Even though the essential features of the Daybeam Services are free of charge, some features may entail an obligation to pay. Therefore, please pay attention to these Supplemental Terms and other information displayed within Daybeam or on the Website.
“Client” means User who installs a full or partial copy of Premium Daybeam on the User’s Device.
“Daybeam” or “Software” means the time tracking software, the browser app, all the desktop apps and mobile apps, its updates, upgrades, enhancements, modifications, extensions, new features and possible replacements provided by Flocksy.com, now existing or later developed, and other programs and tools, developed in conjunction therewith, including:
- — Cloud-based service, whereby Flocksy.com is making available the Software, the User Account and the Content (including the related mobile apps, desktop apps and extensions as well as other computer programs Flocksy.com makes available in conjunction therewith) on-demand (“Cloud Daybeam”);
- — Software installed on a licensed User’s Device and hosted by that User (“Premium Daybeam”), as further explained herein; and
- — Set of APIs that enable the User community, including application developers and website operators, to retrieve data from Daybeam or provide data to us (“Platform”).
“Daybeam Services” mean making Daybeam available by Flocksy.com in any version (both Cloud Daybeam and Premium Daybeam), in full or in part, including any updates, upgrades, enhancements, modifications, new features, programs and tools.
“End User” means a User who uses Premium Daybeam based on the license lawfully obtained by Client (Premium Daybeam). End Users have to access Premium Daybeam via email that contains the Client’s domain used for the license granted hereunder.
“Premium Plan” means the pricing for the “Premium Daybeam” as explained here and agreed between the Parties.
“User’s Device” means (i) the designated system (server) capable of running the Software; or (ii) any hardware system, whether physical or virtual, with an internal storage device capable of running the Software.
“Website” means the websites located at https://Daybeam.com, as well as the related mobile apps and desktop apps and all browser extensions collectively or each of them individually.
2. CHANGES TO THESE SUPPLEMENTAL TERMS
If you use Premium Daybeam, Flocksy.com will send you the notification on the amendments to these Supplemental Terms. If you do not agree to the new agreement, you must notify Flocksy.com within 10 days from receipt of such notification or delete your User Account. If you fail to send such notification to Flocksy.com or delete your User Account, your continued use will be deemed as acceptance to the new agreement. If you do not wish to comply with the new agreement and you send a notification with the refusal to comply within 10 days, the existing Agreement will continue to be valid until the expiration of the then-current billing term (for example, until the expiry of the year for which Client has already made payment to Flocksy.com), unless the Parties agree otherwise.
A Subscription Plan is connected to a single Workspace. After subscribing to a Subscription Plan to one or more Workspaces, a User may continue to have multiple Workspaces subscribed to a Free Plan.
Subscription Plans are being charged based on the number of Seats and number of Workspaces with Extra Features within such a plan.
4. USERS OF PREVIOUS PLANS
This section applies to the Users who have subscribed to Daybeam and have continued to use Daybeam per any of the paid plans that are no longer offered on Daybeam (the “Previous Plans”).
If the User decides to cancel their subscription to one of the Previous Plans or delete the User Account on Daybeam, from the moment of cancellation or deletion of the User Account, the User will not be able to subscribe to any of the Previous Plans anymore, but only to the available plans within the current Price Plan.
The User may not upgrade or downgrade any Previous Plans, except for the previous enterprise plan in which the User may freely change the number of Seats.
Notwithstanding the provisions in this Section, Flocksy.com retains the sole and exclusive right to cancel Previous Plans at any time.
5. COMPLIANCE WITH DATA PROTECTION LAWS
A USER OR AN ENTERPRISE MAY USE DIFFERENT Daybeam FEATURES. SOME FEATURES MAY RAISE ADDITIONAL PRIVACY RISKS OR CONCERNS (for example, GPS tracking or Screenshots). BEFORE ACTIVATING A CERTAIN FEATURE, THE USER OR ENTERPRISE MUST MAKE SURE TO UNDERSTAND HOW THE FEATURE OPERATES (including but not limited to how Flocksy.com may process personal data on behalf of the User or Enterprise).
WHEN THE USER OR AN ENTERPRISE ACTS AS A CONTROLLER FOR ANY Daybeam FEATURES, IT MUST ENSURE THAT IT HAS A LAWFUL BASIS FOR PROCESSING PERSONAL DATA UNDER APPLICABLE PRIVACY LAW.
6. DISCLAIMER OF WARRANTIES
YOUR USE OF OUR SERVICES IS AT YOUR SOLE RISK. EXCEPT AS OTHERWISE PROVIDED IN A WRITING BY US, OUR SERVICES AND ANY CONTENT THEREIN ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. IN ADDITION, Flocksy.COM DOES NOT REPRESENT OR WARRANT THAT OUR SERVICES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT, ERROR-FREE, SECURE, TIMELY, OR WILL BE UNINTERRUPTED OR OF SATISFACTORY QUALITY. WHILE Flocksy.COM ATTEMPTS TO MAKE YOUR USE OF OUR SERVICES AND ANY CONTENT THEREIN SAFE, WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT OUR SERVICES OR SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ASSUME THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SERVICES. USER IS SOLELY RESPONSIBLE FOR ANY DAMAGE USER MAY SUFFER RESULTING FROM THE USE OF OR INABILITY TO USE THE SERVICES. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY Flocksy.COM OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF Flocksy.COM’S OBLIGATIONS.
Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimers may not apply to you. In such jurisdictions, if there is a breach of warranty, you may notify Apple if you purchased the App from Apple, and Apple may refund the purchase price for the App, if any. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation or liability whatsoever.
7. LIMITATION AND EXCLUSION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL Flocksy.COM OR OUR AFFILIATES, AND THEIR RESPECTIVE BUSINESS PARTNERS, LICENSEES, LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS (“Flocksy.COM PARTIES”) BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY—WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, WARRANTY, OR OTHERWISE—FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY (INCLUDING LOST PROFITS, ANY BREACH OF SECURITY OR ANY DAMAGE TO YOUR DEVICE, LOST DATA, PERSONAL INJURY, PROPERTY DAMAGE, OR LOSSES ARISING OUT OF YOUR USE OF OR RELIANCE ON THE SERVICES, OR YOUR INABILITY TO ACCESS OR USE THE SERVICES), INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES OR LOST PROFITS, ARISING FROM, RELATING TO, OR IN ANY WAY CONNECTED WITH THE USE OR THE PERFORMANCE OF THE SERVICES, OR THESE TERMS, EVEN IF Flocksy.COM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
In the event that any of the foregoing limitations are deemed unenforceable or in the event any liability of the Flocksy.com Parties is established, to the greatest extent permitted by law, the total aggregate liability of the Flocksy.com Parties for any claim arising out of or relating to our Services, regardless of the form of the action, is limited to the greater of $20 or the amount paid by you to use our Services in the preceding twelve (12) months.
You agree that this limitation of liability represents a reasonable allocation of risk and is a fundamental element of the basis of the bargain between Flocksy.com and you. You understand that the Services would not be provided without such limitations.
The limitations set forth in this Section 7 will not limit or exclude liability for the gross negligence, fraud, or intentional misconduct of the Flocksy.com Parties or for any other matters in which liability cannot be excluded or limited under applicable law. Additionally, some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.
A. TERMINATION BY USER
In relation to Premium Daybeam, Flocksy.com has no means or powers to provide the End User with the possibility to close the User Account. If you are an End User, please contact the Client regarding this matter.
B. TERMINATION BY Flocksy.COM
Flocksy.com may, at its sole discretion for any reason, terminate the Daybeam Services and/or terminate these Supplemental Terms with Client in relation to Premium Daybeam after the expiry of sixty (60) days from the day the notice of such termination is sent to Client.
9. JURISDICTION AND CHOICE OF LAW; DISPUTE RESOLUTION
Please read the following section carefully because it requires you to arbitrate certain disputes and claims with Flocksy.com and limits the manner in which you can seek relief from us, unless you opt out of arbitration by following the instructions set forth below. No class or representative actions or arbitrations are allowed under this arbitration provision. In addition, arbitration precludes you from suing in court or having a jury trial.
- (a) No Representative Actions. You and Flocksy.com agree that any dispute arising out of or related to these Supplemental Terms or our Services is between you and Flocksy.com and that any dispute will be resolved solely through individual action, and will not be brought as a class arbitration, class action, or any other type of representative proceeding.
- (b) Arbitration of Disputes. Except for small claims disputes in which you or Flocksy.com seek to bring an individual action in small claims court located in the county of your billing address or disputes in which you or Flocksy.com seek injunctive or other equitable relief for the alleged infringement or misappropriation of intellectual property, you and Flocksy.com waive your rights to a jury trial and to have any other dispute arising out of or related to these Supplemental Terms or our Services, including claims related to privacy and data security, (collectively, “Dispute(s)”) resolved in court. Instead, for any Dispute that you have against Flocksy.com you agree to first contact Flocksy.com and attempt to resolve the claim informally by sending a written notice of your claim (“Notice”) to Flocksy.com by email at support@Flocksy.com or by certified mail addressed to Flocksy.com Inc, 2100 GENG RD STE 210, Palo Alto, CA 94303, USA. The Notice must (a) include your name, residence address, email address, and telephone number; (b) describe the nature and basis of the Dispute; and (c) set forth the specific relief sought. Our notice to you will be similar in form to that described above. If you and Flocksy.com cannot reach an agreement to resolve the Dispute within thirty (30) days after such Notice is received, then either party may submit the Dispute to binding arbitration administered by JAMS or, under the limited circumstances set forth above, in court. All Disputes submitted to JAMS will be resolved through confidential, binding arbitration before one arbitrator. Arbitration proceedings will be held in Santa Clara County in the State of California. You and Flocksy.com agree that Disputes will be held in accordance with the JAMS Streamlined Arbitration Rules and Procedures (“JAMS Rules”). The most recent version of the JAMS Rules is available on the JAMS website and are hereby incorporated by reference. You either acknowledge and agree that you have read and understand the JAMS Rules or waive your opportunity to read the JAMS Rules and waive any claim that the JAMS Rules are unfair or should not apply for an
- (c) You and Flocksy.com agree that these Supplemental Terms affect interstate commerce and that the enforceability of this Section 9 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, these Supplemental Terms, and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any Dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. The arbitrator may conduct only an individual arbitration and may not consolidate more than one Enterprise’s claims, preside over any type of class or representative proceeding, or preside over any proceeding involving more than one Enterprise.
- (d) The arbitration will allow for the discovery or exchange of non-privileged information relevant to the Dispute. The arbitrator, Flocksy.com, and you will maintain the confidentiality of any arbitration proceedings, judgments, and awards, including information gathered, prepared, and presented for purposes of the arbitration or related to the Dispute(s) therein. The arbitrator will have the authority to make appropriate rulings to safeguard confidentiality, unless the law provides to the contrary. The duty of confidentiality does not apply to the extent that disclosure is necessary to prepare for or conduct the arbitration hearing on the merits, in connection with a court application for a preliminary remedy or in connection with a judicial challenge to an arbitration award or its enforcement, or to the extent that disclosure is otherwise required by law or judicial decision.
- (e) You and Flocksy.com agree that the Party that initiates the arbitration shall pay all JAMS fees and costs. You and Flocksy.com agree that the state or federal courts of the State of California and the United States sitting in Santa Clara County in the State of California have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
- (f) Any Dispute will be governed by and construed and enforced in accordance with the laws of California, except to the extent preempted by U.S. federal law, without regard to conflict of law rules or principles (whether of California or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any Dispute between the Parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the state or federal courts of California and the United States, respectively, sitting in Santa Clara County in the State of California.
- (g) Any Dispute must be filed within one (1) year after the relevant claim arose; otherwise, the Dispute is permanently barred, which means that you and Flocksy.com will not have the right to assert the claim.
- (h) If any portion of this Section 9 is found to be unenforceable or unlawful for any reason, (a) the unenforceable or unlawful provision shall be severed from these Supplemental Terms; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Section 9 or the Parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 9; and (c) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 9 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 9 will be enforceable.
- Premium Daybeam
The terms in the other sections of these Supplemental Terms apply generally to the use of Daybeam. Additionally, this Section 10 applies only to legacy users of Premium Daybeam and to the Daybeam desktop and mobile apps and contains specific terms that apply in addition to the general terms of these Supplemental Terms. These specific terms govern only with respect to Premium Daybeam if there are any conflicts with the terms in the other sections of these Supplemental Terms.
If a User wishes to install Daybeam on its internal device, the User must obtain a license from Flocksy.com. A User is authorized to use Premium Daybeam only if they are properly licensed which means that the User has previously read, understood and accepted the terms of these Supplemental Terms (including provisions applicable to Premium Daybeam), the User has paid all applicable fees calculated on the billing page (or set in the invoice issued by Flocksy.com) and the Software has been properly downloaded and activated with a genuine product key or by other authorized methods provided by Flocksy.com and for the duration of the license.
A copy of the Premium Daybeam created pursuant to these Supplemental Terms at the User’s Device is being licensed for a limited period of time and cannot be sold, and Client receives no title to or ownership of any copy or of the Software itself.
Flocksy.com charges the license for Premium Daybeam annually in accordance with the Premium Plan and the offer sent to with Client.
Premium Plan entails:
- — All-time tracking and reporting features included
- — All future updates included
- — All data is encrypted at rest by default
- — Managing and controlling User Accounts from the admin panel
- — Managing access using SSO (SAML2, OAuth2, AD/LDAP, etc)
- — Pulling and pushing data to and from Daybeam via API/webhooks
- — Unlimited number of workspaces to keep team data separate
- — Priority support via email, chat and phone support (best-effort support).
- Premium Plan does not include additional services provided by Flocksy.com such as Premium Support and Managed Service (“Additional Service”). The provision of the Additional Service may be subject to another agreement with Flocksy.com. For further information on the Additional Service please contact firstname.lastname@example.org
License Rights. During the term of these Supplemental Terms, Flocksy.com grants Client a limited, non-exclusive, non-transferable, revocable, temporary, non-sublicensable, non-refundable license to install a copy of the Premium Daybeam on the designated User’s Device and use the Premium Daybeam solely for Client’s internal business use for the agreed number of End Users (the “License Rights”), provided Client pays all the agreed fees and complies with the restrictions set forth herein. The Client’s internal business use shall mean the authorization granted to the Client to use Premium Daybeam to provide Software-as-a-Service access to the agreed number of its End Users for the purpose of tracking time or monitoring of their work activities. Such internal business use does not include use by any parent, subsidiary, or affiliate of Client, or any other third party, and Client shall not permit any such use. The Client License Rights do not include access to the Daybeam Server source code.
- — modify, create derivative works from, distribute, publicly display, publicly perform, or sublicense the Premium Daybeam;
- — rent, lease or land the Premium Daybeam;
- — use the Premium Daybeam for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Software;
- — reverse engineer, decompile, disassemble, or otherwise attempt to derive any of the Premium Daybeam’s source code;
- — reproduce or create more copies of the Premium Daybeam than agreed with Flocksy.com;
- — use Premium Daybeam for more End Users than agreed in these Supplemental Terms with Flocksy.com;
- — attempt to exercise any copyright holder’s rights not specifically granted herein.
- Breaching any restriction on the Client’s software license rights will cause the Client to immediately lose the license and shall entitle Flocksy.com to the copyright infringement damages.
Flocksy.com shall provide the Premium Daybeam and documentation to Client, through a reasonable system of electronic download or otherwise agreed between the Parties, within 10 calendar days after the payment has been received by Flocksy.com.
Documentation. Upon delivery of the Premium Daybeam, Flocksy.com shall also deliver copies of the necessary documentation.
Maintenance. During the term of these Supplemental Terms, Flocksy.com will use commercially reasonable efforts to correct any failure of the Premium Daybeam (inherent to the Software itself and not caused by Client) to perform according to these Supplemental Terms within a reasonable time. The Client is not entitled to engage a third party to provide maintenance services on Premium Daybeam.
Updates. The Client will sometimes need software updates to keep using Premium Daybeam. Flocksy.com may automatically check the Client’s version of the Premium Daybeam and deploy software updates or configuration changes. The Client may also be required to update the Premium Daybeam to continue using the Daybeam Services. Such updates are subject to these Supplemental Terms, unless other terms accompany the updates, in which case, those other terms apply. Providing updates is at Flocksy.com’s sole discretion.
Upgrades. During the term of these Supplemental Terms, Flocksy.com may provide Client with copies of all upgrades, without additional charge, promptly, after the commercial release (if any). Upon delivery to Client, each Upgrade will constitute an element of the Software and will thereafter be subject to the terms and conditions herein regarding Software, including without limitation, license, warranty and indemnity terms. Providing upgrades is at Flocksy.com’s sole discretion.
C. PAYMENT FOR Premium Daybeam
Fees for Premium Plan. Premium Plan is only available as an annual plan and the applicable fees are being charged annually. The applicable fees are being charged based on the number of End Users as agreed between the Client and Flocksy.com based on Flocksy.com’s offer. The license is effective upon the Client’s payment of the applicable fees and the Client may not commence with the Premium Plan before the payment is received by Flocksy.com. The fees for the next billing period are due 30 days before the expiry of the then-current billing period.
Reduction in the number of End Users during the billing period does not entitle the Client to a refund for that billing period.
An increase in the number of End Users after the beginning of a billing cycle will be charged on a pro rata basis to match the end date of the then-current billing period.
The Client acknowledges that payment for the Daybeam Services is non-refundable for a certain billing period if these Terms are terminated any time after such billing period has started.
Fees for Additional Service. Fees for Additional Service is being charged as agreed between the Client and Flocksy.com based on Flocksy.com’s offer.
Amounts due under these Supplemental Terms or any agreement for the Additional Service with Client are payable to Flocksy.com without deduction and net of any taxes, tariff, duty, or assessment imposed by any government authority (national, state, provincial, or local), including, without limitation, any sales, use, excise, ad valorem, property, withholding, or value-added tax withheld at the source. If the applicable law requires withholding or deduction of such taxes or duties, Client shall separately pay Flocksy.com the withheld or deducted amount. However, the preceding two sentences do not apply to taxes based on Flocksy.com’s net income.
D. CONFIDENTIAL INFORMATION
Confidential Information. “Confidential Information” refers to the following information that one party to these Supplemental Terms (“Discloser”) discloses to the other (“Recipient”): (a) any document Discloser marks “Confidential”; (b) any information Discloser orally designates as “Confidential” at the time of disclosure; (c) any object code and source code disclosed by Flocksy.com together with all documentation and any names of actual or potential customers disclosed by Client, whether or not marked as confidential; and (d) any other non-public, sensitive information Recipient should reasonably consider a trade secret or otherwise confidential. Quotation offered by Flocksy.com for the license to use Premium Daybeam or for the customization services will at all times be considered confidential. Information Client shares with Flocksy.com for the purpose of sending quotation shall be treated as confidential.
Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Recipient’s possession at the time of disclosure; (ii) is independently developed by Recipient without the use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Recipient’s improper action or inaction; or (iv) is approved for release in writing by Discloser.
Nondisclosure. The Recipient shall not use Confidential Information for any purpose other than to facilitate the transactions contemplated by these Supplemental Terms (the “Purpose”) during the term of these Supplemental Terms and 10 years after its termination (regardless of the ground for termination). Recipient: (a) shall not disclose Confidential Information to any employee or contractor of Recipient unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Recipient with terms no less restrictive than those contained herein; and (b) shall not disclose Confidential Information to any other third party without Discloser’s prior written consent. Without limiting the generality of the foregoing, Recipient shall protect Confidential Information with the same degree of care it uses to protect its confidential information of similar nature and importance, but with no less than reasonable care. Notwithstanding the foregoing, Recipient may disclose Confidential Information as required by the applicable law or by proper legal or governmental authority. The Recipient shall give Discloser prompt notice of any such legal or governmental demand and reasonably cooperate with Discloser in any effort to seek a protective order or otherwise to contest such required disclosure, at Discloser’s expense. Recipient shall promptly notify Discloser of any misuse or misappropriation of Confidential Information that comes to Recipient’s attention.
Termination and Return. Upon termination of these Supplemental Terms, Recipient shall, upon request by Discloser, return all copies of Confidential Information to Discloser or certify, in writing, the destruction thereof.
E. REPRESENTATIONS, WARRANTIES, AND LIMITATION OF LIABILITY
- — Function. Flocksy.com represents and warrants that, during the term of these Supplemental Terms, the Premium Daybeam will perform materially as described herein and in the Premium Daybeam documentation.
- — Intellectual Property Rights in the Software. Subject to the next sentence, Flocksy.com represents and warrants that it is the owner of the Software and each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the Intellectual Property Rights to the Software set forth in these Supplemental Terms without the further consent of any third party.
- From both Parties:
- — Each Party represents and warrants that it has the full right and authority to enter into, execute, and perform its obligations under these Supplemental Terms and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by these Supplemental Terms.
- Warranty Disclaimers. Except for the express warranties directly above, Flocksy.com MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
com does not warrant that the Premium Daybeam will perform without error or that it will run without immaterial interruption. Flocksy.com provides no warranty regarding, and will have no responsibility for, any claim arising out of:
- — modification or maintenance of the Premium Daybeam made by anyone other than Flocksy.com, unless Flocksy.com approves such modification in writing; or
- — use of the Premium Daybeam in combination with any operating system not authorized in documentation or with hardware or software specifically forbidden by documentation.
- Exclusion of Liability for Data Security. Given that all the User Content is hosted on the Client’s server or server chosen by the Client, the security of the Client’s data and the User Content and application of the physical, technical, administrative, organizational and other measures is in the Client’s full responsibility. Under no circumstances may Flocksy.com be held accountable for any security data breach, unauthorized access, use, disclosure or any other illegal activity related to the Client’s data (including personal data of End Users) unless otherwise explicitly agreed between the Parties in an agreement for the Additional Service.
COM’S AGGREGATE AND TOTAL LIABILITY ARISING OUT OF OR RELATED TO THESE SUPPLEMENTAL TERMS UNDER ANY AND ALL CIRCUMSTANCES MAY NOT EXCEED AN ANNUAL LICENSE FEE FOR THE Premium Plan PAID BY THE CLIENT.
F. TERMINATION OF THESE SUPPLEMENTAL TERMS
Termination. These Supplemental Terms will continue until terminated by either Party as specifically authorized herein.
License Term. The license term starts on the date the Client downloads Premium Daybeam and lasts for one year period (the “License Term”). The License Term will renew automatically for periods of the same duration unless the Client gives written notice of its intent not to renew 30 days before the end of the current License Term.
Termination for Cause. Either Party may terminate these Supplemental Terms for the other’s material breach by written notice specifying in detail the nature of the breach, effective in 30 days unless the other Party first cures such breach, or effective immediately if the breach is not subject to cure.
Effects of Termination. Upon termination of these Supplemental Terms or License Term, Client shall cease all use of the Premium Daybeam and delete, destroy, or return all copies of the Premium Daybeam and documentation in its possession or control. Client admits and acknowledges that any use after the license has expired shall constitute a breach of Flocksy.com’s Intellectual Property Rights and will entitle Flocksy.com, inter alia, to copyright infringement damages.
Without prejudice to the previous paragraph of this section, the license for Premium Daybeam and these Supplemental Terms will immediately terminate if Client has failed to make payment prior to the beginning of the billing period and does not make such payment within 5 working days after Flocksy.com gives notice of such nonpayment to Client.
Upon termination of the license to use Premium Daybeam for whatever reason, Client is obliged to delete Daybeam and the Content from all the devices, prevent all End Users who have been using Premium Daybeam via license obtained by Client and present Flocksy.com with the proof of cessation of all activities authorized by these Supplemental Terms.
The Client understands and agrees that upon any termination of these Supplemental Terms:
- — all rights that Client has been granted hereunder will terminate;
- — Client must cease all activities authorized by these Supplemental Terms;
- — all amounts (if any) owed to Flocksy.com hereunder become due;
- — all User Data and other information associated with the Client’s Account may be deleted, or may become inaccessible to User;
- — all its Software-related Client’s obligations hereunder shall survive until Client has fully removed all Software from its devices, systems and storage media.
The Client has to send a written statement to Flocksy.com that Daybeam has been permanently deleted and that Client ceased using Daybeam. However, the Client may export and save the User Data or User Content via an “export” option offered at Daybeam prior to the termination date. Until Flocksy.com receives such a written statement from the Client, it shall be deemed that the Client is using Daybeam.
The following provisions will survive termination of these Supplemental Terms: Section 1, 6, 7, 9.
If any provision of these Supplemental Terms is found invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Supplemental Terms, which shall remain in full force and effect. If any provision of these Supplemental Terms violates any mandatory rule of applicable law and proves to be void as a result thereof, such provision shall, for those specific circumstances and only in that particular respect in which it is void, be deemed to have been amended to comply with the law. Any such amendment shall be confined to the minimum necessary to make the provision valid and shall retain as much of its original ambit and meaning as possible. All notices to Flocksy.com shall be provided to support@Flocksy.com or 2100 Geng Road, Suite 210, Palo Alto, CA 94303, USA. Flocksy.com may give notice to you via the email address associated with your User Account or by mail or courier to the address provided by the applicable Business User. Notice shall be deemed to have been received the next day if given via notice through a User Account or via email, or five (5) business days after posting the notice via courier or registered post. Our failure to exercise or enforce any right or provision of these Supplemental Terms shall not constitute a waiver of such right or provision. These Supplemental Terms (as updated from time to time), including any agreements incorporated by reference herein, constitutes the entire agreement between the Parties relating to the subject matter hereof and supersedes all prior agreements and understandings between the Parties with respect to that subject matter. In case of conflict between any provision herein and any statement, representation, or other information published on the Daybeam Services or contained in any other materials or communications, the provision in these Supplemental Terms shall prevail. These Supplemental Terms are binding upon you, your heirs, executors, beneficiaries, successors, and assigns, and you may not assign these Supplemental Terms to any other party without our prior written consent. Such consent may be withheld in our sole discretion, and any purported assignment without such consent shall be null and void. We may assign these Supplemental Terms without notice thereof to you.