Version 4, 1st September, 2020
This summary is provided only for convenience. This summary is not a replacement for reading and understanding the terms and conditions. In case of any conflict between this summary and any other part of the terms, such other part of the terms shall govern.
The software called MaxERP is available under free and open source licenses. The website maxerp.co.ke is operated by Frappe to provide hosting and support services.
Use of this website is allowed subject to the following conditions, among others:
- You must be at least 18 years old to use this service;
- Abusive or illegal behaviour will not be tolerated by Frappe;
- You are responsible for everything that happens through the use of your account;
- Payment gateway charges, bank charges and taxes must be borne by you;
- All payments should be made on time to keep a subscription active;
- Accounts with pending payments and free accounts may be deleted.
If you do any or all of the following, you indicate that you have read, understood, and agree to the terms and conditions:
- Explicitly accepting the terms and conditions such as by ticking a checkbox;
- Accessing the website or service;
- Creating an account;
- Accessing an account;
- Placing an order or making a payment;
- Undertaking any other action that involves interacting with the Service.
The terms and the documents mentioned above are subject to change. Please see the date on this page and the pages linked above to know when these documents were last modified.
You can contact Frappe regarding these terms at firstname.lastname@example.org.
This website is operated by Frappe Technologies Pvt. Ltd. (" Frappe", " We", " Us" and/or " Our"). These terms and conditions (" Terms" and/or " Agreement") are applicable to the use of maxerp.co.ke and any of Our other websites, products and/or services that explicitly indicate the applicability of these Terms (collectively, " Service", "Service(s)" and/or " Services") by all natural and juristic persons (collectively, " You", " Your", " User", and/or " Customer"). Please read this document carefully and ensure that You understand its contents before using Our Service(s).
For clarification, these Terms govern hosting and support services provided by Frappe. These Terms are not applicable to the software called MaxERP. MaxERP is a software owned by Frappe and the respective contributors. MaxERP may be published under open source licenses such as the GNU General Public License, version 3 and/or other license(s) as may be specified in the relevant source code and public repositories.
We reserve the right, at Our sole discretion, to change or modify portions of these Terms at any time. If We do this, We will post the changes on this page or a prominent portion of the Service and will indicate in a reasonable manner the date these terms were last revised. Any such changes will become effective no earlier than fourteen (14) days after they are posted, except that changes required to provide new features without negatively affecting Your rights under these Terms or changes made due to Our legal obligations, including but not limited to Our obligations under a law, regulation, court order or government order, will be effective immediately. Your continued use of the Service after the date on which any such changes become effective constitutes Your acceptance of the modified Terms.
In addition, when using certain parts of the Service(s), you will be subject to additional terms and conditions, policies, rules or guidelines that may be posted on the relevant part of the Service from time to time. You agree not to use such parts of the Service without reading, understanding, and accepting such additional terms as may be provided. In case of a conflict between these Terms and the terms posted for a specific part of the Service, the latter shall have precedence with respect to Your use of that part of the Service. In addition to any terms and conditions as provided for above or herein, the following terms and conditions, and policies, as updated from time to time, apply to your interactions on the Service:
- Service Level Agreement. Additional terms and conditions are applicable to maxerp.co.ke support and maintenance under the "Service Level Agreement", incorporated herein by reference, and available at: https://maxerp.co.ke/support-sla.
- Reporting Security Vulnerabilities. Security vulnerabilities found by You can be reported to Frappe by visiting https://maxerp.co.ke/security. For more details regarding security vulnerabilities, please see "Scanning for Vulnerabilities" below.
Unless Frappe provides explicit permission to access or use the Service without agreeing to these Terms, by undertaking any or all of the following actions You indicate Your acceptance of these Terms:
- explicitly accepting these Terms such as by ticking a checkbox;
- accessing the Service;
- creating an account on the Service;
- accessing an account on the Service; and/or
- undertaking any other action that involves interacting with the Service.
You warrant that You possess the legal authority to accept these Terms and thereby enter into an agreement with Frappe under the applicable laws and to use the Service in accordance with all terms and conditions herein. If You are agreeing to use the Service(s) on behalf a company or organisation, You agree that You represent such company or organisation and have the legal authority to accept this agreement on behalf of such company or organisation.
- "Affiliate(s)"means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
- " Agreement" means this Terms and Conditions agreement.
- " Documentation" means the information made available by Frappe regarding the Service, including user guides; help files; tutorials including written, audio and video; policies; procedures; and other information made available by Frappe regarding the Service(s), as updated from time to time.
- " MaxERP" means the open source software published or otherwise provided by Frappe under the terms of the GNU General Public License, version 3 or such other license as may be specified.
- " maxerp.co.ke" means the website and service available at https://maxerp.co.ke/.
- " Frappe", " We' , " Us", " Our" shall have the meaning assigned in the Introduction above.
- " Order Terms" means an ordering document or online order specifying the Services to be provided hereunder that is entered into between Frappe and Customer or any of the Customer's Affiliates, including any addenda and supplements thereto. For the purpose of this Agreement, the term "Order Terms" includes documents titled "Sales Order Form". By entering into Order Terms hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
- " Refund Policy"shall have the meaning assigned to it in the Introduction above.
- " Reporting Security Vulnerabilities" shall have the meaning assigned to it in the Introduction above.
- " Subscriber" means a User that has an active paid subscription for a Service. For clarification, the following are not included in active paid subscriptions: Trial; Services provided for no charge; and subscriptions or Service(s) that have not been paid for, not renewed, expired, terminated or discontinued.
- " Service", "Service(s)", " Services" shall have the meaning assigned in the Introduction above.
- " Service Level Agreement" shall have the meaning assigned in the Introduction above.
- " Terms" means this Terms and Conditions agreement.
- " Trial" means access to Service(s) provided by Frappe to Customer, for the purpose of evaluation of such Service(s) by Customer, upon such terms as may be specified by Frappe.
- " Website" means maxerp.co.ke or such other website owned and/or operated by Frappe that refers to this Agreement.
- " You", " Your", " User", " Customer" shall have the meaning assigned in the Introduction above.
3. Access and Use of Service
- Age and Competence. The Service is not intended for children under 18 years of age. You affirm that You are more than 18 years of age and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms, and to abide by and comply with these Terms. If You are under 18 years of age, then please do not use the Service. Please contact us immediately if You have used our Service and are under 18 years of age or if You are the legal guardian of someone who has used our Service and is under 18 years of age.
- Service Levels. Frappe holds itself to high standards to ensure high-quality customer experience in every interaction. The Service Level Agreement governs the scope, terms of support, exclusions, categorization, resolution details, release, support availability, and deployment schedule that will be applicable to all Subscribers.
- Usage Limits. Frappe may, at its sole discretion and without any notification, place reasonable technical or non-technical limitations on the use of the Service(s) by Customer, regardless of whether or not such limitations are communicated to Customer, including but not limited to allocation of storage space, bandwidth, computing power, backup space or any other limitation mentioned in Documentation or as specified in the Service. Frappe may, at its sole discretion and without any notification, change such usage limits from time to time. If Your application or usage exceeds allocated resources, you may receive a message indicating "Quota Exceeded" or another reasonable method of indicating that a usage limit has been reached or exceeded.
- Service Availability. We will do our utmost to ensure that availability of the Website will be uninterrupted and that transmissions will be error-free. However, due to the nature of the Internet, this cannot be guaranteed. Also, your access to the Website may also be occasionally suspended or restricted to allow for repairs, maintenance, or the introduction of new facilities or services at any time without prior notice.
- Date of publication. Materials should only be considered current as of the date of initial publication appearing thereon, without regard to the date on which you may access the information.
- Accuracy and Reliability of Information. The information, material or services included in or available through this site may include inaccuracies or typographical errors. Advice received via this site should not be relied upon for personal, medical, legal or financial decisions.
- Third Party Content. The Website or Service may include content posted or made available by third parties. You specifically agree that Frappe is not responsible for any content sent using, posted on and/or otherwise made available on the Website or Service by any third party.
- Shared Hosting. Your account may be hosted on a server shared with other customers, though each customer will have a separate database, folder, and authentication files. Such server may be hosted by Frappe or by a third party.
- Dedicated Hosting. If You frequently encounter usage limits as specified above, You may choose to move to a server that is not shared with other customers. If You choose to move to a dedicated server, Frappe may, at its sole discretion, assist Subscriber in shifting from Subscriber's current shared hosting under this Agreement to a dedicated server at no additional cost for such assistance. Unless explicitly provided otherwise in applicable Order Term(s), You shall be solely responsible to bear all costs associated with such dedicated servers, including but not limited to hosting, bandwidth and hardware costs, among others. You may choose to rent and set up the server yourself, or You may ask Us to do so at Your expense. If You choose to set up the server yourself, We will require access to the server via SSH with superuser rights to set up Your account.
4. Customer Responsibilities
- Accounts. You may be required to create an account in order to access and use certain features of the Service. If You choose to create such an account, You agree to provide and maintain true, accurate, current and complete information about You. You are responsible for maintaining the confidentiality of Your password and account, if any, and are fully responsible for any activity that occurs under Your account. You agree to immediately notify Frappe of any unauthorized use of Your password or account or any other breach of security.
- Timely Payments. You must make all payments in a timely manner in accordance with "Payments and Refunds" below.
Legality of Your Use. Frappe is a service provider that provides tools and a platform for Your use. You shall be the sole responsible party to ensure that Your use of the Service(s) complies with all applicable laws, and third-party privacy and intellectual property rights. Frappe may remove any information in violation of this clause at any time without prior notification and without assigning any reason. In particular, You shall not host, display, upload, modify, publish, transmit, update or share any information that
- belongs to another person and to which You do not have any right to;
- is grossly harmful, harassing, blasphemous, defamatory, obscene, pornographic, paedophilic, libellous, invasive of another’s privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever;
- harm minors in any way;
- infringes any patent, trademark, copyright or other proprietary rights;
- violates any law, rules or regulations for the time being in force in or outside India;
- deceives or misleads the addressee about the origin of such messages or communicates any information which is grossly offensive or menacing in nature;
- impersonate another person;
- contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource;
- threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states, or public order or causes incitement to the commission of any cognisable offence or prevents investigation of any offence or insulting any other nation;
- falsifies or deletes any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file, text, information or data that is uploaded or otherwise provided by You;
- consists of commercial solicitation, mass messaging, political campaigning or any form of spam; and/or
- is likely to cause annoyance, inconvenience or needless anxiety.
Sublicensing. Unless explicitly permitted otherwise by Frappe in writing, You shall not sell, resell, license, sublicense, distribute, make available, rent or lease any Service or content. You shall not frame or mirror any part of any Service or content, other than framing on Your own intranet or otherwise for Your internal business purposes or as permitted explicitly in the Documentation.
- Reporting Security Vulnerabilities. You must not attempt to gain unauthorized access to any Service or content or its related systems or networks except for the sole purpose of reporting bugs or security vulnerabilities to Frappe in accordance with Frappe's policy on Reporting Security Vulnerabilities as available at https://maxerp.co.ke/security, as may be modified by Frappe from time to time. You agree not to use any bug or vulnerability found by You for any purpose except as explicitly provided in the policy on Reporting Security Vulnerabilities. You agree not to publish, or otherwise share with any third-party, any information regarding any bug or vulnerability found by You until the expiry of a period of six months from the date on which You report such vulnerability to Frappe, or until a period of one month from the date on which Frappe releases a fix for the bug or vulnerability, whichever comes sooner.
- Misuse of Services. You must not misuse Services by interfering with their normal operation or attempting to access them using a method other than through the interfaces and instructions provided by Frappe. You must not attempt, permit or undertake direct or indirect access to or use of any Services or content in a way that circumvents a contractual usage limit, or use any Services to access or use any of Frappe's intellectual property except as permitted under these Terms or the Documentation.
- Misuse, Abusive Use and Excessive Use. You shall not undertake, permit others to undertake, promote undertaking, or otherwise engage in any of the following:
- imposing an unreasonable or disproportionately large load on the Service of the infrastructure of the Service (for example, by way of querying an API at a higher rate than sustainable);
- abusive or excessive usage of the Services or the infrastructure of the Services, which is usage significantly in excess of average usage patterns that adversely affects the speed, responsiveness, stability, availability, or functionality of the Services for other users;
- misuse Services by interfering with their normal operation or attempting to access them using a method other than through the interfaces and instructions provided by Frappe;
- attempt, permit or undertake direct or indirect access to or use of any Service to access or use any of Frappe's intellectual property except as permitted under these Terms or Documentation;
- abuse support services by seeking support beyond the support provided under these Terms (for example, seeking support for self-hosted instances of MaxERP if you have paid Frappe for a cloud hosted instance of MaxERP);
- intentionally cause errors or issues to seek support;
- seek support for issues that are not related to the Services provided under these Terms (for example, seeking support for learning general accounting practices or business processes);
- share a user account between multiple people;
- repeatedly enable and disable user account(s) to artificially reduce the number of users;
- customization support request, such as debugging custom scripts and/or support for new feature customization. Technical support is not a part of the standard support offering and can be purchased separately; and/or
- requesting support for processing and/or correction of data that was erroneously entered by You or Your users (for example, incorrect accounting entries/bookings, and stock transactions such as not checking serial/batch entries).
- Information Extraction. You shall not, without explicit prior written authorization from Frappe specifically permitting such an action, perform reverse look-up, trace or seek to trace any information on any other User or Customer of Website, including any account on the Website not owned by You, to its source, or exploit the Website or any service or information made available or offered by or through the Website, in any way where the purpose is to reveal any information, including but not limited to personal identification or information, other than Your own information, as provided for by the Website.
- Fraudulent or Unlawful Behaviour. You agree not to use the Service for fraudulent purposes, or in connection with criminal offense or other unlawful activity. Frappe reserves the right to undertake any civil or criminal action for breach of this clause.
- Scanning for Vulnerabilities. We believe in the value of being open and transparent regarding the security of our Services. We value and appreciate Your help in improving Our security. Vulnerability reports submitted in the past by users such as You have helped Us improve security for everyone. Any and all vulnerability scans by You or any third-party on Your behalf must comply strictly with the policy on Reporting Security Vulnerabilities as provided in the Introduction above. In particular, You agree not to: (i) scan or probe the Website or any Service for any vulnerability or bug for any purpose other than the purposes provided in the policy on Reporting Security Vulnerabilities; and/or (ii) use any vulnerability or bug found by you for any purpose other than reporting such bug to Us for improving the security of the Website and Service(s).
- Customer Responsible for Backups. You are solely responsible for ensuring that backups are setup correctly and are safe. You understand that Frappe can only recover or restore Your data or applications from backups created prior to the occurrence of any incident. In the absence of availability of such a backup, Frappe cannot help You in restoring or recovering any data or information. Frappe shall not be liable for any damaged, corrupt or missing backup, or lack of backup. Customer should download and maintain offline copies of backups to ensure their safety, security and integrity.
- Compliance with the Terms. You shall be the sole responsible party for Your compliance with these Terms.
- Legal Action by Frappe. Frappe reserves the right to initiate and/or undertake any civil and/or criminal action for breach of this Section on Customer Responsibilities, and in particular "Legality of Your Use", "Personal Use", "Misuse of Services", "Abusive or Excessive Use", "Information Extraction", "Fraudulent or Unlawful Behaviour", "Scanning for Vulnerabilities" and "No Reverse Engineering".
5. Payments and Refunds
- Payments. If a payment is required to use the Service, You undertake to make all payments in a timely manner. You understand that failure to make any payment on time may result in suspension or termination of this Agreement, Your account or the Service. Frappe reserves the right to undertake any action permitted under these Terms or an applicable law.
- Changes in Price. Frappe reserves the right to, at any time, in its sole discretion and without prior notification, modify the price of any service offered by Frappe, or to require payment for any service that was previously provided by Frappe without any charge. No such change in price shall be applicable to the then current term of any active subscription, however, future subscription terms shall be charged at the revised rates.
- No Chargeback. Chargebacks are strictly prohibited under these Terms. You understand that initiation of a chargeback for a payment already made may result in suspension or termination of this Agreement, Your account, or the Service. Frappe reserves the right to undertake any action permitted under these Terms or under any applicable law(s).
- Cancellation of Subscription. Customer or Frappe may cancel any active subscription in accordance with "Termination by Customer" or "Termination by Frappe" below.
- Refunds. Refunds may only be provided if they are applicable under the terms of this Agreement. Refunds, if applicable, shall be made to the same payment method or issuing bank from where the initial payment was received. Frappe may, at its sole discretion, refuse to provide refunds to an alternative account.
- Right to Refuse Service. Prices and offers listed on the Service are provided as an invitation to offer and may not indicate the availability of the product or service. When You place an order for a product or service, You provide us an offer to acquire such product or service from Us. Frappe reserves the right to refuse to provide any product or service to You without assigning any reason. If Frappe refuses to provide any product or service to You, Frappe shall process refunds in accordance with the "Refunds" clause above.
- Taxes, charges and fees. You shall be responsible for payment of all fees/costs/charges associated with the placement of any order for a product or service from Us and You agree to bear any and all applicable taxes, charges and fees including but not limited to any form of sales tax, use tax, value added tax, service tax, research & development tax, import or export tax, or any other form of taxation, duties and cesses, payment gateway charges, etc. You agree to pay all such taxes, charges and fees without withholding or deduction.
- If You are not an Indian Customer and You are required to withhold or deduct any taxes from Support Fee, then You agree to increase the amount payable to Frappe by the amount of such taxes so that Frappe receives the full amount of fees or payments.
- If You are an Indian Customer and You are required to withhold or deduct any taxes, then You must notify the same to Frappe and wait for Frappe's approval prior to placing any order for a product or service. Frappe reserves the right to request for more information, request for proof of deduction or payment, or deny any approval under this clause.
- Limitations on Transactions. Frappe may, in its sole discretion and without prior notification to You, impose limits on the number of transactions or transaction price received from a single Customer or payment method.
- Exclusive Remedy. This Section on Payments and Refunds provides Your sole remedy and Frappe's sole responsibility for situations covered by this Section. You understand and agree that this Section forms an essential basis for the Agreement.
6. Intellectual Property Rights
- Reservation of Rights. Subject to the limited rights expressly granted hereunder, Frappe, its Affiliates, its licensors and content providers reserve all of their rights, titles and interests in and to the Website, Service, content, logos, software, text, images, graphics, video, audio and other materials created by them, including all of their related intellectual property rights. Frappe owns all right, title, and interest in and to Frappe's registered and unregistered, domestic and foreign, trademarks, service marks, trademark applications, service mark applications, trade names, patents, patent applications, copyrights, copyright applications, discoveries, know-how and trade secrets of and relating to the Services, including any and all templates created by Frappe. No one may copy, reproduce, transmit, post, distribute or create derivative works from the Services without express, prior written authorization from Frappe. No rights are granted to You hereunder other than as expressly set forth herein.
- Copyright, authors' rights and database rights. All content included on the Website, such as text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, and software, is the property of Frappe, its Affiliates or its content suppliers and is protected by Indian and international copyright, authors' rights and database right laws. The compilation of all content on this website is the exclusive property of Frappe and its Affiliates and is protected by laws of India and international copyright and database right laws. All software used on this website is the property of Frappe, its affiliates or its software suppliers and is protected by India and international copyright and author' rights laws.
- License by Frappe. Subject to Your compliance with these Terms and payment of applicable fees, if any, Frappe grants a limited license to access and make personal use of the Website and Service.
- Restrictions on License by Frappe. Unless explicitly permitted otherwise by Frappe, You shall not sell, resell, license, sublicense, distribute, make available, rent or lease the Website, Service or any content, or their derivatives. You may not frame or mirror any part of the Website. Without express written consent from Frappe and/or its Affiliate(s), as may be applicable, You shall not: (i) download (other than page caching) or modify the Website, or any portion of it; (ii) use any meta tags or any other hidden text utilising Frappe's or its Affiliates' names or trademarks; (iii) use any data mining, robots, or similar data gathering or extraction tools; (iv) otherwise download, copy or modify any information from the Website, or Service or any portion of the Website or Service; and/or (v) create and/or publish Your own database that features substantial parts of this Website, including but not limited to prices and product or service listings, trademarks or any other intellectual property right. Unauthorized use of the materials appearing on this site may violate copyright, trademark and other applicable laws, and could result in criminal or civil action.
- License by Customer. Customer grants to Frappe and its Affiliates and sublicensees a non-exclusive, royalty-free, irrevocable, perpetual, worldwide and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display any content or information provided by You under "Reviews, Comments, Communications and Feedback" above throughout the world in any media, and the right to use the name provided by Customer in connection with such content, if they choose. You agree to waive Your right to be identified as the author of such content and Your right to object to derogatory treatment of such content. You agree to perform all further acts necessary to protect any of the above rights granted by You, including execution of deeds and documents at Frappe's request. Frappe may, but shall have no obligation to, use feedback provided by You to improve the Website or Service without notice and without any attribution.
- Registered Trade Marks. MaxERP and Frappe are registered trademarks of Frappe Technologies Pvt. Ltd. These trademarks may not be used in any manner without prior written consent from Frappe.
- Modification of this Agreement. This Agreement may be modified by Frappe from time to time. If We do this, We will post the modified Terms on this page and will indicate the date these Terms were last updated. Any such modifications will become effective no earlier than fourteen (14) days after they are posted, except that the following categories of modifications will be effective immediately: (i) modifications required to provide new features without negatively affecting your rights under these Terms; (ii) modifications made to correct typographical errors; and/or (iii) or modifications made to comply with legal obligations, including but not limited to Our or Your obligations under a law, regulation, court order or government order. You shall be responsible to review the Agreement from time to time in order to be aware of any such modifications to these Terms. We may, for Our convenience only and without waiving Your obligation to periodically review the Agreement, attempt to notify You of significant modifications to this Agreement through the Service user interface, in an email notification or through other reasonable means. You understand and agree that Your continued access, registration or use of the Website or Service beyond the effective date of such modification shall be deemed to be Your acceptance of all modifications to the Agreement.
- Modification of Website or Service. Frappe may, at any time and without prior notice, introduce new features, remove or stop offering old features, or modify existing features of the Website or Service. Frappe reserves the right to charge a fee to access any new feature or service. Frappe reserves the right to delete or modify information on the Website or Service without prior notice.
8. Warranty Disclaimers and Limitation of Liability
- Warranty Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, FRAPPE PROVIDES THE SUPPORT SERVICE "AS IS" AND "AS AVAILABLE" AND EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, REPRESENTATIONS, WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, SATISFACTORY CONDITION OR QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR QUIET ENJOYMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT, TRIAL, BETA SERVICES AND FREE SERVICES ARE PROVIDED "AS IS," AND "AS AVAILABLE" EXCLUSIVE OF ANY WARRANTY WHATSOEVER. CUSTOMER UNDERSTANDS THAT FRAPPE IS DEPENDENT ON CERTAIN THIRD PARTIES AND ON MATTERS OUTSIDE ITS CONTROL FOR DELIVERING THE SERVICES. FRAPPE AND ITS SUPPLIERS DO NOT REPRESENT OR WARRANT THAT THE FRAPPE PRODUCTS WILL BE UNINTERRUPTED, SECURE, ERROR-FREE, VIRUS-FREE, ACCURATE OR COMPLETE OR COMPLY WITH REGULATORY REQUIREMENTS, OR THAT FRAPPE WILL CORRECT ALL ERRORS. FRAPPE DOES NOT REPRESENT OR WARRANT NON-INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS BY THIRD-PARTY COMPONENTS. FRAPPE DOES NOT GUARANTEE, REPRESENT OR WARRANT CONSULTATION RESULTS, IDENTIFICATION OF ALL ISSUES, OR THAT ALL ERRORS AND BUGS WILL BE CORRECTED TO CUSTOMER'S SATISFACTION. FRAPPE SHALL NOT BE LIABLE FOR CUSTOMER'S CONTENT, MATERIAL OR THIRD PARTY MATERIAL, INCLUDING LINKS TO THIRD PARTY WEBSITES AND ACTIVITIES. FRAPPE SHALL NOT BE RESPONSIBLE FOR CUSTOMER'S FAILURE TO STORE, DOWNLOAD, OR BACKUP ITS DATA. CUSTOMER SHALL REMAIN RESPONSIBLE TO EVALUATE THE ACCURACY, RELIABILITY, COMPLETENESS AND USEFULNESS OF ANY AND ALL CONTENT DELIVERED THROUGH THE SERVICES. FRAPPE IS NOT RESPONSIBLE OR LIABLE FOR ANY FAILURE TO PERFORM OR DELAY IN PERFORMING ITS OBLIGATIONS UNDER THIS AGREEMENT TO THE EXTENT THAT THE FAILURE OR DELAY IS CAUSED BY CIRCUMSTANCES BEYOND FRAPPE'S REASONABLE CONTROL (SUCH AS EVENTS MENTIONED UNDER "FORCE MAJEURE" BELOW). FRAPPE SHALL NOT BE LIABLE FOR ANY INDIRECT DAMAGE, INCLUDING FINANCIAL LOSS, SUCH AS LOSS OF PROFIT, UNLESS FRAPPE HAS ACTED WITH GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. THE ABOVE SHALL APPLY EVEN IF FRAPPE WAS ADVISED OF THE POSSIBILITY OF SUCH EVENTS OR THEY WERE FORESEEABLE.
- Limitation of Liability. AS FAR AS PERMITTED BY APPLICABLE LAW, FRAPPE AND ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS AND ASSIGNS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LITIGATION OR THE LIKE) ARISING OUT OF (A) THE USE OF THE SERVICE, (B) THE CONTENT ON THE SERVICE, (C) WEB SITES LINKED TO THE SERVICE AND THE CONTENT, GOODS AND/OR SERVICES PROVIDED THEREIN (D) ANY DECISION MADE OR ACTION TAKEN BY YOU IN RELIANCE UPON THE INFORMATION WITHIN, OR CONTENT OF, THE SERVICE, AND/OR (E) THE INABILITY TO USE THE SERVICE AND CONTENT CONTAINED THEREIN (INCLUDING, BUT NOT NECESSARILY LIMITED TO, LOSS OF PROFITS, GOODWILL OR SAVINGS, DOWNTIME, DAMAGE TO OR REPLACEMENT OF PROGRAMS AND DATA), WHETHER BASED IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF THE FOREGOING LIMITATION IS PROHIBITED BY AN APPLICABLE LAW, FRAPPE'S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT IS LIMITED TO RE-PERFORMANCE OF THE SUPPORT SERVICES OR LIQUIDATED DAMAGES. IN NO EVENT WILL FRAPPE BE LIABLE FOR PROVIDING SUBSTITUTE SERVICES. IN NO SITUATION SHHALL FRAPPE'S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY BUT WILL NOT LIMIT CUSTOMER'S AND ITS AFFILIATES' PAYMENT OBLIGATIONS UNDER THE "PAYMENTS AND REFUNDS" SECTION ABOVE.
- Exclusive Remedy. IN THE EVENT OF A BREACH OF THE WARRANTIES SET FORTH IN THIS AGREEMENT, CUSTOMER'S EXCLUSIVE REMEDY, AND FRAPPE'S ENTIRE LIABILITY, WILL BE THE RE-PERFORMANCE OR RE-DELIVERY OF THE DEFICIENT SERVICE, OR IF FRAPPE CANNOT SUBSTANTIALLY CORRECT A BREACH IN A COMMERCIALLY REASONABLE MANNER, TERMINATION OF THE RELEVANT SERVICE, IN WHICH CASE CUSTOMER MAY RECEIVE A PRO RATA REFUND OF THE SUPPORT FEE PAID FOR THE DEFICIENT SERVICE AS OF THE EFFECTIVE DATE OF TERMINATION.
- Essential Basis. CUSTOMER ACKNOWLEDGES THAT FRAPPE HAS SET ITS PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE ON THE DISCLAIMERS OF WARRANTIES AND LIMITATION OF LIABILITY AND THE SAME FORM AN ESSENTIAL BASIS FOR THE BARGAIN BETWEEN THE PARTIES.
- Definition of Confidential Information." Confidential Information" means all information disclosed by a party (" Disclosing Party") to the other party (" Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Frappe includes the Services and Content, and the terms and conditions of this Agreement, and all orders placed under this Agreement (including pricing), any software or documentation related to the Services, Frappe samples and templates, trade secrets, technical know-how, inventions, materials, product development plans, marketing plans, customer lists and email addresses, the know-how, proprietary strategy on communications, reports, and findings. Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. For the avoidance of doubt, the non-disclosure obligations set forth in this "Confidentiality" section apply to Confidential Information exchanged between the parties under this Agreement and in connection with the evaluation of additional Frappe services.
- Protection of Confidential Information. As between the parties, each party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates' employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any order placed under this Agreement to any third party other than its Affiliates, legal counsels and accountants without the other party's prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsels or accountants will remain responsible for such Affiliate's, legal counsel's or accountant's compliance with this "Confidentiality" section. Notwithstanding the foregoing, Frappe may disclose: (a) the terms of this Agreement and any applicable Order Form to a subcontractor or Non-Frappe Application Provider to the extent necessary to perform Frappe's obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein; and (b) information in accordance with the Section on "License by Customer" above.
- Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, including but not limited to obligations under a local, state or federal law, provided that the Receiving Party gives: (a) prior notice of the compelled disclosure to the Disclosing Party (to the extent legally permitted); and (b) reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party's Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
- Indemnification by Customer. Customer shall indemnify and hold Frappe and its directors, officers, agents, employees, contractors and assigns harmless from and against any claim, suit, proceedings, losses, expenses incurred, attorneys' fees, damages or costs awarded, or amounts paid in a settlement, arising out of unauthorized access by persons using Customer's login credentials, of data provided by Customer, or a breach of the terms of this Agreement, or use beyond the scope of the intended use by Customer, its affiliates, employees, contractors or authorised agents, or any combination thereof. Customer shall have no obligation or liability hereunder for any claim resulting from Frappe's sole negligence.
- Indemnification by Frappe. Frappe shall indemnify and hold Customer harmless from and against any claim, suit, proceedings, losses, expenses incurred, damages or costs awarded, or amount paid in a settlement approved by Frappe, arising out of a breach of the terms of this Agreement solely by Frappe, limited to the extent of fees received by Frappe from Customer or due from Customer to Frappe in the term during which the breach occurred, for the service in which the breach occurred.
- Exclusive Remedy. This "Indemnification" section states the indemnifying party's sole liability to, and the indemnified party's exclusive remedy against, the other party for any claim described in this section.
11. Term and Termination
- Term of Agreement. This Agreement commences on the date Customer first accepts it and continues until all subscriptions hereunder have expired or have been terminated.
- Term of Purchased Subscriptions. The term of each subscription shall be as specified at the time of placing the order for the subscription. Except as expressly provided in the applicable Order Form, promotional or one-time priced subscriptions shall not be renewed at the promotional or one-time price, but shall instead be renewed at Frappe's applicable list price in effect at the time of the renewal.
- Termination by Customer. Customer may terminate this Agreement (a) for cause upon 30 days written notice to Frappe of a material breach if such breach remains uncured at the expiration of such period, or (b) for cause immediately upon sending a written notice if Frappe becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; or (c) upon 45 days written notice to Frappe without assigning any reason. For the purpose of this clause, written notice must be sent to email@example.com with the subject line "Notice of Termination of Agreement".
- Termination by Frappe. Frappe may terminate this Agreement and/or subscription(s) or Service(s) purchased or paid for under this Agreement and/or any account under this Agreement (a) for cause upon 30 days written notice to Customer of a material breach if such breach remains uncured at the expiration of such period, or (b) for cause immediately upon sending a written notice if Customer becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, or (c) for cause immediately and without notice for failure to make timely payment; or (d) upon 45 days written notice to Customer without assigning any reason; or (e) immediately, without notice and without assigning any reason, in case of a free account and/or trial account. For the purpose of this clause, written notice, if required, must be sent to the Customer's registered email address.
- Effect of Termination. Frappe will retain Your data for a minimum period of 30 days from the date of termination of this Agreement, during which time it may be available for You to download. After this period of 30 days from the date of termination of the Agreement, Frappe may delete Your data without prior notice and without assigning any reason. You shall be the sole liable party for any damage or loss incurred by You or a third party as a result of destruction or loss of access to such data.
- Refund or Payment upon Termination. If this Agreement is terminated by Customer or Frappe in accordance with "Termination by Customer" or "Termination by Frappe" above, and Customer has complied with these Terms, then Frappe shall refund to Customer any prepaid fees covering the remainder of the term of active yearly/annual subscriptions after the effective date of termination on a pro-rated basis. In no situation will Frappe be liable to provide any refund for the termination of: (i) any Trial account; (ii) free service(s); and/or (iii) subscriptions that are valid for less than 365 days (for example monthly, weekly or daily). In no circumstance shall Frappe be liable to refund any amount to Customer for termination of this Agreement or any Service by Customer except if such termination has been done by Customer or Frappe in accordance with "Termination by Customer" or "Termination by Frappe" above. Upon termination of this Agreement by either party, Customer shall pay to Frappe any unpaid fees, dues or amounts for Service(s) that have been provided by Frappe prior to the effective date of termination of the Agreement or Service, regardless of whether such Service(s) were used by Customer, regardless of which party terminated the Agreement or Service, and regardless of the reason for termination of the Agreement or Service.
- Surviving Provisions. The sections titled "Payments and Refunds", "License by Customer", "Confidentiality", "Warranty Disclaimers and Limitation of Liability", "Indemnification", "Refund or Payment upon Termination", "Surviving Provisions", "General Provisions" and any other section or clause which by its nature survive termination or expiration of this Agreement shall survive the termination of the Agreement until such time till the obligations are fulfilled and/or those sections or clauses are no longer applicable.
12. Disputed Accounts
- Ownership of Data. In case of a paid subscription, the data is owned by the company or organisation in whose name the invoice is made out and not the account holder.
- Disputes Regarding Ownership of Account. In case of dispute about ownership of the account, Customer must provide a government registered document or government registered document number (as requested by Frappe) with the name of the company/organisation and address to prove the ownership/control of the company/organisation to Frappe's satisfaction. Frappe reserves the right to ask for a court order, and/or additional documentation and/or proof of ownership or control over the company/organisation. In case there is no government authorized registration of the company/organisation, then Frappe will not transfer the account to any other party, and the account will remain in the possession of the person that has valid credentials to access such account. If there is a government website that shows the official address and registered owners of the company/organisation and if the registered owner does not have access to the account, then Frappe will block access to the existing users and re-issue password to one user that will be sent to the registered address via post/courier.
- Costs Associated with Account Disputes. All costs associated with this Section on "Disputed Accounts" must be borne by the company, organisation or person that wishes to gain access to such disputed account.
- Legal Orders. If there is an ongoing legal dispute regarding any account or data, then, subject to a relevant court, government or law enforcement order, we will keep the account frozen until relevant directions are received from a court, government or law enforcement.
- Loss or Deletion of Data During Dispute. In order to avoid loss or deletion of such disputed data, Frappe requests the parties to a dispute to amicably decide, at the beginning of the dispute, which party shall be responsible to pay for the disputed data and account until such a dispute is resolved. Frappe reserves the right to undertake any action permitted under these Terms, including termination of any subscription, account or this entire Agreement, for non-receipt of any subscription fee in time. Frappe shall not be responsible for the loss or deletion of any or all data following termination of any subscription, account or this Agreement by Frappe due to non-payment of dues during the pendency of any dispute under this Section on "Disputed Accounts".
13. General Clauses
- Third-Party Websites, Apps or Services. The Website or Service may contain links to external third-party websites, apps or services. Frappe does not guarantee, approve or endorse the information or product available on such third-party websites, apps or services, nor does a link indicate any association with or endorsement of the linked website, app or service. We do not operate or control and have no responsibility for the information, products and/or services found on any external sites. Nor do We represent or endorse the accuracy or reliability of any information, products and/or services provided on or through any external sites, including, without limitation, warranties of any kind, either express or implied, warranties of title or non-infringement or implied warranties of merchant-ability or fitness for a particular purpose. You assume complete responsibility and risk in your use of any external website, app or service. Frappe shall not be responsible for any loss or damage incurred by You while dealing with any third party. You should direct any concerns regarding any external link to the relevant website's, app's or service's administrator, owner or webmaster. You are hereby informed to exercise utmost caution when visiting any third-party website, app or service.
- Entire Agreement. This Agreement constitutes the entire agreement between Frappe and Customer pertaining to the subject matter hereof and supersedes in its entirety all written or oral agreements between the Parties.
- Severability. The parties agree that if any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law or otherwise unenforceable, the parties will attempt in good faith to make the least amount of changes necessary to this Agreement in order to restore the original intention or approximate the original intention behind the removed clause. If such modification is not possible, such provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
- Force Majeure. You understand that there may be an occurrence of an event or effect that cannot be reasonably anticipated or controlled, which even by the exercise of reasonable diligence cannot prevent non-performance, and in particular, performance of the Service or fulfilment of an Order or Instruction. These occurrences and events include, but are not limited to: acts of God; acts of government; acts of war; acts of public enemies; acts of terror; strikes or other labour problems; pandemic; epidemic; floods; fires; earthquakes; civil unrest; riots; explosions; outages; general Internet brown-outs or black-outs or shortage of bandwidth; hardware failures; hacking, denial of service or ransomware attacks; actions of the elements; or other causes beyond the control of Frappe in the performance of this Agreement. Upon the occurrence of such event or effect You agree to excuse performance under this Agreement and not hold Frappe liable for the delay in or failure of performance under this Agreement. Any such delay in or failure of performance shall not constitute default or give rise to any liability for damages.
- Assignment. You may not assign any of Your rights or obligations hereunder, whether by operation of law or otherwise, without Frappe's prior written consent. Frappe may assign this Agreement in its entirety, without Your consent, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
- Relationship between Parties. The parties to this Agreement are independent and nothing in this Agreement shall make them partners, employees, agents, or other representatives of the other party hereto. Neither party shall make any representation that suggests otherwise.
- Arbitration, Governing Law and Jurisdiction. Both Parties shall make every effort to resolve all differences amicably taking into consideration the cause for which the parties have purposed to work together. In the event of any unresolved dispute the same shall be settled in accordance with the Indian The Arbitration and Conciliation (Amendment) Act, 2019 by appointing a sole arbitrator with mutual consent. The decision of the arbitrator shall be final. The parties shall bear their own individual costs and the costs of the arbitration shall be borne equally by the parties. The venue of arbitration and the seat of arbitration shall only be at Mumbai in India. The Courts at Mumbai shall have the exclusive jurisdiction to enter the award. The language of the arbitration shall be English.
- Waiver. No failure or delay by Frappe in exercising any right under this Agreement will constitute a waiver of that right.
- Headings and Sub-headings. The headings and sub-headings in this Agreement are for convenience only and do not affect the meaning of the relative section / clause.
- Interpretation. In this Agreement, the singular includes the plural and the plural the singular; words importing any gender include the other genders; references to statutes are to be construed as including all statutory provisions consolidating, amending or replacing the statute referred to; the word "or" shall be deemed to include "and/or", the words "including", "includes" and "include" shall be deemed to be followed by the words "without limitation"; references to articles, sections (or subdivisions of sections) or exhibits or schedules are to those of this Agreement; and references to agreements and other contractual instruments shall be deemed to include all subsequent amendments and other modifications to such instruments, but only to the extent such amendments and other modifications are not prohibited by the terms of this Agreement.