Terms & conditions
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Spike is owned by FatSync software private limited
Last updated: 8th August 2019
Terms of Service
This agreement is entered between FatSync Software Private Limited, a private limited company registered under Companies Act 1956 in India, having its registered office at L-3/404, Brahma Suncity, Vadgaonsheri, Pune-411014, Maharashtra, India, hereinafter referred to as “FatSync” and the payer or/and the recipient of services hereunder identified as part of the subscription process for **Spike** services, hereinafter referred to as “You” or “Customer”. Please understand that by accepting these terms and conditions, Customer represents and warrants that the Customer is major and thus legally capable to enter into a contract and in case Customer is acting on behalf of some business entity, Customer is duly authorized to enter into an agreement on behalf of that entity. Therefore, by clicking "I agree", ordering, and/or using FatSync services, Customer agrees to be bound by all the terms and conditions of this agreement (hereinafter referred to as the agreement). NOW WHEREAS Customer and FatSync both hereby agree to the terms & conditions hereinafter mentioned:
Scope of Service
FatSync offers Spike services (“Service”) which includes the following: Product’s application interface (the “Dashboard”) and any additional downloadable software. The service is hosted at the domain managed by spike.sh, *.spike.sh, spiked.sh, *.spiked.sh, fatsync.com, *.fatsync.com, FatSync will offer Technical Support for the Service. FatSync may develop methods for customers to contact the technical support staff and will communicate information regarding such methods via email at the registered email of Customer.
- 1. Lawful Use of the Services Customer hereby agrees to use the Services of FatSync only in an authorized manner as per the terms of this Agreement. In case it is found that Customer’s use of Services violates the terms of this Agreement or any other law, rule, or regulation enacted by the concerned authorities, FatSync reserves the right to terminate the Agreement with immediate effect.
- 2. FatSync’s Responsibilities, Representations, and Warranties
- i. In the performance of Services, FatSync agrees to the following:
- a. Perform the Services to the best of its ability and with the degree of care, diligence, and skill that a reasonably prudent person would exercise in comparable circumstances;
- b. Liaise with Customer through Customer’s coordinator on matters related to the use of the Service; however, this shall not include the provision of training services;
- c. Invoice Customer according to the terms of this Agreement; and
- ii. Reasonable attempts to correct errors on notice:
FatSync warrants that it will try, at its expense to make reasonable attempts, to correct any errors for which FatSync is directly and solely responsible, provided that the data necessary to correct such errors is available to FatSync. For FatSync to correct the errors or obtain Service credit, Customer must notify FatSync in writing of such errors within 45 days of receipt of the Services believed to contain the errors.
Customer’s Responsibilities, Representations, and Warranties
- i. Customer agrees to:
- a. provide all necessary data and any special forms or other required materials or information to FatSync on schedule or in a timely manner to enable FatSync to provide the Services;
- b. ensure accuracy, legibility, and completeness of all data supplied to FatSync and be solely responsible for the results obtained from Customer’s use of any of the Services;
- c. liaise with FatSync through a coordinator that Customer will identify, on matters related to the Services, and authorize that coordinator to make decisions on behalf of Customer in relation to the implementation of this Agreement and the Services and any changes thereto; and
- d. control, and be responsible for the use of, account information, user ids, and passwords and its end users’ data related to the Services
- ii. Customer Representations: Customer represents and warrants to FatSync that:
- a. The information Customer has provided for establishing an account with FatSync is accurate, and
- b. Customer has complied with and will continue to comply with all applicable laws including privacy laws and has obtained and will continue to obtain the requisite privacy consent in the collection and use of all information that may be collected on any website or maintained on any server hosted by FatSync.
Term, Termination and Suspension of Service
- i. Initial Term: The initial subscription term shall begin on the effective date of Customer subscription, i.e. on the date on which FatSync will received the payment of subscription and expire at the end of the period selected by Customer while taking the subscription.
- ii. Renewal of Term: Unless one of party to this Agreement gives the other party, a written notice that it does not intend to renew the subscription, the paid subscription and this Agreement will automatically renew for the period selected by the Customer in its latest term ("Renewal Subscription Term"). The written notice of non-renewal must be sent at least 15 days before the end of the Subscription Term. The Renewal Subscription Term will be on the current terms and conditions of this Agreement, and subject to the renewal pricing provided in our pricing available at [fatsync.com](http://fatsync.com) or [spike.sh](http://spike.sh) or [spiked.sh](http://spiked.sh). Should any Customer decide not to renew, the Customer may send notice of non-renewal by email to [firstname.lastname@example.org](mailto:email@example.com) or use the cancellation option within the product interface.
- iii. Termination by Customer: Customer may terminate this Agreement before the end of the Term without liability (except for amounts due for Services provided up to the effective date of termination) if Customer:
- 1. Proves that the FatSync has not provided the Services in accordance with the terms of this Agreement, and which has resulted in material harm to Customer; this is only applicable when FatSync does not cure any failure within 10 days of receipt of the written notice provided by Customer describing the failure in reasonable detail.
If this Agreement is terminated pursuant to this Section, FatSync will return the fees paid to it for Services not yet performed on a pro rata basis.
- iv. Termination/Suspension by FatSync: FatSync may terminate this Agreement or suspend the Services before the end of the Term without liability:
- a. On 30 days’ notice to Customer, if Customer is overdue on the payment of any amount due under this Agreement;
- b. If Customer materially violates any other provision of this Agreement and fails to cure the violation within 10 days’ notice in writing from FatSync or
- c. Immediately on written notice upon Customer becoming insolvent or bankrupt within the meaning of the Bankruptcy and Insolvency Laws.
- d. During suspension, FatSync will use reasonable efforts to give Customer an advance notice in writing of suspension of Service unless a law enforcement or governmental agency directs otherwise or suspension without notice is necessary to protect FatSync or its other customers.
- v. Following suspension:
The account will be suspended but FatSync shall not delete the account of Customer without receiving notice regarding the same. Once the notice is received in writing, FatSync will delete the account within 30 days along with the Customer’s data/information from the database of FatSync permanently. Following Account Deletion: It is agreed that upon deletion of account, the fees owed to FatSync as per this Agreement will not be cancelled or waived. Customer’s data and account settings shall be irrevocably deleted within 30 days from the date of notice stating clearly the deletion of all the customer’s data along with account. It shall be Customer’s exclusive responsibility to secure all necessary data from Customer’s account prior to deletion/cancellation.
Fees, Billing, Taxes, Charges
- a. Fees: The fees set forth in the order form created at the outset of “Customer’s” account shall be effective for the Initial Term and each renewal Term of this Agreement, provided that FatSync shall have the right to revise the fees at any time upon thirty (30) days written notice to Customer. If Customer does not agree with such fee revision, Customer shall have the right to terminate this Agreement upon thirty (30) days written notice, provided that such notice of termination must be received within thirty (30) days of date of notice of the fee increase.
- b. Billing and Payment Arrangements: FatSync will bill Customer on a monthly or any other mutually agreed period basis for all recurring fees. For recurring fees, no refund or adjustment for plan downgrades, upgrades, or elimination of plan features within the current billing term shall be issued. Invoices/payments are irrevocably deemed final and accepted by Customer unless disputed or sought clarification before subscribing to the Service. Customer shall at all times provide and keep current and up‐to‐date Customer’s contact, credit card, if applicable, and billing information on the administrative control panel.
- 1. Fatsync will charge customer for the maximum user per month, irrespective of the number of active users at the time of billing.
- 2. Fatsync will provide customers with limited calls free of charge, post that number customer will be charged for every call received per account.
- c. Payment by Credit Card/ Wire Transfer/Cheque: If Customer is paying by credit card, Customer shall at all times provide and keep current and updated Customer’s contact, credit card, if applicable, and billing information on the administrative control panel. Customer authorizes FatSync to charge the Customer credit card or bank account for all fees payable at the beginning of the Initial Subscription Term and all subsequent Billing Periods, including upgrades. Customer further authorizes FatSync to use a third party to process payments and invoicing and to consent to the disclosure of Customer payment information to such third party.
- d. Taxes: Customer acknowledges that it has to make timely payment of all the applicable taxes, duties, or government levies whatsoever are not included in the fees and expenses, along with the payment of bill for services.
Modification of Terms and Conditions
FatSync may update, amend, modify, or supplement the terms and conditions of this Agreement from time to time and will use reasonable efforts to notify Customer regarding the same. Customer is responsible for regularly reviewing the most current version of this Agreement at any time at https://spike.sh. If at any time Customer does not agree with any amendment, modification, or supplement to the terms and conditions of this Agreement, Customer may terminate this Agreement for convenience as per terms and condition mentioned in this Agreement. Customer’s continued use of Customer’s account and/or the services after the notice period will be conclusively deemed to be acceptance by Customer of any such modifications or amendment.
Limited Warranty; Limitation of Damages
- a. FatSync provides the Service “as is”. Customer expressly agrees that use of the Service is at Customer’s sole risk. FatSync and its subsidiaries, affiliates, officers, employees, agents, partners, vendors, and licensors expressly disclaim all warranties of any kind, whether express or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement. Customer hereby agrees that the terms of this Agreement shall not be altered due to custom or usage or due to the parties’ course of dealing or course of performance under this Agreement.
- b. FatSync and its subsidiaries, affiliates, officers, employees, agents, partners, vendors, and licensors shall not be liable for any indirect, incidental, special, punitive, or consequential damages, including but not limited to damages for lost profits, business interruption, loss of programs or information, and the like, that result from the use or inability to use the Service or from mistakes, omissions, interruptions, deletion of files or directories, errors, defects, delays in operation, or transmission, regardless of whether FatSync has been advised of such damages or their possibility.
- c. Customer is fully responsible for the content of the information and data passing through FatSync’s network or using the Services and for all activities that Customer conducts with the assistance of the Services. d. Notwithstanding anything to the contrary contained in this Agreement, FatSync’s aggregate liability under or in connection with the Agreement, whether arising from contract, negligence or otherwise, shall in any event not exceed the amount paid by Customer under the Agreement in the preceding 1 month.
Software and Intellectual Property Rights
- a. Ownership of Intellectual Property Rights: All Intellectual Property Rights, including any Software, owned by a party, its licensors or subcontractors as on the effective date of this Agreement shall continue to be owned by such party, its licensors or subcontractors and, except as expressly provided in this Agreement, the other party shall not acquire any right, title or interest in or to such Intellectual Property Rights. FatSync shall own all rights, titles, and interests in and to any materials created or developed by FatSync or its subcontractors for its internal use or for assisting Customer in the provision of the Services; and Customer shall own all rights, titles and interests in and to any Intellectual Property Rights resulting or based on any work product created or developed exclusively for Customer under this Agreement, if fully paid for by Customer.
- b. Right to use logo: The customer agrees to let FatSync use their organization's logo in FatSync’s customer list and at other places on its website and promotional materials including press release. This clause will survive expiry or termination of this Agreement.
- c. License of Customer Software and Intellectual Property: Customer agree to grant to FatSync solely for FatSync’s provision of the Services, a license during the Term to use any Intellectual Property Rights, including any Software, owned by or licensed to Customer by third parties and that is necessary for providing the Services to Customer and otherwise performing its obligations under this Agreement. With respect to any Intellectual Property Rights and Software used by FatSync to provide the Services, Customer represents and warrants that: (a) Customer is either the owner of such Intellectual Property Rights or Software or is authorized by its owner to include it under this Agreement; and (b) FatSync has the right during the Term to use such Intellectual Property Rights and Software for the purpose of providing the Services to Customer as contemplated by this Agreement.
- d. No Assurance of Compatibility: Customer acknowledges that FatSync makes no representation, warranty, or assurance that the Customer’s equipment and Software will be compatible with FatSync’s equipment, Software and systems, or the Services.
- a. FatSync will not use any of Customer’s Confidential Information except in connection with the performance of the Services or the exercise of its rights under this Agreement and will take all reasonable precautions to maintain the confidentiality of Customer’s Confidential Information and to prevent the unauthorized disclosure to others of the Confidential Information. FatSync shall implement industry-standard security procedures, such as appropriate firewall, encryption, and access security measures but shall not be liable for damages caused to Customer by inadvertent breaches of confidentiality.
- b. FatSync shall only disclose the Confidential Information to those of its employees and permitted agents and subcontractors who have a need to know and require access to the Confidential Information as may be necessary in exercising FatSync’s rights and performance of the Services under this Agreement. Notwithstanding anything to the contrary in this Agreement, FatSync will not be required to keep confidential, and may use or license without restriction, any ideas, concepts, know-how or techniques related to information processing which are developed by FatSync in the performance of Services.
Parties shall indemnify, defend, and hold harmless each other (and their subsidiaries, affiliates, officers, employees, agents, partners, mandatories, vendors, and licensors) of any and all Claims (including third party Claims) arising as a result of or in relation to any breach of this Agreement or fault by the other party. Customer shall indemnify FatSync in relation to any activities conducted by Customer through the Services, or otherwise in relation to “Customer’s” products or services.
This Agreement shall be governed by and construed in accordance with the laws of India. Customer agrees, in the event any claim or suit is brought in connection with this Agreement, it shall be brought to the exclusive jurisdiction and venue of the courts of Delhi, India. In any action to enforce this Agreement, including, without limitation, any action by FatSync for the recovery of fees due hereunder, Customer shall pay reasonable attorney's' fees and costs in connection with such action.
In the event that any one or more of the provisions contained herein shall, for any reason, be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any of the other provisions of this Agreement, and this Agreement shall be construed as if such provision(s) had never been contained herein, provided that such provision(s) shall be curtailed, limited, or eliminated only to the extent necessary to remove the invalidity, illegality, or unenforceability.
No waiver by FatSync of any breach by Customer of any of the provisions of this Agreement shall be deemed a waiver of any preceding or succeeding breach of this Agreement. No such waiver shall be effective unless it is in writing signed by the parties hereto, and then only to the extent expressly set forth in such writing.
Neither party may assign or transfer this Agreement or any rights or obligations hereunder, in whole or in part, except with the prior written consent of the other party, which shall not be unreasonably be withheld; provided that FatSync may assign or transfer this Agreement, or any rights or obligations hereunder, in whole or in part: (i) to an affiliate of FatSync, (ii) in connection with a merger, amalgamation or sale of all or a substantial part of the business of FatSync, or (iii) for financing, securitization or other similar purposes, which assignments and/or transfers shall operate novation and discharge FatSync hereunder. A change of control of Customer shall be deemed to be an assignment and transfer hereunder and shall be governed by the requirements of this provision. The terms and conditions along with privacy policies with all references, constitutes the sole and entire agreement of the parties to this agreement with respect to the subject matter contained herein, and supersedes all prior terms and conditions which were agreed by the Customer.