (each such year a "Contract Term"). VSPLASH reserves the right to accept pre-payment of renewal periods and may from time to time offer financial incentives for such pre-payment. The Contract Term, however, shall remain one (1) year.


 
  9. TERMINATION  
 

9.1. For any reason set forth herein or in the event that you breach any term of this agreement including but not limited to Section 1 (Payment of Fees) and Section 4 (Acceptable Use Policy), VSPLASH may suspend or terminate your account by deactivating any access by you or by web users to any information contained on the VSPLASH servers related to your account. Suspension hereunder shall specifically include the disabling of your hosted domain and/or any access to information or data related to your account. Service charges will continue to accrue on suspended accounts and you continue to remain responsible for the payment of any such charges during the period of suspension. VSPLASH reserves the right to terminate your account forthwith and without notice for any breach of Article 4 of this Agreement.

9.2. This agreement and all of its terms shall remain in full force and effect VSPLASH terminated. Termination shall include the removal of any and all of your information from the VSPLASH servers. Such information or data may or may not be made available to you by VSPLASH after any such termination. This agreement may be terminated either (a) after a period of suspension as set forth in Section 8.1 or (b) at any time by either party upon 30 days notice.

9.3. Either party may terminate this Agreement immediately and without further notice for cause. Cause for immediate termination under this subsection 9.3 exists (a) if any payment for VSPLASH Web Services is more than fifteen (15) days overdue, (b) in case of any material breach of any of the provisions of this Agreement that is not cured within ten (10) days of the breaching party receiving notice thereof from the non-breaching party, or (c) any breach of the provisions of Article 4 of this Agreement.

9.4. In the event of any termination under this Article 9, any service fees paid in advance beyond the next renewal date following the notice period under that section will be refunded to you as per Clause 1.3 hereinabove. It is however clarified that this refund shall not include any set-up fees, Domain Service fees or other fees which are all non-refundable.

9.5. Accounts that are thirty (30) days past due shall be automatically suspended and all past due and unpaid balances are subject to collection through collection agencies. In the event of such collection action, Customers are liable for costs of collection including but not limited to lawyer's fees, court costs, and collection agency fees. Once an account has been submitted to a collection agency for collection, such account shall additionally be subject to a reactivation fee of Rs.1000, which fee shall be paid by Customer prior to reactivation of the account.

9.6 In case of accounts with advance periodic billing (monthly, quarterly, half-yearly) other than annual billing, the amount is due prior to the start of the period for which the service is to be delivered. In case the payment is not received prior to the start of the period, the account is liable to be suspended or terminated at the sole discretion of VSPLASH.


 
  10. NOTICE  
 

10.1. Any notice under this Agreement shall be given by VSPLASH to you via email at the address provided by you to VSPLASH at the commencement of this Agreement or as VSPLASH is subsequently advised. Notice to you at this address is deemed sufficient regardless of your receipt of such email.

10.2. You warrant that the contact information you have provided to VSPLASH is and will remain accurate. You agree that you will inform VSPLASH within 15 days of the change of any of the following information:

10.2.1. your name and/or mailing address;

10.2.2. the name, mailing address, email address, telephone or telefax number of the technical contact for your Domain Name(s), if applicable;

10.2.3. the name, mailing address, email address, telephone or telefax number of the administrative contact for your Domain Name(s), if applicable;

10.2.4. in case you have installed and are operating your own name servers, any change in the primary or secondary DNS address of such servers, including the server names. In addition, in case domain names registered with other registrars point to any website hosted by VSPLASH, you will notify VSPLASH within fifteen (15) days of any change in the DNS information pertaining to such domain names.


 
  11. WARRANTIES; LIMITATIONS OF LIABILITY  
 

11.1. VSPLASH makes every reasonable effort to maintain operation of the VSPLASH Web Services. However because many events and circumstances are beyond the control of VSPLASH, VSPLASH does not in any way warrant or otherwise guarantee the availability of the VSPLASH system or servers and is not responsible for any delay or loss of data, lack of connection, slow connection, or any other such issues whether due to the active or passive negligence of VSPLASH. VSPLASH may, at its sole discretion, limit or deny access to its servers, if, in the judgment of VSPLASH, such limitations or denials of access are required to the assure the security of the network, the integrity of the network structure, or to prevent damage to the network, the software or the data stored on the VSPLASH servers.

11.2. All VSPLASH Web Services are provided to you on an "as is" basis, and without any warranty of any kind, whether express or implied, including, but without limitation, any implied warranty of merchantability, or fitness for a particular purpose.

11.3. Information obtained by you from the Internet may be inaccurate, offensive or in some cases even illegal. With the exception of the content found on VSPLASH's website, VSPLASH has no control over information contained on the Internet. VSPLASH, therefore, accepts no responsibility for any information which you may receive from the Internet. You accept full responsibility to verify the truth and accuracy, legality and ownership of the information that you obtain from the Internet as well as the reputation of the individuals with whom you may deal. VSPLASH provides no warrantee for any goods or services which you obtain over the Internet, nor the compatibility of any such services with the VSPLASH system.

11.4. You specifically hereby waive any claim for damages of any kind whether direct, indirect, special, exemplary, punitive, incidental or consequential, loss of profits or loss of business as the result of any action taken in response to any claim of copyright infringement without regard to whether or not the material claimed to have been infringing is later found to be infringing.

11.5. The total sole and exclusive remedy available to you as the result of any breach of this agreement, negligence, or any action or failure to act whether intentional or otherwise shall be limited to the total amount of relevant web service fees paid by you to VSPLASH in the six months immediately proceeding any allegation of entitlement to such remedy, but in no event to exceed Rs.25,000. In no event shall VSPLASH be liable for any indirect, special, exemplary, punitive, incidental or consequential damages, loss of profits or loss of business as the result of any such action or inaction without regard to the likelihood of any such damages.


 
  12. NETWORK DATA TRANSFER CHARGES  
 
There shall be no charge for monthly aggregate or daily average network transfer within the allowance of the hosting package, depending on the terms agreed upon at purchase, as measured during the calendar 30-day period. Monthly aggregate or daily average network traffic in excess of the pre-arranged allowance shall incur an additional fee as set by VSPLASH. Payment of this fee will be required in order to maintain service. Network traffic shall be measured by VSPLASH and may include all forms of traffic to and from the server. All fees shall be set and adjusted by VSPLASH from time to time and posted at the VSPLASH web site.


 
  13. INDEMNITY  
 

13.1. You agree to fully defend and indemnify and hold harmless VSPLASH of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including lawyers fees and costs, expert fees and costs and mediation and/or arbitration fees and costs incurred (whether paid or not) as the result of any breach or claim of breach of this agreement or your negligence whether active or passive or any negligence of VSPLASH in any way related to your use of the VSPLASH Web Services or any portion thereof.

13.2. You agree to fully defend and indemnify and hold harmless VSPLASH of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including lawyers fees and costs, expert fees and costs and mediation and/or arbitration fees and costs incurred (whether paid or not) as the result of any violation or claimed violation of any copyright or other intellectual property right of any third party which is in any way related to your use of the VSPLASH Web Services or any portion thereof. Choice of counsel remains exclusively that of VSPLASH.

13.3. You agree that upon the assignment of your Customer ID and password that you will maintain the confidentiality of your account information and assume all responsibility of and from any loss, theft or other destruction of any data as the result of any access to your account via the use of your customer ID and / or your password You further agree to defend and indemnify and hold harmless VSPLASH of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including lawyers fees and costs, expert fees and costs and mediation and/or arbitration fees and costs incurred (whether paid or not) as the result of any claim for damages in any way related to the disclosure of your confidential Customer ID and Password information. Choice of counsel remains exclusively that of VSPLASH.


 
  14. GENERAL PROVISIONS  
 

14.1. Force majeure / withdrawal from business
14.1.1. Either party to this agreement shall be excused from any delay or failure in performance hereunder caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, acts of God, earthquake, labor disputes and strikes, riots, war, and governmental requirements. The obligations and rights of the party so excused shall be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay.

14.1.2. In addition to any event of force majeure as described in the foregoing paragraph, VSPLASH may also terminate this Agreement in the event that VSPLASH elects, at its sole discretion, to cease doing the Web services business in India for economic reasons or for any other reason whatsoever. Customers who, at the time VSPLASH ceases doing business in India, are taking advantage of any VSPLASH offer for free services or any other services that were intended to go beyond the date of cessation (hereinafter, the “Extended Services”), may not recover any damages from VSPLASH (or any of its affiliated entities) in the event that they incur costs and expenses related to the cessation of the Extended Services, nor do such customers have, nor may they bring, any claim for repayment of such costs and expenses, including without limitation, fees paid to other hosting services for the balance of time remaining with respect to any VSPLASH offer of Extended Services.

14.2. Assignment.

This agreement and the rights hereunder is not assignable or transferable except that VSPLASH may freely assign all of its rights hereunder to any person or entity who shall become a principal owner, or shareholder of VSPLASH, or to any affiliated company or successor in interest of VSPLASH. Any other attempted transfer or assignment of rights hereunder shall be null and void ab initio. Upon any such assignment by VSPLASH to any other party, including to any affiliated company or successor in interest of VSPLASH, you have the right to terminate this Agreement by giving notice thereof in writing to VSPLASH and any such termination shall become effective thirty (30) days after the receipt of such notice by VSPLASH.

14.3. Severability.
If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement.

14.4. Choice Of Law.
This Agreement shall be subject to Hyderabad jurisdiction ( Hyderabad , India ) and shall be interpreted under the laws of the Republic of India , without regard to any conflict of laws provisions.

14.5. Dispute Resolution.

14.5.1. Any claim, dispute or controversy with respect to, in connection with or arising out of this Agreement shall be subject to and decided by arbitration in the jurisdiction of Hyderabad, by a panel of three arbitrators. Each Party shall designate one disinterested arbitrator and the two arbitrators so designated shall select a third arbitrator. The persons selected as arbitrators need not be professional arbitrators and persons such as lawyers, accountants, brokers and bankers shall be acceptable, but each shall have substantial experience with respect to information technology and development. The arbitration proceeding shall be conducted in accordance with the commercial arbitration rules of the Indian Arbitration Association then and there pertaining. Any party may initiate arbitration proceedings hereunder by providing written notice ("Demand for Arbitration") to the other party to such claim, dispute or controversy. A Demand for Arbitration shall be made within a reasonable time after the claim, dispute or controversy has arisen; provided, however, that no Demand for Arbitration may be made after the date when institution of such claim, dispute or controversy would be barred by the applicable statutes of limitations. Arbitration proceedings shall be commenced within thirty (30) days of such notice or as soon thereafter as practicable, and the arbitrators shall be required to render a written determination within thirty (30) days after the commencement of such arbitration proceedings. The written award of a majority of the arbitrators shall be final and binding upon the parties and judgment may be entered upon it in accordance with applicable law in Hyderabad court having jurisdiction thereof. All costs of any such arbitration shall be borne equally by the parties.

14.5.2. This Section shall not be construed to prohibit either party from seeking preliminary or permanent injunctive relief in any court of competent jurisdiction, however, the arbitrator hearing the dispute to which the injunction pertains will have the power to modify or dissolve any such injunction, or to order additional injunctive relief, in connection with the final arbitration award. The parties, their representatives, other participants, and the mediator and arbitrator shall hold the existence, content, and result of any mediation and arbitration in confidence except to the extent necessary to enforce a final settlement agreement or to obtain and secure enforcement of or a judgment on an arbitration decision and award.

14.6. No Agency.
Nothing contained herein shall be interpreted as creating an agency, partnership or joint venture between VSPLASH and you.

14.7. Amendment.
VSPLASH may without advance notice amend this Agreement from time to time, and will do so by posting the new Agreement on the VSPLASH website in place of the old. Each and every such amendment shall be become effective immediately for all pre-existing and future accounts. It is your responsibility to periodically check the VSPLASH website for updates of this Agreement.
 
     
     
 
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