This Agreement is between K2WebStudio [India] (henceforth referred as WNSD), a Private Limited Company having its office at 16/11, Tardeo, Grant Road (W), Mumbai – 400007, India. And the Client (as per the names in the details of this online contract agreement) accepting these terms and conditions and signing or submitting this Agreement online or in written form (“Client” shall unless conflicting with the context or meaning thereof, be deemed to include its assignors, successors etc in case of partnership firm partners).
1. By accepting or submitting this Agreement electronically or in writing, and/or by using WNSD’s services, including but not limited to, submission of content, payment or authorization of payment, you client agree to be bound by the following terms and conditions. Client also agrees that Client’s electronic acceptance of this Agreement shall have the same force and effect as if Client had agreed to this Agreement in writing. Client’s acceptance of this Agreement is binding upon all of WNSD services including but not limited to Programming, Designing, Dedicated Staff, Hosting, SEO and/or purchase of additional services at a later date. When Client accepts this Agreement, Client consents to receive electronically from WNSD any notices, agreements, disclosures, or other communications on the email ID provided by client in this agreement. In consideration of the payment of the Charges, WNSD shall develop the website or Software Application, Software Application and/or CD-Rom and/or provide the Services in accordance with the specifications and/or requirements and/or functionality set out in the Project Proposal or this Online Orderform/Agreement subject to these conditions which shall govern the contract to the exclusion of any other terms and conditions. No variation of these conditions will be binding unless made in writing and signed by a director of WNSD.
2. WSD provides web design and development, Software development and application development services amongst other services. The Client acknowledges that the creation or development of the website or Software Application, Software Application and/or CD-Rom and/or the Services may in certain circumstances involve a period of development, where WSD will need to obtain the Client’s instructions. The Client shall ensure that during the course of the development the Client shall make available to WSD, representative(s) of the Client of sufficient seniority who is (are) able to make decisions and give instructions on behalf of the Client to WSD. Any instructions given by such representative(s) may be relied upon fully by WSD. In the event that the Client fails to supply such information or instructions and WSD is thereby unable to perform its obligations under the contract, WSD may give the Client notice of this fact by email. If the Client does not supply the requested information or instructions within 5 calendar days of such notice, WSD shall be entitled forthwith to give the Client notice of termination of the Contract. In the event of such termination, the Client shall be liable to pay for all work undertaken by WSD on behalf of the Client prior to such termination, at WSD’s hourly rates as set out from time to time or mentioned in the Project documents, together with all costs and expense reasonably incurred by WSD as a result of such early termination.
3. If client provides any variation to the agreed specifications (As provided in the project proposal or emails from WSD prior to this agreement), whether or not made during or as a result of any development process, then this shall only be made with the prior written consent of WSD. Such variation may result in additional increases in the Charges, at WSD’s standard hourly rates, to reflect the cost and expenses of additional work incurred by WSD.
4. Any order which has been accepted by the Client shall not be cancelled by the Client except with the written consent of WSD. Such cancellation can only be on the terms that the Client shall indemnify WSD in full against all loss (including loss of profit), costs (including the cost of all labor and materials used), damages, charges and expenses incurred by WSD as a result of cancellation
5. If the Client requires WSD to provide graphic design service as part of the Website, Software Application and/or CD-Rom development and provision of the Services, and such graphic design is left partly or wholly to the discretion of WSD, then WSD cannot be liable to the Client if such graphic design or other aspect does not meet with the Client’s approval. If the Client wishes to avoid disappointment, it should provide specific written instructions in respect of all elements of graphic design, and/or the Services. WSD will provide Design services to the best of its abilities
6. WSD follows internally set guidelines and policies that govern our work and services and WSD reserves the right to refuse to design, develop or host an account at its sole discretion at anytime.
7. Client agrees to provide all content–Including but not limited to images and text and specifications. WSD is not liable or responsible for any content, site activities or businesses conducted on the Client website or Software Application and/or Software Application or CD-Rom and the Client agrees to bear full responsibility for the same in the event of any action from a third party and indemnify WSD on the same. The Client agrees to conduct their business in a legal and regulated manner. Client understands that all information, data, text, software, music, sound, photographs, video, messages and other material (Content) on Client’s website or Software Application is the sole responsibility of the Client. Client is fully responsible for all website or Software Application content and agrees to hold WSD harmless in the event of third parties’ legal issues brought against Client for Client’s business practices. WSD may at its sole discretion and at any time, discontinue providing services, or any part thereof, with or without notice if it deems that the client is in violation of this agreement. In this case, the client will not be eligible for any refund of payments or fees.
8. WSD will use all content provided by client for their website or Software Application which WSD is designing or developing. It is the Client’s responsibility to ensure that all content submitted to WSD is original content and free from third-party copyright or trademark protection. Client assumes full liability and will indemnify WSD for any copyright or trademark infringement of Client’s website or Software Application on any third-party copyright or trademark, including, but not limited to, any infringement due to website or Software Application content, website or Software Application design or the look and feel of Client’s website or Software Application. Because of the nature of WSD’s business involving multiple projects simultaneously, WSD may not maintain a repository of client content and cannot return original content to the Client. If the client makes a request in writing to destroy the content, then the content will be destroyed, however, WSD has no liability and does not guarantee the return of any content to Client. All services provided by WSD including Design, Development, Server hosting, Domain name registration, SEO, databases, Applications or programs created by WSD are the property of WSD until Client has paid all fees.
9. WSD’s development centers are in India and if web design and/or development, software development, test data run, installation, implementation, or training is undertaken in a site outside India, then the Client shall bear the traveling, boarding and lodging charges as per WSD’s policies.
10. Client agrees to comply with the Jurisdiction of Mumbai, India regarding online conduct and acceptable content and to adhere and comply with all those laws and regulations.
11. WSD will develop the website or Software Application with help and input from the Client. Before work may begin on a website or Software Application, the Client must electronically accept this Agreement. Client may submit content electronically to WSD and WSD will use the content and all other information provided by the client to build the website or Software Application. The functionality and detail of the sample sites provided by the client will not be duplicated unless such functionality and detail are specifically included and itemized in WSD’s invoice and do not infringe upon the intellectual property rights of others. WSD will not be held liable for accuracy of information, typos, or spelling errors in any of the content approved by the Client and published on the website or Software Application. Client will be notified by email when the website or Software Application is live. Client understands, agrees and acknowledges that WSD does not guarantee a time frame for completion of ANY website or Software Application. This is in part because it is difficult to complete a website or Software Application without design approvals and participation from the Client. In addition, if the Client continues to submit additional content throughout the development process, or requests additional modifications to the design, the completion time frame is increased. Other factors that may influence the completion date of a website or Software Application include, but are not limited to, complexity of Client’s project(s), availability of WSD personnel, accounting status of Client’s account, etc. If Client does not respond to WSD communications and, as a result, WSD is not able to start or complete the website or Software Application, Client is still responsible for all fees incurred including, but not limited to, design purchase price, set-up fees, enhancements purchased and monthly hosting charges that begin accruing from date of sale. If Client’s website or Software Application requires custom programming or additional functionality or the use of a database, the overall development time will be extended.
12. Client is responsible for testing the functionality of the website or Software Application or Software Application upon WSD’s request for approval, and notification that the website or Software Application has been completed. This includes all pages, functions and features. Client website or Software Application may be posted live as soon as the website or Software Application design is completed by WSD. Additional features, such as custom database programming, flash programming, etc., will be added to the site as they are completed. The Client understands and agrees that if the Client does not respond within 5 business days to WSD’s request for approval and notification that the website or Software Application has been completed and taken live, the website or Software Application along with the functionality of the website or Software Application and services rendered, will be deemed to be approved by the Client and Client agrees services have been rendered and the functionality of the website or Software Application has been tested and approved by the Client. The Client understands and agrees that if the Client does not respond to requests for missing information a final notification will be sent to the Client by email. If the Client does not respond within 5 business days to WSD’s notification or requests for missing information, the website or Software Application, along with the functionality of the website or Software Application and the services rendered, will be deemed to be approved by the Client and the project will be deemed to be complete. In that situation clients accepts that it will not be eligible for any refunds in this case.
13. Scope of Work Client understands that the website or Software Application purchase and development includes a specific number of pages, features and/or functionality. This is clarified in the Project Proposal, Agreement, Order-form or emails provided by WSD. If the Client desires additional features, functionality or pages client may request a price quote to purchase as additional enhancements to the website or Software Application. Additional work requested by the Client outside of the scope of work purchased may be charged at an hourly rate or as specific enhancements.
14. WSD agrees to build a website or Software Application and/or database to specifications quoted per the original sale and as outlined in the Project proposal or details as provided in emails from WSD. Any additions or changes requested outside of the scope of the original sale, either prior to the custom website or Software Application going live, or after the site has gone live, will be billed at WSD’s standard hourly rate. WSD is not obligated to complete Client requests or changes outside of the scope of work on the original agreement. If WSD does not agree to Client requests or changes, Client is still obligated to pay all fees incurred and due.
15. WSD does not guarantee a time frame for completion of ANY custom database or custom programming completed by WSD or an WSD Partner. WSD follows coding standards and design standards as per an internal document known as “WSD Coding and Design standards”. A copy of this document can be provided to the client on request. If client requires any specific standards of coding or design, then the client must provide those standards in a detailed document before the start of the project and WSD may decide to accept or reject the project. If Client requests changes to a pre-packaged database, pre-built database module, or e-commerce store module as built by WSD then changes are to be billed to Client at WSD’s standard hourly rate. There is no guarantee that changes made by WSD to a pre-packaged database, pre-built database module, or e-commerce store module will work. Client agrees charges are valid and agrees to pay for all fees incurred for Client’s requested changes to pre-packaged databases, pre-built databases modules, or e-commerce store modules. Once work has begun on a database or custom programming there is No Refund if cancelled. Client is responsible for testing the functionality of the website or Software Application upon WSD’s request for approval and notification that the website or Software Application has been completed. This includes, but is not limited to, testing the functionality of the custom database or programming. Upon Client approval of the website or Software Application to go live, Client agrees services have been rendered and functionality of website or Software Application has been tested and approved by Client. WSD will instruct Client as to the use of the custom database and the inputting of data related to such database. However, data entry is the sole responsibility of the Client. If the Client requests WSD to enter data into the database, the Client will be charged, and agrees to pay, for such data entry at WSD’s standard data entry rates.
16. Client will be provided with instructions to input information into a website or software application. If Client requests WSD to enter information into the store on Client’s behalf, the Client will be charged, and agrees to pay, for all information or content added to the website or software application at WSD’s standard data-entry rates. Many modules for websites or software applications are pre-built and any changes to the look or functionality of the pre-built modules require custom programming. The Client will be billed at WSD’s standard hourly rate for requested changes. Client is responsible for testing the functionality of the website or software application upon WSD’s request for approval and notification that the website or Software Application has been completed. This includes but is not limited to testing the payment functionality. WSD is not responsible for functionality of third-party services such as, but not limited to, merchant account, or gateway. Upon Client approval of the website or Software Application to go live, Client agrees services have been rendered and functionality of website or Software Application has been tested and approved by Client.
17. Client may purchase enhancements to the website or Software Application at the time of initial sale or anytime thereafter. Client’s requests for enhancements to the original sale will be due and billed separately and at the time of request. Once work has begun on enhancements purchased by the Client there is No Refund if cancelled. Enhancements or additional services purchased after the initial sale are separate purchases and are in addition to and separate from the original sale. If a Client cancels an enhancement the original sale is not cancelled.
18. While WSD does not guarantee a time frame for the completion of any custom website or Software Application, it may offer an optional expedited service to Client for a fee. Expedited service is not available for all accounts and all requests for expedited service must be approved by WSD at its sole discretion. Client understands and agrees that Client’s use of expedited service does not guarantee that Client’s website or Software Application including its corresponding design, enhancements, databases, e-commerce stores, flash, etc, will be completed more quickly than they would be without the use of the expedited service. The expedited service fee only ensures that WSD will make reasonable efforts to more quickly assign designers and programmers to the account in an effort to facilitate development than would be the case under the ordinary developmental process. The successful use of expedited service is contingent upon Client’s timely acceptance of the Terms of Service, payment of any and all fees due, submission of content through the online web center and acceptance of any project specification documents prepared by WSD and Client’s timely cooperation with WSD in any solicitation for information related to the website or Software Application’s development. If expedited service is offered to Client by WSD, Client may be presented with an estimated date of completion. Client understands and agrees that such estimated dates of completion are estimates only and may apply only to one particular element of the website or Software Application, i.e. database, flash, e-commerce, design, and not necessarily to multiple elements of the website or Software Application or to the website or Software Application collectively. Under no circumstances will WSD guarantee the respective portion or portions of the website or Software Application subject to the estimated date of completion to be completed sooner than the estimated date of completion. Should circumstances arise that make it impossible to complete the portion or portions of the website or Software Application that are subject to the estimated date of completion by the estimated date of completion, including but not limited to Client failure to provide WSD with requested information in a timely manner, WSD reserves the right to change the estimated date of completion accordingly or to cancel the expedited services and refund a portion of the expedited service fee to Client. In no case shall the portion of the expedited service fee to be refunded be greater than fifty percent (50%) of the expedited service fee. Regardless of whether work is completed by the estimated date of completion, Client remains liable to WSD for any and all other charges related to the website or Software Application’s development.
19. WSD may provide Dedicated Staff as part of its services. In Dedicated Staff contracts, the contracts will be fixed for the specific period as discussed and decided between WSD and the Client. The assigned personnel will do all tasks as physically possible during the working hours in the monthly contract period. The assigned Personnel will work dedicatedly and diligently under WSD’s supervision. The works delivered do not carry any warranty or guarantee and will be done to WSD’s best efforts. WSD’s responsibility on the deliverables will be till the end of the contract period only and no tasks will be taken up on expiration of the contract period. Once the contract expires, WSD will hand over all work files to the client if requested and then on WSD will not be responsible for the performance, integrity, quality or security of the codes delivered.
20. All websites or software applications produced and delivered by WSD may contain bugs or problems in functionality or delivered features, unknown to WSD. This does not include problems arising or caused by outside sources and/or third party applications. If WSD is notified by the client in writing about bugs in the website or software for a period of up to1 year from the date of delivery or date of services rendered, then WSD will make all efforts to resolve the bugs and a solution will be sent to the client. The bug resolution Services will be provided with reasonable skill and care in accordance with usual industry practice and in a timely, workmanlike and effective Manner.
21. WSD shall undertake standard virus checks of the Website and/or Software Application and/or CD-Rom but the Client recognizes that even with such checks WSD cannot guarantee that viruses or Malware will not occur. Accordingly, WSD shall not be liable for any costs, claims, damages, expenses, or liability (including without limitation consequential loss or damage) arising whether direct or indirect as a result of any viruses or Malware occurring for any reasons.
22. The Client agrees that it shall not during the continuance of this Agreement and for a period of Two years following the expiration or termination of this Agreement (however arising) employ or contract the services of any person who is or was employed or engaged by WSD. Client also agrees to not make any offers or solicit any of WSD employees to work directly for the client for a minimum period of 2 years from the date of termination of this Agreement or from the date of delivery or services rendered under this agreement, whichever is later.
23. Client acknowledges that WSD may establish general guidelines and limits concerning use of WSD’s services and may modify these guidelines at any time. Limits may include but are not restricted to, the maximum number of days that email messages or other content will be retained, maximum number of email messages that may be sent from or received by an account, the maximum size of any email messages sent and the maximum disk space that will be allotted on WSD’s servers on Client’s behalf. , Client acknowledges that WSD is not responsible for backing up Client’s website or Software Application and data. Client should seek appropriate backup solutions.
24. If the client purchases hosting space through WSD then Hosting charges are billed in advance for a year from the date of sale and is recurrently billed every year unless cancelled by the client.
25. If domain name registration is purchased then Client agrees to pay WSD for domain names purchased and/or renewed by WSD on Client’s behalf unless it is part of services rendered or offered free for the first year under a special promotion. Domain names purchased by WSD on Client’s behalf are the property of WSD until Client has paid all fees including one full year of hosting. If a client requests for transfer of a domain name to another registrar or server, then WSD may do so on receipt of full payment for all services billed. Upon transfer of domain and/or website or Software Application to Client or another service provider, at any time, Client agrees that WSD has met in full its obligation to Client, and WSD is released of all past and future obligations to the Client. Domain names are purchased through a third party service on Client’s behalf. WSD cannot guarantee the availability of domain names and has no liability for a domain name not being available for purchase after the initial sale. If a domain name is not available for purchase WSD will assist the Client in selecting and purchasing an alternate domain name. If Client ceases to pay hosting or other fees then due ownership of any domain names purchased by WSD on Client’s behalf or controlled by WSD are transferred to WSD. WSD may allow domain name to expire, may renew domain name and remain the owner, or WSD may sell the domain name at its sole discretion and for WSD’s sole benefit.
26. WSD makes no representations as to the marketing of Client’s products, services or sales. Client’s obligation to pay fees due to WSD are due at time of sale of website or Software Application design and hosting services and are not contingent upon Client’s marketing of said website or Software Application. Client is responsible for all marketing of Client’s website or Software Application. WSD is not responsible for marketing of Client’s website or Software Application including search engine rankings. Ultimately the success or failure of the Client’s website or Software Application is the responsibility of the Client.
27. WSD reserves the right to change prices at any time including hosting, per hour rates and hourly design fees. All prices are in Pound Sterling (GBP) without regard to fluctuations in foreign exchange rates. WSD accepts payment via wire transfer, check and credit card. Upon Client’s authorization of payment to WSD via credit card, Client thereby authorizes all recurring hosting and/or additional services fees to be charged to the same method of payment or credit card for future charges until such authorization is withdrawn by Client in writing. The Client may change payment methods including credit card payments with 30 day notice. To change payment methods Client should contact WSD. Client should not email new billing information for security purposes. WSD reserves the right to hold Client, its principals and authorized representative(s) jointly and severally liable for any and all amounts owed.
28. If WSD does not receive payment in full when due, WSD may, to the extent permitted by the law of the state of the billing address on file for Client at the time, charge a late fee of up to 1.5% per month (18% per annum), or a flat fee of £50 per month, whichever is greater, on any unpaid balance. WSD may, to the extent permitted by the law of the state of the billing address on file for Client at the time account is sent to a collection agency, also charge Client for any collection agency fees and/or attorney’s fees billed to WSD for collecting from Client. If Client wishes to dispute a charge, Client must first contact WSD and must allow 10 business days for a response. To avoid any dispute about Client’s attempt to contact WSD, Client must send the request in writing to:
Attn: Website developers India Pvt. Ltd., 206/207 Orbit Estate, Mind Space, Malad (West), Mumbai – 400 064, India
Requests may be emailed to [email protected]
If Client initiates a credit card dispute the decision of the credit card company is made through an arbitration process and the decision of the credit card company shall be binding upon Client. In the event that Client initiates a credit card dispute, ceases paying hosting fees or other fees due, WSD, at its sole discretion, may suspend work on the website or Software Application until the billing dispute has been resolved.
29. WSD, at its sole discretion, may terminate its service and remove and discard any content, for any reason, including and without limitation, for lack of use, or if WSD believes Client has violated this Agreement. WSD may also at its sole discretion and at any time, discontinue providing services, or any part thereof, with or without notice. Client agrees that any termination of access to WSD’s services under any provision of this Agreement may be effected without prior notice and that WSD may deactivate or delete Client’s account and all related information files. Client agrees that WSD shall not be liable to Client or any third-party for any termination of services. Paid accounts that are terminated will not be refunded. WSD may suspend or terminate accounts, and shut down website or Software Application for accounts that become delinquent for more than 30 days, in which case Client remains responsible for any unpaid balance owed to WSD. Charges for hosting will continue to incur upto 1 year if account has been suspended or terminated. WSD also reserves the right to discontinue the designing and/or developing of Client’s website or Software Application at any time, at WSD’s sole discretion, with an appropriate refund to the Client. Under no circumstances is the refunded amount to exceed the amount collected by WSD.
If the Client cancels an account before the work is completed or site is live, a cancellation fee of upto 50% of the Project value may be retained by WSD. Client agrees that all fees incurred due to work rendered by WSD’s staff and billed prior to cancellation effective date are valid and Client agrees to pay. Upon request for termination of services the website or Software Application will be removed. A back-up copy of the website or Software Application is not maintained by WSD.
Client agrees to pay all hosting fees and additional services fees owed from the time of sale until the cancellation effective date, and at a minimum for hosting fees for one year. Transferring a domain name to another provider or non-use of Client’s hosting account does not constitute termination of the account. Client must notify WSD in writing or via email to terminate the account services and avoid further hosting charges. It is Client’s responsibility to secure confirmation from WSD that the request for termination has been received and no further hosting fees will be billed.
Attn: Website developers India Pvt. Ltd., 206/207 Orbit Estate, Mind Space, Malad (West), Mumbai – 400 064, India
Requests may be emailed to [email protected]
30. The effective date of cancellation is to be 30 days from the date of WSD’s receipt of written notice to cancel. Any monthly fees scheduled to bill after receipt of written notice to cancel but before the effective date of cancellation are valid and Client agrees to pay.
If Client has not paid all design, enhancement, hosting and additional services fees due, such fees are due in full at the time of cancellation and Client authorizes WSD to collect any outstanding fees due. Client understands any pending billing previously agreed to will not be cancelled.
31. Refunds of the fees paid for development of the website or Software Application may be issued on accounts cancelled within 90 days of the initial sale and prior to the completion of the website or Software Application according to the following schedule:
o A minimum of a 50% cancellation fee will be retained by WSD on cancelled accounts even if no work has been started and no content yet submitted by the Client.
o A minimum of a 75% cancellation fee will be retained by WSD on cancelled accounts if work has been presented to the Client; or WSD has made multiple attempts to work with the Client, and Client has not responded to those attempts.
o A 100% cancellation fee will be retained by WSD and NO REFUND issued if any changes and/or modifications requested by the Client have been completed by WSD. No Refund will be issued on any website or Software Application cancelled after services have been rendered, including but not limited to, the design work having been completed and/or the website or Software Application taken live.
o 100% cancellation fee will be retained and NO REFUND will be issued by WSD if Client cancels after 90 days from the date of initial sale or the submission date of this Agreement.
The cancellation fee is charged to compensate WSD for up-front expenses and services rendered, including but not limited to, costs incurred for the purchase of domain name(s) for developing the website, securing server space, creating the temporary website or Software Application or space saver, employee expenses, Employee time, marketing, and overhead costs. Client agrees that all fees incurred and billed prior to cancellation date are valid and Client agrees to pay.
By accepting a refund in full or refund less cancellation fee, Client agrees that the matter is settled in full and releases WSD, its officers, owners, members, agents and employees of any and all contractual obligations and waives all claims of any nature, including legal action, against WSD’s its officers, owners, members, agents and employees.
32. Client hereby agrees that any information or ideas submitted to WSD by any means may be used by WSD without compensation or liability to Client for any purpose whatsoever, including but not limited to, developing website or Software Applications, databases, e-commerce and developing, manufacturing and marketing other products. This provision does not apply to Client content or to personal information. Client herby gives permission to WSD to use samples or links to Client’s custom website or Software Application designed by WSD for marketing and advertising purposes, including but not limited to, use in WSD’s online portfolio.
34. WSD disclaims to the fullest extent permitted by law all warranties of any kind whether express or implied. WSD disclaims any warranties regarding WSD’s services including that they will meet client’s requirements, that they will be uninterrupted, timely, secure, or error-free. Clients use of WSD’s services is at clients own risk. WSD disclaims any warranties regarding the quality of any services information or other material purchased, advertised or obtained through WSD’s services. Client understands and agrees that any material downloaded or otherwise obtained through the use of WSD’s services are done at clients own risk and that client will be solely responsible for any damages to clients computer system or loss of data or any other liability that results from the download or transfer of such material.
35. CLIENT UNDERSTANDS AND AGREES THAT WSD, ITS SUBSIDIARIES, AFFILIATES, OFFICERS, AND EMPLOYEES SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF WSD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM THE USE OF OR INABILITY TO USE WSD’S SERVICES, RELIANCE ON WSD’S SERVICES, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF WSD’S SERVICES (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES). THIS LIMITATION SHALL ALSO APPLY, WITHOUT LIMITATION, TO THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM PRODUCTS OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED THROUGH WSD’S SERVICES OR FOR UNAUTHORIZED ACCESS TO OR ALTERATION OF CLIENT’S DATA OR TRANSMISSIONS AND ANY STATEMENTS OR CONDUCT OF A THIRD PARTY OR ANY OTHER MATTERS RELATING TO WSD’S SERVICES. SUCH LIMITATION SHALL FURTHER APPLY, WITH RESPECT TO THE PERFORMANCE OR NON-PERFORMANCE OF SERVICES OR ANY INFORMATION OR MERCHANDISE THAT APPEARS ON, OR IS LINKED IN ANY WAY TO WSD’S SERVICES. SOME JURIWSDCTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO CLIENT. Without limiting the foregoing, under no circumstance shall WSD be liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces or causes beyond its reasonable control, including without limitation, internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, or other casualties, illness, accidents, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, non-performance of third parties, or loss of or fluctuations in heat, light or air conditioning. WSD’S full and complete liability, for any reason whatsoever, shall be limited to the full refund of all monies paid to WSD.
36. Client waives all tort claims, strict liability claims and any and all other legal and equitable claims to the extent permitted by law against WSD, its subsidiaries, affiliates, officers, employees and agents. The relationship between the parties is contractual in nature only. Client waives any tort claims that arise by act, or omission. Client further agrees that it may only bring claims against WSD in Client’s individual capacity and not as a member of a class.
37. Client agrees to defend, indemnify and hold harmless WSD, its directors, officers, employees and agents from and against all claims and expenses, including attorneys’ fees that may arise or result from any content Client submits, posts, transmits or makes available through WSD’s services, from any product sold by Client, its agents or employees or assigns, from any service provided or performed or agreed to be performed by WSD or from Client’s breach or violation of this Agreement, including any obligation, representation, or warranty made herein, or Client’s violation of any rights of another. Client further agrees to defend, indemnify and hold harmless WSD, its directors, officers, employees and agents from and against all claims and expenses, including attorneys’ fees, arising from or related to contracts, representations, agreements, promises, etc, made between Client and third parties, or arising from or related to Client’s negligence toward third parties.
38. Unless otherwise specifically provided, all notices required or permitted by this Agreement shall be in writing and in English and may be delivered personally, or may be sent by email, facsimile or certified mail, return receipt requested, to the address set forth below. If Client chooses to send request by email or facsimile, a copy of the request must also be sent by mail (to the address below) as confirmation of the request.
Attn: Director, Website developers India Pvt. Ltd., 206/207 Orbit Estate, Mind Space, Malad (West), Mumbai – 400 064, India
Requests may be emailed to [email protected]
39. Client may contact WSD at +91.22.61274400/09 Monday through Friday from 10:30 –6.30 Indian Standard Time. Client may also email WSD for general questions at [email protected]
40. Client specifically agrees not to engage in negative comments or slander regarding WSD, including but not limited to publishing, or causing to be published, complaints or derogatory comments regarding WSD in any format, including but not limited to, print, newspaper, television, radio or on internet complaint sites, blogs or other public internet forums. Should there be a breach of this condition WSD will be entitled to liquidate damages in the amount of £1,500.00 for each publishing or posting. If said breach occurs on an internet complaint site each instance to that website or Software Application will be considered an individual breach of this condition, and subject to additional liquidated damages of $100 per occurrence. Further, WSD shall be entitled to litigate this matter, and obtain the money damages, attorney fees & costs together with injunctive relief. WSD reserves the right to terminate any account for any negative postings made by the account owner or its representatives, or employees.
41. In the event that any provision hereof is found invalid or unenforceable pursuant to judicial decree or decision the remainder of this Agreement shall remain valid and enforceable according to its terms. The failure by WSD to avail itself of any right or enforce any obligation of this agreement shall not be deemed to be an ongoing waiver of such right or obligation or of any other right or obligation.
42. This agreement shall be governed exclusively by the Jurisdiction of Mumbai, India, without regard to any conflicts of law provisions thereof, as a contract entered into and performed entirely within Mumbai, India. The parties hereby expressly disclaim the application of the United Nations Convention on the International Sale of Goods. Any disputes between the parties relating to the subject of this agreement shall be submitted exclusively to the jurisdiction of the state courts located in the State of Maharashtra and the parties expressly consent to personal jurisdiction and venue therein and waive any objection based on forum non convenience or otherwise. Should there be a breach of this provision; the non-breaching party shall be entitled to an award of attorney fees.
43. Notwithstanding the foregoing, in lieu of litigation, arbitration may be used as a means of resolving disputes. Arbitration would be through a neutral third-party arbitrator to be approved by both Client and WSD. If any court sitting outside Mumbai, India determines that the litigation forum or arbitration provisions of this agreement are invalid, then and only then, the parties agree to settle any dispute through binding arbitration by three arbitrators, in the English language, under the commercial arbitration rules of the International Chamber of Commerce, with the location of the arbitration to be in a neutral jurisdiction (not the country of residence of the Client or of WSD) as selected by WSD.
44. WSD reserves the right to subcontract services or assign the ongoing servicing and/or hosting of your account or this entire Agreement to another party at its sole discretion. This agreement shall not be affected by any change in the name of Website developers India Pvt. Ltd., it’s DBAs or any other affiliated companies, or any condition, merger or acquisition of Website developers India Pvt. Ltd., and shall be automatically assigned to any successor entity of Website developers India Pvt. Ltd. and shall continue in effect thereafter in accordance with its terms.
45. This Agreement constitutes the entire understanding and contract between the parties and supersedes any and all prior oral or written agreements (including, but not limited to, any prior versions of this Agreement). Any modifications to this agreement must be in writing and signed by an authorized officer of WSD. All representations not in writing are null and void. Written agreements may include, but are not limited to, emails and electronic acceptance of this Terms of Service. Client agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of WSD’s services or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.