Software, Materials, Services and other related information are collectively referred to as “Content.”
“YOU” OR “YOU”
“You” means you individually, any person, including any employer that you are acting on behalf of.
Trademark “Sysflash” is used by Sysflash Inc. A‚ under an authorization from Sysflash Technical Services Private Limited. All references to Sysflash refer to Sysflash Inc.
“SYSFLASH CERTIFIED TECHNICIAN/(S)”
“Sysflash Certified Technician means” technicians and specialists certified by Sysflash to perform the Services under this Agreement.
“Plans” or “Subscription/(s)” are tenured Subscription plans offered by Sysflash that are active for a specified period and will include any incident based plans such as “Per Incident Plan” or the like.
“SERVICES” AND “SYSFLASH PORTAL”
“Materials” means any web casts, download areas, white papers, press releases, datasheets, FAQs, product information, quick reference guides, or other works of any kind that are made available to download from the Sysflash Portal are the proprietary and copyrighted work of Sysflash and/or its suppliers. The definition of “Materials” does not include the design or layout of the Sysflash.in web site or any other Sysflash owned, operated, licensed or controlled website.
“Software” means a computer program of any kind, whether owned by Sysflash or a third party, whether delivered via download, CD, other media, or other delivery method, including client and/or network security software. Elements of the Software are protected under copyright, trade secret, unfair competition, and other laws. Software includes both Sysflash Software and third party Software. Your use of Software is subject to the respective agreements such as a license agreement or user agreement that accompanies or is included with the Software, ordering documents, exhibits, and other terms and conditions that apply (“License Terms”).
SUBMISSION OF PLAN ORDERS;
You may order Services by submitting Plan Orders through the Sysflash Portal or by calling Sysflash. Once Sysflash accepts the Plan Order submitted by you, then you will receive an email from Sysflash at the email address that you provide or have provided to Sysflash as part of the Registration Process for the Services. Sysflash is not responsible for rendering Services in connection with any Plan Order that it has not accepted. Upon acceptance by Sysflash of a Plan Order, you will have a Plan.
Subject to the Terms and Conditions, and other terms specific to each Plan, Sysflash will address your query using commercially reasonable efforts in providing appropriate solutions under the Services. In most cases, Sysflash will attempt problem diagnosis and a solution through chat, email or other means as it deems most appropriate under the circumstances including remote access. You understand that if remote access is used on your computer there will be no residual software from the remote session; however, there may be a text file placed on your computer that will explain the work that was done on your computer. If such a text file is placed on your computer, you have the option to either save the file for future reference or to delete it from your computer. All undertakings under Plans are subject to Sysflash’s limited warranty, which is set forth below. For more information, please refer to online documentation or call us at 1- 800-237-3901. You agree to pay all Services Fee and any other applicable fee/charges as set out in the relevant Plan Order in accordance with the Payment Terms provided below.
Services against any Plan Order will be available once you have made payment for Services according to the requirements of the corresponding Plan Order. All payments against the plan orders will be collected by Sysflash on behalf of Sysflash Technical Services Private Limited. Sysflash has no obligation to render Services under any Plan if the payments as required under any Plan Order have not been made.
You understand that certain Plans may have fee including, but not limited to “Service Fee” and/or “Activation Fee and/or TechGenie License Fee” payable either on an annual basis (“Annual Payment Plan”) or on a monthly basis (“Recurring Payment Plan”). Subject to the applicable Term Plan, all payments under the Annual Plan shall be made upfront at time of commencement of the subscription cycle. For payments under the Recurring Payment Plan, all payments fees shall be made in advance apart from the monthly installments of the Service Fee, payable over a one (1) year payment term, You shall be charged an additional non-refundable Activation Fee at the time of registration, as specified in the Plan Order. The fee (including Activation Fee/TechGenie License Fee) can be refunded as per the provisions of Refund specified herein. All fee under this clause or a relevant Plan Order, is payable at the time of commencement of the Plan.
When you purchased the Service, you agreed to a specific price and plan, where such plan maybe for a different duration (“Term Plan”). Plans can also have TechGenie License fees. TechGenie License fees will be paid alongwith the Service Fee and shall remain valid for a period of 5 years from the date of subscription. All terms of Service Fee and/or any other fee payable under any mode of payment for a Subscription shall be set forth in the applicable Plan Order. Similarly, some plans may offer a discount on the Service if you sign up for other Sysflash services (“Bundle Discount”). You agree to maintain your Service and the bundled services for the applicable term. If you signed up for a Term Plan or a Bundle Discount, the price available with those plans is valid until one of the following occurs: (1) the Term Plan expires; (2) you drop one of the Sysflash services you were required to purchase to receive the special rate as notified to Sysflash; or (3) You terminate the agreement/ Plan before the expiry of the relevant term.
CREDIT CARD BILLING
You may be asked to provide us with a credit card number from a card issuer that we accept in order to activate your Service. You hereby authorize Sysflash to charge and/or place a hold on your credit card with respect to any unpaid charges for Services or any related equipment. You authorize the issuer of the credit card to pay any amounts described herein without requiring a signed receipt, and you agree that these charges are to be accepted as authorization to the issuer of the credit card to pay any amounts described herein without requiring a signed receipt, and you agree that these charges are to be accepted as authorization to the issuer of the credit card to pay all such amounts. You authorize Sysflash and/or any other company who bills products or services, or acts as billing agent for Sysflash to continue to attempt to charge and/or place holds with respect to all sums described herein, or any portion thereof, to your credit card until such amounts are paid in full. You agree to provide Sysflash with updated credit card information upon Sysflash’s request and any time the information you previously provided is no longer valid. You acknowledge and agree that neither Sysflash nor any Sysflash affiliated company will have any liability whatsoever for any non-sufficient funds or other charges incurred by you as a result of such attempts to charge, and/or place holds on, your credit card. If you mistakenly provide a debit card number, instead of a credit card number, you authorize all charges described herein to be applied to such debit card unless and until you provide a credit card number. In the event you are enrolled, or later enroll, in an automatic payment or electronic funds transfer plan, you agree that all sums described herein may be charged, at Sysflash’s option, to the account number provided for such automatic payment or electronic funds transfer plan. When payment is made by credit card or debit card, payment will also be subject to the terms and conditions established by the credit or debit card issuer. If charges cannot be processed through your credit card, or if your bank draft or electronic funds transfer is returned for insufficient funds, we will charge you an additional $15.00.
You agree and acknowledge that a Subscription under the Recurring Payment Plan will automatically renew for a month, unless notified otherwise by You (“Auto Renewal”). However, a Plan and/or an antivirus or/a warranty purchased from Sysflash shall be automatically renewed (in accordance with the terms of the Plan) only after we send you an email 30 days before the expiry of your subscription term notifying you about the automatic renewal of your Plan with an option of opting out from the automatic renewal and only if you do not opt out, Your credit card, which was used in paying for the original Plan or any other purchase from us will be charged with the amount of the then prevailing subscription charges as per the payment option that you selected at the time of registering with Sysflash.
If you would like to opt out of the Auto Renewal, please call us at +91-9846-54-9946 and speak with one of our customer service representative at least 30 days prior to your subscription end date to discontinue your service or write to us @ firstname.lastname@example.org
For plans, a full refund will be issued if Sysflash has not been able to resolve even a single issue for you within the first 30 days of the subscription. If there are one or more issues resolved within first 30 days, the fees for the Subscription Service will not be refundable. However, after 30 days of purchase of Plan, no refund shall be made by Sysflash.
Notwithstanding this Sysflash may, at its sole discretion and on a case by case basis, agree to a refund of Subscription fees after deducting charges for servicing the Customer. Refund amount shall be directly credited to the credit card, the details of which are registered with Sysflash. On the specific request of the subscriber Sysflash may process the refund in some other account subject to submission of such documents/information as may be asked by Sysflash for the said purpose.
For incident based plans, you will be eligible for refund when any of the following criterions are met:
You have all the prerequisites which were required to resolve the problem and Issue was not resolved till the time account was active.
The issue is out of scope for the particular plan
15 days have not passed after the issue was last worked upon by an Sysflash technician
PERSONAL AND NON-COMMERCIAL USE LIMITATION
Unless otherwise specified, the Services, Materials and Software are solely for your personal and non-commercial use in addressing matters covered by your Plan. You may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, modify, create derivative works from, transfer, distribute or sell any information, software, products or services obtained from the Services, Materials, or Software. Any Services, Materials, and Software are available only in connection with Services under a valid Plan.
NO UNLAWFUL OR PROHIBITED USE
FAIR USAGE POLICY; SUSPENSION OR TERMINATION OF SUBSCRIPTION:
Though Sysflash has no limits on the amount of online support requests a Plan user may make during the subscription period, however, each Subscriber’s use of the support services for the Plans are subject to Sysflash’s “fair use” policy. Under this policy, if at any time, in Sysflash’s sole discretion, a Plan user is found to be abusing the service by exceeding the level of use reasonably expected from someone using a Plan for individual use, then Sysflash reserves the right to suspend or terminate Subscriber’s Subscription Services. In addition, Sysflash reserves the right to suspend or terminate any Subscription Services of any Subscriber that Sysflash, in its sole discretion, determines are being used (a) fraudulently, (b) by any person other than Subscriber, or (c) for any computer system other than a Registered System. User may terminate the Service at any time by giving written or electronic notice to Sysflash; provided, however, that User will not be entitled to a refund of any fees prepaid by User for the Service.
Sysflash may provide you with the use of e-mail services, addresses, bulletin board services, instant messaging services, chat areas, news groups, forums, communities, personal web pages, calendars, file cabinets and/or other message or communication facilities designed to enable you to communicate with Sysflash’s employees and others as appropriate to your Service under a Plan Order (each a “Communication Service” and collectively “Communication Services”). Communications Services shall only be used under an accepted Plan Order, and not for any other purpose.
USE OF COMMUNICATION SERVICES
You agree to use the Communication Services only to post, send and receive messages and material that are proper and, when applicable, related to the particular Communication Service. By way of example, and not as a limitation, you agree that when using the Communication Services, you will not:
Use the Communication Services in connection with surveys, contests, pyramid schemes, chain letters, junk email, spamming or any duplicative or unsolicited messages (commercial or otherwise).
Defame abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others.
Publish post, upload, distribute or disseminate any inappropriate, profane, defamatory, obscene, indecent or unlawful topic, name, material or information.
Upload, or otherwise make available, files that contain images, photographs, service or other material protected by intellectual property laws, including, by way of example, and not as limitation, copyright or trademark laws (or by rights of privacy or publicity) unless you own or control the rights thereto or have received all necessary consent to do the same.
Use any material or information, including images or photographs, which are made available through the Materials in any manner that infringes any copyright, trademark, patent, trade secret, or other proprietary right of any party.
Upload files that contain viruses, Trojan horses, worms, time bombs, cancel bots, corrupted files, or any other similar service or programs that may damage the operation of another’s computer or property of another.
Advertise or offer to sell or buy any goods or services for any business purpose, unless such Communication Services specifically allows such messages.
Download any file posted by another user of a Communication Service that you know, or reasonably should know, cannot be legally reproduced, displayed, performed, and/or distributed in such manner.
Falsify or delete any proprietary rights notices, such as author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of service or other material contained in a file that is uploaded.
Restrict or inhibit any other user from using and enjoying the Communication Services.
Violate any code of conduct or other guidelines which may be applicable for any particular Communication Service.
Harvest or otherwise collect information about others, including e-mail addresses.
Violate any applicable laws or regulations.
Create a false identity for the purpose of misleading Sysflash or others.
Use, download or otherwise copy, or provide (whether or not for a fee) to a person or entity any directory of users of the Materials or other user or usage information or any portion thereof.
Sysflash has no obligation to monitor the Communication Services. However, Sysflash reserves the right to review materials posted to the Communication Services and to remove any materials in its sole discretion. Sysflash reserves the right to terminate your access to any or all of the Communication Services at any time, without notice, for any reason whatsoever.
Sysflash reserves the right at all times to disclose any information as Sysflash deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in Sysflash’ s sole discretion.
Any materials uploaded to the Communication Services may be subject to posted limitations on usage, reproduction and/or dissemination; you are responsible for adhering to such limitations if you download the materials.
You may not create hyperlinks to any portion of the Sysflash Portal, nor any Materials or Software posted therein.
GUESTS; LIMITED LICENSE TO USE OF SYSFLASH PORTAL
If you are not currently subscribed for a Service, then you are regarded as a “Guest”. Usage of the Sysflash Portal by current Sysflash customers outside of the scope of a Service specified under an applicable Plan Order is also treated as a “Guest”.
As a Guest you may use the Sysflash Portal and Materials specifically designated as available to guests on the Sysflash Portal for the limited purposes of (a) deciding whether to subscribe to the Services provided by Sysflash, (b) registering with Sysflash and submitting Plan Orders only. The foregoing license grant is a non-exclusive revocable license.
LIMITED LICENSES TO USE THE SYSFLASH PORTAL, MATERIALS AND SOFTWARE
As permitted through a Service, you may use Materials and Software posted on the Sysflash Portal, or made available in connection with a Plan Order which may be available for additional purposes and or subject to additional restrictions.
GENERAL LICENSE RESTRICTIONS
Any other use of the Sysflash Portal, Services, Materials or Software, other than as explicitly permitted by Sysflash is prohibited. Rights to execute, copy, modify, display, transmit, distribute, manufacture, use, sale are all reserved to Sysflash and its suppliers. Reverse engineering and decompilation of the Software is strictly prohibited.
In connection with obtaining Services, you agree that you will:
Cooperate with the Sysflash Technician: We will use commercially reasonable efforts to provide the support to you. Our experience shows that most issues can be corrected as a result of close cooperation between you and the technician. Please listen carefully to the technician and follow the technician’s instructions. You must confirm that the following conditions are true:
The situation giving rise to the question is, reproducible on a single system, i.e., one central processing unit with its workstations and other peripherals;
You must have knowledge regarding the hardware system, any software involved, and in the facts and circumstances surrounding the incident;
The full system, including software and hardware, is available to you and accessible by you without limit during any telephone discussions with Sysflash support personnel.
Software/Data Backup: You understand and agree that Sysflash shall under no circumstance be responsible for any lost or corrupted software or data. Sysflash strongly recommends that you at all times maintain a complete data backup and disaster recovery plan.
Account, Password, and Security: For you to submit a Plan Order, you must complete the Registration Process by providing us with current, complete and accurate information as prompted by and required under the applicable Registration Form. You also will choose a password and a user name. You are solely and entirely responsible for maintaining the confidentiality of your password and account. Furthermore, you are solely and entirely responsible for any and all activities that occur under your account. You agree to notify Sysflash immediately of any unauthorized use of your account or any other breach of security. Sysflash will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. However, you could be held liable for losses incurred by Sysflash or another party due to someone else using your account or password. You may not use anyone else’s account at any time, without the permission of the account holder.
AVAILABILITY OF SERVICES AND MATERIALS UNDER FORCE MAJUERE CIRCUMSTANCES
You hereby acknowledge that circumstances outside of Sysflash’s reasonable control (e.g., acts of God, a large scale outbreak of a new computer virus, strikes, riots, wars, other military action, civil disorder, acts of terrorism, fires, floods, vandalism, sabotage, acts of third parties, or the like) may cause significant delays in Sysflash’s ability to schedule a support session. You hereby release Sysflash from any and all liability, and agree that Sysflash shall not be liable to you or any third party for any direct or indirect damages whatsoever, resulting from such delays.
Sysflash or its suppliers may, at any time, without notice or liability, restrict the use of the Service or limit its time of availability in order to perform maintenance activities and to maintain session control.
EXCLUSIONS FROM “SERVICES”
“Services” shall not include the following:
any item or activity not covered by the terms of a Plan Order;
service beyond the duration limitations identified in your Plan Order;
problem diagnosis and support that may not be completed because of a problem with your computer or other equipment, or their configuration that is beyond our control;
Software, including the operating system and software added to the registered hardware products which are out of scope for the Plan;
Problems that may and do result from:
External causes such as accident, abuse, misuse, or problems with electrical power;
Usage that is not in accordance with product instructions provided by manufacture;
Failure to follow the product instructions provided by manufacture or failure to perform preventive maintenance; or
Problems caused by using accessories, parts, or components not compatible with the product.
Non Compliance with the Sysflash technician instructions for resolving the query.
NOTICE SPECIFIC TO MATERIALS AND SOFTWARE AVAILABLE ON THE SYSFLASH PORTAL, OR THROUGH A SERVICE
For your convenience, Sysflash may make available Materials or Software (as each term is defined above) for use and/or download, whether as a part of a Service, or in promotion of the Services. Use of any Materials and any Software is governed by the more stringent of (a) the terms of the end user license agreement (“EULA”), if any, which accompanies the specific Materials and Software, or (b) if there is no EULA, these Terms and Conditions.
The Materials and Software are made available for download solely for use by you according to (a) the EULA, and (b) the Plan Order. Any reproduction or redistribution of the service not in accordance with the EULA is expressly prohibited by law, and may result in severe civil and criminal penalties. Violators will be prosecuted to the maximum extent possible.
No logo, graphic, sound or image from any Sysflash Web site may be copied or retransmitted unless expressly permitted by Sysflash.
WITHOUT LIMITING THE FOREGOING, COPYING OR REPRODUCTION OF THE MATERIALS OR SOFTWARE TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION, REDISTRIBUTION OR ANY OTHER PURPOSE IS EXPRESSLY PROHIBITED, UNLESS SUCH REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PERMITTED BY THE EULA ACCOMPANYING SUCH MATERIAL OR SOFTWARE.
END USER LICENSE AGREEMENTS (EULA) – GENERALLY
In connection with our Service, we may provide to you, the use of certain software which is owned by Sysflash or its third party licensors, and suppliers. We as well as the third party licensors reserve the right to update or change the Software from time to time and you agree to cooperate in performing such steps as may be necessary to install any updates or upgrades to the Software. You may use the Software only as part of, or for use with, the Service in accordance with the Plan and for no other purpose.
The Software may be accompanied by a EULA from Sysflash or a third party. Your use of the Software is governed by the terms of that license agreement and by this Agreement, where applicable. You may not install or use any Software that is accompanied by or includes a EULA unless you first agree to the terms and conditions of the EULA.
EULA FOR SYSFLASH SOFTWARE
With regard to any Software made available to you by Sysflash through the Sysflash Portal for which your acceptance of a separate license agreement is not required (“Sysflash Software”), you are hereby granted a revocable, non-exclusive, non-transferable license by Sysflash to use the Sysflash Software (and any corrections, updates and upgrades). In accordance with and as required under the Plan you shall not make any copies of the Sysflash Software. You agree that the Sysflash Software is the confidential and proprietary information of Sysflash or its third party licensors, providers or suppliers, and which you shall not disclose to others or use except as expressly permitted herein. You may not de-compile, reverse technician, disassemble, attempt to discover any source code or underlying ideas or algorithms of the Sysflash Software, or otherwise reduce the Sysflash Software to a human readable form, modify, rent, lease, loan, use for timesharing or service bureau purposes, reproduce, sublicense or distribute copies of the Software, or otherwise transfer the Sysflash Software to any third party. You may not remove or alter any trademark, trade name, copyright or other proprietary notices, legends, symbols, or labels appearing on or in copies of the Software. You are not granted any title or rights of ownership in the Sysflash Software. You acknowledge that this license is not a sale of intellectual property and that Sysflash or its third party licensors, providers or suppliers continue to own all right, title and interest, including but not limited to all copyright, patent, trademark, trade secret, and moral rights, to the Sysflash Software and related documentation, as well as any corrections, updates and upgrades. The Sysflash Software may be used only in the country of residence at the time of acceptance of these terms for use of the Sysflash Software. Export of the Sysflash Software is strictly prohibited.
THIRD PARTY PRODUCTS
As part of the Services, Sysflash may suggest that you acquire, install and use certain third party software or services (“Third Party Software”). Third Party Software is licensed to you by the respective owners or licensees of the Third Party Software. You must agree to the terms and conditions set forth by such owners or licensees before installing Third Party Software, whether Sysflash assists you in the acquisition, installation, and/or use of Third Party Software. Sysflash has no responsibility or rights to the Third Party Software and does not license Third Party Software to you or make any representation or warranty regarding the Third Party Software.
Your license to the Sysflash Software shall remain in full force and effect unless and until terminated by Sysflash, its third party licensors, providers or suppliers, or until your Service Plan is terminated as provided by your Plan Order and these Terms and Conditions. Upon termination of your Plan for any reason, you must cease all use of the Plan and the Sysflash Software and immediately delete the Sysflash Software from your computer.
To the extent that we provide technical assistance and support for Third Party Software or equipment, you must ensure that you comply with the terms and conditions under which you licensed such Third Party Software or purchased such equipment. We make no representation or warranty that we are an authorized service provider for Third Party Software or for any equipment; it is your sole responsibility to determine if you require additional rights for us to provide such support and if so, to acquire such rights. You acknowledge that support of Third Party Software or equipment by an unauthorized service provider may void any warranty made by the supplier of such Third Party Software or equipment.
THIRD PARTY AGREEMENTS
As part of the Services, Sysflash may suggest certain third party services to you. If you choose to subscribe to or otherwise use any third party services, your use of any such services is subject to the terms of service of such third party service provider. You agree to comply with such provider’s terms of service and that the third party provider is solely responsible for delivery of its service(s) to you and your use of them. Third party services include, but are not limited to technical support, portal, training, music, gaming and storage services that Sysflash may elect to make available from time to time. Violation of such third party provider’s terms of service may, in Sysflash’s sole discretion, result in the termination of your customer account and use of service.
LIMITED SERVICE WARRANTY
Sysflash DISCLAIMS ALL WARRANTIES EXPRESS OR IMPLIED AS TO THE SERVICES, THE MATERIALS AND THE SOFTWARE WHETHER IN THE NATURE OF MERTCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE. IN THE EVENT THAT YOU ARE NOT SATISFIED WITH THE SERVICES, YOUR SOLE REMEDY IS TO (A) ALLOW Sysflash TO REPERFORM THE SERVICES SUBJECT TO DISPUTE, (B) RE-DOWNLOAD AND REINSTALL THE SOFTWARE.
SOME OF THE Sysflash PLANS COME WITH A 7- DAY LIMITED SERVICE WARRANTY AS PROVIDED IN ONLINE DOCUMENTATION FOR THOSE SPECIFIC PLANS. THIS 7- DAY LIMITED SERVICE WARRANTY IS SUBJECT TO FULFILLMENT OF THE TERMS FOR THE SPECIFIC PLAN WHICH IS IN ADDITION TO THE TERMS AND CONDITIONS IN THIS DOCUMENT
Sysflash AND/OR ITS RESPECTIVE SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY OF THE INFORMATION CONTAINED IN THE SERVICES, MATERIALS OR THE SOFTWARE FOR ANY PURPOSE WHATSOEVER. ALL MATERIALS AND SOFTWARE ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND WHATSOEVER. Sysflash AND/OR ITS RESPECTIVE SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND WHETHER EXPRESS OR IMPLIED WITH REGARD TO THIS INFORMATION, INCLUDING ALL WARRANTIES AND CONDITIONS OF MERCHANTABILITY, WHETHER EXPRESS, IMPLIED OR STATUTORY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
THE MATERIALS COULD INCLUDE TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS. CHANGES ARE PERIODICALLY ADDED TO THE INFORMATION HEREIN. Sysflash AND/OR ITS RESPECTIVE SUPPLIERS MAY MAKE IMPROVEMENTS AND/OR CHANGES IN THE MATERIALS AND/OR THE SOFTWARE DESCRIBED HEREIN AT ANY TIME.
IN NO EVENT SHALL Sysflash AND/OR ITS RESPECTIVE SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER RESULTING FROM LOSS OF USE, DATA REVENUE OR PROFITS, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION, INCURRED BY YOU OR ANY THIRD PARTY, WHETHER ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF SERVICES, MATERIALS OR SOFTWARE, FAILURE TO PROVIDE THE SAME, OR INFORMATION AVAILABLE IN THE MATERIALS.
LIMITATION OF LIABILITY
Notwithstanding anything to the contrary in no event shall Sysflash be liable to you in excess of the amounts actually paid by you to Sysflash under the Plan Order that is the subject of the dispute.
LIMITATIONS ON ACTIONS
Any cause of action by you must be commenced within one (1) year after the cause of action arose or it shall be forever waived and barred.
TERM AND TERMINATION
Sysflash at its sole election may terminate or suspend your Service immediately without notice if, in the sole discretion of Sysflash: (a) you are in breach of any of the Terms and Conditions (including but not limited to all policies regarding abuse and acceptable use of the Service) or any license for Third Party Software; (b) your use of the Service is prohibited by law or is disruptive to, adversely impacts or causes a malfunction to the Service, Sysflash’s network, or the use and enjoyment of Sysflash’s other users; (c) Sysflash receives an order from a court to terminate the Service you are availing ; (d) if Sysflash for any reason ceases to offer the Service; (e) if you are no longer a Sysflash customer, or (f) Sysflash determines that you are abusing the Service. Sysflash, in its sole discretion, may refuse to accept your request for the Service, renewal or re-subscription following a termination or suspension of your use of the Service.
If any provision of the Terms of Service be held invalid or unenforceable, that portion shall be enforced to the maximum extent possible, and all other provisions contained in the Terms of Service shall remain in full force and effect. Sysflash’s failure to enforce any provision of the Terms of Service shall not be deemed a waiver of such provision nor of the right to enforce such provision.
The Sysflash Portal is available internationally and may contain references to Sysflash products, services, and programs that are not available in a viewer’s country. These references do not imply that Sysflash intends to make such products, services, or programs available in such country.
Sysflash reserves the right to amend the Terms and Condition, and the Sysflash Portal at any time by (a) posting a revised version of the Terms and Conditions on the Sysflash Portal (http://support.sysflash.in/terms-of-use.html), or by (b) sending information regarding any amendment to the Terms of Service to the email address you provide to Sysflash in connection with registration. You are responsible for regularly reviewing the Sysflash website to be notified of any amendments to the Terms and Conditions.
ARBITRATION AND CLASS ACTION WAIVER
Any claim, dispute, or controversy (“Claim”) arising out of or relating to this Agreement or the relationships among the parties hereto shall be resolved by one arbitrator through binding arbitration administered by the American Arbitration Association (“AAA”), under the AAA Consumer Rules in effect at the time the Claim is filed (“AAA Rules”). The arbitrator’s decision shall be final, binding, and non-appealable. Judgment upon the award may be entered and enforced in any court having jurisdiction or application may be made for judicial acceptance of the award and an order of enforcement. The arbitrator, and not any federal, state, or local court, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Agreement including any claim that all or any part of the Agreement is void or voidable. The arbitration proceedings shall be held in New York, U.S.A. and shall be subject to the terms of this Agreement, the intentions of the parties as stated herein, international commercial practice, and the governing law of this Agreement. Â No arbitration or proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings.
Class Action Waiver
The Parties hereby expressly agreed that any Claim must be brought in the respective party’s individual capacity, and not as a plaintiff or class member in any purported class, collective, representative, multiple plaintiff, or similar proceeding (“Class Action”). The parties expressly waive any ability to maintain any Class Action in any forum. The arbitrator shall not have authority to combine or aggregate similar claims or conduct any Class Action nor make an award to any person or entity not a party to the arbitration. Any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. THE PARTIES UNDERSTAND THAT THEY WOULD HAVE HAD A RIGHT TO LITIGATE THROUGH A COURT, TO HAVE A JUDGE OR JURY DECIDE THEIR CASE AND TO BE PARTY TO A CLASS OR REPRESENTATIVE ACTION. HOWEVER, THEY UNDERSTAND AND CHOOSE TO HAVE ANY CLAIMS DECIDED INDIVIDUALLY, THROUGH ARBITRATION. THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THIS AGREEMENT.
Before you take a dispute to arbitration or to small claims court, you must first contact us by writing us and describing (a) the nature and basis of the Claim or dispute; and (b) the specific relief sought (“Demand”) and give us an opportunity to resolve the dispute. Similarly, before Sysflash takes a dispute to arbitration, we must first attempt to resolve it by contacting you. If you and Sysflash do not reach an agreement to resolve the claim within 60 days from the date you or Sysflash is notified by the other of a dispute, you or Sysflash may commence an arbitration proceeding. If your Claim is for $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, by telephone, or by an in-person hearing as established by the rules of the arbitration administrator.
Information about the arbitration process and the AAA’s Arbitration Rules and its fees are available from the AAA on the Internet at www.adr.org. By notifying Sysflash within twenty days after commencing an arbitration proceeding, you may elect to relieve both parties to the arbitration of confidentiality obligations.
The amount of any settlement offer made by Sysflash shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you are entitled. After Sysflash receives notice that you have commenced arbitration, it will promptly reimburse you for your payment of the filing fee required by the arbitration administrator, unless your Claim is for greater than $75,000.
If, after finding in your favor in any respect on the merits of your Claim, the arbitrator issues you an award that is greater than the value of Sysflash’s last written settlement offer made before an arbitrator was selected, then Sysflash will pay you the amount of the award or $10,000 (“the alternative payment”), whichever is greater.
If Sysflash prevails before the arbitrator, and if we show that you acted in bad faith in bringing your claim, then Sysflash may seek to recover the AAA’s fees and expenses of the arbitrator from you.