Terms and Conditions
1.1 By purchasing, accessing, or using the Product (defined below), you conclude a legally binding agreement with us, which consists of:
(Collectively, the “Agreement”)
1.2 If there is any inconsistency between the parts of this Agreement listed in Clause 1.1 above, the Agreement shall apply in the order of precedence as set out above.
1.3 You accept the Agreement without limitation or qualification, and agree to comply with the Agreement at all times.
2.1 Words and expressions in these Terms and Conditions shall have the following meanings unless the context otherwise requires:
“Acceptable Use Policy” means the acceptable use policy which sets out the acceptable and unacceptable uses of our Product. Our Acceptable Use Policy can be found on the Website;
“Affiliates” means an entity directly or indirectly controlling, controlled by, or under direct or indirect common control. In the case of Fractal’s affiliates, this definition shall include without limitation Fractal’s parent company, related companies and subsidiaries. “control” here means the power to direct the management and policies of such entity, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise;
“API” means application programming interface;
“Authorised Users” means your employees, agents and/or independent contractors who are expressly authorised by you to access and use the Products in accordance with this Agreement;
“Business Day” means a day other than a Saturday, Sunday, or a day declared to be a public holiday in India ;
“Confidential Information” means all information (whether written or oral) which is not generally publicly available or is proprietary to the disclosing party. For the avoidance of doubt, Confidential Information in the case of Fractal as disclosing party, shall include without limitation, all know-how, trade secrets, financial, commercial, technical, tactical, or strategic information of any kind and information relating to its business, affairs, plans, customers, clients, suppliers, service providers, reports, recommendations, advice or tests, source and object codes of software incorporated into the Product, any information obtained or received or accessed by you as a result of or in connection with the entry or performance of the Agreement. Without prejudice to the generality of the foregoing, it includes any information which you have received or will receive from Fractal that is marked as “Confidential”;
“Content” means any content, text, information, data, report, document, software, executable code, images, material and instructions, in whatever medium or form, provided by you to Fractal that are reasonably required by Fractal in order to enable you and/or the Authorised Users to use or access the Product;
“Customer Application” means any application developed by you that is integrated with the Product;
“Customer Personal Data” means any Personal Data which Fractal processes on your behalf for the purposes of providing the Products;
“Data Protection Laws” means all applicable laws relating to data protection, including the collection, disclosure, use, storage, transfer or Processing of Personal Data, including and where applicable, the GDPR;
“User Subscriptions” means special User Subscriptions with authorised access to the Product;
“GDPR” means the General Data Protection Regulation (EU)
“Intellectual Property Rights” shall include all copyright and moral rights, patents, trademarks, service marks, domain names, layout design rights, registered designs, design rights, database rights, trade or business names, know-how, rights protecting trade secrets and confidential information, rights protecting goodwill and reputation, and all other similar or corresponding proprietary rights and all applications for the same, whether presently existing or created in the future, anywhere in the world, whether registered or not, and all benefits, privileges, rights to sue, recovery of damages and obtainment of relief for any past, current or future infringement, misappropriation or violation of any of the foregoing rights;
“Operational Document” means a document agreed between you and Fractal that sets out any implementation or operational requirements which are to be incorporated into the Agreement. See Annexure A to this Agreement for further details;
“Commencement Date” means the commencement date of the Product on successful payment of subscription plan selected by you;
“Personal Data” shall have the meaning as prescribed by the applicable laws relating to data protection.
“Platform” or “Flyfish Platform” means the Flyfish SaaS platform offering, and any mobile websites, mobile applications, and any other website, platform, or technology offering owned and/or operated by Fractal from time to time;
“Price” means monetary consideration in exchange for Products;
“Process” in relation to Personal Data shall have the meaning as prescribed by the applicable laws relating to data protection, but whose definition typically encompasses or includes (non-exhaustively) an act or function to carry out any operation or set of operations in relation to Personal Data, and includes recording, holding, organisation, adaptation/alteration, retrieval, combination, transmission, or erasure/destruction. “Processed” and “Processing” shall have the corresponding meaning as a verb for the same;
“Purchase” means the purchase and/or subscription of the Product from Fractal;
“SaaS” means software-as-a-service.
“Security Event” means:
“Services” means any service set out in the relevant subscription plan of the Product which Fractal provides to you in accordance with the Agreement including, where applicable, Support Services, and any other services provided through the Product;
“Service Level” means the service level set out in Clause 1.1 of Annexure A;
“Subscription Term” means the length of time the purchase and/or subscription of the Product, , it is valid for.;
“Support Services” shall have the meaning ascribed to it in Clause 1.1 of Annexure A;
“ Fractal” means Fractal Analytics Private Limited, with address of Level 7, Commerz II, International Business Park, Oberoi Garden City, Off. Western Express Highway, Goregaon (East), Mumbai – 400063
“ Website” means wwwflyfish.ai;
“Flyfish Product(s) or Product(s)” means the Platform, and/or Services and/or other service, package, subscription, tool, content, support, technology offering (or a combination thereof), including updates and upgrades;
“User Subscriptions” means the user subscriptions purchased by you which entitle Authorised Users to access and use the Product ;
“Virus” means any thing or device (including any software, code, file or programme) which may prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
“Vulnerability” means a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term “Vulnerabilities” shall be interpreted accordingly.
3. Order, Term, and Licensing
3.1 The Product must be purchased or subscribed on payment of subscription fees. That subscription forms part of this Agreement on the date the subscription is valid between us.
3.2 Subject to and your compliance with the Agreement, and your valid purchase of the Product, Fractal hereby grants you a non-exclusive, non-transferable, royalty-free, limited and revocable license to:
The rights provided under this clause are granted to you only, and shall not be considered granted to any of your Affiliates or any other third parties, unless otherwise agreed in writing by Fractal.
3.3 You shall be liable for all activities conducted using the Product and you shall not use the Product in any way that adversely prejudices and/or harms Fractal and/or its Affiliates and their respective officers, employees, agents, partners or customers.
3.4 The Product purchased by you is for you and your Authorised Users’ use only in accordance with the Agreement, and cannot be sold, assigned, or transferred to any other person. You shall not transfer, sublicense or assign any of your rights and obligations under the Agreement without Fractal’s prior written consent.
3.5 If Fractal is at any time instructed by you to provide any additional technology function and/or offering and/or service not envisaged or beyond the scope of the Agreement relating to the Product that Fractal considers, in its sole and absolute discretion, to be in the nature of an increase in the scope of work set out in the Agreement, Fractal shall provide you with a written estimate of its reasonable adjustment to the Price .
3.6 The subscription being offered to you in respect of the Product shall be subject to the terms and conditions of Service Level as set out in Annexure A.
4. Price and Product Revisions
4.1 Fractal reserves the right to:
5. Payment and Tax
5.1 You are solely responsible for any payment method that you have chosen and Fractal shall not be held responsible or liable for any damage or loss suffered by you in connection with your chosen payment method.You acknowledge that Fractal is only obligated to commence Product upon your acceptance of the Agreement and actual receipt by Fractal of all due and payable fees in connection with the Purchase being made.
5.2 You shall be responsible for the payment of all applicable taxes, in respect of your Purchase.
5.3 In the event you fail to make payment of any Price, taxes, duties, levies, withholding tax, costs, or any other fees or charges outstanding in respect of your Purchase, Fractal shall be entitled to take such steps against you to recover the amounts owed, including commencing legal proceedings against you for the recovery of the same. You agree to indemnify and hold harmless Fractal against all costs and expenses, including legal fees, which Fractal may reasonably incur in the taking of such steps. Fractal shall also have the right to suspend or terminate your use and/or access to the Product if any amounts owed and described in this clause remain unpaid.
5.4 Fractal in its sole and absolute discretion reserves the right to refuse any payment method without explanation to you.
5.5 Unless otherwise specified and agreed by Fractal in writing, there shall be no refund of any fees, costs, or charges to the extent permitted by law.
6. Representations and Warranties
6.1 You shall:
6.2 You shall, and shall procure that your Authorised Users shall:
6.3 You shall not, and shall procure that your Authorised Users shall not:
6.4 You represent and warrant to us that at all times:
6.5 You acknowledge and agree that:
7. Intellectual Property
7.1 Subject to the limited rights expressly granted to you in Clause 3.2, you acknowledge and agree that Fractal owns and retains all rights, titles and interest in and to the the Product, including its Platform and Services, including any and all Intellectual Property Rights, methods, materials, technologies, tools (including software tools), design code, templates, applications, techniques and other know-how developed by or for Fractal. Fractal shall own all rights, title and interest, including all intellectual property rights, in and to any improvements to the Product and any new APIs, programs, upgrades, modifications or enhancements to the Product developed by Fractal, including those developed for you or at your request.
7.2 Except as expressly stated herein, nothing in this Agreement grants you any rights to, under or in, Intellectual Property Rights, or any other rights or licences in respect of the Product. Save as otherwise provided for in the Agreement, you may not use any of Fractal’s Intellectual Property Rights without Fractal’s prior written consent. All other names, products and marks mentioned are the Intellectual Property Rights of their respective owners. All rights not expressly granted herein are reserved to Fractal.
7.3 Nothing in this Agreement shall be construed or deemed as granting or providing to you any right, license, interest or permission to use or deal with any Intellectual Property Rights of Fractalin any way including the right to copy, transfer, publish, store or create derivative works or use the same, and the right to use any of Fractal’s Intellectual Property Rights (including registered and unregistered trademarks and trade names) in an unauthorised manner.
7.4 You shall own all Intellectual Property Rights in the Content that you have supplied to Fractal for the purposes of using the Product. You acknowledge and agree that you have sole responsibility for the use of any third-party Intellectual Property Rights included in the Content. Fractal shall not be responsible for the legality, reliability, quality, accuracy and/or functionality of the Content in the form in which it is provided to Fractal or as modified upon and in accordance with your instructions for inclusion into the Product.
7.5 You will immediately notify us if you become aware of any matter or Content that may infringe the Intellectual Property Rights of a third-party.
7.6 You hereby grant to Fractal a worldwide, non-exclusive, non-transferable right during the Subscription Term to carry out any acts that would otherwise be restricted by any of your Intellectual Property Rights, whether in the Content and/or all Customer Applications or otherwise, for the sole purpose of enabling Fractal to:
8. Third Party Services, Third Party Content, and EF Data
8.1 You acknowledge and agree that:
8.2 Fractal may, from time to time, notify you in writing of further conditions, restrictions, permissions, limitations, obligations, attributions, or other requirements, which you are bound to comply with as part of this Agreement (“Supplemental Obligation“). These Supplemental Obligations are necessary for Fractal to comply with the relevant Data provider’s obligations imposed on Fractal and to allow Fractal to make available to you the data through the Platfom..
9. Indemnities and Limitation of Liability
9.1 You shall indemnify and hold harmless Fractal and its Affiliates and its and their respective directors, officers, employees, agents, contractors, third-party service providers and partners from and against:
9.2 You shall indemnify Fractal against any and all liability, loss, damage, costs and expenses which Fractal or a third-party may incur or suffer whether direct or consequential (including any economic loss or other loss of profits, business or goodwill) as a result of any dispute or contractual, tortious or other claims or proceedings brought against Fractal by a third-party alleging infringement of its Intellectual Property Rights by reason of your use or exploitation of the Product and/or the Content.
9.3 Each indemnity in these Terms and Conditions is a continuing obligation and survives expiry or termination of the Agreement or expiry of any Subscription Term.
9.4 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL FRACTAL’S AGGREGATE LIABILITY FOR ANY CLAIMS UNDER OR PURSUANT TO THE AGREEMENT EXCEED THE AGGREGATE FEES ACTUALLY PAID BY YOU FOR THE PRECEDING TWELVE (12) MONTH PERIOD AT THE POINT IN TIME WHEN THE CLAIM(S) IS/ARE MADE AGAINST FRACTAL.
9.5 Notwithstanding any other provision in the Agreement and to the maximum extent permitted by applicable law, under no circumstances shall Fractal be liable for any direct, indirect, consequential or special loss or damage relating to (i) disruptions or interruptions to the internet that may affect the use of the Product; (ii) errors, delays or technological failures that may prevent Fractal from providing the Product or related services or continuous operation of the Platform; (iii) loss of your data or Content; (iv) damage, disruption or injury to your webpage or website; (v) any delay or failure in performance, service level drops or non-performance due to the integration of the Product with any Customer Applications and/or your Intellectual Property Rights or otherwise caused by any third-party; and/or (viii) any delay or failure in performance caused by events beyond the reasonable control of Fractal , even if Fractal was advised of the possibility of such damages or if such possibility was reasonably foreseeable.
10.1 You expressly understand and agree that:
10.2 For the avoidance of doubt, no advice or information, whether oral or written, obtained by you from Fractal or its employees or agents shall create any condition, warranty or guarantee not expressly stated in the Agreement.
11. Personal Information and Personal Data
11.1 It is your responsibility to ensure that all personal information, Content and contact details that you provide to us are true, accurate and current at all times and that the email address and mobile number you provide to us are functioning and regularly monitored. You shall promptly advise us of any changes to your contact details. Fractal shall not be responsible for your failure to receive invoices, or other information from Fractal if such failure is due to an error in the personal information that you have provided. Fractal is not obliged to reissue, amend or cancel any subscription plan to correct errors or omissions in your personal or billing information.
11.3 Fractal shall comply with the Data Protection Laws relating to the collection, use, disclosure and retention of Personal Data.
12. Term and Termination
12.1 Subject always to Fractal’s right to revise the Price without notice to you under Clause 4.1, and unless otherwise agreed by Fractal in writing, your subscription will automatically renew at the expiration of your current Subscription Term and at the prevailing Price set at the expiration of your current Subscription Term. If you do not wish to renew your Subscription Term, you must disable auto renewal on your account prior to the renewal subscription date
12.2 Fractal may immediately terminate any subscription plan and/or the Agreement, terminate or suspend your access to all or part of the Product, or remove any of your Content:
12.3 In the event Fractal terminates your subscription plan, you and your Authorised Users’ access to the Product and/or Services you have purchased shall be terminated.
12.4 In the event Fractal exercises its right to terminate the Agreement, terminate or suspend your access to all or part of the Product, or remove any of your Content, you shall remain liable for all charges and fees due to Fractal. Fractal shall be under no obligation to refund the whole or any part of any fees paid by you in advance in the event of such termination, suspension and/or removal pursuant to this clause and you shall not be entitled to any compensation or indemnity, whether for loss of distribution rights, goodwill or otherwise, as a result of such termination, suspension or removal.
12.5 Termination of Agreement shall be without prejudice to any other rights or remedies Fractal may be entitled to under the Agreement, at law or in equity and shall not affect any accrued rights or liabilities nor the coming into or continuance in force of any provision which is expressly or by implication intended to come into or continue in force on or after such termination.
13.1 You agree to keep confidential, and to procure that the Authorised Users keep confidential, any Confidential Information, and shall not, disclose the Confidential Information to any other person unless disclosure has been expressly permitted by Fractal in writing. You agree and acknowledge that Confidential Information shall only be used for the purposes of the Agreement and/or in performing your obligations under the Agreement.
13.2 You shall immediately notify Fractal if you suspect, or become aware of, any unauthorised reproduction, use, disclosure, transfer or storage of Confidential Information.
13.3 The provisions of this clause shall survive and continue to remain in full force and effect notwithstanding any expiry or termination of the Agreement.
14.1 You are solely responsible for the preparation of any report. While Fractal may provide tools and services in the Platform and/or the Product to assist in your reporting, you acknowledge and agree that any tools and services provided to you are provided merely as a convenience to you and that you retain sole responsibility for ensuring the timeliness, accuracy, and completeness of any reports you submit.
15. Anti-Bribery and Corruption
15.1 You represent and covenant that you will:
15.2 To the extent permitted by law, you shall promptly notify Fractal of any investigation by a governmental authority (including without limitation, regulatory agencies) or violations by you of any law or regulation with respect to anti-bribery or anti-corruption laws and any matters relating in any way to the Agreement or which could potentially impact the continuity of your performance of the Agreement.
16. Force Majeure
16.1 No failure or omission by Fractal to carry out its obligations or observe any of the stipulations or conditions of the Agreement, shall give rise to any claims against Fractal or be deemed a breach of the Agreement, in the event that such failure or omission arises from a cause of force majeure, which includes acts of God, new statutory enactments or modifications, war or warlike hostilities, pandemics, epidemics, acts of terrorism, civil commotion, riots, blockades, embargoes, sabotage, strikes, lockouts, shortage of material or labour, delay in deliveries from sub-contractors, machine failure caused by force majeure, or any other event that is unforeseeable and outside the reasonable control of Fractal. Upon the occurrence of any event mentioned in this clause, Fractal shall for the duration of such event(s) be relieved of any obligation under the Agreement as is affected by the event(s) save that the provisions of the Agreement shall remain in force with regard to all other obligations under the Agreement which are not affected by the event(s).
17.1 All notices from you to Fractal regarding the Agreement shall be sent via e-mail to …………….. (copying firstname.lastname@example.org). Communications delivered by email shall be effective when actually received by Fractal in readable form and subject to there being no bounce-back notification and/or sending failure notification.
17.2 Fractal will send notices and other communications to you at the email address you have provided to us in your account. It is your sole responsibility to ensure that you provide Fractal with your current contact email address.
18.1 Entire Agreement: The Agreement constitute the entire agreement between Fractal and you in relation to their subject matter and supersede any prior agreements, discussions, representations and undertakings between the parties (whether written or oral).
18.2 Variation: Fractal may amend the Agreement at any time and will provide a notice to you. The amended Agreement will be made available on the Platform (as defined below). You are advised to check for amendments to the Agreement regularly, prior to using the Product. Your continued use of the Product shall constitute your agreement to the revised Agreement.
18.3 No Waiver: Any failure by either Parties to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. The rights and remedies provided in the Agreement are cumulative and not exclusive of any rights or remedies (whether provided by law or otherwise).
18.4 Illegality: Should any provision of the Agreement be held invalid, illegal or unenforceable in any respect under the law of any jurisdiction, the remaining provisions of the Agreement shall be unaffected and shall remain in full force and effect and the Agreement will be amended to give effect to the eliminated provision to the maximum extent possible.
18.5 Third Party Rights: Except as expressly set out in the Agreement, any person not a party to the Agreement shall acquire no rights whatsoever under the Agreement
19. Governing Law and Dispute Resolution
19.1 The Agreement shall be governed by and construed in accordance with the laws of India, and any claims or disputes of whatever nature shall be subject to the exclusive jurisdiction of the courts of Mumbai.
The terms and conditions set out in this Annexure A shall apply to any Support Services provided by Fractal to you as set out in the relevant Sales Order.
11. Additional Definitions
1.1 Words and expressions in this Annexure A shall have the following meanings unless the context otherwise requires:
“BAU” means business as usual;
“Downtime” means the periods where the Product is unavailable due to a Blocker-level or Critical-level Fault and excludes any Emergency Downtime and Scheduled Downtime;
“Emergency Downtime” means the periods where the Product is made unavailable by Fractal for the purposes of addressing any Virus or Vulnerabilities in the Product;
“Fault” means the failure of the Product to operate as specified in the Service Level Table;
“Monthly Uptime Percentage” means the total number of minutes in a calendar month less the number of minutes of Downtime in a calendar month, expressed as a percentage of the total number of minutes in such calendar month;
“Normal Business Hours” means 9.00 am to 4.00 pm local India time, each Business Day.
“Scheduled Downtime” means the periods where the Product is made unavailable by Fractal for maintenance purposes;
“Service Levels” means the service level responses and response times referred to in the Service Level Table.
“Service Level Table” means the table set out in Clause 3.1 of this Annexure A;
“Subscription Credits” means the subscription credits specified in the table set out in Clause 4.1 of this Annexure A;
“Support Fee” means the fees and/or charges (if any) specified in the Sales Order payable by you to Fractal for the provision of Support Services to you under or pursuant to this Annexure A;
“Support Request” means a request made by you in accordance with this Annexure A for Support Services in relation to the Product.
“Support Services” means the support services specified in the Agreement to be provided by Fractal to you, which may include, but is not limited to:
21. Support Services
2.1 In consideration of your payment of the Support Fee and any other charges or fees set out in the relevant Sales Order and/or under this Annexure A, Fractal shall perform the Support Services in accordance with this Annexure A.
2.2 Support Services shall be provided by Fractal via phone, email and online during Normal Business Hours, or as arranged between you and Fractal. All Support Services shall be provided on an off-site basis (such as over the telephone or by email).
2.3 You may request for Support Services by way of a Support Request. Each Support Request shall include the description of the Fault and classification of the Fault as set out in the Service Level Table and provided via email.
2.4 Fractal is not required to provide any Support Services to the extent that the Faults with the Product arise out of:
31. Service Levels
3.1 Fractal shall prioritise Support Requests based on its assessment of the severity level of the Fault reported, and use commercially reasonable efforts to respond to all Support Requests in accordance with the responses and response times specified in the table set out below:
|Severity level of Fault||Definition||Service Level response and response time|
|Blocker||A production issue in the Product(s) that:|
a. affects all functional areas of the Product(s); and
b. affects your Business as Usual (“BAU”) operations.
|Response shall be provided within one (1) Business Day of the Support Request. |
Resolution time: Maximum two (2) Business Days from receipt of Support Request.
|Critical||A production issue in the Product(s) that affects:|
a. affects critical functional areas of the Product(s) in question; and
b. affects your BAU operations.
|Response shall be provided within one (1) Business Day of the Support Request. |
Resolution time: Maximum three (3) Business Days from receipt of Support Request.
|Major||A production issue in the Product(s) that:|
a. only affects one or two functional areas of the Product(s) in question; and
b. does not affect your BAU operations.
|Response shall be provided within three (3) Business Day from the date of the Support Request during Normal Business Hours. |
Resolution time: Maximum seven (7) Business Days from receipt of Support Request.
|Minor||A production issue in the Product(s) that:|
a. does not affect any functional areas of the Product(s) in question; and
b. does not affect your BAU operations.
|Response shall be provided within five (5) Business Days from the date of the Support Request during Normal Business Hours. |
Resolution time: Maximum twenty (20) Business Days from receipt of Support Request.
3.2 The parties may, on a case-by-case basis, agree in writing to a reasonable extension of the Service Level response times.
41. Subscription Credits
4.1 If the Product experience any Downtime, you shall become entitled to the Subscription Credit(s) specified in the table set out below corresponding to the amount of Downtime experienced by the Product, provided that the Downtime did not result from:
|Subscription Credit||Amount of Downtime|
|One-week Subscription Credit||If the Monthly Uptime Percentage for a calendar month is between 99.0%, and 97.0% seven (7) days will be added to your Subscription Term at the end of your billing cycle at no charge to you.|
|Two-week Subscription Credit||If the Monthly Uptime Percentage for a calendar month is between 97.0% and 95.0%, fourteen (14) days will be added to your Subscription Term at the end of your billing cycle at no charge to you.|
|One-month Subscription Credit||If the Monthly Uptime Percentage for a calendar month is less than 95.0%, thirty (30) days will be added to your Subscription Term at the end of your billing cycle at no charge to you.|
4.2 The provision of Subscription Credit(s) shall be your sole and exclusive remedy for any failure by Fractal to provide the Product as a result of Downtime