These Terms of Service (“Terms”) describe the terms under which the applicable contracting entity of Fyno (“Fyno”, “We”, “Our”, or “Us”) provides an entity (“Client”, “You”, or “Your”) and their Authorised Users, the Fyno Solution(s).
If the Client is incorporated in (a) India, references to Fyno shall mean Intelligent Acumen Technologies Private Limited, (b) any other jurisdiction, references to Fyno shall mean Fyno Technologies Inc.
By accessing and/or using the Fyno Solution(s), a) You agree to be bound by these Terms, b) You warrant to Us that You have the legal capacity to enter into this these Terms, and c) that, in the event You are entering into these Terms on behalf of any entity/company or its group, You possess the requisite authority to bind such entities, company or its groups to these Terms. If You do not agree to these Terms, You should immediately cease using Fyno Solution(s).
Fyno and the Client will be individually referred to as “Party” and collectively as “Parties”.
1. DEFINITIONS
1.1. “Affiliate” shall mean an entity that Controls, is Controlled by, or is under common Control with the subject entity.
1.2. “API” shall mean the application programming interfaces developed, enabled by or licensed to the Client that permits access to certain functionality provided by the Fyno Solution.
1.3. “Applicable Laws” shall mean with respect to a Party any statute, law, regulation, ordinance, rule, judgment, order, decree, bye-law, approval from the concerned authority, government order, governmental directive, or other governmental restriction or any similar form of decision , having the force of law of any of the foregoing, and having jurisdiction over the matter in question.
1.4. “Confidential Information” means any and all proprietary and confidential information or data, whether in tangible or intangible form, whenever and however disclosed, including, but not limited to application, software (and Intellectual Property therein), operations, network configuration, documents, Fyno Documentation, business plans, products, promotional and marketing plans, tools and techniques of business, information about a Party’s customers, merchants, vendors, partners, employees, agents and contractors and processes and/or any other confidential or proprietary information in whole or in part of either Party; and/or any other information that should reasonably be recognized as confidential information. Confidential Information need not be novel, unique, patentable, copyrightable or constitute a trade secret in order to be designated Confidential Information.
1.5. “Control,” shall mean direct or indirect ownership of control of more than 50% of the voting interests of the subject entity.
1.6. “Client Data” shall mean all electronic data, text, messages, personal data or other materials, submitted to Fyno Solutions by the Client or obtained on the Client’s behalf in connection with their use of Fyno Solutions.
1.7. “Disclosing Party” shall mean the Party disclosing the Confidential Information.
1.8. “Fee” shall mean all fees associated with Client Account as specified in the Order Form and as may be mutually agreed between the Parties in writing.
1.9. “Force Majeure Event” will mean events that are beyond the actual control of a Party such as: acts of God, acts of the public enemy, terrorism, act of civil or military authority, government actions, nationwide strikes or other labour disturbances, hurricanes, earthquakes, fires, floods, epidemics and pandemics, default or delay of public utilities or common carriers, wars and riots, technical failures beyond Fyno’s reasonable control, failure of public telecommunication systems, or acts undertaken by third parties, including distributed denial-of-service attacks.
1.10. “Fyno Documentation” shall mean any written or electronic documentation, images, video, text or sounds specifying the functionalities of Fyno Solutions any other terms & conditions or documents provided /made available to the Client in relation to Fyno Solutions by Fyno.
1.11. “Fyno Solution(s)” shall mean the cloud-based proprietary platform of Fyno that enables configuration, monitoring and automation of customer communication through a streamlined process, and Additional Features (as defined in the Order Form) provided through Website or otherwise, and any new services that Fyno may introduce to which the Client may subscribe to, and any updates, modifications or improvements thereto, including individually and collectively, the Software, the API and any Fyno Documentation;
1.12. “Intellectual Property Rights” or “Intellectual Property” shall mean any and all intellectual property rights belonging to and/or owned by either Parties in any and all parts of the world, whether registered or unregistered, including without limitation: (a) any and all now known or hereafter known tangible and intangible: (i) patents, designs, algorithms and other industrial property rights; (ii) trademarks, trade secret rights, trade dress, service marks, logos, trade names and corporate names and the goodwill of the business symbolized; (iii) copyrights and copyrighted works; (iv) computer software, source code, data and documentation ; and (vi) copies and tangible embodiments thereof. (vi) rights associated with works of authorship throughout the world, including but not limited to copyrights, moral rights, and mask-works, (vii) other intellectual and industrial property rights of every kind and nature throughout the universe, however designated, whether arising by operation of law, contract, license, or otherwise; and (b) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues hereof or hereafter in force regarding any of the foregoing and under the laws of any jurisdiction.
1.13. “Order Form” shall mean any service order form or statement of work executed by the Parties referencing these Terms and specifying the subscription information for Fyno Solution(s) including details on any Fees, payment information, and Term.
1.14. “Personal Data” shall mean data relating to a living individual who is or can be identified either from the data or from the data in conjunction with other information that is in, or is likely to come into, the possession of Fyno.
1.15. “Receiving Party” shall mean the Party receiving Confidential Information.
1.16. “Software” shall mean any software provided by Fyno (either by download or access through the internet) that allows the Client to use any functionality in connection with the Fyno Solution.
1.17. “Term” shall mean the period, commencing from the Effective Date (as defined in the Order Form), during which these Terms shall be valid, as specified in the Order Form, unless terminated in accordance with Clause 13 of these Terms.
1.18. “Third Party Services” shall mean third party application(s) or service(s) integrating with Fyno Solutions which require the Client to have their own accounts with such third-party application(s) or service(s) in order to utilize them.
1.19. “Website” shall mean the websites owned and operated by Fyno including the website accessible at: app.fyno.io
2. GRANT OF LICENSE
2.1. During the Term of these Terms, Fyno hereby grants to the Client a limited, non-transferable, non-exclusive, revocable and terminable (as per Clause 13 hereunder) license to use and/or access Fyno Solutions, subject to the terms of this These Terms.
2.2. Through the Fyno Solution, the Client shall have the right to access, configure, and connect with (i) multiple channels for customer communications; (ii) multiple communication platforms (iii) other messaging and communication platforms that are made available on the platform from time to time.
2.3. The Client shall be able to configure templates, communication routes, design workflows and such other features that are updated and made available to the Client from time to time, through Fyno Solution.
2.4. No part of this These Terms or addendums thereof shall be construed as authorizing the resale or cooperative sharing of access to the Fyno Solution to or with any third party; or as granting the Client the right to share such access or use with any third party, except allowing access to the employees, agents or service providers of the Client, as authorized under these Terms. Any Affiliate of Client that wishes to use or access Fyno Solution must be expressly identified in the Order Form. No Affiliate of the Client shall be entitled to access or use Fyno Solution unless it is specifically named therein. Any claims under or in connection with the Client’s Affiliate’s access or use of the Fyno Solution shall only be brought by the Client. Client shall be responsible for its Affiliate’s access and use of the Fyno Solution. Fyno shall use commercially reasonable efforts to make Fyno Solutions available with a monthly uptime of at least 99%.
3. AUTHORISED USAGE
3.1. The Client shall communicate to Fyno in writing of the person(s) who shall have the right to use Fyno Solutions under these Terms, subject to the terms of these Terms [“Authorised User(s)”]. The Client acknowledges and agrees that no person(s) other than the Authorized Users shall have the right to access or use Fyno Solutions. In case the Client grants the access to the Fyno Solution to any third party, other than the Authorised Users, the Client shall be responsible for all the liabilities and obligations arising out of such usage, as specified under these Terms.
3.2. At the written request of the Client and subject to any additional payments as may be notified by Fyno to the Client, Fyno may create or register a specific account/ domain name on behalf of the Client for the Client’s access to and use of the Fyno Solution (“Client Account”)
4. TRIAL
You may request a demo of the Fyno Solution for a certain period as specified by Fyno (“Trial Period”). During the Trial Period, You shall access and use Fyno Solution for free, solely for Your evaluation of the Fyno Solution. Your access and use of the Fyno Solution during the Trial Period shall be governed by these Terms and any additional terms Fyno specifies. Fyno reserves the right to suspend or terminate Your access to the Fyno Solution at any time during the Trial Period, without notice and without liability for any reason. If the Client does not purchase a subscription to the Fyno solution prior to the expiry of the Trial Period, the Client’s Account will be terminated, and any Client Data shall be deleted in accordance with Clause 14 of these Terms.
5. OBLIGATIONS OF THE CLIENT
During the Term, the Client agrees, confirms and undertakes to perform the following:
5.1. The Client shall implement/ ensure reasonable security policies and measures relating to Client Account details (including but not limited to user identification code, login, password), to ensure that no unauthorized person(s) may gain access to Fyno Solution using such Client Account. Fyno shall not be responsible for any consequences arising from such non-compliance by the Client. Fyno reserves the right to disable any Client Account at any time if the Client fails to comply with this clause.
5.2. The Client shall extend all possible assistance for provision of Fyno Solution by Fyno including but not limited to extending adequate support and cooperation to Fyno, providing all the information and resources that Fyno would reasonably require or as may be requested by Fyno in order to provide access to the Fyno Solution (“Client Input”) set out in these Terms. The Client acknowledges that Fyno shall not be responsible for any deficiency arising from the lack of accuracy, reliability or completeness of Client Input.
5.3. The Client acknowledges that the Client shall, at all times, be solely responsible for any statutory and operational liabilities arising out of or in connection with its use of Fyno Solutions, including any transactions that may be undertaken by or on behalf of the Client through Fyno Solutions.
6. FEES
6.1. In consideration of the limited license to Fyno Solutions granted to the Client; the Client shall pay the Fees to Fyno in the manner provided in the Order Form. The Client may access Additional Features in relation to Fyno Solution and the Client shall pay certain amounts to Fyno in the manner provided in the Order Form. Unless otherwise stated, the Fees do not include any taxes, levies, duties, or similar governmental assessments, including value-added, sales, use, or withholding taxes assessable by any local, state, provincial, or foreign jurisdiction (collectively “Taxes”). The Client shall, at all times, be responsible to pay all applicable taxes, government charges, duties etc. arising out of or in connection with these Terms.
6.2. The Fee shall be fixed during the period of the Initial Term as defined in the Order Form.
6.3. Beyond the Initial Term (as defined in the Order Form), in the event that Fyno intends to modify the Fee for the Renewal Term (as defined in the Order Form), Fyno shall give prior written notice of such change to the Client and the same shall come into effect at the end of 30 (thirty) days from the date of such notice (“Notice Period”). The Client shall be deemed to have granted its consent to the change in Fee unless any objections, in writing, has been communicated to Fyno within the Notice Period.
6.4. The payment of Fees shall be made by Client within such period from the date of the corresponding invoice from Fyno, as specified in the Order Form (“Due Date”).
6.5. In the event the Client defaults in paying any Fees on or before the Due Date, Fyno shall be entitled to charge interest for late payment at
- 1.5% per month from the Due Date till the date of its actual payment; or
- the rate specified under Section 16 of the MSME Act, 2023 (for Clients who have executed Order Forms with Intelligent Acumen Technologies Private Limited); whichever is higher.
6.6. Unless otherwise specified in these Terms, all Fees are non-refundable. No refunds shall be issued for partial use or non-use of Fyno Solutions.
7. REPRESENTATIONS AND WARRANTIES
7.1. Each Party represents and warrants to each other that:
- It is duly organized and validly existing, and has all necessary corporate power and authority, and approvals and has full power and authority to execute and deliver these Terms;
- These Terms constitute a legal and valid obligation on it;
- The execution and performance of these Terms will not violate, conflict with, or result in a breach of or default of its obligations under Applicable Law;
- It has not taken any action, nor have any other steps been taken or legal proceedings been started or threatened against it, for its winding up, dissolution, administration or reorganization or for the appointment of a receiver, administrator, administrative receiver, trustee or similar officer of it or of any or all of its assets or revenues;
7.2. The Client declares that, there are no pending claims or threatened actions including without limitation, arbitration and administrative proceedings and/or inquiries, claims or audits pending or initiated or threatened against the Client, that could have an adverse effect on its ability to perform its obligations under these Terms or on the goodwill and reputation of Fyno Solutions in the market.
8. THIRD PARTY SERVICES(S)
Fyno Solutions enables integration with a range of Third-Party Service(s). The Client acknowledges and agrees that their use of Third-Party Service(s) will be subject to the terms and conditions and privacy policies of such third-party, and that Fyno shall not be liable for the Client’s enablement, access, or use of such Third-Party Service(s), including any data processed by such third party. Any issues, claims, concerns, or questions regarding third-party products should be directed to the third-party
9. CONFIDENTIALITY, DATA PRIVACY AND SECURITY
9.1. Each Party shall maintain the confidentiality of the other Party’s Confidential Information and shall not, without the prior written consent of the other, use, disclose, copy or modify the other Party’s Confidential Information (or permit others to do so) other than as necessary for the performance of its rights and obligations under these Terms.
9.2. Each Party undertakes to disclose the other Party’s Confidential Information only to those of its officers, employees, agents, professional advisors and contractors to whom, and to the extent to which, such disclosure is necessary for the performance of its rights and obligations under these Terms and to procure that such persons are made aware of and agree in writing to observe the obligations similar to the obligations in this Clause 9.
9.3. Each Party shall give written notice to the other of any unauthorized use or disclosure, or misuse, theft or other loss, of the other Party’s Confidential Information without undue delay, upon becoming aware of the same.
9.4. The provisions of this Clause 9 shall not apply to information which: (i) is or comes into the public domain through no fault of the Receiving Party; (ii) was independently developed by the Receiving Party; (iii) is required by law, by court or governmental order to be disclosed provided that, to the extent legally permitted , prior to any disclosure, the Receiving Party notifies the Disclosing Party and, at the Disclosing Party’s request and cost, assists the Disclosing Party in opposing any such disclosure; or (iv) is lawfully received from a third party without a breach of such third party’s obligations of confidentiality.
9.5. During the Term of these Terms, Fyno will implement and maintain appropriate administrative, physical, and technical security measures designed to protect the security, confidentiality, and integrity of, and prevent the unauthorized disclosure of the Client Data.
9.6. The Client agrees to provide notices and maintain necessary authorizations, approvals, consents, and permissions for Fyno to process Client Data. The Client is responsible for compliance with this clause and acknowledges that Fyno shall have no liability for claims arising from the Client’s failure to comply with this clause.
9.7. Fyno is the data controller of the Personal Data when Fyno collects Personal Data for creation of a Client Account and help the Client log into Fyno Solutions, or where the Client or Authorized User contacts Fyno for receiving support services or for other queries in relation to Fyno Solutions. Fyno shall process such Personal Data in accordance with .
9.8. Except for the foregoing, in connection with the Client’s use of the Fyno Solution, Fyno shall process Personal Data forming part of Client Data only on Client’s behalf as a data processor and in accordance with the terms of the data processing agreement available at Data Processing Agreement.
9.9. The Client acknowledges that retention period of logs can be customised by the Client in their Account.
9.10. The Client hereby acknowledges and agrees that Fyno may access or disclose information about the Client, Client Account, Authorized Users, including Client Data in order to (a) comply with the law or respond to lawful requests or legal process; or (b) enforce Fyno’s rights under these Terms of Service or in defense of legal claims.
9.10. The provisions of this clause shall supersede any non-disclosure these Terms of Service by and between the Parties entered prior to these Terms of Service that would purport to address the confidentiality of Client Data and such these Terms of Service shall have no further force or effect with respect to Client Data. This Clause 9 would survive the termination or expiry of these Terms of Service.
10. INTELLECTUAL PROPERTY
10.1. The Client acknowledges, agrees and confirms that all rights, title, interest and ownership, and Intellectual Property Rights in the Fyno Solution shall solely and exclusively belong to Fyno. Nothing contained in these Terms shall create or be deemed to create, any rights, title or interest in Fyno Solutions, in favour of the Client, other than as expressly provided in these Terms.
10.2. The Client owns the rights to the Client Data provided to Fyno. The Client grants Fyno a royalty-free license and right to use Client Data solely to provide, maintain and improve the Fyno Solutions, prevent or address any technical problems, or at the Client’s request in connection with support requests and in accordance with these Terms.
10.3. Acceptable Use: The Client agrees and undertakes that it will not: (i) permit any third party to access the Fyno Solutions or the Intellectual Property therein except as expressly permitted under the terms of these Terms; (ii) use, copy, modify or distribute Fyno’s Intellectual Property, except as expressly permitted under the terms of these Terms; (iii) access the Fyno Solution for purposes of creating derivative works based on Fyno Solutions; (iv) copy, frame or mirror any part of Fyno Solutions; (v) license, sub-license, sell, resell, rent, lease, transfer, assign, distribute, timeshare, disassemble, reverse engineer,or decompile Fyno Solutions, either on their own or with the assistance of any third party; and (vi) access the Fyno Solution to build or operate a competitive product or service that competes directly with Fyno Solutions; (vii) modify, adapt or hack Fyno Solutions or otherwise attempt to gain or gain unauthorized access to Fyno Solutions or related systems or networks; (viii) use Fyno Solutions to violate or incite violation of applicable laws and regulations, including but not limited to telecommunication laws, and privacy laws; (ix) use the Fyno Solution to make unsolicited, bulk, automated, or spam calls, messages, or communications to any individual or entity; or otherwise engage in any form of telephonic harassment or abuse; (x) use Fyno Solutions to violate or incite violation of Fyno or any third party’s rights including but not limited to intellectual property rights, or privacy rights; (xi) use Fyno Solutions to knowingly post, transmit, upload, link to, send or store any viruses, malware, trojan horses, time bombs, or any other similar harmful software; (xii) share login credentials that are allocated to and intended for use solely by Authorized Users to any other individual; or (xiii) “crawl,” “scrape,” or “spider” any page, data, or portion of or relating to Fyno Solutions (through use of manual or automated means).
10.4. If the Client chooses to provide any suggestions, enhancement requests, recommendations or other feedback about Fyno Solutions (“Feedback”), Fyno shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate the Feedback into Fyno Solutions.
10.5. Fyno may anonymize and then aggregate, collect and analyze information relating to the provision, use and performance of the Fyno Solutions and may use (during and after the Term of these Terms) such information to develop and improve the Fyno Solutions and other Fyno offerings, including disclosure of such information to third parties in an aggregated and anonymized format such that neither the Client nor any individual or business can be identified.
10.6. All rights not expressly provided to the Client herein, are reserved.
11. INDEMNITY
11.1. Subject to the Client’s compliance with these Terms, Fyno hereby agrees to indemnify, defend and hold harmless the Client, from and against any and all finally awarded damages including reasonable costs or expenses (including, without limitation, reasonable attorneys’ fees and expenses) attributable to any claim brought against the Client by a third-party alleging that Fyno Solutions infringes or misappropriates such third-party’s valid patent, copyright, or trademark (an “IP Claim”), provided that (a) the Client promptly notifies Fyno of the threat or notice of such IP Claim; (b) Fyno has or will have the sole and exclusive control and authority to select defense attorneys, defend and/or settle any such IP Claim; and (c) Client fully cooperates with Fyno in connection therewith. Fyno will have no liability or obligation with respect to any IP Claim if such claim is caused by (i) compliance with designs, data, instructions or specifications provided by the Client; (ii) modification of Fyno Solutions by anyone other than Fyno; or (iii) the combination, operation or use of Fyno Solutions with other hardware or software where Fyno Solutions would not by itself be infringing. If use of Fyno Solutions by the Client has become, or in Fyno’s opinion is likely to become, the subject of any IP Claim, Fyno may at its own option and expense (a) procure for the Client the right to continue using Fyno Solutions as set forth hereunder; (b) replace or modify Fyno Solutions to make it non-infringing; or (c) if options (a) or (b) are not commercially and reasonably practicable as determined by Fyno, terminate the Client’s subscription to Fyno Solutions and repay the Client, on a pro-rated basis, any Fees the Client has previously paid Fyno for the corresponding unused portion. This clause states Fyno’s sole, exclusive, and entire liability to the Client and constitutes the Client’s sole remedy with respect to an IP Claim brought by reason of access to or use of Fyno Solutions.
11.2. The Client shall indemnify, defend, and hold harmless Fyno and Fyno’s Affiliates, directors, officers, employees, representative and agents from and against finally awarded damages including reasonable costs or expenses (including, without limitation, reasonable attorneys’ fees and expenses) arising out of any claim brought against Fyno by a third party arising with respect to the Client's use of the Fyno Solution in violation of Clause 10(c) (Acceptable Use) of these Terms (“Fyno Indemnity Claim”), provided that (a) Fyno promptly notifies the Client of the threat or notice of such a claim, (b) the Client will have the sole and exclusive control and authority to select defense attorneys, defend, and/or settle any such claim, and (c) Fyno shall at the Client’s expense, reasonably cooperate with the Client.
11.3. Sole and Exclusive Remedy. This clause 11 sets forth the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for the third-party claims described herein.
12. LIMITATION OF LIABILITY
12.1. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING CONTAINED HEREUNDER, IN NO EVENT SHALL THE AGGREGATE TOTAL LIABILITY OF EITHER PARTY AND THAT OF THEIR AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, AND LICENSORS, RELATING TO THESE TERMS EXCEED THE AGGREGATE AMOUNT OF FEES PAID BY THE CLIENT TO FYNO IN LAST 12 (TWELVE) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. FURTHERMORE, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR ANY OTHER THIRD PARTY FOR INCIDENTAL, INDIRECT, COVER, PUNITIVE, EXEMPLARY, CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF REVENUE, LOST PROFITS, LOST SALES, LOST GOODWILL, LOSS OF USE OR LOST CONTENT, IMPACT ON BUSINESS, BUSINESS INTERRUPTION, LOSS OF ANTICIPATED SAVINGS, OR LOSS OF BUSINESS OPPORTUNITY) OR SPECIAL DAMAGES, REGARDLESS OF WHETHER THE ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE LEGAL THEORY OF LIABILITY, REGARDLESS OF WHETHER SUCH LOSS OR DAMAGE WAS FORESEEABLE OR THE PARTY SUFFERING SUCH LOSS OR DAMAGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12.2. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY, FYNO DISCLAIMS ALL LIABILITIES, TO THE MAXIMUM EXTENT PERMITTED BY LAW, WITH RESPECT TO THE FYNO SOLUTION OFFERED DURING THE TRIAL PERIOD.
13. TERM AND TERMINATION
13.1. The Term, shall be set forth in the relevant Order Form(s). Your subscription to the Fyno Solution shall be automatically renewed for the same period unless either Party expressly terminates Your subscription to the Fyno Solution.
13.2. Either Party shall be entitled to terminate the Client’s subscription to the Fyno Solution, as under:
- At any time during the Term, for convenience and without being required to assign any reason, by giving at least 30 (thirty) days’ prior notice in writing to the other Party, provided that if the Client initiates such termination, the Client shall remain liable to pay the entire Fee for the then-current Term, and no refunds shall be provided for any unused portion of Fyno Solutions; or
- If the other Party is in material breach of any of its obligations or terms of these Terms and fails to remedy such breach within 30 (thirty) days of receiving notice, in writing, of such breach. Provided that in such a situation, these Terms shall be deemed to be terminated automatically after a written notice has been sent, forthwith upon the expiry of such notice period; or
- In the event the other Party is declared insolvent, or a receiver is appointed in respect of its business, assets or properties, or insolvency or winding-up proceedings (voluntary or compulsory) are initiated against the other Party which are not dismissed within sixty (60) days, or it enters into any composition or settlement with its creditors.
- In the event the Client defaults in paying any Fees to Fyno on or before the Due Date, Fyno may (i) suspend the Client’s access to and use of Fyno Solutions until payment of the Fees is received; or (ii) terminate the Client’s Account.
13.3. In addition to suspension for late payment or non-payment of Fees, Fyno may suspend the Client’s access to and use of their Account or Fyno Solutions if the Client or their Authorized Users are in violation of these Terms. Fyno will provide the Client with a period of thirty (30) days (“Cure Period”) to cure or cease such activities which violate these Terms. If the Client fails to cure or cease such activities within the Cure Period, or if Fyno believes that such breaches cannot be cured, the Client's Account shall be terminated forthwith.
14. EFFECT OF TERMINATION
Following the termination of Your Account either by You or by Us, Your access and use of the Fyno Solution shall cease. Termination will not relieve You of Your obligation to pay all Fees that accrued prior to such termination. Fyno may at its sole discretion, delete all Client Data, within a period of 1 (one) year from the effective date of termination of the Client’s Account (“Data Retention Period”), unless legally prohibited. Prior to such removal, Fyno shall at the Client’s written request hand over to the Client, a copy/ extract of the Client Data. Client Data cannot be recovered once it is deleted.
15. NOTICES
All notices to be provided by Fyno to You under these Terms may be delivered in writing (i) by nationally recognized overnight delivery Service(s) (“Courier”) or to the contact mailing address provided by You in the relevant Order Form; or (ii) by means of a general notice on Fyno Solution(s) via electronic mail to the e-mail address provided by You. Our address for a notice to Us: (i) in writing by Courier to the address mentioned in the Order Form or (ii) by electronic mail is team@fyno.io. All notices shall be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, two (2) business days after being deposited in the mail or with a Courier as permitted above.
16. ESCALATION MATRIX
16.1. The Client can use the following escalation matrix to raise any concern with respect to Fyno Solution:
16.2. Fyno commits to a first response time of 24 hours.
17. GOVERNING LAW AND JURISDICTION
17.1. Where the Client is incorporated in India, these Terms shall be governed by and construed in accordance with the laws of India. Any disputes under these Terms shall be referred to arbitration to be conducted by a sole arbitrator as is mutually agreed and appointed with the consent of both the Parties and shall be settled in accordance with the Arbitration and Conciliation Act, 1996 and rules framed thereunder. The decision of the sole arbitrator shall be final and binding on the Parties. The seat and venue of arbitration shall be Bangalore, India and proceedings of arbitration shall be in English. Subject to the foregoing, the courts in Bangalore shall have exclusive jurisdiction to deal with any dispute which may arise between the Parties pursuant to these Terms.
17.2. Where the Client is incorporated in any other jurisdiction apart from India, these Terms shall be governed by and construed in accordance with the laws of the State of New Jersey, U.S.A without regard to the principles of conflicts of laws. Any dispute, claim or controversy arising out of or relating to these Terms shall be settled by arbitration administered by the American Arbitration Association in accordance with its commercial arbitration rules ("AAA Rules"), and judgement on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The language of the arbitration shall be English and the place of arbitration shall be Newark, New Jersey. The dispute shall be resolved by a sole arbitrator who shall be appointed in accordance with the AAA Rules. The decision of the sole arbitrator shall be final and binding on the Parties. Subject to the foregoing, the courts in the State of New Jersey, shall have exclusive jurisdiction to deal with any dispute which may arise between the Parties pursuant to these Terms. THE PARTIES HEREBY WAIVE ANY RIGHTS THAT THEY MAY HAVE TO TRIAL BY JURY. YOU AGREE THAT ANY PROCEEDINGS, INCLUDING ANY ARBITRATION, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION.
18. DISCLAIMER OF WARRANTIES
18.1. THE CLIENT ACKNOWLEDGES THAT FYNO SOLUTIONS IS COMPLEX, THAT INSPITE OF BEST EFFORTS, DUE CARE AND DILIGENCE EXERCISED BY FYNO WHILE RENDERING FYNO SOLUTION, THERE MAY BE RISK OF CYBER-ATTACK, HACKING, MALWARE, BUGS, DEFECTS, ERRORS, ETC., AND THAT FYNO GIVES NO WARRANTY OR REPRESENTATION THAT FYNO SOLUTIONS TO THAT EFFECT. FYNO WOULD NOT BE LIABLE TO THE CLIENT OR TO ANY THIRD PARTIES IN THE ABOVE-MENTIONED CIRCUMSTANCES PROVIDED THE SAME HAS NOT OBSTRUCTED THE OPERATION OF THE CLIENT’S BUSINESS.
18.2. THE CLIENT ACKNOWLEDGES THAT FYNO DOES NOT WARRANT THAT THE ACCESS TO FYNO SOLUTIONS, WHICH IS PROVIDED OVER PUBLIC TELECOMMUNICATIONS NETWORKS, ALL OF WHICH ARE BEYOND FYNO’S CONTROL, WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE.
18.3. FYNO SOLUTION IS PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, RELIABILITY, NON-INFRINGEMENT FITNESS FOR A PARTICULAR PURPOSE, ETC., EXCEPT AS PROVIDED HEREUNDER.
18.4. THE CLIENT ACKNOWLEDGES THAT FYNO SOLUTION IS DESIGNED TO BE COMPATIBLE ONLY WITH THAT SOFTWARE AND THOSE SYSTEMS, AS SPECIFIED IN THE FYNO DOCUMENTATION, AND THAT FYNO DOES NOT WARRANT OR REPRESENT THAT FYNO SOLUTION WILL BE COMPATIBLE WITH ANY OTHER SOFTWARE OR SYSTEMS OTHER THAN THE ONES MENTIONED IN THE FYNO DOCUMENTATION.
19. FORCE MAJEURE:
Both Parties shall be excused from performance of their obligations under this these Terms to the extent that such performance is prevented by a Force Majeure Event. Neither Party will be liable for delays in performance when such delay is caused by any Force Majeure Event, provided the Force Majeure Event has a direct and cognisable effect on such performance. In the event of such delay, the date of performance will be extended for a period equal to the effect of time lost by reason of the delay, as mutually agreed between the Parties in writing. The payment of Fees due hereunder shall not be excused by reason of a Force Majeure Event and shall be paid as per the timelines provided under these Terms.
20. MISCELLANEOUS
20.1. Entire Agreement: These Terms including the Order Forms along with Annexures, shall constitute the entire agreement between the Parties and shall supersede all prior understandings and/or agreements between the Parties as regards the subject matter hereof. These Terms shall prevail over the terms or conditions in any purchase order or other order documentation that You or any entity that You represent provides (all such terms or conditions being null and void).
20.2. Independent Contractor: The relationship between the Parties shall be on principal to principal basis. Nothing herein shall be deemed to constitute Client or Fyno as the agent or representative of the other, or as joint ventures, employees, or partners for any purpose.
20.3. Severability; No Waiver: If any provision of these Terms is declared by a court of competent jurisdiction to be invalid for any reason, such invalidity shall not affect any other provision of these Terms. On the contrary, such remaining provisions shall be fully severable, and these Terms shall be construed and enforced as if such invalid provision had never been inserted in these Terms. Either Party’s non-exercise of any right under or provision of this These Terms do not constitute a waiver of that right or provision of these Terms.
20.4. Survival: All clauses which, by their nature are intended to survive, including without limitation Clauses 1(Definitions), 6(Fees), 9(Confidentiality), 10 (Intellectual Property), 11(Indemnity), 12(Limitation of Liability), 14(Effect of Termination), 18(Disclaimer of Warranties), 20(Miscellaneous) shall survive any termination of these Terms.
20.5. Amendments: We may amend these Terms from time to time, in which case the new Terms will supersede prior versions. We will notify You of any material revisions not less than fifteen (15) days prior to the effective date of any amendments to these Terms and Your continued use of the Fyno Solution following the effective date of any such amendment may be relied upon by Us as Your acceptance of any such amendment. You can review the most current version of the Terms at any time by visiting this page.
20.6. Assignment: The Client shall not assign its rights or obligations hereunder without the prior written consent of Fyno.
20.7. Publicity Rights: The Client hereby grants Fyno a royalty-free, worldwide, transferable license to use the Client's trademark or logo to identify the Client as a customer of Fyno on its Website and/or marketing collateral and to include the Client's use of the Fyno Solutions in case studies.
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