Polarin Agreement
1. Definitions
(a)"Affiliate" shall mean any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity; and “control” means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity.
(b) "CAF" shall mean the Customer Acquisition Form to be executed by the Customer for the subscribed Services as may be applicable. For avoidance of doubt, all Customers availing Services from LTC shall have to sign the CAF.
(c) "Customer" shall mean such customer as specified in the SOF/CAF, as may be applicable.
(d) "End User" shall mean any individual or entity to whom the Customer leases or provides any capacity or other service derived from the Service, in accordance with the terms of this Agreement, and subject to the conditions outlined in Clause 11.
(e) “Intellectual Property Rights” means all intellectual and industrial property rights and interests (including common law rights and interests) including, without limitation:
(f)“Party” shall mean Lightstorm Asia Pte. Ltd (“LAPL”) or any of its Affiliates or Customer individually.
(g)“Parties” LAPL and/or any of its Affiliates and the Customer and /or any of its Affiliates collectively.
(h) Polarin Platform shall mean Service Provider portal available on https://polarin.lightstorm.net
(i) “Service Provider” shall mean LAPL and/or its Affiliates. Currently, following entities are LAPL’s Affiliates: (a) Lightstorm Telecom Connectivity Private Limited (“LTC”); (b) Lighstorm Data Centres Private Limited (“LDC”); and (c) PT Lightstorm Indonesia Telekomunikasi (“LIT”).
(j) “Services” shall mean service as subscribed by the Customer from the Products Section i.e https://polarin.lightstorm.net/app/home
(k)“SOF”shall mean Service Order Form to be executed by the Customer for the subscribed Services in the format provided by the Service Provider.
(l) “Service Schedule” Service Schedule shall mean the applicable Service Schedule as available on https://polarin.lightstorm.net/service-level-agreement
2. Provision of the Services
(2.1) The Customer or the purchasing Affiliate of the Customer will be specified in the SOF/CAF, as may be applicable. If a Customer or an Affiliate of a Customer places a SOF/CAF pursuant to these terms and conditions with an Affiliate of the Service Provider, then references to “Customer” herein shall be deemed as references to the ordering Customer Affiliate and references to the Service Provider shall be deemed as references to the relevant Service Provider Affiliate accepting and/or providing Services, as the case maybe. Service Provider or its Affiliates provision of the Services is subject to the continuing availability of capacity and facilities and any end-of-life discontinuance. For avoidance of doubt, the Customer or Customer Affiliate ordering the Service and the Service Provider or its Affiliates actually providing the Services shall deemed to be the contracting party for the purpose of this Agreement.
(2.2) The Parties further agree and acknowledge that the relevant Service Provider Affiliate executing the CAF/SOF shall alone be bound by these terms and conditions and be solely responsible for complying with any obligations arising out such SOF / CAF and no liability shall flow to the Servicer Provider’s other Affiliates and/or entities.
3.Term and Renewal
3.1. The term of the Services shall be as opted by the Customer(s) while ordering the relevant Services.
3.2. The Customer can terminate or renew the Services as specified in the Subscription Section, https://polarin.lightstorm.net/app/knowledge-base/subscriptions
4. Service Activation Date
4.1. The Services shall be commenced and billed from the Service Activation Date, as defined in the Products Section of Knowledge Base https://polarin.lightstorm.net/app/knowledge-base/pricing-and-billing/billing
5. Charges
5.1. The subscribed Services shall be billed as per the Pricing and Billing Section. https://polarin.lightstorm.net/app/knowledge-base/pricing-and-billing/billing
6. Payment and Taxes
6.1. The Customer shall pay the charges for the subscribed Services and the applicable taxes as per the terms of the Pricing and Billing Section https://polarin.lightstorm.net/app/knowledge-base/pricing-and-billing/billing All invoices are due upon receipt, and payable by the Customer via electronic transfer within thirty (30) days of the invoice date. Additionally, in the event the Customer withholds taxes for cross border payments, the same shall be grossed up (to the extent of such deduction), while making payments to the Service Provider.
7. Termination and Suspension
(i) any material breach (including any failure to make outstanding payments by due date) which is not cured within thirty (30) days after receiving a written notice from Service Provider ;
(ii) violation or non-compliance of any applicable laws or illegal use of Services by the Customer or its End Users;
(iii) any insolvency, bankruptcy, assignment for the benefit of creditors, appointment of a trustee or receiver or similar event with respect to the Customer; or
(iv) any governmental prohibition or requirement of alteration of the Service which necessitates such termination or suspension.
7.3.1. any material breach by the Service Provider of any provision of the SOF/CAF, which is not cured within thirty (30) days after receiving written notice from the Customer; or
7.3.2. any insolvency, bankruptcy, assignment for the benefit of its creditors, appointment of a trustee or receiver or similar event with respect to the Service Provider.
Customer shall give notice to the Service Provider on the PolarinSupport@Lightstorm.net. Service Provider shall give notice to the Customer on the address and email id provided by the Customer during the KYC process. Cancellation of Service
The Customer’s request to disconnect a Service must be submitted through Service Provider’s Polarin Platform.
If the Customer cancels or terminates a Service availed under the Reserved Plan (as specified in the Subscriptions Section ) prior to the end of the reserved term of such Service for any reason (other than for reason as mentioned above in clause 7.3), the Customer shall be required to give at least 45 (forty-five) days prior notice. Further, the Customer shall be liable to pay the Charges for the unexpired reserved term as below:
- all unpaid, waived, discounted and/or amortized upfront fees associated with the terminated Service(s); plus
- subscription fees for in the terminated Service(s) for all remaining months of the unexpired balance of the Service Term of the terminated Service(s); plus
- to the extent greater than the amount in (a) and (b) above, the aggregate fees, charges, expenses, and taxes payable by the Service Provider (including, but not limited to, liquidated damages, and disconnection, early cancellation or termination charges payable to third parties) in connection with the cancelled or terminated Service(s).
Please refer to https://polarin.lightstorm.net/app/knowledge-base/subscriptions for further information on cancellation.
7.6. Save as provided under these terms and conditions and the Pricing Section, upon expiration of the Services’ term or termination of any Services, neither Party will owe the other any further duties, obligations, or consideration; provided, however, that expiration or termination of the Services will not affect the rights or obligations of either Party that have arisen before the date of expiration or termination, nor will the Customer or Service Provider be relieved of any liabilities arising prior to such expiration/termination. The Customer must pay for the Services until such disconnection of Services actually occurs if any delay in disconnection is due to the actions of the Customer or a third-party provider.
8. Service Performance and Maintenance
8.1. Service Provider shall provide the subscribed Services as per the service levels provided in the relevant Service Schedule . Any failure to maintain the subscribed Services as per the service levels shall be subject to the service credits specified in the Service Schedule.
8.2. Notwithstanding any other provision of this Agreement, the Service Provider shall have the right, from time to time, to reconfigure, modify, vary or otherwise alter the configuration of the Services, including by introducing new technology or modifying transmission characteristics, or substituting any capacity provided as part of the Service onto alternative fibre cables or route(s), or by replacing the infrastructure or cables comprising the Services with new infrastructure or cables, whether provided by Service Provider directly or supplied by a third party, and whether or not on the same route (each of the aforesaid being a reconfiguration), to the extent such actions do not materially adversely affect the Customer’s use of the Services. Service Provider shall give the Customer as much notice of any such reconfiguration as is reasonably practicable, but Service Provider shall not be liable for any costs, losses or expenses incurred by the Customer as a result of or in connection with any reconfiguration.
9. Force Majeure
9.1. Neither Party will be in default or otherwise liable for any service outage, delay, or failure of its performance under these terms and conditions or any SOF to the extent such Service outage, delay, or failure to perform arises by reason of any cause or circumstance beyond the reasonable control of the affected Party, including but not limited to, reason of act of God, adverse weather conditions, fire, flood, riots, strikes, accident, war, governmental requirement or any action of government in its sovereign capacity, action or inaction of a supplier or other third party (including but not limited to failure of an underlying third party provider to timely process an application), fiber or cable cut, subsea fiber damage, inability to secure materials, labour or transportation, epidemic or catastrophe (each constituting a “Force Majeure” ).
9.2. Any Party that is subject to an event of Force Majeure shall not be in breach of these terms and conditions provided that it promptly notifies the other Party in writing of the nature and extent of the event of Force Majeure causing its failure or delay in performance.
10.Limitation of Liability
10.1. Except as expressly set out in these terms and conditions, Service Schedule, and the applicable SOF, and to the extent permissible under applicable law, Service Provider does not make, and expressly disclaims and excludes to the fullest extent, any warranties, conditions, representations or other agreements, express or implied (either in fact or by operation of law, statutory or otherwise), to the Customer or any third party with respect to the Services.
10.2. In no event will Service Provider 's third-party suppliers be liable to the Customer or any other party for any loss or damage arising out of the provision of Services or equipment under these terms and conditions.
10.3. In no event shall either Party be liable to the other Party under any circumstances, howsoever arising out of, for any loss of actual or anticipated profit, loss of income or revenue, loss of goodwill or any other indirect, special, incidental, exemplary, punitive or consequential losses or damages. Subject to the foregoing, a Party’s liability for all direct damages related to an affected Services shall not exceed the sum actually paid by the Customer for such Service during (i) the period for which such Service was availed; or (ii) the six (6) months period preceding the date such claim first arose, whichever period is lesser.
10.4 Notwithstanding anything contained in these terms or in any other document, the Customer’s sole remedy for any Service related claims or failure or non-performance of the Service to meet the applicable service levels will be to receive a service credit as set out in the applicable Service Schedule.
10.5. Nothing in these terms and conditions will exclude or limit a Party’s liability for (i) wilful misconduct; (ii) death or bodily injury caused by a Party’s gross negligence; (iii) use of Service (or any service derived therefrom) for any illegal or unlawful purpose; (iv) any violation of applicable laws resulting in imposition of any penalties or fines by any regulatory or statutory authority; (v) payment of any charges which have already become due; or (vi) any other liability which cannot be excluded or limited by applicable law.
11. Customer's Responsibilities
11.1. The Customer acknowledges and agrees that:
11.1.1. the Customer is solely responsible for obtaining all licenses, approvals for its operation and the provision of the Customer’s services which incorporate Service Provider ’s Services for its End User and/or customers. The Customer shall use the Service only in accordance with, and subject to, all such applicable permits and shall not do or permit any act or omission that would cause Service Provider or any of its Affiliates to be in breach of any law applicable to Service Provider or any of its Affiliates in any jurisdiction;
11.1.2. the Customer is solely responsible for complying with all the applicable laws and shall not be involved: i) in any unlawful activity like sending unsolicited commercial messages or communications in any form ("SPAM"), falsifying user or other Service related information; ii) in any activity that threatens the integrity and/or security of any network or computer system (including, but not limited to, transmission of worms, viruses and other malicious codes and accessing any device or data without proper authorisation) etc.;
11.1.3. the Customer is solely responsible for obtaining all local permits, landlord consents, access licenses and permissions, and other consents and waivers necessary for installation of facilities and equipment to allow Service Provider to provide the Service and make use of the Service. Equipment used by the Customer or the Customer’s customers, suppliers, agents, employees or End Users in connection with any Service will not:
11.1.3.1. interfere with or impair service over any facilities and equipment of Service Provider and its suppliers;
11.1.3.2. impair the privacy of any communications carried over Service Provider’s Services; or
11.1.3.3. cause damage of any nature to the system or prejudice the proper use of the system by Service Provider or any third party;
11.1.3.4. create hazards to the employees of Service Provider or the public.
11.2 Subject to applicable laws and requisite approvals, the Customer shall be entitled to lease or provide any capacity or other service derived from the Service to End Users provided always that: (a) the use of such services by End Users shall be subject to these terms and conditions and the terms of the SOF. The Customer shall exclusively be responsible and liable for the acts or omissions of such End Users; and (b) the term of any lease or other agreement with the End User shall not be for a period that would expire after the term applicable to the relevant Service.
11.3 The Customer shall ensure that the Service is not used for any illegal or unlawful purpose and the Customer shall indemnify the Service Provider in respect of any third party claims arising from the Customer’s and/or End User’s use of the Service (or any service derived therefrom) including claims for defamation, libel, violation of the rights of privacy or any other tortious or illegal conduct. In addition to any other remedies available under these terms and conditions, Service Provider may, in its discretion, suspend Service upon the provision of 7 days prior or such other notice period as permissible by the concerned regulatory authorities, if the Customer does not comply with the foregoing sentences. Service Provider will have no liability to the Customer, or it’s End User, suppliers and/or customers arising from or relating to these terms and conditions or any SOF.
11.4 Service Provider will not be liable for any fraudulent use of the Services by the Customer or any third party, including, but not limited to, fraudulent calls. Service Provider has no obligation to investigate the authenticity of any use of the Services charged to the Customer’s account. The Customer will protect, defend, indemnify, and hold harmless Service Provider , its officers, directors, employees, contractors, and agents, from and against any and all liabilities, allegations, claims, losses, damages, expenses (including reasonable attorney’s fees and costs), judgments, and causes of action arising from or related to any claim relating to or arising from this Clause and/ or the acts or omissions of the Customer or its End Users.
12. Intellectual Property Rights and Third-Party Intellectual Property Infringement Claims in Respect of Service
12.1. Service Provider or its Affiliates or its vendors or subcontractors will retain ownership of all Intellectual Property Rights in any of the Service Provider ’s or its Affiliate’s or its vendors’ or subcontractors’ works that pre-exist or were developed outside these terms and conditions (“Pre-Existing Works”). Service Provider or its Affiliate hereby grants to the Customer a fully paid up, royalty free, worldwide, perpetual, irrevocable transferable and non-exclusive license to use (only to the extent required to use the Services) any and all such Pre-Existing Works of Service Provider or its Affiliates which is (a) included or embodied in the Services or (b) used to avail the Services, provided, notwithstanding the foregoing, the Customer shall not be entitled to provide, transfer, or distribute (whether directly or directly) any Pre-Existing Works or copies thereof in any form to third parties. Customer confirms and acknowledges that Service Provider or its Affiliate is not the original equipment manufacturer (“OEM”) of the software/ solution, if provided to the Customer as a part of any Services and/ or otherwise is made available as a part of Services to the Customer then it is on as is basis without any liability, whatsoever. In the event of a third-party claim of intellectual property infringement in such Services, Service Provider or its Affiliate will make available the remedies made available to Service Provider or its Affiliate by the OEM on as is basis and shall not be liable for any other or additional claims.
12.2. Where any person makes a claim for Intellectual Property Right infringement in connection with the provision of Services or materials/equipment supplied by Service Provider or its Affiliate, Service Provider or its Affiliate must perform one of the following, at its own expense, to avoid further infringement:
a) modify or replace the Services or material/equipment to avoid the infringement. Such modification or replacement must be accomplished in a manner that is reasonably acceptable to Customer and that does not impact the performance of the affected Services or material/equipment.
b) obtain a license or other right for the Customer to continue using the infringing Services or material; or
c) if neither Clause 12.2(a) or 12.2(b) can be achieved on reasonable commercial terms by Service Provider or its Affiliate using its best endeavours, Service Provider or its Affiliate shall so notify Customer and terminate such infringing Services.
Service Provider or its Affiliate shall not be liable for any infringement claims arising as a result of (a) any modification of the Services not made by Service Provider or its Affiliate, (b) work done by Service Provider or its Affiliate in accordance with specifications by or on behalf of Customer when such Customer’s specifications are outside of the normal specifications of Service Provider ’s or its Affiliate's Services, (c) use or combination of the Services in combination with products, equipment, software, or data not owned/ supplied/ licensed by Service Provider or its Affiliate, or (d) Customer ’s violation of applicable law.
13. Equipment and Location
13.1 The Customer will grant Service Provider , its agents and contractors, access to and use of the Customer’s facilities to the extent reasonably necessary for the installation, connection, removal, and maintenance of equipment, facilities, and systems relating to Services. The Customer will not allow or cause any service, facility, or equipment of Service Provider or its suppliers to be rearranged, moved, modified, repaired or relocated without Service Provider ’s written consent. the Customer will not create or allow any liens or other encumbrances to be placed on any such facilities or equipment of Service Provider or its suppliers. If the Customer relocates or changes the place of the Service provided under any SOF/ CAF, the Customer will pay all additional installation and related charges associated with such relocation. Service Provider may require the Customer, as a condition to receiving Service, to use customer premise equipment (CPE) supplied by Service Provider . Unless agreed otherwise between the Parties, all CPE will remain the exclusive property of Service Provider. The Customer will return disconnected or faulty CPE in accordance with Service Provider’s return merchandise authorization (“RMA”) process which includes completing the necessary forms and using the shipping label provided by Service Provider , if applicable. The Customer will pay the Service Provider the associated non-return fee for CPE specified in the related SOF/ CAF (or if no non-return fee is specified, the manufacturer’s suggested retail price as of the date of the related SOF/ CAF) that is (i) not returned to Service Provider within fifteen (15) days of the disconnection date or the date that the Customer receives new CPE to replace faulty CPE or (ii) damaged during return shipping to Service Provider. If the Customer takes ownership of CPE, the Customer will assist Service Provider with all administrative requirements associated with such ownership.
14.Confidentiality
14.1 For the purposes of this Agreement, “Confidential Information” shall mean and include but not be limited to all documents, papers, data base, correspondence and any other information relating to the disclosing party (“Disclosing Party”), its business, intellectual property, operation, clientele, customer data technical, scientific, strategic, financial, legal (including all intellectual property whether registered or not), commercial, regulatory, organizational, and/or operational information and including the existence of these terms and the terms of any supplemental document, work order, SOF/ CAF or statement of work, whether disclosed by or on behalf of the Disclosing Party and in any form of disclosure whether or not expressly identified as confidential etc., which may be disclosed or which the receiving party (“Receiving Party”) shall become privy to or get to know under this Agreement.
14.2 Receiving Party will hold Disclosing Party’s Confidential Information in confidence and will employ its commercially reasonable best efforts to implement security precautions to safeguard such Confidential Information from theft or from access by unauthorized persons.
14.3 Confidential Information shall not include information that is independently developed by recipient Party or is in public knowledge or is already in the possession of the recipient Party or is received by recipient Party from a third party. If recipient Party is required to disclose Confidential Information under a legal requirement, it shall provide prompt notice of the same to the disclosing Party. Confidentiality obligation shall survive for a period of 2 years from date of initial disclosure.
15. Assignment
15.1. The Customer shall not be entitled to assign its rights and obligations under these terms and conditions.
16. Warranties
16.1 Each Party warrants that: (a) it has full capacity, power and authority to enter into, and to perform its obligations under, this these terms and conditions; and (b) it shall perform its obligations under these terms and conditions in a manner consistent with applicable law.
16.2 Except as expressly set out in these terms and conditions, no warranties or representations are expressed or implied by Service Provider in relation to the Service, and any such warranties or representations are expressly disclaimed to the extent permitted by applicable law. Service Provider also, except to the extent expressly specified in these terms and conditions, disclaims any warranty or representation that the Services will be error free, secure or uninterrupted. In particular, the Customer acknowledges that Service Provider cannot guarantee, and nor is it liable for, any loss, damage or security of information or data transmitted using the Services.
17. General
17.1 In the event that any provision of these terms and conditions conflicts with the law under which these terms and conditions is to be construed or if any provision is declared invalid by a court with jurisdiction over the Parties to these terms and conditions, such provision will be deemed to be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law. Each provision of these terms and conditions is severable from the whole, and if one provision is declared invalid, the other provisions will remain in full force and effect. Failure of either Party to enforce any of the provisions of or its rights under these terms and conditions, or the waiver of such rights in any instance, will not be construed as a general waiver or relinquishment of any rights.
17.2 The representations, covenants, obligations, rights, and agreements of the Parties set out in these terms and conditions are not intended for, nor will they be for the benefit of or enforceable by, any third party or person not a Party to these terms and conditions including, without limitation, the Customer’s End User, suppliers and/or carrier customers. Under these terms and conditions, Service Provider will have no relationship with the End User’s.
17.3 The Customer will indemnify, defend, and hold harmless Service Provider from any losses, damages, costs or expenses resulting from any third-party claim or allegation arising out of any alleged or actual violation of these terms and conditions.
17.4 All Services are subject to these terms and conditions, Service Provider ’s operational, billing and payments, and service schedules, guides and service level agreement(s) applicable to the specific Service and are provided on the Polarin Platform (collectively a “Service Schedule”), the SOF/ CAF and any statement of work or other written instrument (collectively a “SOW”) between the Parties that applies to Services. Service Provider will provide the Customer with the Services as described on any SOF/ CAF. This Agreement, Service Schedule, SOF/CAF, and SOW along with the terms on the Polarin Platform constitute the entire agreement between the Parties with respect to the subject matter and supersedes any and all prior offers, communications, representations, understandings, and agreements, whether verbal or written, made between the Parties. Service Provider will not be bound by any provision in any purchase order, confirmation, correspondence or other communication from the Customer which is at variance with, in addition to, seeks to define or clarify, and/or conflicts with any provision of these terms and conditions, SOW, a Service Schedule, or any SOF/ CAF. . The order of precedence in interpretation will be (i) any SOF/ C; (ii) a SOW; (iii) a Service Schedule and then (iv) these terms and conditions.
17.5 Service Provider may for any operational reasons or change in applicable law, change the technical specification of a Service upon thirty (30) days advance written notice to the Customer. In the event, that the Customer does not accept the revised specifications for such Service, Service Provider and the Customer shall mutually discuss the agreeable specifications and in the event that the Parties are unable to agree, then Service Provider shall have the right to terminate the service upon thirty (30) days prior written notice to the Customer.
17.6 Any notice given or made under to these terms and conditions will be effective if in writing and delivered by electronic delivery (email) and delivered at the address and/or email id provided in writing by the Parties in the SOF/CAF.
17.7 The Parties will be considered independent contractors for the purposes of these terms and conditions and the relationship between the Parties will not be that of partners, agents, fiduciaries or joint venturers for one another, and nothing in these terms and conditions will be deemed to constitute a partnership, agency agreement, or joint venture between the Parties for any purpose whatsoever.
17.8 Both Parties shall at their own cost obtain and maintain the necessary insurance to cover all risks in respect of the provision or procurement of Services, personnel, materials and equipment used under the terms of these terms and conditions during the Term.
17.9 Provisions contained in these terms and conditions that by their sense and context are intended to survive completion, performance, termination, suspension, cancellation, or expiration of these terms and conditions will survive.
17.10 These terms and conditions along with the SOFs/ CAFs, or any other applicable incidental contract document that incorporates these terms and conditions by reference will be governed by the laws of Singapore, and any dispute or claim arising thereunder will be subject to the exclusive jurisdiction of the courts in Singapore. Notwithstanding the aforesaid, in case the Services are provided by LTC and LDC, this Agreement will be governed by the laws of India, and any dispute or claim arising thereunder will be subject to the exclusive jurisdiction of the courts in Delhi. Further, if the Services are provided by LIT, this Agreement will be governed by the laws of Indonesia, any dispute or claim arising thereunder will be subject to the exclusive jurisdiction of the courts of Jakarta.
17.11 Each Party will strictly comply with the applicable laws and regulations regarding telecommunication services and data privacy, as may be applicable. By sharing the personal information, relevant personnel of the Parties are considered to have authorized the gathering, utilization, and sharing of their respective personal data in association with business-related activities only in connection with this Agreement. Further, each Party shall comply with all applicable laws, statutes, regulations and sanctions relating to anti-bribery and anti-corruption including but not limited to the Indian Prevention of Corruption Act, 1988 and Prevention of Money Laundering Act, 2002, UK Bribery Act 2010 and US Foreign Corrupt Practices Prevention Act, 1977, as may be applicable. Any breach of this covenant shall be deemed a material breach entitling the non-breaching party to terminate the Services / these terms and conditions immediately without prejudice to other remedies such party may hold under law, equity or otherwise.
17.12 By entering into this Agreement, the Customer agrees that Service Provider can showcase the Customer’s logo on Service Provider ’s website. If, the Customer does not wish to grant this consent, the Customer shall notify the Service Provider in writing within 10 days of execution of this Agreement.
Service Provider reserves the right to amend and / or change these terms and conditions, Service Schedule and/or the SoW. Customer’s usage of the Service Provider’s Services shall deem to be Customer’s acceptance of these terms and conditions under this Agreement.
To be executed electronically over platform