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These IaaS Cloud Computing Terms and Conditions are applicable to and governed the Order(s) entered into between Customer and Supplier for the provision of IaaS Cloud Computing Services. Supplier and Customer are sometimes hereinafter referred to individually as a "Party" and collectively, as the "Parties".
If Customer is not a resident in any of the countries above the Supplier shall be Tata Communications (UK) Limited.
2.2 Term: The InstaCompute Service will be provided on an indefinite-time basis and may be terminated at any time (i) by Customer upon a prior written notice to Supplier or (ii) by Supplier upon a ninety (90) day prior written notice to Customer.
2.3 Fees: The Supplier shall charge the Services Fees to Customer as detailed in the Order(s). Supplier shall be entitled to increase or decrease its Service Fees upon a forty-five (45) day prior written notice to Customer.
2.4 Billing and Payment: Unless otherwise agreed between the Parties in writing, billing for the Supplier Services shall commence on the Service Commencement Time. Supplier shall invoice all Service Fees in accordance with the frequency, method, payment terms and currency set out in the Order and the relevant Service Description and in any case in advance except for charges that are dependant on usage which shall be billed in arrears. In the case of period billing any partial period shall be pro-rated (and monthly period shall be pro-rated based on a calendar month). Any amount due but not received by Supplier will accrue interest from thirty (30) days after the date of invoice to the date of payment, at the Interest Rate (pro-rated on a daily basis). Furthermore, Supplier shall have the right to set off any amounts due hereunder which are not paid when due against any amounts owed to Customer or its Affiliates by Supplier or its Affiliates pursuant to these Terms and Conditions or any other agreement between the Parties.
2.5 Credit Approval and Deposits: Supplier reserves the right to carry out a credit check of Customer at any time prior to acceptance of an Order or for the duration of any Order. Customer hereby authorizes, and shall assist, Supplier in obtaining information about the Customer’s commercial activities and financial condition from third parties, including, without limitation, banks, credit reporting agencies and other businesses that provide like information. Upon Supplier’s request, Customer will make a deposit, or other security for the payment of charges as specified by Supplier, (i) as a condition to Supplier’s acceptance of any Order, or (ii) in the event Customer fails to comply with the payment terms set forth in Section 2.4 twice in any twelve (12) month period, as a condition to Supplier’s continuation of delivery of any Service. The deposit will be held by Supplier as security for payment of the Service Fees. When Service to Customer is terminated, the amount of the deposit will be credited to Customer’s account and any remaining credit balance will be refunded within thirty (30) days of such termination. Customer shall be subject to the credit limit (the “Credit Limit”) as may be specified in the Order(s). The Credit Limit may be varied only with the written approval of Supplier. Supplier shall have the right at any time to increase or decrease the Credit Limit by giving at least three (3) days prior written notice to Customer. If at any time Supplier determines that the sum (the "Accrued Liability") of (i) total invoiced amounts which remain unpaid, plus (ii) the unbilled but accrued usage of Customer, has exceeded the then current Credit Limit, Supplier shall have the right to demand by written notice that Customer make an immediate payment to Supplier by electronic transfer (or such other method as agreed by the parties) of such amount required: (i) to reduce its aggregate Accrued Liability to less than the Credit Limit, and (ii) to ensure that the Credit Limit shall not be exceeded prior to the next invoice due date. Upon such demand, the demanded amount shall become immediately due and payable and Customer shall pay such amount within twenty-four (24) hours of its receipt of such notice. If Customer fails to remit such payment when due, Supplier shall have the right without further notice to suspend and/or terminate the Services.
2.6 Taxes and Fees:
(a) All charges for Services are net of applicable taxes. Except for taxes based on Supplier's net income, Customer will be responsible for payment of all applicable VAT, GST, consumption tax, use, excise, access, bypass, franchise, regulatory or other similar taxes, fees, charges or surcharges, whether now or hereafter enacted, however designated, imposed on or based on the provision, sale or use of the Supplier Services (hereinafter "Taxes"). To the extent Customer is or believes it is exempt from payment of certain Taxes, it shall provide to Supplier a copy of a valid exemption certificate. Supplier will give effect to all valid exemption certificates in the next full billing cycle following receipt of the certificate from Customer, but only to the extent Supplier is permitted to do so under applicable laws. Notwithstanding the foregoing, in the event that a Customer exemption certificate is or becomes invalid during the term of any Order, and Supplier is assessed or responsible for additional Taxes, penalties or late charges, Customer shall be responsible for such charges in accordance with this Section 2.6.
(b) If Customer is or was required by law to make any deduction or withholding from any payment due hereunder to Supplier, then, notwithstanding anything to the contrary contained herein, the gross amount payable by Customer to Supplier will be increased so that, after any such deduction or withholding for Taxes, the net amount received by Supplier will not be less than Supplier would have received had no such deduction or withholding been required. If any taxing or Governmental Authority asserts that Customer should have made a deduction or withholding for or on account of any Taxes with respect to all or a portion of any payments made hereunder, or that Supplier should have collected certain Taxes from Customer which Supplier did not collect, Customer hereby agrees to indemnify Supplier for such Taxes and hold Supplier harmless on an after-tax basis from and against any Taxes, interest or penalties levied or asserted in connection therewith.
2.7 Disputed Bills: In the event Customer disputes in good faith any portion of Supplier's invoice, Customer must pay the undisputed portion of the bill and submit a written claim for the disputed amount, documenting the basis of its claim. All claims must be submitted to Supplier within forty-five (45) days of receipt of billing for those Supplier Services. Customer acknowledges and agrees that it is able to and that it is reasonable to require Customer to dispute bills within that time and Customer therefore waives the right to dispute the charges not disputed within the time frame set forth above.
2.8 Services Provided by Supplier Affiliates: If an Order requires the provision of Service to Customer in a jurisdiction other than a jurisdiction within which Supplier is authorized to provide services, such Service may be provided to Customer by an Affiliate of Supplier and the Supplier acts as the agent of that Affiliate for the Services in that jurisdiction.
2.9 Software Licenses: Customer may be provided with the right to use certain Software which shall be governed by the terms of the relevant Software licence terms available at the Website. Customer agrees, acknowledges and authorizes Supplier to enter into relevant Software license in Customer's name as a client to satisfy any Software license terms and third party Software license terms so as to accomplish any Services of Supplier pursuant to this Terms and Conditions. Customer agrees and acknowledges that Supplier is not renting any client software to Customer.
2.10 Demarcation of Responsibilities: For the avoidance of doubt, the Supplier is only responsible for providing management of server host hardware including storage and a web based portal for overall management of the Service and, if requested by Customer and agreed by Supplier, the provision of the Software. Customer is responsible for managing and operating the Software including but not limited to patch management, upgrades, antivirus, system security, application programs and data. Customer is also responsible for managing and configuring its use of the Service (via the Website and any application interface provided) including but not limited to user access administration, security controls and payment information.
3.2 Resale of Services: In the event of resale or sublicense of Services the Customer shall not (i) refer to Supplier in any marketing or service literature except with Supplier's prior written consent; and/or (ii) act or purport to act on behalf of Supplier. The Parties acknowledge and agree that any resale or sublicense by Customer of the Services shall not relieve Customer of its obligations under any applicable Order or these Terms and Conditions.
3.3 Misuse of the Services: Customer shall be responsible for the use of the Services and shall not use the Services nor allow the Services to be used to transmit, distribute or store contents or messages (including e-mail messages) which are inappropriate (including, but not limited to, obscene (including child pornography), defamatory, libellous, threatening, abusive, hateful, or excessively violent), harmful (including, but not limited to, viruses, worms, password-cracking programs or Trojan horses), and/or fraudulent or misleading (including, but not limited to, false, deceptive, or misleading statements, claims, or representations), as reasonably determined by Supplier in accordance with generally accepted standards of the Internet community, nor to transmit or distribute unsolicited e-mail messages where such e-mail messages could reasonably be expected to provoke complaints (spam).
3.4 Unauthorised or Fraudulent Use of the Service: Customer shall be responsible for (save as to the extent caused by any acts or omissions of the Supplier), take all reasonable measures to avoid and immediately notify the Supplier in the event of any unauthorised or fraudulent use of the Service. Customer will be solely responsible for all charges incurred in respect of the Services even if such charges were incurred through or as a result of such fraudulent or unauthorised use of the Services.
4.2 Representations and Warranties of Supplier: Supplier represents and warrants that (i) it has the legal right and authority, and will maintain the legal right and authority for the duration of the Agreement, to provide the Supplier Services ordered by Customer hereunder; (ii) the performance of Supplier's obligations under these Terms and Conditions will not violate any applicable law, rule or regulation; and (iii) Supplier is authorized and has completed all required corporate actions necessary to execute the applicable Order Form(s).
4.3 Contact Information: Customer shall keep updated its contact and payment details via the Website at all times.
4.5 Customer Network Security: Customer is responsible for maintaining the security of its internal network from unauthorized access through the Internet. Supplier shall not be liable for unauthorized access to Customer's network or other breaches of Customer's network security.
4.6 Anti-Bribery: Customer shall not make or offer to make any payment or gift directly or indirectly to any employee, officer or representative of any government, political party or candidate for political office under circumstances in which such payment could constitute a bribe, kickback or illegal payment under United States and similar laws of any other Governmental Authority. Without limiting the generality of the foregoing, under no circumstances shall Customer make, cause or authorise any third party to make or cause any bribes, kickbacks, or illegal payments for the purpose of influencing a person's acts or decisions or in order to obtain or retain business in connection with the Services received hereunder. Customer agrees to comply with all applicable anti-bribery laws (including but not limited to the U.S Foreign Corrupt Practices Act and the Corruption of Public Officials Act of Canada).
4.7 Export Control: The Parties acknowledge that products, software, and technical information (including, but not limited to Service, technical assistance and training) provided under these Terms and Conditions or used by the Customer in connection to the Services, may be subject to export laws and regulations of the USA and other countries, and any use or transfer of the products, software, and technical information must be in compliance with all applicable regulations. The Parties will not use, distribute, transfer, or transmit the products, software, or technical information (even if incorporated into other products) except in compliance with all applicable export regulations. If requested by either Party, the other Party also agrees to sign written assurances and other export-related documents as may be required to comply with all applicable export regulations.
4.8 Data Storage and Retention: Customer acknowledges and agrees that the Supplier shall not be responsible for any data stored by the Customer using the Services. Notwithstanding the above the Customer may copy such data using the Services to a separate location at any time.
5.2 IP Addresses: The Parties acknowledge and agree that Supplier may provide Customer the right to use certain IP addresses owned and/or licensed by Supplier in connection with the provision of the Services. Customer acknowledges and agrees on termination of the Agreement for any cause Customer's right to use such IP addresses shall automatically terminate.
5.3 Customer Data: Customer shall exclusively own all rights, title and interest in and to the Customer Data and shall bear sole responsibility for legal obligations associated with the same, including but not limited to compliance with any laws applicable to Intellectual Property Rights, regulatory compliance, accuracy, integrity and legality.
6.2 Damages: NOTWITHSTANDING ANY OTHER PROVISION HEREOF, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS, LOST REVENUES, LOSS OF GOODWILL, LOSS OF ANTICIPATED SAVINGS, LOSS OF CUSTOMERS, LOSS OF DATA, INTERFERENCE WITH BUSINESS OR COST OF PURCHASING REPLACEMENT SERVICES) ARISING OUT OF THE PERFORMANCE OR FAILURE TO PERFORM UNDER ANY ORDER OR THESE TERMS AND CONDITIONS, WHETHER OR NOT CAUSED BY THE ACTS OR OMISSIONS OR NEGLIGENCE OF ITS EMPLOYEES OR AGENTS, AND REGARDLESS OF WHETHER SUCH PARTY HAS BEEN INFORMED OF THE POSSIBILITY OR THE LIKELIHOOD OF SUCH DAMAGES; PROVIDED HOWEVER, THAT THE FOREGOING LIMITATIONS SHALL NOT APPLY TO THE PARTIES' INDEMNITY OBLIGATIONS CONTAINED HEREIN.
6.3 Personal Injury and Death, Fraud and Wilful Misconduct: Nothing in these Terms and Conditions shall be construed as limiting the liability of either Party for (i) personal injury or death resulting from the negligence of a Party or its employees; (ii) fraud (including fraudulent misrepresentation); or (iii) wilful misconduct (including repudiatory breach).
6.4 Limitation: Supplier's sole liability and Customer's sole remedy for damages arising out of the furnishing or the failure to furnish Supplier Services (including but not limited to mistakes, omissions, interruptions, failure to transmit or establish connections, delays, errors or other defects) is limited to any applicable credit allowances due and/or Customer's right to terminate a particular Service under the applicable Service level target as set forth in the SLA.
6.5 Disclaimer of Warranties: EXCEPT FOR WARRANTIES EXPRESSLY MADE IN THESE TERMS AND CONDITIONS, SUPPLIER MAKES NO WARRANTIES OR REPRESENTATIONS EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, AND FITNESS FOR A PARTICULAR USE OR NON-INFRINGEMENT.
7.2 Additional Termination or Suspension by Supplier: Supplier shall have the right, upon written notice, to immediately terminate and/or suspend any Order(s), and/or discontinue or suspend the delivery of the affected Supplier Services (without liability) in the event that:
(a) Customer has violated any law rule, regulation or policy of any Governmental Authority related to the Supplier Services or Customer's or an End User's use thereof, or Sections 3.3 or 4.6; or
(b) In the event Supplier receives any direction, notification or instruction from any Governmental Authority (or any independent Internet content monitoring entity) to suspend or terminate the provision of Services to Customer (through no fault or negligence of Supplier).
7.3 Supplier's Remedies: In the event Supplier terminates an Order because of any reasons set forth in Section 7.1 or 7.2, then Customer agrees to pay to Supplier the fixed monthly recurring charges and/or any other fixed minimum charges for the remaining of the initial monthly term or the then current monthly renewal term.
8.2 Service Unavailability Credits: The Service Unavailability Credit shall be a percentage of the Monthly Recurring Charge for the Affected Service, capped at 20% of MRC, as follows:
8.3 Exclusions: Customer is not entitled to receive a Service Availability Credit for Service Unavailability associated with:
Scheduled maintenance events;Force Majeure Events; Unavailability of the Website;Failures or malfunctions in any customer software, equipment or technology; and/or
If Customer is in breach of these Terms and Conditions, including but not limited to its payment obligations and the AUP.
For the avoidance of doubt, Customer access to Supplier MPLS backbone services and IP connectivity services are excluded from this SLA and are covered in separate service level agreements. Only access from the IaaS Cloud Computing Service platform to Supplier Network services (i.e. Internet and MPLS) is covered under this SLA.
8.4 Service Unavailability Credits Request Process: In order to receive a Service Unavailability Credit, Customer must provide Supplier with a written request for a Service Unavailability Credit within thirty (30) days of the event giving rise to the Service Unavailability Credit. The written request must include a description of the Unavailability including date, time and duration and documentation showing proof of it (i.e. monitoring or system logs).
9.2.1 Customer and Supplier must treat as confidential information: (a) the provisions of these Terms and Conditions; and (b) all information provided to a Party by the other Party under any Order, including without limitation technical, operational, marketing, billing, pricing and commercial information in relation to the supply of Services.
9.2.2. Notwithstanding the foregoing, confidential information shall not include information that: (a) is independently developed by the receiving Party; or (b) is lawfully received by the receiving Party free of any obligation to keep it confidential; or (c) becomes generally available to the public other than by breach of this Section 9.2.
9.2.3 The confidential information shall remain the property of the relevant Party. Each Party shall maintain the confidentiality of the confidential information of the other Party using at least the same degree of care as it employs in maintaining as secret its own trade secret, proprietary and confidential information but in any event always at least a reasonable degree of care. A Party must not disclose the other Party's confidential information to any person except: (a) to its employees (which for Supplier includes its Affiliates' and its third party service providers' employees) on a 'need-to-know' basis provided those persons first agree to observe the confidentiality of the information; (b) to legal and financial advisers; (c) with the other party's prior written consent; or (d) if required by law, any stock exchange, or any Governmental Authority.
9.3 Consent to Disclose: Supplier reserves the right to provide any customer or potential customer bound by a nondisclosure agreement access to a list of Supplier's customers and a description of the Services purchased by such customers. Customer consents to such disclosure; including the listing of Customer's name and the Services purchased by Customer (financial terms relating to the purchase shall not be disclosed).
9.4 Contents of Communications: Supplier does not monitor and will have no liability or responsibility for the content of any communications transmitted via the Services, and Customer will indemnify, defend and hold Supplier harmless from any and all claims (including claims by any Governmental Authority seeking to impose penal sanctions) related to such content or for claims by third parties relating to Customer's use of the Service.
9.5 Application of Tariffs: In the event Supplier is required to file tariffs with a Governmental Authority, the terms set forth in the applicable tariff shall govern Supplier's delivery of, and Customer's consumption or use of, such Service but only to the extent required by law, rule or regulation. In the event that there is any material change required to the Terms and Conditions and/or the Service Fees then Customer shall have a right to terminate the affected Service.
9.6 Customer Personal Information: The Customer acknowledges and agrees that Supplier may use, process and/or transfer Personal Information of the Customer and/or its employees (including intra-group transfers, transfers to third parties and transfers between countries): (i) in connection with the provision of Services; (ii) to incorporate such Personal Information into databases controlled by Supplier for the purpose of account administration, billing and reconciliation, operational maintenance and support activities, fraud detection and prevention, and customer and market analysis and reporting; and (iii) to communicate to the Customer by voice, letter, fax or email regarding products and services of Supplier. If Customer believes that, in the course of providing Services under these Terms and Conditions, Supplier will have access to data Customer does not want Supplier personnel to comprehend, Customer should encrypt such data so that it will be unintelligible.
9.7 Content of the Internet: Supplier provides only access to the Internet. Supplier does not operate or control the information, services, opinions or other content of the Internet, and Supplier makes no warranties or representations regarding any such information, services, opinions or other content. Customer agrees that it shall make no claim whatsoever against Supplier relating to the content of the Internet or respecting any information, product, service or software ordered through or provided by virtue of the Internet. Supplier reserves the right to take such measures as may be reasonably necessary, in Supplier's sole discretion, to ensure security and continuity of service on the Supplier Network, including but not limited to identification and blocking or filtering of Internet traffic sources which Supplier deems to pose a security or operational risk or a violation of its AUP. In addition, Customer understands that Supplier does not own or control other third party networks outside of the Supplier Network, and Supplier is not responsible or liable for any filtering or access restrictions imposed by such networks or for the performance (or non-performance) within such networks or within interconnection points between the Supplier Network and other third party networks.
9.8 Force Majeure: Except for Customer's payment obligations under these Terms and Conditions and/or any Order, neither Party shall be liable, nor shall any credit allowance or other remedy be extended, for any performance that is prevented or hindered due to a Force Majeure Event. If Supplier is unable to provide Supplier Services for a period in excess of thirty (30) consecutive days for any reason set forth in this Section, then either Party may cancel the affected Order upon written notice to the other Party, and both Parties shall be released from any further future liability under that particular Order.
9.9 Governing Law; Dispute Resolution: These Terms and Conditions and any Order shall be governed by the laws of the jurisdiction of the Supplier and the Parties irrevocably submit to the non-exclusive jurisdiction of the courts of the jurisdiction of the Supplier. In the event a Supplier Invoice is not disputed and Customer simply fails to pay, then Supplier may seek to recover the sum due in any court of competent jurisdiction without reference to its conflicts of law and Customer hereby submits to the jurisdiction of any such court.
9.10 Severability; Waiver: In the event any provision of these Terms and Conditions is held by a court of competent jurisdiction to be invalid, void or unenforceable, such offending provision(s) shall be stricken and the remainder of these Terms and Conditions shall remain legal, valid and binding. The failure by either Party to exercise or enforce any right conferred by these Terms and Conditions shall not be deemed to be a waiver of any such right nor to operate so as to bar the exercise or enforcement of any such or other right on any later occasion.
9.11 Assignment: Neither Party may assign an Order without first obtaining the other Party's written consent; except that, however, Supplier may assign any Order(s) to an Affiliate or as part of a corporate reorganization, consolidation, merger or sale of substantially all of its assets by providing advance written notice to Customer of any such proposed assignment. Any purported assignment in contravention of this clause shall be invalid and the assigning Party shall remain bound. These Terms and Conditions will bind and inure to the benefit of each Party and each Party's successors and permitted assigns.
9.12 Notice:(a) From Customer. Any routine notice or communication must be sent using the Website. Any legal notice or communication can be sent by Customer by electronic email or courier, to the following address:
Tata CommunicationsTata Communications Exchange35 Tai Seng Street #06-01Singapore 534103Att. Legal DepartmentEmail: LegalDepartment@tatacommunications.com
Such notice will be deemed to have been given as of the date it is sent or delivered, as applicable.
(b) From Supplier. Any routine notice or communication must be sent to the individual(s) nominated by Customer as its contact(s) by electronic email, courier or facsimile at the address set forth in the Order(s) or at such other address as may hereafter be furnished. Such notice will be deemed to have been given as of the date it is sent, delivered or faxed, as applicable.
9.13 Relationship of Parties: Supplier and Customer are independent contractors and these Terms and Conditions will not establish any relationship of partnership, joint venture, employment, franchise or agency between Supplier and Customer.
9.14 Changes to these Terms and Conditions: Supplier may modify these Terms and Conditions upon a thirty (30) day notice to Customer upon which such modification shall be effective, provided, however, that, upon receipt of such notice Customer may terminate any Order without termination liability by delivering a written thirty (30) day notice of termination no later than thirty (30) days after the effective date of the change notification.
9.15 Third Party Beneficiaries: Supplier and Customer agree that there shall be no third party beneficiaries to these Terms and Conditions or any Order, including, but not limited to, any sublicensee or End User of Customer or the insurance providers for either Party. To the extent it is allowed by law any legislation in any relevant jurisdiction giving rights to third parties is hereby excluded.
9.16 Entire Understanding: These Terms and Conditions (including any applicable Order(s)) constitute the entire understanding of the Parties related to the subject matter hereof. All prior written or oral agreements, understandings, communications or practices between Customer and Supplier, with the exception of any fraudulent misrepresentation, are hereby superseded and withdrawn and shall have no legal effect insofar as they relate to the Supplier Services hereunder. These Terms and Conditions may be amended only in writing signed by a duly authorized representative of each of Supplier and Customer. In the event of any conflict between the documents comprising the Agreement, precedence shall be given to the documents in the following order: (i) the Order; (ii) and these Terms and Conditions.