Positioner Inc. HOSTED SERVICES TERMS OF SERVICE
All the terms outlined in this agreement shall be deemed agreed to when hosted services provided by Positioner Inc. are registered for.
- Where this agreement states: “Positioner”, “us”, “our” and “we” includes Positioner Inc. or any party acting on behalf of Positioner Inc.
- Where this agreement states: “you”, “customer” and “user” includes the person purchasing the services or any party acting on the customer’s instructions. If representing a business or organization, we assume that you are authorized to agree to the terms and conditions of service outlined here on behalf of the said business or organization.
- Where this agreement states: “agreement” and “policy” includes this document. The latest revision of this document can be found at this web site: http://www.Positioner.org/agreement
- Where this agreement states: “hosted solution”, “services”, “hosted appliance”, “software” and “server” includes the hosting and services provided by Positioner Inc.
- Where this agreement states: “customer area” and “members area” includes the Positioner customer portal located at http://Positioner.org/support.
In consideration of the mutual covenants herein, the parties agree to the following, which shall apply during the term of this agreement:
1. AGREEMENT
1.1. By registering for our hosted service you agree to the terms and conditions outlined in this document.
1.2. This agreement shall be governed by and construed in accordance with India’s law and the laws governing Punjab, India. You hereby submit to the non-exclusive jurisdiction of the Punjab, India courts.
1.3. We reserve the right to make changes to this agreement without notice. It is your obligation to obtain and revisit this document periodically to review for any changes.
1.4. We have included headings in this document only for convenience. These headings shall not affect the construction or interpretation of this agreement.
2. LIMITATION OF LIABILITY
2.1. You agree to use the services offered entirely at your own risk.
2.2. All conditions, terms, representations and warranties relating to the services supplied under this agreement, whether imposed by statute or operation of law or otherwise, that are not expressly stated in these terms and conditions including, without limitation, the implied warranty of satisfactory quality and fitness for a particular purpose are hereby excluded.
2.3. Our total aggregate liability to you for any claim in contract, negligence or otherwise arising out of or in connection with the provision of the services shall be strictly limited to the charges paid by you for the services that are the subject of any claim made.
2.4. In no event will a claim be brought unless you have notified us of the claim within one year of the incident arising.
2.5. In no event will we be held liable for any loss (data, economic or otherwise) or other commercial damage, including but not limited to special, incidental, consequential or other damages, direct or indirect.
3. INDEMNIFICATION
3.1. You agree to defend, indemnify and hold harmless Positioner against liabilities arising out of:
3.1.1. Any injury to person or property caused by any products or services sold or distributed by Positioner;
3.1.2. Any material supplied by you infringing or allegedly infringing on the proprietary rights of a third party;
3.1.3. Copyright infringement and
3.1.4. Any defective products or services sold to the customer.
3.2. You agree to defend, indemnify, save and hold Positioner harmless from any and all demands, liabilities, losses, costs and claims, including reasonable legal fees asserted against Positioner, its agents, its customers, officers and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by customer, its agents, employees or assignees.
3.3. Positioner will be the sole arbitrator of this policy.
4. BACKUPS AND DATA INTEGRITY
4.1. We take regular backups of your hosted support desk. No guarantees of any kind will be made as to the integrity of these backups. You agree to maintain all appropriate backup of files and data stored on Positioner servers.
4.2. We will not be held responsible for data hosted on our servers. It is your responsibility to maintain local copies of your hosted support desk data and maintain proper and sufficient insurance if coverage is required with respect to data loss.
4.3. If loss of data occurs due to an error on our part, we will attempt to recover your data at no charge.
4.4. If loss of data occurs due to negligence or error on your part, we may require a recovery fee of up to US $99.95.
5. USAGE
5.1. You or anyone else may not use your hosted support desk as a proxy connection which includes but is not limited to hosting a script to proxy between a user and another web site.
5.2. You may not resell areas of your hosted support desk. An example violation of this term includes but is not limited to allowing/charging another person or company to make use of your hosted support desk (via additional departments, user accounts and template groups).
5.3. Your hosted support desk may not exceed a hard disk quota of 500 megabytes, including all files and the total size of your hosted account database. Your hosted support desk will be limited to transferring 10 gigabytes of data monthly. You may be able to purchase additional storage space and bandwidth.
5.4. If you exceed these limits, we reserve the right to suspend services to you.
5.5. FAIR USAGE POLICY
5.5.1. You must abide by a fair usage policy. If your hosted support desk is heavily used in such a way that it affects the performance of other customers on the same server, we may suspend services to you. Depending on the problem (whether sustained or a one-time occurrence), we may require you to upgrade to a hosted appliance product (a dedicated server).
5.5.2. Resources that concern the fair usage policy include but are not limited to;
5.5.2.1. Bandwidth,
5.5.2.2. CPU and memory usage and
5.5.2.3. Disk quota
5.7. If in violation of the fair use policy (section 5.5), you will be given a choice between upgrading to a hosted appliance or the cancelation your account. If you opt for account cancellation, you will not be entitled to a refund (section 10.2).
5.8. If you opt to upgrade to a hosted appliance, we undertake to make the utmost effort to ensure your hosted appliance is available as soon as possible. While we do not guarantee that access to and availability of your hosted support desk will continue during transference to the hosted appliance, we will do our best to accommodate you until your hosted appliance is ready.
5.9. We enforce a zero-tolerance spam policy. Unsolicited electronic mail sending is strictly forbidden.
5.10.You undertake to keep all passwords and login credentials secure. If in the case that you suspect a security violation you also undertake to notify us immediately.
5.11.We will be the sole arbitrator of this policy.
6. CONTENT
6.1. You undertake that you will use the hosted support desk only for lawful purposes.
6.2. We do not host pirated software, adult content, pornographic material, virus or copyrighted media files. We reserve the right to remove any content that we suspect violates this policy from your hosted support desk and/or suspend your account without notice.
6.3. You may not use the hosted support desk in any way such that it infringes upon the rights of a third party.
6.4. If you believe that your copyright or trademark is being infringed upon by one of our customers, please email abuse@Positioner.org with as much information as you can provide that evidences infringement.
6.5. You undertake not to link to or promote any material which is unlawful, threatening, abusive, malicious, defamatory, obscene, pornographic, profane or otherwise objectionable.
6.6. Failure to respond to an abuse complaint within 48 hours may result in suspension and/or termination of services.
6.7. We will be the sole arbitrator of this policy.
7. REFUND POLICY
7.1. No refunds will be made for hosted services which are paid for on a monthly basis except where we fail to meet the service level agreement outlined in section 11.
8. PURCHASING AND PAYMENTS
8.1. Full payment (including renewals) is required before any service is rendered.
8.2. We reserve the right to refuse service to anyone.
8.3. We reserve the right to change pricing at any time although all pricing is guaranteed for the period of pre-payment.
8.4. Any due notices, invoices, receipts and billing reminders will be sent by electronic mail only.
8.5. Payment is due each anniversary month following the date the account was established until cancellation notice is given (section 10.1).
8.6. If you choose to pay by credit or debit card you authorize us to debit your account renewal fees from your card.
8.7. Without prejudice to our other rights and remedies under this agreement, if any balance owed is not paid on or before the due date we will be entitled to suspend/terminate services to you.
8.8. Where payment has been made by credit or debit card, refunds will be made to the same named credit or debit card. Where payment has been made by PayPal, refunds will be made to the same PayPal account only.
8.9. We reserve the right to change prices at any time.
9. SUSPENSION AND TERMINATION
9.1. We reserve the right to suspend or terminate the services and/or this agreement at any time.
9.2. If you violate any of these terms and conditions we may suspend the services and/or terminate this agreement forthwith without notice to you.
9.3. No refunds will be made for services suspended or terminated due to violation of this agreement.
9.4. If you are a company and you go into insolvent liquidation or suffer the appointment of an administrator or administrative receiver or enter into a voluntary arrangement with your creditors, we reserve the right to suspend services and/or terminate this agreement forthwith.
9.5. On termination of this agreement or suspension of the services we will be entitled to immediately to block your hosted support desk and to remove all data located on it.
10. CANCELLATION
10.1. You may cancel your account at any time. Only accounts cancelled in the way outlined herein will be honored.
10.2. To request account cancellation, you must send to us written notice (via electronic mail) of your account cancellation requirement no less than seven (7) days prior to your next billing cycle or we may bill you for the next period. The address to which you must send notice is sales@Positioner.org.
10.3. It is your responsibility to secure confirmation of account cancellation from us. If you do not receive confirmation of your account cancellation request, you may continue to be invoiced and your account may not be cancelled.
10.4. Once confirmation of account cancellation is made, we do not guarantee the availability of your hosted support desk or data stored on it unless you arrange with us otherwise.
10.5. It is your responsibility to settle (if) any due balance following cancellation.
11. SERVICE LEVEL AGREEMENT
11.1. AVAILABILITY
11.1.1. We guarantee that your hosted support desk will be available (accessible and functional) no less than 99.9% of the time, excluding where server maintenance both scheduled or emergency occurs.
11.1.2. We employ a third-party monitoring service that will be used to gauge the monthly uptime figure. For technical purposes, the server is monitored from more than ten (10) worldwide locations. However, for the purposes of this policy the only records that will be referred to are from the monitoring stations located in the same country in which your hosted support desk is located.
11.1.3. For every hour your hosted support desk is unavailable you will be entitled to a reimbursement of 2% of your paid monthly rate.
11.1.4. If you believe your hosted support desk has been available for less than 99.9% of your billable month, it is your responsibility to raise this issue with us. We will then check our uptime records against your claim. If our records confirm your claim, you will be able to request a reimbursement as in section 11.1.3.
11.2. SUPPORT
11.2.1. We undertake to provide support for as long as your hosted support desk is active and invoices cleared.
11.2.2. We reserve the right to redefine and change at any time the limitations of this support.
11.2.3. Support is available via a ticket raised using the customer area or via “live chat” which can be accessed at http://Positioner.org/support.
11.2.4. As a guideline, you can expect to us to do our utmost to ensure availability of your hosted support desk and to ensure that the product (the support desk software) is functional, relative to our development cycle.
11.2.5. We make no guarantees that you will be able to connect to external mail servers from your hosted support desk. If issues arise with respect to this we will not consider it a fault of the service or support desk software.
11.2.6. We will not provide or support code customizations (software or cosmetic).
11.2.7. We reserve the right to refuse anyone support.
