THESE TERMS AND CONDITIONS (“TERMS AND CONDITIONS”) STATE IMPORTANT REQUIREMENTS REGARDING YOUR USE OF FITSER ′S SUPPORT SERVICE AND YOUR RELATIONSHIP WITH FITSER.YOU SHOULD READ THEM CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION AND INSTRUCTIONS SUCH AS HOW LONG IT LASTS, FEES FOR EARLY TERMINATION, OUR RIGHTS TO CHANGE ITS CONDITIONS, LIMITATIONS OF LIABILITY, PRIVACY, AND SETTLEMENT OF DISPUTES BY ARBITRATION INSTEAD OF IN COURT. IF YOU ACCEPT THIS AGREEMENT, IT WILL APPLY TO ALL YOUR SERVICE PLANS FROM US, INCLUDING ALL YOUR EXISTING PLANS.
“You” means you individually, any person, including any employer that you are acting on behalf of.
“Subscription Based Plans”
“Subscription Based Plans” are tenured Subscription plans offered by FITSER that are active for a specified period and will not include any incident based plans such as “Per Incident Plan” or the like.
“SERVICES” AND “FITSER PORTAL”
All references to “Services” refer to any FITSER service plan that you enter into with FITSER through use of the FITSER web portal located at https://www.fitser.com/ “the “FITSER Portal”) or by calling the FITSER phone number mentioned on the web portal. These Terms and Conditions govern all plans available through the FITSER Portal, and any use of the FITSER Portal. In the event of any conflict, these Terms and Conditions control any Plan Order form that you submit requesting Services (“Plan Order”).
“Materials” means any web casts, downloaded materials, white papers, press releases, datasheets, FAQs, product information, quick reference guides, or other works of any kind that are made available to download from the FITSER Portal are the proprietary and copyrighted work of FITSER and/or its suppliers. The definition of “Materials” does not include the design or layout of the FITSER Website or any other FITSER owned, operated, licensed or controlled site.
“Software” means a computer program of any kind, whether owned by FITSER or a third party, whether delivered via download, CD, other media, or other delivery method, including client and/or network security software. Elements of the Software are protected under copyright, trade secret, unfair competition, and other laws. Software includes both FITSER Software and Third Party Software.
SUBMISSION OF PLAN ORDERS; SERVICE PLANS
You may order Services through the FITSER Portal or by calling FITSER. Once FITSER accepts the Order submitted by you, then you will receive an email from FITSER at the email address that you provide or have provided to FITSER as part of the Registration Process for the Services. FITSER is not responsible for rendering Services in connection with any Order that it has not accepted. Upon acceptance by FITSER of an Order, you will have Service guidance.
Subject to the Terms and Conditions, and other terms specific to each Service Plan, FITSER will address your query using commercially reasonable efforts in providing appropriate solutions under the Services. In most cases, FITSER will attempt problem diagnosis and a solution over the telephone, through chat, email or other means as it deems most appropriate under the circumstances including remote access. You understand that if remote access is used on your computer there will be no residual software from the remote session; however, there may be a text file placed on your computer that will explain the work that was done on your computer. If such a text file is placed on your computer, you have the option to either save the file for future reference or to delete it from your computer. All undertakings under Service Plans are subject to FITSER′s Limited Warranty, which is set forth below.
Services against any Order will be available once you have made payment for Services according to the requirements of the corresponding Order. FITSER has no obligation to render Services under any Service Plan if the payments as required under any Plan Order have not been made. You understand that certain Service Plans may have onetime fee including, but not limited to “Service Fee” and/or “Activation Fee”. This fee will not be refunded in case of cancellation of the Service Plan unless otherwise stated in the Plan Order.
Credit Card Billing: You may be asked to provide us with a credit card number from a card issuer that we accept in order to activate your Service. You hereby authorise FITSER to charge and/or place a hold on your credit card with respect to any unpaid charges for Services or any related equipment. You authorise FITSER and/or any other company who bills products or services, or acts as billing agent for FITSER to continue to attempt to charge and/or place holds with respect to all sums described herein, or any portion thereof, to your credit card until such amounts are paid in full. You agree to provide FITSER with updated credit card information upon FITSER′s request and any time the information you previously provided is no longer valid. You acknowledge and agree that neither FITSER nor any FITSER affiliated company will have any liability whatsoever for any non-sufficient funds or other charges incurred by you as a result of such attempts to charge, and/or place holds on, your credit card. If you mistakenly provide a debit card number, instead of a credit card number, you authorise all charges described herein to be applied to such debit card unless and until you provide a credit card number. In the event you are enrolled, or later enrol, in an automatic payment or electronic funds transfer plan, you agree that all sums described herein may be charged, at FITSER′s option, to the account number provided for such automatic payment or electronic funds transfer plan. When payment is made by credit card or debit card, payment will also be subject to the terms and conditions established by the credit or debit card issuer.
You understand that FITSER subscription will renew at end of your subscription cycle unless explicitly stated otherwise.
Your credit card will be charged with the amount of the then prevailing subscription charges as per the payment option that you selected at the time of registering with FITSER.
If you would like to opt out of the ‘Auto Renewal’, please call us and speak with one of our customer service representative at least 7 days prior to your subscription end date to discontinue your service.
PERSONAL AND NON-COMMERCIAL USE LIMITATION
Unless otherwise specified, the Services and the Materials are for your personal and non-commercial use in addressing matters covered by your Service Plan. You may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell any information, software, products or services obtained from the Services or Materials. Any Services, Materials, and Software are available only in connection with Services under a valid Service Plan.
NO UNLAWFUL OR PROHIBITED USE
As a condition of your use of the FITSER Portal or any Services, you will not use the Materials, Software or Services for any purpose that is unlawful or prohibited by these Terms and Conditions. You may not use the Services, Materials, or Software in any manner that could damage, disable, overburden, or impair any FITSER server, or the network(s) connected to any FITSER server, or interferes with any other party’s use and enjoyment of any of the FITSER Portal, the Materials, Software or Services. You may not attempt to gain unauthorised access to any FITSER Portal, the Materials, Software or Services, other accounts, computer systems or networks connected to any FITSER server or to any of the FITSER Portal, the Materials, Software or Services, through hacking, password mining or any other means. You may not obtain or attempt to obtain any FITSER Portal, the Materials, Software or Services or information through any means other than that specifically permitted to you under a Plan Order.
USE OF COMMUNICATIONS SERVICES
You agree to use the Communication Services only to post, send and receive messages and material that are proper and, when applicable, related to the particular Communication Service. By way of example, and not as a limitation, you agree that when using the Communication Services, you will not: Use the Communication Services in connection with surveys, contests, pyramid schemes, chain letters, junk email, spamming or any duplicative or unsolicited messages (commercial or otherwise). Defame abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others.
Publish post, upload, distribute or disseminate any inappropriate, profane, defamatory, obscene, indecent or unlawful topic, name, material or information. Upload, or otherwise make available, files that contain images, photographs, service or other material protected by intellectual property laws, including, by way of example, and not as limitation, copyright or trademark laws (or by rights of privacy or publicity) unless you own or control the rights thereto or have received all necessary consent to do the same. Use any material or information, including images or photographs, which are made available through the Materials in any manner that infringes any copyright, trademark, patent, trade secret, or other proprietary right of any party. Upload files that contain viruses, Trojan horses, worms, time bombs, cancel bots, corrupted files, or any other similar service or programs that may damage the operation of another’s computer or property of another. Advertise or offer to sell or buy any goods or services for any business purpose, unless such Communication Services specifically allows such messages.
Download any file posted by another user of a Communication Service that you know, or reasonably should know, cannot be legally reproduced, displayed, performed, and/or distributed in such manner. Falsify or delete any proprietary rights notices, such as author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of service or other material contained in a file that is uploaded. Restrict or inhibit any other user from using and enjoying the Communication Services.
Violate any code of conduct or other guidelines which may be applicable for any particular Communication Service.
Harvest or otherwise collect information about others, including e-mail addresses.
Violate any applicable laws or regulations.
Create a false identity for the purpose of misleading FITSER or others.
FITSER has no obligation to monitor the Communication Services. However, FITSER reserves the right to review materials posted to the Communication Services and to remove any materials in its sole discretion. FITSER reserves the right to terminate your access to any or all of the Communication Services at any time, without notice, for any reason whatsoever. FITSER reserves the right at all times to disclose any information as FITSER deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in FITSER′ s sole discretion. Any materials uploaded to the Communication Services may be subject to posted limitations on usage, reproduction and/or dissemination; you are responsible for adhering to such limitations if you download the materials.
You may not create hyperlinks to any portion of the FITSER Portal, nor any Materials or Software posted therein.
You agree to indemnify, defend, and hold FITSER, its subsidiaries, affiliates, officers, directors, employees, agents, licensors, consultants, suppliers, and any third-party Web site providers harmless from and against all claims, demands, actions, liabilities, losses, expenses, damages, and costs, including actual attorneys’ fees, resulting from your violation of these Terms and Conditions, misuse or abuse of a Service, or your infringement, or infringement by any other user of your account, of any intellectual property or other right of any person or entity. FITSER reserves the right, at its own expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by you and you shall not in any event settle any matter without the written consent of FITSER. You agree immediately to notify FITSER of any unauthorised use of your account or any other breach of security known to you.
GUESTS; LIMITED LICENSE TO USE OF FITSER PORTAL
If you are not currently subscribed for a Service, then you are regarded as a “Guest”. Usage of the FITSER Portal by current FITSER customers outside of the scope of a Service specified under an applicable Plan Order is also treated as a “Guest”. As a Guest you may use the FITSER Portal and Materials specifically designated as available to guests on the FITSER Portal for the limited purposes of (a) deciding whether to subscribe to the Services provided by FITSER, (b) registering with FITSER and submitting Plan Orders only. The foregoing license grant is a non-exclusive revocable license.
FITSER may provide you with the use of e-mail services, addresses, bulletin board services, instant messaging services, chat areas, news groups, forums, communities, personal web pages, calendars, file cabinets and/or other message or communication facilities designed to enable you to communicate with FITSER′s employees and others as appropriate to your Service under a Plan Order (each a “Communication Service” and collectively “Communication Services”). Communications Services shall only be used under an accepted Plan Order, and not for any other purpose.
LIMITED LICENSES TO USE THE FITSER PORTAL, MATERIALS AND SOFTWARE
As permitted through a Service, you may use Materials and Software posted on the FITSER Portal, or made available in connection with a Plan Order which may be available for additional purposes and or subject to additional restrictions.
GENERAL LICENSE RESTRICTIONS
Any other use of the FITSER Portal, Services, Materials or Software, other than as explicitly permitted by FITSER is prohibited. Rights to execute, copy, modify, display, transmit, distribute, manufacture, use, sale are all reserved to FITSER and its suppliers.
In connection with obtaining Services, you agree that you will:
Software/Data Backup: You understand and agree that FITSER shall under no circumstance be responsible for any lost or corrupted software or data. FITSER strongly recommends that you at all times maintain a complete data backup and disaster recovery plan.
Security: For you to submit a Plan Order, you must complete the Registration Process by providing us with current, complete and accurate information as prompted by and required under the applicable Registration Form.
AVAILABILITY OF SERVICES AND MATERIALS UNDER FORCE MAJUERE CIRCUMSTANCES
You hereby acknowledge that circumstances outside of FITSER′s reasonable control (e.g., acts of God, a large scale outbreak of a new computer virus, strikes, riots, wars, other military action, civil disorder, acts of terrorism, fires, floods, vandalism, sabotage, acts of third parties, or the like) may cause significant delays in FITSER′s ability to schedule a support session. You hereby release FITSER from any and all liability, and agree that FITSER shall not be liable to you or any third party for any direct or indirect damages whatsoever, resulting from such delays. FITSER or its suppliers may, at any time, without notice or liability, restrict the use of the Service or limit its time of availability in order to perform maintenance activities and to maintain session control.
EXCLUSIONS FROM “SERVICES”
“Services” shall not include the following:
Any item or activity not covered by the terms of a Plan Order; Service beyond the duration limitations identified in your Plan Order; Problem diagnosis and support that may not be completed because of a problem with your computer, or their configuration that is beyond our control; Software, including the operating system and software added to the registered hardware products which are out of scope for the Service Plan;
Problems that may and do result from:
External causes such as accident, abuse, misuse, or problems with electrical power; Usage that is not in accordance with product instructions provided by manufacturer; Failure to follow the product instructions provided by manufacturer or failure to perform preventive maintenance; or Problems caused by using accessories, parts, or components not compatible with the product. Non Compliance with the FITSER technician instructions for resolving the query.
NOTICE SPECIFIC TO MATERIALS AND SOFTWARE AVAILABLE ON THE FITSER PORTAL, OR THROUGH A SERVICE
For your convenience, FITSER may make available Materials or Software (as each term is defined above) for use and/or download, whether as a part of a Service, or in promotion of the Services. Use of any Materials and any Software is governed by the more stringent of (a) the terms of the end user license agreement (“EULA”), if any, which accompanies the specific Materials and Software, or (b) if there is no EULA, these Terms and Conditions. The Materials and Software are made available for download solely for use by you according to (a) the EULA, and (b) the Plan Order. Any reproduction or redistribution of the service not in accordance with the EULA is expressly prohibited by law, and may result in severe civil and criminal penalties. Violators will be prosecuted to the maximum extent possible. No logo, graphic, sound or image from any FITSER Web site may be copied or retransmitted unless expressly permitted by FITSER. WITHOUT LIMITING THE FOREGOING, COPYING OR REPRODUCTION OF THE MATERIALS OR SOFTWARE TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION, REDISTRIBUTION OR ANY OTHER PURPOSE IS EXPRESSLY PROHIBITED, UNLESS SUCH REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PERMITTED BY THE EULA ACCOMPANYING SUCH MATERIAL OR SOFTWARE.
THIRD PARTY SOFTWARE
As part of the Services, FITSER may suggest that you acquire, install and use certain third party software (“Third Party Software”). Third Party Software is licensed to you by the respective owners or licensees of the Third Party Software. You must agree to the terms and conditions set forth by such owners or licensees before installing Third Party Software. FITSER has no rights to the Third Party Software and does not license Third Party Software to you or make any representation or warranty regarding the Third Party Software.
To the extent that we provide technical assistance and support for Third Party Software or equipment, you must ensure that you comply with the terms and conditions under which you licensed such Third Party Software or purchased such equipment. We make no warranty that we are an authorised service provider for Third Party Software or for any equipment; it is your sole responsibility to determine if you require additional rights for us to provide such support and if so, to acquire such rights. You acknowledge that support of Third Party Software or equipment by an unauthorised service provider may void any warranty made by the supplier of such Third Party Software or equipment.
THIRD PARTY AGREEMENTS
As part of the Services, FITSER may suggest certain third party services to you. If you choose to subscribe to or otherwise use any third party services, your use of any such services is subject to the terms of service of such third party service provider. You agree to comply with such provider’s terms of service and that the third party provider is solely responsible for delivery of its service(s) to you and your use of them. Third party services include, but are not limited to technical support, portal, training, music, gaming and storage services that FITSER may elect to make available from time to time. Violation of such third party provider’s terms of service may, in FITSER′s sole discretion, result in the termination of your customer account and use of service.
LIMITATION OF LIABILITY
Notwithstanding anything to the contrary in no event shall FITSER be liable to you in excess of the amounts actually paid by you to FITSER under the Plan Order that is the subject of the dispute.
LIMITATIONS ON ACTIONS
Any cause of action by you must be commenced within one (1) year after the cause of action arose or it shall be forever waived and barred.
TERM AND TERMINATION
FITSER at its sole election may terminate or suspend your Service immediately without notice if, in the sole discretion of FITSER: (a) you are in breach of any of the Terms and Conditions (including but not limited to all policies regarding abuse and acceptable use of the Service) or any license for Third Party Software; (b) your use of the Service is prohibited by law or is disruptive to, adversely impacts or causes a malfunction to the Service, FITSER′s network, or the use and enjoyment of FITSER′s other users; (c) FITSER receives an order from a court to terminate the Service you are availing ; (d) if you are no longer a FITSER customer, or (e) FITSER determines that you are abusing the Service. FITSER, in its sole discretion, may refuse to accept your request for the Service, renewal or re-subscription following a termination or suspension of your use of the Service.
If any provision of the Terms of Service be held invalid or unenforceable, that portion shall be enforced to the maximum extent possible, and all other provisions contained in the Terms of Service shall remain in full force and effect. FITSER′s failure to enforce any provision of the Terms of Service shall not be deemed a waiver of such provision nor of the right to enforce such provision.
The FITSER Portal is available internationally and may contain references to FITSER products, services, and programs that are not available in a viewer’s country. These references do not imply that FITSER intends to make such products, services, or programs available in such country.
FITSER reserves the right to amend the Terms and Condition, and the FITSER Portal at any time by (a) posting a revised version of the Terms and Conditions on the FITSER’s Portal or by (b) sending information regarding any amendment to the Terms of Service to the email address you provide to FITSER in connection with registration. You are responsible for regularly reviewing the FITSER website to be notified of any amendments to the Terms and Conditions. Your use of the FITSER Portal or the Services after an amendment to the Terms and Conditions shall be deemed acceptance by you of the amended Terms and Conditions.
This Agreement and the rights and obligations of the parties under this Agreement and any disputes arising out of or in connection with this Agreement shall be governed in all respects by the laws of INDIA without regard to conflicts of laws principles that would require the application of the laws of any other jurisdiction.