This terms of use (“Agreement”) is entered into by and between Flock FZLLC, with its registered office at Opposite Double Tree Hilton Hotel Business Centre 4, Ras-al-Khaimah United Arab Emirates (“Flock”), and the individual agreeing to these terms (“End User” or “you”) for his/her use of Flock SAAS.
This Agreement is effective as of the date the End User confirms his/her acceptance through an online checkbox, “I agree” button or, any similar acceptance mode (“Acceptance Confirmation”).
1. Definitions
1.1 “Confidential Information” means information disclosed by a party to the other party under this Agreement that is marked as confidential or would normally be considered confidential under the circumstances;
1.2 “Customer” means the entity that provides an End User Account to the End User;
1.3 “End User” means the individuals the Customer permits to use Flock SAAS subject to the terms and conditions of this Agreement;
1.4 “End User Account” means a Flock account established by the Customer through Flock SAAS for an End User. Subject to the provisions of applicable law, all rights of the End User Account belong to the Customer;
1.5 “End User Data” means data, including email, provided, generated, transmitted or displayed via Flock SAAS by the End User;
1.6 “FlockSAAS” shall refer to the proprietary software as a service managed, operated, managed, operated and sold by Flock;
1.7 “High Risk Activities” means uses of Flock SAAS in situations where the use or failure of Flock SAAS could lead to death, personal injury, or environmental damage, such as the operation of nuclear facilities, air traffic control, life support systems, use of heavy equipment in construction sites, etc.;
1.8 “Privacy Policy” shall mean Flock’s privacy policy, which may be found here; and
1.9 “SAAS” shall mean software as a service comprising of a web interface software, desktop client software, mobile apps, server software, and server infrastructure.
2. End UserObligations
2.1 The End User will use Flock SAAS in accordance with all applicable laws and the AUP specified by Flock from time to time. The AUP in effect as on the date of this Agreement may be found here.
2.2 The End User will use commercially reasonable efforts to prevent unauthorized use of Flock SAAS and to terminate any unauthorized use. The End User will promptly notify Flock of any unauthorized use of, or access to, the Flock SAAS of which he/she becomes aware, and cooperate with Flock and any others as directed by Flock, to undertake all actions necessary to end or penalize such unauthorized use.
2.3 Unless Flock specifically agrees in writing, the End User will not: (a) sell, resell, lease, or the functional equivalent, Flock SAAS to a third party (unless expressly authorized in this Agreement); (b) attempt to reverse engineer Flock SAAS or any component; (c) attempt to create a substitute or similar service through the use of, or access to, Flock SAAS; or (d) use Flock SAAS for High Risk Activities.
2.4 The End User must promptly cooperate with Flock’s reasonable investigation of Flock SAAS outages, security problems, and any suspected breach of the Agreement.
2.5 By virtue of being provided the End User Account by the Customer, the End User acknowledges and confirms that the Customer can:
- Control and administer the End User Account, including but not limited to controlling privacy related settings of the End User Account; and
- Access and process all End User data and contents of any End User communications and files associated with the End User’s use of Flock SAAS.
2.6 Further, by virtue of the Customer granting the End User access to Flock SAAS, in addition to this Agreement, the End User’s use of Flock SAAS is also subject to any applicable Customer policy. Flock is not responsible for any obligation of the Customer as may be set forth in any applicable Customer policy. Flock shall not be responsible for any data or security practices of the Customer if the data and security practices of the Customer are different from the provisions stipulated in the Privacy Policy.
3. Flock’s Obligations
3.1 Flock shall provide Flock SAAS in accordance with the mandatory legal requirements to which it is subject to, and in accordance with the terms and conditions outlined in this Agreement. However, the End User acknowledges and agrees that the provision of Flock SAAS is also dependent on third party factors outside Flock’s control, such as internet connectivity, mobile data availability, etc., and failure or reduction of Flock SAAS on account of such factors does not result in any breach of provision of Flock SAAS by Flock.
3.2 Flock will maintain security practices that are at least as stringent as the minimum security practices that Flock uses for its own data.
4. Modification of Flock SAAS and Agreement
4.1 Flock may make changes, modifications, updates to Flock SAAS and its features at its sole discretion. Flock may make changes to this Agreement, from time to time which shall become effective as and when Flock notifies the End User of such changes.
5. End User Accounts
5.1 Use of Flock SAAS is available only to persons above the age of majority as determined by the laws of the jurisdiction from where such person’s access Flock SAAS.
6. Term
6.1 The Agreement, shall commence from the time of the Acceptance Confirmation and shall be in force till such time that the Customer gives the End User access to Flock SAAS (“Term”).
7. Suspension/termination of End User Accounts
7.1 Flock may either suspend or terminate the End User Account without any liability and without any notice for any of the following reasons:
- Flockreasonably believes that the End User Account is being used in violation of the Agreement;
- The Customer requests Flock to suspend or terminate the End User Account;
- The End User does not cooperate with Flock’s investigation of any suspected violation of the Agreement;
- There is an attack on the End User’s systems;
- Flock is required by applicable law, or a regulatory or government body to suspend the End User Account; or
- The occurrence of any other event where Flock reasonably believes that the suspension of the End User Account is necessary to protect the Flock network or its other customers.
8. Representations and Warranties
8.1 Flock represents and warrants that:
- It is a validly incorporated business entity;
- It has all necessary rights, powers, and authority to perform its obligations under this Agreement, and the execution, delivery, and performance of this Agreement by Flock; and
- It shall at all times and at its own expense strictly comply with all applicable laws and maintain in full force and effect all licenses, permits, and authorization from all governmental departments and agencies to the extent necessary to perform its obligations under this Agreement.
8.2. The End User represents and warrants that:
- By entering into this Agreement, he/she is not violating or infringing upon or otherwise violating the rights of any third party;
- The Customer has issued the End User Account to the End User;
- He/she will not be involved in the distribution of malware, abusively operating botnets, phishing, piracy, trademark or copyright infringement, fraudulent or deceptive practices, counterfeiting or otherwise engaging in activity contrary to applicable law;
- He/she will correct and update his/her information within seven (7) days of any change;
- He/she shall at all times and at his/her own expense strictly comply with all applicable laws and maintain in full force and effect all licenses, permits and authorization from all governmental departments and agencies to the extent necessary to perform his/her obligations under this Agreement; and
- It will respond promptly to any enquiries from Flock concerning the terms of this Agreement.
8.3 The End User acknowledges that a breach of his/her representations and warranties will constitute a material breach of the Agreement, which will entitle Flock to terminate this Agreement immediately upon such breach without any liability, refund or notice to the End User.
9. Consequences of termination
9.1 Upon the termination of this Agreement, both parties agree that:
- The rights granted by one party to the other will cease immediately (except as set forth in this Clause);
- The End User will not be able to access Flock SAAS;
- Unless Flock is required to retain the End User Data in order to fulfill its obligations, or provide its services, or under applicable law, Flock, at its sole discretion, may immediately or within a reasonable period of time, delete all End User Data; and
- Upon request, each party will promptly use commercially reasonable efforts to return or destroy all other Confidential Information of the other party, and if so requested, confirm such deletion to the requesting party.
10. Indemnification
10.1 The End Useragrees and acknowledges to defend, indemnify, and hold harmless Flock and its respective directors, officers, employees, agents, affiliates, and contractors, from all liabilities, claims and expenses, including attorney’s fees, arising out of any third party claim relating to the End User violating any of the terms of this Agreement or any of Flock’s policies.
10.2 The End User agrees that Flock will have the right to choose legal counsel to defend the claim, provided that these decisions must be reasonable and must be promptly communicated to the End User. The End User must comply with all requests for assistance and cooperation made by Flock in the defense of the claim.
10.3 This provision will survive the termination of this Agreement.
11. Limitation of liability
11.1 To the extent permitted by law, neither party will be liable under this Agreement for lost revenues or indirect, special, incidental, consequential, exemplary, or punitive damages, losses or expenses, even if the party knew or should have known that such damages, losses or expenses were possible and even if direct damages do not satisfy a remedy.
11.2 Under no circumstance shall Flock be liable to the End User for loss of End User Data.
12. Disclaimer of warranties
12.1 The End User acknowledges and agrees that Flock SAAS is provided/supplied by Flock on an ‘as is where is’ basis. Neither Flock nor any of its representatives has made nor will make any representation or warranty whatsoever, express, implied, or statutory, including, without limitation, any implied representations or warranties of merchantability, fitness for a particular purpose, title, enforceability or non- infringement.
12.2 The End User agrees and acknowledges that any warranty with respect to Flock SAAS that barring the express warranties made by Flock in this Agreement, Flock does not make any other warranty of any kind, whether express or implied.
12.3 Flock does not promise that Flock SAAS will be uninterrupted, error-free, or completely secure. The End User acknowledges that there are risks inherent in internet connectivity that could result in the loss of privacy, customer data, Confidential Information, etc., which could adversely impact Flock SAAS, which are not in Flock’s control.
13. Restrictions on use of Flock SAAS
13.1 The End User is not permitted to upload any data that is in excess of the amount permitted in their End User Account on Flock’s servers without prior agreement with Flock.
13.2 Illegal material is not permitted on any of Flock's servers, whether this be images, film clips, other types of files or link to unlawful photos or similar material. For example, unlawful material is, but not limited to, copyright protected material or other material you are not entitled to publish or store according to legislation. Nor is it permitted to store erotic, pornographic or other offensive material on servers owned by Flock. It is entirely Flock's decision to determine whether material belongs to one or more of the above categories, and Flock reserves the right to delete any such material at any time without notice. In the event of such material being deleted the End Usercannot advance any claim against Flock related to the deletion.
13.3 Unwanted (spam) mail must not be sent from Flock's servers. In the event of transgression of this rule, Flock reserves the right to inform the relevant authority and submit log details etc. to that authority.
14. Privacy policy
14.1 Information collected about the End User is subject to the privacy policy. By entering into the Agreement with Flock, the End User accepts data processing as described in the Privacy Policy.
14.2 Flock will not process personal data collected from the End User in a way incompatible with the purposes and other limitations stated in its privacy policy and Flock will take reasonable precautions to protect personal data from loss, misuse, unauthorized access or disclosure, alteration, or destruction.
15. Intellectual Property Rights
15.1 For the purpose of this Agreement, intellectual property rights shall mean all current and future worldwide rights under patent law, copyright law, trade secret law, trademark law, moral rights law, and other similar rights (“Intellectual Property Rights”).
15.2 Except as expressly set forth herein, this Agreement does not grant either party any Intellectual Property Rights to the other party. The End User agrees and acknowledges that Flock owns any and all Intellectual Property Rights in and to Flock SAAS.
16. Confidential Information
16.1 The End User and Flock, both agree not to use the other’s Confidential Information except in connection with the performance or use of Flock SAAS.
16.2 Flock and the End User agree that they will: (a) protect the other party’s Confidential Information with the same standard of care it/he/she uses to protect it/his/her own Confidential Information; and (b) not disclose the Confidential Information to any third party. Each party is responsible for any actions of its/his/her affiliates, employees and agents in violation of this Clause.
16.3 Each party may disclose the other party’s Confidential Information when required by law but only after it, if legally permissible: (a) uses commercially reasonable efforts to notify the other party; and (b) gives the other party the chance to challenge the disclosure.
17. Governing Law and Dispute Resolution
17.1 This Agreement shall be governed by the laws of Singapore.
17.2 And dispute arising out of or in connection with this Agreement, including any questions regarding its existence, validity and termination, shall be referred to and finally resolved by arbitration administered by the Singapore International Arbitration Centre (“SIAC”) in accordance with the Arbitration Rules of SIAC (“SIAC Rules”) for the time being in force, which rules are deemed to be incorporated by reference to this clause.
17.3 The tribunal will consist of 1(One) arbitrator who will be appointed by the parties mutually. If the parties are unable to appoint an arbitrator mutually, the arbitrator shall be appointed by SIAC as per the provisions of the SIAC Rules.
17.4 The seat of the arbitration will be Singapore and the language of the arbitration shall be English.
17.5 Flock and the End User shall bear their own costs and expenses, incurred in connection with the arbitration proceedings, unless otherwise awarded by the arbitrator in the arbitral award.
17.6 Nothing herein shall preclude either Flock or the End User from seeking interim or permanent equitable or injunctive relief, or both, from any court having jurisdiction to grant the same. The pursuit of equitable or injunctive relief shall not be a waiver of the right of the parties to pursue any remedy for monetary damages through the arbitration described in this Clause 18.
17.7 Subject to Clause 17.2 above, Courts in Singapore shall have exclusive jurisdiction upon all matters arising out of this Agreement.
18. Miscellaneous
18.1 Entire Agreement: This Agreement, along with the AUP constitutes the entire understanding between Flock and the End User and supersedes all other discussions and understanding between Flock and the End User.
18.2 Force Majeure: Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, labour condition, epidemic, pandemic, governmental action, and Internet disturbance) that was beyond the party’s reasonable control.
18.3 Notices: Unless specified otherwise herein, (a) all notices must be in writing and addressed to the attention of the other party’s legal team and primary point of contact and (b)notice will be deemed given: (i) when verified by written receipt if sent by personal courier, overnight courier, or when received if sent by mail without verification of receipt; or
(ii) when verified by automated receipt or electronic logs if sent by facsimile or email.
18.4 Severability: The invalidity or unenforceability of any provision in this Agreement shall in no way affect the validity or enforceability of any other clause in the Agreement.
18.5 Survival: The provisions which by their nature, intend to survive the termination of this Agreement, shall survive the termination of this Agreement.
18.6 Conflict: Unless otherwise provided for, in the event of any conflict between the terms of this Agreement and any other agreement executed between Flock and the End User, the terms of this Agreement shall prevail.