Effective Date: 28th Jan 2021.
By accessing or using the Service(s) or Websites, or authorizing or permitting any User or End-User to access or use the Service(s) or Websites, You agree to be bound by these Terms. If You are entering into these Terms on behalf of a company, organization or another legal entity (an “Entity”), You are agreeing to these Terms for that Entity and representing to Us that You have the authority to bind such Entity and its Affiliates to these Terms, in which case the terms, “You”, “Your” or related capitalized terms used herein shall refer to such Entity and its Affiliates. If You do not have such authority, or if You do not agree with these Terms, You must not accept these Terms and may not access or use the Service(s) or Websites.
You, as an individual, must be 18 years or older to access or use the Websites and the Service(s).
Certain other services (“Other Services”) such as integrations, Apps and Custom Apps are made available to You through the Market Place or other forums where applications are developed for their integration with the Service(s). These Other Services are governed by their own terms and privacy policies and You agree that We are not responsible for Your use of these Other Services where You choose to enable these Other Services and integrate them into Our Service(s). By enabling the Other Services, You understand and agree that We do not provide any warranties whatsoever for Other Services and We are not liable for any damage or loss caused or alleged to be caused by or in connection with Your enablement, access or use of any such Other Services, or Your reliance on the privacy practices, data security processes or other policies of such Other Services. You understand that We are not responsible for providing technical support for Other Services and that We are not responsible for the data hosting and data transfer practices followed by providers of such Other Services. To this extent, You shall address any comments, queries, complaints or feedback about such Other Services to the respective developers or publishers as specified in the Market Place or other forums.
HOSTING AND OTHER PROVIDERS:
We use third-party hosting providers, other service providers and our Affiliates to provide the Services and Support in the ordinary course of its business, i.e., not specifically for Customer. The right to engage and substitute such provider vests with us but we shall remain responsible to the Customer for the provision of the services.
During Your Subscription Term, You may request Us to import data into Your Account (“Data Migration”). You hereby understand and acknowledge that We and/or Our Group Companies may access and process Your data in connection with providing You support during such Data Migration.
Apart from the communications specified in Our Privacy Notice, We may contact You directly via e-mail to notify You if
THE WEBSITES AND THE SERVICE(S), INCLUDING ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. WE EXPRESSLY DISCLAIM ANY AND ALL CONDITIONS, REPRESENTATIONS, WARRANTIES OR OTHER TERMS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.
YOU ACKNOWLEDGE THAT WE DO NOT WARRANT THAT THE SERVICE(S) OR WEBSITES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE AND YOU FURTHER ACKNOWLEDGE THAT WE DO NOT WARRANT THAT THE ACCESS TO THE SERVICE(S), WHICH IS PROVIDED OVER INTERNET AND VARIOUS TELECOMMUNICATIONS NETWORKS, ALL OF WHICH ARE BEYOND OUR CONTROL, WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE.
THE CONTENT ON OUR WEBSITES IS PROVIDED FOR GENERAL INFORMATION ONLY. IT IS NOT INTENDED TO AMOUNT TO ADVICE ON WHICH YOU SHOULD RELY. YOU MUST OBTAIN PROFESSIONAL OR SPECIALIST ADVICE BEFORE TAKING, OR REFRAINING FROM, ANY ACTION ON THE BASIS OF THE CONTENT ON OUR WEBSITES. NO INFORMATION OR ADVICE OBTAINED BY YOU FROM US OR THROUGH THE SERVICE(S) OR WEBSITES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE, OUR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO ANY PERSON FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST REVENUE, LOST SALES, LOST GOODWILL, LOSS OF USE OR LOST CONTENT, IMPACT ON BUSINESS, BUSINESS INTERRUPTION, LOSS OF ANTICIPATED SAVINGS, LOSS OF BUSINESS OPPORTUNITY) HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, WARRANTY, BREACH OF STATUTORY DUTY,NEGLIGENCE OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES OR COULD HAVE FORESEEN SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR AGGREGATE LIABILITY AND THAT OF OUR AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS, RELATING TO THE SERVICE(S), WILL NOT EXCEED AN AMOUNT EQUAL TO THE LOWER OF (A) TWELVE MONTHS OF THE SUBSCRIPTION CHARGES FOR THE SERVICE(S) TO WHICH THE CLAIM RELATES; OR (B) THE SUBSCRIPTION CHARGES PAID BY YOU, FOR THE SERVICE(S) TO WHICH THE CLAIM RELATES PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY.
IN JURISDICTIONS WHICH DO NOT PERMIT THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, OUR LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
THE LIMITATIONS AND EXCLUSIONS ALSO APPLY IF THIS REMEDY DOES NOT FULLY COMPENSATE YOU FOR ANY LOSSES OR FAILS OF ITS ESSENTIAL PURPOSE.
15.1 If use of the Service(s) by You has become, or in Our opinion is likely to become, the subject of any IP Claim (defined below), We may at Our own option and expense (a) procure for You the right to continue using the Service(s) as set forth hereunder; (b) replace or modify the Service(s) to make it non-infringing; or (c) if options (a) or (b) are not commercially and reasonably practicable as determined by Us, terminate Your subscription to the Service(s) and repay You, on a pro-rated basis, any Subscription Charges You have previously paid Us for the corresponding unused portion.
15.2 Indemnification by Us: Subject to Your compliance with these Terms, We will indemnify and hold You harmless, from and against any claim brought against You by a third party alleging that the Service(s) You subscribed to infringes or misappropriates such third party’s valid patent, copyright, or trademark (an “IP Claim”). We shall, at Our expense, defend such IP Claim and pay damages finally awarded against You in connection therewith, including the reasonable fees and expenses of the attorneys, provided that (a) You promptly notify Us of the threat or notice of such IP Claim; (b) We have or will have the sole and exclusive control and authority to select defence attorneys, defend and/or settle any such IP Claim; and (c) You fully cooperate with Us in connection therewith. We will have no liability or obligation with respect to any IP Claim if such claim is caused in whole or in part by (i) compliance with designs, data, instructions or specifications provided by You; (ii) modification of the Service(s) by anyone other than Us; or (iii) the combination, operation or use of the Service(s) with other hardware or software where the Service(s) would not by themselves be infringing.
15.3 Sections 15.1 and 15.2 state Our sole, exclusive and entire liability to You and constitute Your sole remedy with respect to an IP Claim brought by reason of access to or use of the Service(s) by You.
15.4 Indemnification by You: You will indemnify and hold Group Companies harmless against any claim brought by a third party against Us, and their respective employees, officers, directors and agents arising from or related to use of the Service(s) by You in breach of these Terms or matters which You have expressly agreed to be responsible pursuant to these Terms; provided that We promptly notify You of the threat or notice of such a claim.
16.1 You shall not, directly or indirectly, assign all or any Your rights under these Terms or delegate performance of Your duties under these Terms without Our prior written consent. We may, without Your consent, assign Our agreement with You under these Terms to any member of the Group Companies or in connection with any merger or change of Our control or the sale of all or substantially all of Our assets provided that any such successor agrees to fulfil its obligations pursuant to these Terms. Subject to the foregoing restrictions, these Terms will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.
16.2 These Terms, together with any Form(s) and Supplemental Terms, constitute the entire agreement, and supersede any and all prior agreements between You and Us with regard to the subject matter hereof. These Terms and any Form(s) shall prevail over the terms or conditions in any purchase order or other order documentation You or any Entity You represent provides (all such terms or conditions being null and void), and, except as expressly stated herein, there are no other agreements, representations, warranties, or commitments which may be relied upon by either party with respect to the subject matter hereof. In the event of a conflict between any Form and these Terms, these Terms shall prevail.
If any provision in these Terms is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by applicable law, and the remaining provisions of these Terms shall remain in effect. Our non-exercise of any right under or provision of these Terms does not constitute a waiver of that right or provision of the Terms.
The parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.
Sections 2 (Your Responsibilities), 5 (Intellectual Property Rights), 7 (Billing, Plan Modification and Payments), 8 (Suspension and Termination), 9 (Confidentiality), 10 (Data Privacy and Security), 13 (Disclaimer of Warranties), 14 (Limitation of Liability), 15 (Indemnification), 20 (Survival), 21 (Notices; Consent to electronic communication) and 23 (Governing Law and Dispute Resolution) shall survive any termination of Our agreement with respect to use of the Service(s) by You. Termination of such agreement shall not limit Your or Our liability for obligations accrued as of or prior to such termination or for any breach of these Terms.
21.1 All notices to be provided by Us to You under these Terms may be delivered in writing (i) by nationally recognized overnight delivery service (“Courier”) or mail to the contact mailing address provided by You on any while subscribing to the Service(s); or (ii) electronic mail to the e-mail address provided for Your Account.
21.2 Our address for a notice to Us in writing by Courier or Mail is: Flamenco Tech India Private Limited 731, 7th cross, 3rd Block, Koramangala Bengaluru, IN 560034 with a copy to firstname.lastname@example.org by electronic mail. All notices shall be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, two (2) business days after being deposited in the mail or with a Courier as permitted above.
Each Party agrees to comply with all Applicable Laws with respect to its performance of its obligations and exercise of its rights under this Agreement. Without limiting the foregoing:
Any dispute arising out of or in connection with this Agreement shall be referred to the arbitration of a Sole Arbitrator under the Arbitration and Conciliation Act, 1996. The seat and venue of arbitration shall be in Bangalore, Karnataka and the Courts in Bangalore, Karnataka shall have the sole and exclusive jurisdiction to decide and adjudicate all procedural and substantive issues arising out of the arbitral proceedings.
When used in these Terms with the initial letters capitalized, in addition to terms defined elsewhere in these Terms, the following terms have the following meanings:
Account: means any accounts or instances created by or on behalf of You for access and use of any of the Service(s).
Affiliate: means, with respect to a party, any entity that directly or indirectly controls, is controlled by, or is under common control with such party, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise.
Agent: means an individual authorized to use the Service(s) through Your Account for such Service(s) as an agent and/or administrator as identified through a User Login.
API: means the application programming interfaces developed, enabled by or licensed to Us that permits a User to access certain functionality provided by the Service(s).
API Policies: means the policies published on the Websites (as specified below) that govern the use of APIs, as updated from time to time.
Apps: mean the software applications listed on the Market Place which are created, developed, licensed or owned by Us or third party developers. The term also includes any updates, upgrades and other changes to such software applications and versions thereof.
Applicable Data Protection Law: where You are established in any other territory, means data protection laws that are applicable in that territory.
Confidential Information: means all information disclosed by You to Us or by Us to You which is in tangible form and labelled “confidential” (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure. For purposes of these Terms, Service Data shall be deemed Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include any information which (a) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (b) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (c) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party’s files and records prior to the time of disclosure; (d) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality; (e) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession; or (f) is required by law to be disclosed by the receiving party, provided that the receiving party shall, to the extent legally permitted, give the disclosing party written notice of such requirement prior to disclosing so that the disclosing party may seek a protective order or other appropriate relief.
Custom Apps: means an application developed specifically for a User of the Service(s) and not listed in the Market Place.
Data Processing Addendum: means the data processing addendum available here and as updated from time to time, which shall govern Service Data to the extent that it includes Personal Data and involves transferring such Personal Data outside the European Economic Area or Switzerland to any country not deemed by the European Commission as providing an adequate level of protection for personal data.
Data Retention Period: means the period of Service Data retention that is calculated from the date of termination of Your Account before its deletion from Service(s) during normal course of business operation.
Documentation: means any published data sheet provided by the Us detailing the functionalities of the Software.
End-User: means any person or entity other than You or Your Users with whom You interact using the Service(s).
Form: means any service order form referencing these Terms and executed or approved by You and Us with respect to Your subscription to the Service(s), which form may detail, among other things, the number of Users authorized to use the Service(s) under Your subscription to the Service(s) and the Service Plan(s) applicable to Your subscription to the Service(s).
Mobile Applications: mean the software applications created, developed and owned by Us to enable access and use of the Service(s) through mobile or other handheld devices (such as apps on iOS or Android devices).
Personal Data: means data relating to a living individual who is or can be identified either from the data or from the data in conjunction with other information that is in, or is likely to come into, the possession of the data controller (as defined under Applicable Data Protection Law).
Privacy Notice: means Our privacy notice at https://flamencotech.com/privacy/ as updated from time to time.
Processing/To Process: means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.
Service Data: means all electronic data, text, messages or other materials, including Personal Data of Users and End-Users, submitted to the Service(s) by You through Your Account in connection with Your use of the Service(s), including, without limitation, Personal Data.
Service(s): mean and include DB Spazio365 or any new services that We may introduce as a Service to which You may subscribe to and any updates, modifications or improvements to the Service(s), including individually and collectively, Software, the API and any Documentation. You may subscribe to one or more of the Service(s). They may be subject to separate and distinct Service Plans.
Service Plan(s): means the pricing plan(s) and the functionality and services associated therewith (as detailed on the Websites) for which You subscribe with respect to any User.
Software: means software provided by Us (either by download or access through the internet) that allows You to use any functionality in connection with the Service(s) and includes a Mobile Application.
Subscription Term: means the period during which You have agreed to subscribe to the Service(s) with respect to any individual User.
Us: means FlamencoTech, or any of its successors or assignees. In these Terms, Us may also be referred to as “We”, and “Our”.
User: means those who are designated users within the Service(s), including an Account administrator, Agents and other designated users.
Websites: means the websites for various Service(s) and other websites that FlamencoTech operates.