ACCESS TO THIS WEBSITE IS GRANTED BY Jaispirit Co., Ltd. ("Jaispirit") SUBJECT TO THE FOLLOWING CONDITIONS. IF YOU DO NOT AGREE TO ANY OF THESE CONDITIONS, PLEASE DISCONTINUE YOUR ACCESS.
The Jaispirit Terms of Service (this “Agreement”) and the Jaispirit Acceptable Use Policy (“AUP”) https://websites.jaispirit.com/acceptable-use-policy-aup/ govern your purchase and use of all Jaispirit services (collectively, the “Services”), as described in the Order Form(s) submitted by you and accepted by Jaispirit (“Service Order”). You must register and accept the terms of this Agreement and the AUP in order to use the Services. BY CLICKING ON THE “I ACCEPT” BUTTON, AND/OR REGISTERING FOR AND USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND THE AUP, AND AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT AS WELL AS ALL POLICIES AND GUIDELINES OF THE AUP, WHICH ARE INCORPORATED HEREIN BY REFERENCE.
The information and materials contained in this site and all sites linked to this site ("website"), including text, graphics, links or other items - are provided "As is", "As Available". Jaispirit does not warrant the accuracy, adequacy, reliability or completeness of this information and materials and expressly disclaims liability for errors or omissions in such information and materials. No warranty of any kind, implied, express or statutory, including but not limited to the warranties of non-infringement of third party rights, title, merchantability, satisfactory quality, fitness for a particular purpose and freedom from computer virus, is given in conjunction with the information and materials.
Jaispirit does not make any representation, warranty or endorsement of any of the products, services or information provided in this website. All products and services sold shall be subject to our Terms and Conditions of Sale.
This disclaimer shall take effect to the fullest extent permitted by law.
The copyright in this website is owned by Jaispirit, its agents and/or professional advisors. No part of parts hereof may be reproduced, distributed, republished, displayed, broadcast, hyper linked or transmitted in any manner or by any means or stored in an information retrieval system without the prior written permission of Jaispirit or the copyright owner provided that permission is granted to download and print the materials on this website for personal, non-commercial use only provided you do not modify the materials and that you retain all copyright and other proprietary notices contained in the materials. This permission terminates automatically if you breach any of these terms or conditions. Upon termination, you will immediately destroy any downloaded and printed materials. You also may not, without Jaispirit's permission, "mirror" any material contained on this website on any other server.
The trademarks, service marks, and logos (the "Trade Marks") used and displayed on this website are registered and unregistered Trade Marks of Jaispirit and others. Nothing on this website should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trade Mark displayed on this website, without the written permission of Jaispirit or any other Trade Mark owner. Jaispirit aggressively enforces its intellectual property rights to the fullest extent of the law. The name of Jaispirit or the Jaispirit logo may not be used in any way, including in advertising or publicity pertaining to distribution of materials on this website, without prior written permission. Jaispirit prohibits use of the Jaispirit logo as a "hot" link to any Jaispirit site unless establishment of such a link is approved in advance by Jaispirit in writing.
EXCLUSION OF LIABILITY
Jaispirit shall in no event be liable for any damages, loss or expense including without limitation, direct, indirect, special, or consequential damage, or economic loss arising from or in connection with:
a) Any access, use or the inability to access or use this website, or reliance on the contents of this website. b) Any system, server or connection failure, error, omission, interruption, delay in transmission, or computer virus. c) Any use of or access to any other website linked to this website. d) Any product, service or information of any merchant or service provider.
Even if Jaispirit or its agents or employees are advised of the possibility of such damages, losses and/or expenses. Any hyperlinks to any other websites are not an endorsement or verification of such websites and such websites should only be accessed at the user's own risks. This exclusion clause shall take effect to the fullest extent permitted by law.
Any material, information or idea you transmit to or post on this website by any means will be treated as non-confidential and non-proprietary, and may be disseminated or used by Jaispirit or its affiliates for any purpose whatsoever, including, but not limited to, developing, manufacturing and marketing products. You are prohibited from posting or transmitting to or from this website any unlawful, threatening, libelous, defamatory, obscene, scandalous, inflammatory, pornographic, or profane material, or any other material that could give rise to any civil or criminal liability under the law. Lese majeste leads to immediate expulsion and criminal charges.
GOVERNING LAW AND JURISDICTION
Any facilities and/or services offered through this website are strictly for Jaispirit customers' access and/or use in Thailand. Other than as aforesaid, nothing in this website shall be construed as Jaispirit providing services and facilities outside of the above mentioned territories. By accessing this website and using the facilities and/or services offered through this website, you agree that Thailand law shall govern such access and the provision of such facilities and/or services and you agree to submit to the exclusive jurisdiction of the Thailand courts.
CONDITIONS OF ACCESS
Jaispirit may at any time revise these Conditions of Access by updating this version. By using this website, you agree to be bound by any such revisions and should therefore periodically visit this page to determine the then current version of the Conditions of Access to which you are bound.
Terms and Conditions of Sale
"Jaispirit" means Jaispirit Co., Ltd. selling products to the Customer as identified in Jaispirit's Quotation or Invoice.
"Customer" means the person or legal entity identified in Jaispirit's Quotation or Invoice.
"Contract" means a contract for sale by Jaispirit to the Customer of the products and/or services incorporating the Terms and Conditions.
"Jaispirit-branded" means computer hardware products that are marked with the "Jaispirit" brand, including all standard components thereof, BUT DOES NOT INCLUDE any of the following items:
Software, sound cards, speakers, external devices, accessories or parts added to the Jaispirit-branded hardware products after they are shipped from Jaispirit.
Accessories or parts added to the Jaispirit-branded hardware products through Jaispirit's Custom Factory Integration Services at Customer's request.
Accessories or parts that are not installed in the Jaispirit factory.
Third Party Software and Peripheral products or
monitors, keyboards and mice, to the extent that they are not included on Jaispirit's standard price list.
"Order Confirmation" means formal acknowledgement of Product ordered by Customer, sent by Jaispirit.
"Price" means the price as per Jaispirit Quotation and Order Confirmation and the latter shall have precedence.
"Product(s)" means the products as described in Order Confirmation and may include Jaispirit-branded products, third party products and Service Offerings.
"Service Offering(s)" means the different service options offered by Jaispirit for the Products or any part of them and for varying periods, as described in Jaispirit's published literature, including but not limited to Jaispirit's Invoice and/or Jaispirit's Service Description.
"Third Party Products" means products other than Jaispirit-branded.
2. FORMATION OF CONTRACT
2.1 No Contract shall come into existence until the Customer's order has been accepted by Jaispirit.
2.2 The Products sold and/or services rendered are subject to these Terms and Conditions to the exclusion of any other terms and conditions stipulated or referred to by Customer. The Customer acknowledges that it is aware of the contents of and agrees to be bound by these Terms and Conditions. Neither Jaispirit's acknowledgment of a purchase order nor its failure to object to conflicting, different, or additional terms and conditions in a purchase order shall be deemed an acceptance of such terms and conditions or a waiver of the provisions hereof.
3. ORDERS, PRICE AND PAYMENT
3.1 Unless credit terms have been expressly agreed by Jaispirit, payment for the Products or services shall be made in full before physical delivery of Products or services.
3.2 Customer shall pay for all shipping and handling charges.
3.3 Customer shall bear all country, provincial, government, state and local sales, use, goods and services, value added, excise, privilege and similar levies/taxes.
3.4 Time for payment is of the essence. Jaispirit reserves the right to charge interest at the rate of 15 % per annum on sums overdue.
3.5 Unless Customer and Jaispirit have agreed to a different discount, Jaispirit's standard pricing policy for Jaispirit-branded systems, which include both hardware and services in one discounted price, allocates the discount off list price applicable to the service portion of the system to be equal to the overall calculated percentage discount off list price on the entire system.
4.1 All software provided is subject to the terms and conditions of the license agreement relating to that software. Customer acknowledges its obligations to abide by such license agreements. Customer acknowledges that Jaispirit does not warrant any software under these Terms and Conditions. All software is warranted in accordance with the license agreement that governs its use.
4.2 All rights, title or interest in respect of the intellectual property rights in the software remain with Jaispirit or the licensor of the software at all times.
5. TITLE AND RISK
Title to and risk in the Products shall pass to the Customer upon delivery of the Products to Customer. Title to those Products, which are software, shall remain with the applicable licensor(s) at all times.
6.1 Jaispirit shall deliver the Products to the place of delivery designated by Customer and agreed to by Jaispirit ("Place of Delivery").
6.2 Jaispirit may, at its discretion, deliver the products by installments in any sequence. Where the Products are so delivered by installments, each installment shall be deemed to be the subject of a separate contract and no default or failure by Jaispirit in respect of any one or more installments shall vitiate the Contract in respect of Products previously delivered or undelivered Products.
6.3 Any dates quoted by Jaispirit for the delivery of the Products are approximate only and shall not form part of the Contract. Jaispirit shall not be liable for any delay in delivery of the Products and/or services, howsoever caused.
6.4 Jaispirit may revise and/or discontinue products at any time without notice as part of Jaispirit's policy of on-going product up-date and revision. Revised or updated products will have the functionality and performance of the Products ordered. The Customer accepts that Jaispirit's policy may result in differences between the specification of products delivered to the Customer and the specification of Products ordered.
7. ACCEPTANCE OF PRODUCTS
7.1 Unless the Customer notifies Jaispirit to the contrary on the day of delivery and such notification is confirmed in writing within two days, the Products shall be deemed to have been accepted by the Customer as being in good condition and in accordance with the Contract and the Products fully work in good order in accordance with its respective specification without any defect. The Customer shall not be entitled to withhold payment of all or any of the Prices of the Products whilst any claim is being investigated by Jaispirit.
7.2 New Jaispirit-branded Products purchased under these Terms and Conditions directly from Jaispirit by an end-user Customer may be returned by Customer up to 7 days from the date of the invoice for a replacement or credit of the purchase price in accordance with Jaispirit's "Return Policy" in effect in the Location on the date of the invoice. The credit will not include any shipping and handling charges forming part of the purchase price. Products returned under Jaispirit's "Return Policy" must be received by Jaispirit in as-new or as-shipped-by-Jaispirit condition, including conformance to invoiced specification and all of the manuals, diskettes, CDs, power cables, and other items included with a Product must be returned with it.
8.1 Unless specified otherwise, Jaispirit warrants to the Customer that Jaispirit branded Products will from invoice date be free from defects in materials and workmanship affecting normal use for a period of 6 months or such other period as may be set out in Jaispirit's invoice. ("Standard Warranty" and "Relevant Warranty" period as appropriate) Upon the expiration of the aforesaid period, the Customer acknowledges that there is no defect of Jaispirit branded Products and agrees to waive its rights and claims against Jaispirit and release Jaispirit from any liability in relation to defect.
8.2 This Standard Warranty does not cover damage, fault, failure or malfunction due to external causes, including accident, abuse, misuse, problems with electrical power, servicing not authorized by Jaispirit, usage and/or storage and/or installation not in accordance with Product instructions, failure to perform required preventive maintenance, normal wear and tear, act of God, flood, fire, war, act of violence or any similar occurrence; Products with missing or altered service tags or serial numbers; any attempt by any person other than Jaispirit personnel or any person authorized by Jaispirit, to adjust, repair or support the Products and problems caused by use of parts and components not supplied by Jaispirit. The Standard Warranty or Relevant Warranty does not cover any items that are in one or more of the following categories: external devices; software; accessories or parts added to the Product after the Product is shipped from Jaispirit; accessories or parts added to the Product through Jaispirit; accessories or parts that are not installed in the Jaispirit factory; or Third Party Products purchased under Jaispirit Software & Peripherals Program.
8.3 Subject to clause 9 below, during the Standard Warranty or Relevant Warranty period as the case may be and beginning on the invoice date, Jaispirit will repair or replace Jaispirit-branded Products returned to Jaispirit's facility. Customer must prepay shipping and transportation charges, and insure the shipment or accept the risk of loss or damage during such shipment and transportation. Jaispirit will ship the repaired or replacement Products to Customer freight prepaid.
8.4 Jaispirit does not give any warranty that the Products are fit for any particular purpose and this Standard Warranty or Relevant Warranty is given in place of all warranties, conditions, terms, undertakings and obligations implied by statute, common law, trade usage, course of dealing or otherwise including warranties or conditions of merchantability, fitness for purpose, satisfactory quality and/or compliance with description, all of which are hereby excluded to the fullest extent permitted by law.
8.5 The Customer agrees that, in relation to Third Party Products purchased through Jaispirit, where such of the Products are covered by a relevant manufacturer's warranty, then the Standard Warranty shall not extend to such Products and such manufacturer's warranty shall be the sole warranty in respect of such Products. The Customer shall utilize that warranty for the support of such Products and in any event not look to Jaispirit but shall look to the relevant manufacturer for such warranty support.
9. SERVICE AND TECHNICAL SUPPORT
In respect of Jaispirit-branded Products Jaispirit will provide general service and technical support to Customer in accordance with the current service and technical support policies in effect. Service and support offerings may vary from product to product. If Customer purchases optional services and support as listed on Jaispirit's invoice, Jaispirit will provide the optional service and support to Customer in accordance with the current terms and conditions in the optional service contract between Jaispirit and Customer in addition to the Standard Warranty or Relevant Warranty. Jaispirit may, at its discretion, revise its general and optional service and support programs and the terms and conditions that govern them. Jaispirit has no obligation to provide service or support until Jaispirit has received full payment for the Product or service/support contract for which service or support is requested.
10.1 Jaispirit shall not be liable in contract or in tort for any loss or damage suffered and consumer rights are limited to those set out in these Terms and Conditions and under statute.
10.2 To the extent permitted by law and subject to clause 10.6, Jaispirit's total liability herein in respect of each event or series of connected events shall not exceed the amount invoiced for the applicable Products and/or services under the Contract.
10.3 The Customer shall indemnify Jaispirit and keep Jaispirit fully and effectively indemnified against any loss of or damage to any property or injury to or death of any persons caused by any negligent act or omission or willful misconduct of the Customer, its employees, agents or sub-contractors or by any breach of its contractual obligations arising out of these Terms and Conditions.
10.4 To the extent permitted by law, Jaispirit and Customer agree that Jaispirit will not be liable for Products not being available for use, or for data or software which is lost, corrupted, deleted or altered. Any service response times stated by Jaispirit in service contracts are approximate only. Jaispirit shall not be liable to the Customer for any 1) incidental, indirect, special or consequential damages, 2) loss of opportunity, 3) loss of revenue, 4) loss of profit or anticipated profit, 5) loss of business 6) loss of contracts, 7) loss of goodwill, 8) loss arising out of business interruption, 10) loss arising out of or in connection with pollution or contamination, all arising out of or in connection with the purchase, use or performance of Products or services, even if Jaispirit has been advised of their possibility.
10.5 To the extent permitted by law, any typographical, clerical or other error or omission in sales literature, quotation, price list, acceptance of offer, invoice or other documents or information issued by Jaispirit shall be subject to correction without any liability on the part of Jaispirit.
10.6 Where under any applicable law, implied conditions and warranties cannot be excluded Jaispirit's liability for breach of such conditions and warranties shall be limited, at Jaispirit's option, to:
(a) In the case of Products, the replacement of the Products or the supply of equivalent Products; the repair of such Products; the payment of the cost of replacing the Products or of acquiring equivalent Products; or the payment of the cost of having the Products repaired; or
(b) In the case of services, the supplying of services again; or the payment of the cost of having services supplied again.
11. FORCE MAJEURE
Neither party shall be liable for any delay in performing any of its obligations under these Terms and Conditions if such delay is caused by circumstances beyond the reasonable control of the party so delaying, and such party shall be entitled to a reasonable extension of time for the performance of such obligations.
12. EXPORT RESTRICTIONS
Each party, at its own expense, will comply with all applicable laws, orders and regulations of any governmental authority with jurisdiction over its activities in connection with these Terms and Conditions and any Contract. Each party will furnish to the other party any information required to enable the other party to comply with applicable laws and regulations related to the Products. Jaispirit and Customer acknowledge that Products licensed or sold under any Contract are subject to export control laws and regulations, including those of the countries from which they were supplied and in which they are used and agrees to abide by those laws and regulations. The Products purchased under any Contract may not be sold, leased or otherwise transferred to restricted end-users or to restricted countries. In addition, the Products may not be sold, leased or otherwise transferred to, or utilized by, an end-user engaged in activities related to weapons of mass destruction, including but not necessarily limited to, activities related to the design, development, production or use of nuclear materials, nuclear facilities, or nuclear weapons, missiles or support of missile projects, or chemical or biological weapons. The Customer and Jaispirit agree to comply with all applicable export laws, regulations and orders. In addition, each party agrees to indemnify, defend and hold the other harmless from any claims, demands or causes of action against the other due to the indemnifying party's violation or alleged violation of the applicable export laws, regulations and orders.
13. GOVERNING LAW
These Terms and Conditions shall be governed by and construed in accordance with the laws of Thailand and shall be subject to the non-exclusive jurisdiction of the courts of Thailand.
14.1 The Customer shall not assign or otherwise transfer any Contracts or any of its rights and obligations hereunder whether in whole or in part without the prior written consent of Jaispirit. Any such unauthorized assignment shall be deemed null and void.
14.2 If any provision of these Terms and Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Terms and Conditions and the remainder of the provisions in question shall not be affected thereby.
14.3 No Waiver. No failure or delay on Jaispirit's part in exercising any power or right under this Agreement operates as a waiver, nor does any single or partial exercise of any power or right preclude any other or further exercise, or the exercise of any other power or right.
Customer, who bought new Jaispirit-branded products directly from Jaispirit, may return them to Jaispirit within 7 days of the date of invoice for replacement or credit of the product purchase price. The credit will not include any shipping and handling charges shown on the invoice.
As soon as the goods have arrived at the premises of the buyer the buyer shall fully unpack and thoroughly examine the goods. The buyer shall report to us within two days after receipt any goods which are found to be defective or damaged (time being of the essence of this obligation). Any discrepancies notified to us after this time period will be treated as physical damage by the buyer and in effect void warranty.
To return products, you must contact Jaispirit to receive an Equipment Return Authorization Number. Arrangements for the return will be made with you at this time. To expedite the processing of your credit, Jaispirit expects the return of the products to Jaispirit in their original packaging and sealed, within five days of the date that Jaispirit issues the Equipment Return Authorization Number. You must also prepay shipping charges and insure the shipment or accept the risk of loss or damage during shipment. Returned products must be received by Jaispirit in as-new or as-shipped-by-Jaispirit condition, including conformance to the specifications set out in your invoice, and all of the manuals, diskette(s), CD(s), power cables, and other items included with a product must be returned with it.
This Policy does not apply to any third party products (including software) purchased through Jaispirit, refurbished or reconditioned products or parts.
Terms and Conditions of Service and Support
In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:
"the Customer" means the party commissioning the Services as named on the Invoice.
"the Products" means computer hardware, software or peripheral products which are the subject of the Service Offering and ordered by the Customer, accepted by Jaispirit, and specified on the Invoice, and such additions or changes thereto as may from time to time be agreed in writing between the parties. For the purposes of interpretation of this Agreement, the Products shall also include any part or component of them.
"the Location" means the place where the Products are situated as notified to Jaispirit and specified on the Invoice. If no particular location is specified, the Location shall be taken to be the Customer's address specified on the Invoice.
"the Invoice" means the document sent by Jaispirit to the Customer, demanding, inter alia, payment for the Services and evidencing the Service Offering purchased by the Customer.
"the Service Offering(s)" means the different service options offered by Jaispirit for the Products or any part of them and for varying periods, as delineated in Jaispirit's published literature, and which, for the purposes of this Agreement are incorporated, where relevant, hereto and are provided by Jaispirit pursuant to clause 2.
"the Emergency Services" means the emergency Services to be provided by Jaispirit.
"the Services" means the Service Offerings and the Emergency Services.
"the Service Fee" means the charge for the Services as specified by Jaispirit in the relevant Service Offering or over the telephone and as evidenced in Jaispirit's Invoice.
"Standard Service Hours" means the hours between 10.00 a.m. and 7.00 p.m. each day excluding Saturdays, Sundays and public holidays. Additional service hours may be available at Jaispirit's discretion in consideration of the payment of additional fees.
"this Agreement" means the Jaispirit Terms and Conditions of Service and Support, and the provisions contained within Jaispirit's other standard agreements pertaining to the Service Offerings provided by Jaispirit.
"Telephone Support" means telephone and remote hardware fault diagnosis provided by Jaispirit at its sole option and on such terms and conditions as it may, from time to time determine pursuant to clause 2.1.
2. THE SERVICE OFFERINGS
During the continuance of this Agreement, Jaispirit shall provide the following Services in respect of the Products:
2.1 Jaispirit Telephone Support Jaispirit shall provide at its sole option and for as long and for such hours as it may decide Telephone Support for the Customer. Enhancements to this service may be purchased by the Customer and will be as described in the relevant Service Offering.
2.2 Remedial Support Upon receipt of notification from the Customer that the Products have failed or are malfunctioning, and in the event that the fault is unable to be rectified using Jaispirit Telephone Support, Jaispirit undertakes to use all reasonable endeavors during the Standard Service Hours to make such corrections, repairs or adjustments to or replace such parts of the Products as may be necessary to restore the Products to their proper operating condition. The extent of such remedial support and whether this is achieved remotely or by an on-site visit by a Jaispirit engineer depends upon the particular Service Offering chosen and purchased by the Customer (as evidenced on the Invoice) from amongst the Service Offerings or the specific Service Offering packaged with the Product.
2.3 Response Time Jaispirit undertakes to use all reasonable endeavors to dispatch a suitable qualified service engineer to the Location to arrive within the response time specified by Jaispirit in relation to the Products and Service Offering purchased by the Customer as recorded on the Invoice. Response times shall commence upon the Jaispirit Telephone Support engineer deciding that on-site remedial support is necessary. Product upgrades are not eligible for on-site service. Unless otherwise specified in the relevant Service Offering, a response time measured in hours includes only business hours within the Standard Service Hours of 10.00 a.m. to 7.00 p.m., Monday to Friday excluding public holidays and any replacement holidays determined by Jaispirit.
3.1 In consideration of the provision of the selected Service Offerings the Customer shall pay the Service Fee stated in Jaispirit's standard price list current at the time of Jaispirit's acceptance of the Customer's Order, or such other charge as may be agreed in writing. No payment shall be considered made until it is received by Jaispirit.
3.2 The charge for the Services and all other charges payable by the Customer hereunder shall be paid (unless provided for elsewhere in this Agreement or otherwise agreed) with the receipt of Jaispirit's invoice therefor.
3.3 All charges payable under this Agreement are exclusive of any GST, Value Added Tax and Service or Sales Tax, which shall be paid by the Customer at the rate and in the manner for the time being prescribed by law.
3.4 If any sum payable under this Agreement is not paid within 10 days after the due date then, without prejudice to Jaispirit's other rights and remedies, Jaispirit reserves the right, to the extent permitted under applicable law, to charge interest on such sum (as well after as before any judgment) from the due date to the date of payment (both dates inclusive) at the rate of 1.5 % per month. Such interest charged is payable on demand.
4.1 When Services consist of repair of Jaispirit systems, such Services shall be those repair services that are necessary because of any existing defect or a defect occurs in materials or workmanship in the system or in any system component covered by this Agreement. Preventive maintenance is not included. Repairs necessitated by software problems, or as a result of alteration, adjustment, or repair by anyone other than Jaispirit (or its representatives) are not included.
4.2 Jaispirit's Service Offerings do not include support which is necessitated as a result of any cause other than a result of Jaispirit's neglect or fault, including, without limitation:
(a) Failure or fluctuation of electric power, air conditioning, humidity control or other environmental conditions; or (b) accident, transportation, neglect, misuse, abuse or default of or by the Customer its employees or agents or any third party, including but not limited to broken or cracked plastics; or (c) any fault in any products or components which are not supplied by Jaispirit, whether or not (i) they form part of a Customer's configuration of the Products; or (ii) they comprise the Customer's configuration and the Products form an integral part of them; or (d) any fault in attachments or associated products or components (whether or not supplied by Jaispirit) which do not form part of the Products covered by this Agreement under the relevant Service Offering; or (e) any fault in the Products caused by the failure of any products or components not supplied by Jaispirit or caused by any software installed on the Products; or (f) act of God, lightning, fire, flood, war, act of violence or any similar occurrence; or (g) any attempt by any person other than Jaispirit personnel or any person authorized by Jaispirit (via the telephone or otherwise) or an authorized Jaispirit sub-contractor, to adjust, repair or support the Products.
4.3 The Service Offerings do not include:
(a) Support of non-Jaispirit branded Products (even though they may have been supplied by Jaispirit and form part of the Product) or Products which are not standard Jaispirit assemblies or configurations as defined on Jaispirit's published price list. The Customer agrees that where such of the Products are covered by a relevant manufacturer's warranty to utilize that warranty for the support of such Products and in any event not look to Jaispirit for such support. (b) Services at places other than the Location except where Jaispirit specifically agrees otherwise. (c) The correction or avoidance of software defects or errors or the loading or re-loading of a Customer's application software or the Customer's data or any re-configuration of the Products beyond loading the operating system software (i.e. basic install of the OS and Drivers using the factory supplied CDs) as carried out before shipment. (d) Repair or renewal of diskettes, printing ribbons, typefaces or other consumable supplies. (e) Electrical or other environmental work external to the Products; and (f) the support of any attachments or associated products which do not form part of the Products.
4.4 Collection of Products by Jaispirit, or its appointed carrier, under any of the Service Offerings, shall not be construed as invalidating the exceptions stated above and shall not imply that Jaispirit accepts the validity of the customer's claim.
5.1 Jaispirit reserves the right to replace the whole of the Products or any part or parts thereof which may be found to be faulty or in need of investigation even where only a part of the Products are so faulty or in need of investigation.
5.2 Jaispirit, in effecting such replacement, is under no obligation to use Products or any parts thereof which are identical in all respects to the faulty Products. Unless local laws determine otherwise, Jaispirit reserves the right to supply used or reconditioned parts or Products which are equivalent to new in functionality and appearance. Jaispirit shall ensure that any Products or parts thereof used in replacement shall have substantially the same fittings and at least an equivalent specification to the faulty Products or parts thereof. Jaispirit reserves the right to supply Products or parts thereof manufactured by whomsoever it shall, from time to time, deem appropriate.
5.3 The products or parts supplied to replace the Products shall become the property of the owner of the Products. The Products or any part or parts thereof removed shall become the property of Jaispirit.
5.4 The warranty term for a spare part used in repairing Products ("Replacement Part") is 90 days from its installation in the Product or the remainder of the warranty term for the Product into which it is installed, whichever is longer. For the avoidance of doubt, the warranty term of a Product is not extended after its repair or replacement. Customer will pay Jaispirit for a Replacement Part when the part replaced is not returned by Customer to Jaispirit within 10 days after the date the Replacement Part was delivered to Customer by Jaispirit. Prices of the part replaced will be at Jaispirit's then current standard price.
5.5 The provisions of this Agreement shall apply to all replacements of any part or parts of the Products made by Jaispirit during the continuance of this Agreement.
6. SERVICES NOT COVERED BY THE SERVICE OFFERINGS
6.1 Jaispirit shall impose an additional charge on the Customer, in accordance with its standard scale of charges for the time being in force, for any Services provided by Jaispirit at the request of the Customer which:
(a) Fall within any of the exclusions referred to in clause 4.2 above; or (d) in the opinion of Jaispirit, were not necessary; or
(c) were not provided because the Customer was not present or available to allow Jaispirit access to the Location.
6.2 For the avoidance of doubt, nothing in this clause shall impose any obligation on Jaispirit to provide Services which fall within the exclusions referred to in clause 4.2 above.
6.3 Emergency Services In addition to the Services, Jaispirit shall, at its sole discretion, provide during the continuance of this Agreement an emergency corrective service outside the Standard Service Hours. Jaispirit shall respond to a request for such Emergency Services as soon as practicable after its receipt of such request. All requests for Emergency Services shall be made during the Standard Service Hours. The Emergency Services shall be provided at Jaispirit's standard scale of charges for such service from time to time in force. Such charges shall take into account not only the time that Jaispirit's service engineer spends at the Location but also his traveling time to, and where appropriate from, that Location.
7. CUSTOMER'S OBLIGATIONS
7.1 The Customer must grant the service technician full access to the system and (at no cost to Jaispirit) have working space, electricity and a local telephone line. If these requirements are lacking, Jaispirit is not obligated to provide service. In addition, Jaispirit is not obligated to provide service if the Customer fails to provide an environment that is conducive to computer repair, including for example, if the Customer insists on service to be provided at varying locations, if the Customer fails to properly restrain a pet, if the Customer threatens Jaispirit technician either verbally or physically, or if the Customer location or the general area where the system is located is dangerous, infested with insects, rodents, pests, biohazards, human or animal excrement and/or chemicals as reasonably determined to be unsafe by Jaispirit technician.
7.2 During the continuance of this Agreement, the Customer shall:
(a) Provide Jaispirit with full, safe and prompt access to the Products to enable Jaispirit to carry out its obligations under this Agreement.
(b) Provide adequate working space around the Products for the use of Jaispirit's personnel and make available all reasonable facilities as may be requested from time to time by Jaispirit for the storage and safe keeping of any test equipment and spare parts.
(c) Use all reasonable endeavors to provide a suitable vehicle parking facility for use by Jaispirit's personnel which is not used for any other testing, diagnostic and remedial purposes at the Customer's expense.
(d) Use all reasonable endeavors to provide a suitable vehicle parking facility for use by Jaispirit's personnel which is free from any legal restrictions and which is immediately close to the Location.
(e) Ensure, in the interest of health and safety, that Jaispirit's personnel are met promptly by a member of the Customer's staff and while on the Customer's premises for the purposes of this Agreement, are at all times accompanied by a member of the Customer's staff familiar with the Customer's premises and safety procedures.
(f) Make available to Jaispirit, free of charge, all facilities and services reasonably required by Jaispirit to enable Jaispirit properly to provide the Services under this Agreement.
(g) Provide such telecommunication facilities as are reasonably required.
Use and Care
(a) Make sure that proper environmental conditions (in particular those (if any) defined in the relevant Product user manuals) are maintained for the Products and shall further maintain in good condition the place where the Products are situated, the cables and fittings to the Products and associated with the Products, and the electricity supply thereto.
(b) Save for discrete additions generally recognized as being compatible with the Products, not make any modifications to the Products without Jaispirit's prior consent.
(c) Ensure that the Products are used in a proper manner, in accordance with the Product user manuals and by competent trained employees only or by persons under their supervision.
(d) Ensure that the external surfaces of the Products are, where appropriate, kept clean and in good condition and shall carry out any minor maintenance requirements recommended by Jaispirit (or recommended in the relevant Product user manual) from time to time.
(e) Save as aforesaid, and except when operating under:
(1) A Jaispirit Agreement or in accordance with a Service Offering which provides otherwise; or
(I) under instructions from the Jaispirit Telephone Support; not attempt to adjust, repair, support or maintain the Products and shall not request, permit or authorize anyone other than Jaispirit or the manufacturer of the Products (where such Products are under a warranty from a manufacturer other than Jaispirit) to carry out any adjustments, repairs, support or maintenance of the Products.
(II) Use on or with the Products only such accessory, attachment, component or additional equipment or products as Jaispirit recommends, or are recommended in accordance with the Product user manuals, or are commonly and properly used on or with the Products.
(g) Not use in conjunction with the Products any accessory, attachment, component or additional equipment or products other than those which have been supplied or approved by Jaispirit for use in the manner proposed, or which are specifically approved as compatible by the relevant Product user manuals.
Notification and Information
(a) Promptly notify Jaispirit if the Products need service or are not operating correctly. Failure by the Customer to notify Jaispirit within 2 weeks of the Customer first becoming aware of such failure or incorrect working shall free Jaispirit from all obligations to investigate or correct such failure or incorrect working.
(b) Make available to Jaispirit, free of charge, such information as may be necessary to enable Jaispirit properly to conduct telephone diagnosis as part of the Jaispirit Telephone Support service, and in addition, such programs, operating manuals and information to enable Jaispirit properly to perform its obligations under this Agreement and shall use its best endeavors to provide staff familiar with the Customer's programs and operations, which staff shall co-operate fully with Jaispirit personnel operating Jaispirit's Telephone Support or present on-site, as the case may be, in the diagnosis of any malfunction of the Products.
Database and Software
Keep full security copies of any of the Products comprising Software and of the Customer's programs, databases and computer records in accordance with best computing practice and in any case before requesting Services from Jaispirit. The Customer acknowledges that they are responsible for re-loading their own application software after any such Services have been provided. It is the Customer's responsibility to backup data on the system. JAISPIRIT WILL NOT BE RESPONSIBLE FOR LOSS OF OR DAMAGE TO DATA OR LOSS OF USE OF ANY OF THE COMPUTER OR NETWORK SYSTEMS.
7.3 To receive service and support, the Customer is responsible for complying with the following:
(a) Prepare for the Call. The Customer can help the technician serve better if the Customer has the following information and materials ready when the call is made: the Customer System's invoice and serial numbers; service tag number; model number; the current version of the operating system being used; and the brand names and models of any peripheral devices (such as a modem, printer or scanner) being used.
(b) Explain the Problem to the Technician. The Customer should describe the problem the Customer is having with the System. Let the technician know what the error message is and when it occurs; what was being done when the error occurred; and what steps have already been taken to solve the problem.
(c) Cooperate with the technician. Listen carefully to the technician and follow the technician's directions.
(d) If the technician is unable to resolve the problem over the phone, the technician will recommend to the Customer the next course of action to be taken.
UNTIL THE CUSTOMER HAS COMPLIED WITH THE ABOVE PROCEDURES, JAISPIRIT CANNOT DISPATCH A SERVICE TECHNICIAN TO PERFORM ONSITE REPAIRS.
If the Customer connects any of the Products to any telecommunications system, the Customer shall be responsible for obtaining the consent of the owner of that system (if necessary) to such connection and complying with all conditions relating thereto.
9. FORCE MAJEURE
Neither party shall be liable for any delay in performing any of its obligations hereunder if such delay is caused by circumstances beyond the reasonable control of the party so delaying and such party shall be entitled to a reasonable extension of time for the performance of such obligations.
Each party shall treat as confidential all information obtained from the other pursuant to this Agreement which is marked "confidential" or the equivalent or has the necessary quality of confidence about it and shall not divulge such information to any persons (except to such party's own employees and then only to those employees who need to know the same) without the other party's prior written consent provided that this clause shall not extend to information which was rightfully in the possession of such party prior to the commencement of the negotiations leading to this Agreement, which is already public knowledge or becomes so at a future date (otherwise than as a result of a breach of this clause) or which is trivial or obvious. Each party shall ensure that its employees are aware of and comply with the provisions of this clause. If Jaispirit shall appoint any sub-contractor then Jaispirit may disclose confidential information to such sub-contractor subject to such sub-contractor giving an undertaking in similar terms to the provisions of this clause. The foregoing obligations as to confidentiality shall survive any termination of this Agreement.
11.1 Limited Warranty JAISPIRIT WARRANTS THAT SERVICES WILL BE PERFORMED IN A GOOD AND WORKMANLIKE MANNER. EXCEPT AS EXPRESSLY STATED IN THE PRECEDING SENTENCE, JAISPIRIT MAKES NO EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE SERVICES, INCLUDING BUT NO LIMITED TO ANY WARRANTY RELATING TO THIRD PARTY PRODUCTS, ANY WARRANTY WITH RESPECT TO THE PERFORMANCE OF ANY HARDWARE OR SOFTWARE USED IN CONDUCTING SERVICES, ANY EXPRESS OR IMPLIED WARRANTIES CONCERNING THE RESULTS TO BE OBTAINED FROM THE SERVICES OR WARRANTIES CONCERNING THE RESULTS TO BE OBTAINED FROM THE SERVICES OR THE RESULTS OF ANY RECOMMENDATION JAISPIRIT MAY MAKE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES CONCERNING THE PERFORMANCE, MERCHANTABILITY, SUITABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE OF ANY OF THE DELIVERABLES OR OF ANY SYSTEM THAT MAY RESULT FROM THE IMPLEMENTATION OF ANY RECOMMENDATION JAISPIRIT MAY PROVIDE. NOTHING IN THIS AGREEMENT OR ANY OTHER WRITTEN DOCUMENTATION OR ANY ORAL COMMUNICATIONS WITH CUSTOMER MAY LATER ALTER THE TERMS AND CONDITIONS OF THIS PARAGRAPH.
11.2 Jaispirit shall not be liable for any loss or damage sustained or incurred by the Customer or any third party (including without limitation any loss of use of the Products or loss of or spoiling of any of the Customer's programs or data) resulting from any lines down of or fault in the Products, unless such lines down or fault is caused by the negligence or willful misconduct of Jaispirit, its employees, agents or sub-contractors, or to the extent that such loss or damage arises from any negligent delay by Jaispirit in providing the particular Services purchased by the Customer and then only to the extent not excluded by this Agreement.
11.3 Jaispirit shall indemnify the Customer and keep the Customer fully and effectively indemnified against any loss of or damage to any property or injury to or death of any person caused by any negligent act or omission or willful misconduct of Jaispirit, its employees, agents or sub-contractors, or by any breach of its contractual obligations arising under this Agreement.
11.4 The Customer shall indemnify Jaispirit and keep Jaispirit fully and effectively indemnified against any loss of or damage to any property or injury to or death of any persons caused by any negligent act or omission or willful misconduct of the Customer, its employees, agents or sub-contractors or by any breach of its contractual obligations arising out of this Agreement.
11.5 Except in respect of injury to or death of any person, for which no limit applies, the respective liability of Jaispirit and the Customer under sub-clauses 11.1, 11.2, and 11.3 in respect of each event or series of connected events shall not exceed the charge made by Jaispirit to the Customer for the Services purchased by the Customer under the relevant Service Offering as evidenced on the Invoice.
11.6 Any service response times stated by Jaispirit in the Service Offerings are approximate only and shall not form part of the Contract. Jaispirit will use all reasonable endeavors to meet the stated response times; however Jaispirit shall not be liable for any direct or indirect loss or damage arising from its failure to meet such response times, howsoever occasioned.
11.7 Notwithstanding anything else contained in this Agreement, Jaispirit shall not be liable to the Customer for loss of business, profits or contracts or other indirect or consequential loss whether arising from negligence, breach of contract or howsoever.
11.8 Some Services may require Jaispirit to access hardware or software that is not manufactured by Jaispirit. Some manufacturers' warranties may become void if Jaispirit or anyone else, other than the manufacturer or its authorized representative, works on the hardware or software. JAISPIRIT DOES NOT TAKE RESPONSIBILITY FOR THIRD PARTY WARRANTIES OR FOR ANY EFFECT THAT THE JAISPIRIT SERVICES MAY HAVE ON THOSE WARRANTIES.
This Agreement shall commence when the Customer's order for Services is accepted by Jaispirit or on the date specified on the Invoice or the Invoice date, whichever is the earlier and shall remain in force for the period relevant to the Service Offering purchased by the Customer.
13.1 Notwithstanding anything else contained herein, this Agreement may be terminated:
(a) By Jaispirit forthwith on giving notice in writing to the Customer if the Customer shall fail to pay any sum due under the terms of this Agreement (otherwise than as a consequence of any default on the part of Jaispirit) and such sum remains unpaid for 14 days after written notice from Jaispirit that such sum has not been paid; or
(b) By either party forthwith on giving notice in writing to the other if the other commits any material breach of any of the terms of this Agreement (other than any failure by the Customer to make any payment due hereunder in which event the provisions of paragraph (a) above shall apply) and, in the case of a breach capable of being remedied, shall have failed within 30 days after the receipt of a request in writing from the other party so to do, to remedy the breach; or
(c) By either party forthwith on giving notice in writing to the other if the other shall have a receiver or administrative receiver appointed of it or over any part of its undertaking or assets or shall pass a resolution for winding up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a Court of competent jurisdiction shall make an order to that effect or if the other party shall become subject to an administration order or shall enter into any voluntary arrangement with its creditors or shall cease or threaten to cease to carry on business.
13.2 Any termination of this Agreement, howsoever occasioned, shall not affect any accrued rights or liabilities of either party, nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
Except as otherwise expressly provided for in this Agreement, no forbearance, delay or indulgence by either party in enforcing the provisions of this Agreement shall prejudice or restrict the rights of that party, nor shall any waiver of its rights operate as a waiver of any subsequent breach, and no right, power or remedy herein conferred upon or reserved for either party, is exclusive of any other right, power or remedy available to that party and each such right, power or remedy shall be cumulative.
Nothing in this Agreement shall affect the statutory right of a Customer dealing with Jaispirit as a consumer as defined in any consumer protection legislation intended to protect consumers in similar transactions.
16. ASSIGNMENT; SUBCONTRACTING
Unless otherwise provided in the Standard Service Description, SOW or Technical Specification Form, Customer may not assign this Agreement without the prior written consent of Jaispirit. Jaispirit has the right to subcontract the Services provided under this Agreement.
17.1 All notices which are required to be given hereunder shall be in writing and shall be sent to the address of the recipient set out in this Agreement or such other address as the recipient may designate by notice given in accordance with the provisions of this Clause. Any such notice may be delivered personally or by first class prepaid letter, telex or facsimile transmission and shall be deemed to have been served if by hand when delivered, if by first class post 48 hours after posting and if by telex or facsimile transmission when dispatched.
17.2 Any notice which affects the validity or existence of this Agreement shall be delivered personally or sent by registered letter post only.
If any provision of this Agreement (including terms contained in a relevant Service Offering) is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of this Agreement and the remainder of the provisions in question shall not be affected thereby.
The headings to the clauses of this Agreement are for ease of reference only and shall not affect the interpretation or construction of this Agreement.
The Information We Gather
Jaispirit may gather two types of information about web site visitors:
(1) Non-personally identifiable information: When visitors come to our web site, we may collect and aggregate information indicating, among other things, which pages of the web site were visited, the order in which they were visited and which hyperlinks were "clicked." Collecting such information may involve the logging of the IP addresses, operating system and browser software used by each visitor to the Jaispirit web site. Although such information is not personally identifiable, we can determine from an IP address a visitor's Internet Service Provider and the geographic location of his or her point of connectivity.
We may also use "cookies" - that is, small text files placed on a user's computer hard drive - to help us determine the type of content and sites to which a visitor to the Jaispirit site links, the length of time each visitor spends at any particular area of the Jaispirit site and the Jaispirit services visitors choose to use. Essentially, cookies are a visitor's identification card for the Jaispirit computers or servers that placed them there. Our cookies are only read by the server that placed them, and are unable to execute any code or virus. Cookies allow us to serve you better and more efficiently, and to personalize your experience at our web site. Nevertheless, you should be able to control how and whether cookies will be accepted by your web browser. For more information on how to do so, please refer to the documentation accompanying your browser. If you continue to use the Jaispirit site, we'll assume you are happy for your web browser to receive all cookies from our website.
(2) Personally identifiable information: Jaispirit may gather personally identifiable information on a subscription form. Subscribers may choose to "opt in" to receive newsletters, updates or promotional materials from Jaispirit. If you fill in one of our registration Jaispirit will not release any personally identifiable registration information regarding you to third parties without your prior consent. If you decide that you would like to discontinue receiving newsletters, updates or promotional materials from Jaispirit and/or its business partners, please contact us.
How We Use (And Do Not Use) The Information We Gather
(1) Non-personally identifiable information: We use non-personally identifiable information in aggregate form to build higher quality, more useful products by performing statistical analyses of the collective characteristics and behavior of our visitors, and by measuring demographics and interests regarding specific areas of the Jaispirit web site. We may provide statistical information based on this data to current and potential business partners.
The Jaispirit web site may contain links to other Internet web sites or documents contained therein, including sites which may or may not be owned or operated by Jaispirit. Unless otherwise explicitly stated, we are not responsible for the privacy practices or the content of such web sites, including such sites' use of any information (such as IP address, browser type or operating system) collected when visitors to the Jaispirit web site click through links to those sites. Even though such information might not identify you personally, we strongly encourage you to become familiar with the privacy practices of those sites.
(2) Personally identifiable information: Jaispirit may gather personally identifiable information on a subscription form. Subscribers may choose to "opt in" to receive newsletters, updates or promotional materials from Jaispirit. Jaispirit will not release any personally identifiable registration information regarding you to third parties without your prior consent. If you decide that you would like to discontinue receiving newsletters, updates or promotional materials from Jaispirit and/or its business partners, please contact us.
Also, Jaispirit may use subscribers' data to "pre-populate" forms which are displayed for the purpose of collecting individual data by Jaispirit and/or its business partners. In no case does pre-populating a form automatically transfer any data to Jaispirit or any third party. Only if a user voluntarily requests that such data be transferred will any transfer take place - for example, if/when a user clicks a "submit form" button or other button.
We reserve the right to release information contained within our access logs concerning any visitor when that visitor is in violation of our Terms of Service or other published guidelines, or engages (or is reasonably suspected of engaging) in any illegal activity, even without a subpoena, warrant or other court order, and to release such information in response to court and governmental orders, civil subpoenas, discovery requests and as otherwise required by law. We cooperate with law enforcement agencies in identifying those who may be using our servers or services for illegal activities. We also reserve the right to report any suspected illegal activity to law enforcement individuals or entities for investigation or prosecution.
Deleting Personal Information; Business Transfers
If you would like to have your personally identifiable information removed from Jaispirit’s database, please contact us, and we will use reasonable efforts to comply with your request. Keep in mind, however, that there will be residual information that will remain within Jaispirit’s databases, access logs and other records, which may or may not contain such personally identifiable information. The residual information will not be used for commercial purposes; however, Jaispirit reserves the right, from time to time, to recontact former subscribers of its web site.
In addition, we may sell or transfer assets or portions of our business as we continue to improve our product offerings. In such transactions, visitor information (whether non-personally identifiable or personally identifiable) may constitute one of the transferred business assets.