Terms of Service
All applicable terms and conditions to acquire and use our system & services.
Its our Commitment
Keeping your site online is our top priority. To prove it, we have created a set of terms and policies that define our contractual promise to our valued clients which include our service level guarantees, terms of service, privacy and copyright policies. These policies enable us to provide the right services that you can trust.
The complete policy is sub divided by the sections for better understanding-
All sections are covered by this single page written in sections. Please scroll down and read the complete terms and conditions before getting started with any of our services.
General Terms Of Service
These Terms of Service, together with any applicable Service Descriptions (as defined in Section 1.1) and Orders (as defined in Section 1.2) and other attachment attached hereto or otherwise made a part of these Terms of Service (collectively, the “Agreement”) is entered between Tomattos Technologies Limited, its applicable affiliate and the party entering into an Order with Tomattos (“Customer”) as may be identified in this Agreement (each a “Party” and collectively as the “Parties”) and is effective as of the Customer’s service activation date (“Effective Date”). The purpose of this Agreement is to provide a framework governing Customer’s purchase of services from Tomattos pursuant to one or more Orders (the “Services”). Tomattos rejects any terms and conditions contained in Customer’s forms that are additional to or different from those set forth in Tomattos Order, Services Descriptions, or in these Terms of Service. Tomattos and Customer agree as follows:
1. AGREEMENT, ORDERS AND SERVICES
1.1. Agreement; Service Descriptions. This Agreement contains general contractual terms for all Services to be provided by Tomattos pursuant to one or more orders (each, an “Order”). Additional terms and conditions that apply to each type of Service may be set forth in service descriptions, which will be published on Tomattos’s website or otherwise made available by Tomattos to Customer (each a “Service Description”), and/or in the applicable Order. Tomattos may from time to time make changes to the Service Descriptions to add new or improved Services, substitute Services for improved performance or simply discontinue a Service (collectively “Updates”). Customer shall periodically check the Tomattos website for such Updates.
1.2. Ordering Procedures. Customer may at any time request for Tomattos to provide a Service by submitting to Tomattos an Order, either online, by phone, by online chat, or in a form provided by Tomattos. Each Order is incorporated into the Agreement and will contain applicable pricing and payment terms, Service Level Agreement (as defined in Section 1.3), if any, and other transaction specific provisions. In the event of any conflict between this Agreement and the terms of any of the Service Descriptions and the applicable Order(s), precedence will be given in the following order: (a) the Order, but solely with respect to the Services covered by that Order; (b) the Service Description, but solely with respect to the Service covered by the Services Description; and (c) this Agreement.
1.3. Support and Service Levels. Tomattos will provide technical support services for the Services (“Support”) to its Customers via phone, email and live chat based on the level of Support purchase by Customer pursuant to an Order. Detailed descriptions of the various Support levels are set forth in the Support Service Description available at Support Comparison. Support is only available to Customer; Tomattos has no obligation to provide Support to any other party. In addition, Tomattos will make the Services available in accordance with the applicable service levels set forth at Tomattos Policies (the “Service Level Agreements”). Tomattos may from time to time make changes to the Support or Service Level Agreements, and Customer shall periodically check the Tomattos website for such changes.
1.4. Third Party Products. Tomattos may make available to Customer from time to time, certain third party products, including hardware and software (collectively, the “Third Party Products”) and, if purchased by Customer, such Third Party Products are non-refundable upon termination of the Agreement. Customer acknowledges and agrees that Tomattos is reselling such Third Party Products and that it neither provides any warranty related to nor assumes any liability for such Third Party Products. To the extent permitted by the Third Party Product manufacturer, Tomattos will pass through to Customer the manufacturer’s warranties related to each Third Party Product and will use commercially reasonable efforts to facilitate utilization by Customer of such warranties. Customer shall abide by all terms and conditions governing the use of such Third Party Products.
1.5. Ownership. Customer shall not remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on any materials made available by Tomattos. Customer shall not use any Services or materials provided by Tomattos after the expiration or termination of the Order under which the same was provided.
1.6. Subcontractors. Tomattos may use affiliates and third party service providers to perform all or any part of the Services, but Tomattos remains responsible under the Order for Services performed by any affiliate or third party service provider to the same extent as if Tomattos performed the Services.
2. CHARGES AND PAYMENT TERMS
2.1. Fees. Customer shall pay to Tomattos all recurring and non-recurring fees for the Services and Third Party Products (“Fees”) in the amounts set forth on the applicable invoice. Tomattos may increases fees for the Services provided under an Order upon thirty (30) days’ advance notice as follows: (a) for Services provided on a month-to-month term, Tomattos may increase Fees effective the first day of the next month following the notice period; and (b) for Services provided over a term greater than one month, Tomattos may increase fees for the Services provided under an Order as of the first day of the next Renewal Term.
2.2. Bandwidth Fees. Bandwidth usage for bundled bandwidth packages related to Internet data transfers will be calculated based upon outgoing bandwidth transfer only. If Customer’s actual data transfer usage exceeds the amount of Customer’s bandwidth package, Customer will be charged a bandwidth overage Fee as specified in the applicable Order. When using the Tomattos provided Content Delivery Network (“CDN”), Customer is responsible for all bandwidth costs associated with the delivery of content over the public Internet, including any content delivery caused by unauthorized use of Customer’s CDN connection. Tomattos will not enable “hotlinking” capability by default. In the event “hot-linking” capability is activated at Customer’s request, Customer remains responsible for all network usage.
2.3. Payment Terms. Unless other payment methods have been approved, Tomattos will charge Customer’s credit card monthly, in most cases without invoice. If another method of payment has been approved, Tomattos shall notify Customer of its monthly invoice via electronic mail no later than two (2) days after the invoice date to the email address(es) designated on page one (1) of this Agreement (“Billing Email Address”). Customer must provide Tomattos thirty (30) days written notice of any changes to its Billing Email Address. Customer waives the right to dispute any charges not disputed within such thirty (30) day period. Billing shall commence on the first day the Services are made available to Customer. Monthly recurring charges shall be invoiced monthly. Nonrecurring charges will be included on the invoice for the applicable installation or Service changes as directed by Customer.
2.4. Late Payments. Tomattos may suspend all Services provided to Customer if Customer fails to pay any Fees when due. In addition, if any undisputed amount is not paid when due, Tomattos may impose a late charge in an amount equal to five percent (5%) (or the maximum legal rate, if less) of the unpaid balance per month. In the event a payment is received by Tomattos and is returned for insufficient funds or bank charges, Customer shall reimburse Tomattos for all associated processing charges as well the late charge to the extent applicable. In the event that non-disputed payments are received late or returned by insufficient funds more than three (3X) times annually, Tomattos may require that Customer establish a deposit and or pay with guaranteed funds. Customer will reimburse Tomattos for all expenses Tomattos incurs, including reasonable attorney fees, in collecting any amounts past due under this Agreement.
2.5. Credit Approval. Customer acknowledges that delivery of the Services is subject to the continuing approval by Tomattos of Customer’s creditworthiness. Customer shall furnish financial information as Tomattos may from time to time reasonably request to determine Customer’s creditworthiness.
2.6. Taxes and Assessments. Customer is responsible for the payment of all governmental assessments, surcharges, and fees pertaining to its use of the Services (other than taxes/VAT on Tomattos’s net income). Tomattos shall not invoice Customer for taxes if Customer provides Tomattos with, and maintains, valid and properly executed certificate(s) of exemption for the taxes/VAT. Such certificates of exemption must be reasonably acceptable to Tomattos. Customer is responsible for all taxes up until the time a valid certificate of exemption is provided to Tomattos. If Customer fails to maintain the required tax exemption certificate(s), Tomattos shall back-bill Customer for all applicable taxes.
2.7. Shipping. All shipments of Third Party Products by Tomattos to Customer are EXW point of shipment. Any insurance coverage, transportation costs and all other expenses applicable to shipment from Tomattos to Customer’s identified point of delivery will be the responsibility of the Customer. Customer grants Tomattos a security interest in and to the Third Party Products as security for payment in full of the purchase price. Customer authorizes Tomattos to file and/or record any documents it deems necessary to perfect this security interest.
2.8. Refunds. Except as otherwise provided herein or in the applicable Service Level Agreement, Customer shall not be entitled to any refund for any Services purchased hereunder. Setup Fees are not refundable.
3. RESPONSIBILITIES OF CUSTOMER
3.1. Equipment, Hardware and Software.
3.1.1. Customer is responsible for the installation, operation, and maintenance of hardware or software not provided by Tomattos, including ensuring the same is up to date. Tomattos is not responsible for the transmission or reception of information by such hardware or software.
3.1.2. Customer is responsible for the selection, use and compatibility of hardware or software not provided by Tomattos. If hardware or software not provided by Tomattos impairs Customer’s use of the Services, Customer is nonetheless liable for payment for Services. If Tomattos notifies Customer that the hardware or software not provided by Tomattos is causing or is likely to cause hazard, interference, or service obstruction, Customer must eliminate the hazard, interference, or service obstruction. Tomattos may suspend the provision of Service until the hazard, interference, or service obstruction is corrected. If requested by Customer, Tomattos may, at its then-current rates, assist Customer with resolving technical difficulties caused by hardware or software not provided by Tomattos. If any changes in Service cause hardware or software not provided by Tomattos to become obsolete, require modification or alteration, or otherwise affect performance of such hardware or software, Customer, not Tomattos, is responsible for modifying, altering or replacing the hardware or software.
3.1.3. If Customer provides its own equipment to interface with the Services, Customer is responsible for the installation, maintenance, and configuration of the equipment.
3.1.4. For the sole purpose of enabling Customer to use Services, Tomattos grants to Customer a non-exclusive and non-transferable license to use software that may be provided with or included in the Services. Tomattos or its suppliers retain title and property rights to Tomattos-provided software and equipment, whether or not it is embedded in or attached to Customer’s hardware. Customer neither owns nor will it acquire any claim or right of ownership to (a) any Tomattos-provided equipment not purchased by Customer; (b) any software (including the original media and all subsequent copies of the software, regardless of the media’s form, including product keys provided by third parties whereby the keys are for Customer’s exclusive use and continued use of such keys beyond termination of any Service order or this Agreement is prohibited) and associated documentation (including copies); and (c) any IP addresses assigned to Customer.
3.1.5. Tomattos is responsible for maintaining its software and hardware in accordance with the terms of this Agreement. Customer agrees not to open, alter, misuse, tamper with or remove the software and equipment required to operate the Service. Customer will not remove any markings or labels or serial numbers from the equipment. If the equipment is damaged, destroyed, lost or stolen while in Customer’s possession, Customer shall be liable for the cost of repair or replacement of such equipment. Customer will safeguard the equipment from loss or damage of any kind, and will not permit anyone other than an authorized representative of Tomattos to perform any work on the equipment. Prior to installation of the hardware, Customer shall notify Tomattos of any special requirements regarding the placement of the hardware at Customer’s premises to accommodate all Customer’s employees, agents and contractors with a physical disability who are tasked with monitoring such hardware in order to perform their job functions. Any request, post installation, to relocate the hardware will result in additional non-recurring charges.
3.2. Compliance. Customer shall obtain all applicable licenses, permits and approvals for the use of the Services or Third Party Products required by any governmental agency, foreign or domestic, having jurisdiction over the transaction. Customer and its users shall use the Services in compliance with all applicable state, federal, or international laws, statutes or codes, specifically including data protection and privacy laws, as well as laws relating to unsolicited commercial electronic messages.
3.3. Acceptable Use. Customer is responsible for all acts and omissions of its users in connection with receipt or use of the Services, and Customer and its users shall at all times abide by Tomattos’s Acceptable Use Policy. Customer will not use the Services or Third Party for life support, life sustaining, nuclear or other applications in which failure of such Services or Third Party Products could reasonably be expected to result in personal injury, loss of life or catastrophic property damage. Customer agrees that Tomattos is not liable, in whole or in part, for any claim or damage arising from use of Services or Third Party Products in such applications.
4. DATA PROTECTION AND SECURITY
4.1. Customer Data. Customer is solely responsible for the security and content of all Customer data stored in Tomattos’s hosted environment and any data, applications or third party services run in or through the Tomattos provided environment (”Customer Data”), and Customer Data is and at all times shall remain Customer’s exclusive property.
4.2. Legal Requirements. Customer is solely responsible for determining if any Customer Data must comply with any law, standards, and policies, including without limitation, those related to data privacy and security (collectively referred to herein as the “Legal Requirements”) and ensuring that the Customer Data does comply with all applicable Legal Requirements. Customer acknowledges and agrees that Tomattos has no way of reviewing Customer Data.
4.3. Security. Customer shall encrypt at the application level all Sensitive Customer Data. “Sensitive Customer Data” means Customer Data that is required to be treated as confidential under state or federal law or under Customer’s contractual obligations to others Information. Customer shall promptly notify Tomattos upon becoming aware of any data breach or unauthorized access to Tomattos’s network or servers and accounts. Customer will take all commercially reasonable steps to cooperate with Tomattos’s investigation and resolution of the reported breach or unauthorized access. Notwithstanding the foregoing, Customer acknowledges and agrees that Tomattos makes no representation or warranty regarding the security of its Services.
4.4. Access and Use. Tomattos is not responsible to Customer for unauthorized access to Customer Data or unauthorized use of the Services through authorized or unauthorized access provided by Customer to third parties. Customer is responsible for the use of the Services by any of Customer’s employees, affiliates, officers, directors, shareholders, agents or representatives, or any other third party given access to the Service, and any third party who gains access to Customer Data or Services as a result of Customer’s failure to use reasonable security precautions, even if such access was not authorized by Customer.
4.5. Backups. Customer shall be responsible maintaining all backups for all Customer Data on Tomattos’s servers. In the event Tomattos provides backup assistance on its servers, it is provided, without additional charge, as a courtesy (“Courtesy Support”) to Customer. Tomattos has no liability for any lost or corrupted Customer Data resulting from the provision of Courtesy Support.
4.6. HIPAA and HITECH Act. Customer shall immediately notify Tomattos if any of the data in the applicable Service environment includes Protected Health Information (“PHI”), as that term is defined Title II, Subtitle F of the Health Insurance Portability and Accountability Act of 1996, as amended. If the data does include PHI, Customer shall ensure Customer is utilizing a HIPAA-compliant Service, and the parties shall enter into a Business Associate Agreement (“BAA”).
4.7. Payment Card Industry – Data Security Standards (“PCI-DSS”). If, as necessary to perform its obligations under the Agreement, Tomattos possesses or otherwise stores “cardholder data” (as that term is defined by the Payment Card Industry Data Security Council https://www.pcisecuritystandards.org) on behalf of Customer, Tomattos and Customer agree that each Party is responsible, as may be designated in the applicable Service Description, for those certain PCI-DSS requirements as applicable.
4.8. EU General Data Protection Regulation. Customer shall notify Tomattos if it intends to use Tomattos Services with Customer Data that is subject to protection under General Data Protection Regulation 2016/679 (“GDPR”). Such notification shall require the Parties execute a Data Protection Addendum (“DPA”) under which Tomattos will be a Processor (as defined under the GDPR) on behalf of Customer. Customer may not utilize any Services with Customer Data that is subject to GDPR protection until such time as the Parties have executed a DPA.
4.9. California Consumer Privacy Act. If, as necessary to perform its obligations under the Agreement, Tomattos possesses or otherwise stores “personal information” (as that term is defined by the California Consumer Privacy Act of 2019 (“CCPA”)) made available by Customer, Tomattos certifies that it is acting as a “service provider” as defined under the CCPA. Accordingly, Tomattos will not retain, use, or disclose personal information provided or otherwise made available by Customer for any purpose other than the specific purpose of performing the Services under this Agreement or as otherwise permitted by the CCPA, including retaining, using, or disclosing such personal information for a commercial purpose other than providing the Services. Unless prohibited by applicable law, Tomattos shall, as soon as reasonably practicable, forward to Customer all requests received from individuals wishing to exercise their rights under the CCPA. Tomattos’s only response to individual requests shall be to inform the individual that such request has been passed along to the appropriate party, unless otherwise required by the CCPA. If requested by Customer, Tomattos shall reasonably assist Customer, at Customer’s expense, in complying with Customer’s obligations under the CCPA.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS
5.1. Mutual Representations and Warranties. Each Party represents, warrants and covenants that, as of the Effective Date and continuing throughout the term of this Agreement:
5.1.1. It is an organization duly formed, validly existing and in good standing under the laws of the state in which it is formed, and in good standing in each other’s jurisdiction where the failure to perform in good standing would have a material adverse effect on its business or its ability to perform its obligations hereunder.
5.1.2. It has all necessary organizational power and authority to enter into this Agreement and each Order and to perform its obligations hereunder, and the execution of this Agreement and each Order and consummation of the transactions contemplated thereby have been duly authorized by all necessary organizational actions on its part.
5.1.3. This Agreement constitutes a legal, valid and binding obligation of such Party, enforceable against it in accordance with its terms.
5.1.4. It shall comply with all laws in connection with the Services and otherwise under this Agreement.
5.2. Tomattos Representations, Warranties and Covenants. Tomattos represents, warrants and covenants that:
5.2.1. It will perform the Services in a diligent, professional and workmanlike fashion using an appropriate number of properly trained and qualified individuals.
5.2.2. It will provision the Services to operate within the technical standards of performance or service levels, if any, set forth in the applicable Service Description, Service Level Agreement, or Order. Customer’s sole and exclusive remedy for any failure to meet the applicable technical standards of performance or service levels shall be as specified in the applicable Service Description, Service Level Agreement, or Order.
5.3. Disclaimer of Warranties. Customer assumes total responsibility for use of the Services, Third Party Products, and any applicable equipment. Tomattos has no responsibility for the security, loss, intrusion or unauthorized access of stored data or any loss or damage caused by any action, omission or failure to comply with the terms of this Agreement by Customer. ALL PRODUCTS AND SERVICES PROVIDED OR OTHERWISE MADE AVAILABLE BY TOMATTOS ARE PROVIDED ON AN “AS-IS” BASIS, AND TOMATTOS MAKES NO WARRANTY TO CUSTOMER OR ANY OTHER PERSON OR ENTITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AS TO ANY SERVICE, THIRD PARTY PRODUCT, OR EQUIPMENT PROVIDED HEREUNDER OR DESCRIBED HEREIN, OR AS TO ANY OTHER MATTER, ALL OF WHICH WARRANTIES BY TOMATTOS ARE HEREBY EXCLUDED AND DISCLAIMED.
6. CONFIDENTIAL INFORMATION
6.1. Definitions. As to any particular Confidential Information, the “Discloser” is the Party disclosing the Confidential Information and the “Recipient” is the Party receiving the Confidential Information. “Confidential Information” means any information (whether tangible or intangible, printed, electronic, or otherwise) and items embodying information (including graphs, photographs, samples, working models, and prototypes) at any time furnished by Discloser to Recipient or to which Recipient is exposed during the term of this Agreement, including, without limitation, (a) information concerning Discloser’s business and business plans, (b) financial information concerning Discloser and its affiliates, (c) information concerning Discloser’s pending patents or other trade secrets, (d) Discloser’s sketches, drawings, designs and specifications, (e) Discloser’s concepts, ideas, inventions, know-how, processes, apparatus, equipment, algorithms and formulas, and (f) information from third parties that Discloser is obligated to treat as confidential. Customer Proprietary Network Information (“CPNI”), as defined by United States Code 47 U.S.C. § 222(h) (1), shall be considered to be the Confidential Information of Customer. Customer’s data stored at Tomattos’s data center(s) or stored on or processed on Tomattos’s systems shall be considered to be Confidential Information. All other Confidential Information provided in written or electronic form must be clearly marked “Confidential.” In the case of Confidential Information provided orally, a written memorandum of such information clearly marked “Confidential” must be delivered to Recipient within thirty (30) days of the disclosure.
6.2. Restrictions on Use; Non-Disclosure. Except as otherwise expressly permitted in writing by an authorized representative of Discloser, Recipient agrees that it will not (a) use the Confidential Information of Discloser for any purpose other than the purpose for which Discloser disclosed the information; or (b) disclose or reveal Confidential Information of Discloser to any person or entity other than its employees, directors, officers and consultants who have a need to know to further the purpose of this Agreement and are subject to legally binding obligations of confidentiality and non-use no less restrictive than those contained in this Agreement. During the term of this Agreement, Customer will designate an account representative who has the authority to request Customer’s CPNI under this Agreement through its dedicated Tomattos account representative.
6.3. Exceptions. The obligations set forth in this Section 6 above shall not apply to Confidential Information that (a) before the time of its disclosure was already in the lawful possession of the Recipient; (b) at the time of its disclosure to Recipient is available to the general public or after disclosure to Recipient by Discloser becomes available to the general public through no wrongful act of the Recipient; or (c) Recipient demonstrates to have been lawfully independently developed by Recipient without the use of or reliance upon any Confidential Information of the Discloser and without any breach of this Agreement. In the event Customer and Tomattos enter into a separate Non-Disclosure Agreement (“NDA”), then such NDA shall be incorporated into this Agreement by reference herein, and if any terms and conditions of such NDA are in conflict with the terms and conditions herein, then the NDA shall supersede the Confidentiality terms and conditions in this Section 6, excluding Tomattos’s CPNI obligations as defined herein.
6.4. Ownership; No License. Each Party shall retain ownership of all rights, including all intellectual property rights, in its Confidential Information. Nothing in this Agreement shall be deemed, by implication or otherwise, to convey to Recipient any right under any patent, patent application, invention, or other proprietary right owned by Discloser or anyone associated with Discloser.
6.5. Disclosures Required by Law. If Recipient becomes legally compelled (by deposition, interrogatory, subpoena, civil investigative demand or similar process) to disclose any Confidential Information, then Recipient shall notify Discloser of the requirement promptly in writing (if legally permitted) so that Discloser may seek a protective order or other appropriate remedy. If a protective order or other remedy is not obtained, or if Discloser waives in writing compliance with the terms hereof, then Recipient shall furnish only that portion of the information which Recipient is advised by written opinion of counsel is legally required and to exercise reasonable efforts to obtain confidential treatment of such information.
6.6. Duration. The obligations set forth in this Section 6 shall survive termination of this Agreement for a period of three (3) years.
6.7. Disposal of Confidential Information. Recipient agrees to return to Discloser all copies of Confidential Information promptly upon Discloser’s request at any time. If return is impossible as to any portion of the Confidential Information, then Recipient shall certify to Discloser promptly that all such Confidential Information of Discloser, including all copies thereof, has been totally and permanently destroyed.
6.8. Remedies. The Parties acknowledge and agree that a breach of this Section 6 by either Party will cause continuing and irreparable injury to the other’s business as a direct result of any such violation, for which the remedies at law will be inadequate, and that Discloser shall therefore be entitled, in the event of any actual or threatened violation of this Section by Recipient, and in addition to any other remedies available to it, to a temporary restraining order and to injunctive relief against the other Party to prevent any violations thereof, and to any other appropriate equitable relief.
7.1. Indemnification by Tomattos. Tomattos shall indemnify, defend, and hold harmless Customer and its officers, directors, agents and employees from and against any and all demands, causes of action, losses, damages, fines, penalties, and claims, and all related costs and expenses (including reasonable attorneys’ fees) (collectively referred to as “Losses”) arising any third party claim that Customer’s use of the Services not in violation of this Agreement infringes or misappropriates any valid, patent, copyright, or trade secret of such third party. In addition to Tomattos’s indemnification obligations set forth in this Section 7.1, in the event of a claim or threatened claim under this 7.1 by a third party, Tomattos may, at its sole option, (1) revise the Services up to and including termination of this Agreement upon ten (10) days’ notice so that they are no longer infringing, (2) obtain the right for Company to continue using the Services, or (3), in the event neither of the foregoing are reasonable, terminate this Agreement and refund to Customer a pro-rata amount of any pre-paid Services not yet receives as of the date of termination. THIS SECTION 7.1 REPRESENTS THE SOLE AND EXCLUSIVE LIABILITY OF TOMATTOS AND THE EXCLUSIVE REMEDY OF CUSTOMER RELATED TO ANY INFRINGEMENT OR MISAPPROPRIATION CLAIMS OF A THIRD PARTY.
7.2. Indemnification by Customer. Customer shall indemnify, defend and hold harmless Tomattos and its officers, directors, agents and employees, from and against any and all Losses arising out of or in any manner relating to: (a) violation of any law by Customer; (b) any claim for withholding or other taxes that might arise or be imposed due to this Agreement or the performance hereof; (c) damage to property or personal injury (including death) arising out of the gross negligence or willful acts or omissions of Customer; or (d) claims by a third party arising out of or related to the use or misuse of any Service or Third Party Products.
7.3. Indemnification Procedure. The Party seeking indemnification under this section shall promptly, and in writing, notify the other Party of any claim as to which it intends to seek indemnification under this Agreement, and shall take such action as may be necessary to avoid default or other adverse consequences. The indemnified Party shall provide cooperation and participation of its personnel as required for the defense at the cost and expense of the indemnifying Party.
8. LIMITATIONS OF LIABILITY
8.1. Limit on Types of Damages Recoverable. NEITHER PARTY NOR ITS AFFILIATES, SUBSIDIARIES, EMPLOYEES, CONTRACTORS, OR SUPPLIERS, SHALL BE LIABLE TO THE OTHER PARTY OR ANY OTHER THIRD PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST REVENUES, AND LOSS OF BUSINESS OPPORTUNITY) THAT THE OTHER PARTY MAY INCUR OR EXPERIENCE IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, HOWEVER CAUSED AND UNDER WHATEVER THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, STRICT LIABILITY AND NEGLIGENCE), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL TOMATTOS BE LIABLE FOR ANY DAMAGES RELATED TO ANY THIRD PARTY PRODUCT.
8.2. Limit on the Amount of Damages Recoverable. Except as may be provided in an applicable Service Level Agreement, Tomattos’s liability to Customer and its respective officers, directors, employees, agents, contractors, successor and assigns arising under or related to this Agreement and the Services provided hereunder shall be limited in all cases to direct damages which shall not exceed the amount of Fees paid by Customer under the applicable Order for the Services during the six (6) month period immediately preceding the event giving rise to the claim for damages.
8.3. No Liability for Certain Actions. Tomattos shall not be liable to Customer for any claims or damages resulting from or caused by (a) unauthorized access to transmission facilities or premises equipment, or for unauthorized access to or alteration, theft, or destruction of data files, programs, procedure, or information through accident, wrongful means or devices, or any other method where such unauthorized access is due to Customer’s fault, negligence or failure to perform Customer’s responsibilities; (b) Customer’s fault, negligence or failure to perform Customer’s responsibilities; (c) claims against Customer by any other party; (d) any act or omission of any other party; or (e) equipment or services furnished by a third party. Tomattos is not responsible for Customer Data or the content of any other information transmitted or received through the Services.
8.4. Limitation of Actions. Neither Party may bring any action, regardless of form, arising out of or relating to an Order or this Agreement more than three (3) months from the date on which the cause of action arose.
9.1. Agreement. This Agreement shall commence on the Effective Date and continue until the last Order expires or is terminated, unless this Agreement is sooner terminated in accordance with the terms of Section 10 (Termination) below.
9.2. Service Term. An individual Services term shall commence on the Effective Date and continue for the period of time specified on its Order (the “Initial Term”), unless sooner terminated in accordance with the terms of Section 10 (Termination) below. Thereafter, the Agreement will automatically renew, and Customer’s credit card or other selected payment method will be automatically charged, for successive one-year periods, or, if no such term is specified, the Agreement shall continue in effect, and Customer’s credit card or other selected payment method will be automatically charged, on a month-to-month basis at the then current month-to-month rates (the “Renewal Term”) unless either Party provides the other Party with written notice of its intention not to renew at least thirty (30) days before expiration of the current Service Term. The Initial Term and Renewal Term are sometimes individually and collectively referred to as the “Service Term.”
10.1. Termination for Cause. Either Party shall have the right to terminate this Agreement and/or any Order upon written notice to the other Party:
10.1.1. If the other Party defaults in the performance of any of its material obligations under this Agreement and such default continues for a period of thirty (30) days after receipt of written notice specifying the nature of the breach. In the case of nonpayment of fees, the cure period shall be ten (10) days.
10.1.2. If the other Party ceases conducting business in the normal course, admits its insolvency, makes an assignment for the benefit of creditors, or becomes the subject of any judicial or administrative proceedings in bankruptcy, receivership or reorganization (individually or collectively “Bankruptcy Proceedings”). For the avoidance of doubt, such Bankruptcy Proceedings shall not be subject to a cure period as described in Section 10.1.1.
10.1.3. If Customer defaults in the performance of any of its material obligations under this Agreement and fails to cure such default within the cure period specified above, Tomattos may at its sole option do any or all of the following: (a) cease accepting or processing Orders and/or suspend Services; (b) cease all electronically and manually-generated information and reports; (c) draw on any letter of credit, security deposit or other assurance of payment and enforce any security interest provided by Customer; (d) terminate this Agreement and/or the applicable Order; or (e) pursue such other legal or equitable remedy or relief as may be available to Tomattos. A nonpayment or other default by Customer resulting in the termination of the Agreement and/or applicable Order, shall entitle Tomattos to collect from Customer the applicable early termination charges as described under Section 10.4, in addition to pursuing any other available remedy.
10.2. Termination for Convenience. Customer shall have the right to terminate any Order at any time for convenience by providing thirty (30) days’ written notice to Tomattos and paying Tomattos the early termination charges specified in Section 10.4 below. Termination shall be effective and the affected Services will be discontinued within thirty (30) days after Tomattos receives the completed termination notice.
10.3. Change in Regulatory Requirements. If the Federal Communications Commission, Bangladesh Telecommunication Regulatory Commission – BTRC, a state Public Utilities or Service Commission or a court of competent jurisdiction, issues a rule, regulation, law or order which has the effect of canceling, changing or superseding any material term or provision of this Agreement (collectively, “Regulatory Requirement”), then this Agreement shall be deemed modified in such a way as the Parties mutually agree is consistent with the form, intent or purpose of this Agreement and is necessary to comply with such Regulatory Requirement. Should the Parties be unable to agree on modifications necessary to comply with a Regulatory Requirement within thirty (30) days after the Regulatory Requirement is effective, then upon written notice, either Party may, to the extent practicable, terminate that portion of this Agreement impacted by the Regulatory Requirement, or if the entire Agreement is impacted, either Party may terminate the Agreement with no further obligation or liability hereunder, and Customer shall not be liable for an early termination charge hereunder.
10.4. Early Termination Charge. If the Services are cancelled or terminated prior to the expiration of the Service Term for any reason other than: (a) by Customer in accordance with the terms of the Order or Section 10.1, then Customer shall pay Tomattos an early termination charge equal to:
10.4.1. for flat rated Services: one hundred percent (100%) of the monthly recurring charges for the Services multiplied by the number of months remaining in the Service Term;
10.4.2. for prepaid Services: one hundred percent (100%) of the prepaid amount;
10.4.3. any non-recurring fees Tomattos incurs from other suppliers in connection with cancellation of the Services;
10.4.4. any outstanding invoices still owed by Customer. Such payment shall be due within sixty (60) days of termination.
10.5. Suspension. In addition to the rights and remedies set forth in this Agreement, Tomattos may suspend some or all of the Services without liability to Customer if: (a) Customer fails to pay the applicable fees for the Services when due; (b) Tomattos determines that the Services are being used, have been used, or will, with commercially reasonable certainty, be used in breach of this Agreement; (c) Customer fails to cooperate with an investigation of any suspected breach of this Agreement; (d) Tomattos reasonably believes that the Services have been accessed or utilized in any way by a third party without Customer’s consent; or (d) suspension of services is reasonably necessary to protect Tomattos’s hosting environment. Tomattos will use commercially reasonable efforts to provide Customer advance notice of a suspension and a chance to cure the violation on which the suspension is based, unless Tomattos determines, in its reasonable judgment, that an immediate suspension is necessary to protect Tomattos’s network and its customers’ from an imminent, significant operational, network integrity or security risk. Suspensions based on Customer’s breach of this Agreement will not relieve Customer’s obligation to pay for the suspended Services during the period of suspension. Any suspension imposed under this Section will be lifted upon Customer’s cure of the breach causing the suspension. In the event the Customer is unable to cure the breach within fifteen (15) days of notice from Tomattos, the suspension may be treated as a termination for Cause. During the suspension period, Tomattos shall have the right to deny access to, and/or, destroy data stored on the compromised server or account. Tomattos may at its own discretion allow access to a suspended account.
10.6. Service Credits. Upon termination of this Agreement for any reason, any unused Service credits or referral credits will be forfeited by Customer.
11. GENERAL PROVISIONS
11.1. Publicity. Except as otherwise provided herein, neither Party will use the other Party’s name, logo or service marks, for any purpose, including press releases, without the other Party’s prior written consent. Notwithstanding the foregoing, Customer may use Tomattos’s name and logo to positively publicize that it uses Tomattos’s Services, and Tomattos may include Customer’s name in its customer list, website, partner portal, and publications.
11.2. Assignment and Binding Nature. Customer shall not assign, voluntarily or by operation of law, any of its rights or obligations under this Agreement without the prior written consent of Tomattos. Tomattos may upon prior written notice to Customer, assign all of its rights and obligations under this Agreement to any entity which effects a merger transaction with Tomattos or otherwise acquires all or substantially all of the capital stock or assets of Tomattos. Subject to the foregoing, this Agreement shall be binding on the Parties and respective successors and assigns.
11.3. Notices. Except as otherwise provided herein, any notice or other communication between the Parties hereto regarding the matters contemplated by this Agreement may be sent by postal mail (first-class, airmail or express mail), commercial courier or electronic mail. Any written notice required to be sent under Section 10 (Termination) must be sent by postal mail (first-class, airmail or express) or commercial courier. Notices to Tomattos shall be sent to: Tomattos Technologies Limited, H-12, 11th Floor, Razzak Plaza, Moghbazar, Ramna, Dhaka-1217, Attn: System & Services, and notices to Customer shall be sent to the contact information set forth in Customer’s Order, or at such other addresses as either Party may designate in writing.
11.4. Amendments. Tomattos may update, modify, add, or delete this Agreement at any time and such update shall be reflected on Tomattos’s website. Customer’s continued use of the Services following any change to the Agreement constitutes acceptance of the Agreement.
11.5. No Third-Party Beneficiaries. Nothing in this Agreement creates, or will be deemed to create, third-party beneficiaries of or under this Agreement. CUSTOMER AGREES THAT TOMATTOS HAS NO OBLIGATION TO ANY THIRD PARTY BY VIRTUE OF THIS AGREEMENT.
11.6. Relationship of Parties. Nothing contained in this Agreement shall be construed to create a partnership, agency, joint venture, or employer/employee relationship between the Parties. Neither Party has the authority to assume or create any obligation or responsibility, express or implied, on behalf of, or in the name of, the other Party or to bind such other Party in any way. Each Party shall be responsible for the actions of, and its obligations to, its own personnel, contractors, and subcontractors including obligations relating to the following, as applicable: payments, wages, taxes, withholding, insurance (including, without limitation, workman’s compensation), and hours and conditions of employment.
11.7. Force Majeure. Neither Party shall be liable, nor shall any credit allowance or other remedy be extended, for any failure of performance or equipment due to causes beyond such Party’s reasonable control, including, but not limited to: acts of God, fire, flood, storm, explosion, terrorism, vandalism, or other similar catastrophes; any law, order, regulation, direction, action, or request of any governmental entity or agency, or any civil or military authority; national emergencies, insurrections, riots, wars; unavailability of rightsof-way or materials; or strikes, lock-outs, work stoppages, or other labor difficulties (“Force Majeure Event”). In the event Tomattos is unable to deliver any Service as a result of a Force Majeure Event, Customer shall not be obligated to pay Tomattos for the affected Service for so long as Tomattos is unable to deliver that Service.
11.8. Legal Expenses. If any action or other proceeding is brought for the enforcement of this Agreement, or because of an alleged or actual dispute, breach, default or misrepresentation in connection with any provision of this Agreement, the successful or prevailing Party shall be entitled to recover reasonable attorney fees and other costs incurred in that action or proceeding, in addition to any other relief to which it may be entitled.
11.9. Waiver. The failure by any Party to this Agreement to insist upon strict performance of any provision of this Agreement will not constitute a waiver of that provision. All waivers must be in writing to be enforceable hereunder.
11.10. Interpretation. The descriptive headings of this Agreement and of any Service Description or Exhibit under this Agreement are for convenience only and shall not affect the construction or interpretation of this Agreement. As used herein, “include” and its derivatives (“including”, “e.g.”) shall be deemed to mean “including, but not limited to.” Each Party acknowledges that this Agreement has been the subject of active and complete negotiations, and that this Agreement should not be construed in favor of or against any Party by reason of the extent to which any Party or its professional advisers participated in the preparation of this Agreement.
11.11. Severability. If any provision of this Agreement shall be declared invalid, illegal or unenforceable under applicable law, said provision shall be ineffective only to the extent of such declaration and such declaration shall not affect the remaining provisions of this Agreement. In the event that a material and fundamental provision of this Agreement is declared illegal, invalid or unenforceable under applicable law, the Parties shall negotiate in good faith respecting an amendment hereto that would preserve, to the fullest extent possible, the respective rights and obligations imposed on each Party under this Agreement as originally executed.
11.12. Executable by Electronic Means. This Agreement may be executed in two or more counterparts (including by means of emailed signature pages), each of which will be deemed an original, and all of which together will constitute one and the same instrument. Photocopies transmissions and other reproductions of this executed original (with reproduced signatures) will be deemed original counterparts of this Agreement. The Parties consent and agree the Agreement and any Order may be entered into electronically by way of electronic signatures (for example, by electronically clicking a box confirming agreement or utilizing third party software such as DocuSign), and any such electronic signatures shall be binding and treated as original signatures. In the event Tomattos requires a correction or clarification to an executed Order prior to the Service’s first day of availability, an email communication from Customer may be utilized as an acceptable method of approval for any such correction or clarification and shall be incorporated as part of the Order.
11.13. Governing Law. This Agreement shall be governed by and interpreted according to the laws of the Peoples Republic Of Bangladesh (without regard to its conflict of law principles).
11.14. Dispute Resolution – Arbitration; Class-Action Waiver, and Jury Waiver. The exclusive means of resolving any dispute or claim arising out of or relating to this Agreement (including the interpretation, enforcement and any alleged breach thereof) or Tomattos’s Services shall be BINDING ARBITRATION administered by JAMS under the JAMS Streamlined Arbitration Rules & Procedures. The one exception to the exclusivity of arbitration is that either Party has the right to bring an individual claim against the other in a small claims court of competent jurisdiction, or, if filed in arbitration, the responding Party may request that the dispute proceed in small claims court if the Party’s claim is within the jurisdiction of a small claims court. If the responding Party requests to proceed in small claims court before the appointment of the arbitrator, the arbitration shall be administratively closed, and if requested after the appointment of the arbitrator, the arbitrator shall determine if the dispute should be decided in arbitration or if the arbitration should be administratively closed and decided in small claims court. Whether Customer chooses arbitration or small-claims court, Customer may not under any circumstances commence or maintain against Tomattos any class action, class arbitration, or other representative action or proceeding.
By using Tomattos’s Services, Customer agrees to the above arbitration terms. In doing so, CUSTOMER GIVES UP THE RIGHT TO GO TO COURT (except for matters that may be taken to small-claims court). CUSTOMER ALSO GIVES UP THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR OTHER CLASS PROCEEDING. Customer’s rights will be determined by a NEUTRAL ARBITRATOR, NOT A JUDGE OR JURY, and the arbitrator shall determine all issues regarding the arbitrability of the dispute. The arbitrator can grant any relief that a court can, and decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Any proceeding to enforce arbitration, including any proceeding to confirm, modify, or vacate an arbitration award, may be commenced in any court of competent jurisdiction. In the event that this arbitration agreement is for any reason held to be unenforceable, any litigation against Tomattos may be commenced only in the supreme, federal or state courts. Customer hereby irrevocably consents to the jurisdiction of those courts for such purposes.
11.15. Tariffs. Subject to the terms set forth in this Agreement, Tomattos hereby incorporates by reference those provisions of its tariffs that govern the provision of any of the services or facilities provided hereunder. If any provision of this Agreement and an applicable tariff cannot be reasonably construed or interpreted to avoid conflict, the provision contained in this Agreement shall prevail.
11.16. Export Matters. Customer represents and warrants that Customer is not on the Office of Foreign Asset Controls list of Specially Designated National and Blocked Persons to whom Tomattos is legally prohibited to provide the Services. Customer may not use any Service for the development, design, manufacture, production, stockpiling, or use of nuclear, chemical or biological weapons, weapons of mass destruction, or missiles, in a country listed in Export Administration Regulations, nor may Customer provide administrative access to any Service to any person (including any natural person or government or private entity) that is located in or is a national of any country that is embargoed or highly restricted under Bangladesh export regulations.
11.17. Entire Agreement. This Agreement, together with all Service Descriptions and Orders, embodies the entire agreement and understanding between Tomattos and Customer with respect to the subject matter of this Agreement and supersedes all prior oral or written agreements and understandings relating to the subject matter of this Agreement. No statement, representation, warranty, covenant or agreement of any kind not expressly set forth in this Agreement will affect, or be used to interpret, change or restrict, the express terms and provisions of this Agreement.
11.18. Survivability. Each Party’s obligations under Section 5 (Representations, Warranties and Covenants), Section 7 (Indemnification), and Section 8 (Limitation of Liability) and shall survive the expiration or termination of this Agreement.
Colocation Terms Of Service
All colocation services provided by Tomattos are to be used for lawful purposes only. Transmission, storage, or presentation of any information, data or material in violation of any Peoples Republic Of Bangladesh’s law is prohibited. This includes, but is not limited to: copyrighted material, material we judge to be threatening or obscene, material that jeopardizes national security, or material protected by trade secret or other laws. The subscriber agrees to indemnify and hold harmless Tomattos, from any claims resulting from the subscriber’s use of Tomattos’s services which damages the subscriber or any other party.
This COLOCATION MASTER SERVICES AGREEMENT TO THE COLOCATION SERVICE ORDER, including the Schedule of Equipment and the Service Level Agreement attached hereto as exhibits and incorporated herein by reference (“Terms and Conditions”) is entered into by Tomattos Technologies Limited. (collectively referred to as “Tomattos”) and are made a part of Tomattos’s standard COLOCATION ORDER (hereinafter referred to as the “Colocation Contract”) made by and between Tomattos and the Customer identified therein. The Colocation Contract is incorporated by reference as if fully set forth herein. Capitalized terms not defined herein shall have the same meaning as in the Colocation Contract.
1. THE BUILDING. Tomattos owns/rent and operates the data center facility. Tomattos has the right to execute license and colocation agreements with third parties for space in the building.
2. GRANT OF LICENSE; TERM; PERMITTED USES; NO REAL PROPERTY INTEREST. Customer owns the computer and related communications equipment (“Equipment”) more particularly described in the Schedule of Equipment attached hereto as Exhibit “A” and incorporated herein by reference.
(a) Grant of License. Tomattos hereby grants to Customer the right and non-exclusive and non-sublicensable license (“License”) to install, operate and maintain the Equipment in the specific space or spaces (“Space”) located in the Premises (“Premises”) in the Building, as specified by Tomattos. The License is granted for the Term, as set forth in Section 2(b) and for the Permitted Uses, as set forth in Section 2(c). Notwithstanding the foregoing, Tomattos reserves the right to relocate, change or otherwise substitute replacement space in the Premises for the Space at any time during the Term hereof, provided that the replacement space is substantially similar in size and configuration to the original Space, and provided further that Tomattos shall provide customer with thirty(30) days prior written notice of such change. Customer may not assign this Agreement, sublicense the Space or allow any other person or entity to use the Space for any reason, without first obtaining the prior written consent of Tomattos.
(b) Term. This Agreement and the license granted herein shall each commence on the date of the account signup and, unless terminated in accordance with Sections 11, 12 or 13 herein, shall each automatically renew for successive terms equal to the initial term unless cancelled by either party in writing at least thirty (30) days before the expiration of the current term (the “Term”). This agreement is valid for a month-to-month term for services are automatically renewed each month in perpetuity subject to written cancellation via help center ticket or email sent to firstname.lastname@example.org (email subject to valid proof of account ownership). Tomattos is not able to schedule cancellation requests.
(c) Permitted Uses. Customer has the right to use the Space solely for the purpose of (i) installation of the Equipment in the Space, (ii) maintaining the Equipment, (iii) operating the Equipment, and (iv) removing the Equipment (Collectively with (i))-(iii), as the “Permitted Uses”). Unless otherwise agreed by Tomattos in writing, Customer shall perform the Permitted Uses at its sole cost and expense.
(d) Not a Grant of an Interest in Real Property. Customer represents, warrants, acknowledges and agrees that it does not have, has not been granted and will not own or hold any real property interest in the Space, the Premises or the Building; that Customer is a licensee not a tenant or lessee of the Space; and that Customer does not have any of the rights, privileges or remedies that a tenant or lessee would have under a real property lease or occupancy agreement.
3. FEES REQUIRED TO BEGIN SERVICE. On the date of account signup, Customer agrees to and shall pay to Tomattos that amount which is equal to the sum of (a) the cost to install the racks, cabinets, cages, custom space, electrical circuits, fiber optic connections, cable, panels and other items necessary for the Equipment to function in the Space (“Expense Component”), plus (b) a prepayment equal to the number of month’s recurring fees determined by Tomattos (the “Fee Component”) (hereinafter together, the “Fees Required to Begin Service”). The Expense Component shall be applied by Tomattos to pay the costs and expenses referenced in the Colocation Service Order. The Expense Component is not refundable to Customer, and shall be deemed earned by Tomattos upon receipt. The Fee Component shall be applied by Tomattos to prepayment of the Fee due from Customer for the first month or months of the Term. The Fee Component is not refundable to Customer, and shall be deemed earned by Tomattos upon receipt.
4. AGREEMENT TO PROVIDE SERVICES AND PAY FEES; SERVICE LEVEL AGREEMENT. Pursuant to this Agreement, Tomattos has agreed to provide certain services (“Services”) to the Customer, and the Customer has agreed to pay certain fees (“Fees”) to Tomattos in consideration therefore. Tomattos shall have the right to increase the Fees: (a) after twelve (12) months of consecutive service in proportion to increases in the Consumer Price Index applicable to the geographic area where the Building is located, plus two percent (2%), provided however, that Tomattos provided Customer with sixty (60) days prior written notice of such increase in fees. Customer may purchase additional Services offered by Tomattos from time to time on terms and conditions mutually agreed to in writing. Tomattos agrees to provide the Services in accordance with and pursuant to the terms and conditions set forth in the Service Level Agreement.
5. PAYMENT OF FEES; DUE DATE; LATE CHARGE; DEFAULT INTEREST. On or before customer account’s billing date of each and every month during the Term hereof (each, a “Due Date”), Customer agrees to and shall pay the Fees to Tomattos, in advance, for the Services to be rendered by Tomattos to Customer during said month, without offset, deduction or credit of any kind and in good and drawable funds. If Customer fails to pay the Fees to Tomattos by the Due Date of any month during the Term hereof for three (3) consecutive months, on the next late payment, customer will be assessed an administrative charge in the amount which is equal to five (5%) of the overdue Fees (“Administrative Charge”); in addition Tomattos may charge interest on all due but unpaid Fees at 1.5% per month (“Default Interest”) until paid in full. Customer agrees to and shall pay to Tomattos for all costs of collection of the Fees, Default Interest and Administrative Charges. Customer’s obligation to pay the Fees, Default Interest and Late Charges shall survive the expiration or earlier termination of this Agreement. If Customer requests that Tomattos provide services not specifically set forth herein and Tomattos agrees to provide such services, Customer agrees to pay Tomattos’s standard fee for such service at the time such service is rendered or such charge as the parties may mutually agree upon prior to the delivery of the service. Tomattos may suspend any or all Services to Customer if payment for any Service is overdue by thirty (30)days.. A “Reinstatement Fee” equal to seventy-five dollars ($75.00) will be assessed for suspended Services and must be collected with the overdue Fees for the account to be reinstated. If a Fee is disputed in good faith by Customer then the parties shall work together in good faith to resolve the dispute. Notwithstanding any other term in this Agreement, Customer may suspend the payment of all disputed amounts until the dispute is resolved and all of Tomattos’s obligations shall continue unabated until dispute resolution. Fees not disputed within sixty (60) days of due date are conclusively deemed accurate.
6. RETURNED CHECK FEE AND CREDIT CARD CHARGE BACKS. A returned check penalty fee of $25 will be charged to any customer’s account for any check dishonored by their financial institution. This fee will be waived if the check was returned in error, provided that supporting documentation is submitted. The returned check and penalty fee must be paid immediately in order to guarantee that services will remain online and available. If a customer or anyone paying on the customer’s behalf has written two or more returned checks, check cashing privileges will be revoked. If a returned check was used to pay for more than one customer’s account, each account will be assessed the $25 returned check fee. Payments made by a returned check are reversed from the customer account, leaving the balance due and payable immediately. Outstanding balances are subject to the unpaid fees and delinquent accounts policy and may result in server suspension or account termination. If the account is terminated all information within the account will be deleted.
A credit card charge back fee of $50 will be charged to any customer’s account for any charge back received by their financial institution. The original charge amount and penalty fee must be paid immediately in order to guarantee that services will remain online and available. If a customer or anyone paying on the customer’s behalf has used a credit card to pay for services ending in 2 or more chargebacks, will result in credit card payment privileges being revoked (full payment will be due via money order or wire transfer). This fee will be waived and credit card payment privileges reinstated if the chargeback resulted in error, provided that supporting documentation is submitted. If a credit card was used to pay for more than one customer account resulting in multiple chargebacks, each account will be assessed the $50 fee. Chargebacks received are reversed from the customer’s account, leaving the balance due and payable immediately. Outstanding balances are subject to the unpaid fees and delinquent accounts policy and may result in server suspension or account termination. If the account is terminated all information within the account will be deleted.
7. RULES AND REGULATIONS. Customer agrees to and shall abide by and honor all rules, regulations, policies and procedures with regard to the use of the Space, the Premises and the Building from time to time published by Tomattos (whether written or published on Tomattos’s website).
8. CONFIDENTIALITY. Each party acknowledges that it may acquire from the other information that is of a special and unique character and constitutes Confidential Information. The Receiving Party agrees to exercise the same degree of care accorded its own Confidential Information, but in no case less than reasonable care. For purposes hereof, “Confidential Information” means any information that a disclosing party (the “Disclosing Party”) treats in a confidential manner and that is marked “Confidential Information” prior to disclosure to the other party (the “Receiving Party”). Confidential Information does not include information which:
(a) is public or becomes public through no breach of the confidentiality obligations herein;
(b) is disclosed by the Receiving Party with the prior written approval of the other party;
(c) was known by the Receiving Party at the time of disclosure;
(d) was developed independently by the Receiving Party without use of the Confidential Information;
(e) becomes known to the Receiving Party from a source other than the disclosing party through lawful means;
(f) is disclosed by the disclosing party to others without confidentiality obligations; or
(g) is required by law to be disclosed, provided however, that such party shall provide notice to the other party as soon as reasonably practicable.
9.1 INSURANCE REQUIREMENTS OF CUSTOMER. Customer agrees to and shall maintain in force and effect during the Term of this Agreement, a policy or policies of commercial general liability insurance, with a company licensed to do business within the state where the Building is located, insuring Customer against all hazards and risks customarily insured against by persons locating equipment such as the Equipment in space in buildings such as the Space in the Building. The policy shall be written on a per-occurrence basis with blanket contractual liability coverage, with respect to use of the Space in the Premises and operation of Customer’s business therein, with a combined single-limit coverage of not less than One Million Dollars ($1,000,000) equivalent and aggregate umbrella coverage of not less than an additional One Million Dollars ($1,000,000) equivalent. Customer shall maintain property insurance (inclusive of coverage for data, media and electronic data processing perils) written on a “Special Form” basis at full replacement cost value. Customer’s policies shall contain provisions providing that such insurance shall be primary insurance insofar as Customer is concerned, with any other insurance maintained by Tomattos being excess and noncontributing with the insurance of Customer required hereunder; and the same shall provide coverage for the contractual liability of Customer to indemnify Tomattos. Each of Customer’s policies shall name Tomattos, as an “Additional Insured”. All such policies shall provide that Customer’s insurer waives all rights of subrogation against Tomattos. Customer shall procure and maintain workers’ compensation insurance in accordance with all applicable laws subject to statutory limits.
9.2 INSURANCE REQUIREMENTS OF TOMATTOS. Tomattos shall, at a minimum and at its own expense, carry and maintain during the entire Term of this Agreement, including any subsequent extensions thereof, the following types and limits of insurance coverage:
(a) Workers’ Compensation insurance in accordance with all applicable laws subject to statutory limits, which shall include a waiver of subrogation in favor of Customer;
(b) Employer’s Liability insurance with limits of not less than $10,000 per accident for bodily injury and $10,000 per employee and policy limit for disease or the local statutory limit, whichever is greater, which shall include a waiver of subrogation in favor of Customer;
(c) Commercial General Liability (CGL) or Public Liability insurance with limits of not less than $10,000 per occurrence and $20,000 annual aggregate, which shall include Customer as an additional insured.
10. INDEMNITY. Customer and Tomattos and their respective officers, directors, shareholders, employees, agents, representatives, parent companies, affiliated companies and subsidiary companies (each, as an“Indemnifying Party”) each hereby agree to and shall indemnify, defend, protect and hold the other party and its respective officers, directors, shareholders, employees, agents, representatives, parent companies, affiliated companies and subsidiary companies (each, as an “Indemnified Party”) free and harmless from and against all Claims (defined below) for damages (including but not limited to attorneys’ fees, costs and expenses), injury and death arising out of or relating directly or indirectly to the failure or alleged failure by the Indemnifying Party to comply with or otherwise perform its obligations under this Agreement, excepting therefrom Claims arising out of or relating to the intentional misconduct or gross negligence of the Indemnified Party. For purposes of this Agreement, the term “Claims” means any and all claims, causes of action (whether based on tort or contract law principles, law or equity, or otherwise), charges, assessments, fines, and penalties of any kind (including consultant and expert expenses, court costs, and reasonable attorneys’ fees and costs. This indemnification extends to and includes-
(a) Claims for injury to any persons (including death at any time resulting from that injury), and loss of, injury or damage to, or destruction of real or personal property (including all loss of use resulting from that loss, injury, damage, or destruction of the Space or Premises), but specifically excluding
(b) Claims for economic and consequential loss or damage, and resulting, incidental or punitive damages of any kind. The provisions of this section shall survive the expiration or earlier termination of this Agreement. An Indemnified Party seeking Indemnification shall give the Indemnifying Party prompt notice of any claim asserted or threatened against such Indemnified Party on the basis of which such Indemnified Party intends to seek indemnification, but the obligations of the Indemnifying Party shall not be conditioned upon receipt of such notice except to the extent that the Indemnifying Party is actually prejudiced by such failure to give notice). The Indemnifying Party shall promptly assume the defense of any Indemnified Party and may select counsel in its sole and reasonable discretion. Notwithstanding the foregoing, any Indemnified Party shall be entitled, at its expense, to employ counsel separate from counsel for the Indemnifying Party and from any other party in such action, proceeding, or investigation. An Indemnified Party may not agree to a settlement of a Claim without the prior written approval of the Indemnifying Party, which approval shall not be unreasonably withheld. No Indemnifying Party may agree to a settlement of a Claim against an Indemnified Party unless such settlement includes a full release of the Indemnified Party. Each party’s maximum aggregate liability to the other hereto or any third party for any damages or other liabilities, whether based on warranty, contract, negligence, or otherwise, shall not exceed the sum of the total Fees paid to Tomattos by customer under this Agreement.
11. DISCLAIMER OF WARRANTY. Upon execution and delivery of this Agreement, Customer accepts the Space on an “as is where-is” basis. Except as otherwise specified in this Agreement or this Schedule, Tomattos makes no representations or warranties, express or implied, as to the condition of the Space, the Premises or the Building and specifically disclaims, any and all express or implied representations or warranties including without limitation, any warranties of merchantability or fitness for a particular purpose.
12. EVENT OF DEFAULT BY CUSTOMER. Except as set forth in Section 5, the occurrence of any one or more of the following shall constitute an“Event of Default” by Customer under this Agreement:
(a) on or after the thirtieth (30th) calendar day after the account invoice due date of each month during the Term hereof, Customer for any reason fails to pay to Tomattos any Fees or any other amount due hereunder, or
(b) on or after the 30th day after the date when due, Customer fails to pay to any other person or entity to whom Customer is required by this Agreement to make payment any amount required by this Agreement to be paid; or Customer fails to perform any obligation or covenant set forth in this Agreement and the same is not cured within ten (10) business days following receipt of written notice thereof.
13. TOMATTOS’S REMEDY UPON DEFAULT; TERMINATION. Except as set forth in Section 5, in addition to all rights and remedies granted to Tomattos in this Agreement (including, but not limited to, the right to charge and collect Late Charges), upon the occurrence of an Event of Default, Tomattos shall have the right-
(a) to cease providing the Services to Customer without notice to Customer,
(b) to remove the Equipment from the Space without written notice to Customer provided that Tomattos returns the equipment to Customer as soon as shipment is provided by Customer/cost of shipment is paid by Customer, and
(c) upon not less than thirty (30) business days written notice to Customer, to terminate this Agreement. In the event Tomattos terminates this Agreement, the same shall terminate, expire and (except as otherwise provided in this Agreement) have no further force or effect on the date set forth in Tomattos’s notice of termination.
Upon such termination, Customer agrees to and shall immediately (i) pay to Tomattos all Fees and other amounts due and owing for Services provided through and including the effective date of termination, (ii) if not already removed by Tomattos, Customer shall remove its Equipment from and shall vacate the Space and the Premises, and (iii) Customer shall repair any damage, other than normal wear and tear, caused to the Space, the Premises or the Building as a consequence of any removal. Customer’s obligations under this section shall survive the termination or expiration of this Agreement.
14. TERMINATION FEE AND REMOVAL OF EQUIPMENT. This Agreement is subject to term commitments. In the event that this Agreement is terminated by Customer for any reason other than default by Tomattos, prior to the end of the then-current term, Customer shall pay to Tomattos an amount equal to three (3) months’ worth of Fees, unless there is less than three (3) months remaining in the applicable Term and, in such event, the remaining Fees due for the term. In addition, Customer will remove all Equipment within 30 days from the termination date. Tomattos reserves the right to move any Equipment that remains in the Space after 45 days and charge Customer Fees at Tomattos’s sole discretion and, after 60 days, if the Equipment remains unclaimed, it will be deemed abandoned and Tomattos will dispose of it as it deems appropriate.
15. EVENT OF DEFAULT BY TOMATTOS. The failure by Tomattos to perform any obligation or covenant set forth in this Agreement, if the same is not cured within ten (10) business days following receipt of written notice thereof, shall constitute an “Event of Default” by Tomattos. Upon the occurrence of such Event of Default, Customer may terminate this Agreement upon not less than three (3) business days written notice to Tomattos.
16. ATTORNEYS’ FEES. If any legal or administrative action or proceeding is brought by either party against the other party to enforce or interpret any term or provision of this Agreement, the prevailing party in said action or proceeding shall be entitled to recover from the party not prevailing its reasonable attorneys’ fees and costs incurred in connection with the prosecution or defense of such action or proceeding. The foregoing includes, without limitation, attorneys’ fees and costs of investigation incurred in appellate and remand proceedings, or costs incurred in establishing the right to indemnification.
17. ASSIGNMENT. This Agreement shall be binding on the parties and their successors (through merger, acquisition or other process) and permitted assigns. Neither party may assign, delegate or otherwise transfer its obligations or rights under this Agreement to a third party without the prior written consent of the other party and any such transfer shall be void.
18. GOVERNING LAW. This Agreement and all documents and instruments executed in connection therewith or herewith shall be governed by and interpreted in accordance with the substantive laws of the peoples Republic of Bangladesh without regard to principles of conflict of laws. The parties each agree that sole and exclusive jurisdiction and venue for any action or litigation arising from or relating to this Agreement shall be an appropriate court located in Bangladesh.
19. NO WAIVER. The failure of either party at any time to enforce any right or remedy available to it under this Agreement or under any other document or instrument executed in connection herewith or therewith shall not be construed to be a waiver of such right or remedy with respect to any other breach or failure by either party.
20. LIMITATION OF LIABILITY.
(a) In addition to the specific limitations of liability set forth in other paragraphs herein Tomattos shall not in any case be liable for any of the following: (1) the content of the information passing over its network; (2) unauthorized access or damage to, alteration, theft, destruction or loss of, Customer’s records, information, files or data, unless such loss was due to willful misconduct or gross negligence by Tomattos; (3) economic consequential damages (including lost profits and savings) or incidental damages, even if Tomattos is informed of their possibility; (4) claims for damages caused by Customer; (5) claims against Customer by any other party; or (6) any act or omission of any other party furnishing services and/or products, or the installation and /or removal of any and all equipment or supplies.
(b) In addition to the specific limitations of liability set forth in other paragraphs herein Customer shall not in any case be liable for any of the following: (1) the content of the information passing over its network; (2) unauthorized access or damage to, alteration, theft, destruction or loss of, Tomattos’s records, information, files or data, unless such loss was due to willful misconduct or gross negligence by Customer; (3) economic consequential damages (including lost profits and savings) or incidental damages, even if Customer is informed of their possibility; (4) claims for damages caused by Tomattos; or (5) claims against Tomattos by any other party.
(c) Notwithstanding the provisions of the Service Level Agreement (Exhibit “B”), TOMATTOS SHALL NOT BE LIABLE FOR ANY FAILURE OR DELAY IN PERFORMANCE TO THE EXTENT CAUSED BY CAUSES BEYOND ITS COMMERCIALLY REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, LABOR DISPUTES, FIRES OR OTHER CASUALTIES, NATURAL DISASTERS, OR THE CONDUCT OF THIRD PARTIES (“FORCE MAJEURE”).
(d) Notwithstanding the provisions of the Service Level Agreement (Exhibit “B”), TOMATTOS SHALL NOT BE HELD LIABLE FOR ANY DAMAGES, INCLUDING THE LOSS OF PROSPECTIVE PROFITS OR ANTICIPATED SALES OR ON ACCOUNT OF EXPENDITURES, INVESTMENTS, OR COMMITMENTS INCURRED IN CONNECTION WITH CUSTOMER’S BUSINESS, WHICH RESULT FROM QUALIFIED SERVICE OUTAGES OR ANY OTHER FAILURE OF CONNECTIVITY OUTSIDE THE SCOPE OF TOMATTOS’S CONTROL, EXCEPT THAT CUSTOMER’S SOLE REMEDY FOR QUALIFIED SERVICE OUTAGES SHALL BE THE REFUND PROVIDED PURSUANT TO THE SERVICE LEVEL AGREEMENT (EXHIBIT “B”) TOMATTOS SHALL NOT BE LIABLE FOR ANY OTHER TYPE OF DOWNTIME OR CONNECTIVITY FAILURE OR SERVICE INTERRUPTION. UNLESS SUCH DOWNTIME OR CONNECTIVITY FAILURE OR SERVICE INTERRUPTION WAS WITHIN THE SCOPE OF TOMATTOS’S CONTROL (e.g., paying the utility bill).
(e) TOMATTOS ASSUMES NO LIABILITY FOR ANY DAMAGES TO, OR LOSS OF, ANY CUSTOMER EQUIPMENT RESULTING FROM ANY ACTION OR FAILURE TO ACT BY ANY OF CUSTOMER’S THIRD PARTY AGENTS, VENDORS OR SERVICE PROVIDERS.
(f) IN NO CASE SHALL THE PARTIES BE LIABLE TO EACH OTHER FOR ANY CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES WITH RESPECT TO ANY CLAIMS REGARDING THE SERVICES TO BE PROVIDED HEREUNDER, EVEN IF THEY HAVE BEEN NOTIFIED OF THE POSSIBILITY THEREOF.
21. AMENDMENTS. This Agreement may be amended or modified. By continuing to use the Services, you agree to be bound by the modified terms.
22. NOTICES. All notices and demands hereunder shall be in writing and shall be served by personal service by mail at the address of the receiving party set forth below (or at such different address as maybe designated by such party by written notice to the other party). All Notices and other communications hereunder shall be in writing and shall be deemed to have been duly given as of the date of confirmed delivery or confirmed mail transmission. To be effective, Notices must be delivered to the attention of:
TO: Tomattos Technologies Limited
H-12, 11th Floor, Razzak Plaza
Moghbazar, Ramna, Dhaka-1217, Bangladesh
ATTN: System & Services Telephone: 8809606444111
Mobile: 8801621222111, 8801624222111
23. RIGHT TO ACCESS SPACE.
(a) Tomattos retains the right to access the Space at any time and from time to time to perform maintenance and repairs, to inspect the Equipment and to perform the Services.
(b) The Customer agrees to provide Tomattos twenty-four (24) hours notice before visiting the Space. The Customer shall provide written notice for the visit, including the date, start, and end time of visit, the expected length of the visit, its account information, name of all visitors, and specify the hardware it will access at such visit. Failure to provide the requested information or provide twenty four (24) hours written notice may result in a delayed visit or a fee for the visit. Customer agrees that it will receive authorization from Tomattos for tools or additional hardware it needs for the visit or for any installation of such hardware. Should the Customer fail to arrive or reschedule this visit with less than twenty-four (24) hours notice, an additional fee may apply.
(c) Customer shall receive twenty-four (24) hours of escorted access per calendar year per account. Hours spent in the data center beyond the allotted twenty-four (24) hours are subject to additional fees. A single visit has a maximum cumulative time limit of four (4) hours, which includes any time the Customer spends outside of the data center. Should the Customer require more than four (4) hours, such visitation is subject to an additional fee and is outside of the yearly twenty-four (24) hour allotment.
24. RELATIONSHIP OF THE PARTIES. The parties agree that their relationship hereunder is in the nature of independent contractors. Neither party shall be deemed to be the agent, partner, joint venturer or employee of the other, and neither shall have any authority to make any agreements or representations on the other’s behalf. Each party shall be solely responsible for the payment of compensation, insurance and taxes of its own personnel, and such personnel are not entitled to the provisions of any employee benefits from the other party. Neither party shall have any authority to make any agreements or representations on the other’s behalf without the other’s written consent. Additionally, Tomattos shall not be responsible for any costs and expenses arising from Customer’s performance of its duties and obligations pursuant to this Agreement.
25. REPRESENTATIONS. Both parties represent and warrant to the other:
(1) that it is a duly organized and existing legal entity under the laws of its domicile, if Customer is a corporation or partnership;
(2) that it has full authority to enter this Agreement;
(3) that the execution and/or performance of this Agreement does not and will not violate or interfere with any other agreement by which such warranting party is bound; and
(4) that the warranting party will not enter into any agreement whose execution/performance would violate or interfere with this Agreement.
26. HEADINGS. The titles and headings of the various sections and paragraphs in this Agreement are intended solely for convenience of reference and are not intended for any other purpose whatsoever or to explain, modify, or place any construction on any of the provisions of this Agreement.
27. COUNTERPARTS. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but which together shall constitute one and the same document.
28. LIMITATION OF ACTIONS. No action, regardless of form, arising out of or relating to this Agreement may be brought by the Customer more than twenty-four (24) months from the date on which the cause of action accrues. The parties expressly agree that this part, supplants and replaces any and all periods of limitation otherwise provided for by law and applicable hereto.
29. SEVERABILITY. If any portion of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The parties agree that any such invalid provision shall be replaced with a valid provision which most closely approximates the intent and economic effect of the invalid provision.
30. ENTIRE AGREEMENT. This Agreement constitutes the full agreement between the parties with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous purchase orders, agreements, quotations, proposals, correspondence, or communications, such subject matter. Any provision of a purchase order purporting to supplement or vary the provisions of this Agreement shall be void. The parties agree that there are no third party beneficiaries to this Agreement.
31. COLOCATION HANDS ON SUPPORT. Colocated equipment is to be provided and configured by the Customer before being shipped to the Space. Additional hardware will not be made available for sale by Tomattos. ‘Hands On Support’ may be provided by Tomattos at an additional charge. A “helpcenter ticket” is required for “Hands on Support” as well as specific instructions from the Customer on how to remove/replace the hardware components for the general maintenance of the equipment. Installing OS, software, or otherwise configuring the server is outside the scope of ‘Hands On Support.’ Tomattos reserves the right to refuse providing such ‘Hands On Support’ at its discretion, makes no warranties, and is not responsible for any damages caused to hardware, loss of data or loss of service as a result of the ‘Hands On Support.’
32. PROMOTIONAL USE. Tomattos may refer to You, Your company, or your logo’s for promotional purposes. Your company name, logos and the services that were provided to the customer by Tomattos may be used in promotional materials, advertising, marketing releases, newsletter, public disclosures and on the Tomattos website. This reference will be strictly limited to disclosure that Tomattos has provided services to the company and will not contain any confidential, sensitive or proprietary information in such a reference. The reference will also not provide any personally identifiable information about the individual or technical information regarding the server configuration and design used by the customer at Tomattos. However, Tomattos may disclose any information requested by law enforcement or when compelled by court order, applicable laws or regulations.
SERVICE LEVEL AGREEMENT
Tomattos agrees to and shall provide the Services to the Equipment in the Space in accordance with this Service Level Agreement. Capitalized terms not defined herein shall have the same meaning as in this Agreement and Terms and Conditions:
Tomattos’s intention is to provide uninterrupted power to the Equipment in the Space; however, events occur from time to time that may interrupt the power delivered to the Equipment in the Space. In the event that Customer experiences an interruption in power delivery to the Equipment in the Space (a “Power Interruption”), excluding scheduled maintenance, Tomattos may, for each impacted power circuit in the Space, grant to Customer a percentage credit during the next succeeding month (a “Power Interrupt Percentage Credit”). Notwithstanding the foregoing, if a Power Interruption is caused by one or more events of Force Majeure or by the Customer exceeding 80% of a circuit breaker’s rating under continuous load, the Customer shall not be entitled to a Power Interrupt Percentage Credit. The Power Interrupt Percentage Credit shall be based on the following schedule:
Tomattos will provide the customer a credit for ten (10) times the amount of actual power interruption. This means that if the customer power infrastructure is unavailable for one (1) hour, customer will receive ten(10) hours of credit.
Power Interrupt Percentage Credits are not cumulative from month to month and apply only to the month in which the Power Interruption occurred. Customer shall not receive during any month of the Term hereof a Power Interrupt Percentage Credit, which cumulatively exceed 100% of the monthly Fee allocable to the power circuit(s) affected in the Space. Where possible, Tomattos will provide Customer with directed remote hands-services (without charge) to power up affected Equipment on a best effort basis
Network Uptime (only applicable when Tomattos provides Internet Access)
Tomattos guarantees that the network will be available 100% of the time in a given month excluding scheduled maintenance. Tomattos will provide the customer a credit for ten (10) times the amount of actual downtime. This means that if the network is unavailable for 1 hour, customer will receive 10 hours of credit. Network uptime includes functioning of all network infrastructure including router, switches and cabling. Network downtime exists when a particular customer is unable to transmit and receive data and Tomattos records such failure in the Tomattos ticket systems and logs.
Network SLA Exclusions
Many possible situations are completely beyond the control of Tomattos, and therefore are not in the scope of this SLA. These situations include:
Scheduled Network Maintenance – occasionally network maintenance will be required. Tomattos will do everything possible to minimize and avoid downtime during this maintenance. You will receive prior notification of upcoming maintenance at the e-mail address we have on file. Scheduled maintenance periods are not eligible for SLA credits.
Malicious Attacks – if a third party not associated with Tomattos initiates a “Denial of Service” or other form of disabling attack against your Colocated Servers or major portions of our network, Tomattos will do everything in its power to stop the attack, but cannot guarantee a resolution time.
Legal Actions – In the case that a legal action is taken against a customer of Tomattos and Tomattos is required to act in accordance with the order, Tomattos shall not be responsible for any SLA damages.
REFUNDS OR CREDITS
In order to qualify for a refund or credit pursuant to this Service Level Agreement, Customer must-
(a) contact Tomattos’s Network Operations Center 8809606444111 or email email@example.com within one (1) business day of the occurrence of the event for which the refund or credit is being requested and open a ticket, and
(b) within ten (10) calendar days of the occurrence of the event deliver to Tomattos written notice describing with precision the dates and time of the event, the length of the event (in minutes and hours), the type of event, which rack, cage, or cabinet in the Space was affected by the event, and what effect the event had on Customer’s ability to operate the Equipment during the event. Upon opening of the “trouble ticket” Tomattos will commence to investigate the facts which led to the event, and upon receipt of Customer’s written notice describing the event Tomattos shall make an examination of Tomattos’s facility monitoring system records for the impacted cage, rack or cabinet in the Space. Tomattos agrees to and shall make a determination of whether Customer is entitled to a refund or credit within thirty (30) calendar days from the occurrence of the event.
Until such determination, Customer shall continue to pay on a timely basis all monthly Fees required by this Agreement without offset, credit or deduction. The amount of any refund or credit to which Customer is entitled for an impacted power circuit, Internet access, or cross-connect shall not exceed one hundred percent (100%) of the monthly Fee allocable to the specific impacted power circuit, Internet access, or cross-connect. Under no circumstance will Customer be entitled to a refund or credit if the event complained of was caused by an event of Force Majeure, scheduled maintenance, or Customer’s actions.
Customer agrees to and shall abide by and honor all rules, regulations, policies and procedures with regard to the use of the Space, the Premises and the Building from time to time published by Tomattos whether written or published on Tomattos’s website. By signing this Agreement the customer agrees to be bound by Tomattos’s Terms and Conditions. Customer also Acknowledges that they have reviewed Tomattos’s Policies & Procedures. Tomattos will confirm delivery date after the order has been validated and approved. Installation charges are an estimate only. Final charges are subject to completion of installation. Tomattos cannot guarantee additional power for reconfiguration or upgrades of customer equipment, except as specified in this Agreement.
Customer authorizes Tomattos to release customer’s name to other Tomattos potential and current customers.
Customer agrees and acknowledges that it is solely responsible for ordering circuits directly from the carrier if Customer is not purchasing bandwidth from Tomattos. Customer shall coordinate with the carrier the delivery and provisioning of circuits to Tomattos facilities. Tomattos may be able to assist only if circuit number(s) are provided. Customer understands that Tomattos is not responsible for commitments made by carriers.
Acceptable Use Policy - AUP
This Acceptable Use Policy – AUP governs the use of all the hosting services, hosting solutions, cloud services, and other offerings (the “Services”) made available by Tomattos Technologies Limited and its suppliers, brands, and affiliates (“Tomattos”). This AUP is an integral part of your agreement with Tomattos and is incorporated by reference into the terms pursuant to which Tomattos provides you the right to access or use the Services. Access to or use of the Services constitutes your acceptance of this AUP. Tomattos reserves the right to alter this AUP at any time and such modifications shall become immediately effective upon posting the modified AUP or by notification to you of the modified AUP.
The purpose of this AUP is to set forth guidelines for the expected conduct of users of the Services and the types of actions and content that are contrary to Tomattos’s mission and philosophies. This AUP is intended to protect the Services, employees and customers of Tomattos, and end users from improper, inappropriate, abusive or illegal activity. Tomattos may suspend or terminate your right to access and use the Services if, in its sole determination, it believes you have violated this AUP.
Responsibilities and Prohibited Use
You are responsible for the activities of your agents, representatives, and end-users (“Users”) and will they abide by this AUP. The Services shall be used solely for legitimate business and commercial purposes, and you shall not use the Services for activities which, in Tomattos’s sole discretion, may be illegal, offensive, abusive, or in a manner that interferes with or adversely affects the Services or use of the Services (including deliberate attempts to overload a system and broadcast attacks) or that would expose Tomattos to criminal or civil liability. Some examples of prohibited activities follow, but this is not an exhaustive list. You and your Users agree not to use the Services for:
- Hacking, phishing, spamming, scamming, identity theft, fraud, forgery, deception, virus or malware distribution, network attacks, and interference with any other user’s use of the Services.
- The unauthorized access, monitoring, collection, or use of data, systems or networks.
- Transmitting, distributing or storing illegal or fraudulent information or material or information or material that will infringe or otherwise violate any privacy, intellectual property, publicity or other personal rights including, any copyright, patent, trademark, trade secret or other proprietary right.
- Engaging in offensive activities such as harassment or transmitting or distributing content that is inappropriate, obscene, defamatory, threatening, abusive, that advocates violence, or that violates a law, regulation, or public policy.
- Run VPN to bypass internet traffic via bdix or vice-versa.
In addition, you and your Users must comply with all applicable laws, rules and regulations related to your use of the Services, specifically including data protection and privacy laws, as well as laws relating to unsolicited commercial electronic messages.
Tomattos reserves the right at all times to investigate any actual, suspected, or alleged violations of this AUP. You shall reasonably cooperate with Tomattos in investigating and correcting any actual or alleged breach of this AUP by yourself of any User. Tomattos further reserves the right to cooperate with legal authorities and third parties in investigating any alleged violations of this AUP, including disclosing the identity of any User that Tomattos believes is responsible for such violation. Tomattos may implement technical mechanisms to prevent AUP violations.
Nothing in this AUP shall limit Tomattos’s rights and remedies at law or in equity that may be available.
Consequences of Violations of this AUP
If Tomattos, in its sole discretion, reasonably believes you or your User violated this AUP, Tomattos may suspend your Services without prior notice, terminate your agreement with Tomattos, and/or block any traffic that it reasonably believes is in violation of this AUP. In addition to any other remedy Tomattos may have, it may charge you its standard hourly rate together with its reasonable legal fees, and the cost of equipment and material needed to investigate, respond to, and remedy any violations of this AUP.
Tomattos is under no duty to monitor user’s activities, and Tomattos disclaims any responsibility for any User’s misuse of the Services. Tomattos has no responsibility for any User or other third-party material or information created, stored, maintained, transmitted or accessible on or through the Services, and is not obligated to monitor or exercise any editorial control over such material. In the event that Tomattos becomes aware that any such material violates this AUP and/or exposes Tomattos to civil or criminal liability, Tomattos may, but is not required to, block access to such material. Unless otherwise stated in this AUP, Tomattos disclaims any obligation to any person who has not entered into an agreement with Tomattos for use of the Services.
Notification of Violations
If you become aware of any violation of this AUP by anyone, including your Users, you must immediately notify Tomattos using the Report Abuse Form.
Copyright Infringement Policy
Customers of Tomattos required to respect the legal protection provided by copyright law. If you (“Complainant”) believe that your work has been copied in a way that constitutes copyright infringement by a customer receiving services from Tomattos, please report to the Tomattos Technologies Limited copyright agent by Copyright & Trademark Infringement page.
Trademark Infringement Policy
Customers of Tomattos are required to respect the legal protection provided by trademark law. Trademark complaints are outside the scope of the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. § 512(c)(3) notice and takedown process, however, if you are a trademark owner and, in good faith, believe that a customer receiving services from Tomattos is infringing upon your trademark, please report us from Copyright & Trademark Infringement page.