Terms Of Service

1. Services.

The Service Provider shall provide the Services to the Buyer in accordance with the terms and conditions of this Agreement. This Agreement is not a work-for-hire agreement. Service Provider shall perform the Services as an independent contractor. Employees of Service Provider are not intended to be, and will not be considered employees of the Buyer. Service Provider will not be under the supervision of Buyer except to the limited extent of being responsible to the Buyer for the results to be accomplished in performing the Services. Buyer will not supervise Service Provider or Service Provider’s employees regarding the technical means or manner by which the Services will be performed. Poornam Inc. an Arizona corporation (mentioned as “Service Provider / provider” in the terms and conditions) with an address of 202 East Earll Drive, Suite 410, Phoenix, AZ 85012, d/b/a bobcares.com, poornam.com.

Following terms are applicable to all the service plans:

Bobcares are the experts in working with servers during an emergency. Our experience in the subject has helped us to maintain 9/10 success rates. However the numbers in the past are no guarantee for the successful completion of the work in future.

1. By signing up for the plan, the buyer authorizes service provider to charge their card or initiate any other form of payment, for any number of hours that are required to handle the task. Buyer hereby authorizes service provider to charge for any variation in the initial and follow-up estimates. The buyer shall be charged for the hours of work irrespective of success.
2. Buyer also authorizes service provider to make judgment about the time taken to complete the task. Buyer authorizes service provider to decide on payments schedule which is prepayment or interim payment or post-payment in nature.
3. The time spent on studying and research shall be considered as billable hours. Time spent for checking logs & recreating issues is billable.
4. Sub-tasks, if any, shall also be billed. Billing is based on each sub-task and not on final output.
5. Emergency tasks do not guarantee immediate resolution or issue resolution. Feasibility check about issue resolution is billable.
6. Providers can not give any kind of guarantee or assurance about quality & quantity of recovered data.
7. Solutions applied could get nullified or issues fixed could reappear due to change in server environment. Additional billable time will be used for such tasks.
8. If server or website is found as not in compliance with Bobcares AUP, work will be suspended immediately.
9. The liability of the service provider is limited to the cost paid by the buyer for the services only and the maximum liability of such sort is limited to the refund of the costs to the buyer.
10. The documentation of the solution or the technical summary is purely the intellectual property of the service provider and is not obliged to send it to the buyer. The communication of this sort via email, chat or phone is a violation of agreement.
11. The pricing of the plan is as per buyer’s cart and is susceptible to change if the plan is changed by the buyer.
12. Unused hours are not eligible to be refunded. If a customer raises a quality problem within thirty (30) days of purchasing the service, Bobcares will thoroughly review the request through the quality management process a refund after considering “the merits” of the request.
13. At the end of the twelfth month, any unused hours of a service purchased by the buyer will expire without any further notice.
14. The Buyer agrees to maintain a valid payment method on file, and the Service Provider shall have the ability to charge the payment method at any time any dues are owed.
15. The Service Provider shall be eligible to try other valid alternative payment sources if the default payment gateway is unable to perform the transaction.
16. These TOS may be updated, amended, modified, or revised by us from time to time. We encourage you to refer to these ToS from time to time to ensure that you are aware of any additions, revisions, amendments, or modifications that we may have made.
17. The Service Provider shall adopt a triage system for all emergency support plans when there is an influx of emergency support requests, the guidelines for such system are specified in the document here: https://bobcares.com/emergency-support-severity/.
18. Unless otherwise stated, all references to currency and monetary values set forth herein shall mean United States (US) Dollars and all payments hereunder shall be made in United States Dollars.

cPanel Migration Service

• Only the standard migration process as supported by the cPanel migration tools is included in this package. cPanel tool limitations such as DB import failure due to version differences, failure to detect hard-coded system paths, etc. are not covered in this plan. These will require per account code changes by a hosting expert, and will require purchase of additional service credits.
• DNS change of domains using local DNS (destination server as DNS server) is included in migration packages. Additional service credits will have to be procured to support non-standard migration conditions like external DNS changes and domain registrar changes.
• File or database copy from the old server after the initial copy is possible only of destination server or control panel provides such a re-synchronisation option. In case if the destination server or control panel does not have a provision to re-synchronise objects like files or database or email from the old server, such assistance will require manual intervention, and additional service credits will have to be procured to support such non-standard migration conditions.
• Only standard software provided with a control panel will be included in the migration package. For custom non-standard software installations and configuration, additional service credits will have to be procured to avail assistance required to handle such non-standard migration conditions.
• Backup configuration of the new system is not included in any server migration package. If backup configuration is required in the new server, it should be requested separately. Additional service credits will have to be procured to avail assistance required to handle such non-standard migration conditions.

Server Management plans

Server management plans cover all ongoing server monitoring & maintenance services. It includes VM management, AWS cloud server management, and others. These terms are applicable to all such service plans:

• Server management plan is a server management, monitoring and maintenance plan.
• Server management plan will monitor the server and fix any server issues like service error, raid error etc. Monitoring of the server does not include all services and all hardware(eg: RAID, RAM) in the server. Monitoring available for a server may vary based on available tools to monitor services, the hardware of the server, compatibility of service/hardware with the monitoring system. Monitoring is done based on periodic checks, so there could be a gap between an occurrence of an incident in server and detection of the incident. The server management plan includes monitoring of 3 websites per server. Monitoring of additional websites is provided at a rate at an applicable additional quarterly charge per website.
• Server management plan ensures the security of the server by protecting it from various threats, denial of service attacks, spamming etc. While we strive to mitigate all possible threats to the server as quickly as possible, certain factors like websites running, OS version, type of services running, nature of server access by different server administrators etc may affect server security.
• Server management plan monitors available OS updates and arranges update installations. Server updates are installed after getting your confirmation to ensure that you can take necessary precautions & arrangements with your users about any possible issues after server update.
• Server management plan ensures optimum performance of services running on the server. Server & website performance depends on many factors like server hardware, software running, network performance, type of users, number of users etc.
• Server management plan maintains the proper backup of the server to use in the event of any data loss. Bobcares do not keep any backups, we would just assist you to configure, monitor & maintain a backup. Backup integrity is measured based on various parameters like backup date, backup size etc. However, these parameters may not reliably represent suitability of a backup to be used for a certain purpose.
• Server management plan is built to provide high service uptime, maximum server security & best data integrity. Server management plan does not cover website level tasks like website migrations, website level errors, website FTP issues, website level email issues, website level DNS changes etc, SSL management. Server management plan does not cover additional software installations. Server management plan does not cover code debugging, code changes, CMS upgrades etc. These tasks not included in the server management plan are covered in On Demand Server Administration Addon at an applicable hourly rate.
• All tasks in Unlimited(Limitless) server management plans are completed using service credits. The quarterly limitless plan provides 3 hours per month. If tasks in the servers in a quarterly limitless plan require more than 3 hours of work in a month, charges will be applied based on the applicable hourly rate of the plan. The annual limitless plan provides 36 hours in a year. If tasks in the servers in an annual limitless plan require more than 36 hours of work in a year, charges will be applied based on the applicable hourly rate of the plan. The limitless plan includes monitoring of 20 servers, additional servers will have an applicable additional charge for a block of next 20 servers. Limitless plan services are provided on demand. If servers need to be monitored, you need to request us to add a specific server in monitoring. Hardening, optimizations, audits etc are provided on demand.

 

2. Delivery of the Services.

Should Buyer fail to provide Service Provider with information necessary for Service Provider to begin performance of the Services, Service Provider shall have no responsibility to begin to provide the Services by the date of agreement, and shall only be obligated to do so when Buyer provides all necessary information.

Accuracy Disclaimer: Buyer is solely responsible for the accuracy and integrity of any data provided by Buyer, or Buyer’s customers, to Service Provider. Service Provider may rely on this information, and in addition may provide links to other Services Intellectual Property (as that term is defined in this Agreement) or any Internet sites or resources it believes are within the definition of Services. Service Provider does not endorse and is not responsible for any data, software, or other content available from such sites or resources. Buyer acknowledges and agrees that Service Provider shall not be liable for any damage or loss relating to Buyer, or Buyer’s customer’s, use of or reliance on such data.

 

3. Manner of Performing Services.

The Service Provider will supply all tools and materials necessary for the performance of the Services. Service Provider may perform the Services offsite of the Buyer’s worksite and in any location that Service Provider may choose in its sole discretion. Service Provider intends to access the Buyer’s computer and information systems via access codes that Buyer will provide to Service Provider (such as SSH keys, password authentication, etc.). The Buyer may remove such access codes after service provision, or request the Service Provider to remove it. Service Provider shall determine the particular manner, mode and method of performing the Services, but Service Provider will ensure that its employees are available during Buyer’s regular business hours to meet and confer with Buyer or Buyer’s employees and agents about the Services. Buyer shall identify which individuals have the authority to request work outside of the Services and charged in accordance with the Hourly Fees.

 

4. Fee for the Service.

Service Fees are due in advance and Service Provider shall have no obligation to perform the Services unless it has received the appropriate Service Fees. Should Buyer request additional services, or changes to the Services, these changes or additions may incur additional costs. As part of the Renewal Agreement, referenced in 16A, the service provider has the right to increase the fees on an annual basis by up to but not greater than 6.5%.

 

5. Late Fees and Suspension Fees.

If payment is not received by the Due Date, the Buyer will be charged a late fee of either (a) two percent (2%) of the total amount due; or (b) Ten Dollars ($10.00 US), whichever is greater (the “Late Fee”) till the 5th day after due date. From 6th day onwards, a late fee of 2% will be charged on daily basis . If the payment, including the Late Fee, is not received within fourteen days of the Due Date, the Service Provider shall suspend all Services until all outstanding obligations are paid in full. Should the Services be suspended because Buyer has failed to pay an invoice by the Due Date, the Service Provider shall charge $50.00 US to recover the administrative costs for suspension and reinstatement of the Services (the “Suspension Fee”). Any delays in payment due to card failures will be the Buyer’s responsibility. If Buyer wishes to dispute a charge listed on an Service Provider invoice to Buyer (a ”Disputed Amount”), Buyer must submit a written dispute notice that includes reasonably sufficient supporting documentation within thirty days of receipt of the initial invoice on which the Disputed Amount appears. If Buyer does not submit such written dispute notice and reasonably sufficient supporting documentation to Service Provider the period above, then notwithstanding anything in this Agreement to the contrary, Buyer waives all rights to dispute such Disputed Amount and to file a claim of any kind relating to such Disputed Amount (and Buyer also waives all rights to otherwise claim that it does not owe such Disputed Amount or to seek any set-offs or reimbursements or other amounts of any kind based upon or relating to such Disputed Amount)

 

6. Content of the Services.

Bobcares reserves the right to deny anyone access to its servers and/or service. Only legal uses may be made of the services we offer. Any information, data, or material that is transmitted, stored, or presented in violation of a law or regulation is prohibited.

The activities listed below are intended to provide examples of strictly prohibited activities and content.

1) Ponzi or pyramid schemes, prime banks programs, bank debentures/bank debenture trading programs, cryptocurrency/bitcoin miners, forex, e-gold, proxy, bots, spam bots, mail bombers, port scanners, IP scanners, mail harvesting scripts, brute force scripts, chat rooms, banner rotators, file dumps, using disk space as secondary storage, sales of illegal pharma, drugs, explosives, anonymous or bulk sms gateways, malware, warez, phishing materials, lottery, gambling, illegal downloads, pirated software distributions, escrow, high yield investment programs, adult thumbnail galleries/banner exchanges, streaming or broadcasting of live copyrighted events. Websites promoting illegal activities or linking to other websites that promote illegal activities.

2) Website content that promotes or advocates human trafficking in any way shape or form as determined by Bobcares’s sole discretion, sites that promote prostitution, or escort services.
3) Any website found to host child pornography, link to child pornography or exploitative content will be suspended immediately without notice or warning.

4) Adult materials – Includes all pornography, erotic images, or otherwise lewd or obscene content. The designation of “adult material” is left entirely to the discretion of Bobcares.

5) Illegal Material – This includes copyrighted works, commercial audio, video, or music files, and any material in violation of any regulation or material that is perceived to be misleading.

6) Warez – This includes, but is not limited to, pirated software, ROMS, emulators, phreaking, hacking, password cracking, IP spoofing and encrypting of any of the above. It also includes any sites which provide “links to” or “how to” information about such material.

7) Games – We strictly do not allow hosting any kind of games on our servers. Your hosting account would be immediately terminated if we found any gaming related stuff in your hosting account.

8) IRC Hosts – People who host an IRC server that is part of or linked to another IRC network or server, or who have a connection to an IRC network. Servers or virtual hosting accounts that are discovered to be connecting to or a part of these networks will be removed from our network immediately and without notice. The server will not be reconnected to the network until you agree to remove all traces of the irc server and grant us access to your server to confirm that the content has been completely removed.
Any server that commits a second violation will have their account terminated immediately.

Bobcares reserves the right to flag any additional writing or content as “prohibited” if it is determined to contain offensive language, incite hatred, or otherwise be unacceptable.

In accordance with the DMCA act, Bobcares has established procedures for parties who believe that a hosted site on our service violates their copyright. All copyright complaints should be sent to abuse@bobcares.com.

 

7. Abuse Of Resources.

Any attempt or actual hack of a network device owned by Bobcares or any other company, individual, or other entity is strictly prohibited. This offense also covers port scanning, IP range scanning, and vulnerability scanning. The service may be Immediately canceled after a full investigation of all infractions and/or suspected violations.

Any attempts to launch a denial of service (DOS) attack from our servers or to launch a DOS attack against Bobcares are strictly forbidden. All violations and/or suspected violations will be thoroughly investigated, and the service may be terminated immediately.

It is strictly prohibited to host any illegal software, source code, or other content that could be used to commit an illegal act. This includes hacking tools, viruses, Trojans, and software exploits, as well as instructions for making bombs and other similar devices. All violations and/or suspected violations will be thoroughly investigated, and the service may be terminated without further notice.

Hosting anything that infringes on any copyright, trademark, or service mark is strictly prohibited. This also entails the downloading, hosting, and distribution of pirated software, ringtones, music, and video files, as well as other “Warez” content. Any valid complaint will be investigated, and as a result, the service may be discontinued.

Deliberately causing emotional distress, hosting private information without their consent or defamatory material, or infringing on their trademarks, copyrights, or other intellectual property rights are all prohibited.

Any efforts to damage or undermine any of our servers are absolutely prohibited. We hold no responsibility for the use of our clients’ accounts. Any account that misuses resources without taking steps to stop the activity requires immediate deactivation without a refund. 

8. Bandwidth.

When a DigitalOcean service is used, bandwidth use is managed and charged in accordance with the DigitalOcean bandwidth usage policies detailed in the link
https://docs.digitalocean.com/products/billing/bandwidth/

 

9. Backup Policy.

The customer agrees that any sensitive and significant data shall be backed up. Bobcares cannot guarantee that any account will be backed up, and in the event of a loss, we will not be responsible for any data loss.

 

10. The Company as Reseller or Sub-licensor.

We may use third-party services, hardware, software, and equipment as a reseller or sub-licensor.

We are not responsible for any changes to the Services, including enhancements or adjustments that otherwise affect the output of the Services, that render any Resold Products obsolete.

It is not considered a breach of the Company’s obligations under this Agreement if any Resold services fail or have flaws, whether they were sold, sublicensed, or given to you by us. Any rights or claims you may have in relation to the possession, granting of licenses, use, or infringement of any resold product are restricted to those that the manufaturer has granted to you.

In relation to your use of the Services as permitted by this Agreement, you are only qualified to use any resold products that we offer.

A Resold Product may not be copied, altered, reverse-engineered, or used in any way other than in connection with the Services.

 

11. Account Security and Company Systems.

You are responsible for any misuse of your account, so you must take precautions to prevent others from gaining unauthorized access to your account. Furthermore, you may not use your account to compromise the security of another account or to attempt unauthorized access to another network or server.

Your account can be accessed using your password. You are in charge of keeping your password secure.It is not advised to give unauthorized users access to your account and password. Since you will be held accountable for any consequences, you should exercise caution and stop anyone else from using your account.

The service will be terminated if you make any attempt to obtain another user’s account password. You must adopt adequate security measures to prevent or minimize unauthorized use of your account.

You may not attempt to circumvent any host, network, or account’s user authentication or security. This includes, but is not limited to, accessing data that is not intended for you, logging into or using a server or account to which you are not expressly authorized, and probing the security of other networks. It is restricted to use or distribute tools designed to compromise security. Password guessing programmes, cracking tools, and network probing tools are some examples of these tools.

You may not try to disrupt any user, host, or network’s service (“denial of service attacks”).
This includes attempting to intentionally overload a service, “flood” a network, or “crash” a host, among other things.Users who violate network or system security could face criminal or civil penalties. Bobcares will fully assist with any investigations into alleged system or network security violations at other locations, including working with law enforcement officials to look into suspected criminal offenses.

Regardless of the installation method, it is your responsibility to ensure that all programmes and scripts installed under your hosting account are safe and that directory permissions are set appropriately.

Users are ultimately liable for all actions taken on their behalf. Credentials such as username and password have been compromised. You must create a strong password. If you use a weak password, your account may be suspended until you agree to use a stronger password. Audits may be performed to prevent the use of weak passwords. If your password is found to be weak during an audit, we will notify you and give you time to change or update your password before suspending your account.

The Services are only made available for authorized customer use, along with all associated networks, equipment, and network devices. We may monitor our systems but are not obliged to do so. This includes checking that use is authorized, facilitating protection against unauthorized access, and confirming security protocols, survivability, and operational security. Information may be scanned, examined, recorded, copied, and used for authorized purposes during monitoring.You give your consent to being monitored for these reasons by using the Services.

Any account that is found connecting to a network or system of a third party without that third party’s consent is subject to suspension. Access to networks or systems not under your direct control requires the third party’s express written consent. We reserve the right to request proof that your access to a third-party network or system has been authorized.

Accounts that are discovered to be compromised may be disabled and/or terminated. If you do not clean up your account after we notify you of an ongoing problem, we reserve the right to disable your account. We may clean up your account at your request for an additional fee.

 

12. Price Change.

Depending on the pricing of our vendors, the costs of our services may occasionally change.
We are a number of license providers’ approved partners. We will be compelled to raise our service prices to cover our costs if their pricing structure changes in any way.You must periodically review your billing information to prevent any unexpected charges.

 

13. Third-Party Beneficiaries.

Except as expressly stated elsewhere in this Agreement, nothing in this Agreement is intended or shall be construed to grant any rights to anyone other than the Parties hereto and their respective successors and approved assigns. Regardless of the foregoing, the customer acknowledges and accepts that every provider of a third-party good or service described in the contract definition as a third-party beneficiary is the designated third-party beneficiary of the requirements set forth in this Agreement because they apply exclusively to its goods or services, and has the right to explicitly implement the terms and conditions. Anyone other than the Parties hereto and their respective successors and approved assigns. Regardless of the foregoing, the customer acknowledges and accepts that every provider of a third-party good or service described in the contract definition as a third-party beneficiary is the designated third-party beneficiary of the requirements set forth in this Agreement because they apply exclusively to its goods or services, and has the right to explicitly implement the terms and conditions.

 

14. Third Party Agreements applicable.

When you purchase a third-party product or service from the Company, you agree to this Agreement as well as the terms and conditions of the third-party product or service included in this Agreement.

• DigitalOcean: https://www.digitalocean.com/legal/terms-of-service-agreement/
• AWS: https://aws.amazon.com/service-terms/
• WHMCS: https://www.whmcs.com/terms-of-service/
• Office 365: https://www.microsoft.com/en-us/legal/intellectualproperty/copyright/default
• G Suite: https://policies.google.com/terms?
• cPanel & WHM: https://cpanel.net/legal-notices/
• Plesk: https://www.plesk.com/legal/
• Softaculous: http://softaculous.com/softaculous/tos

 

15. Quality Verification System.

The Service Provider has instituted an internal quality verification system (“Quality Verification”) to rate and improve its performance of the Services. Quality Verification shall be used by Service Provider to evaluate the personnel and methods related to performance of the Services. Buyer may request in writing that certain items particular to the Services be included in the Quality Verification. Such request will be reviewed in good faith by the Service Provider, however, the decision to include the request in the Quality Verification shall be made in the sole discretion of the Service Provider. The results of such Quality Verification are intended for Service Provider’s internal purposes; such results may be provided to the Buyer only at Service Provider’s discretion and shall be Confidential Information.

 

16. Term and Termination.

16.1 For non-quarterly plans
A. This Agreement shall be effective from the Effective Date and shall continue for a term of twelve months, unless earlier terminated as set out in this Agreement (“Initial Term”). This Agreement will be automatically renewed for an additional twelve months on the last day of the Initial Term of the Agreement (“Renewal Term”) unless one party provides the other with written notice of its intent not to renew the Agreement no later than forty-five days prior to expiration of the Initial Term or any Renewal Term. The Initial Term and Renewal Term may be referred to in this Agreement as the “term.” Any termination of this Agreement or non-renewal shall not affect any accrued rights or liabilities of either Party and the Agreement shall remain in full force and effect until the termination date.
B. Notwithstanding anything to the contrary in this Agreement, if the Buyer revises the plan through a plan-change-agreement/addendum/revision-agreement, then the Buyer shall be obligated to perform as per the plan-change/revised/amended agreement for a minimum period of 12 months from the date of change/revision/amendment. The said period of 12 months shall be a lock-in period for the Buyer with the Service Provider, and the Buyer would be ineligible to terminate the agreement during this lock-in period.
16.2 For quarterly plans
A. This Agreement shall be effective from the Effective Date and shall continue for a term of Three months, unless earlier terminated as set out in this Agreement (“Initial Term”). This Agreement will be automatically renewed for an additional three months on the last day of the Initial Term of the Agreement (“Renewal Term”) unless one party provides the other with written notice of its intent not to renew the Agreement no later than thirty days prior to expiration of the Initial Term or any Renewal Term. The Initial Term and Renewal Term may be referred to in this Agreement as the “term.” Any termination of this Agreement or non-renewal shall not affect any accrued rights or liabilities of either Party and the Agreement shall remain in full force and effect until the termination date.
16.3 For Biennial Plans
This Agreement shall be effective from the Effective Date and shall continue for a term of Twenty Four months, unless earlier terminated as set out in this Agreement (“Initial Term”). This Agreement will be automatically renewed for an additional Twenty Four months on the last day of the Initial Term of the Agreement (“Renewal Term”) unless one party provides the other with written notice of its intent not to renew the Agreement no later than sixty (60) days prior to expiration of the Initial Term or any Renewal Term. The Initial Term and Renewal Term may be referred to in this Agreement as the “term.” Any termination of this Agreement or non-renewal shall not affect any accrued rights or liabilities of either Party and the Agreement shall remain in full force and effect until the termination date.
For All Plans
16.4. If a Party is in breach of this Agreement, the non-breaching Party shall provide written notice of the breach to the breaching Party requiring that the breach be cured within (a) five days, if a monetary breach or solicitation of employees by Buyer is involved or (b) ten days if any other material breach is involved. Such written notice requirement does not affect the right of Service Provider to suspend the Services for failure to pay as described herein. If the breach is not cured within the required time period, then the non-breaching Party will have the right to terminate this Agreement. Such remedy is not cumulative with any other rights or remedies available to the non-breaching Party and selection of one remedy is not a waiver of any other rights or remedies.
16.5. Notwithstanding anything to the contrary in this Agreement, the Service provider may terminate this Agreement at any time and for no cause on forty-five (45) days prior written notice. If Service Provider terminates under this subsection C, Service Provider will honor any discounts for pricing so long as such termination is not for cause or breach.

17. Service Provider Employees; Indemnification.

Service Provider and Service Provider’s employees shall not be considered under this Agreement or otherwise to be employees of Buyer or to be eligible for any benefits provided to Buyer’s employees. Service Provider shall be responsible to pay all applicable statutory benefits to its employees. Service Provider shall maintain sufficient insurance to protect itself from worker’s compensation and other disability claims by its employees, and from claims based on any property damage or bodily injury, sickness, or death of Service Provider’s employees or of any other person which arises out of any act or failure to act of Service Provider or Service Provider’s employees or agents. Service Provider shall indemnify and hold Buyer harmless to the extent of any obligation imposed by law on Buyer to pay withholding, social security, unemployment or disability insurance, worker’s compensation, or similar levies, taxes, or claims in connection with this Agreement on account of Service Provider’s agents or employees. Service Provider shall indemnify and hold Buyer harmless against all claims, losses, liabilities, damages, and expenses, including attorney’s fees, arising out of or resulting from any action brought against Buyer based on any property damage or bodily injury, sickness, or death of any of Service Provider’s employees or any other person which arises out of any act of or failure to act by Service Provider or Service Provider’s employees or agents. The terms of this Section 9 will survive termination of this Agreement.

 

18. Confidentiality.

Both Parties acknowledge that during the contract term they may obtain access to confidential information about the other Party’s business, including, but not limited to computer programs, inventions, drawings, notes, writings, experimental work, business strategies and/or corporate know-how (“Confidential Information”). The Parties agree to use reasonable care and adequate measures to protect the Confidential Information from disclosure. The Parties agree not to make known, or permit such Confidential Information to be made known, to any person or entity who has not agreed in writing with the other Party to protect such Confidential Information. In the event that a Party is required by law to disclose the Confidential Information, such Party’s compliance with such lawful legal process shall not constitute breach of this Agreement. The receiving Party retains the right to disclose the Confidential Information pursuant to the requirements of a governmental agency or operation of law. If legally permissible and to the extent possible, the receiving Party will give prior notice to the disclosing Party of such disclosure, so that disclosing Party, at disclosing Party’s discretion, may seek confidential or protected status for such Confidential Information. If notice to disclosing Party is not legally permissible, receiving Party shall use reasonable efforts to receive confidential or protected status for such Confidential Information. This clause shall survive the termination of this Agreement and continue for a period of two years. Upon termination of the Agreement, the Parties agree to return or destroy all Confidential Information received from the other Party. The Parties may supplement this confidentiality provision through a separate non-disclosure agreement.

 

19. Intellectual Property Rights.

Ownership: The term “Intellectual Property” includes, but is not limited to any and all ideas, processes, trademarks, service marks, copyrights, patents, trade secrets, know-how, original works of authorship, inventions, technology, computer hardware and software, designs, formulas and all rights and improvements related to the foregoing that are conceived, developed or reduced to practice by Service Provider. Service Provider agrees that Buyer is the owner of all right, title and interest in the Intellectual Property created for the specific and sole purpose of providing the Services for Buyer (the “Services Intellectual Property”). Buyer shall also have the right to the files, including input and output materials, and documentation related to the Services Intellectual Property, such as media upon which any such computer programs, files and documentations are stored (including tapes, disks and other storage media). Buyer agrees that all rights, title and interest in the Intellectual Property owned by Service Provider prior to and/or independent of its performance of the Services for Buyer remain with the Service Provider. This Agreement does not grant Buyer any right or interest in Service Provider’s pre-existing Intellectual Property, regardless of whether such property is related to the Services or incorporated into the Services Intellectual Property.

 

20. Service Provider’s Warranties; Indemnification.

Service Provider warrants that it has the qualifications and ability to perform the Services in a professional manner, without supervision by Buyer, and that neither it nor its employees, if any, is under any obligation inconsistent with the terms and conditions of this Agreement. Service Provider warrants that Service Provider owns all copyrights and trade secrets in and to the Services or possesses sufficient rights thereunder to execute and perform this Agreement, and to Service Provider’s best knowledge, without investigation, the Services do not infringe any copyright or patent owned by a third party. Buyer warrants and represents to Service Provider that it has the right to provide to Service Provider all information and data necessary for Service Provider to perform the Services during the term. Buyer specifically warrants and represents to Service Provider, that it is in compliance with all laws governing the information to be provided to Service Provider and that it has secured all necessary permissions and authorizations to provide personally identifiable information, credit card information and intellectual property to Service Provider. Buyer further represents and warrants that no export licenses are required for Service Provider to access, process or retain any information provided by Buyer or its customers; (ii) for contracts governed by the laws of the United States only, Buyer warrants and represents that any such information is not governed by the Health Insurance Portability and Accountability Act, the Sarbanes-Oxley Act or the Gramm-Leach-Bliley Financial Services Act, or any amendments thereto. Other than set out in the paragraph entitled “Service Provider Warranties” Service Provider makes no warranties, and any implied warranties are expressly disclaimed.
THE SERVICE(S) ARE PROVIDED AS-IS. BUYER’S USE OF THE SERVICE(S) IS AT ITS OWN RISK. SERVICE PROVIDER DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS, AND/OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON INFRINGEMENT, TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SERVICE PROVIDER DOES NOT WARRANT THAT THE SERVICE(S), WILL MEET ANY OR ALL OF BUYER’S EXPECTATIONS; WILL OPERATE IN ALL OF THE COMBINATIONS WHICH MAY BE SELECTED FOR USE BY BUYER; OR THAT THE OPERATION OF THE SERVICE(S) WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE. NO EMPLOYEE, OR AGENT IS AUTHORIZED TO MAKE ANY WARRANTY ON SERVICE PROVIDER’S BEHALF. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR (I) LOST PROFITS; (II) LOSS OF BUSINESS; (III) LOSS OF REVENUES (EXCEPT THAT CUSTOMER SHALL BE LIABLE FOR ANY SERVICE FEES OR OTHER AMOUNTS OWED TO SERVICE PROVIDER UNDER THIS AGREEMENT); (IV) LOSS OF DATA OR INTERRUPTION OR CORRUPTION OF DATA; (V) ANY CONSEQUENTIAL OR INDIRECT DAMAGES; OR (VI) ANY INCIDENTAL, SPECIAL, RELIANCE, EXEMPLARY OR PUNITIVE DAMAGES (IF APPLICABLE), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR ANY OTHER TYPE OF DAMAGES OTHER THAN DIRECT DAMAGES. IN NO EVENT WILL SERVICE PROVIDER BE LIABLE TO BUYER IN THE AGGREGATE WITH RESPECT TO ANY AND ALL BREACHES, DEFAULTS, OR CLAIM OF LIABILITY UNDER THIS AGREEMENT FOR AN AMOUNT GREATER THAN THE FEES ACTUALLY PAID BY BUYER TO SERVICE PROVIDER DURING THE THREE MONTH PERIOD PRECEDING A CLAIM GIVING RISE TO SUCH LIABILITY. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; BUYER AGREES THAT IN THOSE JURISDICTIONS SERVICE PROVIDER’S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.

 

21.Solicitation of Employees.

The Parties agree that it would be impracticable and extremely difficult to fix the amount of actual damages for a breach of this Section 21 and further agree that hundred-thousand dollars ($100,000 US) is a reasonable estimate of the damages either Party would incur as a result of a breach of this Section. In addition, the Parties agree that the loss of multiple employees through solicitation would have an increased impact and is sufficient support to award punitive damages against the breaching Party in addition to any liquidated damages or other remedies available. The Parties have the right to enforce this provision by (a) obtaining an injunction or any and all other provisional and non-monetary equitable relief provided under the law governing this Agreement; and (b) the pursuit of liquidated damages as described above. Such remedies shall be cumulative and selection of one remedy shall not be a waiver or bar against seeking any other remedy except in the case that the damaged Party elects to pursue liquidated damages, in which case such Party may only seek the recovery of the liquidated damages plus any punitive damages permitted under this Section 21. The terms of this Section 21 will survive termination of this Agreement for the periods set out above.
For the Service Provider to enforce this clause, the Service Provider is entitled to invoke the jurisdiction of local courts where the solicitation of their employees has happened. The Service Provider is also entitled to bifurcate the cause of action available against the Buyer and the Solicited Employees or the Entity through which indirect solicitation has occurred.
There shall be a presumption of indirect solicitation by the Buyer if the Buyer employs any company or establishment which recruits more than three employees of the Service Provider who were involved with the projects of the Buyer while in employment of the Service Provider. It shall be the obligation of the Buyer to rebut that presumption in litigation.

 

22. Limitation of Service Provider’s Liability; Indemnification.

Indemnity. Service Provider shall defend Buyer, at Service Provider’s expense, against any action brought against Buyer, which alleges that Buyer’s or its customer’s use of the Services infringes upon a copyright or patent, provided that (i) Service Provider is given prompt written notification of such claim; (ii) Service Provider’s position is not compromised by any delay in giving such notice; (iii) such notice grants Service Provider sole control over the defense and settlement of such action; (iv) Buyer provides all assistance in connection with such defense as Service Provider may reasonably request and (v) and any such claim is based on the Services as wholly owned or developed by Service Provider.
The liability of the service provider is limited to the cost paid by the buyer for the services only and the maximum liability of such sort is limited to the refund of the costs to the buyer. Buyer agrees to indemnify, defend and hold harmless Service Provider, its parent, subsidiary and affiliated companies, third party service providers and each of their respective officers, directors, employees, shareholders and agents (each an “indemnified party” and, collectively, “indemnified parties”) from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable attorney’s fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of or relating to
i. Buyer’s use of the Service;
ii. any violation by Buyer of any of Service Provider’s policies;
iii. any breach of any of Buyer’s representations, warranties or covenants contained in this Agreement;
iv. Services Provider’s use of any Services Intellectual Property; and/or
v. any acts or omissions by Buyer. The terms of this section shall survive any termination of this Agreement. For the purpose of this paragraph only, the term “Buyer” as set out in subparagraph’s (i) through (iii) and (v) include Buyer and its customers. Buyer acknowledges that its customers (“Third Party Customers”) may be the end-users of the Services and/or products resulting from the Services. Both Parties agree that this Agreement does not create any relationship, enforceable rights or obligations between the Service Provider and Third Party Customers. Buyer agrees to indemnify Service Provider for any claims, demands, losses, liabilities, damages and expenses, including attorney’s fees, based on Third Party Customers’ use of the Services and/or products resulting from the Services.

 

23. Assignment.

Both Parties have specifically contracted with each other and therefore this agreement shall not be assigned or transferred without the prior written consent of the other Party, which consent shall not be unreasonably withheld. However, this Agreement may be assigned by Seller should another entity acquire its assets or a controlling interest in it. This Agreement shall be binding upon and shall inure to the benefit of the Parties, their successors and permitted assigns.

 

24. Notices.

Notices shall be in writing and shall be given by personal delivery, by deposit in the mail, certified mail, return receipt requested, postage prepaid, by facsimile transmission or by express delivery service, freight prepaid, in each case by delivery to Buyer and Service Provider at the addresses set forth below or at such other address as a Party may designate in writing. The date notice is given and received shall be
i. the date on which the notice is delivered, if notice is given by personal delivery or by deposit with an express delivery service;
ii. three days after the date of deposit in the mail if the notice is sent through government mail service, or an internationally recognized overnight express carrier mail; or
iii. the date of transmission if sent by facsimile (with confirmed delivery) before 5:00 p.m. Arizona time on a business day (or on the next business day if sent after 5:00 p.m. or on a non business day).
Invoices for the Services may be delivered to Buyer by email at the address(es) listed below and shall be deemed to be delivered one (1) business day following submission of such email for delivery to the address(es) listed below. Buyer agrees that Service Provider may reasonably rely upon the email address(es) listed below for the delivery of invoices and that it is Buyer’s obligation to keep such address(es) current by providing Service Provider written notice of any changes. Any obligation of Buyer set out herein shall not be excused by its failure to receive notice due to Buyer’s failure to inform Service Provider in writing of a change to that address.

 

25. Governing Law; Venue and Jurisdiction; Severability.

In the event that there is a dispute arising out of or in connection with this Agreement, the parties will attempt in good faith to promptly resolve any such controversy or claim through negotiations between executives of the parties, before resorting to other remedies available to them. Notwithstanding the foregoing, either party may pursue any legal or equitable remedies available to it in any court of competent jurisdiction if the dispute involves threatened or actual breach of their intellectual property rights, or those related to non solicitation or confidentiality. This Agreement shall be governed by Arizona law without regard to its conflicts of laws provision. Venue for any suit under this agreement shall be the Superior Court of Maricopa County, Arizona, if brought in state court, or the Federal District Court for the District of Arizona, if brought in federal court. Each Party to this Agreement agrees that such courts will have jurisdiction over the Parties, and waives their right to a trial by jury. Any order of such courts will bind the Parties to this Agreement and their successors and assigns, and neither shall contest notice from such a court. If any provision of this agreement is found by a Court of competent jurisdiction to be unenforceable, the remainder of the Agreement shall continue in full force and effect.

 

26. Disclosure to Law Enforcement.

The use of our service for illegal purposes is absolutely prohibited and the customer agrees that Bobcares may, without further authorization or notification to the customer, disclose any and all customer information, including assigned IP numbers, account history, account use, etc. to any law enforcement official who makes a written request. The right to immediately terminate any hosting service that is found to be hosting content and engaging in illegal activity is reserved by Bobcares.

 

27. Force Majeure.

If the performance of any part of this Agreement by either Party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of either Party, that Party shall be excused from such to the extent that it is prevented, hindered or delayed by such causes. If such delay or failure continues for at least seven days, the Party not affected by such delay or failure shall be entitled to terminate this Agreement by notice in writing to the other. This clause shall not apply to the timely payment by Buyer to Service Provider of any monetary amounts due under this Agreement.

 

28. Waiver.

No waiver of any provision of this Agreement or of any right or remedy provided by this Agreement will be effective unless in writing and signed by the Party against whom such waiver is sought to be enforced. No delay in exercising, no course of dealing with respect to, or no partial exercise of any right or remedy provided by this Agreement will constitute a waiver of any other right or remedy, or future exercise thereof.

 

29. Attorney’s Fees.

If either Party brings an action to enforce the terms of this Agreement or declare rights under this Agreement, the prevailing Party in the final adjudication of any such action, on trial or appeal, shall be entitled to its costs and expenses of suit, including, without limitation, its actual attorney’s fees, to be paid by the losing Party as fixed by the court.

 

30. Notice to California Customers.

Buyer is advised that, as may be applicable to it under California Civil Code Section 1789.3, to initiate a complaint about the Services, Buyer may contact Service Provider at the address set out in this Agreement. If Buyer is dissatisfied with the manner in which Service Provider responds to a complaint regarding the Services, Buyer may contact Service Provider at the address set out in this Agreement, and the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs in writing at 1020 N. Street, #501, Sacramento, CA 95814, or by telephone at 1-916-445-1254.

 

31. Personal Data and GDPR compliance.

In compliance with the European Framework for handling Personal Data that comes into force from May 25th 2018, the Service Provider ascertains that all Personal Data collected by us, is stored in secure internal infrastructure located in Kerala, India and for Phone Customers in Arizona, USA.

The contact information that the Service Provider needs to collect for meeting the business requirements are:

• Name, Address, Location and email-id : For legal requirements like signing SLA and NDA.
• Professional designation, Phone number, Chat-id, email-id : For communicating with the Buyer or Buyer’s representatives, while doing the business. Such communication include day-to-day communication on tasks being handled by the Service Provider, periodic feedback collection, occasional marketing emails etc.
• Payment details : For billing requirements.

The Service Provider recommends using official contact information for establishing the business relationship. Using personal contact information for this purpose is solely at the discretion of the Buyer. By submitting your Personal Data, the Buyer agrees to accept this arrangement. The Service Provider will take all reasonable and necessary steps in storing the Buyer’s Personal Data complying with the Terms of the GDPR. The Service provider being a ISO 27001: 2013 information security compliant company since 2008, already has the necessary systems in place for the same.
The Service Provider may have access to the personal information of Buyer’s clients if it is stored in Buyer’s system. Further, the Service Provider may have to store the accessed data as part of service delivery as well as meeting statutory, legal or business requirements of the Service Provider.
The Service Provider certifies that all the activities done by the Service Provider’s employees with access to this information are logged in our servers for quality verification and to comply with the ISO 27001:2013 requirements. This includes, but is not limited to, server terminal activities, chat transcripts, email communication, notifications from support helpdesk, alerts, emails to end customers send via support helpdesk and any other activity which can be classified as work record, for the work done for the Buyer. The work records will be retained in the Service Provider’s internal servers for a period of ten years with access restricted to selected employees, to meet the Service Provider’s business requirements.
In the event there are more than one point of contact or representatives from the Buyer, the Service Provider may add them as contacts in the Service Provider’s portal. The Buyer can login to the portal and change the information stored, or can contact the Service Provider to make necessary changes. By submitting the contact details for another person, the Service Provider assumes that the Buyer has obtained the consent of the person.
If the Buyer would like the Service Provider to delete the personal Information of the Buyer or their clients from the internal records, the Buyer may send an email to customercare@bobcares.com which will be responded to within a reasonable time. The Service Provider may be required to retain certain information as per local government requirements and/or for own legitimate business purposes. To protect your privacy, we will require you to prove your identity before granting access to, or agreeing to update, correct or delete your Personal Information and we will only implement requests with respect to Personal Information about you (not anyone else). The service provider maintains backup archives with a retention policy designed for each system, based on the business requirement. The Service Provider will have the Buyer’s data in backups for the retention period designed for the system, after it has been removed from the production systems. This data will never be restored back to production systems and the access to the backup is restricted.
For more details on our GDPR compliance, please visit the following link https://bobcares.com/gdpr/
Upon your request, Bobcares will sign and execute a DPA (Data Protection Agreement) to document our adherence to GDPR regulations.

Service Provider as Processor

The Buyer should inform the Service Provider if any additional procedures need to be implemented, for the Buyer to ensure GDPR compliance subject to reasonable requirements (ref. GDPR Article 28), without which the Service Provider will follow their own policies.
By accepting this Terms of service, you confirm that you are above 16 years of age and are eligible to enter into this TOS.
Note:Poornam Inc is the service provider and “buyer” is the buyer of services of Bobcares.com. Service Provider and Buyer are collectively referred to as the “Parties” and singularly as a “Party.”