This Service Agreement is hereby entered into by and between Metclouds Technologies Private Limited, an Indian Private Limited Company, hereafter referred to as Xieles Support and ‘YOU’ hereafter referred to as Client.
Customer agrees that it will protect, indemnify, save and hold Xieles Support harmless from any and all stipulations, liabilities, losses, expenses and claims, including, without limitation reasonable attorney’s fees assessed against Xieles Support, its agents, customers, officers, shareholders, directors, employees and administration that may arise or result from any service provided or performed or agreed to be performed or any product sold by it’s customers, agents, employees or assigns. Customer agrees to defend, indemnify and hold Xieles Support harmless against liabilities arising out of; (1) any injury to person or property caused by any products sold or distributed in association with Xieles Support’s Services; (2) any material furnished by customer infringing or allegedly infringing on the proprietary rights of a third party; (3) copyright, trademark patent, or other intellectual property violation and any defective products sold to a customer from Xieles Support’s Services.
Governing Law, Jurisdiction, and Venue
The validity, interpretation, construction and performance of this agreement shall be governed by the laws of India. The High Court of Kerala, India shall have exclusive jurisdiction and venue over any dispute arising out of this agreement, and customers hereby consent to the jurisdiction of such courts.
Customer’s Sole Remedy
Xieles Support’s entire liability and Customer’s exclusive remedy shall be the refund of up to thirty (30) days of service.
Limitation of Liability
CUSTOMER ACKNOWLEDGES AND AGREES THAT THE CONSIDERATION WHICH Xieles Support IS CHARGING HEREUNDER DOES NOT INCLUDE ANY CONSIDERATION FOR ASSUMPTION BY Xieles Support OF THE RISK OF CUSTOMER’S CONSEQUENTIAL, PUNITIVE, SPECIAL OR INCIDENTAL DAMAGES WHICH MAY ARISE IN CONNECTION WITH CUSTOMER’S USE OF THE SOFTWARE AND DOCUMENTATION. ACCORDINGLY, CUSTOMER AGREES THAT Xieles Support SHALL NOT BE RESPONSIBLE TO CUSTOMER FOR ANY LOSS-OF-PROFIT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF THE SERVICE OR DOCUMENTATION. Any provision herein to the contrary notwithstanding, the maximum liability of Xieles Support to any person, firm or corporation whatsoever arising out of or in the connection with any license, use or other employment of any service delivered to Customer hereunder, whether such liability arises from any claim based on breach or repudiation of contract, warranty, tort or otherwise, shall in no case exceed the actual price paid to Xieles Support by Customer for thirty (30) days of service whose license, use, or other employment gives rise to the liability. The essential purpose of this provision is to limit the potential liability of Xieles Support arising out of this agreement. The parties acknowledge that the limitations set forth in this agreement are integral to the amount of consideration levied in connection with the license of the services and documentation and any services rendered hereunder and that, were Xieles Support to assume any further liability other than as set forth herein, such consideration would of necessity be set substantially higher.
Xieles Support offers a satisfaction guarantee on our server administration and monitoring services. If you are not completely satisfied with our services within the first 3 technical support requests or first 30 days of using our service (whichever comes first) from the date of your signup, you will be given a full refund of the amount paid. Satisfaction guarantee only applies to first time customers, so if you use our service and cancel, then signup again at a later date, the satisfaction guarantee offer is no longer applicable. Only one (1) refund per customer or affiliate thereof will be honoured. (For example, if you signup and request a refund, and then signup at a later date, the money back guarantee does not apply.) The money back guarantee only applies to work performed on one (1) server IP address. (For example, if you signup with 2 or more server IP addresses, and request a refund within the first 30 days, only the amount paid for the 1st server IP will be refunded). In certain instances at our sole discretion, we reserve the right to delete, remove and/or undo any work that was performed on your server(s) during the period in which a refund is or was requested and/or given.
3rd party software:
We will install 3rd party server software that is specifically considered a common cpanel module and/or specifically considered a common module of any core software pre-installed by default from cpanel (apache, php, mysql, exim, mysql, etc.) after client approval. 3rd party software installation requests are handled on a per instance basis at our own discretion. Additionally, we do not provide support for: Operating System upgrades, mounting drives with live data on them, raid hardware/software, connections via kvm, livecd, disk recovery software, custom kernel compilations.
All payments after the first 30 days of service to Xieles Support are non-refundable, regardless of usage or reason. Any incorrect, overcharges or billing disputes must be reported within 60 days of the time the charge occurred. If you dispute a charge to your credit card issuer that, at Xieles Support’s sole discretion is a valid charge under the provisions of our TOS, you agree to pay Xieles Support an “Administrative Fee” of $100 per dispute. All unpaid debts and dispute fees may be sent to credit collection agencies. Failure to report any overcharges or billing disputes to Xieles Support within 60 days after the charge occurred shall be deemed to be an acceptance by you of the charges.
Refunds of any kind for any reason may take up to 30 days from the time the refund is requested or offered for processing.
If either Party shall be prevented from performing any portion of this Agreement (except the payment of money) by causes beyond its control, including labour disputes, civil commotion, war, governmental regulations or controls, casualty, inability to obtain materials or Service(s) or acts of God, such Party shall be excused from performance for the period of the delay and the time for such Party’s performance shall be extended for a period of time equal to the duration of such delay. Notwithstanding anything to the contrary contained in these terms of service and policies, Xieles Support shall not be liable in any manner to the extent of its performance is delayed by any event or cause beyond the control of Xieles Support including without limitation, fire, explosion, storm, flood, electrical blackout, heat or cold, war, rebellion, terrorist act, insurrection, riot, strike, breakdown or accident to machinery, or compliance with the order of any governmental authority.
Xieles Support WILL NOT BE RESPONSIBLE FOR ANY DAMAGES YOUR BUSINESS MAY SUFFER. Xieles Support MAKES NO WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED FOR SERVICES WE PROVIDE. Xieles Support DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THIS INCLUDES BUT IS NOT LIMITED TO LOSS OF DATA RESULTING FROM DELAYS, HACKING FROM INSECURITIES, PROLONGED DOWNTIME FROM LACK OF ACTION TO MONITORING, NON-DELIVERIES, WRONG DELIVERY, AND ANY AND ALL SERVICE INTERRUPTIONS CAUSED BY Xieles Support AND ITS REPRESENTATIVES, CONTRACTORS, EMPLOYEES, OFFICERS, SHAREHOLDERS, OR DIRECTORS. Xieles Support RESERVES THE RIGHT TO AMEND OR UPDATE THESE POLICIES WITHOUT NOTICE. FAILURE TO FOLLOW ANY TERMS AND CONDITIONS MAY RESULT IN ACCOUNT DEACTIVATION.
Xieles Support furthermore expects that its customers who provide Internet services to others will fully comply with all applicable laws concerning the privacy of online communications. A customer’s failure to comply with those laws will violate this policy. Finally, Xieles Support wishes to emphasize that in accepting services, customers indemnify Xieles Support for the violation of any law or Xieles Support policy, that results in loss to Xieles Support or the bringing of any claim against Xieles Support. This means that if Xieles Support is sued because of activities of the customer that violate any law, or this policy, the customer will pay any damages awarded against Xieles Support, plus costs and reasonable attorneys’ fees.
Although we try to maintain a very high level of service and service availability, the services provided by Xieles Support are not designed for mission critical use, and should not be used for such purposes. Our services should only be used for fault-tolerant purposes which allow for failure.
THESE SERVICES ARE PROVIDED “AS IS” AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL Xieles Support OR ITS EMPLOYEES, OFFICERS, DIRECTORS, CONTRACTORS, OR ASSOCIATES, BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THESE SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
Refusal of Service
Xieles Support reserves the right at its sole discretion to refuse or cancel service. Violation of any of Xieles Support’s Rules and Regulations could result in a warning, suspension, or possible account termination. Accounts may be terminated for any or no reason at all without any prior notice to the customer. Accounts terminated due to policy violations will not be refunded.
We have zero tolerance for abusive language and/or abusive behaviour towards our company and/or service we provide and/or our employees. Any customer deemed at our sole discretion to be abusive to our company and/or service we provide and/or our employees will result in immediate irrevocable account termination without any refund. Threats to sue, slander, libel, etc., are all considered forms of abuse and will result in immediate irrevocable account termination without any refund, and we further reserve our right to execute all rights and remedies that we may have at law and in equity.
Response Time and Resolution Time
For support tickets opened in Xieles Support’s Helpdesk by logging into our website or mailing us directly from registered email address, we offer and guarantee an initial response within 30 minutes, and subsequent responses and resolutions within 6 hours, per ticket. However, our average response time is within 15 minutes, and our average resolution time is within 2 hours. Depending on the complexity of the issue, if a ticket requires more time, we will inform you of this within the timeframe and update you throughout the process. Tickets are reviewed in the order they are received, and answered consecutively. Response and Resolution time count starts from the moment the ticket is opened in our Client Login area. A “response” means that a technician has read the ticket, assigned it to the most appropriate technician to handle your specific problem, and responded stating that the ticket resolution process has started. A “resolution” means that a technician has resolved the problem in the ticket. (You will see some tickets responded to and resolved within minutes, and others within hours. Nevertheless, we only offer and guarantee that an initial response will be received within 30 minutes, and subsequent responses and resolutions will be received within 6 hours. Therefore, for example, whether you receive a response in 1 minute, and a resolution in 5 hours, it is still within our offered and guaranteed response and resolutions times.) In certain instances, if you report a problem that is erratic or requires more time than our response/resolution time to debug, we will inform you of this within our response/resolution time.
For Restoration and Migration requests, the Response and Resolution time guarantee covers our work only, and not the actual time of the data transferring since we have no control over how long it will take your server to transfer data. We will start the restoration or migration request within our Response and Resolution time guarantee. The time it takes for the restoration or migration request to be completed is beyond our control and solely dependant upon the amount of data that has to be copied, number of accounts, network connection speed between servers, server’s speed, etc. (If you have a lot of accounts or data to be transferred, even though we will start it within our guaranteed response and resolution time, it can still take several days for your server to complete the data transfer).
Sales, billing, or any other non-support related issue is not covered under our Response and Resolution time guarantee.
Support can only be provided on a linux (redhat, fedora, centos, ubuntu, debian), microsoft windows and freebsd operating systems, and must be accessible via ssh in case of linux and freebsd, and remote desktop in case of microsoft windows.
We do not provide any instructions on how to do technical work yourself or how any technical work was done, including but not limited to a list of steps, copy of the commands used, ssh session transcript, graphic/text screenshots, history recording, etc.
We do not make any backups of your data. Backup software is enabled upon request only and backups are stored at the location provided by the customer. We do not store or save any of the data that is backed up. Upon request, the backup software will be enabled to run automatically by itself on the server. We do not manually make the backups. Please note, the backup utility is known to stop without notice at times, therefore it is absolutely necessary and extremely important that you check the backup files on a frequent and regular basis to make sure that the backups are up to date and have not stopped being created.
Fair Use Policy: We are proud to offer unlimited admin time at one low monthly price, and we ask our customers to be considerate of others. If we feel any one is abusing this, at our sole discretion, we reserve the right to limit the amount of concurrent open tickets. We reserve the right at our sole discretion to terminate any account whose amount of admin time consumption negatively effects other users.
Bumping tickets (replying to tickets already in open) pushes them to the bottom of the list, therefore causing delays.
To schedule tickets to be done at a specific time, we must be given 2 hours advance, and at least an 6 hour window of work time.
Service is provided monthly per server ip address. Server ip address can only be changed on the billing cycle renewal date, and not within the month where support for the current server ip address has already been provided (ie, we can not work on 2 different servers within the same month for the price of 1).
If any ticket exceeds our SLA, a prorated refund upon request will be given and determined based on the amount of tickets you submitted within the last 30 days. Requests for a SLA refund must be reported within 30 days of the date that the SLA was exceeded by opening a ticket in Management Department. Under no circumstances can the refund exceed the amount you paid for one month of service.
All SLA guarantees are suspended the day before, during, and after any and all holidays, and any periods where weather or any other uncontrollable occurrences of nature effect work flow, power, internet, or staff accessibility.
Customer agrees that the waiver of any breach, or the failure to enforce these terms and conditions, at any time, shall not in any way affect, limit, or waive the right of Xieles Support to thereafter to enforce and compel strict compliance by the other party regarding any of these terms and conditions.
If any one or more sections of these terms and conditions should ever be determined to be illegal, invalid, or otherwise unenforceable by reason of any law, statute, regulation, or public policy, then, to the extent and within the jurisdiction in which the section is illegal, invalid, or otherwise unenforceable, the section shall be limited or severed and deleted from these terms and conditions, and the remaining sections of these terms and conditions shall survive, remain in full force and effect and continue to be binding, and shall not be affected except as may be necessary to make sense of these terms and conditions, and shall be interpreted to give effect to these terms and conditions to retain validity of these terms and conditions.
Payment for services must be received no later than 24 hours after the first day of the renewal cycle. (For example, if your renewal date is on the 1st of each month, payment must be received no later than the 2th of each month.) If payment is not received within this timeframe, services may be suspended. If payment is not received within 7 days after the first day of the renewal cycle, services may be terminated.
Any and all products, services, licenses, etc., purchased from us are bound by these Terms of Service in it’s entirety. Additional terms specific to additional services listed below:
Reselling our service (branded/anonymously)
In this paragraph, “Reseller” refers to our customer that is reselling our service, and “Resold client” refers to whomever the Reseller resells our service to. Although we take multiple precautions to prevent Resold clients from seeing our name, we make no guarantees or warranties that Resold clients can not find out about us or can not find out that we are providing the support including but not limited to Xieles Support making a reference in a ticket or on a server that includes our name or our technical material. Furthermore, we are not responsible for any liability that may arise between the Reseller and the Resold client. For example, if the Resold client cancels other services with the Reseller due to their dissatisfaction with services provided by Xieles Support, whether the dissatisfaction is due to something done incorrectly by Xieles Support or not, we can not be held responsible for any liability or responsibility. Lastly, Resold clients are not our clients, and are only considered part of the Reseller. Only the Reseller is our client. Therefore it is the responsibility for the Reseller to protect us from any liability between the Resold client and Xieles Support. This TOS between Reseller and Xieles Support protects us from any liability, and therefore if any claims arise between the Resold client and Xieles Support, the Reseller must disclaim us and accept responsibility and hold us harmless.
All inbound/outbound phone calls may be recorded for internal quality assurance and tracking purposes. We at Xieles Support make reasonable efforts to ensure that all personal information submitted to us in processing your order and for billing purposes, etc., including but not limited credit card information, will be kept strictly confidential and used solely by Xieles Support, its representatives, independent contractors, and employees, for the purposes for which it was intended, for the benefit of the subscriber. We agree not to share or release such information for advertising or marketing purposes to any unaffiliated third party, without the consent of the subscriber, except as required by law, regulation or governmental authority. All information provided to us by the subscriber is properly stored with reasonable measures of protection and handled with reasonable measures of protection at all times by authorised Xieles Support staff members, representatives, independent contractors and employees only.
If you do not accept or understand any part or parts of our ‘Terms of Service and Policies’, please contact us immediately prior to signing up with our service.
By subscribing to and/or utilising our services, you agree to accept, comply, and understand all of our ‘Terms of Service and Policies’ in full.