TERMS OF SERVICE FOR CUSTOMER AGREEMENT

FOR DIALOG CLOUD AND SERVICES

PLEASE READ THESE GENERAL TERMS OF SERVICE CAREFULLY

By placing your signature in the Customer Agreement for Dialog Cloud and Services (“Agreement”), You agree to be bound by these Terms of Service provisioned by Dialog Broadband Networks (Private) Limited hereinafter referred to as “DIALOG”). You agree that DIALOG shall not be responsible or liable for any breaches of third-party agreements by any actions or operations done by You. These Terms of Service includes, and incorporates by this reference, the policies and guidelines referenced below. DIALOG reserves the right to change or revise these Terms of Service at any time by posting any changes or a revised Terms of Service on this Website/link without prior notice to You. The changed or revised Terms of Service will be effective immediately after it is posted on this Website/link. DIALOG encourages You to review these Terms of Service whenever You visit the Website/link to make sure that you understand the Terms of Service governing the Agreement. These Terms of Service do not alter in any way the terms or conditions of any other written agreement You may have with DIALOG for any other service/program. If You do not agree to these Terms of Service (including any referenced policies or guidelines), please immediately terminate Your provisioning of the services.

For the purpose of clarity; “You/Your/Customer” shall collectively mean the Customer.

1. DEFINITION

“Agreement” shall mean the Agreement between DIALOG and the Customer comprising of the Customer Agreement for Dialog Cloud and Services, this Terms of Service, Schedules, Annexures and any other documents expressly incorporated into this Agreement;

“Confidential Information” shall include all information relating to Parties including but not limited to information, knowledge or data of an intellectual, technical, scientific, financial, cost, pricing, commercial or marketing nature which is not in the public domain and in which Parties have businesses, proprietary or ownership interest or have a legal duty to protect, whether or not received from a third party in whatever form including but not limited to technical data/know- how, drawings, photographs, specifications, standards, manuals, reports, formulae, algorithms, processes, information lists, trade secrets, computer programs, computer software, computer data bases,computer development, processes, engineering techniques, strategies, customers data/information (including any personal information and/or other non-public personal information about such customers and any list, description or other grouping of customers that is derived using any such personal information or non-public information), internal procedures, employees, business opportunity which are of confidential nature and which may be furnished by either Party during the period of this Agreement;

“Customer” shall mean the entity or corporate detailed in the Customer Agreement for Dialog Cloud and Services and shall include its subsidiaries, affiliates, successors and assigns;

“DIALOG” shall mean and include Dialog Broadband Networks (Pvt) Limited, its subsidiaries, affiliates, successors, and permitted assigns;

“Dialog Cloud” shall mean the Cloud Brand of DIALOG

“Effective Date” Shall mean the commencement date of the Agreement referred to in the Customer Agreement for DIALOG Cloud and Services;

“Term” shall mean the duration referred to in the Customer Agreement for DIALOG Cloud and Services for the provision of Services by DIALOG to the Customer;

“Party” DIALOG and the Customer individually;

“Parties” DIALOG and the Customer collectively;

“Services” shall mean the services provided to the Customer from the Effective Date by DIALOG as set out in Schedule 1 of the Customer Agreement for DIALOG Cloud and Services.

2. SCOPE

2.1. You agree that DIALOG shall provide the Services as per the Customer Agreement for DIALOG Cloud and Services subject to the Terms of Service hereinafter set out. Any addition and/or any reduction of any existing Service may be done upon a new Provisioning Form duly completed and approved by the Authorized Personnel listed in Schedule 2 of the Customer Agreement for DIALOG Cloud and Services and such added/deducted Services shall be automatically included herein and shall be subject to the Terms of Service herein.

2.2. As and when any upgrades/degrades to the initial Services are affected via a website/link/portal by You subject to these Terms of Service, DIALOG shall be entitled to check/audit the log history/records pertaining to same. The pricing shall vary based on the upgrades/downgrades performed by You or Your authorized representative including its system administrator.

2.3. You hereby agree and acknowledge that DIALOG shall not be liable for any Customer backups subject to the Terms of Service of this Agreement.

3. TERM

This Agreement shall come into force from the Effective Date and shall be valid for the Term. Upon expiration of the period, the Agreement shall be automatically renewed for successive period of one (1) year until termination as per Clause 9 herein.

4. CHARGES

4.1. You shall be charged during the Term as per Schedule 1 of the Customer Agreement for DIALOG Cloud and Services.

4.2. Invoices shall be raised at the end of each month for the Services provided during that month and You shall settle all the invoices within thirty (30) days from the date of the invoice.

4.3. You shall have the discretion to select the currency of billing of invoices, either LKR or USD. You agree that the USD conversion shall be based on the average rates from three commercials bank in Sri Lanka at the date of the invoice. If You are a Customer with Your registered office in a jurisdiction other than Sri Lanka, You may settle the payments to the below mentioned Account:

Account Name	Dialog Broadband Networks (Pvt) Limited
Bank	Hong Kong & Shanghai Banking Corporation
Account No	001-139666-002
Branch Add	24, Sir Baron Jayatilleke Mawatha, Colombo 01
City	Colombo
Bank Code	7092
Branch Code	001
Swift Code	HSBCLKLX

4.4. In the event You have failed to settle an invoice within the stipulated time period, You agree that DIALOG shall be entitled to charge interest at the rate of two per cent (02%) per month of the outstanding amount due and suspend provision of Services until such invoice is settled.

4.5. You agree that Dialog shall amend the charges to the Services from time to time with prior notice to the Customer. Such amendment may apply to the initial products and Services and / or to the subsequent products and Services of additional services

4.6. You shall not in any instance utilize DIALOG resources to establish/facilitate production setups in environments solely dedicated for disaster-recovery-as-a-service (“DRaaS”) destination sites. In the event You do so, You shall be held liable for the Term and will be charged separately for usage on cloud resource usage and any additional resource usage shall be billed accordingly.

4.7. TAXES

a. Where appropriate and legally required, all taxes applicable under this Agreement and/or on the payments made hereunder shall be borne or paid by the Party charged with the tax unless otherwise specifically agreed hereunto.
b. Prices set out in Annexure 2 are exclusive of taxes and levies and any such taxes and levies charged by Dialog as prevalent at the time shall be payable by You. You agree to submit a valid proof of VAT registration with the Department of Inland Revenue for the purpose of obtaining a “tax invoice”.
c. In the event of any amendment to existing law or introduction of any new tax during the Term of this Agreement, the Parties hereto shall follow the provisions of such new or amending legislation from its effective date of application.
d. Where any payment made under this Agreement is subject to withholding tax (“WHT”), such Party shall make the necessary payments under this Agreement after deducting WHT and shall furnish necessary certificates to the other Party as proof of deduction, subject to submission of a direction by the Party receiving payment to the other. In the event, the WHT credits are denied by the Department of Inland Revenue on account of error, omission, mistake, misstatement and, or lapse compliance with the prevailing law on the part of the Customer, DIALOG retains the right to reclaim from You such amounts deducted as withholding tax.
e. Each Party shall be responsible for obtaining necessary registration, directions and to fulfil their respective tax obligations including the filing and reporting obligations where appropriate and applicable. Neither Party shall suffer any additional tax, duty, levy, penalty on account of the failure or omission of the other Party to obtain such registration, waiver, direction or abide by obligations herein and each of the Parties hereby agree to hold the other indemnified and harmless against any such claims or penalties.

5. OBLIGATIONS OF THE CUSTOMER

You shall;

5.1. maintain a periodic backup of Your data/information/content and shall be responsible for any loss or corruption to/of data/information/content due to Your own mishandling;

5.2. be responsible for the security of all Your data and applications/programs. You shall take all necessary measures to safeguard its data/ information/content stored within and that are transacted to and from the cloud environment using means of (but not limited to) encrypting, password protecting and authenticating;

5.3. be solely responsible for Your data, applications and other aspects of Your network.

5.4. shall install, update, and maintain all required software (unless exclusively provided by DIALOG) within the cloud environment; including but not limited to; ensuring proper functioning of systems, maintaining required level of protection, ensuring availability of services and to receive optimum performance. You shall ensure all licensing fees are paid to the relevant entities to comply with regulations and terms of use. DIALOG shall not maintain any software or application on behalf of You unless exclusively requested and agreed through a separate maintenance agreement;

5.5. immediately inform DIALOG of any unauthorized use of its Account by any third party;

5.6. not share Your credentials, subject to this Agreement, with any other party, except for auditing or investigation requirements as required by You or DIALOG;

5.7. comply with all licenses/Subscription terms, and terms of use for the software, content, website, or technology made available to You by DIALOG or any partner company or third party. In case of any non-compliance, You shall be liable to indemnify DIALOG in an amount to be stipulated by DIALOG upon DIALOG notifying to You of same and upon Parties mutually agreeing on the same;

5.8. comply with all the rules and regulations of Sri Lanka including but not limited to laws relating to data privacy and copyrights, data/information retention, use of personal information of his clients’ data/information transfer and communication protocols;

5.9. in the event of incurring of any expense by DIALOG (including but not limited to legal costs, government enforced taxes/fees and third-party solution agreement fees) due to the breach by the Customer of any term herein, the Customer shall reimburse such sum to DIALOG based on mutual agreement between the Parties hereto upon notification of same by DIALOG prior to making such payment to the aforementioned parties.

5.10. not use the Dialog Cloud Platform to generate any spam and virus targeting any third parties or DIALOG Infrastructure and its core network;

5.11. be responsible for third party content made available to You under separate Agreements entered into with third parties and You shall be responsible for using such content of third parties;

5.12. keep DIALOG free, harmless and indemnified for any outages or unavailability or any type of services that You provides to/for Your own customers/clients or to a third party, where the cause of such failure is not related to the infrastructure DIALOG has provided under the Services subject to this Agreement;

5.13. where DIALOG providesthe basic IDS/IPS protection based upon Your requests, be responsible for any volumetric IDS/IPS attacks generated from servers. You shall keep DIALOG free, harmless, and indemnified in the event of any volumetric IDS/IPS attacks generated from servers;

5.14. comply with information security clauses, network access clauses, anti-bribery and anti-corruption clauses, data protection and privacy clauses located at https://www.dialog.lk/legal or at such other location as DIALOG may determine from time-to-time.

5.15. agree and acknowledge that DIALOG shall immediately suspend Your account and cancel same without any refund to You in any event You have;

a) misused the Service, system and resources beyond the scope set out in this Agreement; including but not limited to; employing programs that consume excessive network capacity, Central Processing Unit (CPU) cycles or disk Input/output;
b) sent/received spam and unsolicited bulk email;
c) accessed or attempted to access other computers and/or networks that You are not authorized to;
d) provided false data/information/content on any application/program;
e) mislead DIALOG or its partner companies with incorrect or false information; including but not limited to; obtaining DIALOG services, defying government regulations, avoiding taxes and fees.

6. OBLIGATIONS OF DIALOG

DIALOG shall;

6.1. provide an account/IP detail to You to access the Services;

6.2. assure the maximum availability of Dialog cloud infrastructure.

6.3. provide internet connectivity for Dialog Cloud Services. For any customized solution, DIALOG shall provide the Your preferred network connectivity;

6.4. provide the standard intrusion detection and prevention solutions for You;

6.5. where scheduled maintenance of any Service (which involves service down time) is to be carried out by DIALOG, You shall be notified of same at least forty-eight (48) hours in advance, except in case of emergency where such notification shall be given as reasonably possible;

6.6. not access Your data/information/content stored, transferred, or used within the Services provided by DIALOG to You;

6.7. not share/disclose any of Your data/information/content with any third party unless with Your consent or are required by the prevailing law or have previously informed to You. For avoidance of doubt, the Services are designed to restrict DIALOG having no access to Your data/information/content;

6.8. upon receipt of Your notice of disconnection of the Services, DIALOG shall provide You with a thirty (30) day grace period from the date of such notice of disconnection to remove Your data/information/content stored from the DIALOG Cloud Servers. You agree and acknowledge that DIALOG shall not be liable to hold any of Your data/information/content stored after the expiry of the thirty (30) days grace period;

6.9. offer 99.95% availability for Dialog Enterprise Cloud:

6.10. ensure the provision of support services to You which as reasonable possible.

7. EXCLUSIONS OF LIABILITY

You agree and acknowledge that;

7.1. DIALOG shall not be liable to You or any other party claiming through You or on its behalf for any loss or damage that has been caused by the Services, incidents or consequences arising due to the same subject to the scope of this Agreement managed by You, including but not limited to operating systems, data bases, security systems, network systems and applications;

7.2. in no event shall either Party be liable to the other hereunder for any loss of revenue, business, or profits; or for any incidental, indirect, special, exemplary, or consequential damages;

7.3. DIALOG shall not be liable to provide services to any of Your customer/s or to any other third party;

7.4. DIALOG shall not be liable for interruption of services including but not limited to any enforcement by the Government or authority, misuse or unlawful use of services provided by DIALOG.

8. SUSPENSION AND TERMINATION

A. Suspension

You agree and acknowledge that;

8.1. DIALOG shall be entitled to suspend the provision of Services;

a) in the event of a breach of any of the terms and conditions of the Agreement by You;
b) in case of an attack on Your Hosted system or in the event Your Hosted system is accessed or manipulated by a third party without DIALOG’s consent;
c) if DIALOG reasonably believes that the suspension of Services is necessary to protect the DIALOG network or the customers of DIALOG;
d) if You has failed to settle invoices subject to the terms and conditions of this Agreement;
e) in the event DIALOG’s operation affecting fulfillment of its obligations herein is required to be discontinued due to government regulations or operation of any law/regulation;
f) in the event of occurrence of any circumstance beyond its control rendering continued provision of Services impossible or impracticable;
g) in the event You use the Services for any purpose which is unlawful, illegal or is prohibited by any authority.

8.2. In the event of any suspension under Clause 8.1 above, DIALOG shall provide You with advance notice of at least twelve (12) business hours of such suspension unless DIALOG determines in its reasonable commercial judgment that a suspension on shorter or contemporaneous notice is necessary to protect DIALOG or its other customers from imminent and significant operational, legal, or security risk. If Your hosted system is compromised, then You are required to address the vulnerability prior to DIALOG placing the hosted system back in service or, at the request of the Customer, DIALOG may be able to perform this work for the Customer at DIALOG’s standard hourly rates as a supplementary service.

B. Termination

8.3. Either Party may terminate this Agreement with immediate effect if the other Party breaches any of the terms and conditions herein contained and not cured within thirty (30) days of notice of the said breach by the nondefaulting Party to the defaulting Party (unless otherwise provided for herein), unless such time allowed for curing of the breach is further extended by mutual agreement.

8.4. Either Party may terminate this Agreement with one (01) month’s prior written notice.

8.5. This Agreement shall be automatically terminated if either Party ceases to operate for any reason.

8.6. DIALOG shall be entitled to terminate this Agreement with immediate effect in the event DIALOG’s operations relating to provision of Services hereunder is required to be discontinued due to Government regulations or operation of any law/regulation.

8.7. DIALOG may terminate this Agreement in the event of occurrence of any circumstance beyond its control rendering continued provision of Services impossible or impracticable.

8.8. On expiry or termination of this Agreement, where DIALOG has incurred specific cost to provide Services to You and DIALOG terminates this Agreement under clause 8.3 due to a fault of the Customer or if You terminates this Agreement under 8.4 herein or DIALOG terminates this Agreement under clauses 8.5 and 8.6 herein, You are liable to immediately pay early termination charges referred to in Schedule 4 hereto for the unexpired period of the Term or for subsequent specific costs, any other commitment period mutually agreed by the Parties as relevant from time to time.

8.9. Termination of this Agreement shall not prejudice any rights and liabilities of the Parties already accrued at the date of termination.

8.10. Exercise of any right of either Party hereunder shall not prejudice its right to terminate this Agreement or to exercise any other right thereunder.

9. NOTICE

9.1. All notices, consents, waivers, or other communications given hereunder shall be in writing and delivered by courier or registered post or via email and shall be deemed received as per the times set out in this Clause below. All notices shall be directed to the addresses set out in the Provisioning Sheet hereto with a copy to such other person as either Party may from time to time nominate.

9.2. Either Party may vary the addresses referred herein in this Clause giving seven (07) days prior notice in writing in the manner aforesaid to the other Party. All notices or communications under or in connection with this Agreement shall be in English.

9.3. Notices sent by courier or registered post shall be deemed to have been received on the third (03rd) day from posting. Notices given by facsimile shall be deemed to have been received when transmitted provided that the sender shall have received a transmission report indicating that all pages of the notice has been transmitted successfully with the correct facsimile number, provided that if the transmission of such facsimile does not occur within business hours of a working day of the receiving Party, then the notice shall be deemed received on the following working day.

10. GENERALS

10.1. In the event any damage/loss is occasioned to DIALOG due to an act, omission, negligence, willful act or any other fault of You, Your representatives, employees, agents, visitors, licensees, contractors, or anyone authorized by You, You shall indemnify DIALOG against such damage/loss.

10.2. You agree and acknowledge that the commercial software, the network infrastructure, and the Cloud Server IPs licensed under DIALOG shall be the sole and exclusive property of DIALOG and You shall own Your software applications/platforms/home grown software and domain names.

10.3. You agree to keep any and all information related to this Agreement as Confidential Information and shall refrain from disclosing any Confidential Information during the Term of this Agreement and five (05) years of termination and/or expiry of this Agreement, whichever occurs earlier.

10.4. You shall not assign; in whole or in part; this Agreement without the prior written consent of DIALOG.

10.5. No delay, neglect, or forbearance on the part of either Party in enforcing against the other Party any term or condition of this Agreement and no grant of any extension of time by either Party (whether with or without consideration thereof) shall be deemed to be a waiver of or in any way prejudice any right of either Party under this Agreement against the other Party. No waiver of any term or condition hereof by either Party shall be deemed to be a subsequent waiver of such term/condition or a waiver of any other term or condition.

10.6. Neither Party shall be deemed to be in default of any provisions hereof for any delay, failure in performance or interruption of services resulting directly or indirectly from an act of God or military authority, acts of public enemy, civil disturbance, acts of war – whether declared or not, accident, act of Government or imposition of a rule/regulation by the Government, fire, explosion, earthquake, flood, shortage of materials or supplies, failure of any transportation or communication system, non-performance of any Customers of the Parties or any third party providers (including, without limitation, the failure or performance of common carriers, interchange carriers, local exchange carriers, internet service providers, suppliers, subcontractors) or any other event beyond the reasonable control of any party (hereinafter referred to as “Force Majeure Events”), provided the Party facing such Force Majeure Event shall within Twenty Four (24) hours issue a notice in writing to the other Party (a “Force Majeure Notice”) detailing the occurrence of such Force Majeure Event and its anticipated effect upon the performance of the Agreement. As appropriate the Force Majeure Notice shall also state any extension of time that is required by such Party and the details of any alternative method sought by such party to fulfill its contractual obligations under the Agreement and additional cost, if any, involved in such alternate method. The Party receiving the Force Majeure Notice at its sole discretion, may agree with such extension of time, alternate method or agree to additional cost sought by the Party sending such notice. If such agreement is reached by the Parties, it will amount to a modification or amendment to the Agreement. If the Force Majeure Event shall prevail for more than three (03) months, the Party receiving such Force Majeure Notice may immediately after the said three (03) months’ period, terminate this Agreement by giving the other Party notice in writing, notwithstanding any agreement reached by the Parties. Neither Party shall be liable to pay the other any damages upon such termination.

10.7. In the event any provision of this Agreement including those relating to any limitations of liability or limitation on warranties is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect.

10.8. This Agreement constitutes the complete agreement between the Parties hereto and supersedes all prior or contemporaneous agreements or understandings or representations written or oral concerning the subject matter of this Agreement. This Agreement may not be amended except in writing signed by duly authorized representatives of each Party. No other act, document, usage, or custom shall be deemed to amend or modify this Agreement. All headings herein are for the ease of reference only and shall in no way affect the interpretation of any provision herein.

10.9. The Parties shall comply with, and this Agreement shall be governed and construed in accordance with the laws of Sri Lanka. If any dispute or deference whatsoever arises between the Parties concerning matters relating to this Agreement or any provision thereof, the Parties herein shall use their best endeavors to resolve the dispute or deference amicably. Failing amicable resolution of such dispute or deference by the Parties hereto the dispute or deference shall then be finally resolved by a competent Court of Sri Lanka.

10.10. The Parties hereto represent and warrant to each other that their authorized signatories are entitled to sign on their behalf and the rights and obligations of each of the Parties hereto shall be legally valid and binding and enforceable on them.

10.11. You agree that DIALOG shall be entitled to audit the controls, security measures and/or safeguards applied by You with regards to the Confidential Information disclosed to it by DIALOG.