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42 Communications

TERMS OF USE

1. GENERAL

a) This document is an electronic record in terms of Information Technology Act, 2000 and rules there under as applicable and the amended provisions pertaining to electronic records in various statutes as amended by the Information Technology Act, 2000. This electronic record is generated by a computer system and does not require any physical or digital signatures.

b) This document is published in accordance with the provisions of Rule 3 (1) of the Information Technology (Intermediaries guidelines) Rules, 2011 that require publishing the rules and regulations, privacy policy and Terms of Use for access or usage of 42comm.in and 42communications.in.

c) The domain name 42comm.in and 42communications.in ("Website"), including its online services, such as use of software on Website and information, articles , news, blogs and text, graphics, internet services, images and information obtained from service providers and any other material contained on the Website ("Materials") is owned and operated by 42 communications Private Limited (“Company”), a Private Company, incorporated under the provisions of the Companies Act, 2013, and having its registered office at: “Saarthi” 103, Ram Krishana Nagar, Jhanwar Road, Opp. B.R. Birla Public School, Jodhpur, 342014 where such expression shall, unless repugnant to the context thereof, be deemed to include its respective representatives, administrators, employees, directors, officers, agents and their successors and assigns.

d) For the purpose of these Terms of Use (“Terms”), wherever the context so requires,

i) The term ‘You’ or “User” shall mean any legal person or entity accessing using this Website to services provided or registered on this Website, who is competent to enter into binding contracts, as per the provisions of the Indian Contract Act, 1872;

ii) The terms ‘We’, ‘Us’ & ‘Our’ shall mean the Website and/or the Company, as the context so requires.

iii) The terms ‘Party’& ‘Parties’ shall respectively be used to refer to the User and the Company individually and collectively, as the context so requires.

e) The headings of each section in these Terms are only for the purpose of organizing the various provisions under these Terms in an orderly manner, and shall not be used by either Party to interpret the provisions contained herein in any manner. Further, it is specifically agreed to by the Parties that the headings shall have no legal or contractual value.

f) The use of the Website by the user is solely governed by these Terms as well as the Privacy Policy (“Policy”), available on Website and any modifications or amendments made thereto by the Company from time to time, at its sole discretion. Visiting the home page of the Website and/or using any of the services provided on the Website shall be deemed to signify the User’s unequivocal acceptance of these Terms and the aforementioned Policy, and the User expressly agrees to be bound by the same. The User expressly agrees and acknowledges that the Terms and Policy are co-terminus, and that expiry / termination of either one will lead to the termination of the other, save as provided in Clause 4 hereunder.

g) The User unequivocally agrees that these Terms and the aforementioned Policy constitute a legally binding agreement between the User and the Company, and that the User shall be subject to the rules, guidelines, policies, terms, and conditions applicable to any service that is provided by the Website, and that the same shall be deemed to be incorporated into these Terms, and shall be treated as part and parcel of the same. The User acknowledges and agrees that no signature or express act is required to make these Terms and the Policy binding on the User and that the User’s act of visiting any part of the Website constitutes the User’s full and final acceptance of these Terms and the aforementioned Policy.

h) The Company reserves the sole and exclusive right to amend or modify these Terms without any prior permission or intimation to the User, and the User expressly agrees that any such amendments or modifications shall come into effect immediately. The User has a duty to periodically check the terms and stay updated on its requirements. If the User continues to use the Website following such a change, the User will be deemed to have consented to any and all amendments/modifications made to the Terms. In so far as the User complies with these Terms, he/she is granted a personal, non-exclusive, non-transferable, revocable, limited privilege to enter and use the Website.

2. OUR SERVICES

The Company, 42 Communications Pvt. Ltd. is an internet service provider. Support on Internet access is provided till the demarcation point into the network.

3. ELIGIBILITY

The User represents and warrants that he/she is competent and eligible to enter into legally binding agreements and that he/she has the requisite authority to bind himself/herself to these Terms, as determined solely by the provisions of the Indian Contract Act, 1872. The User may not use this Website if he/she is not competent to contract under the Indian Contract Act, 1872, or is disqualified from doing so by any other applicable law, rule or regulation currently in force.

4. TERM

hese Terms shall continue to form a valid and binding contract between the Parties, and shall continue to be in full force and effect until:

a) The User continues to access and use the Website; or

b) The Transaction between the Parties, if any, concludes to the satisfaction of both Parties;

5. TERMINATION

The Company reserves the right, in its sole discretion, to unilaterally terminate the User’s access to the products and services offered on the Website, or any portion thereof, at any time, without notice or cause. The User shall continue to be bound by these Terms, and it is expressly agreed to by the Parties that the User shall not have the right to terminate these Terms till the expiry of the same.

6. FACILITIES TO BE RENDERED BY THE WEBSITE

i. By using this Website, and providing his/her contact information to the Company through the Website, the User hereby agrees and consents to receiving calls, auto dialled and/or pre-recorded message calls, e-mails and SMSs from the Company and/or any of its affiliates or partners at any time, subject to the Policy. In the event that the User wishes to stop receiving any such marketing or promotional calls / email messages / text messages, the User may send an e-mail to the effect to admin@42comm.in with the subject "CHANGE REQUEST". The User agrees and acknowledges that it may take up to seven (7) business days for the Company to give effect to such a request by the User.

The User expressly agrees that notwithstanding anything contained hereinabove, he/she may be contacted by the Company or any of its affiliates/partners relating to any service availed of by the User on the Website or anything pursuant thereto.

It is expressly agreed to by the Parties that any information shared by the User with the Company shall be governed by the Policy.

7. CHARGES & PAYMENT

a) Customer will pay to 42 Communications for taking Service from them. Rates may be revised from time to time. Customer will be informed in writing, through any means of communication possible, in case the rates are revised. Payment must be received by the due date to avoid suspension/ disconnection of the service. Non-receipt of the invoice by customer cannot be a reason for non-payment. The customer must contact the accounts department of 42 Communications and obtain duplicate copies of the invoice, if required. Currently, the Company have following price structure:-

i. Late Payment penalty - 5% of amount or Rs.50 whichever is higher subjecte to maximum limit of Rs.500/-;

ii. Repair Cost for in premises damage - Rs.300/- (minimum);

b) The Customer will make payment, for Service, in favour of 42 Communications, payable at Jodhpur. If the payment is made in cash, Customer must insist to have a proper/valid receipt against cash payment and submit the same with 42 Communications as and when requested by 42 Communications.

c) However, the Company reserves the right to amend the fixed fee policy for any or all goods offered or sold. In such an event, the User will be intimated via email. Any such change, if made, shall come into effect immediately upon such change being notified to the User, unless specified otherwise.

d) The Customer agrees that in case of any physical damage to equipment, cables etc. at customer’s premises, repair charges will be payable as per the payment policy.

8. Terms and Conditions of the Customer Registration Form (CRF)

a) The Internet Services is governed by Internet Service Provider and other applicable licenses and laws of the Indian Government (Department of Telecommunications). Customer shall therefore ensure compliance to ALL such license conditions and laws. Any infringement would result in termination of Service without any notice. This will be in addition to any action taken by the Government, or under the Law.

b) The Internet may contain unedited materials some of which are sexually explicit or may be offensive to some people. The Customer accesses such material at his own risk. 42 communications has no control over and accepts no responsibility whatsoever for such materials.

c) Customer shall also not use the services for any anti-national activity.

d) The Customer is fully responsible for any misuse of IP’s allotted to him by 42 Communications.

e) That under no circumstances shall 42 Communications, its affiliates or its contractors be liable for any direct, indirect, incidental, special, punitive or consequential damages that result in any way from Customer’s use of or inability to use Service or any part thereof, or Customers reliance on or use of information, services or merchandise provided on or through Service, or that results from mistakes, omission, interruption, errors, defects, delays in operations, or transmission, or any failure of performance.

f) Personnel of 42 Communications or Vendor so authorized to install equipment also lay necessary cables for the connectivity.

g) Customer will arrange for installation of CPE (Customer Premises Equipment) at a safe place free from dust, humidity and heat, preferably in an air-conditioned environment in case that is provided by 42 Communications.

h) Customer will allow necessary access for maintenance activities of such equipment whenever required by 42 Communications at its premises.

i) Customer understands that Customer Premises Equipment is third party equipment procured by company for providing connection to Customers. The Company shall make all efforts to get this equipment repaired at the earliest and reserves sole discretion to decide whether a defect in the equipment is to be repaired or the defective part is to be replaced. Customer undertakes not to obstruct or prohibit the authorized vendor of the Company to take the equipment or any part of it from their premises thereof for rectification to its service center when deemed so necessary by the Company at its sole discretion. All defective parts after replacement and other replacements become the property of the company; Customer would not be having any right over them whatsoever.

j) Customer will not resell the bandwidth/connectivity provided by 42 Communications unless otherwise agreed separately with 42 Communications in writing as an addendum to this Agreement.

k) That all hardware equipment including Access Equipment at Customer’s Premises supplied by 42 Communications would remain the property of 42 Communications and Customer will not prohibit authorized employees of 42 communications or its Vendor, so authorized to access, maintain and replace the equipment or any part thereof installed inside Customer’s premises. Customer undertakes not to obstruct removal of the equipment installed inside Customer’s premises by 42 Communications or Vendor so authorized on 42 Communications’ written authorization on discontinuation/disconnection of services or termination of service under “Exit Policy”, since the same is the property of 42 Communications.

l) That Customer Premises Equipment is third-party equipment procured by 42 Communications for providing connection to Customer. 42 Communications shall make all efforts to get this equipment repaired at the earliest and at its sole discretion decide whether a defect in the equipment is to be repaired or the defective part is to be replaced. Customer undertakes not to obstruct or prohibit 42 Communications or Vendor so authorized on 42 Communications’ written authorization to take the equipment or any part of it from Customer premises thereof for rectification to its service centre when deemed so necessary by 42 Communications at its sole discretion. All defective parts after replacement and other replacements become the property of 42, Customer having no right to them whatsoever. However, it is to be clarified that guarantee/warranty on any equipment including ONUs, routers, switches etc. sold to the users/customer will be provided by the equipment’s manufacturer and/or their authorized Distributer/Service center only.

m) Customer is liable to pay service fee for the balance of the term if he desires to terminate or terminates the service. In addition, Customer is also liable to pay one month service fee if the Customer terminates the service without providing adequate notice.

n) 42 Communications retains the right to terminate this Agreement immediately in case of infringement of any terms or condition.

o) Any loss of business suffered by the Customer due to disconnection will be his own responsibility and so borne by him. No refund will be given to the Customer for the unused portion of Service.

p) The Customer must indemnify 42 communications against any claims or legal proceedings arising from the provision of Service, which is brought against 42 communications by anyone using Service under or through Customer because:

i. Service is used in breach of terms /conditions.

ii. Service is faulty and cannot be used by a third Party.

q) FORCE MAJEURE: 42 shall not be responsible or liable for any failure on its part to fulfil its obligations contained herein if such failure is on account of a force majeure event. Force Majeure shall mean such unforeseeable occurrences beyond the reasonable control of 42 such as:

i. Acts of God, natural catastrophes, frequency interference from external source, epidemics, earthquakes;

ii. Strikes and blockades; either by 42 personnel or others affecting Service.

iii. War or war-like conditions, mobilization, revolutions or riots, acts of public enemy, sabotage, terrorism;

iv. Restriction by or actions, omissions or interventions of Indian public authorities (including but not limited to changes in laws, regulations or import/export, security restrictions).

v. Disconnection or deterioration of service by 42 communications’ vendor.

9. TERMS, CONDITIONS AND DUTIES OF THE USER

a. It is the duty of User to provide true/accurate/complete information.

b. The User agrees to comply with all notices or instructions given by 42 communications from time to time to enable the use of the Services.

c. Customer is fully responsible for any misuse of IP’s allotted to him by 42 Communications.

d. Customer will arrange for un-interrupted power supply for equipment as per the device specification or as supplied by the company, if the equipment has been installed by the company.

e. Customer will also not use the services for any anti-national activity.

f. User is bound not to cut, copy, distribute, modify, recreate, reverse engineer, distribute, disseminate post, publish or create derivative works from, transfer, or sell any information or software obtained from the Website. Any such use/limited use of the Website will only be allowed with the prior express written permission of the Company. For the removal of doubt, it is clarified that unlimited or wholesale reproduction, copying of the content for commercial or non-commercial purposes and unwarranted modification of data and information contained on the Website is expressly prohibited.

g. Further undertakes not to:

i. Abuse, harass, threaten, defame, disillusion, erode, abrogate, demean or otherwise violate the legal rights of any other person or entity;

ii. Engage in any activity that interferes with or disrupts access to the Website or the goods provided therein (or the servers and networks which are connected to the Website);

iii. Impersonate any person or entity, or falsely state or otherwise misrepresent his/her affiliation with a person or entity;

iv. Publish, post, disseminate, any information which is grossly harmful, harassing, blasphemous, defamatory, obscene, pornographic, paedophilic, libellous, invasive of another's privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever under any law, rule or regulation currently in force; or unlawfully threatening or unlawfully harassing including but not limited to "indecent representation of women" within the meaning of the Indecent Representation of Women (Prohibition) Act, 1986;

v. Upload or distribute files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of the Website;

vi. Download any file posted/uploaded by another User of the Website that the User is aware, or should reasonably be aware, cannot be legally distributed in such a manner;

vii. Probe, scan or test the vulnerability of the Website or any network connected to the Website, nor breach the security or authentication measures on the Website or any network connected to the Website. The User may not reverse look-up, trace or seek to trace any information relating to any other User of, or visitor to, the Website, or any other customer of the Website, including any User account maintained on the Website not operated/managed by the User, or exploit the Website or information made available or offered by or through the Website, in any manner;

viii. Disrupt or interfere with the security of, or otherwise cause harm to, the Website, systems resources, accounts, passwords, servers or networks connected to or accessible through the Websites or any affiliated or linked websites;

ix. Collect or store data about other Users of the Website.

x. Use the Website or any material or content therein for any purpose that is unlawful or prohibited by these Terms, or to solicit the performance of any illegal activity or other activity which infringes the rights of this Website or any other third party(ies);

xi. Violate any code of conduct or guideline which may be applicable for or to any particular product or service offered on the Website;

xii. Violate any applicable laws, rules or regulations currently in force within or outside India;

xiii. Violate any portion of these Terms or the Policy, including but not limited to any applicable additional terms of the Website contained herein or elsewhere, whether made by amendment, modification, or otherwise;

xiv. Threaten the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states, or public order, or cause incitement to the commission of any cognizable offence, or prevent the investigation of any offence, or insult any other nation.

xv. Publish, post, or disseminate information that is false, inaccurate or misleading;

xvi. Directly or indirectly offer, attempt to offer, trade, or attempt to trade, any item the dealing of which is prohibited or restricted in any manner under the provisions of any applicable law, rule, regulation or guideline for the time being in force.

The User hereby expressly authorises the Company/Website to disclose any and all information relating to the User in the possession of the Company/Website to law enforcement or other government officials, as the Company may in its sole discretion, believe necessary or appropriate in connection with the investigation and/or resolution of possible crimes, especially those involve personal injury and theft / infringement of intellectual property. The User further understands that the Company/Website might be directed to disclose any information (including the identity of persons providing information or materials on the Website) as necessary to satisfy any judicial order, law, regulation or valid governmental request.

The User expressly agrees and acknowledges that the Company/Website has no obligation to monitor the materials posted on the Website, but that it has the right to remove or edit any content that in its sole discretion violates, or is alleged to violate, any applicable law or either the spirit or letter of these Terms. Notwithstanding this right, the User remains solely responsible for the content of the materials posted on the Website by him/her. In no event shall the Company/Website assume or be deemed to have any responsibility or liability for any content posted, or for any claims, damages or losses resulting from use of any such content and/or the appearance of any content on the Website. The User hereby represents and warrants that he/she has all necessary rights in and to all content provided as well as all information contained therein, and that such content does not infringe any proprietary or other rights of any third party (ies), nor does it contain any libellous, tortuous, or otherwise unlawful or offensive material, and the User hereby accepts full responsibility for any consequences that may arise due to the publishing of any such material on the Website.

10. SUSPENSION OF USER ACCESS AND ACTIVITY

Notwithstanding other legal remedies that may be available to it, the Company may in its sole discretion limit the User’s access and/ or activity by immediately removing the User’s access credentials either temporarily or indefinitely, or suspend/terminate the User’s membership, and/or refuse to provide User with access to the Website, without being required to provide the User with notice or cause:

a) If the User is in breach any of these Terms or the Policy;

b) If the User has provided wrong, inaccurate, incomplete or incorrect information;

c) If the User’s actions may cause any harm, damage or loss to the other Users or to the Website/Company, at the sole discretion of the Company.

d) If User’ action ccopying or duplicating in any manner any of content or other information available from the Website.

11. INDEMNITY AND LIMITATIONS

The User hereby expressly agrees to defend, indemnify and hold harmless the Website and the Company, its directors, affiliate Users, employees, officers, agents and their successors and assigns and against any and all claims, liabilities, damages, losses, costs and expenses, including attorney's fees, caused by or arising out of claims based upon the User's actions or inactions, including but not limited to any warranties, representations or undertakings, or in relation to the non-fulfilment of any of the User’s obligations under this Agreement, or arising out of the User's infringement of any applicable laws, rules and regulations, including but not limited to infringement of intellectual property rights, payment of statutory dues and taxes, claims of libel, defamation, violation of rights of privacy or publicity, loss of service by other subscribers, or the infringement of any other rights of a third party.

In no event shall the Company/Website be liable to compensate the User or any third party for any special, incidental, indirect, consequential or punitive damages whatsoever, including those resulting from loss of use, data or profits, whether or not foreseeable, and whether or not the Company/Website had been advised of the possibility of such damages, or based on any theory of liability, including breach of contract or warranty, negligence or other tortuous action, or any other claim arising out of or in connection with the User’s use of or access to the Website and/or the products, services or materials contained therein.

The limitations and exclusions in this section apply to the maximum extent permitted by applicable law, and the Parties expressly agree that in the event of any statute, rule, regulation or amendment coming into force that would result in the Company/Website incurring any form of liability whatsoever, these Terms and the Policy will stand terminated one (1) day before the coming into effect of such statute, rule, regulation or amendment. It is further agreed to by the Parties that the contents of this Section shall survive even after the termination or expiry of the Terms and/or Policy.

12. INTELLECTUAL PROPERTY RIGHTS

Unless expressly agreed to in writing, nothing contained herein shall give the User a right to use any of the Website’s trade names, trademarks, service marks, logos, domain names, information, questions, answers, solutions, reports, images, and other distinctive brand features, save according to the provisions of these Terms. All logos, trademarks, brand names, service marks, domain names, including material, designs, and graphics created by and developed by the Website and other distinctive brand features of the Website are the property of the Company. Furthermore, with respect to the Website created by the Company, the Company shall be the exclusive owner of all the designs, graphics and the like, related to the Website.

The User may not use any of the intellectual property displayed on the Website in any manner that is likely to cause confusion among existing or prospective Users of the Website, or that in any manner disparages or discredits the Company/Website, to be determined in the sole discretion of the Company.

The User is aware that the products displayed on the Website are the artistic creations of their respective owners, and that all intellectual property, including but not limited to copyrights, relating to said products resides with the said owners, and that at no point does any such intellectual property stand transferred from the aforementioned creators to the Website/Company, or to the User. The User is aware that the Company merely provides a platform through which the aforementioned products are listed for sale to the Users of the Website, and the neither the Company nor the Website owns any of the intellectual property relating to the products displayed on the Website.

The User is further aware that any reproduction or infringement of the intellectual property of the aforementioned owners by the User will result in legal action being initiated against the User by the respective owners of the intellectual property so reproduced / infringed upon. It is agreed to by the Parties that the contents of this Section shall survive even after the termination or expiry of the Terms and/or Policy.

13. DISLAIMER OF WARRANTIES AND LIABILITIES

a) Except as otherwise expressly stated on the Website, all products/services offered on the Website are offered on an "as is" basis without any warranty whatsoever, either express or implied.

b) The Company/Website makes no representations, express or implied, including without limitation implied warranties of merchantability and fitness of a product for a particular purpose.

 

c) The Website and the Company accepts no liability for any errors or omissions, whether on behalf of itself or third parties, or for any damage caused to the Customer, resulting from the use or misuse of any product purchased by the User from the Website.

d) The Company/Website does not guarantee that the functions and services contained in the Website will be uninterrupted or error-free, or that the Website or its server will be free of viruses or other harmful components, and the User hereby expressly accepts any and all associated risks involved with the User’s use of the Website.

e) It is further agreed to by the Parties that the contents of this Section shall survive even after the termination or expiry of the Terms and/or Policy.

14. SUBMISSIONS

Any comments, ideas, suggestions, initiation, or any other content contributed by the User to the Company or this Website will be deemed to include a royalty-free, perpetual, irrevocable, nonexclusive right and license for the Company to adopt, publish, reproduce, disseminate, transmit, distribute, copy, use, create derivative works, display worldwide, or act on such content, without additional approval or consideration, in any media, or technology now known or later developed, for the full term of any rights that may exist in such content, and the User hereby waives any claim to the contrary. The User hereby represents and warrants that he/she owns or otherwise controls all of the rights to the content contributed to the Website, and that use of such content by the Company/Website does not infringe upon or violate the rights of any third party. In the event of any action initiated against the Company/Website by any such affected third party, the User hereby expressly agrees to indemnify and hold harmless the Company/Website, for its use of any such information provided to it by the User. The Company reserves its right to defend itself in any such legal disputes that may arise, and recover the costs incurred in such proceedings from the User.

15. DISPUTE RESOLUTION AND JURISDICTION

It is expressly agreed to by the Parties hereto that the formation, interpretation and performance of these Terms and any disputes/claim/refund/compensation arising here from will be resolved through a two-step Alternate Dispute Resolution (“ADR”) mechanism. It is further agreed to by the Parties that the contents of this Section shall survive even after the termination or expiry of the Terms and/or Policy.

a) Mediation: In case of any dispute/claim/refund/compensation between the parties, the Parties will attempt to resolve the same amicably amongst themselves, to the mutual satisfaction of both Parties. In the event that the Parties are unable to reach such an amicable solution within thirty (30) days of one Party communicating the existence of a dispute to the other Party, the dispute will be resolved by arbitration, as detailed herein below;

b) Arbitration. In the event that the Parties are unable to amicably resolve a dispute by mediation, said dispute will be referred to arbitration under Arbitration and Conciliation Act, 1996 by a sole arbitrator to be appointed by the Company, and the award passed by such sole arbitrator will be valid and binding on both Parties. The Parties shall bear their own costs for the proceedings, although the sole arbitrator may, in his/her sole discretion, direct either Party to bear the entire cost of the proceedings. The seat of Arbitration shall be in the city of Jodhpur, State of Rajasthan, India.

The Parties expressly agree that the Terms, Policy and any other agreements entered into between the Parties are governed by the laws, rules and regulations of India, and that the Courts at Rajasthan High Court, Jodhpur shall have exclusive jurisdiction over any disputes arising between the Parties.

16. NOTICES

Any or all kind of communication relating to any dispute or grievance experienced by the User may be communicated to the Company by the User reducing the same to writing, and sending the same to the registered office of the Company by Registered Post Acknowledgement Due / Speed Post Acknowledgement Due (RPAD / SPAD).

17. MISCELLANEOUS PROVISIONS

a) Entire Agreement: These Terms, read with the Policy form the complete and final contract between the User and the Company with respect to the subject matter hereof and supersedes all other communications, representations and agreements (whether oral, written or otherwise) relating thereto;

b) Waiver: The failure of either Party at any time to require performance of any provision of these Terms shall in no manner affect such Party's right at a later time to enforce the same. No waiver by either Party of any breach of these Terms, whether by conduct or otherwise, in any one or more instances, shall be deemed to be or construed as a further or continuing waiver of any such breach, or a waiver of any other breach of these Terms.

c) Severability: If any provision/clause of these Terms is held to be invalid, illegal or unenforceable by any court or authority of competent jurisdiction, the validity, legality and enforceability of the remaining provisions/clauses of these Terms shall in no way be affected or impaired thereby, and each such provision/clause of these Terms shall be valid and enforceable to the fullest extent permitted by law. In such case, these Terms shall be reformed to the minimum extent necessary to correct any invalidity, illegality or unenforceability, while preserving to the maximum extent the original rights, intentions and commercial expectations of the Parties hereto, as expressed herein.