General Terms and Conditions of Service
THIS GENERAL TERMS AND CONDITIONS OF SERVICE AGREEMENT (“Agreement”) is made effective as of the Effective Date, by and between you (“Customer”, “You”, whether or not capitalized), and BGP Consultancy Pte. Ltd. and/or its Affiliates (“BGPNET”). Use of BGPNET’s service constitutes acceptance and agreement to this Agreement.
As used in this Agreement, the following terms have the following meanings:
“Acceptable Use Policy” or “AUP” means BGPNET’s Acceptable Use Policy, which Customer agrees to adhere to, and is attached to this Agreement as Exhibit B and also online at http://www.bgp.net/aup/.
“Affiliates” means any business entity in which BGPNET has an ownership interest or an affiliation. As of the Effective Date, Affiliates include RackIP Pte. Ltd.
“Customer End User” means a third party or its Affiliate which is an end user of a Customer Offering.
“Customer Offering” means services created by Customer, based in whole or in part on the Services, which are used by authorized third parties.
“Confidential Information” means all information disclosed by one of the parties to the other, whether before or after the Effective Date of the Agreement, that the recipient should reasonably understand to be confidential, including: (i) for Customer, all information transmitted to or from, or stored on, your BGPNET servers or other devices, (ii) for BGPNET, unpublished prices and other terms of service, audit and security reports, data center designs, and other proprietary technology, and (iii) for the both parties, information that is marked or otherwise conspicuously designated as confidential. Information that is developed by one of the parties on its own, without reference to the other’s Confidential Information, or that becomes available to one of us other than through a violation of the Agreement or applicable law, shall not be “Confidential Information” of the other party.
“Customer Content” means all data, text, pictures, sound, graphics, logos, marks, symbols, video, and other materials supplied by Customer to BGPNET pursuant to this Agreement, as such materials may be modified from time to time.
“Domain Name” means, collectively, the domain name or names specified for the Website by Customer from time to time, which are listed in the Service Orders.
“Effective Date” means the date on which Customer first install, order and/or begin using the Services
“BGPNET Facility” means BGPNET’s Internet-based data center and network.
“Service” or ‘Services” means the website or server hosting, network access, and other online delivery, maintenance, and support services provided by BGPNET to Customer hereunder, as described in Section 4.1 below.
“Service Order” shall mean orders for Services on BGPNET’s standard service order forms, quotes, invoices, and/or professional services engagement agreements. Each Service Order will contain specific provisions with respect to prices, features, description of service, duration and other terms as appropriate.
“SLA” means the service level agreement attached hereto as Exhibit A.
“Term” has the meaning ascribed to it in Section 3.1, below.
“Website” means, collectively, all websites and content hosted by BGPNET for Customer in the configuration and according to the terms contained in the Agreement and Service Orders.
- MASTER AGREEMENT
- TERM AND TERMINATION
3.1. TERM. The term of this Agreement shall commence on the Effective Date and shall continue in effect for the period specified on the Service Order. Thereafter, this Agreement shall automatically renew for successive one-year periods unless the Service Order is for month-to-month terms unless Customer notifies BGPNET in writing of its desire not to renew this Agreement at least 30 days prior to the expiration of the then-current term. The initial term and any and all renewal terms are referred to herein as the “Term.”
3.2. DEFAULT. If either party is in breach of this Agreement or any Service Order (other than for failure by Customer to pay any undisputed amounts, which is covered in Section 6.8), the non-breaching party shall give the breaching party thirty (30) calendar days’ notice in writing of such breach. If the breach has not been cured to the non-breaching party’s reasonable satisfaction within the thirty (30) day period, then the non-breaching party may terminate the applicable Service Order, without penalty, effective at the end of such thirty (30) day period immediately upon written notice to the breaching party. No termination for breach pursuant to this Section shall constitute or permit termination of any portions of this Agreement or any Service Order not breached or affected by such breach.
3.3. EARLY TERMINATION. Customer may cancel services with contracted terms within the initial 30 days by providing BGPNET with written notice within the initial 30 days. BGPNET does not offer any refunds and services will be terminated at the end of the 30 day term, any obligation for future monthly payments will be cancelled. This is conditioned on Customer returning any software and/or hardware that was provided to Customer under this Agreement and/or Service Order. If Customer terminates or cancels service under any Service Order for reason other than BGPNET’s breach prior to such Service Order’s agreed expiration date, Customer will pay BGPNET (a) a termination fee that includes all non-recurring, disconnection or termination charges reasonably incurred by BGPNET; and (b) the full amount of the remaining monthly charges due and payable within five (5) days after the effective date of termination of the Service Order.
3.4. NO RETURN OF DATA. Upon the termination of this Agreement, BGPNET will remove and erase the Customer Content. It is NOT BGPNET’s duty, responsibility, or contractual obligation to return the Customer Content to Customer before it is removed and erased from BGPNET’s equipment. It is Customer’s sole responsibility to obtain copies of the Customer Content before such termination.
- RESPONSIBILITIES OF THE PARTIES
4.1. RESPONSIBILITIES OF BGPNET
Provision of Services. BGPNET will provide the Services, subject to the terms of the Agreement. BGPNET grants Customer a non-exclusive, non-transferable, non-sublicenseable, revocable right to: (a) use and access the Services for internal purposes; and (b) use the Services to create, offer and provide Customer Offerings. BGPNET retains the right to reject a request for Services. BGPNET may change, discontinue, add, modify, re-price or remove features or functionality from the Services upon notice to Customer provided through the Customer Portal. It is Customer’s responsibility to review the Customer Portal for such notices on a frequent basis. If Customer continue to use the Services following any such modification, Customer will be deemed to have accepted such modification.
4.2. RESPONSIBILITIES OF CUSTOMER
5.1. ACCESS TO FACILITY
(a) Customer shall not have access to the BGPNET Facility unless Customer obtains written consent from the BGPNET’s management.
(b) If BGPNET’s management agrees to provide access to the BGPNET Facility to customer by such written consent under Section 5.3(a), Customer shall be required to comply with BGPNET and any third-party landlord’s rules and procedures with respect to entry into the BGPNET Facility.
5.2. RELOCATION OF EQUIPMENT. In the event that it becomes necessary to transfer or move the BGPNET Facility, or to relocate the equipment used to provide Services to another physical hosting site, Customer hereby consents to any such transfer, move, or relocation that may occur during the Term. BGPNET shall provide Customer two (2) weeks advance written notice of such relocation. For purposes of the SLA, such relocation shall be deemed Planned Downtime, as defined in the SLA.
5.5. CONNECTIVITY. Customer agrees that connectivity shall not exceed the number of megabits per second per month for the Services ordered by Customer on any Service Order. If connectivity exceeds the agreed upon number of megabits per second per month, BGPNET, in its sole discretion, may (i) assess additional standard charges (as provided in the Service Order), and if such charges are not paid within five (5) days after written notice, Customer shall be in default of this Agreement; or (ii) rate limit the amount of connectivity Customer can use up to the amount specified in the Service Order, and BGPNET shall have all of its rights and remedies set forth in Section 3.2 above. In the event that BGPNET elects to discontinue the Services or terminate this Agreement, Customer shall not be entitled to a refund of any fees paid in advance of such action. BGPNET’s failure to take any such action in a given month or months shall not constitute a waiver of BGPNET’s right to take any such action under this Section in a future month.
6.1. MONTHLY RECURRING CHARGES. Installation and all other non-recurring charges, and monthly recurring charges will be set at the rates set forth for the specific Service Order. Except for usage-based Services, which are billed in arrears, the Services are billed one (1) month in advance and the first billing cycle may include a partial month and full month of Services. All fees and charges are payable for the duration of the Term, regardless of whether Customer actually uses the Services.
6.2. TAXES AND OTHER FEES. Prices established in this Agreement and the applicable Service Order are exclusive of taxes and other fees which may be imposed on BGPNET or Customer for the provision or use of the Services. Customer will pay such taxes and other fees, except for BGPNET’s respective taxes and other fees under the laws of the Republic of Singapore.
6.3. NON-RECURRING CHARGES. Non-recurring charges will be due from Customer upon signing of the applicable Service Order.
6.4. TERMS OF PAYMENT. Charges for all services are due and payable upon receipt of an invoice by Customer. All payments shall be made in U.S. currency without any deduction or offset except as specifically provided in writing by BGPNET.
6.5. SERVICE CHARGE. If Customer does not pay the amount due (or for non-recurring charges, within ten (10) days following receipt of the Service Order), Customer will pay a late payment interest at the rate of one and one half percent (1.5%) of the amount due per month or such other rate or rates as may be permitted under applicable law.
6.6. PAYMENT METHOD. Customer will be billed charges each month by billing Customer’s credit card or, where available, by invoice for payment due by electronic funds transfer, or by such other method as approved by BGPNET. By providing credit card information, including relevant personal data, Customer agrees BGPNET can use such information to process payment of charges. Payment of charges will be automatic on the due date. Customer is responsible to keep information current to avoid service disruption and a late payment fee of US Dollar (“USD”) 20 (or equivalent in local currency).
6.7. REFUNDS & DISPUTES. All fees paid for Services are non-refundable. If Customer believe that any fee for the Services is incorrect, Customer’s exclusive remedy is to seek SLA credits by opening an accounting ticket within 15 days of Customer’s receipt of the disputed bill. Any charges not disputed by Customer within 15 days of receipt will be deemed conclusively accepted by Customer. Customer may not chargeback any credit card payments to BGPNET and any such chargeback will result in an additional payment to BGPNET of up to USD 500, which Customer agrees is a reasonable estimate of BGPNET’s additional administrative costs. Customer is responsible for any fees and costs (including, but not limited to, reasonable attorneys’ fees, court costs and collection agency fees) incurred by BGPNET in enforcing collection of fees.
6.8. SUSPENSION OR TERMINATION OF SERVICES. If payment in full for Services performed under any Service Order (other than for payments validly disputed by Customer in good faith) is not received on its due date, BGPNET shall have the right to suspend Services until such time as Customer has paid such charges in full, including any late fees. BGPNET shall give Customer written notice of its right to suspend Services and provide Customer seven (7) day advance notice from delivery before such suspension. Following such payment, BGPNET shall immediately reinstate the Services. Failure by Customer to pay for such Services within seven (7) days after any suspension shall be deemed to constitute a termination of the Services. At such termination, all remaining payments to BGPNET under the relevant Service Order shall be due immediately. No cancellation or termination under this Section shall relieve Customer from its obligations to pay for Services under any Service Order not so cancelled or terminated.
- DISCLAIMER OF WARRANTIES
7.1. CUSTOMER ASSUMES TOTAL RESPONSIBILITY AND RISK FOR CUSTOMER’S USE AND ITS END USERS’ USE OF SERVICES PROVIDED BY BGPNET. CUSTOMER ACKNOWLEDGES THAT THE INTERNET (1) CONTAINS MATERIALS SOME OF WHICH ARE SEXUALLY EXPLICIENT OR MAY BE OFFENSIVE TO SOME PEOPLE AND (2) IS ACCESSIBLE BY PERSONS WHO MAY ATTEMPT TO BREACH THE SECURITY OF BGPNET AND/OR CUSTOMER’S NETWORK FACILITIES. BGPNET HAS NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY OR RESPONSIBILITY WHATSOEVER FOR THE CONTENT OR MATERIALS TRANSMITTED OVER THE INTERNET, SERVICE INTERRUPTIONS ATTRIBUTABLE TO CUSTOMER’S NETWORK, AND CUSTOMER EQUIPMENT FAILURES, OR ANY OTHER SUCH CAUSES, AND CUSTOMER AND CUSTOMER’S END USERS ACCESS THE SERVICES AT THEIR OWN RISK.
7.2. EXCEPT AS EXPRESSLY PROVIDED IN BGPNET ‘S SLA, ALL SERVICES ARE FURNISHED BY HOST AND ACCEPTED BY CUSTOMER “AS IS,” “WITH ALL FAULTS,” AND WITHOUT ANY WARRANTY WHATSOEVER. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE, ARE SPECIFICALLY EXCLUDED AND DISCLAIMED BY BGPNET. BGPNET DOES NOT WARRANT THAT ANY PRODUCT OR SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR THAT IT WILL BE UNINTERRUPTED OR ERROR FREE. NO ADVICE OR INFORMATION GIVEN BY BGPNET, ITS AFFILIATES, ITS CONTRACTORS, ITS AGENTS, OR THEIR RESPECTIVE EMPLOYEES SHALL CREATE A WARRANTY OF ANY TYPE OR NATURE.
- LIMITATION OF LIABILITY
8.1. IN NO EVENT WILL BGPNET BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR ANY LOST PROFITS, LOST SAVINGS, LOST DATA, OR SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES, WHETHER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY PRODUCT OR SERVICE FURNISHED OR TO BE FURNISHED UNDER THIS AGREEMENT OR OTHERWISE, EVEN IF BGPNET HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. NOTWITHSTANDING ANYTHING IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE MONETARY LIABILITY OF BGPNET AND ANY OF ITS EMPLOYEES, AGENT, SUPPLIERS, OR AFFILIATES, UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) SHALL NOT EXCEED AN AMOUNT EQUAL TO THE SUM OF THE PAYMENTS MADE BY CUSTOMER TO BGPNET DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE EVENT FOR WHICH LOSSES OR DAMAGES ARE CLAIMED.
8.2. THIRD PARTY PRODUCTS AND SERVICES. Without limiting the foregoing Section 8.1, BGPNET will have no responsibility for the adequacy or performance of (i) any third party software provided to BGPNET under this Agreement; (ii) any hardware; and (iii) any services provided by any third party.
8.3. DATA CONTROL, BACKUP SERVICES, AND RESPONSIBILITY
(a) Customer is responsible for its Customer Content. Customer is responsible for maintaining its own procedures for the reconstruction of lost or altered files, backup or saving data or programs to the extent deemed necessary by Customer and for actually reconstructing any lost or altered files, data or programs. BGPNET assumes no responsibility for the protection of Customer’s data. BGPNET is not liable for damage to software or data caused by the Services. Customer agrees that it shall have the sole responsibility for safeguarding the software and data. BGPNET is not liable for software damage due to any outside factor, i.e., software virus.
(b) In the event that Customer purchases backup services with BGPNET, BGPNET shall use reasonable skill and due care in providing such backup services, but, TO THE GREATEST EXTENT PERMISSIBLE BY APPLICABLE LAW, BGPNET DOES NOT GUARANTEE OR WARRANT THAT ANY CONTENT CUSTOMER MAY STORE, ACCESS, OR BACK UP WILL NOT BE SUBJECT TO INADVERTENT DAMAGE, CORRUPTION, LOSS, OR REMOVAL IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT, AND BGPNET SHALL NOT BE RESPONSIBLE SHOULD SUCH DAMAGE, CORRUPTION, LOSS, OR REMOVAL OCCUR. It is Customer’s responsibility to maintain appropriate alternate backup of Customer Content.
(c) In the event that Customer purchases backup services with BGPNET, Customer will have a quota of storage space with BGPNET. If such quota has been met or exceeded, the backup of Customer’s data will fail. BGPNET will open a ticket to ask Customer to upgrade, but if Customer does NOT upgrade with additional storage space and/or remove Customer Content to be below the quota, the backup service will still fail. Any restoration of Customer Content can only be restored from the last completed backup.
(d) Regardless of the Services ordered by Customer, Customer is responsible for backing up, to Customer’s own computer(s) or other device, any Customer Content that Customer stores or accesses via the Services. BGPNET shall use reasonable skill and due care in providing the Services, but BGPNET does not guarantee or warrant that any Customer Content that customer may store or access through the Services will not be subject to inadvertent damage, corruption or loss.
9.1. Customer shall defend BGPNET against any third party claim, action, suit, or proceeding alleging facts that (if true) would constitute a breach of any covenant contained in Section 4.2(c), and Customer shall indemnify BGPNET for all losses, damages, liabilities, costs, and expenses (including without limitation, reasonable attorney fees) incurred by BGPNET as a result of a final judgment entered against BGPNET in any such claim, action, suit, or proceeding.
9.2. BGPNET INDEMNITY. BGPNET will defend and indemnify Customer, its employees, directors, officers and agents, from and against any suit, proceeding or other claim brought by an entity (not a party to or an affiliate of a party to this Agreement) that is caused by, arises from, or relates to damage to real or tangible personal property or personal injuries (including death) arising out of the gross negligence or willful act or omission of BGPNET in the provision of Services.
9.3. INDEMNITY PROCEDURE. An indemnifying party’s obligations under this Section 9 are conditioned on the indemnified party: (a) giving the indemnifying party prompt written notice of any claim, action, suit, or proceeding for which the indemnified party is seeking indemnity under Section 9.1 or 9.2; (b) granting control of the defence and settlement to the indemnifying party; and (c) reasonably cooperating with the indemnifying party at the indemnifying party’s expense.
- FORCE MAJEURE
In no event shall either party have any claim or right against the other arty for any failure of performance (except for BGPNET’s right to seek payment of all accrued charges) due to causes beyond that party’s reasonable control, including, but not limited to: acts of God, fire, explosion, vandalism, fiber optic cable cut, storm, flood or other similar catastrophes; any law, order, regulation, direction, action or request of the United States Government, or of any other government, including state and local governments having or claiming jurisdiction over either of the parties or of any department, agency, commission, court, bureau, corporation, or other instrumentality of any one or more said governments, or of any civil or military authority; national emergencies; unavailability of materials or rights-of-way; insurrections; acts of terrorism; riots; wars; strikes; lock-outs, work stoppages or other labor difficulties; or supplier failures, shortages, breaches or delays.
- INTELLECTUAL PROEPRTY RIGHTS
Subject to the license granted to BGPNET in Section 4.2(x), neither party shall use any copyrights, patents, trade secrets, trademarks, trade names, service marks, license rights or other intellectual property rights (collectively “Intellectual Property”) owned, licensed or used by the other party. Upon the expiration or termination of this Agreement or any applicable Service Order, any Intellectual Property, including any copies thereof, shall be returned to the other party. Each party hereby disclaims any right, title and interest in any Intellectual Property owned, used, or licenses by the other party.
- IP ADDRESS OWNERSHIP
BGPNET shall maintain and control ownership of all IP numbers and addresses that may be assigned to Customer by BGPNET. BGPNET reserves, in its sole discretion, the right to change or remove any and all such IP numbers and addresses upon five (5) days prior written notice to Customer.
- CONFIDENTIAL INFORMATION
The parties agree not to use the other’s Confidential Information except in connection with the performance or use of the Services, as applicable, the exercise of the parties’ respective legal rights under the Agreement, or as may be required by law. Each of us agrees not to disclose the other’s Confidential Information to any third person except as follows: (i) to our respective service providers, agents and representatives, provided that such service providers, agents or representatives agree to confidentiality measures that are at least as stringent as those stated in this Agreement; (ii) to law enforcement or government agency if requested, or if either of us reasonably believes that the other’s conduct may violate applicable criminal law; (iii) as required by law; or (iv) in response to a subpoena or other compulsory legal process, provided that each of us agrees to give the other written notice of at least seven (7) days prior to disclosing Confidential Information under this subsection (or prompt notice in advance of disclosure, if seven days advance notice is not reasonably feasible), unless the law forbids such notice.
During the Term and for twelve (12) months thereafter, Customer agrees that Customer, either on Customer’s own behalf or in conjunction with any third party, will not directly or indirectly solicit BGPNET’s employees, independent contractors or agents for employment, consulting or other services for either Customer or any third party without the prior written consent of BGPNET.
- GENERAL PROVISIONS
15.1. FUTHER ASSURANCES. Each party shall execute all documents and exhibits and perform all acts deemed required by this Agreement.
15.2. COMPLETE AGREEMENT. This Agreement and its exhibits, Service Orders and Signatory Page constitute the complete and exclusive statement of the agreement among the parties with respect to the matters discussed herein and therein and they supersede all prior written or oral statements among the parties, including any prior statement, warranty, or representation.
15.3. GOVERNING LAW. This Agreement shall be governed and construed in accordance with the laws of the Republic of Singapore , without reference to rules regarding conflicts of laws.
15.4. COMPLIANCE WITH LAWS. Each party shall comply with all applicable laws and regulations in the course of performing under this Agreement.
15.5. SEVERABILITY. If any provision of this Agreement is determined by any court of competent jurisdiction to be invalid or unenforceable, such provision shall be interpreted to the maximum extent to which it is valid and enforceable, all as determined by such court in such action, and the remaining provisions of this Agreement shall, nevertheless, continue in full force and effect without being impaired or invalidated in any way.
15.6. HEADINGS. Headings used in this Agreement are for reference purposes only and in no way define, limit, construe, or describe the scope or extent of such section or in any way affect this Agreement.
15.7. SURVIVAL. The parties’ respective representations and covenants, together with obligations of indemnification, confidentiality and limitations on liability will survive the expiration, termination or rescission of this Agreement and continue in full force and effect.
15.8. INTERPRETATION. All pronouns and common nouns shall be deemed to refer to the masculine, feminine, neuter, singular, and plural, as the context may require. In the event that any claim is made by any party relating to the drafting and interpretation of this Agreement, no presumption, inference, or burden of proof or persuasion shall be created or implied solely by virtue of the fact that this Agreement was drafted by or at the behest of a particular party or its counsel.
15.9. Statute of Limitations. Customer agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of BGPNET services must be filed within one (1) year after such claim or cause of action arose or be forever barred.
15.10. ASSIGNMENT AND SUBCONTRACTING. Customer may not assign, license, sublicense or otherwise transfer this Agreement without the prior written consent of BGPNET, which consent may be withheld in BGPNET’s sole discretion, provided that Customer shall have the right to assign this Agreement to a successor to Customer by merger or consolidation or to an entity that purchases the assets or ownership interests of Customer.
15.11. INDEPENDENT CONTRACTORS. The parties to this Agreement are independent contractors, and no agency, partnership, joint venture, or employee-employer relationship is intended or created by this Agreement. Neither party shall have the power to obligate or bind the other party.
15.12. TIME IS OF THE ESSENCE. Time is of the essence with respect to the performance of all obligations to be performed or observed by the parties under this Agreement.
15.13. NOTICE. Except where provided otherwise, notices hereunder shall be in writing and shall be deemed to have been fully given and received when delivered by hand, sent by nationally recognized overnight courier, or sent by registered or certified mail, return receipt requested, postage prepaid, and properly addressed to the offices of the respective parties at the addresses set forth by the parties’ signatures. The notices shall be served to the addresses of the parties of listed on the applicable Service Order.
15.14. CONSENT TO ELECTRONIC DELIVERY. Customer agrees to receive and/or obtain any and all Service Orders, billing statements and other notifications from BGPNET via electronic communications. Customer acknowledges that, for Customer’s records, Customer is able to use BGPNET’s online services (such as http://client.mybgp.net, www.bgp.net) to retain electronic communications by printing and/or downloading and saving this Agreement and any other agreements and electronic communications, documents or records that Customer agrees to using an E-signature. Customer accepts electronic communications from BGPNET as reasonable and proper notice, for the purpose of any and all laws, rules and regulations, and agree that such electronic form fully satisfies any requirement that such communications be provided to Customer in writing or in a form that Customer may keep.
15.15. CHANGES TO THE AGREEMENT. BGPNET may modify the terms and conditions of this Agreement. Pursuant to Section 15.15, BGPNET will notify its Customers through electronic communications of any such modifications. All modifications shall be effective upon their publication on BGPNET’s website. It is the Customer’s responsibility to review BGPNET’s online services for such modifications on a frequent basis. If Customer continues to use the Services following any such modification, such use will be deemed acceptance of such modification by Customer. Any modifications requested by Customer to any of the terms of the Agreement must be approved in writing by BGPNET.
15.16. WAIVER. This Agreement may only be amended by a written instrument signed by each of the parties. A waiver of any right under any provision of this Agreement by either party hereunder shall be valid only if such waiver is in writing and signed by the party to be charged. No waiver of any right under any provision of this Agreement on any occasion shall be a waiver of any other right or under any other provision or on any other occasion. No extension of time for performance of any obligation or act shall be deemed an extension of the time for performance of any other obligation or act.
EXHIBIT A – SERVICE LEVELS AGREEMENT
BGPNET will use its reasonable efforts to ensure the network service is available 99.9% within any calendar month during the term of the Agreement.
In any given month, if the availability of the network service is below 99.9% due to BGPNET’s fault, the Customer shall be entitled to the rebate in accordance with the Table below, once the Customer has made full payment of the particular month and without any outstanding payment. Maximum refund of a month shall not exceed 50% of the monthly subscription charge:
|Service Availability in any calendar month||Total Downtime in any calendar month||Rebate
(% of one month’s Recurring Charges for the affected network services)
|>=99.85% and <99.9%||> 43 mins and <=1 hour||5%|
|>=99.50% and < 99.85%||>1 hour and <=3.6 hours||10%|
|>=99.00% and <99.50%||>3.6 hours and <=7.2 hours||20%|
|>=97.85% and <99.00%||>7.2 hours and <= 15.5 hours||30%|
|>=90.0% and <97.85%||>15.5 hours and <= 72 hours||40%|
|<90.00%||> 72 hours||50%|
A rebate for failure to achieve the uptime guarantee will (without limitation) NOT be payable where such failure is caused by any of the following:
- A scheduled or emergency maintenance
- Service failure caused by Third Party Suppliers, including without limitation, Local Access, long-haul international Local Access or International Third Party Supplier
- Failure due to the Customer
- Technical difficulties or limitation beyond the control of BGPNET
- A failure in the client’s Internet Services Provider (ISP) or Local Area Network;
- Any failure of China local end circuit;
- Any failure of Hong Kong local end circuit;
- Any act of God which results in the failure of the service;
- Failure of scripts provided by the client;
BGPNET shall not be liable for any consequential or indirect loss or damage of the client caused by the failure of service.
Requests for rebate must be submitted in writing to our billing department within 2 business days of the related incident. The Customer must open a support case during the failure in question, including detailed information about the problem experienced and steps to reproduce the error symptoms. In most circumstances this will be considered as the start time for the downtime.
Rebate are non-transferable and may only be applied to future service delivery on the account they’re issued to, and cannot be exchanged for cash or other forms of payment. Any outstanding or previously accrued rebate will be forfeited upon cancellation of the Customer’s account.
The Customer shall not set-off any payment without written consent from BGPNET.
EXHIBIT B – ACCEPTABLE USE POLICY (“AUP”)
This Acceptable Use Policy (“AUP”) applies to all customers and users (“you” or “user”, whether or not capitalized) of BGP Consultancy Pte. Ltd and its affiliates (collectively, “BGPNET”) upon access to some of the networks, systems, products and services provided by BGPNET (collectively, “Services”).
User agrees to use the Services only for lawful purposes, in compliance with all applicable laws, and in compliance with this AUP. If User uses the Services for unlawful purposes or not in compliance with all applicable law, or is, or uses the Services, not in compliance with this AUP, then BGPNET may exercise the rights set forth in the “Violation” section of this AUP.
The AUP below describes certain actions relating to the content and operation of the Website which BGPNET considers to be inappropriate and thus prohibited. The examples identified in this list are provided as examples only for your guidance. If you are unsure whether any contemplated use or action is permitted, please contact BGPNET.
- Using Services to sell any goods or services that are unlawful in the location at which the content is posted or received or the goods or services delivered;
- Using Services to post any content that is obscene, lewd, lascivious, pornographic, contains nudity or sexual acts, excessively violent, harassing, or otherwise objectionable;
- Using Services to harm, or attempt to harm, minors in any way, including, but not limited to child pornography;
- Using Services to transmit any material (by e-mail, uploading, posting or otherwise) that threatens or encourages bodily harm or destruction of property;
- Using Services to post any content that advocates, promotes or otherwise encourages violence against any governments, organizations, groups or individuals or which provides instruction, information, or assistance in causing or carrying out such violence;
- Using Services to post any content that holds Company, its employees or owners up to public scorn or ridicule or would in any way damage or impair Company’s reputation or goodwill;
- Using Services to post any content that violates any copyrights, patents, trademarks, trade secrets, or other intellectual property rights of others;
- Failing to obtain all required permissions when using Services to receive, upload, download, display, distribute, or execute programs or perform other works protected by intellectual property laws including copyright and patent laws;
- Deleting or altering author attributes, copyright notices, or other copyright management information, unless expressly permitted in writing by the author or owner;
- Adding, removing or modifying identifying network header information in an effort to deceive or mislead;
- Attempting to impersonate any person by using forged headers or other identifying information (the use of anonymous remailers or nicknames does not constitute impersonation);
- Using Services to make fraudulent offers to sell or buy products, items, or services, or to advance any type of financial scam such as “pyramid schemes,” “ponzi schemes,” and “chain letters;”
- Using Services in a tortious manner, including the posting of libelous, defamatory, scandalous, threatening, harassing or private information without the permission of the person(s) involved, or posting content that is likely to cause emotional distress;
- Introducing viruses, worms, Trojan horses, malware or other harmful code on the
- Using Services to transmit any unsolicited commercial or unsolicited bulk e-mail.
Violations of this type will result in the immediate termination of the offending account;
- Using the Services for any kind of IRC (Internet Relay Chat) on BGPNET’s servers;
- Using Services for any activity which affects the ability of other people or systems to use Services or the Internet (this includes “denial of service” attacks against another network host or individual user); or
- Using Services to hack, breach, or test the vulnerability of user authentication or security of any software or hardware without express authorization of the owner.
BGPNET takes no responsibility for any material created or accessible on any website, e- mail transmission, newsgroups, or other material created or accessible over or through the Services. BGPNET is not obligated to monitor or exercise any editorial control over such material, but reserves the right to do so.
BGPNET, in its sole discretion, will determine what action will be taken in response to a violation of this AUP on a case-by case basis. Violation of this AUP could also subject User to criminal or civil liability. BGPNET may block access at the router level to your Equipment involved. If BGPNET believes, in its sole discretion, that a violation of this AUP has occurred, such action may also include, but is not limited to, temporary or permanent blocking of accessing to your Equipment or data, and the suspension or termination of Services. BGPNET may involve and will also fully cooperate with law enforcement authorities in investigating suspected lawbreakers. BGPNET and its affiliates have no obligation to provide warnings under any circumstances and can terminate the customer’s account without prior notice if the customer violates the policy.
BGPNET reserves the right to modify this AUP at any time without notice. User is responsible for all use of the Services by itself, its employees, and customers.