Terms & Conditions

Order :	The order is to be placed on NxtGen Datacenter & Cloud Technologies Pvt. Ltd.
Payment Terms :	All Recurring Service Charges are to be paid monthly in advance (within 10 days of submission of bills). First month advance should be released along with purchase order. One time charges are also payable along with the purchase order.
Annual Increment :	Rates will be subject to an annual increment as mutually agreed
Billing :	Billing will start within 24 hours of service provisioning.
Validity :	This offer is valid for 30 days from the date of this offer.

• Ownership of Confidential Information. The Parties acknowledge that during the performance of this Agreement, each Party will have access to certain of the other Party’s Confidential Information or Confidential Information of third parties that the disclosing Party is required to maintain as confidential. The complete data pertaining to the Company’s IT infrastructure, its configuration, networking, remote site details, personnel details, access mechanisms, hosted applications, tools, test equipments, development environments, mailing servers and security mechanisms are classified as ‘Confidential Information of the Company’. Both Parties agree that all items of Confidential Information are proprietary to the disclosing Party or such third party, as applicable, and shall remain the sole property of the disclosing Party or such third party. Further, “Confidential Information” shall also mean all written or oral information, proprietary to a Party, including, customer lists, employee lists / policies, samples, models, data, designs, programs, drawings, tools, concepts, formulae, algorithms, processes, technical specifications, synchronization interfaces, material prepared by a Party including derivative works. Also all data, information, material by the nature of the information or the circumstances surrounding disclosure ought reasonably to be treated as confidential..
• Mutual Confidentiality Obligations. Each Party agrees as follows: (i) to use the Confidential Information only for the purposes described herein; (ii) that such Party will not reproduce the Confidential Information and will hold in confidence and protect the Confidential Information from dissemination to, and use by, any third party; (iii) that neither Party will create any derivative work from Confidential Information disclosed to such Party by the other Party; (iv) to restrict access to the Confidential Information to such of its personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement; and (v) to return or destroy, pursuant to Section 8, all Confidential Information of the other Party in its possession upon termination or expiration of this Agreement.
• Exceptions to Confidentiality Obligations. Notwithstanding the foregoing, the provisions cited above, shall not apply to Confidential Information that (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the recipient; (iii) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the Recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (v) is independently developed by the recipient; or (vi) is approved for release or disclosure by the disclosing Party without restriction. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (A) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given notice to the other Party and made a reasonable effort to obtain a protective order; or (B) to establish a Party‘s rights under this Agreement, including to make such court filings as it may be required to do.

• The Company hereby represents, warrants and covenants that (i) it has the right to enter into this Agreement; (ii) the Company shall provide the infrastructure services rendered under this Agreement with an uptime or 99.5%, except in case of evaluation version, (iii) the Company has no obligations to any third party that shall in any way limit or restrict its ability to the Service in the manner provided herein (iv) that the Services will be performed in compliance and adherence to the Data Privacy Policy and the Security and Firewall Policy, agreed between company and the customer.
• The Customer will be permitted to access the Service at all times except during scheduled downtime. The Company will not be liable for any delay, loss of data/ information or other failure of performance during the scheduled downtime. THE SERVICE ARE PROVIDED "AS IS" AND "AS AVAILABLE" IN KEEPING WITH THE SPECIFICATIONS AS CAPTURED IN THE SOW. THE COMPANY MAKES NO WARRANTIES AS TO THE AVAILABILITY OF UNINTERRUPTED, ERROR FREE, COMPLETELY SECURE, MERCHANTIBILITY OR FITNESS, VIRUS FREE SERVICES AS THE SERVICES ARE DEPENDANT ON THIRD PARTY SERVICE PROVIDERS IN PROVIDING SERVICES. FURTHER NO WARRANTY AS TO THE ABILITY TO MEET THE SATISFACTION OF THE SUBSCRIBER'S REQUIREMENTS IS PROVIDED HEREIN. The Company will not be liable for any delay, down time, loss of data/ information or other failure of performance, if the cause or circumstances for the same is beyond the reasonable control of the Company, but will use reasonable efforts to correct any performance problem brought to its attention. The Company will not be responsible for incidental, consequential, or any other damages arising out of or in connection with the service or materials provided hereunder. The Company will not be liable for any obstruction to the Company by the Customer, which prevents or delays the performance of NxtGen’s obligations and for any outages caused due to virus attacks, ransomware, security issues and internet service provider related.
• The Customer makes the following warranties: (i) it has the right to enter into this Agreement and has the necessary approvals and authorizations that permits it to performs its obligations herein; (ii) the Customer complies and shall comply with all applicable laws (iii) the content hosted through the Services does not: (a) infringe or violate any intellectual property rights, publicity/privacy rights, law or regulation; (b) contains any viruses, pornographic, SPAM or programming routines intended to damage, surreptitiously intercept or expropriate any system, data or personal information and (c) has any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, "data mine," or in any way reproduce or circumvent the operational and functional specifications of the Services furnished hereunder.

• The customer shall indemnify and keep indemnified NxtGen its officers, employees and its representatives from and against all claims, demands, actions, proceedings, losses, damages costs charges and expenses and all other liabilities of whatsoever nature made, brought against, suffered or incurred by the NxtGen, either prior or future, by virtue or as a result of the non-performance or non-observance or non-compliance of any of the terms and conditions of this Terms and Conditions or any applicable laws by the customer in relation to the Services.
• Notwithstanding anything contained herein, NxtGen’s indemnification liability for any such breach of obligations or any T&C in this AGREEMENT shall in no circumstances exceed the annual contract fee payment for the Services with respect to which the claim is made.
• If NxtGen fails to maintain the guaranteed uptime of the Services in any time of the whole month due to the act or omission of NxtGen, then customer shall be entitled to receive a service extension at the end of the Term as set below only should the customer log a service outage ticket and registers a claim.

• THE TOTAL LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN TORT OR CONTRACT (INCLUDING FOR BREACH OF WARRANTY, NEGLIGENCE AND STRICT LIABILITY IN TORT), WILL BE LIMITED TO THE ACTUAL DIRECT DAMAGES INCURRED BUT WILL NOT EXCEED THE ANNUAL CONTRACT VALUE OR THE FEES PAID BY THE CUSTOMER IN THE LAST 6(SIX) MONTHS, WHICHEVER IS LESS. NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL OR INDIRECT DAMAGES, REGARDLESS OF THE FORM OF ACTION OR THE THEORY OF RECOVERY, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

• This TERMS AND CONDITIONS is valid for the period the customer is availing the Services mentioned in the purchase order from the customer.
• This will come into effect upon the customer accessing the services with the credentials shared and valid till customer is availing the services.
• Termination process:

• The Services can be terminated by either party providing to the other party 1 (one) month prior return notice.
• NxtGen reserves the right to terminate the Services at any time in case there is default in payment for the Services availed
• Notwithstanding anything contained herein above, NxtGen shall have the right to terminate the Services if it is observed that the customer is acting in a manner prejudicial to the interest of NxtGen and NxtGen's customer, NxtGen shall not be liable for any consequences that may flow from such termination.
• In case there is any dispute in relation to Services, NxtGen shall at its sole discretion terminate this Services without any consequences thereof to NxtGen.
• Effects of Termination: On termination herein, NxtGen shall provide the Customer thirty (30) days from the date of termination to back up and take requisite copies of all content hosted on the Services post which the Company will delete the same permanently from its servers. And, this thirty (30) days period post the effective date of termination (to facilitate the Customer to take the back up of the data) shall be billed to the Customer at actuals. The Customer agrees that this is a fair business practice, since the Company will have to re-purpose the equipment for other customers.

• Any notice, request or instruction to be given hereunder by any Party to the other shall be in writing, in English language and delivered personally, or sent by courier or by registered speed post, or electronic mail or facsimile (followed by a confirmation by electronic mail), addressed to the concerned Party at the address set forth herein above.
• A notice shall be deemed to be effective (i) in the case of service by courier or registered speed post, upon receipt of the same by the addressee, (ii) in case of a facsimile or electronic mail, 24 hours after valid transmission, and (iii) in case of personal delivery, at the time of delivery.

• (a) This Agreement and its performance shall be governed by and construed in all respects in accordance with the Laws of India. In the event of a dispute or difference (“Dispute”) relating to any of the matters set out in this Agreement, the senior level management of the Parties shall discuss in good faith to resolve the Dispute. In case the Dispute is not settled within 30 (thirty) calendar days, it shall be referred to arbitration in accordance with the Clause (b) below.
• (b) All Disputes that have not been satisfactorily resolved under Clause (a) above shall be referred to arbitration before a sole arbitrator. Each Party shall propose three (3) names to the other Party, one amongst who shall be consented by the Parties and shall be appointed as the sole arbitrator. in keeping with the Arbitration and Conciliation Act, 1996 and any amendments thereto (“Arbitration Act”). In the event the Parties are unable to agree on a sole arbitrator within 21 (Twenty One) calendar days following the 30 (Thirty) calendar day period specified in Clause (a) above (“Initial Period”), each Party shall appoint one arbitrator from amongst the names suggested and the two (2) arbitrators will appoint the third arbitrator (“Panel”). The arbitration proceedings shall be carried out in accordance with the Arbitration Act and the place of arbitration shall be Bangalore. The Courts of competent jurisdiction shall have jurisdiction over any matters that are ancillary to the maintenance, prosecution, and support of the arbitration proceedings mandated hereby, and the Parties hereby submit to the jurisdiction of the said Courts for such matters. The arbitration proceedings shall be conducted in the English language. Subject to Clause (d) below, the Parties shall equally share the costs of the arbitrator’s fees, but shall bear the costs of their own legal counsel engaged for the purposes of the arbitration.
• (c) The Panel shall make an award in writing within 60 (Sixty) Business Days of the reference of the dispute to arbitration. Such award shall be final and conclusive and binding upon the Parties and non-appealable to the extent permitted by Law.
• (d) The Parties further agree that the arbitrators shall also have the power to decide on the costs and reasonable expenses (including reasonable fees of its counsel) incurred in the arbitration and award interest up to the date of the payment of the award
• (e) The provisions of this Clause shall survive the termination of this Agreement.

• • NxtGen does not collect and use your information for commercial purposes. However we collect and use the following information to provide, improve and protect our Services:
• Account. We collect, and associate with your account, information like your name, email address, phone number, payment info, and physical address.
• Law & Order. We may disclose your information to third parties if we determine that such disclosure is reasonably necessary to (a) comply with the law; (b) protect any person from death or serious bodily injury; (c) prevent fraud or abuse of NxtGen or our users; or (d) protect NxtGen's property rights.
• Retention. We'll retain information you store on our Services for as long as we need it to provide you the Services. If you delete your account, we'll also delete this information. But please note: (1) there might be some latency in deleting this information from our servers and back-up storage; and (2) we may retain this information if necessary to comply with our legal obligations, resolve disputes, or enforce our agreements.
• Changes. If we are involved in a reorganization, merger, acquisition or sale of our assets, your information may be transferred as part of that deal. We may revise this Privacy Policy from time to time, and will post the most current version on our website.

• Except as expressly set forth herein, this Agreement does not grant (i) NxtGen, any Intellectual Property Rights in Customer Data or (ii) Customer, any Intellectual Property Rights in the Services or NxtGen trademarks and brand features. "Intellectual Property Rights" means current and future worldwide rights under patent, copyright, trade secret, trademark, moral rights, and other similar rights.
• Customer grants NxtGen only the limited rights that are reasonably necessary for NxtGen to offer the Services This permission also extends to trusted third parties with whom NxtGen works with to offer the Services (e.g., payment provider used to process payment of fees).
• The trademarks, service marks or registered trademarks of NxtGen, may not be copied, imitated, or used, in whole or in part, without NxtGen's prior written permission or that of our NxtGen’ suppliers or licensors.
• • NxtGen may have patents, patent applications, trademarks, copyrights, or other intellectual property rights covering subject matter that is part of the Services. Unless we have granted you licenses to our intellectual property in these Terms, our providing you with the Services does not give you any license to our intellectual property. Any rights not expressly granted herein are reserved.

• The provisions relating to (i) Confidentiality, (ii) Representation & Warranties, (iii) Indemnity, (iv) Limitation of Liabilities, (v) Termination, (vi) Governing Law and Jurisdictions and (v) Dispute Resolution shall survive the termination of this AGREEMENT.

• The construction, validity and performance of this AGREEMENT are governed by laws in India The parties irrevocably agrees that the courts or quasi-judicial forums in the city of Bengaluru, Karnatak shall alone have jurisdiction to entertain any application or other proceeding in respect of anything dispute arising under or in connection with this Services as governed by this Terms and conditions.

• Neither Party shall assign any of its rights under this Agreement to any person or entity without the prior written consent of the other Party. Further, no assignment of rights or delegation of duties under this Agreement shall be considered as effective and valid unless the other Party specifically provides its written consent.

• The Parties herein agree that a Change in Control in the Company, shall not in any way impact or influence the provision of the Services by the Company herein and the surviving entity shall continue to provide the Services in keeping with the terms and conditions herein and any Statement of work issued there under. For the purpose of this Clause a “Change in Control” shall mean (i) an acquisition, merger, consolidation, or sale of substantially all of the assets of the Company; (ii) a change in ownership of the Company through a transaction or series of transactions, such that any person or entity is or becomes, directly or indirectly, of securities of the Company representing fifty percent (50%) or more of securities of the combined voting power of the Company’s then outstanding securities. Change in Control of the Customer shall not be effective unless expressly approved by the Company.

• In performing the obligations herein, the Parties are independent contractor and its personnel and other representatives shall not act as, nor be agents or employees of other Party. The personnel engaged in performance of the Services in terms of the Agreement shall and shall continue to be the employees of the Company. As an independent contractor, the Company will be solely responsible for determining the means and methods for performance herein, ensuring at all times compliance with the specifications as captured in the Statement of Work and other addenda. The Company shall have complete charge and responsibility for personnel employed by the Company and for all the matters related to such personnel including but not limited to their compensation, claims, benefits, statutory dues etc.

• The Company has the right to refer to the Customer as its client in its presentations website and any other marketing collateral with the prior approval of the Customer.

• If any paragraph, sub-paragraph, or provision of this Agreement, or the application of such paragraph, sub-paragraph, or provision, is held invalid or excessively broad by a court of competent jurisdiction, the remainder of this Agreement, and the application of such paragraph, sub-paragraph, or provision to Persons, or circumstances other than those with respect to which it is held invalid shall not be affected.

• Any delay or failure in the performance by either Party hereunder shall be excused if and to the extent caused by the occurrence of a Force Majeure. For purposes of this Agreement, Force Majeure shall mean a cause or event that is not reasonably foreseeable or otherwise caused by or under the control of the Party claiming Force Majeure, including acts of God, fires, floods, explosions, riots, wars, hurricane, sabotage terrorism, vandalism. accident, restraint of government, governmental acts, injunctions, labor strikes, that prevent Company from furnishing the materials or equipment, and other like events that are beyond the reasonable anticipation and control of the Party affected thereby, despite such Party's reasonable efforts to prevent, avoid, delay, or mitigate the effect of such acts, events or occurrences, and which events or the effects thereof are not attributable to a Party's failure to perform its obligations under this Agreement.

• The Parties shall comply with all applicable anti-corruption laws. The Parties represents that no payment or gift of money or anything of value has been or will be offered, authorized, promised, provided or paid, directly or indirectly, to any government official, state-owned enterprise official, public international organization official, political party official (or candidate for such office) or political party for the purpose of influencing official acts and decisions (including failures to act or decide) in obtaining or retaining an improper business advantage. The Parties shall promptly notify the other Party if it receives a request to take any action which may violate its obligations under this Section or any applicable anti-corruption law. Customer agrees that its books and records shall be available for review by NxtGen to confirm the Customer’s compliance with its obligations under this provision.

• We may revise these Terms from time to time, and will always post the most current version on our website. By continuing to use or access the Services after the revisions come into effect, you agree to be bound by the revised Terms.

• • These Terms constitute the entire agreement between you and NxtGen with respect to the subject matter of these Terms, and supersede and replace any other prior or contemporaneous agreements, or terms and conditions applicable to the subject matter of these Terms. These Terms create no third party beneficiary rights.

• Have questions or concerns about NxtGen and, our Services and privacy? Contact us at compliance@nxtgen.com.

Version Updated on : 17-04-2020

NxtGen Infrastructure Service Level Agreement

Service Level Agreement ("SLA") is a policy governing the use of NxtGen's IT Infrastructure Services and IT Continuity Services (listed below). This SLA applies separately to each account using NxtGen's IT Infrastructure Services and IT Continuity Services.

Service Commitment

NxtGen will use commercially reasonable efforts to make the listed Services each available with a Quarterly Uptime Percentage (defined below) of at least 99.5%, in each case during any quarterly cycle (the “Service Commitment”). In the event any of the Services do not meet the Service Commitment, you will be eligible to receive a Service Credit as described below.

Definitions

• "Quarterly Uptime Percentage” is calculated by subtracting from 100% the percentage of minutes during the quarter in which any of the listed Services, as applicable, was unavailable. Quarterly Uptime Percentage measurements exclude downtime resulting directly or indirectly from any SLA Exclusion (defined below).
• “Unavailable” means:
• Compute stack(NG3 or VMware) on which you are running virtual instances or subscription to IT Continuity Services, as applicable, is “Unavailable” to you, with no external connectivity.
• Storage, when your disks perform zero read write IO with pending IO in the queue.
• In Colocation when Power, Cooling or Cross-connects are interrupted
• A “Service Credit” is additional service days, calculated as set forth below, that we may add to your subscription.

Service Commitments and Service Credits

Service Credits are calculated as a extension of additional service days for any of the Included Products and Services (whichever was Unavailable, or all if all were Unavailable) affected for the quarterly cycle in which the service unavailability occurred in accordance with the schedule below

Quarterly Uptime % = Maximum Available Minutes - Downtime / Maximum Available Minute /

Services Availability	Service Credit
99.50%-99.00%	Service extension for 1 day
99.0%-98.0%	Service extension for 2 days
< 98%	Service extension for 7 days

We will apply any Service Credits only at the end of the tenure for the Included Products and Services as subcribed in the PO. Service Credits will not entitle you to any monetary compensation from NxtGen Datacenter & Cloud Technologies Pvt Ltd. Service Credits may not be transferred or applied to any other account. Unless otherwise provided in the Agreement, your sole and exclusive remedy for any unavailability, non-performance, or other failure by us to provide the Included Products and Services is the receipt of a Service Credit (if eligible) in accordance with the terms of this SLA.

Service Credit Corroboration Procedures

To apply a Service Credit, we may request you to provide the logs / screenshots in time that document the errors and corroborate your claimed outage (any confidential or sensitive information in these logs should be removed or replaced with asterisks).

SLA Exclusions

The Service Commitment does not apply to any unavailability, suspension or termination of the Included Products and Services, or any other performance issues affecting the Included Products and Services: (i) that result from a suspension due to non-payment beyond due date after having provided notice for suspension; (ii) caused by factors outside of our reasonable control, including any force majeure event or Internet access or related problems beyond the demarcation point of the Included Products and Services (for example, natural disaster, war, acts of terrorism, riots, government action, or a network or device failure external to our data centers, including at your site or between your site and our data center); (iii) that result from any actions or inactions of you or any third party, including failure to prescribe for recommended services, issues resulting from subscription of inadequate resources /bandwidth or for licenses reserved, but not paid for, at the time of the Incident; (iv) that result from your equipment, software or other technology and/or third party equipment, software or other technology (other than third party equipment within our direct control); (v) arising from our suspension and termination of your right to use the Included Products and Services in accordance with the Agreement;(vi) That result from your unauthorized action or lack of action when required, or from your employees, agents, contractors, or vendors, or anyone gaining access to our network by means of your passwords or equipment, or otherwise resulting from your failure to follow appropriate security practices;(vii) That result from your failure to adhere to any required configurations, use supported platforms, follow any policies for acceptable use, or your use of the Service in a manner inconsistent with the features and functionality of the Service (for example, attempts to perform operations that are not supported) or inconsistent with our published guidance;(viii) That result from faulty input, instructions, or arguments (for example, requests to access files that do not exist);(ix)That result from your attempts to perform operations that exceed prescribed quotas or that resulted from our throttling of suspected abusive behavior

If availability is impacted by factors other than the above mentioned, then we may issue a Service Credit considering such factors at our sole discretion

Products with SLA Adherence in conjunction with OEM Support

All physical devices & Software licenses procured on Capex will be subject to SLA as per the support subscribed with the OEMs. NxtGen will be responsible to interface between Customer & OEM to ensure adherence & service levels.

Products & Services (On-Premises)

All physical devices, Hypervisor / any software licenses provided by NxtGen On-premise will be subject to the SLA adherence as mentioned above. The Datacenter Infrastructure, Network & uplink Network devices will be responsibility of the customer.

Severity Grading & Escalation Procedure Definition: Definition:

Issues reported are categorized as follows:

Enterprise Cloud Services
Category	Issue	Observations	Response time - Minutes	Description of Issues
Server	Incident	Availability / Unreachable / Down	Immediate	Server Down
Network	Incident	Availability / Unreachable / Down	Immediate	Network down
Server	Support Request	Performance	30	Frequent disconnects.
Network	Support Request	Troubleshooting	30	Troubleshooting for Firewall / SSL /Ipsec /LB related / Latency
OS Management	Support Request	Troubleshooting	30	Server is up, but OS / firewall/ Connectivity related Issue / Restoration of VM
Backup as a Service	Support Request	Troubleshooting	30	Troubleshooting of Backup/ Restore Job failures
DR as a Service	Support Request	Troubleshooting	30	Replication issues
Database Management	Support Request	Troubleshooting	30	Performance or any DB related errors
Anti-Virus Management	Support Request	Troubleshooting	30	Antivirus not working / Service issues / Creating performance issues
Network	Service request	Configuration	Next Business Day	Configuration of Firewall /ACL / IP Address / SSL /Ipsec /LB / Bandwidth
OS Management	Service request	Configuration	Next Business Day	User, Group Management / Periodic performance tuning / Capacity performance
OS Management	Service request	Monitoring / Reporting	Next Business Day	Setup monitoring / providing reports / Alerting
Backup as a Service	Service request	Configuration	Next Business Day	Agent configuration/ backup Server setup / Job confgiuration
Backup as a Service	Service request	Backup / Restore	Next Business Day	Backup / Restore job request
DR as a Service	Service request	Configuration	Next Business Day	Setup replication / Add, remove servers/ Configuration related
Database Management	Service request	Configuration	Next Business Day	Installation / Configuration / User management / Auditing / Monitoring
Anti-Virus Management	Service request	Configuration	Next Business Day	Configuration / Updates

#Subject to availing the subscription of the above service category as applicable

Escalation Matrix – please log on to NxtGen Cloud Portal for the latest escalation matrix

Raise a Request Process:

To raise a request for any service change or information request, log on to NxtGen Cloud Portal or Email – support@nxtgen.com

To speak to our Service Desk contact@ 080-68706111 / +91 9686303314

Upon raising the request ticket, service desk responds with acknowledgement and assigns task to relevant Shift Engineer. The engineer will respond on the time that will be required to accomplish the task assigned. For any business impact or urgency for fulfilment of the request you may use the escalation matrix as provided in the cloud portal.

• This Terms & Conditions shall be applicable from the service commencement date and shall be valid for a period the Customer is availing the Services. However, the services may be terminated by either party in terms of the Termination Clause below.

• The service and other charges payable by CUSTOMER under the applicable Purchase Order (PO) and/or the Agreement are as per the mutually agreed rates mentioned in our proposal.

• During the course of the applicable Purchase Order (PO) and/or the Agreement, either Party may request changes to the Purchase Order (PO) and/or the Agreement, its Appendices and the Specifications, by submitting such requests in writing to the other Party. NXTGEN will advise CUSTOMER whether the change can be made and, if so, prepare a change proposal describing the effect the change will have on the Price, Delivery and other terms and conditions applicable to the Purchase Order (PO) and/or the Agreement. CUSTOMER shall notify NXTGEN in writing, its acceptance within thirty (30) days of receipt of the change request. Pending written agreement to implement the changes, the parties will proceed in accordance with the latest agreed terms and conditions of the Purchase Order and/or the Agreement.

• EACH PARTY will indemnify and hold the other and its officers, directors and employees harmless from and against any and all liabilities, damages, awards, settlements, losses claims, and expenses, including reasonable attorneys fees arising out of any claim by a third party relating to or arising out of any infringement of third party intellectual property rights, any misrepresentation or breach of representation or breach of conditions contained herein, as well as because of any gross negligence or willful misconduct of the defaulting party.

• Notwithstanding anything else contained in the Agreement and/or the applicable Purchase Order (PO) and this Terms & Conditions, the Parties hereto agree that failure to perform certain obligations undertaken in connection with the Agreement and/or the applicable Purchase Order (PO) would cause irreparable damage, and that monetary damages would not provide an adequate remedy in such event. The parties further agree that failure to complete performance of the Services called for in the applicable Purchase Order (PO), or on any project released under the Agreement and/or the applicable Purchase Order (PO), or failure to deliver or effect delivery of Services as contracted, or failure to make payments on receipt of invoices, or to deliver confirmed supply or pricing, or compliance with applicable law are such obligations. Accordingly, it is agreed that, in addition to any other remedy to which the non-breaching party may be entitled, at law or in equity, the non-breaching party shall be entitled to injunctive relief to prevent breaches of the provisions of the Agreement and/or the applicable Purchase Order (PO) and this Terms & Conditions, and an order of specific performance to compel performance of such obligations in any action instituted in any court in India having subject matter jurisdiction.

NXTGEN and CUSTOMER shall keep in confidence any information obtained under the Agreement and/or the applicable Purchase Order (PO) and which is specified as confidential by the disclosing party and shall not divulge the same to any person (other than their employees/ advisors and agents on a strictly need to know basis.) without the consent of the other party.

However confidential information shall not mean and include the following:

• It is recommended that CUSTOMER covers all the equipments and machines and accessories installed by CUSTOMER at DC against any natural calamities, acts of God or manmade disasters to the extent of 100% of the estimated market value or book value, whichever is higher by paying the insurance premium based on the value of such equipment, machines and accessories declared. NXTGEN undertakes to co operate in informing the insurance company in matters regarding settlement of the claims, if any. CUSTOMER shall provide all necessary documents and authorisations for this purpose.

• NXTGEN reserves the right to modify any service or the provision of any service, if the same is required by any governing law or regulation. However NXTGEN shall notify CUSTOMER of the same as soon as it is possible of such modification. Services and deliverables covered under the Agreement and/or the applicable Purchase Order (PO) are subject to regulations of Government of India and subject to the jurisdiction of Bangalore High Court.

• This service Terms & Conditions, applicable Purchase Order/s (PO) and/or Agreement along with its Annexures mentioned herein constitutes the entire Agreement/understanding between the Parties hereto and supersedes any or all previous agreements, representations, proposals, acceptances, meetings, discussions, negotiations, and any other understandings either written or oral relating to the subject matter of the applicable Purchase Order (PO). In the event of any provision of this Agreement becoming invalid, illegal or unenforceable due to the operation or introduction or modification or amendment of any law in force or introduced, such provision deemed invalid, illegal, or unenforceable shall be deemed to be severed from the other provisions of the Agreement, and such invalidity, illegality or unenforceability shall not affect the remaining provisions of the Agreement, and these remaining provisions shall be valid and subsisting.

NXTGEN reserves the right to suspend or restrict CUSTOMER or any Authorized User’s access to the Services if (i) a CUSTOMER or any Authorized User breaches this Terms & Conditions, including by violating its obligations under this Terms & Conditions, (ii) CUSTOMER or any Authorized User fails to cooperate with any reasonable investigation by NXTGEN of a suspected breach of this Terms and Conditions, (iii) NXTGEN reasonably determines that suspension is necessary to prevent or mitigate damage to NXTGEN’s systems or networks caused by a denial of service attack or other event, (iv) CUSTOMER fails to pay any Fees when due; (v) there is an unusual spike or increase in CUSTOMER’s use of the Services that impacts NXTGEN’s ability to deliver the Services; or (vi) as the result of any EXCUSTING EVENT (collectively, “Service Suspensions”). Services may be unavailable during a Service Suspension, and all Fees payable under the applicable Order will continue to accrue, provided the reason for suspnsion is attributable to CUSTOMER. NXTGEN will provide notice of any Service Suspension to CUSTOMER and to provide updates regarding resumption of Services following any Service Suspension. NXTGEN will have no liability for any damages, liabilities, or losses resulting from any Service Suspension, if the suspension arises owing to the reasons attrubutable to CUSTOMER or an EXCUSING event.

EXCUSING EVENT means (i) an act or omission of a Customer, Authorized User or third party, including failure to supply accurate, complete, and timely information when requested; (ii) a Force Majeure Event (as described in this Terms and Conditions ); (iii) failure of a Data Center Facility to meet any requirements provided by NXTGEN, or Service Provider’s failure to provide power, telecommunications or other required services at a Data Center Facility; (iv) routine or emergency maintenance of the Services (as described in Section c of NXTGEN OBLIGATION under this Terms and Conditions ); (v) defects in Third Party Software or NXTGEN’s loss of license rights or restrictions imposed by third party licensors with respect to Third Party Software; (vi) unavailability of necessary technology or other resources on commercially reasonable terms; (vii) any operating system, database, application or other code or materials not provided by NXTGEN, including configuration issues in connection with the foregoing; (viii) any act or omission of a third party or that is not caused by NXTGEN (for example, hacking, denial of service attacks and the introduction of viruses), provided that NXTGEN uses reasonable efforts to maintain current versions of Software patches; (ix) compliance with any applicable law or requests of governmental entities; (x) any scheduled maintenance carried out in accordance with Section c of NXTGEN OBLIGATION under this Terms and Conditions; or (xi) any destruction, damage, loss or theft of or to any NXTGEN Equipment or other NXTGEN equipment or materials; in each case that adversely affects NXTGEN’s ability to provide the Services.

• Any notice, request or communication to be given or made to any party hereunder shall be in writing. Subject to anything contrary hereto contained elsewhere in this Terms & Conditions, the notice, request or other communication may be delivered by hand, airmail, facsimile, established courier service, telex or E-mail to the party's address specified below or at such other address as such party notifies to the other party from time-to-time and will be effective upon receipt or, in the case of delivery by hand or by established courier service, upon refusal to accept delivery. Any notice sent by one party to the other by E-mail or facsimile shall be then confirmed by postage, prepaid registered airmail or by internationally recognized courier services, on the addresses and contact numbers in provide by the parties.

NXTGEN will provide Datacenter space for co-location/hosting services. The co-located Rack/Server will be connected to the Internet/VPN cloud of a telecom service provider. NxtGen server time is IST (Indian Standard Time), Colo / Hosted premises is owned by / on long lease by NxtGen and it is sufficient to cover the term under this agreement. In case of change in lease terms between NxtGen & its lessor, NxtGen shall take the sufficient preemptive measures to ensure the interest of the customer are protected. NXTGEN shall offer uptime measured on Quarterly basis on the following facilities:

Power Availability:

NXTGEN will ensure power is available to the CUSTOMER’s servers and other equipments for the uptime as agreed above.

Precision Air-conditioning:

NXTGEN will ensure that the Precision Air-conditioning is available for the uptime as agreed above.

UPTIME FREQUENCY AND REPORTS:

The uptime will be calculated on a quarterly basis and the uptime availability reports, generated manually, for the above parameters will be made available to the CUSTOMER on a quarterly basis. The availability report for a particular quarter will be made available to the CUSTOMER by 10th day of the following quarter.

UPTIME CALCULATION:

The following formula will be used for determining uptime:

1. Power Availability:

% Uptime = ((Power Availability Uptime in measured in Minutes/ Quarter) / (Total Minutes/Quarter)) x 100 Where Power Availability Uptime= Number of Minutes of Power made available to the CUSTOMER’s servers/ equipments colocated at NXTGEN’s DC through utility power/ DG set/ UPS/ any other acceptable alternative

2. Precision Air-conditioning:

% Uptime = ((Precision AC Availability Uptime in measured in Minutes/Quarter) / (Total Minutes/Quarter)) x 100 Where Precision Air-conditioning Availability Uptime= Number of Minutes of Precision AC made available to the CUSTOMER’s servers/ equipments colocated at NXTGEN’s DC through utility power/ DG set/ UPS/ any other acceptable alternative.

Facilities

NXTGEN will offer the following infrastructure facilities such as Power, Precision Air Conditioning (AC), Uninterrupted Power Supply (UPS) & Diesel Generator (DG) set support, Fire and Access Control.

SERVICE LEVEL AGREEMENT

1.1 Terminology

2.1 Basic Data Centre Services

The Supplier will provide a Space in a shared Rack/ Partial Rack / Full Rack / Multiple Racks / technical floor to the client as per the Order

2.2 Local Cabling

Inter Rack, Intra Rack cabling shall be customer’s responsibility. See Section 6.0 for customer’s responsibilities.

2.3 HVAC (Heating, Ventilation, Air Conditioning)

The Supplier shall meet the following environmental parameters;

• Operating Humidity: 45% to 55% RH
• Optimum Temperature: As Per ASHRAE standards (22+/- 2 degree Celsius)
• Lighting: Emergency lighting is provided to the entire Data Center area and it is connected to separate dedicated UPS system.

The Supplier’s obligations are subject to the Customer complying with the required installation standards.

2.4 Water Leak Detection

To prevent damage due to water, a water leak detection system has to be installed by the Supplier in the server hall. The water leak detection system is linked to a building management system that is monitored 24 hours a day, 7 days per week.

2.5 Smoke Detection

A Very Early Smoke Detection System to be installed by the Supplier providing coverage above and below the raised floor and floor voids.

2.6 Fire Protection and Detection

The Supplier to provide analogue/addressable fire detection system and provision of fire suppression system in technical areas. Addressable fire alarm system is divided in two layers (Under false floor, and above) and integrated with FM200 or equivalent fire suppression system. In addition, VESDA will be provided to detect the fire particle efficiently.

2.7 Physical Access Control

The Supplier authorizes physical access to its Site and the Equipment Space in accordance with the Standard operating procedure. For the avoidance of doubt, those access procedures must comply with the following Customer requirements:

• Persons who have had their authorization revoked, either by request or implicitly through termination of employment, must be removed from the access list on a timely basis
• The Cage area must be locked, even when attended
• Access to the server hall area must be controlled by electronically controlled access systems
• Manual call points with audio alarm and flash lights are provided for emergency evacuation purpose
• Alarms must operate on emergency power
• In case of smoke/fire detection, audio alarm will be generated along with the flash lights. In addition, announcement system is available at the BMS room for evacuation instructions if needed during disaster

Both parties shall mutually agree on the access policy and shall abide by the same in the data center facility.

2.8 Video Surveillance

Within the Data Centre, access to the various areas are to be monitored and recorded by means of a video surveillance system supplied and operated by the Supplier as part of the Services. The recording is event triggered and digitally stored for a period of 30 days.

1. 0 Other Supplier Responsibilities

3.1 Supplier's Use of Subcontractors

Supplier may subcontract Services to be performed hereunder. Notwithstanding this subsection, Supplier's use of subcontractors will not relieve Supplier of the responsibility for the subcontractor's performance, and Supplier's obligations and responsibilities assumed under this SOW and Agreement will be made equally applicable to subcontractors. The Customer, acting reasonably, reserves the right to request Supplier to not engage or to remove a particular subcontractor.

3.2 Other Responsibilities/Clarification of Scope

In addition to the Supplier requirements and specifications detailed in this SOW, the Supplier’s obligations are further specified and clarified in the supplier’s proposal document. To the extent of any discrepancy between this SOW and the proposal document this SOW shall have precedence.

2. 0 Performance Measurements

The Supplier agrees to provide the following reports to the Customer on the cycles as indicated to assist in performance measurement activities:

Please note that all information provided would be limited to / pertaining to the customer Collocation Area and building infrastructure serving the customer collocation area only

Definition of Severity Levels:

Severity 1 – Data Centre has actually suffered a Critical System outage e.g. Electrical outage caused by UPS or Distribution system on both sources.

IT systems would be down and customers would have experienced an outage due to the infrastructure failure.

Severity 2 - Any of the engineering services support systems have lost redundancy, or Building Management system is down.

The Customer has not experienced an outage but critical facilities equipment is now not in a BAU operation and there is a possibility of customer impact whilst the site is in this mode, the risk and probability may be low but the impact is high. For e.g. loss of redundancy may result in loss of cooling if further failure occurs. Redundant systems are down and loss of any further capacity will/may cause impact to the IT systems.

Severity 3 – Site has taken a short External Power hit and UPS covered it, an individual piece of facilities equipment is down, but is not in a critical path and can be attended to in next 24 hours. No customer impact and no likelihood.

Service Level Measurements

The Supplier shall measure each Service Level on a monthly basis and shall report to the Customer within 5 working days of the beginning of each calendar month. The Customer has the right to audit the Supplier to ensure compliance with this agreement and compliance with Service Levels.

The Supplier undertakes to respond in accordance with the Service Level targets specified in the table below:

Notes:

• Initial Response means contacting the Customer through email/sms/telephonically and providing confirmation of acceptance of the issue
• Service Restoration means re-establishing supply of service to the Customer, whether by “work-around” or by return to designed operation
• Problem Resolution means implementation of a final solution that returns the site to its designed operation
• Business Day means Monday to Friday excluding public holidays in India
• Business Hour means the hours between 9 am and 6pm on a Business Day

3. 0 Service Level Guarantee

1. Power Supply Availability. Supplier shall guarantee the 100% availability of the electrical power supply (“Power Supply Availability”) in the Co-location Space if the customer equipment uses both the primary and secondary power feeds as set out below.
1. Power System:The Power Supply Availability shall be determined by flow of electricity on both the duty and standby sub-feed breakers supplied to Customer by Supplier serving the Collocation Space. The Customer will only be entitled to the Power Supply Availability Service Credits if it uses both primary and secondary feeds. Power Supply Availability Service Credits apply when both primary and secondary feeds fail concurrently.
2. Power Supply Availability shall be measured by Supplier’s Building Management System (“BMS”) or other electrical metering device serving the Co-location Space.
2. CRAC Availability. Supplier shall guarantee the availability of the CRAC supply (” CRAC Availability”) in the Co-location Space as set out below. The same will be measured within the Cold aisle containment by Supplier’s Building Management System (“BMS”).
1. a. Average room temperature 22+/- 2 Degree Celsius on a daily basis and
2. Average Room Relative Humidity from 45% to 55% RH.
3. Service Credits.
   1. Co-location Service. If Supplier fails to maintain the Power Supply Availability and or the CRAC Availability in any whole calendar month of the Term due to the act or omission of Supplier, then the Customer shall be entitled to receive a Service Extension at the end of the term as set below (“Service Credits”). The Service Credits are set out below:

   Power Supply or CRAC Availability	Service Credit
   99.982%-99.90%	Service extension for 2 days
   99.89% - 99.80%	Service extension for 4 days
   99.79 % - 99.00%	Service extension for 6 days
   98.99% -98.00%	Service extension for 8 days
   "<" 98%	Service extension for 15 days

   Exclusions. The following outages shall be deemed to be excused outages for the purpose of calculating the Power Supply Availability or CRAC Availability:

   1. anything which is not due solely to the fault or negligence of Supplier or its employee(s), agent(s), contractor(s); or
   2. anything which arises as a result of any decrease of availability or unavailability of the Power Supply or CRAC which is due to;
   1. inherent defect(s) in the design of any part of the Power Supply or CRAC where such design was specified by the Customer or
   2. inherent defect(s) in the design of any part of any system(s) of the Customer (including but not limited to the Customer’s own Power Supply and CRAC); or
   3. anything caused by a Force Majeure Event; or
   4. any misuse of the Power Supply or CRAC by the Customer or its employees, servants, agents, contractors or customers;
   5. any Planned Maintenance with prior written approval of the customer; or
   6. any obstruction to the Supplier by the Customer, which prevents or delay the performance of Supplier’s obligations including necessary maintenance or emergency work in time.

4. 0 Maintenance

4.1 Preventative Maintenance

The Supplier alone is responsible for the running and maintenance of utilities and technical or other equipment such that the specified Services are delivered to the required Service Levels. The Supplier will:

• Provide a list of all maintenance activities planned for the year ahead. The Customer, acting reasonably, may review the list of activities planned and request the Supplier to include additional maintenance activities. Where the Supplier considers that the additional activities proposed are not required to enable it to meet its Service obligations, then the Customer may nonetheless require the Supplier to carry out those activities at the Customer’s cost.
• Consider foreseeable effects connected with these operations
• Propose an action plan for each foreseeable effect
• Ensure that maintenance activities or modifications will be done according to the applicable public safety regulations and that certificates will be delivered by the Supplier on customer request stating the conformity with these public regulations where applicable

The Customer is entitled to organize audits, no more frequently than six-monthly, to check conformity to the public regulations or contractual deliverables at its expense. The Supplier commits to co-operate in handing over the information needed for such an audit, limited to the customer collocation area and the building infrastructure serving the customer collocation area only. The Customer will inform the Supplier with 30 days’ notice when audits are planned.

All operations inside the Data Centre are subject to the following conditions:

• The Supplier formally commits to monitor each sub-contractor during the carrying-out of every operation.
• The Supplier formally commits to inform and agree with the Customer upon each start and end of any activities including at least two weeks prior notice of any shutdown of part of the installations, which may impact upon the Services.

4.2. Remedial Maintenance

In some cases, the Supplier may need to carry out a non-routine remedial maintenance operation on technical or other equipment located inside the Equipment Space.

In such cases, the Supplier will:

With the Customer

• Consider foreseeable effects connected with these operations
• Propose an action plan for each foreseeable effect
• Provide a prospective plan for this operation

All remedial maintenance operations inside the Equipment Space are subject to the following conditions:

• The Supplier formally commits to monitor each sub-contractor during the carrying-out of every operation
• The room is to be cleaned after each operation
• The Supplier formally commits to inform and agree with the Customer upon each start and end of any activities including a shutdown of parts of the installations with at least two weeks prior notice.

5. 0 Cleaning and Services

Cleaning

The Supplier will be responsible for the cleaning of the office spaces and amenities once every business day. Additional Data Center floor cleaning services will be provided at the request and expense of the Customer. The Customer will have the responsibility at all other times for maintaining the Data Centre in a clean and tidy state.

Rubbish Removal

The Supplier will be responsible for the removal of packaging, pallets, cartons, etc. from the building’s waste disposal area.

Cage Area Maintenance.

The Supplier must make every effort to ensure that the raised floor area at the Customer’s disposal will always and permanently be:

• Free of any lighting defects (normal or security)
• Free of any security defects (access control, intruders etc.).

6. 0 Customer's Responsibilities

The installation of all cables, cabinets, racks and equipment within the Equipment Space for the provision of services by the Customer to its customers is the responsibility of the Customer.

The Customer is responsible for ensuring that the installation, maintenance and operation of all the Customer’s Equipment in the Data Centre complies with the relevant standards, the Customer Manual, electrical, heating and mechanical loading for the Equipment Space and statutory OH&S obligations.

The following section describes procedures to be followed by the Customer in the installation of its equipment in the Equipment Space:

The Customer is entitled to install LAN & SAN cabling within the dedicated Equipment Space. No cabling is to be laid between the cabinets except in accordance with applicable standards and good work practices. All cabling in the site required to provide the Services outside the Equipment Space is the responsibility of the Supplier. All patching is to be performed by the installers.

The Customer’s area of responsibility also includes:

• Computer equipment installed in the racks
• The management of the IT machines within a rack
• Ensuring that electrical loads presented to the UPS are balanced across all three phases to within 10% of each other at any time. The Supplier will notify the Customer immediately that it becomes aware that electrical loads have exceeded or may exceed this requirement.
• Keeping the Racks and Containment closed properly.