Terms Of Service
These terms of service (these “terms”) govern subscription to and use of DataChannel’s services. If you register for a free trial of DataChannel’s services, the applicable provisions of these terms will also govern that free trial automatically. By accessing or using DataChannel’s websites and services, you accept or agree to these terms. If you are entering into or accepting these terms on behalf of a legal entity, you represent and warrant that you have the right, authority, and capacity to bind such entity and its affiliates to these terms, in which case, the term “subscriber” shall refer to such entity and its affiliates. If you do not have such authority, or if you do not agree to be bound by all the provisions of these terms, do not access, or use DataChannel’s services.
By using the service, you accept these terms and policies and any modifications that we may make to these terms and policies from time to time. It is your responsibility to review the most recent version of the terms and policies frequently and remain informed of any changes to it. If you continue to use the service after we modify the terms and policies, you will be deemed to have consented to such modified terms for your use of the service as of the date of the modification. If you do not agree to any provision of these terms or policies, you must not use the service.
1.1 “DataChannel” means DataChannel Technologies Private Limited.
1.2 “Affiliate” means with respect to a party, any entity which (i) is controlled by, (ii) controls, or (iii) is under common control with such party, where the term “control” means the ownership, directly or indirectly, of more than fifty percent (50%) of the shares entitled to vote for the election of directors.
1.3 “User” means an employee, advisor, or agent of You or the Subscribing Organization that has been assigned a unique username-password combination to access and use the Services on Your behalf.
1.4 “Customer Data” means any data input into, processed by, and/or stored by the Services by or for You or Your Users. Customer Data includes Customer Identification Data as well as Customer Personal Data.
1.5 “Customer Identification Data” means the Personal Data that is provided by the Customer to DataChannel and/or a DataChannel Affiliate, as requested by DataChannel, at the time of signing up for the Services, whether through the website www.datachannel.co or through an agreement;
1.6 “Customer Personal Data” means the Personal Data Processed by DataChannel and/ or an Affiliate on behalf of the Customer pursuant to the provision of the Services. Customer Personal Data would not, however, include the Customer Identification Data;
1.7 “Implementation Services” means any services performed by DataChannel Technologies Private Limited to configure and roll out the Services to You, as described in an applicable Service Order.
1.8 “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, moral rights know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world.
1.9 “Service Order” means an order for Services mutually agreed between the parties, which incorporates these Terms by reference.
1.10 “Site” means the DataChannel website located at www.datachannel.co
1.11 “Services” or “Service” means the online and hosted services, including downloadable software applications APIs, and websites, provided by DataChannel through the Site or otherwise.
- Eligibility. You affirm that You are either more than 18 years of age, or an emancipated minor, or possess legal parental or guardian consent and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms, and to abide by and comply with these Terms. You further represent and warrant that you are not located in a country that is subject to an Indian Government embargo, or that has been designated by the Indian Government as a ”terrorist-supporting” country, and that You are not listed on any Indian Government list of prohibited or restricted parties. If You are entering into these Terms on behalf of an entity, organization, or company (a “Subscribing Organization”), You represent and warrant that You have the authority to bind such Subscribing Organization and its Affiliates to these Terms and You agree to be bound by these Terms on behalf of such Subscribing Organization. In such cases, “You” in these Terms means such Subscribing Organization, its Affiliates, and each User of the Subscribing Organization.
- Accounts and Registration. To access most features of the Service, You must register for a DataChannel account (“Account“). When You register for an Account, You may be required to provide us with some information about Yourself, such as Your e-mail address or other business contact information. You agree that the information You provide to us is and will be accurate and up-to-date at all times. You are solely responsible for maintaining the confidentiality of Your Account and password and You agree to accept responsibility for all activities that occur under Your Account. If You have reason to believe that Your Account is no longer secure, then You agree to notify us as soon as possible at email@example.com.
- Free Trial. We may at our sole discretion offer you free trials for selected features of the Service or a limited time trial period of the entire Service. Use of free trial service shall imply agreement to all terms of service as mentioned here. Once your free trial period ends, your ability to access the Service will terminate. DataChannel reserves the right to determine if you are eligible for a free trial and to discontinue any free trial without notice at our sole discretion. Use of free trial service shall imply that you authorize DataChannel to contact you by email/other electronic means regarding any promotional/informational material regarding the service or related features.
5.1 Invoicing and Payment. Access to the Service or to certain features of the Service may now or in the future require the payment of fees such as subscription fees (“Fees”). Fees may be set forth on our pricing page available at www.datachannel.co/pricing or on a physical, electronic, or online Invoice, as applicable, which describes such Fees. DataChannel will charge Fees in US dollars or such other methods specified in the Invoice. Except as otherwise provided herein, all Fees are non-refundable. DataChannel may add features to the Service on a going-forward basis at any time and may charge additional Fees separately for such additional features if You elect to use any such features. DataChannel reserves the right to change the Fees charged for any subscription upon the renewal of such subscription at the end of the subscription duration. Unless a different payment method is specified otherwise, DataChannel will bill You in accordance with the relevant Invoice . Unless otherwise stated in the Invoice, bill charges are due seven (7)days from the invoice date. If the applicable invoice states that payment will be by credit card, You will provide DataChannel with valid and updated credit card information and You hereby authorize DataChannel to charge such credit card for all Fees due under the Invoice in accordance with the billing frequency stated on such Invoice . You are responsible for maintaining complete and accurate billing and contact information and notifying DataChannel of any changes to such information. If Your payment method fails or Your accounts are past due, (a) You agree to pay all amounts due upon demand by DataChannel, (b) DataChannel may collect fees owed using other collection mechanisms (including charging other payment methods You may have on file with DataChannel), (c) DataChannel reserves the right to either suspend or terminate Your Account or access to the Service, and/or (d) You agree to pay a late fee of 1.5% per month, or the maximum charge permitted by law, whichever is less.
5.2 Collection Fee. In the event You fail to pay overdue charges, DataChannel may refer Your account(s) to a third party for collection. You agree that if it becomes necessary for DataChannel to refer Your invoices to a third party for collection, DataChannel will charge a collection fee at the maximum percentage permitted by applicable law, but not to exceed 18%, to cover the internal collection-related costs DataChannel has incurred on such invoices through and including the date on which DataChannel refers the invoices to such third party. To the extent permitted by law, You agree to pay DataChannel any additional costs and fees DataChannel reasonably incurs to collect amounts outstanding on Your invoices. You expressly authorize, and specifically consent to allow, DataChannel and/or its outside collection agencies, outside counsel, or other agents to contact You in connection with any and all matters relating to unpaid past due charges billed by DataChannel to You. You agree that, for attempts to collect unpaid past due charges, such contact may be made to any mailing address, telephone number, cellular phone number, e-mail address, or any other electronic address that You have provided, or may in the future provide, to DataChannel. You agree and acknowledge that any e-mail address or any other electronic address that You provide to DataChannel is Your private address and is not accessible to unauthorized third parties. For attempts to collect unpaid charges, You agree that in addition to individual persons attempting to communicate directly with You, any type of contact described above may be made using, among other methods, pre-recorded or artificial voice messages delivered by an automatic telephone dialing system, pre-set e-mail messages delivered by an automatic e-mailing system, or any other pre-set electronic messages delivered by any other automatic electronic messaging system.
5.3 Payment Disputes. DataChannel shall not exercise its rights under Section 5.1 (Invoicing and Payment) or 5.2 (Collection Fee) with respect to those charges that are under reasonable and good faith dispute and for which You are cooperating diligently to resolve the dispute.
6.1 License from DataChannel to You. DataChannel provides software applications as a “software as a service platform” accessible via the Internet. Subject to the Terms, DataChannel grants that you / your organization will receive a non-exclusive, non-assignable, non-sublicensable, royalty free, worldwide right to access and use the SaaS Services solely for its internal business operations subject to the terms of this Agreement.
- Acceptable Use. BY USING THE SERVICE YOU AGREE NOT TO:
7.1 Use the Service for any illegal purpose, or in violation of any local, state, national, or international law;
7.2 Copy, modify or distribute any portion of the Services;
7.3 Violate, or encourage others to violate, the rights of third parties;
7.4 Import or collect any Customer Data or other content that is unlawful, defamatory, libelous, or invasive of privacy through Your Customer Applications or otherwise;
7.5 Use the Service to engage in or promote any other harmful, offensive, inappropriate, fraudulent, deceptive, or illegal activities.
7.6 Sell, sublicense, rent, lease, or otherwise transfer the access granted herein to the Service or any Materials (as defined in Section 10 below) other than to Affiliates; including on a time-share or service bureau basis;
7.7 Use or apply, directly or indirectly, the Services in any manner competitive with the business of DataChannel.
7.8 Use the Services to violate the security or integrity of, or otherwise abuse,any application, computing device, system or network (each a “System”) of any party, including but not limited to accessing or using any System without permission (including attempting to probe, scan, monitor, or test the vulnerability of a System), forging any headers or other parts of any message describing its origin or routing, interfering with the proper functioning of any System (including any deliberate attempt by any means to overload a System), implementing denial-of-service attacks (inundating a target with communications requests so it cannot respond effectively or at all to legitimate traffic), operating non-permissioned network services (including open proxies, mail relays or recursive domain name servers), or using any means to bypass System usage limitations;
7.9 Attempt to gain access to any Systems or networks that connect to the Services (except as required to access the Services as provided hereunder);
7.10 Use the Services to distribute or facilitate the sending of unsolicited mass email or other messages, promotions or solicitations (e.g., “spam”), including advertising or other announcements of any kind;
7.11 Interfere with or disrupt the operation of the Service, including by (i) disassembling, decompiling, reverse engineering or otherwise attempting to discover the source code of the Service or any part thereof, except to the extent that such activity is expressly permitted by applicable law, (ii) performing any fraudulent activity, including impersonating any person or entity, claiming false affiliations, or accessing the Service accounts of others without permission; or (iii) intentionally interfering with or damaging the operation of the Service or any user’s enjoyment of it, including by uploading or otherwise disseminating viruses or other malicious code; or
7.12 Permit or authorize a third party to do any of the foregoing.
- Term; Termination; Discontinuation and Modification of the Service.
8.1 Term. These Terms commence on the Effective Date/ Date of start of free trial and shall continue in full force and effect until all subscriptions granted in accordance with these Terms or a Service Order have expired or been terminated. The initial term of these Terms shall commence on the start date specified in the applicable Service Order and continue for the subscription term specified therein (“Initial Term”). Except as otherwise specified in the applicable Service Order, all subscriptions shall automatically renew for an additional periods equal to the expiring subscription term unless either party gives the other notice of non-renewal at least thirty (30) days before the end of the relevant subscription term (the “Renewal Term”).
8.2 Termination for Cause. A party may terminate these Terms for cause: (i) upon thirty (30) days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Unless otherwise stated in the applicable Invoice, You shall pay any unpaid fees covering the remainder of the term of the subscription after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to DataChannel for the period prior to the effective date of termination. Notwithstanding the foregoing, DataChannel reserves the right to immediately suspend or terminate Your use of the Services or remove Customer Personal Data or Customer Applications from the Service, without notice, in instances where such continued use would violate applicable law or have a material adverse effect on DataChannel.
8.3 Termination for Convenience. You may terminate these Terms at any time, for reason or no reason, upon thirty (30) days prior written notice by e-mail to DataChannel. Unless otherwise set forth in an applicable Service Order, if You terminate Your Account, You shall not be entitled to any refund and shall remain obligated to pay, as liquidated damages and not as a penalty, all outstanding fees and charges, if any, not prepaid and owed relating to Your use of the Service at the time of such termination for the remainder of the Initial Term or any Renewal Term under the Service Order.
8.4 Modification of the Service. DataChannel reserves the right to make non-material modifications to the Service at any time without notice to You, provided that such changes do not materially reduce the functionality of the Services. We will have no liability whatsoever on account of any such non-material change to the Service
- Ownership; Proprietary Rights. DataChannel provides software applications as a “software as a service platform” accessible via the Internet. The Service is owned and operated by DataChannel. The visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), products, software, services, and all other elements of the Service provided by DataChannel (the “Materials”) are protected by all relevant intellectual property and proprietary rights and applicable laws. Except for any Customer Personal Data or Customer Applications, all Materials contained in the Service are the property of DataChannel or our third-party licensors. Except as expressly authorized by DataChannel , You may not make use of the Materials. DataChannel reserves all rights to the Materials not expressly granted in these Terms. You retain copyright and any other proprietary rights You hold in the Customer Personal Data and Applications that You import to the Service.
11.1 Indemnification by DataChannel. DataChannel shall defend, indemnify and hold You, and Your respective officers, directors, employees, consultants, affiliates, subsidiaries and agents (“Customer Indemnitees”) harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with claims, demands, suits, or proceedings (“Claims“) made or brought against any Customer Indemnitee by a third party alleging that the use of the Service as contemplated hereunder infringes the patent, copyright, trade secret or intellectual property or proprietary rights of such third party, provided that You (a) give written notice of the Claim to DataChannel; (b) give DataChannel control of the defense and settlement of the Claim (provided that DataChannel may not settle any Claim unless it unconditionally releases You of all liability); and (c) provide to DataChannel, at DataChannel’s cost, all reasonable assistance. DataChannel may, at its expense: (i) procure for You the right to continue using the Service under the terms of these Terms; (ii) replace or modify the Service to be non-infringing without a material decrease in functionality; or (iii) if the foregoing options are not reasonably practicable, terminate the license for the infringing Service and relieve You of any obligation to pay fees for the remainder of the term following the effective date of termination.
11.2 Indemnification by You. You agree that You are responsible for Your use of the Service, and You agree to defend, indemnify and hold harmless DataChannel and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (collectively, the “DataChannel Entities“) from and against any and all claims, liabilities, damages, losses and expenses, including reasonable attorneys’ and accounting fees and costs, arising out of or in any way connected with (i) Your or Your Users’ access to, use of or alleged use of the Service in violation of Section 7 (Acceptable Use), (ii) Your violation of the Terms or any representation, warranty, or agreements referenced herein, or any applicable law or regulation, (iii) Your violation of any third party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right, or (iv) any disputes or issues between You and any third party; provided that DataChannel (a) gives written notice of the Claim to You, (b) gives You control of the defense and settlement of the Claim (provided that You may not settle any Claim unless it unconditionally releases DataChannel of all liability), and (c) provides to You, at Your cost, all reasonable assistance. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, and in such case, You agree to cooperate with our defense of such claim.
- Warranty; Disclaimers.
12.1 Service Warranty. DataChannel warrants that the Services will substantially conform to the functionality set forth herein.
12.2 Customer Personal Data Warranty. By importing, storing, or processing Customer Personal Data or making available Customer Applications, You affirm, represent, and warrant that You are the creator and owner of, or have the necessary licenses, rights, consents, and permissions to use and to authorize DataChannel and users of the Service to use and distribute Your Customer Personal Data and Customer Applications as necessary to exercise the licenses granted by You in these Terms including, but not limited to, Your applicable license agreement with the applicable Cloud Provider. Your Customer Personal Data and Customer Applications, and the use thereof as contemplated herein, does not and will not infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right;
12.3 Use Disclaimer. Customer assumes sole responsibility and liability for its use and its Users’ use of the Services. DataChannel shall have no liability for any claims, losses, or damage caused by errors or omissions in any information provided to DataChannel by You in connection with the Services or any actions taken by DataChannel at Your direction. DataChannel shall have no liability for any claims, losses or damages arising out of or in connection with Your or any User’s use of any material, information or results available through any third-party products, services, software or websites that are accessed from within the Services. The Service may also contain links to third-party websites/services. Such linked websites are not under our control, and we are not responsible for their content.
12.4 Customer Personal Data and Customer Application Disclaimer. Except as otherwise set forth herein, DataChannel expressly disclaims any and all liability in connection with Customer Personal Data or Customer Applications. DataChannel is under no obligation to edit or control Customer Personal Data or Customer Applications that You import to or make available through the Services. DataChannel may, at any time without prior notice, remove any Customer Personal Data or Customer Applications that violate these Terms or applicable law, or which violate the rights of a third party or DataChannel.
12.5 General Disclaimer. The service is provided “as is” and on an “as available” basis, without warranty or condition of any kind, either express or implied. DataChannel entities specifically (but without limitation) disclaim (i) any implied warranties of merchantability, fitness for a particular purpose, quiet enjoyment, or non-infringement; and (ii) any warranties arising out of course-of-dealing, usage, or trade. You assume all risk for all damages that may result from your use of or access to the service.2
- Limitation of Liability. In no event will DataChannel entities be liable to you for any incidental, special, consequential, or punitive damages, whether based on warranty, contract, tort (including negligence), statute or any other legal theory, whether or not the DataChannel entities have been informed of the possibility of such damage. You agree that the complete aggregate liability of the DataChannel entities to You for any and all claims arising from or related to the use of the service is limited to a maximum of the amount You have actually paid to DataChannel for access to and use of the service in the Three (03) months prior to the claim.
- Governing Law. This Agreement, including its exhibits, is governed by the laws of India, with the courts of New Delhi, India, having exclusive jurisdiction without reference to any conflict of laws rules. To the extent that any lawsuit or court proceeding is permitted hereunder, You and DataChannel agree to submit to the personal and exclusive jurisdiction of the courts of New Delhi, India for the purpose of litigating all such disputes.
- Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign these Terms in their entirety (including all Service Orders), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.
- Metadata. DataChannel may collect aggregate data about Your use of the Services that is non-personally identifiable with respect to You or any User or individual (“Aggregated Anonymous Data”), and may use and disclose the Aggregated Anonymous Data for the purpose of enhancing the Services and otherwise for any internal business purpose.
- Headings. Use of paragraph headers in the Terms is for convenience only and shall not have any impact on the interpretation of particular provisions.
- Severability. In the event that any part of the Terms is held to be invalid or unenforceable, the unenforceable part shall be given effect to the greatest extent possible and the remaining parts will remain in full force and effect.
- Notices. Any notices provided by DataChannel under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; or (ii) by posting to the Services. For notices by email, the date of receipt will be the date on which such notice is transmitted.
- Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of events beyond the reasonable control of such party, which may include without limitation denial-of-service attacks, strikes (except by its own employees), shortages, riots, pandemics, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, environmental disasters, governmental action, labor conditions, earthquakes and material shortages (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations affected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.
- Compliance with Laws. Each party agrees to comply with all applicable laws, including Indian export laws, and regulations with respect to its activities hereunder.
- Relationship Between the Parties. Nothing in these Terms shall be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written contractual consent.
- Feedback. If You or Your Users submit suggestions, ideas, comments, questions, or post any information through the Services (“Feedback”), You grant DataChannel and its Affiliates a worldwide, non-exclusive, royalty-free, perpetual, and irrevocable right to use (and full right to sublicense), reproduce, modify, adapt, publish, translate, create derivative works from, distribute, transmit, and display such Feedback in any form.
- Changes. DataChannel reserves the right to, without materially affecting the functionality of the Services: (1) discontinue, impose limits on, or restrict access to any aspect of the Services at any time, with or without cause or notice, including the availability of any features, delivery services, databases, or content, or (2) edit or delete any Materials.
- Updates to Service. DataChannel may develop and provide updates, upgrades, enhancements, bug fixes, and workarounds for the Service on a regular basis (“Updates”). Updates are deemed to be a part of the Service and are included at no additional charge.
- Equitable Relief. Each party acknowledges that a breach by the other party of any confidentiality or proprietary rights provision of these Terms may cause the non-breaching party irreparable damage, for which the award of damages would not be adequate compensation. Consequently, the non-breaching party may institute an action to enjoin the breaching party from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and a party may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching party may be entitled at law or in equity.
- No Third-Party Beneficiaries. These Terms are for the sole benefit of the signatories and are not intended to benefit any third party.