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TERMS AND CONDITIONS OF USE

Thank you for choosing Flowace.

Welcome to the Flowace Terms and Conditions of Use (“Terms”).

The Terms you see hereunder are important because they (i) Outline your legal rights on Flowace; (ii) Explain the rights you give to us when you use Flowace; (iii) Describe the rules everyone needs to follow when using Flowace; and (iv) Contain an agreement on how to resolve any disputes that may arise by arbitration.

Your use of Flowace is governed by the following Terms. By accepting the Terms or by using or by continuing to use Flowace, you acknowledge that you have read and understood the Terms, accept these Terms and agree to be bound by them. If you don’t agree with (or cannot comply with) the Terms, then you may not use Flowace. Therefore, please read the same carefully.

The Owner may modify or change the Terms or introduce any additional terms that apply to the Services from time to time to, for example, reflect changes to the law or changes to the Services. You agree and accept to check the Terms and the changes regularly. The Owner will post notice of modifications to the Terms on the Services. Changes to the Terms will become effective as soon as they are posted. Your continued use of Flowace subsequent to such change is construed as your acceptance of those changes.

If there is a conflict between the Terms and the additional terms, the additional terms will override the Terms. The Terms control the relationship between the Owner and the Customer and/ or the Users. They do not create any third-party beneficiary rights. If the User and/or the Customer does not comply with the Terms and the Owner refrains from taking action right away, it does not mean giving up/waiver of the right altogether that
the Owner possesses (such as taking action in the future) and non-applicability of a term or if it turns out that a term cannot be enforced, the other terms are to stay unaffected.

  1. INTRODUCTIONFLOWACE TECHNOLOGIES PRIVATE LIMITED, a company within the meaning of the Companies Act, 2013, having its registered office at Unit 116, Building No.2 (A-3), Sector I, Milennium Business Park, Mahape, Navi Mumbai, Thane 400 710 (hereinafter referred to as the “the Owner” / “We”/ “Us”, which expression shall unless it be repugnant to the context or meaning thereof be deemed to mean and include its successorsin-title and assigns).The Owner is the owner of or is otherwise well and sufficiently entitled to a software programme capable of performing the Services (as defined hereunder), which the Owner intends to exploit by commercial licensing of the same to various third parties.You have voluntarily agreed to subscribe to the Services for its utilization during the Term and for the Purpose as provided hereunder.(The Owner, the Customer and the User are hereinafter collectively referred to as “the Parties” and individually as “the Party”)
  2. DEFINITION AND INTERPRETATION
    1. “Affiliates” means any entity which directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with a party to this Agreement, by way of majority voting stock ownership or the ability to otherwise direct or cause the direction of the management and policies of such party, for so long as such control exists.
    2. “Confidential Information” means and includes all information of whatever nature used in or otherwise made available by the Disclosing Party to the Receiving Party, its Affiliates, its own/ its Affiliates’ directors, partners, officers, agents, employees, advisers, consultants by whatever name called (hereinafter referred to as “Representatives”) on and from the date hereof including any information which is disclosed in any tangible form and need not be specifically labelled or marked as confidential / proprietary or its equivalent, or all information concerning / provided by the Disclosing Party and/or its Affiliate(s), including without limitation, software and documentation, existing systems and computer software, future projects, business development or planning, commercial relationships and  negotiations, the marketing of goods or services (including customer names and lists, sales targets, statistics), financial projections, inventions, trade secrets, tie-ups, partnerships, agreements, contracts, arrangements, ventures and association with different brand, business operations, logistics, marketing, application and sale of products, information relating to the process, testing and applications, market information, customer information, raw material sources and advantages, prices and costs regarding product usage, market segments, potential location identification, customer requirements, competitive pricing, volumes, profitability, product performance and other data, processes, formulae, accounting practices, financial statements and other financial information, employees lists, salaries and benefits and all other data sent by the Disclosing Party and/ or its Affiliate(s), whether written, oral or on magnetic or other media exchanged between the Parties, on or after the date hereof, as nevertheless disclosed as a result of the Parties’ discussions. Explanation: “Disclosing Party” shall mean the Owner who is disclosing its Confidential Information to the User and/or the Customer and such User and/or the Customer being the Party to whom the information is so disclosed shall be referred to as “the Receiving Party”.
    3. “Compatible Device” means a hardware system (whether physical or virtual) with an internal storage device capable of running the Software and which includes (i) a switchedon desktop or laptop computer having a Windows/ iOS operating systems and an internet
      connection (“Desktop Device”); (ii) A switched-on smart phone having an android/ iOS operating system, internet connection, active phone connection over a GSM network and location tracking in active mode (“Mobile Device”).
    4. “Customer” means a natural or legal person that has a User Account. Each Customer may also be a User (i.e., a particular type of User) and, unless the context otherwise requires, should interpret the term “Customer” as referring specifically to him/her.
    5. “Purpose/s” means:
      1. collating and processing of data relating to tracking the time spent by a User on various work activities including tracking of idle time and providing the Customer with such data; and/or
      2. collating and processing of data relating to tracking the time spent by a User on various work activities including tracking of idle time and to provide Customers with a Billing Management Platform; and/or
      3. collation and processing of data relating to tracking precise or approximate location of the User from a Compatible Device and providing the Customer with such data; and/or
      4. use of any other function developed by the Owner in relation to the Services.
    6. “Services” means:
      1. a set of instructions instructing a Compatible Device to collate and process data relating to time-tracking of a User’s activities from a Compatible Device which summarizes the duration a User has spent on various work activities including idle time of such Compatible Device; and/or
      2. To provide Customers with a Billing Management Platform with a set of instructions instructing a Compatible Device to collate and process data relating to billing, based on various work activities undertaken by the User as mentioned here above; and/or
      3. a set of instructions instructing a Compatible Device to collate and process data relating to physical location from a Mobile Device.
    7. “Software” means the Owner’s time tracking software (currently branded as Flowace) to be downloaded and installed with Compatible Devices and such other developed computer programs as the Owner may make available in conjunction therewith, including such patches, updates, upgrades, other modifications and replacements thereof as the Owner may from time to time provide. Each of the foregoing may take the form of an on-demand service, a local installation or a combination thereof;
    8. “Term” means a continuous period mutually agreed between the Customer and the Owner for the utilization of the Services and as stipulated in this Agreement or in any other agreement entered between the Parties or as per the subscriptions to the Services, commencing from the date of installation of the Software.
    9. “User” / “Users” means natural living individuals above the age of 18 years who are authorized by the Customer or its Affiliate to install and use the Services pursuant to this Agreement or as otherwise defined, restricted or limited in an amendment to this Agreement, for whom subscriptions to the Services have been procured. Users include but are not limited to the Customer’s employees, consultants, contractors and agents.
    10. “User Account” means a Service user account whose purpose is to allow its holder to use one or more Services (i.e., enjoy the end-user benefits thereof);
  3. USING OUR SERVICES
    1. These Terms agreed by the Customer and the User are made in order to enable the Software provided by the Owner to attain the said Purpose.
    2. The Customer shall provide accurate, current and complete information on Customer’s legal business name, address, email address, and phone number, and maintain and promptly update this information if it should change.
    3. By installing or availing the Services or Flowace, you give us the permission to use the processor, bandwidth, and storage hardware on your Compatible Device in order to facilitate the operation of the Services.
    4. The Customer shall authorize access to and provide unique login details to the Users and shall ensure that there is no unauthorized access to or use of the Services. Further, the Customer shall promptly notify the Owner of any unauthorized access or use of the Services and any loss or theft or unauthorized use of any User’s name or password
    5. The User agrees, undertakes and assures that the Services have been downloaded and installed by him/her on a Compatible Device and shall ensure that the Software is always running on a Compatible Device.
    6. The User must follow any policies made available to them within the Services.
    7. The User agrees not to misuse the Services. The Users shall not use such Services in a way that prevents them from obeying any applicable laws. Users may use the Services only as permitted by law, and as per the terms mentioned hereunder and any deviation or misuse by the User will result in the breach by the Customer.
    8. The User and/or the Customer shall not use these Services in ways that:
      1. violate, misappropriate or infringe the rights of the Owner;
      2. are illegal, obscene, defamatory, abusive, pornographic, threatening, intimidating, harassing, hateful, racially, or ethnically offensive, or instigate or encourage conduct that would be illegal, or otherwise inappropriate, including promoting violent crimes or intended to promote or commit an illegal act of any kind, including violations of intellectual property rights, privacy rights, or proprietary rights of the Owner or a third party;
      3. involve publishing falsehoods, misrepresentations, or misleading statements;
      4. impersonate someone or misrepresent your affiliation with another User, person, or entity, or is otherwise fraudulent, false, deceptive, or misleading;
      5. involve sending illegal or impermissible communications; and
      6. involve any non-personal use of the Services unless otherwise authorized by the Owner.
      7. remove or alter any copyright, trademark, or other intellectual property notices contained on the Services or provided through the Services;
      8. includes malicious content such as malware, Trojan horses, or viruses, or otherwise interferes with any User’s access to the Services;
      9. is intended to or does harass or bully other users;
      10. involves the transmission of unsolicited mass mailings or other forms of spam (“spam”), junk mail, chain letters, or similar;
      11. involves commercial or sales activities, such as advertising, promotions, contests, sweepstakes, or pyramid schemes, that are not expressly authorized by the Owner;
      12. links to, references, or otherwise promotes commercial products or services, except as expressly authorized by the Owner;
      13. interferes with or in any way disrupts the Services, tampers with, breaches, or attempts to probe, scan, or test for vulnerabilities in the Services or the Software, the network, or any of Flowace’s security components, authentication measures or any other protection measures applicable to the Services, the content or any part thereof; or
    9. The User and/or the Customer shall not either directly, indirectly or through automated means do and/or permit and/or cause the doing of the following for any reason whatsoever:
      1. reverse engineer, decompile, disassemble, alter, modify, create derivative work or extract code from the Software and/or Services;
      2. access, use, modify or prepare derivative works based on license, sub-license, transfer or otherwise exploit the Services in impermissible or unauthorised manner or in ways that harms the Owner, the Services, the Software, the system  or any other Users
      3. send, store or transmit viruses or other harmful computer code through or onto the Software and/or Services;
      4. gain or attempt to gain unauthorised access to the Software and/or Services orcircumvent any technology used by the Owners to protect the Services;
      5. collect information about other Users in any unauthorised or automated manner; and
      6. distribute or make the Software and/or Services available over a network where they could be used unauthorizedly or by multiple devices at the same time.
      7. using Flowace to import or copy any local files that you do not have the legal right to import or copy;
      8. copy, redistribute, reproduce, ‘rip’, record, transfer, perform or display to the public, or making available to the public any part of the Services, or otherwise making any use of the Services which is not expressly permitted under the said Terms or applicable law or this Agreement;
      9. selling, renting, sublicensing or leasing of any part of the Services, unless prior written approval of the Owner has been obtained;
      10. circumventing any territorial restrictions applied by Flowace or the Owner;
      11. artificially or otherwise manipulating the Services by (i) using any bot, script or other automated process; (ii) providing or accepting any form of compensation (financial or otherwise), or (iii) any other means;
      12. circumvent or block advertisements in the Services, or create or distribute tools designed to block advertisements in the Services;
      13. providing your username or password to any other person or using any other person’s username and password;
      14. ‘crawling’ the Services or otherwise using any automated means (including bots, scrapers, and spiders) to view, access or collect information from Flowace or the Services; or
      15. Interfere with the Services or try to access them using a method other than the interface and the instructions that the Owner provides.
    10. In connection with the use of Services, the Users may receive service announcements, administrative messages, and other information. Users cannot opt out of any of those communications.
    11. The Services may be availed by the Customer for only the Term. The Customer shall pay for the use of the Services during the Term at the time of installation of the Services as specified by the Owner. The Owner shall be entitled to increase the Consideration for any future use beyond the Term for which it has been paid in advance.
    12. The Users and/or the Customers agree not to use the Services after the Term and agree to uninstall the Services at the end of the Term.
    13. The Users and/or the Customers might receive warnings from the Software about such security threats and suggestions to removal or blocking of such services from the User’s device. The Customer and/or the User agrees not to remove or block the Services, unless instructed by the Owner
    14. None of the Services are intended for use in the operation of nuclear facilities, life support systems, emergency communications, aircraft navigation or communication systems, air traffic control systems, or any other such activities in which case the failure of the Services could lead to death, personal injury, or severe physical or environmental damage.
  4. MODIFYING AND TERMINATING OUR SERVICES
    1. The Owner is constantly changing and improving the Software and the Services. The Owner will make reasonable efforts to keep Flowace operational. However, certain technical difficulties, maintenance or testing, or updates required to reflect changes in relevant laws and regulatory requirements, may, from time to time, result in temporary interruptions or the Owner may add or remove functionalities or features and it may suspend or stop the Services altogether at its sole discretion.
    2. The Owner reserves the right, periodically and at any time, to modify or discontinue, temporarily or permanently, functions and features of the Services, with advance notice where possible, all without liability to you, for valid reasons such as in case of genuine interruption, modification, or discontinuation of the Services or any function or feature thereof, or need to repair, maintain or improve the existing functions or features, or to add new functions or features to the Services, or to implement advancements in science and technology or ensure the operability or the security of the Services, legal and regulatory reasons.
    3. The Owner reserves the right to suspend Customer’s and/or User’s and any Customer Affiliates’ access to and/or use of the Services if any payment is due but unpaid however the Owner is not liable to give the Customer any advance notice. The Customer agrees that Owner shall not be liable to the Customer and/or the User and/or to any Customer Affiliates’ or other third party for any suspension pursuant to this Clause.
    4. The Owner may without notice to the Customer suspend access to the Service if the Owner reasonably concludes that Customer’s Service is being used to engage in denial of service attacks, spamming, or illegal activity or in breach of the Terms, and/or use of Services by the Customer or the User or the Customers Affiliates’ is causing immediate, material and ongoing harm to the Owner or others
    5. The Owner reserves the right to terminate the right of the Users and/or the Customers to use the Services during the Term in the event that there is a misuse or breach by the Users and/or the Customers of the Terms or this Agreement or any applicable law or an attempt by the User and/or the Customer to tamper with the Software (also referred to as the “App”) or commit or cause to commit or permit the commission of any unauthorised use of the Software and the Owner may forfeit the amounts paid by the Customer to the Owner.
  5. LICENSES
    1. Rights of the Owner
      The Owner owns all copyrights, trademarks, domains, logos, trade dress, trade secrets, and other intellectual property rights associated with the Services. The User and/or the Customer shall not use such copyrights, trademarks, domains, logos, trade dress, patents, and other intellectual property rights unless they have express permission from the Owner.
    2. Owner’s License to the users
      The Owner grants the User and/or the Customer a limited, revocable, non-exclusive, non-sublicensable, and non-transferable license to use the Services, subject to and in accordance with the terms mentioned under this Agreement. This license is for the sole purpose of enabling the User and/or the Customer to use the Services, in the manner permitted by the Terms. No licenses or rights are granted to the User and/or the Customer by implication or otherwise, except for the licenses and rights expressly granted by the Owner.
    3. Using the Services does not give Users and/or the Customers ownership to the Software or the Services or license of any intellectual property rights in the Services they access. These terms do not grant Users and/or the Customers the right to use any branding or
      logos used in the Services and they shall not remove, obscure, or alter any legal notices displayed in or along with our Services.
    4. The Services are the property of the Owner. The Software/ Services / Flowace is not sold or transferred to you, and the Owner even after installation on your Compatible Device.
    5. You may use the Services only for achieving the said Purpose and as expressly authorized by the Owner, in the manner contained in this Agreement. Except for achieving the said Purpose and as per the terms of this Agreement, the Owner grants you no right, title or interest in the Software/ Services/ Flowace.
  6. USE OF LOCATION AND PERSONAL INFORMATION
    1. Data Controller and Transfer
      The Owner is the data controller for the personal data collected in connection with use of the Services.
    2. Collection of Personal Location Data
      1. . Your location may be available to us through any of the following instances (together: your “Location”):
      2. We may collect your exact location, via your Compatible Device, which permission will be deemed to have been provided upon your using of Flowace and your consent to share your location with the Services (in relation to which Software Development Kits (“SDK”) are installed or embedded in). Please note that we collect real time location.
      3. We may assume your location, if you are connected to a Wi-Fi whose assumed location is known to us.
      4. We may assume your location by collecting the data with respect to the network cell which you are connected to, if the location of that cell is known to us.
      5. Your country, city and region may be available to us from your Internet Protocol (“IP”) collected by the SDK or other Data Sources or from other data shared with us by third parties (for example through Real-Time Bidding (RTB) integration).
      6. Please note that by disabling your geo-location permission to the Services (through the Mobile Device operating system), your location may still be assumed and/or collected by us from other available sources detailed hereinabove.
      7. We may collect data about the devices used to access our services, including the hardware models, device IP address, operating systems and versions, software, preferred languages, unique device identifiers, advertising identifiers, serial numbers, device motion data, and mobile network data.
      8. The Owner may combine the data collected from these sources with other data in its possession.
    3. Collection of Other Personal Data
      1. We collect ‘Personal Information’, i.e., the information that can be associated with a specific person and could be used to identify that specific person whether from that data, or from the data and other information that we have, or is likely to have access to in the course of negotiating, preparing, concluding and amending agreements. For example, when you register for a User Account, we ask you to give us your full name, email address, country of residence and time zone, and you may also upload a profile picture. We do not consider Personal Information to include information that has been made anonymous or aggregated so that it can no longer be used to identify a specific person, whether in combination with other information or otherwise.
      2. We ask for billing information from the Customer who subscribes to our Services. We ask for the full name, physical address, e-mail address and Goods and Service Tax (GST) number of the subscriber.
    4. The Flowace app has access to the following, which you hereby acknowledge and accept:
      1. Identity
        1. find accounts on the device
      2. Calendar
        1. read calendar events plus confidential information
        2. add or modify calendar events and send email to guests without owners’ knowledge
      3. Contacts
        1. find accounts on the device
        2. read your contacts
        3. modify your contacts
      4. Location
        1. approximate location (network-based)
        2. precise location (GPS and network-based)
      5. Phone
        1. directly call phone numbers
        2. read call log
        3. read phone status and identity
      6. Photos / Media / Files
        1. read the contents of your USB storage
        2. modify or delete the contents of your USB storage
      7. Storage
        1. read the contents of your USB storage
        2. modify or delete the contents of your USB storage
      8. Camera
        1. take pictures and videos
      9. Wi-Fi connection information
        1. view Wi-Fi connections
      10. Device ID & call information
        1. read phone status and identity
      11. Other
        1. display unauthorized windows
        2. update component usage statistics
        3. modify secure system settings
        4. receive data from Internet
        5. view network connections
        6. pair with Bluetooth devices
        7. access Bluetooth settings
        8. connect and disconnect from Wi-Fi
        9. full network access
        10. run at startup
        11. draw over other apps
        12. control vibration
        13. prevent device from sleeping
        14. modify system settings
        15. read Google service configuration
    5. Use of Personal DataAll personal data and information including Personal Location Data and Personal Information is hereinafter referred to as “Personal Data”.

      1. Main use of the Personal Data collected:
        1. To create and update User accounts
        2. To offer, process and facilitate payments of their Services
        3. To provide the Services and improve the same
        4. To inform you about the details of your Service plans; and
        5. Perform internal operations necessary to provide our Services, including to troubleshoot software bugs and operational problems; to conduct data analysis, testing, and research; and to monitor and analyze usage and activity trends.
      2. Other Use of the Personal Data collected
        1. To enhance the security of our Services
        2. For customer support
        3. For research and development
        4. To enable communications with User and/or Customer
        5. To send marketing and non-marketing communications to User and/or Customer
        6. In connection with legal proceedings
    6. Privacy
      1. We view protection of Your privacy as a very important principle. We understand clearly that You and Personal Data is one of our most important assets. We store and process your Personal Data, if any, on computers that may be protected by physical as well as reasonable technological security measures and procedures.
      2. We and our Affiliates will share / sell / transfer / license / covey some or all of your Personal Data with another business entity should we (or our assets) plan to merge with or are acquired by that business entity, or re-organization, amalgamation, restructuring of business or for any other reason whatsoever. Should such a transaction or situation occur, the other business entity or the new combined entity will be required to follow the privacy policy with respect to your Personal Data.
      3. The User and/or Customer hereby expressly waive all claims to Personal Data during such time as the App is running on his/her Compatible Device. The User and Customer hereby consent to use this Software and to the collection and use of their Personal Data for the provision of the Services and relinquish their right to privacy in order to allow the Services to operate effectively and efficiently. The details of the Personal Data collected and the manner in which it will be used is  more fully set out in our Privacy Policy. If you object to your Personal Data being transferred or used in this way, please do not use Flowace.
    7. Use of Cookies
      1. Cookies are small text files that are stored on the browser or device by websites, apps, online media, and advertisements that are used to remember User’s and Customer’s browser or device during and across website visits. The Owner might also utilize other technologies that may identify the User or the devices they use. The Owner and their affiliates, third parties, and other partners use cookies and other identification technologies on their websites, mobile applications, desktop applications and other online services for a number of purposes, including: authenticating Users and Customers, remembering User and Customer preferences  and settings, determining the popularity of content, and generally understanding the online behaviours and interests of people who interact with their website, mobile application, desktop applications and other online services.
      2. The User does waive his/her right to choose whether or not to accept cookies during the Term. The details of the cookies used by the Owner and the choices available to the User and/or the Customer are more fully set out in the Cookie Notice.
  7. OBLIGATIONS, REPRESENTATIONS AND WARRANTIES OF THE USER AND THE CUSTOMER
    1. The User and Customer have expressly given their consent to the collection, utilization and provision of their Personal Data and the Owner may use any Personal Data to run the Services;
    2. The User and Customer shall not withdraw all or part of their consent to the collection, utilization and provision of Personal Data at any time.
    3. The User and Customer shall not demand that the Owner should temporarily or otherwise suspend the collection, utilization and/or provision of Personal Data. The Owner shall not be required to entertain any such requests.
    4. The User and Customer shall not require the Owner to give inspection or notification of any information, or the correction of any errors that the data may contain. In this event, the Owner shall be entitled to refuse such requests without any justifiable ground.
    5. The Owner shall be entitled to provide Personal Data as directed by the Customer without the User’s consent. In case of such provision, it shall not be required to notify to the User the information recipient and the purpose of provision.
    6. The Owner may record and store any data that confirms the collection, utilization and provision of Personal Data and the Customer consents to the same.
    7. The User and Customer hereby agrees and consents to their Personal Data being used by the Owner for developing the App and improving the quality of the Services.
    8. The User and Customer by using the Software, are deemed to have provided their approval for their Personal Data to be utilised by the Owner for research to improve the quality of the Services.
    9. The User and Customer agree to downloaded and install the Flowace App by accepting all permissions and requests on both the Mobile Device and Desktop Device.
    10. The User and the Customer agree and represent that the User is a living individual above the age of 18 years and not a machine or a robot or a spider or a device and have the power to enter a binding contract with us and not barred from doing so under any applicable laws.
    11. The Customer agrees and represents that he/ it is a person /entity which has authorized use and access to the User.
    12. The User and the Customer agree and covenant not to turn off the internet connection, uninstall and/or tamper with the Software on the Compatible Device to ensure smooth functioning of the Software;
    13. The User and the Customer agree and covenant not to turn off the Location Permissions/ GPS of their Mobile Device.
    14. The Customer shall provide accurate, current and complete information on Customer’s legal business name, address, email address, and phone number, and maintain and promptly update this information if it should change.
    15. The User and the Customer hereby agree and covenant to ensure that all data being communicated by them to the Owner are true and correct, and they will do nothing to voluntarily communicate false or misleading data to the App or Owner.
    16. The Customer shall authorize access to and provide unique login details to the Users and shall ensure that there is no unauthorized access to or use of the Services. Further, the Customer shall promptly notify the Owner of any unauthorized access or use of the Services and any loss or theft or unauthorized use of any User’s name or password.
    17. The User agrees, undertakes and assures that the Services have been downloaded and installed by him/her on a Compatible Device and shall ensure that the Software is always running on a Compatible Device.
    18. The User agrees and undertakes to follow any policies made available to them within the Services.
    19. The User and Customer undertake that the representations made by them herein are true and correct and shall continue to so remain during the Term.
  8. LIMITATION OF LIABILITY OF THE OWNER FOR SERVICES
    1. The Owner shall not be liable (under any theory of liability), neither to the User nor the Customer or anyone else, for any undesirable consequences, including any loss or damage of whatever nature, whether foreseeable or not and even if advised of the danger thereof, that result from (i) any installation, implementation, upgrade, downgrade, modification or customisation of the Software not carried out by the Owner, (ii) failure to use a Service in accordance with this Agreement or applicable law, (iii) using a Service in conjunction with an item not provided or approved by the Owner, (iv) using a third-party item in conjunction with a Service not in accordance with the relevant thirdparty documentation or instructions, (v) not applying an available fix, patch, update, service pack or upgrade that would have avoided the harmful event, (vi) inherently dangerous application of any of the Service or anything else provided hereunder, (vii) any unauthorised accessing or use of a User Account, (viii) any unauthorised use of any User’s or Customer’s credentials, (ix) any communication received or transaction entered into through or by means of the Service, (x) anyone’s statements or conduct on any site, page or other medium forming part of the Service, or (xi) anything attributable to anyone other than the Owner;
    2. The Owner, and any of its Representatives, will not be responsible for lost data, direct or indirect financial losses, special, consequential, exemplary, or punitive damages whatsoever and the User and the Customer expressly waives its rights in relation to any such claim. To the extent permitted by law, the total liability of the Owner, and its Representatives, for any claims under these terms, including for any implied warranties, is limited to 10% (ten per cent) of the amount paid by the Customer to the Owner for the Services. In all cases, the Owner and its Representatives, will not be liable for any loss or damage that is not reasonably foreseeable.
  9. WARRANTY DISCLAIMER
    1. You understand and agree that the Services are provided “as is” and “as available,” without express or implied warranty or condition of any kind. The Owner make no representations and disclaim any warranties or conditions of satisfactory quality, merchantability, fitness for a particular purpose, or non-infringement. The Owner does not warrant that the Flowace service is free of malware or other harmful components. In addition, the Owner makes no representation nor does it warrant, endorse, guarantee, or assume responsibility for any third party applications (or the content thereof), user content, devices or any other product or service advertised, promoted or offered by a third party on or through the Services or any hyperlinked website, or featured in any banner or other advertising.
    2. No advice or information whether oral or in writing obtained by you from the Owner or Flowace shall create any warranty on behalf of the Owner. Your use of the Services or the Software is at your sole risk.
    3. You further acknowledge that the Owner is not liable, and you agree not to hold the Owner  liable, for the conduct of third-parties, including other Users of the Services and other third-party sites, and that the risk of using or accessing the Services, and of injury from the
      foregoing, rests entirely with you.
  10. CONFIDENTIAL INFORMATION
    1. The Owner may, at various stages, disclose Confidential Information (as defined below) to the User and/or the Customer in the ordinary course of business inter alia in relation to the use of the Services. It is understood and agreed by and between the Parties that the Confidential Information shall be reviewed and used by the User and the Customer solely for the said Purpose on the terms and conditions hereinafter appearing.
    2. Use and handling of Confidential Information

      1. It is acknowledged and agreed by both Parties that it is imperative that all Confidential Information remains confidential. The Receiving Party acknowledges that it and its Representatives shall use the Confidential Information solely for the Purpose of the Disclosing Party and / or its Affiliates and that neither the Receiving Party nor any of its Representatives will isclose any Confidential Information in any manner whatsoever to any third party except as provided for herein. The Receiving Party and its Representatives further agree that they will implement appropriate procedures and disciplines (comparable to the procedures and disciplines used by them to protect their own confidential information) to safeguard against improper disclosure of he Confidential Information.
      2. The Receiving Party may disclose Confidential Information to its Representatives, (i) who are by or under a contract of employment or otherwise bound or required to maintain and keep secret and confidential the Confidential Information, and (ii)who require access to the Confidential Information for the Purpose; provided that,prior to receiving access to any of the Confidential Information, such person or entity agrees with the Receiving Party to be bound by this Agreement either by entering into a written confidentiality agreement with the Receiving Party on the terms and conditions consistent with the terms and conditions of this Agreement.
      3. The Receiving Party and its Representatives will not use or allow the use for any purpose whatsoever of any Confidential Information or notes, summaries or other material derived therefrom, including information on any computer mainframe or disk, word processor or other device containing such information (collectively, “Notes”) except for the Purpose.
      4. The Receiving Party and its Representatives will not make or allow to be made copies of any Confidential Information except in the form of Notes made by the Receiving Party or the Receiving Party’s Representatives or as the Disclosing Party may specifically authorize in writing.
      5. Each of the Parties agree that, without the prior written consent of the other Party, such Party and its representatives shall not disclose to any third person (including by issuing a press release or otherwise making any public statement or otherwise), prior to the time of public announcement of a definitive written agreement between them with respect to a transaction, the fact that the Confidential Information has been requested by, made available to or provided by it, the fact that discussions or negotiations are taking place or have taken place concerning a possible transaction between the Parties, or the existence of this Agreement or anything that might identify the Company as exploring or having explored a possible transaction.
      6. The Receiving Party and its Representatives shall maintain a record of the entities/persons to whom the Confidential Information has been disclosed. This record shall be promptly made available to the Disclosing Party, upon request.
      7. Both Parties agree and undertake that the Receiving Party shall be responsible for any breach of this Agreement by the Receiving Party or the Receiving Party’s Representatives and the Receiving Party shall, at the request of the Disclosing Party and at the Receiving Party’s own expense, take such reasonable steps as the Disclosing Party may require to enforce the said obligations. Further, the Receiving Party agrees to take at its sole cost and expense, all necessary measures to restrain the its Representatives from any disclosure or use of the confidential Information that is not permitted by this Agreement, including the initiation of court proceedings.
      8. All intellectual property of any nature whatsoever in relation to the Services shall be owned by the Owner exclusively and the User shall not claim any right title or interest thereto by virtue of having given any suggestions to the Owner or otherwise whatsoever. The User undertakes not to copy or in any manner infringe the copyright contained in the Services or use the Services for any reason other than for his own use on its systems and for carrying on its own business.
    3. Limitations on Obligations with Respect to Confidential Information

      Notwithstanding anything contained herein, the obligation of confidentiality under this
      Agreement shall not apply to Receiving Party if:

      1. the Confidential Information is or becomes public knowledge through no breach of this Agreement by the Receiving Party or the Receiving Party’s Representatives;
      2. the Confidential Information is publicly disclosed (i.e. not under adequate protective order) by the Receiving Party under an order of a court or government agency, provided that, the Receiving Party provides prior written notification to the Disclosing Party of such obligation and takes all steps to oppose such order; or
      3. explicitly approved for release by written authorization of the Disclosing Party.
    4. Right to Information

      All rights in relation to the Confidential Information (including any intellectual property rights) are reserved by the Disclosing Party and/ or its Affiliates. Other than those rights and obligations expressly recited herein, the disclosure of any Confidential Information hereunder, shall not be construed as express and implied transfer of the rights of the Disclosing Party and/ or its Affiliates, including but not limited to any rights of ownership of such Confidential Information, or rights to any invention, patent, copyright or other intellectual property right now or in the future held or licensable by the Disclosing Party and/ or its Affiliates; nor shall this Agreement, or such disclosure, constitute any representation, warranty, assurance, guarantee or inducement by the Disclosing Party and/ or its Affiliates with respect to infringement of patent or other rights of any third parties.

    5. Return of Materials
      1. Upon the request by the Disclosing Party, the Receiving Party and the Receiving Party’s Representatives should at their sole election, and in any event within 2 (two) days of such request either (i) return or (ii) destroy all Confidential Information including all documents and other materials containing all Confidential Information in physical or electronic form in its possession, including all written materials, records, software, and other documents made by the Receiving Party and the Receiving Party’s Representatives or coming into the Receiving Party’s and the Receiving Party’s Representatives possession. Further the Receiving Party and the Receiving Party’s Representatives shall issue a certificate to the Disclosing Party certifying that all the Confidential Information in its possession has been returned or destroyed, as the case may be, in terms of this Agreement.
      2. Notwithstanding the return or destruction of the Confidential Information, as contemplated by the clause hereinabove, the Receiving Party and its Representatives will continue to be bound by the terms of this Agreement, including all obligations of confidentiality.
    6. Warranty
      1. The Receiving Party (for itself and on behalf of its Representatives) acknowledges that none of the Confidential Information has been subject to verification and neither the Disclosing Party nor any of its Affiliates accepts responsibility for or makes any representation, expressed or implied, or gives any warranty with respect to the accuracy or completeness of the Confidential Information. The Receiving Party acknowledges that it shall not have any right of action against the Disclosing Party or any of its Affiliates in relation to the accuracy, reasonableness or completeness of any of the Confidential Information. Accordingly, the Disclosing Party and/or any of its Affiliates shall not be liable for any direct, indirect or consequential loss or damage suffered by any person as a result of any reliance on any statement contained in or omitted from the Confidential Information.
  11. ASSIGNMENT
    1. The User and/or the Customer shall not assign any of their rights or obligations under this Agreement without the prior written consent of the other Party.
  12. MISCELLANEOUS
    1. The User and/or the Customer shall indemnify the Owner and its Affiliates, each of them, from and against all costs, expenses, losses or damages, which may arise from the unauthorised disclosure or use of Confidential Information by the User and/or the Customer or any of its Representatives or from any other breach of the terms of this Agreement by the User and/or the Customer or any of its Representatives. The Customer shall be responsible for any breach of any of the terms of this Agreement including by any of its Representatives.
    2. Without prejudice to any rights or remedies which the Owner and/ or its Affiliates (including its representatives) may have, the User and/or the Customer (for itself and on behalf of its Representatives) acknowledge and agree that damages may not be an adequate remedy for any breach or threatened breach of the provisions of this Agreement and that the Owner and/ or its Affiliates shall in addition to any other right that it may have, be entitled to seek the remedies of injunction, specific performance and other equitable relief, for any breach of the provisions of this Agreement and the User and/or the Customer further agree to waive any requirement for the security or posting of any bond in connection with such remedy. Such remedy shall not be deemed to be the exclusive remedy for breach of this Agreement but shall be in addition to all other remedies available at law or equity to the Owner and/ or its Affiliates.
    3. Unless otherwise stated in relation to a particular notice: (i) any notice or other communication given under this Agreement must be in writing and served on a Party at its address as specified in this Agreement at the introduction clause by hand delivery or by registered post and (ii) notices shall be deemed delivered 3 days after the date of mailing if mailed, by first class mail, registered or certified, postage prepaid at the addresses stated in this Agreement.
    4. If any provision of this Agreement as applied to either Party or to any circumstance shall be adjudged by a court of competent jurisdiction to be void or unenforceable for any reason, the same shall in no way affect the validity or enforceability of any other provision of this Agreement to the maximum extent permissible by law.
    5. The User and/or the Customer agree that failure or delay by Owner and/ or its Affiliates in exercising any right, power or privilege hereunder will not operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.
    6. The User and/or the Customer acknowledge and agree that the provision by the Owner of providing Confidential Information and/or discussions held in connection with the Confidential Information, shall not prevent the Owner and/ or its Affiliates from providing Confidential Information to, or appointing third parties.
    7. No publicity release or announcement concerning discussions on this Agreement will be issued by the User and/or the Customer without the advance approval of the Owner. All publicity and use rights will be restricted to the Owner only.
    8. Any amendment to this Agreement may be made only by a written instrument signed by the Parties. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which shall constitute one document.
    9. There is no warranty whether express or implied of the suitability of the Service for any particular purpose and the User and/or the Customer shall not hold the Owner responsible for any alleged failure to track location or otherwise howsoever.
  13. GOVERNING LAW

    This Agreement shall be construed in accordance with the laws of India and the courts in Mumbai will have exclusive jurisdiction.

  14. DISPUTE RESOLUTION

    In the event that any dispute or difference arises, in connection with the interpretation or implementation or validity or otherwise arising out of or relating to this Agreement, between the Parties, the Parties shall attempt in the first instance to resolve such dispute through mutual consultations. If the dispute is not resolved through mutual consultations within thirty (15) days from the date of commencement of discussions or such longer period as the Parties agree in writing, then such dispute shall be referred to arbitration and such arbitration shall be held in accordance with the provisions of the (Indian) Arbitration and Conciliation Act 1996 or any re-enactment or modification thereof then in force. The Parties may mutually agree upon and appoint a sole arbitrator. If the Parties are unable to mutually agree upon and appoint a sole arbitrator then the arbitration shall be referred to a panel of three arbitrators appointed in the following manner; one arbitrator shall be appointed by the Owner and one by the User and/or the Customer and the third presiding arbitrator shall be appointed by such two appointed arbitrators. The arbitration shall be held in Mumbai, India. Both parties shall endeavour to appoint arbitrators based in Mumbai.

  15. FEEDBACK

    Flowace or the Owner does not accept unsolicited feedback, suggestions or other information about the Services, the Software or other aspects of its business. If you provide Flowace or the Owner with feedback or other ideas, you agree that the Owner is free to use any feedback provided by you for any purpose (without compensation to you), including, without limitation, improving its products and services and creating derivative products.

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