Please take the time to read these terms of service ("Terms of Service") carefully. This agreement is between you and LeadSquared Inc. and its affiliates and subsidiaries (which we will refer to as "LeadSquared,""we," or "our"). This Agreement controls how you can use our Services and Software specifically with regard to the platform FloStack
, which forms a part of the offerings of LeadSquared. You can agree to this contract for yourself or for a company or organization. If you are accepting this agreement for a company or organization, you are representing that you have the authority to bind that company or organization to this agreement.
” shall mean (as per Customer Jurisdiction):
- For United States of America: LeadSquared Inc., a United States corporation with its registered office at No. 510 Thornall Street, Suite 210, Edison, NJ-08837, United States of America.
- For India: MarketXpander Services Private Limited, a company incorporated under the Companies Act, 1956, with its registered office at No. 33, Sector-6, HSR Layout, Bangalore – 560102
- For Africa: Approx (Pty.) Ltd. (Registration Number: 2014/079811/07) a private limited liability company duly incorporated in accordance with the company laws of the Republic of South Africa, having its office at Unit 77 Ninth on Lever, 761 Leogem Place, Midrand, Johannesburg 1685, South Africa.
- For Australia: LeadSquared Australia PTY Ltd., an Australian Private Company with its registered office at Unit 233 100 Kavanagh Street, Southbank VIC 3006
- For Singapore and South East Asia: Leadsquared Pte Ltd, 143 Cecil Street, a private company limited by shares duly incorporated in accordance with the laws of the Republic of Singapore, with its registered office at #25-0, GB Building, Singapore 069542.
- For Rest of the World (excluding above): LeadSquared Inc., a United States corporation with its registered office at No. 510 Thornall Street, Suite 210, Edison, NJ-08837, United States of America.
” or “Customer
” if you are an individual accepting this agreement on your own behalf, shall mean you. If you are an individual accepting this agreement on behalf of a company or legal entity, it shall mean that company or legal entity.
(i) with respect to any party other than a natural person, any other person who holds or in which such party holds 50% or more of the paid-up share capital, directly or indirectly, or is controlling, controlled by or under common control with such party;
(ii) in the case of any party that is a natural person, any other person who is a relative of such party as per the provisions of the act.
For the purposes of this definition, the term “control” (including with correlative meaning, the terms “controlled by” and “under common control” with)as applied to any party,
(i) means the (a) ownership or possession, directly or indirectly, of more than one half of the voting power of an enterprise, or (b) control of the composition of the board of directors in thecase of a company or of the composition of the corresponding governing body incase of any other enterprise, or (c) a substantial interest in voting power and the power to direct, by statute or agreement, the financial and/or operating policies of the Person; and
(ii) shall include the ownership or possession, directly or indirectly, of the power to direct or cause the direction of the management of that Person whether through ownership of voting securities or otherwise.
d. “Acceptable Use Policy
” or “AUP
” shall mean ourAcceptable Use Policy set out at https://www.leadsquared.com/aup;
e. “Billing Cycle
” shall mean a duration cycle (like month, quarter, year) for which billing is done in one go, as indicated in your Order Form;
f. “Consulting Services
” shall mean the professional Services provided to you by us, the details of which shall be captured in the Order Form;.For instance: training, installation, integration or consulting Services;
g. “Customer Data
” shall mean any information submitted to the FloStack Platform by you;
h. “Effective Date or Start Date
” shall mean the date mentioned as subscription start date in your Order Form;
i. “Force Majeure
” shall mean any event outside the reasonable control of either of us, that adversely affects the provision of Services. Example:an act of war, hostility, sabotage, act of God, epidemic, pandemic, electrical, internet or telecommunication outage, cyber-attacks, government or regulatory restrictions, change in law applicable to the Services;
j. “FloStack Platform
” shall mean the suite of applications that we make available to you under the name FloStack in accordance with the terms of the Order Form signed between you and us;
k. “Order Form
” shall mean the form signed by you and us, with your details and the Services opted by you, with relevant terms, pricing and payment terms.
” means any natural person, sole proprietorship, corporation, partnership, limited liability company, firm, joint venture, association, joint-stock company, trust, unincorporated organization, governmental entity, or any other entity
m. “Planned Downtime
” shall mean the period during which our Services may be shut down for planned maintenance. To the extent possible and reasonable, we will schedule such downtime during non-business hours such as weekends and public holidays, for majority of our customers and at least 24(twenty-four) hours’ prior notice will be provided to you;
n. “Service Fees
” shall mean the amounts that you must pay to us for using the Services;
” shall collectively mean the Subscription Services and Consulting Services provided by LeadSquared to you;
p. “Subscription Fees
” shall mean the amounts that you must pay to us for using the Subscription Services;
q. “Subscription Services
” shall mean the provisions of access to the FloStack Platform as per the terms in the Order Form;
r. “Subscription Term
” shall mean the term of the Subscription Services commencing from the Start Date, as specified in the Order Form,; and
” mean individuals (humans) authorized or enabled by you to access the Services.2) SCOPE OF SERVICES
a. Subscription Services
i. The Services that you sign up for are only for you and you are not allowed to transfer your license for the Services to anyone else. This license lets you and the Users access and use the FloStack Platform for your business needs. You must follow these Terms of Service, any additional terms we may agree on in your Order Form, and all relevant laws. Please note that you cannot use this license for testing our product, comparing it to others for a review, or any other such activity that ends up in public domain.
ii. If you want additional features from our bouquet of Services, you can add them anytime through an additional Order Form.
iii. We might make changes to the FloStack Platform every now and then, but we will make sure these changes will not negatively affect your Subscription Services. However, there is no obligation on us to release new features or updates. Even if we have made public announcements about future features, we cannot guarantee they will be released. This means that when you agree to receive any of our Services and agree to pay us for it, you do so for the Services “as is”.
iv. There may be times when our Subscription Services will not be available. This could be due to reasons such as scheduled maintenance (Planned Downtime) or uncontrollable events (Force Majeure). Whenever this happens, we will try and provide you notice of the unavailability promptly.b. Consulting Services
b. Consulting Services
i. We will supply consulting Services based on what is outlined in your Order Form. Unless we have agreed on something different, we will supply these Services remotely and in English.c. Third Party Service Providers or Third-Party Software
i. We might use other companies, like app Services or hosting Services, to help us supply our Services to you. We do not need to ask for your permission to do this, but we will still be responsible for the Services we provide and you may hold us liable for any mistakes by these third-parties that we use on our own accord. However, if you decide to use other companies or software, whether we have agreed to it or not, and even if it is integrated with our Services, we will not be responsible for them.3. USE OF SUBSCRIPTION SERVICES
a. Acceptable Use
You need to follow our Acceptable Use Policy when you use or access our Services. You can check out the detailed policy at https://www.leadsquared.com/aup. Important parts of this policy, which you should note, are that. Specifically, you cannot:
i. Use or start any automated system, like “robots”, “spiders”, or “offline readers”, that sends more requests to our servers in a certain amount of time than a person could reasonably do using a regular web browser;
ii. Use our Subscription Services in a way that harms, disables, overloads, or harms any of our websites or interferes with anyone else's use of the Subscription Services;
iii. Try to access the Subscription Services without permission;
iv. Let anyone other than approved users access the Services;
v. Sell, resell, rent, transfer or lease the Services unless your Order Form specifically says you can;
vi. Use the Services to store or send illegal, defamatory, or harmful material, or material that violates someone else's privacy rights;
vii. Use the Services to store or send harmful code;
viii. Access the Subscription Services through any other way than the interface we provide;
ix. Create new works based on the Services or the software unless we've given you explicit permission;
x. Test our product, compare it to others for a review, or any other such activity that ends up in public domain.
xi. Try to reverse engineer the Services or the software or access the Services to: (a) create a competing product or service, or (b) copy any features, functions or graphics of the Services; or
xii. Use the Subscription Services for any purpose or in any way that is illegal under applicable laws or prohibited by these Terms of Service.b. Service Usage Limitations
i. The details of your Subscription Services, like number of users, contacts you can manage, emails you can send, will be as per your Order Form.
ii. We have the right to keep an eye on how you are using the Subscription Services to make sure you are staying within the usage limits. If you are using more than allowed, even if our system technically lets you, we will let you know. This could result in extra charges or even a suspension of your Subscription Services, or both.c. Intimation of Unauthorized Use
i. It is your responsibility to make sure the Subscription Services are used according to these Terms of Service. You will be responsible if any User violates these Terms of Service. If you notice any unauthorized use of your account or Users’ IDs and passwords, you need to let us know right away by emailing us at firstname.lastname@example.org. FEES AND PAYMENT TERMS
Unless your Order Form says otherwise, you will need to pay us the following fees for our Services:a. Subscription Fees
a. Subscription Fees
i. You will need to pay the subscription fees listed in your Order Form for our Services. These fees will not change during your subscription term unless:
· you use more than your allowed quota, or other limits listed in your Order Form;
· you upgrade your products or base packages; or
· you add more features, new packages, or products, including additional contacts.
ii. If you use more than your allowed quota or limit, we can charge you an extra fee. You can also choose to change your Order Form to increase your allowed usage for the future. These Extra fees for new features or additional SubscriptionServices will be charged for the rest of your subscription term.
iii. TheSubscription fees will not change if you use less than your allowed amount or stop using any or all our Services during your subscription term. Reduced usage or non-usage will not result in any refund of subscription fees already paid.
iv. Your subscription fees will increase when you renew your subscription, at the rate listed in your Order Form. b. Consulting Fees and Expenses
b. Consulting Fees andExpenses
i. Any fees for our consulting Services will be listed in your Order Form.
ii. If we perform consulting Services on-site, you will need to pay us back for any expenses we incur because of having to perform the Services on-site.c. Payment Terms
c. Payment Terms
i. You will need to pay all subscription fees in advance for your entire subscription term, before each billing cycle starts, as listed in your Order Form. All fees for consulting Services need to be paid before we start providing theseServices.
ii. We must receive the entire amount invoiced to you and any other charges levied by banks or any other financial institutions on the payments made shall be borne by you.
iii. If you are only using our Subscription Services for part of a month when you first start, we will only charge you for that part of the month.
iv. Any other payment terms will be listed in your Order Form.
v. Unless it is allowed anywhere else in the Terms of Service, the Service Fee is non-refundable.d. Invoicing
i. We will send you an invoice before your first subscription term starts and before we provide any Consulting Services. After that, we will send you an invoice no more than 45 days before each billing cycle, subscription renewal, or anytime when fees are due. You will need to pay all amounts invoiced within 15 days from the date of the invoice, unless your Order Form says otherwise.
ii. If you are late on your payments, we can charge you interest at 1.5% per month, or the highest amount allowed by law, whichever is higher, on the amounts which are due.e. Taxes
i. All service fees do not include any applicable taxes, levies, cesses and other charges, which you will need to pay additionally.
ii. If you need to deduct or withhold any tax, you will need to pay the amount deducted or withheld as required by law.5. OWNERSHIP AND PROPRIETARY RIGHTS
a. Our Rights
i. We own, or have the rights to, everything related to the FloStack Platform and our Services. This includes any changes or improvements made to them, as well as all related copyrights, patents, trademarks, and trade secrets, whether they are officially registered or not. If you or anyone else gives us feedback or input about the FloStack Platform or our Services, we will own those too. You are giving us the right to use this feedback/input for free, forever, and everywhere in the world. If we need you to sign any documents to make this official, we will pay for the costs of such documentation. We keep any rights that we have not specifically given away in this agreement.b. Your Rights
i. You own all your data and your customer data. You are giving us and our licensors a worldwide, limited, non-exclusive license to access and use this data, but only so we can provide you with our Services. You are solely responsible for making sure your customer data is accurate, high-quality, legal, reliable, appropriate, and that you have the rights to collect and use it.
ii. When we use the data you share with us, we do so under this representation from you that the sharing and usage is based on consents obtained by you from the data subjects. To put it in technical terms, for all data you share with us you are the data controller, and we are only the data processor.
iii. If the local law, for the place where we are supplying you the services, requires that we sign a separate agreement with you to allow us to process the data you share with us, you are responsible for executing such agreements.c. Using Your Name and Logo
i. You are giving us permission to use your name, website address, and logo in our marketing materials. This includes our website, email campaigns, brochures, and so on, both during and after our active engagement.6. CONFIDENTIALITY
a. Confidential Information
i. “Confidential Information” refers to any information that you or we share with each other aspart of our engagement. Whenever someone shares such information, they are the “DisclosingParty” and the other party is the “Receiving Party”. Confidential Information includes your User and Customer Data, the FloStack Platform and our Services, theseTerms of Service, Order Forms, as well as business and marketing plans, technology and technical information, product plans, designs, and business processes. However, information is not considered confidential if:
1) its publicly known and was not made public by breaking any confidentiality obligations;
2) the Receiving Party knew it before the Disclosing Party shared it and did not break any obligations to the Disclosing Party in gaining such knowledge;
3) it was given to the Receiving Party by a third party who did not break any obligations to the Disclosing Party; or
4) the Receiving Party came up with it independently.b. Protection of Confidential Information
i. The Receiving Party should protect the Disclosing Party's Confidential Information as carefully as it protects its own confidential information, but with at least a reasonable level of care. The Receiving Party cannot use the DisclosingParty's Confidential Information for anything outside of what is covered in these Terms of Service. Unless the Disclosing Party gives written permission, the Receiving Party should only let its authorised agents have access to theConfidential Information. These people (or entities, as the case may be) should also be required to keep the information confidential, with the same or stricter requirements as present in these terms of service.
ii. Sharing Information with Statutory Authorities: We can share any information, including all your data and confidential information, if we are compelled to so by any applicable law, regulation, legal process, or a governmental request. If allowed by the body making such request, we will let you know when such a request is made so that you may take steps to stop such disclosure. We will support you as much as we reasonably can, at your cost, when you take any such steps.c. Survival
The provisions of this Clause 6 (Confidentiality) shall survive the expiry or termination of these Terms of Service.7. CUSTOMER DATA PROTECTION
b. We do not check whether your customer data includes information that is subject to any specific laws or regulations where you are located. If you need us to do anything specific because of the type of customer data you have or to follow any specific laws or regulations that apply to your business or location, let us know. We will talk about whether we can do this, what it would involve, andhow much it would cost.
c. Since you are the one collecting the customer data and deciding how it is processed using our Services, you are the controller and we are the processor under data privacy laws. It is your responsibility to make sure you are following all the data protection laws that apply to collecting and transferring personal data as the controller of the data.
d. We might monitor how all our customers use the Services and use this data in a way that is aggregated and anonymous, without sharing any personally identifiable information.8. TERM, RENEWAL, SUSPENSION AND TERMINATION
a. Term of our Agreements
i. These Terms of Service start on the Effective Date and last until they are ended earlier according to these terms.
ii. The subscription starts on the Start Date listed in the relevant Order Form and lasts for the period specified there. It will automatically renew for the same length of time or for one year, whichever is longer, unless you send a non-renewal notice to email@example.com
at least 30 days before the renewal, or any other timeline that may be mentioned in the Order Form. If you add new products or features during your subscription, they will renew with your subscription, unless the Order Form says otherwise.
iii. The term for Consulting Services is set out in the relevant Order Form. If you get recurring Consulting Services, they are considered part of the subscription and will renew with it.b. Suspension of Services
We can suspend your account:
i. if you have not paid any amounts due after the payment period after giving you 15days' notice.
ii. immediately if there is unauthorized access to your account, if you violate the Acceptable Use Policy, if your use of the Services breaks any laws or regulations, or if your use of the Services poses a risk to the FloStack Platform or other users.
If the reason for the suspension continues for 15 days, we can terminate these Terms of Service or the relevant Order Form, without giving up any other remedies that might be available under these Terms of Service or applicable laws.c. Termination
i. Either party can end these Terms of Service or an Order Form for a valid reason: (i) with 30 days' notice if the other party has materially breached these terms and has not fixed the breach by the end of the 30 days; or (ii) immediately, if the other party becomes subject to insolvency, bankruptcy, liquidation or similar proceedings that are not stopped by a court within 6 months.
ii. Except as mentioned above, neither you nor we can end these Terms of Service or an Order Form before the entire term is complete. Even if you decide to stop using any of the Services before the term is complete, we will not give any refunds. You will have to pay all Service fees for the rest of the Subscription Term.d. Consequences of Expiry/Termination
i. When any of the Services end, you will need to pay all outstanding payments immediately, regardless of the billing cycle. We will not refund any amounts to you, unless you ended the Services because we materially breached these terms. In that case, we will refund the Subscription Fees for the part of the Subscription Term that did not happen yet.
ii. For 30 days after the Services end, we will keep your customer data on the FloStack Platform. During this time, you can either export your customer data from your account, or ask us to keep your account active for a longer period that we agree on, for an additional fee. After these 30 days or the agreed extended period, we will permanently delete all your customer data from your account, without keeping any copies. You agree that we are not responsible for the consequences arising from deleting of this data. Any terms that are meant to continue after these Terms of Service end, or that naturally continue, will still apply after these Terms of Service end.9. INDEMNITY
a. If someone makes a claim, demand, lawsuit, or proceeding against one of us (the “IndemnifiedParty”), the other party (the “Indemnifying Party”) will defend them and cover any direct losses, damages, or costs (including reasonable attorney fees). This applies if the claim is due to a breach of the representations and warranties made in the Terms of Service, or if a third-party claims that the use of the Services as planned here infringes on their intellectual property rights or data privacy rights. However, theIndemnified Party must (a) quickly give written notice of the claim to the Indemnifying Party; (b) let the Indemnifying Party control the defence and settlement of the claim (but the Indemnifying Party cannot settle any claim unless it completely releases the Indemnified Party from all liability); and (c) provide all reasonable help to the Indemnifying Party, at the Indemnifying Party's cost. Please note that indemnities do not include any claims, demands, lawsuits, or proceedings which we make directly on each other. Indemnities can only be invoked if the claim, demand, lawsuit, or proceeding is from a third-party and against either you or us.10. DISCLAIMERS & LIMITATIONS OF LIABILITY
a. Disclaimer of Warranties
Except for what we have specifically promised in these terms, we are providing the Services “as is”. This means that, as far as the law allows, we are not making any promises or providing any warranties about whether the Services are suitable, reliable, available, prompt, secure, fit for purpose or accurate, or about the accuracy of the data you get from the Services.
b. Limitation of Liability
Neither party, nor its directors, officers, or affiliates, will be responsible for: (I) actual or expected loss of profits, business, business opportunities, revenue, reputation, or goodwill; (II) loss, theft, or corruption of data; and (III) any special, punitive, indirect, consequential, or incidental damages (including replacement Services) that come from these Terms of Service or any third-party Services connected to them. This applies even if we have been warned that these kinds of damages might happen, and regardless of whether the liability comes from a contract, negligence, tort, strict liability, or any other legal theory. In no case will either party's total liability (other than for payment of fees due) be more than the amount the customer has paid or owes to FloStack in the 6 months immediately before the first claim, or USD $5000, whichever is less.11. GENERAL PROVISIONS
a. Compliance with Laws
Both parties agree to comply with all applicable laws and regulations necessary for performing and receiving Services.
i. Export Control:
These Terms of Service are subject to any restrictions concerning the export of products or technical information from the United States or other countries that may be imposed on you and us from time to time. Each Party confirms that it will not export, directly or indirectly, any technical information or any products using such technical information to a location or in a manner that at the time of export requires an export license or other governmental approval, without first obtaining the written consent to do so from the appropriate agency or other governmental entity and following the mandated procedures for transfer in accordance with applicable law.
ii. Anti-Bribery/ Anti- Corruption Laws:
Both parties agree to comply with all applicable anti-bribery/ anti-corruption laws and shall not, and shall not permit any of its directors, officers, managers, employees, independent contractors, representatives or agents (collectively, “Representatives”) to, promise, authorize or make any payment to, or otherwise contribute any item of value to, directly or indirectly, to any individual/entity, in violation of the applicable anti- bribery anti-bribery/ anti-corruption law including, but not limited to the U.S.Foreign Corrupt Practices Act (“FCPA”).
b. Force Majeure:
If something unexpected and beyond our control happens (any Force Majeure event), neither of us will be blamed for not being able to do what we are obligated to do under these terms of Service, except when it comes to payments for Services rendered. We will both try our best to limit the impact of such events and will inform the other of such an event as soon as we can. During the time such an event continues, you will not be charged for Services you cannot use.
c. Validity of Terms:
If a court finds any part of these Terms of Service to be against the law or unenforceable for any reason, the rest of the terms will still apply. We will work together to change the invalid part so it fits the law and our original intent.
d. Our Relationship:
These Terms of Service or your use of the Services do not create any kind of partnership, joint venture, employment, or agency relationship between you and LeadSquared.
e. Assignment Rights:
If there is a merger, reorganization, or if almost all of our assets are acquired, either of us can transfer our rights under these terms. In all other cases, the other party needs to give written approval before such rights can be transferred. This clause does not stop us from using our vendors, such as cloud service providers, in providing the Services to you.
f. No Waiver:
Any waiver of a breach of these Terms of Service, needs to be in writing for the waiver to be valid. Giving a waiver once, does not mean that you or we are giving up any rights for any future breaches.
g. Sending Notices:
Any official communication related to these Terms of Service should be in writing and can be delivered by hand, courier, or registered post. They will be considered effective once received. For notices about the use of Services, like overuse and payments, these can be sent by email. If you are the customer, we will use the name, address, and email ID from your Order Form. If you are sending a notice to LeadSquared, send it to the Legal Department at LeadSquaredInc., No. 510 Thornall Street, Suite 210, Edison, NJ-08837, USA, or email firstname.lastname@example.org
h. Entire Agreement:
These Terms of Service, along with any additional Order Forms, changes, or add-ons we agree on, make up the entire agreement between us. They replace any previous agreements, proposals, or representations, whether they were written or spoken. Any changes to an Order Form need to be in writing and agreed upon by both of us.
i. Governing Law and Dispute Resolution
: This clause defines how a dispute, or a potential dispute, between the Parties will be handled. i. The governing law and jurisdiction shall be as per the terms of the Order Form that you sign. In absence of the same, these Terms of Service shall be governed by and construed in accordance with the laws of India. Both you and we shall try to resolve any Dispute arising out of or in relation to these Terms of Service by mutual discussions. However, if such discussions are not fruitful the disputes must be submitted to arbitration under the provisions of the Arbitration and Conciliation Act, 1996, administered by Presolv360, an independent institution, in accordance with its Dispute Resolution Rules (the“Rules”). ii. Both you and we agree to the following: 1) that the arbitration shall be before a sole arbitrator appointed under the Rules. 2) Unless provided otherwise in the relevant Order Form, the juridical seat of arbitration shall be Bangalore, India. The language of arbitration shall beEnglish. 3) The law governing the arbitration proceedings shall be Indian law. 4) The decision of the arbitrator shall be final and binding on the parties. 5) Subject to the above, the competent courts at the seat shall have exclusive jurisdiction. 6) The parties agree to carry out the arbitration proceedings virtually through the online dispute resolution (“ODR”) platform of Presolv360 and, for such purpose, the email addresses and / or mobile numbers available, provided or otherwise referenced in the contract shall be considered. We shall both be responsible for intimating such institution in the event of any change in our respective email address and / or mobile number throughout the arbitration proceedings. 7) In the event the arbitration proceedings cannot be administered virtually in the opinion of the arbitrator, the proceedings shall be conducted physically, and the venue of the proceedings shall be as determined by the arbitrator having regard to the circumstances of the case, including the convenience of theparties.
j. Order of Precedence:
If there is a conflict between these Terms of Service and an Order Form, the terms in the Order Form will take precedence, but only for the issues it covers.
k. How to Contact Us:
If you need to get in touch with us, you can email us at email@example.com