This terms of use agreement (“Agreement”) is entered into by and between Flock FZLLC, with its registered office at Opposite Double Tree Hilton Hotel Business Centre 4, Ras-al-Khaimah United Arab Emirates (“Flock”), and the applicable entity agreeing to these terms (“Customer”) for the Subscription (defined below) obtained by the Customer from either Flock or any third party (“Partner”). This Agreement is effective as of the date the Customer confirms their acceptance of the Subscription (defined below) through an online checkbox, “I agree” button or, any similar acceptance mode (“Acceptance Confirmation”). If you are accepting this Agreement on behalf of Customer, you represent and warrant that: (i) you have full legal authority to bind Customer, to these terms and conditions; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of the Customer, to this Agreement. If you do not have the legal authority to bind the Customer, please do not go ahead with the Acceptance Confirmation. This Agreement governs Customer’s access to and use of Flock SAAS.
1. Definitions
1.1 “Customer Data” means all data, provided, generated, transmitted or displayed via Flock SAAS by the Customer;
1.2 “Confidential Information” means information disclosed by a party to the other party under this Agreement that is marked as confidential or would normally be considered confidential under the circumstances;
1.3 “End User” means the individuals the Customerpermits to use Flock SAAS subject to the terms and conditions of this Agreement;
1.4 “End User Account” means a Flock account established by the Customerthrough Flock SAAS for an End User;
1.5 “End User Data” means the End User’s Personal Data (as defined in the General Data Protection Regulations (“GDPR”)) that the End User shares with the Customer;
1.6 “End User ToU”means the terms of use that the End User will need to adhere to while using Flock SAAS;
1.7 “FlockSAAS” shall refer to the proprietary software as a service managed, operated, developed and sold by Flock;
1.8 “High Risk Activities” means uses of Flock SAAS in situations where the use or failure of Flock SAAS could lead to death, personal injury, or environmental damage, such as operation of nuclear facilities, air traffic control, life support systems, use of heavy equipment in construction sites, etc.;
1.9 “SAAS” shall mean software as a service comprising of a web interface software, desktop client software, mobile apps, server software and server infrastructure;
1.10 “Subscription” means a Flock SAAS subscription obtained by/subscribed to by the Customer under this Agreement; and
1.11 “Plan” means the different types of Flock SAAS plans made available to the Customer. Each Plan will specify the capacity, features, number of users and other relevant parameters that will be available to the Customer.
2. CustomerObligations
2.1 The Customerwill use Flock SAAS in accordance with all applicable laws and the AUP specified by Flock from time to time. The AUP in effect as on the date of this Agreement may be found here.
2.2 The Customerwill use commercially reasonable efforts to prevent unauthorized use of Flock SAAS, and to terminate any unauthorized use. The Customer will promptly notify Flock of any unauthorized use of, or access to, the Flock SAAS of which it becomes aware, and cooperate with Flock and any others as directed by Flock, to undertake all actions necessary to end or penalize such unauthorized use.
2.3 Unless Flock specifically agrees in writing, the Customerwill not, and will use commercially reasonable efforts to make sure that the End User does not: (a) sell, resell, lease, or the functional equivalent, Flock SAAS to a third party (unless expressly authorized in this Agreement); (b) attempt to reverse engineer Flock SAAS or any component; (c) attempt to create a substitute or similar service through use of, or access to, Flock SAAS; or (d) use Flock SAAS for High Risk Activities.
2.4 The Customermust promptly cooperate with Flock’s reasonable investigation of Flock SAAS outages, security problems, and any suspected breach of the Agreement.
3. Flock’s Obligations
3.1 Flock shall provide Flock SAAS in accordance with the mandatory legal requirements to which it is subject to, and in accordance with the terms and conditions outlined in this Agreement. However, the Customeracknowledges and agrees that the provision of Flock SAAS is also dependent on third party factors outside Flock’s control, such as internet connectivity, mobile data availability, etc., and failure or reduction of Flock SAAS on account of such factors does not result in any breach of provision of Flock SAAS by Flock.
3.2 Flock will maintain security practices that are at least as stringent as the minimum security practices that Flock uses for its own data.
3.3 Flock shall ensure that Flock SAAS operates as per the terms outlined in the Service Level Agreement, which may be found here.
4. Modification of Flock SAAS, Plans, Subscription and Agreement
4.1 Flock may make commercially reasonable changes to the Plans and to the features of Flock SAAS, from time to time. If Flock makes a material change to either the Plans or to the features of Flock SAAS, Flock shall inform the Customer, provided that the Customer has subscribed to be informed of such changes.
4.2 Flock may make changes to this Agreement, from time to time which shall become effective as and when Flock notifies the Customer of such changes.If the Customer does not agree to any change, then the Customer may terminate this Agreement and request Flock to cancel the Customer’s Subscription. Such a termination and cancellation will be the exclusive remedy of the Customer if the Customer does not wish to abide by any change to this Agreement.
4.3 The Customer agrees and acknowledges that in the event the Subscription is obtained through the Partner, then the Partner may have access to and control over Customer Data in order to fulfil its obligations under the agreement between the Partner and the Customer. In such a case, the Partner shall be required to deal with such Customer Data in accordance with the provisions of applicable data protection law.
5. End User Accounts
5.1 The Customershall be solely responsible to ensure that each End User adheres to the terms of this Agreement, the End User’s ToU, any applicable law and the AUP.
5.2 Use of Flock SAAS is available only to persons above the age of majority as determined by the laws of the jurisdiction from where such person’s access Flock SAAS ("Age of Majority").It shall be the sole responsibility of the Customer to ensure that all End Users are of the Age of Majority. Flock shall bear no responsibility for any violation of this provision and reserves the right to terminate a Customer's Subscription if it is brought to Flock's notice or if it is discovered that any End User is under the Age of Majority.
6. Term
6.1 The Agreement, and the Subscription shall commence from the time of the Acceptance Confirmation and shall be in force for the time period specified by Flock or the time specified to Flock by the Partner at the time of creation of the Subscription which may be subsequently extended or reduced by either Flock or the Partner, as the case may be(“Term”).
7. Payment Terms
7.1 In consideration of the Customer utilizing Flock SAAS,, the Customer shall pay sufficient and valid consideration specified by either the Partner or Flock (“Fees”).
7.2 It will be the sole responsibility of the Customer to pay the Fees. In the event that the Customer does not adhere to its payment obligations, then Flock, at its sole discretion, reserves the right to either suspend the Customer’s Subscription or terminate this Agreement immediately without giving any notice to the Customer.
7.3 In the event the Customer has obtained Flock SAAS from Flock, then if the Customer raises a refund request within the first 30 days of a new purchase, Flock will refund the full money charged from the Customer, upon Customer raising a request for the refund with Flock. Post 30 days, the Customer will not be eligible for any refunds.
7.4 In the event the Customer has obtained Flock SAAS from a Partner, then all payment, cancellation and refund terms specified by the Partner shall be applicable to such purchases.
8. Suspension of Subscription
8.1 Flock may suspend Subscription without any liability and without any notice for any of the following reasons:
- Flockreasonably believes that the Subscription is being used in violation of the Agreement;
- The Customerdoes not cooperate with Flock’s investigation of any suspected violation of the Agreement;
- There is an attack on the Customer’s systems;
- Flock is required by applicable law, or a regulatory or government body to suspend the provision of the Subscription or Flock SAAS; or
- Occurrence of any other event where Flock reasonably believes that the suspension of Subscription is necessary to protect the Flock network or its other customers.
9. Publicity
The Customer agrees that Flock may include the Customer’s name in a list of Flock’s customers, online or in promotional materials. The Customer also agrees that Flock may verbally reference the Customer as a customer of the Flock products or services that are the subject of this Agreement. To this effect, the Customer hereby grants to Flock, which accepts it, during the Term of this Agreement, a non-exclusive, worldwide, royalty free and non-transferable right to use the Customer’s Trademarks.
10. Representations and Warranties
10.1 Flock and the Customer, individually represent and warrant to the other that:
- It is a validly incorporated business entity;
- It has all necessary rights, powers and authority to perform its obligations under this Agreement, and the execution, delivery and performance of this Agreement by Flock and the Customer has been duly authorized by all necessary corporate actions; and
- It shall at all times and at its own expense strictly comply with all applicable laws and maintain in full force and effect all licenses, permits and authorization from all governmental departments and agencies to the extent necessary to perform its obligations under this Agreement.
10.2 The Customer represents and warrants that:
- By entering into this Agreement, it is not violating or infringing upon or otherwise violating the rights of any third party;
- It will not be involved in distribution of malware, abusively operating botnets, phishing, piracy, trademark or copyright infringement, fraudulent or deceptive practices, counterfeiting or otherwise engaging in activity contrary to applicable law;
- It will correct and update its information within seven (7) days of any change;
- It will ensure that the End User is using Flock SAAS in a manner that is compliant with the terms and conditions mentioned in this Agreement, all applicable law, and the AUP; and
- It will respond promptly to any enquiries from Flock concerning the terms of this Agreement or the provision of the Customer’s Subscription.
10.3 The Customeracknowledges that a breach of its representations and warranties will constitute a material breach of the Agreement, which will entitle Flock to terminate this Agreement immediately upon such breach without any liability, refund or notice to the Customer.
11. Termination
11.1 Notwithstanding any of the other Clauses in the Agreement, Flock may terminate this Agreement by giving a 30 (Thirty) day notice;
11.2 Notwithstanding any other Clause in the Agreement, Flock may terminate this Agreement immediately without giving the Customer any notice if the Partner requests Flock to terminate this Agreement
11.3 In the event the Customer has obtained Flock SAAS from a Partner, this Agreement shall stand terminated immediately on the date on which the agreement executed between the Customer and the Partner is terminated.
12. Consequences of termination
12.1 Upon the termination of this Agreement, both parties agree that:
- The rights and obligations of either party shall cease immediately (except as set forth in this Clause);
- Unless Flock is required to retain the Customer Data for a mandatory time period specified by provisions of applicable law, Flock, at its sole discretion, may immediately or within a reasonable period of time, delete all Customer Data; and
- Upon request, each party will promptly use commercially reasonable efforts to return or destroy all other Confidential Information of the other party, and if so requested, confirm such deletion to the requesting party.
13. Indemnification
13.1 The Customeragrees and acknowledges to defend, indemnify, and hold harmless Flock and its respective directors, officers, employees, agents, affiliates, and contractors, from all liabilities, claims and expenses, including attorney’s fees, arising out of any third party claim relating to:
- The Customer’s data or its domain name ownership;
- The Customer’s infringement of any third parties’ intellectual property; and
- The Customeror the End User violating any of the terms of this Agreement or any of Flock’s policies, including but not limited to the AUP, End User ToU and Privacy Policy.
13.2 The Customeragrees that Flock will have the right to choose legal counsel to defend the claim, provided that these decisions must be reasonable and must be promptly communicated to the Customer. The Customer must comply with all requests for assistance and cooperation made by Flock in the defence of the claim.
13.3 This provision will survive the termination of this Agreement.
14. Limitation of liability
14.1 To the extent permitted by law, neither party will be liable under this Agreement for lost revenues or indirect, special, incidental, consequential, exemplary, or punitive damages, losses or expenses, even if the party knew or should have known that such damages, losses or expenses were possible and even if direct damages do not satisfy a remedy.
14.2 Under no circumstance shall Flock be liable to the Customerfor loss of Customer Data.
14.3 The Customeragrees that its sole and exclusive remedy, with respect to Flock SAAS being provided under this Agreement and any breach of this Agreement is to terminate this Agreement. Flock’s liability for any breach of this Agreement is limited to the lower of (i) the Fees remitted in the immediately preceding 6 (Six) months from the date on which the claim of action first arose, and (ii) the maximum amount permitted by applicable law. In the event that the Customer has not paid any Fees, then the Customer agrees that Flock’s liability will be limited to the maximum extent permitted under applicable law.
15. Disclaimer of warranties
15.1 The Customeracknowledges and agrees that Flock SAAS is provided/supplied by Flock on an ‘as is where is’ basis. Neither Flock nor any of its representatives has made nor will make any representation or warranty whatsoever, express, implied or statutory, including, without limitation, any implied representations or warranties of merchantability, fitness for a particular purpose, title, enforceability or non- infringement.
15.2 The Customeragrees and acknowledges that any warranty with respect to Flock SAAS that barring the express warranties made by Flock in this Agreement, Flock does not make any other warranty of any kind, whether express or implied.
15.3 Flock does not promise that Flock SAAS will be uninterrupted, error-free, or completely secure. The Customeracknowledges that there are risks inherent in internet connectivity that could result in the loss of privacy, customer data, Confidential Information, etc., which could adversely impact Flock SAAS, which are not in Flock’s control.
16. Restrictions on use ofFlock SAAS
16.1 The Customerand the End Users are not permitted to upload any data that is in excess of the amount permitted in their Plan on Flock’s servers without prior agreement with Flock.
16.2 Illegal material is not permitted on any of Flock's servers, whether this be images, film clips, other types of files or link to unlawful photos or similar material. For example, unlawful material is, but not limited to, copyright protected material or other material you are not entitled to publish or store according to legislation. Nor is it permitted to store erotic, pornographic or other offensive material on servers owned by Flock. It is entirely Flock's decision to determine whether material belongs to one or more of the above categories, and Flock reserves the right to delete any such material at any time without notice. In the event of such material being deleted the Customercannot advance any claim against Flock related to the deletion.
16.3 Traffic, though unlimited, must be normal in nature and not disrupt that of other customers. If the Customer's traffic disrupts that of others, Flock reserves the right to close the Customer's account without notice and/or make a separate charge for the traffic, which will be borne by the Customer. Flock reserves the absolute right to decide whether or not traffic is excessive. On closure of a Customer’s account, no refund will be made of any subscription paid in advance.
16.4 Unwanted (spam) mail must not be sent from Flock's servers. In the event of breach of this rule, Flock reserves the right to inform the relevant authority and submit log details etc. to that authority. Flock reserves the right to demand payment for time spent in relation to such information and its submission to the relevant authority.
17. Privacy policyand Data Processing.
17.1 Information collected about the Customer and its End User is subject to the privacy policy. By entering into the Agreement with Flock, the Customer and its End Users accept to the terms of Flock’s privacy policy, which can be accessed here.
17.2 Flock agrees and acknowledges that it shall process End User Data in accordance with the applicable data protection regulation. However, in the event (i) Flock is deemed to be a Processor (as defined in GDPR) of End User Data, and (b) the Customer is deemed to be a Controller (as defined in GDPR) of such End User Data, then Flock agrees and acknowledges that it shall process all such End User Data in accordance with the Data Processing Addendum accessible here. By agreeing to the terms of this Agreement through the Acceptance Confirmation, the Customer agrees and acknowledges that it has agreed to the terms outlined in the Data Processing Addendum.
18. Intellectual Property Rights
18.1 For the purpose of this Agreement, intellectual property rights shall mean all current and future worldwide rights under patent law, copyright law, trade secret law, trademark law, moral rights law, and other similar rights (“Intellectual Property Rights”).
18.2 Except as expressly set forth herein, this Agreement does not grant either party any Intellectual Property Rights to the other party. The Customer agrees and acknowledges that Flock owns any and all Intellectual Property Rights in and to Flock SAAS. Flock agrees that the Customer shall own any and all Intellectual Property Rights over Customer Data.
19. Confidential Information
19.1 The Customer and Flock, both agree not to use the other’s Confidential Information except in connection with the performance or use of Flock SAAS.
19.2 Flock and the Customer agree that they will: (a) protect the other party’s Confidential Information with the same standard of care it uses to protect its own Confidential Information; and (b) not disclose the Confidential Information, except to affiliates, employees and agents who need to know such Confidential Information and who are subject to similar confidentiality obligations. Each party (and any affiliates, employees and agents to whom it has disclosed Confidential Information) may use Confidential Information only to exercise rights and fulfil its obligations under this Agreement, while using reasonable care to protect it. Each party is responsible for any actions of its affiliates, employees and agents in violation of this Clause.
19.3 Each party may disclose the other party’s Confidential Information when required by law but only after it, if legally permissible: (a) uses commercially reasonable efforts to notify the other party; and (b) gives the other party the chance to challenge the disclosure.
20. Governing Law and Dispute Resolution
20.1 This Agreement shall be governed by the laws of Singapore.
20.2 And dispute arising out of or in connection with this Agreement, including any questions regarding its existence, validity and termination, shall be referred to and finally resolved by arbitration administered by the Singapore International Arbitration Centre (“SIAC”) in accordance with the Arbitration Rules of SIAC (“SIAC Rules”) for the time being in force, which rules are deemed to be incorporated by reference to this clause.
20.3 The tribunal will consist of 1(One) arbitrator who will appointed by the parties mutually. If the parties are unable to appoint an arbitrator mutually, the arbitrator shall be appointed by SIAC as per the provisions of the SIAC Rules.
20.4 The seat of the arbitration will be Singapore and the language of the arbitration shall be English.
20.5 Flock and the Customer shall bear their own costs and expenses, incurred in connection with the arbitration proceedings, unless otherwise awarded by the arbitrator in the arbitral award.
20.6 Nothing herein shall preclude either Flock or the Customer from seeking interim or permanent equitable or injunctive relief, or both, from any court having jurisdiction to grant the same. The pursuit of equitable or injunctive relief shall not be a waiver of the right of the parties to pursue any remedy for monetary damages through the arbitration described in this Clause 20.
20.7 Subject to Clause 20.2 above, Courts in Singapore shall have exclusive jurisdiction upon all matters arising out of this Agreement.
21. Miscellaneous
21.1 Entire Agreement: This Agreement, along with the AUP constitutes the entire understanding between Flock and the Customer and supersedes all other discussions and understanding between Flock and the Customer.
21.2 Force Majeure:Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, epidemic, pandemic, act of war or terrorism, riot, labour condition, governmental action, and Internet disturbance) that was beyond the party’s reasonable control.
21.3 Notices: Unless specified otherwise herein, (a) all notices must be in writing and addressed to the attention of the other party’s legal department and primary point of contact and (b)notice will be deemed given: (i) when verified by written receipt if sent by personal courier, overnight courier, or when received if sent by mail without verification of receipt; or (ii) when verified by automated receipt or electronic logs if sent by facsimile or email.
21.4 Severability: The invalidity or unenforceability of any provision in this Agreement shall in no way affect the validity or enforceability of any other clause in the Agreement.
21.5 Survival: The provisions which by their nature, intend to survive the termination of this Agreement, shall survive the termination of this Agreement.
21.6 Conflict: Unless otherwise provided for, in the event of any conflict between the terms of this Agreement and any other agreement executed between Flock and the Customer, the terms of this Agreement shall prevail.
21.7 Contact Person and Grievance Officer: If you have any questions about the terms of this Agreement or do not understand any of the provisions, you can contact our grievance desk at privacy@flock.com