We Cater to your contentment…
The following agreement is by and between Ekhwan, the company and the respective customer (now known as CUSTOMER) acquiring web hosting and related services from the former.
Ekhwan (“The Company”) agrees to furnish services to the Customer, subject to the following TOS (Terms of Service).
Use of Ekhwan’s Service constitutes acceptance and agreement to Ekhwan ‘s AUP as well as Ekhwan ‘s TOS (Terms of Service).
All provisions of this contract are subject to the TOS (Terms of Service) of Ekhwan and AUP (Acceptable Use Policy). The AUP may be changed from time to time at the discretion of the Company. Customer understands that change to the AUP by the Company shall not be grounds for early contract termination or non-payment.
1. Performance: Ekhwan agrees to provide and customer agrees to purchase the services requested by customer from its authorized agent, in email or in writing.
Customer may add services via any of the 3 methods and agrees to pay in advance for them whether they be one time charges or recurring monthly or yearly fees.
2. Changes: No changes to this agreement shall be binding except those in writing counter- executed by both parties. Deviations in pricing shall be agreed to in writing. Email confirmed by both parties shall suffice.
3. Invoices, Payment: Ekhwan will invoice Customer for Fees and Expenses periodically; provided, however, that Ekhwan may invoice Customer for Fees and Expenses associated with Service(s) provided pursuant to a customer request immediately upon Ekhwan’s provision of such Service(s). Customer acknowledges that Ekhwan will invoice certain Service(s) (including without limitation telecommunications services) in advance of the provision of such Service(s).
Payment shall be due immediately upon the invoice date for recurring services whether or not the customer has received an invoice or not. Invoices, which remain unpaid fifteen (15) days after receipt of it by Customer will receive a notice and may result in service being terminated for non-payment after 7 days at Ekhwan option. Expenses shall be included on an invoice only to the extent that Ekhwan knows the actual amount of expenses at the time the invoice is issued, and expenses for which an actual amount is not known to Ekhwan at the time an invoice is issued may be included on subsequent invoices. Unless otherwise agreed in writing by the Parties, the failure of Ekhwan to include earned or incurred Fees or Expenses on a given invoice shall not relieve Customer of its obligation to pay such Fees or Expenses. Customer’s obligation to pay Fees or Expenses shall survive the termination of this Agreement for any reason whatsoever.
4. Security Interest: Customer grants Ekhwan a blanket security interest in the customer’s contract with their customers who are renting hosting services from them with Ekhwan in the event of non-payment by customer – customer agrees that Ekhwan may take these customer contracts direct without a tortuous interference claim to protect the credit balance owed to Ekhwan by customer and full ownership of the contracts shall transfer as well if balance is more than 60 days old.
5. Term: The term of this Agreement shall begin upon the date the service is installed and made available to customer and shall be for 1 year and shall renew for successive 1 year terms until terminated by either Party upon the sooner of (i) thirty (30) days prior written notice to the other Party, or (ii) the expiration or termination of all Service(s) set forth in the Statement of Work and all Work Order(s).
6. Termination Due to Breach: In the event that Customer commits a material breach of any of its obligations hereunder, Ekhwan may terminate this Agreement or (at Ekhwan sole option) suspend, interrupt or terminate one or more Service(s) to which such breach pertains by sending written notice of termination to Customer with termination effective as of the date such notice is given.
7. Effects of Termination: Unless the Parties agree otherwise in writing, termination of the Agreement shall also serve to terminate all Service(s) and Statements of Work and to cancel all Work Orders, and Customer shall pay Ekhwan all Fees and Expenses earned or incurred by Ekhwan pursuant to such Service(s), Statements of Work and Work Orders through the date of termination, less any payments made hereunder by Customer prior to said termination. Additionally, all property of each Party, which is in possession of the other Party, shall be returned to its owner. In the event one or more Service(s) is terminated prior to the expiration of the Term for such Service(s) (other than due to a material breach of this Agreement by Ekhwan).
8. Warranties of Ekhwan (99.999% connectivity and 100% network uptime): Ekhwan warrants that the Service(s) shall be provided in a workmanlike and professional manner. Upon Ekhwan’s breach of the foregoing warranty, Customer’s sole and exclusive remedy shall be to require Ekhwan to exercise commercially reasonable efforts to repair or replace the nonconforming Service(s); provided, however, that, with respect to any Service(s) which are interrupted or rendered inoperable due solely to Ekhwan’s breach of the foregoing warranty for any time period, Customer shall also be entitled to a pro-rata refund of any Fees attributable to the interrupted or inoperable Service(s) in an amount determined by multiplying the fixed monthly, recurring Fees (if any) for the interrupted or inoperable Service(s) by the ratio that the number of consecutive hours of inoperability bears to 720 hours (for the purpose of this computation, each month is deemed to have 720 hours). Ekhwan will not be liable to any extent whatsoever for interruption, restriction, inoperability or malfunction of any Service(s) that is not caused solely by a breach of the warranty set forth in this Section 8. Ekhwan expressly reserves the right to suspend, interfere with, impair or terminate Service(s) as necessary for purposes of maintenance, upgrades or repair (either by Ekhwan or by any supplier, partner or independent contractor of Ekhwan.) or in the event of any circumstance which Ekhwan, in its sole discretion, deems necessary or desirable to prevent or remedy an impairment of, or harm to, the integrity or functionality of any Service(s) or any plant, services or facilities of any Indemnities (as defined in Section 11) or of any third party, and neither the exercise nor the non-exercise of the foregoing rights or discretion shall constitute a breach of any provision of this Agreement.
EXCEPT AS SET FORTH IN SECTION 8, Ekhwan MAKES NO WARRANTIES, EXPRESS OR IMPLIED, CONTRACTUAL OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES OF UNINTERRUPTED OR ERROR-FREE OPERATION AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SERVICE(S) OR ANY ASPECT THEREOF, AND ALL WARRANTIES WITH RESPECT THERETO ARE HEREBY EXPRESSLY DISCLAIMED.
Customer expressly acknowledges and agrees that proper provision of the Service(s) is dependent upon the provision to Ekhwan by Customer of timely and accurate information regarding (i) Customer’s needs and expectations regarding the Service(s), and (ii) all operational, technological or other data which Customer knows or should know is relevant to the provision of the Service(s) (collectively “Information”). Customer shall provide the Information to Ekhwan in a timely manner and the Information shall be accurate. Customer agrees that, in the event of Customer’s breach of its obligations in this Section 8, the warranty set forth in Section 8 shall be null and void.
9. Warranties of Customer: Customer hereby covenants, represents and warrants that:
1. Customer will not, and will not permit others to use Service(s)
* for any unlawful or illegal purpose or in connection with or in furtherance of any unlawful or illegal activity,
* in violation of any applicable law or regulation,
* in a manner that will, or is likely to, infringe the copyright, trademark, trade secret or other intellectual property rights of others or violate the right of privacy, publicity or other personal rights of others, or
* in connection with any conduct or activity that is, in the sole opinion of Ekhwan, defamatory, indecent, obscene, offensive, threatening, abusive, hateful, tortuous or violation of the rights of any other person or entity;
2. Customer will not, and will not permit others to, do any act which may interfere with or compromise the security or functionality of any Service(s), including without limitation attempting to probe or test the vulnerability of any system or network connected to or accessible by the Service(s);
No equipment owned, leased, maintained by or controlled by Customer or by any third party, which is connected to or utilized the Service(s) with the consent of Customer will
* interfere with or impair any Service(s) or any plant, services or facilities of any Indemnities or of any third party,
* unlawfully interfere with or impair the transmission of privacy of any data or communications transmitted over the Service(s) or over any plant, services or facilities of any Indemnities or of any third party, or
* create, cause or contribute to the creation or causing of a hazard to any Indemnities or to any third party.
10. Refund and Disputes: All payments to Ekhwan that have been serviced are nonrefundable. This includes the one time setup fee and subsequent charges regardless of usage. All overcharges or billing disputes must be reported within 30 days of the time the dispute occurred and refunds will be given at the discretion of the Company Management. If you dispute a charge to your credit card issuer that, in Ekhwan ‘s sole discretion is a valid charge under the provisions of the TOS and/or AUP, you agree to pay Ekhwan an “Administrative Fee” of not less than $100 and not more than $500.
11. Indemnification: Ekhwan reserves the right to suspend, interrupt or terminate any Service(s) or this Agreement immediately without further notice in the event of a breach by Customer of Section 9. Ekhwan reserves the right to remove, delete, disable or block transmission of any data or materials that Ekhwan reasonably believes constitute, either alone or in conjunction with other acts, omissions or data or materials, a breach or potential breach by Customer of Section 9. Customer agrees to defend, indemnify and hold harmless Ekhwan, its successors or assigns, subsidiaries, officers, directors, employees, agents, independent contractors, licensees, licensors, suppliers and customers (excluding Customer) (collectively “Indemnities”) against any and all claims, liability, loss, damage, or harm (including without limitation reasonable legal and accounting fees) suffered by such Indemnities (including without limitation claims, liability, loss, damage, or harm in connection with death, bodily injury or injury to real or personal property) arising from or in connection with (i) Customer’s purchase or use of any Service(s), including without limitation any claims, liability, loss, damage, harm suffered by such Indemnities arising from or in connection with the use by any third party of any Service(s) purchased by Customer regardless of whether such use was authorized by Customer, or (ii) Customer’s breach of any provision of this Agreement.
12. Limitation of Liability: Any other provision of this Agreement to the contrary notwithstanding, the aggregate liability of all Indemnities for any losses or damage, whether direct or indirect, arising out of or in connection with the Service(s), including without limitation any cause of action sounding in contract, tort or strict liability, shall be limited to actual, direct damages incurred but in no event shall exceed the greater of * One Hundred Dollars, or
* The Fees paid by Customer to Ekhwan during the two (2) months preceding the month in which liability arose for the Service(s) in connection with which such liability arose. Ekhwan shall not be liable for lost profits or other consequential damages, cover damages, or for any claims against Customer by any third party, even if Ekhwan was advised of the possibility of same. Under no circumstances shall Ekhwan be liable hereunder for special damages, consequential damages, general damages, incidental damages, indirect damages, or exemplary or punitive damages. No action arising out of this Agreement, regardless of form, may be brought by Customer against Ekhwan more than one (1) year after the cause of action arose. Without limiting the foregoing:
Customer acknowledges that Ekhwan is not responsible for controlling or monitoring any content, information, data or other materials stored on, transmitted via, or accessible through use of, the Service(s), and Ekhwan will have no liability to Customer whatsoever in connection with such content, information, data or other materials (including without limitation the accuracy or suitability thereof or unauthorized access or damage to, alteration, theft, corruption destruction or loss of, Customer’s data or other materials); Ekhwan will have no liability to Customer whatsoever in connection with any harm or loss arising from or in connection with unauthorized access to the Service(s); and all Indemnities are expressly made third party beneficiaries of this Section 12.
This Section 12 shall survive expiration or termination of this Agreement for any reason whatsoever.
13. Proprietary/Confidential Information: Ekhwan and Customer acknowledge that proprietary and confidential information (including without limitation trade secrets) (collectively “Proprietary Information”) of each Party may be disclosed to the other Party throughout the term of this Agreement. Each Party agrees to not reverse engineer, decompile, disclose to any third party, or to use for any purpose not strictly required for such Party’s performance hereunder, such Proprietary Information except to the extent that such Proprietary Information was:
* made publicly available by the owner of the Proprietary Information or lawfully disclosed by a non-party to this Agreement;
* lawfully obtained from any source other than the owner of the Proprietary Information;
* independently developed by personnel of the receiving Party to whom Proprietary Information had not been previously disclosed and not based on or derived from such Proprietary Information; or
* previously known to the receiving Party without an obligation to keep it confidential. Customer will not contract directly with any subcontractor relationships that Ekhwan has under this agreement or are connected to future services related to this agreement or that are of the same nature. Anything to the contrary herein notwithstanding, Ekhwan may disclose such information to its successors or assigns, subsidiaries, officers, directors, employees, agents, independent contractors, licensees, licensors and suppliers which have signed and are bound by a suitable non-disclosure agreement with Ekhwan in order for Ekhwan to perform the service in this contract. The obligations set forth in this Section 13 shall survive the termination of this Agreement for any reason whatsoever for a period of three (3) years; provided, however, that, with respect to Proprietary Information which constitutes a trade secret, the obligations set forth in this Section 13 shall survive the termination of this Agreement for any reason whatsoever for so long as such Proprietary Information constitutes a trade secret under applicable law.
14. Force Majeure: If either Party shall be prevented from performing any portion of this Agreement (except the payment of money) by causes beyond its control, including labor disputes, civil commotion, war, governmental regulations or controls, casualty, inability to obtain materials or Service(s) or acts of God, such Party shall be excused from performance for the period of the delay and the time for such Party’s performance shall be extended for a period of time equal to the duration of such delay.
15. Construction, Venue, Jurisdiction: This Agreement and any claim, action, suit, proceeding or dispute arising out of or in connection with this Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive laws of the State of Georgia or United Kingdom. Venue for any actions arising under this Agreement shall vest exclusively in courts located in the State of Georgia or United Kingdom. Customer hereby submits to the jurisdiction of the aforementioned courts, and agrees that it will not assert lack of personal jurisdiction as a defense to any such action. Customer acknowledges that their attorney has reviewed and participated in the construction of this document and nothing herein shall be viewed as to have favorable construction.
16. Waiver: No waiver of any right or remedy shall be valid unless in writing and delivered to the other Party, and waiver of a right or remedy on one occasion by a Party shall not be deemed a waiver of such right or remedy on any other occasion.
17. Integration: This Agreement, including all referenced or attached exhibits, schedules, attachments or documents, sets forth the entire agreement and understanding between the Parties pertaining to their subject matter and supersedes all prior or contemporaneous discussions, agreements, promises or understandings between the Parties. Neither Party shall be bound by any conditions, definitions, warranties, understandings nor representations with respect to such subject matter other than as expressly provided in this Agreement.
18. Superior Agreement: This Agreement shall not be supplemented or modified by any course of dealing or trade usage. Addition to or variance from the terms and conditions of the Agreement by Customer, including without limitation any additional or varying terms contained in Customer’s preprinted forms, correspondence or other documents transmitted to Ekhwan, shall be of no effect, unless otherwise expressly provided in the Agreement.
19. Assignment: This Agreement is not assignable by Customer, in whole or in part, voluntarily or involuntarily, including by operation of law or by merger in which Customer does not survive, without Ekhwan ‘s prior written consent.
Any attempted assignment without Ekhwan ‘s written consent shall be null and void.
20. Notice: Unless otherwise agreed to by the Parties, all notices required under the Agreement shall be delivered in writing, addressed and sent to the address provided herein and to the attention of the Party executing the Agreement or the person’s successor, by either
* registered mail,
* certified mail, return receipt requested, or
* overnight mail, or
* by telephone facsimile transfer
* email that is replied to as accepted – appropriately directed to the attention of the Party executing the Agreement or that person’s successor.
Unless otherwise agreed to by the Parties, all notices required under the Agreement shall be deemed effective when received.
21. Severability: If any provision of the Agreement is held invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall remain in full force and effect.
22. Counterparts: This Agreement may be executed in multiple counterparts, each of which shall be deemed an original and all of which taken together shall constitute one and the same Agreement.
Payment from customer of the first month’s fees shall constitute acceptance of this agreement. Ekhwan shall modify this agreement from time to time and the then current version shall be sent to the customer. If customer does not agree to the new terms – customer should cease utilizing the services at the next term.
Acceptable Use Policy
The following agreement is by and between Ekhwan, and the respective customer (now known as CUSTOMER) acquiring web hosting and related services from the former.
Ekhwan ‘s Acceptable Use Policy (“AUP”) is provided to give our customers and users a clear understanding of what Ekhwan expects of them while using the service. All users of Ekhwan ‘s Internet services: those who access some of our Services but do not have accounts, as well as those who pay a service fee to subscribe to the Services, must comply with this AUP and our TOS (Terms of Service).
Use of Ekhwan Service constitutes acceptance and agreement to Ekhwan ‘s AUP as well as Ekhwan ‘s TOS (Terms of Service).
This Acceptable Use Policy applies to all persons and entities (collectively, “customers”) using the products and services of Ekhwan including Internet service. The policy is designed to protect the security, integrity, reliability, and privacy of both the Ekhwan network and the products and services Ekhwan offers to its customers. Ekhwan reserves the right to modify this policy at any time, effective immediately upon posting of the modification. Your use of Ekhwan’s products and services constitutes your acceptance of the Acceptable Use Policy in effect at the time of your use. You are solely responsible for any and all acts and omissions that occur during or relating to your use of the service, and you agree not to engage in any unacceptable use of the service.
What Uses are prohibited?
Unacceptable use includes, but is not limited to, any of the following:
1. Posting, transmission, re-transmission, or storing material on or through any of Ekhwan’s products or services, if in the sole judgment of Ekhwan such posting, transmission, re-transmission or storage is: (a) in violation of any local, state, federal, or non-United States law or regulation (including rights protected by copyright, trade secret, patent or other intellectual property or similar laws or regulations); (b) threatening or abusive; (c) obscene; (d) indecent; or (e) defamatory. Each customer shall be responsible for determining what laws or regulations are applicable to his or her use of the products and services.
2. Installation or distribution of “pirated” or other software products that are not appropriately licensed for use by customer.}
3. Deceptive marketing practices.
4. Actions that restrict or inhibit anyone – whether a customer of Ekhwan or otherwise – in his or her use or enjoyment of Ekhwan’s products and services, or that generate excessive network traffic through the use of automated or manual routines that are not related to ordinary personal or business use of Internet services.
5. Introduction of malicious programs into the Ekhwan network or servers or other products and services of Ekhwan (e.g., viruses, trojan horses and worms).
6. Causing or attempting to cause security breaches or disruptions of Internet communications. Examples of security breaches include but are not limited to accessing data of which the customer is not an intended recipient, or logging into a server or account that the customer is not expressly authorized to access. Examples of disruptions include but are not limited to port scans, flood pings, packet spoofing and forged routing information.
7. Executing any form of network monitoring that will intercept data not intended for the customer.
8. Circumventing user authentication or security of any host, network or account.
9. Interfering with or denying service to any user other than the customer’s host (e.g., denial of service attack).
10. Using any program/script/command, or sending messages of any kind, designed to interfere with, or to disable a user’s terminal session.
11. Failing to comply with Ekhwan’s procedures relating to the activities of customers on Cogent-owned facilities.
12. Furnishing false or incorrect data on the order form contract (electronic or paper) including fraudulent use of credit card numbers or attempting to circumvent or alter the processes or procedures to measure time, bandwidth utilization or other methods to document “use” of Ekhwan’s products or services.
13. Sending unsolicited mail messages, including the sending of “junk mail” or other advertising material to individuals who did not specifically request such material, who were not previous customers of the customer or with whom the customer does not have an existing business relationship (e.g., E-mail “spam”).
14. Harassment, whether through language, frequency, or size of messages.
15. Unauthorized use or forging of mail header information.
16. Solicitations of mail or any other E-mail address other than that of the poster’s account or service, with the intent to harass or collect replies.
17. Creating or forwarding “chain letters” or other “pyramid schemes” of any type.
18. Use of unsolicited E-mail originating from within the Ekhwan network or networks of other Internet Service Providers on behalf of or to advertise any service hosted by Ekhwan or connected via the Ekhwan network.
19. Exporting, re-exporting, or permitting downloads of any content in violation of the export or import laws of the United States or without all required approvals, licenses and exemptions.
No failure or delay in exercising or enforcing this policy shall constitute a waiver of the policy or of any other right or remedy. If any provision of this policy is deemed unenforceable due to law or change in law, such a provision shall be disregarded and the balance of the policy shall remain in effect.
Abusable Resources
Upon notification of the existence of an abusable resource (e.g., open news server, unsecured mail relay, or smurf amplifier), the customer shall immediately take all necessary steps to avoid any further abuse of such resource. Any abuse of an open resource that occurs after the customer has received such notification shall be considered a violation of this policy and enforced as such.
Enforcement
Ekhwan may immediately suspend and/or terminate the customer’s service for violation of any provision of this policy upon verbal or written notice, which notice may be provided by voicemail or E-mail. Prior to suspension or termination, Ekhwan attempts to work with our customers to cure violations of this policy and ensure that there is no re-occurrence; however, Ekhwan reserves the right to suspend or terminate based on a first offense. An “Administrative Fee” of not less than $100 and not more than $500 will be charged for the termination of the customer’s service.
Electronic Communications Privacy Act Notice
Ekhwan makes no guarantee of confidentiality or privacy of any information transmitted through or stored upon Ekhwan technology, and makes no guarantee that any other entity or group of users will be included or excluded from Ekhwan’s network. In addition, Ekhwan may periodically monitor transmissions over its network for maintenance, service quality assurance or any other purpose permitted by the Electronic Communications Privacy Act, P.L. No. 99-508, as amended.
Questions?
If you are unsure of whether any contemplated use or action is permitted, please contact Ekhwan at support@ekhwan.com
Refund Policy
The following agreement is by and between Ekhwan and the respective customer (now known as CUSTOMER) acquiring web hosting and related services from the former.
Ekhwan will refund CUSTOMER a prorated amount of paid up fees under the following situations:
• Account termination (not through violation of terms and agreements)
• Service downtime
Account termination
Should CUSTOMER choose to terminate service with Ekhwan during a year which payment has already been made, we will refund a prorated amount according to date of termination. Such requests should be made through info@fiw.every1.net seven (7) days before going into effect.
Service downtime
Ekhwan will refund the customer a prorated fee based on actual downtime (up to 100% of customer’s monthly fee, calculated from the yearly charge). Network uptime includes functioning of all internal network infrastructure including routers, switches and cabling but excludes, uplink provider faults not controllable by us. Network downtime exists when a particular customer’s server is unable to transmit and receive data due to a hardware related problem.
*Refunds will be given at the discretion of the Company Management. No refund will be made for accounts terminated or suspended due to violation of our Acceptable Usage Policy or Service Contract terms.
General Disclaimer
The following agreement is by and Ekhwan and the respective customer (now known as CUSTOMER) acquiring web hosting and related services from the former.
CUSTOMER acknowledges that the Services are provided “as is.” Neither Ekhwan, nor any of its employees, affiliates or agents, warrants that the services will be uninterrupted, error free or free from viruses or other harmful components.
Ekhwan will not, as an ordinary practice, monitor the communications of its subscribers to ensure that they comply with Ekhwan policy or applicable law.
When Ekhwan becomes legally aware of harmful activities, however, it may take any action to stop the harmful activity, including but not limited to, removing information, shutting down a web site, implementing screening software designed to block offending transmissions, denying access to the Internet, or take any other appropriate measures.
CUSTOMER agrees defend, hold harmless and indemnify Ekhwan and its affiliates, officers, partners, agents and employees from all claims, demands, actions, damages, judgments, expenses, costs (including reasonable attorney’s fees), and liabilities arising out of CUSTOMER’s access to or use of the service. Neither Ekhwan nor CUSTOMER shall be held liable to each other for any indirect, incidental, consequential, exemplary, reliance or special damages, including damages for lost profits, regardless of the form of action, whether in contract, indemnity, warranty, strict liability, or tort, including negligence of any kind with regard to any conduct under this Agreement. This indemnification and hold harmless agreement extends to all issues associated with your account, including but not limited to domain name selection and Web site content.
The validity, terms, performance and enforcement of this Agreement shall be governed and construed by its provisions and in accordance with the laws of the United Arab Emirates and the country of residence of CUSTOMER.
Ekhwan – The Dawoodi Bohra Brotherhood
(Joint Stock Company)
Managing Director – Juzar Yusuf Karim
P O Box 19860, Sharjah
United Arab Emirates
Tel: +971-50-5390570
Fax +971-6-5321319
Helpdesk: support at ekhwan.com
Important Notice: Clients acquiring the Windows based hosting services are bound to the above agreement in addition to the Terms and Conditions for windows hosting.