General Terms and Conditions
Go to the Additional Terms (Adex, Hood) for services made available with the new accounts infrastructure.
These General Terms and Conditions for Ocamba Suite web platform shall regulate and govern all sale and purchase arrangements and agreements for Services (as defined below) delivered by Del Systems d.o.o., with offices at Dragise Misovica 163B, 32000 Cacak, Republic of Serbia (“Del Systems” or “We”) and the entity/individual (“Customer” or “You”) agreeing to these Terms, unless otherwise provided and agreed in a separate contract between us and the purchaser.
By signing up and clicking the “I Accept” button below or, if applicable, the date the Agreement is countersigned:
the Customer must be of legal age and is deemed to have read, understood, and is bound by these General Terms and Conditions (the “Effective Date”).
If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer or the applicable entity to these General Terms and Conditions; (ii) you have read and understood this Agreement; and (iii) you agree on behalf of the party that you represent to this Agreement. If you DO NOT HAVE THE LEGAL AUTHORITY to bind your employer or the applicable entity, please DO NOT click the “I Accept” button below (or, if applicable, do not sign this Agreement). This Agreement governs Customer’s access to and use of the Services as ordered in the applicable Order Form. All the terms are important and together create this Agreement that applies to you. If you find anything in this text that you do not agree with, please stop using Ocamba immediately and/or uninstall the App. To uninstall the App, go to the Ocamba app store and click uninstall. You will get a notification to confirm the App uninstallation.
IN ADDITION, THESE TERMS INCLUDE A BINDING ARBITRATION CLAUSE AND A CLASS ACTION WAIVER IN SECTION 14.10 OF THE GENERAL TERMS AND CONDITIONS. THESE PROVISIONS AFFECT YOUR RIGHTS TO RESOLVE DISPUTES WITH DEL SYSTEMS AND WE STRONGLY SUGGEST YOU REVIEW IT CAREFULLY.
“Acceptable Use Policy” means the covenants contained herein under which the Customer and/or End User must use Ocamba and Services deliver by Del Systems.
“Account” means Customer’s Ocamba account credentials and correlating access to the Services under this Agreement.
“Account Manager” means the Del Systems business person working with Customer regarding Customer’s purchase of the Services.
“Active subscriber” means Customer’s targeted audience who accepted Customer’s request to receive notifications through Customer’s website or mobile app.
“Additional Products” means products, services and applications that are not part of the Services but that may be accessible, via the Admin Console or otherwise, for use with the Services.
“Additional Product Terms” means the then-current terms at Adex, Hood or other such URL as Del Systems may provide.
“Admin Account(s)” means the administrative account(s) provided to Customer by Del Systems for the purpose of administering the Services. The use of the Admin Account(s) requires a password, which Del Systems will provide to Customer. Admin Account assignment is subject to Admin Account Policy prescribed by Del Systems.
“Admin Console” means the online tool provided by Del Systems to Customer for use in reporting and certain other administration functions.
“Administrators” mean the Customer-designated technical personnel who administer the Services to End Users on Customer’s behalf.
“Affiliate” means a company or individual that resells Ocamba via their platform, website, or another suitable way agreed with Del Systems. Del Systems will conclude a separate agreement with the Affiliate.
“Application/App” means each and any software product published/offered at Ocamba App Store under its name, suitable for free trial and/or subscription based use, under these General Terms and Conditions and service packages offered by Del Systems, which may be subject to separate special terms and conditions that set specific covenants with regard to its use.
“Brand Features” means the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each party, respectively, as secured by such party from time to time.
“Confidential Information” means information that one party (or Affiliate) ( “Discloser”) discloses to the other party ( “Recipient”) under this Agreement, and that (a) is marked as confidential; (b) would normally be considered confidential information under the circumstances; (c) any information Discloser orally designates as “Confidential” at the time of disclosure; (d) any object code and source code disclosed by Del Systems together with all documentation and any names of actual or potential customers disclosed by Customer, whether or not marked as confidential. It does not include information that is independently developed by the recipient, is rightfully given to the recipient by a third party without confidentiality obligations, or becomes public through no fault of the recipient, or is approved for release in writing by Discloser. Subject to the preceding sentence, Customer Data is Customer’s Confidential Information.
“Content” means all Ocamba’s features and technical resources available to Users, including but not limited to information, data, text, photographs, videos, audio clips, software, scripts, graphics and interactive features generated, provided, or otherwise made accessible on or through Ocamba.
“Core Services” means the Services delivered through Ocamba SaaS Platform, by subscribing and using the web-based applications offered through Ocamba App Store, as described in the Services Summary, and opted for by the Customer.
“Customer Data” or “User Data” means data, including email, provided, generated, transmitted or displayed via the Services by Customer or End Users.
“Customer Domain Names” mean the domain names owned or controlled by Customer, which will be used in connection with the Services and specified in the Order Form.
“Emergency Security Issue” means either: (a) Customer’s or End Users’ use of the Services in violation of the Acceptable Use Policy, in a way that disrupts: (i) the Services; (ii) other customers’ use of the Services; or (iii) the Del Systems network or servers used to provide the Services; or (b) to prevent unauthorized third-party access to the Services or data within the Services.
“End Users” means the individual Customer permits to use the Services.
“End User Account” means a Ocamba-hosted account established by Customer through the Services for an End User.
“Extra Features” means features that are not included in the Paid Plan you opted for and which are charged additionally in accordance with the Price Plan.
“Fees” means the amounts invoiced to Customer by Del Systems, for the Services as described in an Order Form.
“Help Center” means the Del Systems help center accessible at Support, or other such URL as Del Systems may provide.
“Indemnified Liabilities” means any (i) settlement amounts approved by the indemnifying party; and (ii) damages and costs finally awarded against the indemnified party and its Affiliates by a court of competent jurisdiction.
“Initial Term” means the term for the applicable Services beginning on the Service Commencement Date and continuing for the duration set forth on the Order Form.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or another intellectual property right, and all similar or equivalent rights or forms of protection, in any part of the world. “Legal Process” means a data disclosure request made under law, governmental regulation, court order, subpoena, warrant, governmental regulatory or agency request, or other valid legal authority, legal procedure, or similar process.
“Liability” means any liability, whether under contract, tort, or otherwise, including for negligence.
“Notification” means certain information about Services or relevant issue regarding these TC sent by Del Systems to the Customer`s Notification Email Address.
“Notification Email Address” means the email address(es) designated by Customer in the Admin Console to receive certain notifications from Del Systems. It is Customer’s responsibility to keep the Notification Email Address(es) valid and current.
“Ocamba SaaS Platform/Ocamba Suite”, “Ocamba” or “Platform” means this web platform, through which the Users are delivered the Services.
“Ocamba App store” is web-based store within Ocamba Suite where Customers can trial, use it for free or purchase subscription for offered Apps.
“Order Form” means the online order page or pages, or other ordering document acceptable to Del Systems under this Agreement, that Customer completes when signing up, subscribes and specifies the Services Del Systems will provide to Customer under the Agreement, and which may include: (i) applicable billing and renewal terms; (ii) Fees; (iii) number of, and Initial Services Term for, End User Accounts; (iv) the applicable form of payment; and (v) Customer Domain Names.
“Other Services” means the “Other Services for Ocamba Suite” as described in the Services Summary
“Paid Plan” means any subscription plan that we charge as explained here depending on number of Active subscribers or requests.
“Price Plan” means the description of a set of features for each Paid Plan, available here Adex, Hood.
“Party” or “Parties” means Del Systems and/or User.
“Purchase Order” means a Customer issued purchase order if there is one necessary and applicable.
“Service Commencement Date” is the date upon which Del Systems makes the Services available to Customer and will be within one week of Del Systems’s receipt of the applicable Order Form signed by Customer, unless otherwise agreed by the parties.
“Service Pages” mean the web pages displaying the Services to End Users.
“Service Specific Terms” means the terms specific to one or more Services at: Adex, Hood.
“Services” means making Ocamba available in any version, in full or in part, including any updates, upgrades, enhancements, modifications, new features, programs and tools. Furthermore, it means the applicable Core Services and Other Services provided by Del Systems and used by Customer and End User under this Agreement, available within service packages the Customer can choose when subscribing for particular Application offered through Ocamba App Store.
“Significant Deprecation” means to discontinue or to make backwards incompatible changes to the Core Services that results in Del Systems no longer providing to its enterprise-customer base the ability to: (1) to send and receive e-mail messages; (2) schedule and manage events; (3) create, share, store, and sync files; (4) communicate with other end users in real time; or (5) search, archive, and export email messages.
“SLA” means the Service Level Agreement located here: Support, or such other URL as Del Systems may provide.
“Special Terms and Conditions” means the terms that govern the use of the Applications together with the General Terms and Conditions.
“Suspend” means the immediate disabling of access to the Services, or components of the Services, as applicable, to prevent further use of the Services.
“Taxes” means any duties, customs fees, or taxes (other than Del Systems’s income tax), including indirect taxes such as “goods and services tax” and “value-added tax,” associated with the sale of the Services, including any related penalties or interest.
“Term” means the Initial Term and all renewal terms for the applicable Services.
“General Terms and Conditions” or “TC” means these rules that govern the use of the Service.
“Third-Party Legal Proceeding” means any formal legal proceeding filed by an unaffiliated third party before a court or government tribunal (including any appellate proceeding).
“TSS” means the technical support services provided by Del Systems to the Administrators under the TSS Guidelines.
“TSS Guidelines” means Del Systems’s technical support services guidelines then in effect for the Services. TSS Guidelines are at the following URL: Technical Support Services or such other URL as Del Systems may provide.
“URL Terms” means the Acceptable Use Policy, Service Specific Terms, the SLA, and the TSS Guidelines.
“User”, “You”, “you” and “your” means any person or entity, other than Del Systems, that uses, accesses, controls, or receives the Service or the Platform or any part thereof. The term User encompasses different categories of users which: 1) may be divided based on the access level (such as Admin or Viewer) 2) may be divided based on the type of Service they use (for example, Adex, Hood or Mst), Customer and End User 3) are using Ocamba as natural persons or as legal entities. Users should interpret the term as referring to them unless the context suggests otherwise.
“User Account” means an account provided by Ocamba, whose purpose is to allow User to access and use Content and Services or certain parts of it and create User Content.
“User access levels” means different roles a User may have within Adex or Hood App:
Super Admin, who is the creator of the Account on Ocamba, can add privileges to other Admins, and has a complete control of the Account. There may be only one Super Admin per Account.
Admin, who can have one of the following access roles:
Ocamba Administrator Admin
Ocamba App Administrator Admin
Custom roles, determined by Super Admin or Admin Users, as further explained in Special Terms and Conditions.
“User Content” means any content provided by User on Ocamba, including any entered, recorded, stored, used, controlled, modified, disclosed, transmitted, or erased information and data.
“Website” means the websites located at www.ocamba.com .
1. SERVICE DELIVERY
1.1 Del Systems shall deliver the Services agreed upon with the Customer, during the Term, pursuant to the provisions set out in these General Terms and Conditions by enabling the Customer to use Del System`s Ocamba web platform through which the Services are being delivered, Ocamba App store has access where Apps can be used as a free trial or purchased as service package subscription as per Customer’s choice.
Del Systems will make the Services and Your User Content available to You pursuant to this Agreement, the applicable Order Form(s) with which You get different App features and functionalities depending on the level of Your subscription and Documentation in accordance with Your service package. We will use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except (a) during planned downtime (of which We will give advance notice via Our Website or to the Account owner); and (b) for any unavailability caused by circumstances beyond our reasonable control, including, for example, a Force Majeure Events; (c) as necessary to update the Service to ensure its security and integrity and provide the Service only in accordance with Applicable Law. Downtime excludes performance issues with individual features, external network, or equipment problems outside of our reasonable control, or issues that are related to external apps or third parties.
1.2 New Features or Services. Del Systems may at its own discretion create new applications and/or Services, add new features or functionality for the Services available, from time to time, the use of which may be contingent upon Customer’s consent to additional terms.
(a) Changes to Services. Del Systems may make commercially reasonable changes to the Services from time to time. If Del Systems makes a material change to the Core Services, Del Systems will inform Customer, by either sending an email to the Notification Email Address or alerting Customer through the Admin Console.
(b) Changes to URL Terms. Del Systems may make commercially reasonable changes to the URL Terms from time to time. If Del Systems makes a material change to the URL Terms, Del Systems will inform Customer by either sending an email to the Notification Email Address or alerting Customer through the Admin Console. Material changes to the URL Terms will become effective 30 days after the notice is given, except if the changes apply to new functionality in which case the changes will be effective immediately. If the change has a material adverse impact on Customer, and the change, is not a result of Del Systems complying with a court order or applicable law, Customer may notify Del Systems within thirty days after being informed of the change that Customer does not agree with the change. If Customer notifies Del Systems as required, then Customer will remain governed by the terms in effect immediately prior to the change until the earlier of: (i) the end of the then-current Term or (ii) 12 months after Del Systems informs Customer of the change, unless the modification to the URL Terms is in response to a court order or to comply with applicable law. If the Agreement renews, it will do so under the updated URL Terms.
(c) Discontinuance of Services. Subject to Section 1.3(d), Del Systems can discontinue any Services or any portion or feature for any reason at any time without liability to Customer.
(d) Deprecation Policy. Del Systems will notify Customer if it intends to make a Significant Deprecation. Del Systems will use commercially reasonable efforts to continue to provide the Core Services without a Significant Deprecation for at least one year after that notification, unless (as Del Systems determines in its reasonable good faith judgment): (i) otherwise required by law or by contract (including if there is a change in applicable law or contract), or (ii) doing so could create a security risk or a substantial economic or technical burden. This policy is the “Deprecation Policy.”
If You are dissatisfied with the terms of this Agreement or any modifications to this Agreement or the Service, you agree that your sole and exclusive remedy is to terminate your subscription and discontinue use of the Service.
1.4 Customer Domain Name. Where applicable, Customer is responsible for obtaining and maintaining any rights necessary for Customer’s and Del Systems’ use of the Customer Domain Names under the Agreement. Del Systems may verify that Customer owns or controls the Customer Domain Names. If Customer does not own, or control, the Customer Domain Names, then Del Systems will have no obligation to provide Customer with the Services.
1.5 Service Specific Terms. The Service Specific Terms are incorporated by this reference into the Agreement.
2. Customer Obligations
2.1 Compliance. Customer must ensure that all use of the Services by Customer and its End Users complies with this Agreement including the Acceptable Use Policy.
2.2 Additional Products. Del Systems may make Additional Products available to Customer and its End Users in accordance with the applicable product-specific Additional Product Terms (Adex, Hood). Except to the extent described in the Additional Product Terms (Adex, Hood), Additional Products are not subject to or governed by this Agreement. Customer can enable or disable Additional Products and is not required to use Additional Products in order to use the Services.
2.3 Customer Administration of the Services. Customer may specify one or more Administrators through the Admin Console who will have the rights to access Admin Account(s) and to administer the End User Accounts. First Admin appointed will be Super Admin who will have ability to appoint other admins, their roles, privileges and limitations. Customer is responsible for: (a) maintaining the confidentiality of the password and Admin Account(s); (b) designating those individuals who are authorized to access the Admin Account(s); and (c) ensuring that all activities that occur in connection with the Admin Account(s) comply with the Agreement. Customer agrees that Del Systems’ responsibilities do not extend to the internal management or administration of the Services for Customer and that Del Systems is merely a data-processor and shall keep Del System harmless from any liabilities or claims linked thereto that relate to internal management`s or Administrator`s actions or activities in any way.
2.4 Administrator Access; End User Consent.
(a) Administrator Access. Administrators will have the ability to access all Customer’s End User Accounts, including the ability to access, monitor, use, modify, withhold, or disclose any data available to End Users associated with their End User Accounts.
2.5 Unauthorized Use. Customer will use commercially reasonable efforts and technical measures to prevent unauthorized use of the Services and to terminate any unauthorized use. Customer will promptly notify Del Systems of any unauthorized use of, or access to, the Services of which it becomes aware.
2.6 Restrictions on Use. Unless Del Systems specifically agrees in writing, Customer will not, and will use commercially reasonable efforts to make sure a third party does not: (a) sell, resell, lease, or the functional equivalent, the Services to a third party (unless expressly authorized in this Agreement); (b) attempt to reverse engineer the Services or any component; (c) attempt to create a substitute or similar service through use of, or access to, the Services; (d) use the Services for High Risk Activities;
2.7 Support. Del Systems shall provide support to its Customers as per support specification set forth in subscription description and/or within special terms of service pursuant to which particular App services are provided.
2.8 ACCEPTABLE USE POLICY
Use of the Ocamba and Services is subject to this acceptable use policy (“AUP”). Any other use of the Ocamba Suite or the Service, not specifically mentioned in this Agreement, by any User, is forbidden.
You agree not to, and not to allow third parties or Your End Users, to use the Services:
to generate or facilitate unsolicited bulk commercial email;
to violate, or encourage the violation of, the legal rights of others;
for any unlawful, invasive, infringing, defamatory, or fraudulent purpose;
to intentionally distribute viruses, worms, Trojan horses, corrupted files, hoaxes, or other items of a destructive or deceptive nature;
to interfere with the use of the Services, or the equipment used to provide the Services, by customers, authorized resellers, or other authorized users;
to alter, disable, interfere with or circumvent any aspect of the Services, Ocamba or Website;
to test or reverse-engineer, decompile, or disassemble the Services and the Ocamba, or attempt to do so in order to find limitations, vulnerabilities or evade filtering capabilities;
to grant multiple individuals access to an individual End User Account other than via the delegation features provided within the Services;
to create End User Accounts assigned to business functions rather than to human beings for the purpose of sharing files within or outside of the domain;
to resell End User Accounts or parts thereof as added into a commercial product offered to third parties;
to record audio or video communications without consent if such consent is required by applicable laws and regulations (You are solely responsible for ensuring compliance with all applicable laws and regulations in the relevant jurisdiction(s));
to publish, copy, rent, lease, lend, sell, create derivative works or transfer in any way the Ocamba, Website, Service or any portion(s) of the foregoing;
to distribute, transmit, publish or otherwise disseminate the Ocamba, Website, Service or any portion(s) of the foregoing;
to attempt to access or derive the source code or architecture of the Ocamba or work around any technical restrictions or limitations in the Ocamba;
when using Internet-based features, you may not use those features in any way that could interfere with anyone else’s use of them, or to try to gain access to or use any service, data, account, or network, in an unauthorized manner;
to attempt to probe, scan or test the vulnerability of the Website, Service and/or Ocamba, or any associated system or network, or to breach any security or authentication feature or measures, and, if you are blocked by Del Systems from accessing the Website, Ocamba or Service (including by blocking your IP address), you will not implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address).
To use Ocamba, each User must comply with these rules of acceptable use:
User must provide complete information for registration purposes.
User must provide accurate and up-to-date information. The User has to use accurate contact information. Using false identity is strongly prohibited.
User will prevent any other person from using that User’s account. Use of the account by more people is prohibited.
User must maintain the security of the account and password and share it solely with the authorized persons. User is responsible and liable for any use of the Website, Service or Ocamba through User’s account, whether authorized or unauthorized. Del Systems cannot be held liable for any loss, damages or expenses incurred due to User’s failure to comply with this obligation. User will be liable for all losses, damages, liability and expenses incurred by Del Systems or a third-party as a consequence of authorized use of the account. If you become aware of any unauthorized use of your account on Ocamba, you need to immediately notify us by sending an email to [email protected].
User will not engage in activity that violates the privacy of others, or any misuse or unlawful processing of personal data, nor will publicly display or use Ocamba to share inappropriate content or material. The User may not violate any applicable law or regulations in connection with your use of the Website, Service or Ocamba.
User will not access the Service or the Platform to build a competitive product or service, to build a product using similar ideas, features, functions or graphics, or to copy any ideas, features, functions or graphics.
User will not engage in web scraping or data scraping on or related to the Service or the Platform, including without limitation collection of information through any software that simulates human activity or any bot or web crawler.
User will not automate access to the Website or the Service, including, without limitation, through the use of APIs, bots, scrapers or other similar devices.
Admin undertakes to cause each End User to comply with all legal requirements applicable to the use of Service.
Users are fully responsible for all the activities that occur under their User Accounts.
Your failure to comply with the AUP may result in suspension or termination, or both, of the Services pursuant to the Agreement.
3. Billing and Payment
3.1. Billing. Customer shall pay all Fees for the Services as per subscription and related Services it opted for, except for the free trial service where the user agrees that consumer protection laws are not applicable to the General Terms and Conditions, because Del System does not deliver the Services but only provides the user the trial experience intended to gain the feeling how the Services look like.
Del Systems’ measurement tools will be used to determine Customer’s usage of the Services. Customer may choose one of the billing options listed below under a) Monthly Plan or b) Annual Plan, or from among other options offered by Del Systems, when placing its order for the Services. Del Systems may change its offering of billing options, including by limiting or ceasing to offer any billing option, upon thirty days written notice to Customer (which may be by email to your most recently provided email address or posted on the Platform or by any other manner chosen by Del Systems in its commercially reasonable discretion. You will be deemed to have received any such notice that is posted on the Platform on the day following the date it was posted.). Billing options may not be available to all Customers. Customer may pay for the Services using the payment options listed in Section 3.2 below.
(a) Monthly Plan. If Customer selects this option, Customer will not be committed to purchase the Services for a pre-defined term but will pay for the Services on a monthly basis. Del Systems will bill Customer: (i) Fees based upon Customer’s daily usage of the Services during the preceding month; and (ii) monthly in arrears for its use of the Services. Del Systems will provide Customer with the monthly rate for the Services when Customer orders the Services, and will use this rate to calculate the Fees, on a prorated basis, for Customer’s daily usage during that month. Any partial day of Services usages will be rounded up to a full day of Services usage for the purposes of calculating Fees. All payments for the Monthly Plan are due in advance by the first day of the billing period.
(b) Annual Plan. If Customer selects this option, Customer will be committed to purchasing the Services from Del Systems for an annual term. Del Systems will bill Customer according to the terms associated with Customer’s elections on the Order Form. If a Customer opts for the annual commitment, the Customer will be entitled to an annual discount in accordance with the Paid Plan. However, the Customer will continue paying for the Services on a monthly basis.
If a Customer has used all available number of active subscribers or requests, the Customer can purchase additional number of active subscribers and requests.
3.1.a. Free trial users.
Del Systems sometimes offers a free trial period (hereinafter: “Free Trial”) as explained on the Website or otherwise. Free trial users are eligible for free use of App features for the period the Free Trial is provided by Del Systems. Del Systems can change and adapt Free Trial policies at its own discretion. Upon expiration of Free Trial period the free trial user will be admitted as Customer and charged with the service package of Free Trial subscription, unless it cancels the subscription or opts for other particular service package. Free trial users have all the obligations arising from these General Terms and Conditions, unless otherwise stated.
Del Systems may require a User to have a valid payment instrument before using the Free Trial. In this case, we may validate that payment method, including by requesting a temporary authorization from the financial institution issuing your payment instrument. If we determine that your payment instrument is invalid, without limiting any of our other rights, we may revoke any benefits, you may have received as part of the Free Trial.
3.2 Payment. All amounts paid are non-refundable, non-cancelable, and non-creditable. Unless specified otherwise, all amounts due hereunder shall be paid upon order in US dollars, unless otherwise agreed between the Customer and Del Systems, in immediately available funds by pay pal or by bank wire transfer, in full without set-off, counterclaim or deduction. Customer must keep all the billing data complete and accurate and must promptly notify Del Systems if payment method has changed (for example, for loss or theft) or if Customer becomes aware of a potential breach of security, such as the unauthorized disclosure or use of name or password. If Customer fails to provide any of the foregoing information, Customer agrees that Del Systems may continue charging for any use of the Service unless Customer has terminated Agreement as set forth herein.
Any amount not paid when due shall result in the termination or suspension of the User’s account or his or her access and use of the Platform. User agrees to reimburse Del Systems d.o.o. for all reasonable costs (including attorneys’ fees) incurred in collecting payments. User agrees that all charges and fees associated with an account are their sole responsibility. Billing shall stop at end of term, during which the use of Service and the Platform has been cancelled. In the event of You, the Customer, intending to cancel your subscription, You shall do so in writing and a minimum of 15 business days before the next billing date unless otherwise explicitly agreed upon by the Parties in writing.
At the end of each contract term, if you have chosen an automatic renewal option, the contract shall be automatically renewed for a further term, which shall be equal to the original contract length, till such time that the Customer cancels their Paid plan and discontinues the use of the Platform. Your plan shall be automatically upgraded based on number of Your Active subscribers if you have opted for automatic upgrade. Each time, Del Systems will send you a notification with explanation what the automatic upgrade means and what are the consequences. Payments are irrevocably deemed final and accepted by User unless disputed or sought clarification within fifteen (15) days from the date of issue. This applies for any duration of subscription – monthly/yearly or any other mutually agreed upon duration. Violations of these General Terms and Conditions may, at the Del System’s discretion, result in immediate and permanent disablement without refund.
Disputed charges (“chargebacks”) associated with any Account, Del Systems may, at Del Systems’ discretion, result in immediate and permanent disablement of the Account. It is clarified that, no refunds shall be made on annual subscription payments, as all charges for the annual subscriptions are discounted. Del Systems reserves the right to change prices for Services made available to Users on Platform and on the Website, exclusively according to Del Systems sole discretion, and at any time, and also reserves the right to start charging some features which have previously been classified as free of charge, at any time. Any price may change at any time and will become binding on the Customer upon the following conditions:
(1) Del Systems has sent a 7-days-period-notice;
(2) The User did not unsubscribe from the Paid Plan within such a period or by the end of the then-current Term, whichever date is later.
Such notice may be sent to a Customer by email to your most recently provided email address or posted on the Platform or by any other manner chosen by Del Systems in its commercially reasonable discretion. You will be deemed to have received any such notice that is posted on the Website on the day following the date it was posted.
If Customer elects to access or use any fee-bearing Ocamba App Store Apps, Customer agrees to pay all applicable fees resulting from the use of that App under its Ocamba account, in the amounts, at the times and subject to any specified conditions. Such fees may be specified as being payable in advance or in arrears; fees may be fixed, contingent or variable (e.g. depending on usage factors); and fees may be specified on a recurring basis (e.g. subscription fees and/or usage fees, which are be payable monthly,) or non-recurring basis (e.g. onetime activation fees).
3.3. Exceeding existing subscription level. Warning email will be sent to the Customer making it aware of reaching maximum with its current subscription level. Additional charges will be added if the Customer exceeds the maximum limits per chosen service package (e.g. no. of subscribers, no. of requests) within its existing subscription. Should this take place, the Customer will be assigned and charged with the higher subscription level starting next month from the one where the exceeding occurred, as well as with all the rights pursuant to this level of subscription. The Customer is herewith made aware that the subscription level upgrade described here is set manually by default. However, the Customer may choose an automatic subscription level upgrade in accordance with the instructions provided in the FAQ section or YouTube channel. The Customer is herewith made aware that if they choose an automatic subscription level upgrade, the upgrade will therefore occur automatically, as well as that it can be switched to manual only by the Customer.
3.4.a Subscription level downgrade. As a Customer, you may downgrade your Paid Plan at any time. By downgrading your Paid Plan we mean switching to a lower Monthly or Annual Paid Plan, i.e. reducing the number of Active subscribers/requests.
If you wish to cancel or downgrade your Paid Plan you may do so via your User Account. The Paid Plan will be canceled/downgraded upon the expiry of the then-current billing period. Your access to the Extra Features offered in the current Paid Plan will be denied, you will be charged for the lower Paid Plan, based on the Subscription Term you chose and you can continue to use the lower Paid Plan.
Warning email or notification via the Platform will be sent to the Customer making it aware of consequences of subscription level downgrade performed/requested by the Customer, e.g. restrictions in no. of subscribers, requests and features. Moreover, the Customer may track the number of subscribers in real-time via their User Account.
3.4.b Subscription level upgrade. As a Customer of Ocamba, you may upgrade your plan at any time. By upgrading your plan, we mean switching to any Annual Plan from a Monthly Plan and/or switching from a lower to a higher Monthly or Annual Plan and you obtain immediate access to all Extra Features for the higher plan. The Paid Plan will be upgraded upon the expiry of the then-current billing period.
If you upgrade from the Monthly Plan to the Annual Plan, you will get an annual discount for your annual commitment, and you will be charged for the next year on a monthly pro-rata basis. In other words, you will still be charged on a monthly basis in accordance with the Payment & billing methods Section of this TC.
3.5. Payment & billing methods
Invoices. When you choose your Paid Plan, Del Systems will issue an invoice in accordance with your Order Form. The payment of the Service shall be made before the commencement of the Term, in advance, based on the issued invoice at the time of selecting the desired subscription.
Any additional features (e.g. additional active subscribers or requests that are not already included in the Paid Plan) will be invoiced NET30 and, the invoices are due fifteen days after the invoice date unless otherwise specified and are considered delinquent after such date.
You may choose an automatic payment option and your invoice will be automatically issued to you on a monthly basis.
If your default payment instrument is declined for any reason, we may deny access to the Paid Plan immediately.
Other Forms of Payment. Customer may change its payment method to those available within the Admin Account on Ocamba. Del Systems may enable other forms of payment by making them available in the Admin Account. These other forms of payment may be subject to additional terms which Customer may have to accept prior using the additional forms of payment.
Delinquent Payments. Delinquent payments may bear interest at the rate of one-and-one-half percent per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. Customer will be responsible for all reasonable expenses (including attorneys’ fees) incurred by Del Systems in collecting such delinquent amounts, except where such delinquent amounts are due to Del Systems’ billing inaccuracies.
Paid fees are non-refundable. If the Agreement or a Paid Plan is terminated or varied during a certain billing period, the User shall not be entitled to any refund concerning that billing period. In addition, payments made for the future billing periods will not be refunded unless the Parties explicitly agree otherwise.
You understand that cessation of use of the Service will not entitle you to any refund. If you do not use the Service, you need to cancel the subscription to any Paid Plan and close the User Account.
3.6 Purchase Orders.
(a) Del Systems Purchase order. The Customer shall choose service package within specific App subscription, subscription duration (Monthly or Annual Plan), payment method, based on which criteria the Purchase Order is being generated and is deemed created by the Customer, pursuant to which the Customer is granted access to Ocamba and Apps it opted for, whereas Del Systems delivers the invoice based on such Purchase Order.
(b) Required. If Customer wants its own Purchase Order number on its invoice, for its own payment processing reasons etc., Customer will inform Del Systems in form of an email or other way enabled by Del Systems. If Customer requires a Purchase Order and fails to provide the Purchase Order to Del Systems, then Del Systems will not be obligated to provide the Services until the Purchase Order has been received by Del Systems. Any potential Customer`s terms and conditions on a Purchase Order do not apply to this Agreement hence are not binding for Del Systems.
3.7 Taxes. The fees are exclusive of any VAT or other taxes and public duties, save where Del Systems has explicitly stated to the contrary. It is each User’s responsibility to bear all public duties related to the purchase of the Service.
Customer is responsible for any Taxes, and Customer will pay Del Systems for the Services without any reduction for taxes or any other deductibles, incl. bank fees, currency conversion, wire transfer, remittance, that may exist in Customer`s country of residence or operations. If Del Systems is obligated to collect or remit Taxes imposed on Customer, the Taxes will be invoiced to Customer (e.g. VAT where applicable), unless Customer provides Del Systems with a timely and valid tax exemption certificate (or other documentation as required for the exemption) authorized by the appropriate taxing authority. In some jurisdictions the sales tax is due on the total purchase price at the time of sale and must be invoiced and collected at the time of the sale.
4. Technical Support Services
Del Systems will provide TSS to Customer during the Term in accordance with the TSS Guidelines subject to payment of support Fees, if applicable.
5.1 Of End User Accounts by Del Systems. If Del Systems becomes aware of an End User’s violation of the Agreement, then Del Systems may specifically request that Customer Suspend the applicable End User Account.
If Customer fails to comply with Del Systems request to Suspend an End User Account, then Del Systems may do so. The duration of any Suspension by Del Systems will be until the applicable End User has cured the breach which caused the Suspension.
5.2 Emergency Security Issues. Notwithstanding the foregoing, if there is an Emergency Security Issue, then Del Systems may automatically Suspend the offending use performed either by the Customer or its End User. Del Systems may also suspend Customer for violation of the applicable Acceptable Use Policy performed by its End User/Admin incl. Super Admin. Suspension will be to the minimum extent and of the minimum duration required to prevent or terminate the Emergency Security Issue.
5.3 Suspension for Non-Payment.
(a) Automatic Suspension. Customer will have thirty days to pay Del Systems delinquent Fees. If Customer does not pay Del Systems delinquent Fees within thirty days, Del Systems will automatically suspend Customer’s use of the Services. The duration of this suspension will be until Customer pays Del Systems all outstanding Fees.
(b) During Suspension. If Customer is on a monthly billing plan, and Customer is suspended for non-payment, Del Systems will stop charging Customer monthly Fees during Customer’s suspension for non-payment. If Customer has an annual commitment to Del Systems for the Services, Del Systems will continue to charge Customer monthly Fees during Customer’s suspension for non-payment and Customer must pay all outstanding Fees in order to resume its use of the Services.
(c) Termination After Suspension. If Customer remains suspended for non-payment for more than sixty days, Del Systems may terminate Customer’s account for cause pursuant to Section 11.
5.4 Suspension to Comply with Laws. Del Systems may at its sole discretion Suspend the provision of any Services at any time if required to comply with any applicable law.
6. Confidential Information
6.1 Obligations. Subject to Section 6.2 (Disclosure of Confidential Information) the Recipient will not disclose the Discloser’s Confidential Information, except to employees, Affiliates, agents, or professional advisors (“Delegates”) who need to know it and who have a legal obligation to keep it confidential. The Recipient will use the Confidential Information only to exercise rights and fulfill obligations under this Agreement ( “Purpose”) during the term of the Agreement and 10 years after its termination (regardless of the ground for termination). Without limiting the generality of the foregoing, Recipient shall protect Confidential Information with the same degree of care it uses to protect its confidential information of similar nature and importance, but with no less than reasonable care. While using reasonable care The Recipient will ensure that its Delegates are also subject to the same non-disclosure and use obligations.
Recipient shall promptly notify Discloser of any misuse or misappropriation of Confidential Information that comes to Recipient’s attention.
Upon termination of this Agreement, Recipient shall return all copies of Confidential Information to Discloser or certify, in writing, the destruction thereof.
6.2 Disclosure of Confidential Information.
(a) General. Subject to Section 6.2(b), the Recipient may disclose the discloser’s Confidential Information (i) in accordance with a Legal Process or (ii) with the Discloser’s written consent.
(b) Notification. Before the recipient discloses the Discloser’s Confidential Information in accordance with a Legal Process, the Recipient will use commercially reasonable efforts to promptly notify the Discloser and reasonably cooperate with Discloser in any effort to seek a protective order or otherwise to contest such required disclosure, at Discloser’s expense. Del Systems will give notice via the Notification Email Address. The Recipient does not need to provide notice before disclosure if the Recipient is informed that (i) it is legally prohibited from giving notice or (ii) the Legal Process relates to exceptional circumstances involving danger of death or serious physical injury to any person.
(c) Opposition. Recipient will comply with the other party’s reasonable requests opposing disclosure of its Confidential Information.
7. Intellectual Property Rights; Brand Features; Software License
7.1 Intellectual Property Rights. Except as expressly set forth herein, this Agreement does not grant either party any rights, implied or otherwise, to the other’s content or any of the other’s intellectual property. As between the parties, Customer owns all Intellectual Property Rights in Customer Data, and the Application or Project (if applicable), and Del Systems owns all Intellectual Property Rights in the Services and Software and/or on Ocamba and its entire Content, which includes but does not limit to all text, graphics, photographs, trademarks or service marks, logos or other signs, domain, trade name and business name, icons, user interfaces, sounds, music, videos, artwork, databases, Website copy, software and computer code, including but not limited to the “look and feel”, layout, design, structure, color scheme, selection, combination and arrangement of the content on Ocamba and its apps.
Users may not acquire any other Intellectual Property Rights under this Agreement. Ocamba is made available on a limited-access basis, and no ownership right may be conveyed to any User, irrespective of the use of terms such as “purchase” or “sale” in TC or anywhere on the Website or Platform.
Any unauthorized use of the Content and/or any part of it, without the permission of the owner of Intellectual Property Rights, shall be deemed an infringement of Intellectual Property Rights. Del Systems will take all legal remedies to protect its Intellectual Property Rights immediately upon the knowledge of such unauthorized use.
Any copying of Content or downloading Content in part or whole is permitted only by written consent from Del Systems.
Del Systems also reserves all Intellectual Property Rights not expressly granted in this Agreement.
7.2 Display of Brand Features. Del Systems may display only those Customer Brand Features authorized by Customer (such authorization is provided by Customer uploading its Brand Features into the Services) within designated areas of the Service Pages. Customer may specify the nature of this use using the Admin Console. Del Systems may also display Del Systems Brand Features on the Service Pages to indicate that the Services are provided by Del Systems. Neither party may display or use the other party’s Brand Features beyond what is allowed in this Agreement without the other party’s prior written consent.
7.3 Brand Features Limitation. Any use of a party’s Brand Features will inure to the benefit of the party holding Intellectual Property Rights in those Brand Features. A party may revoke the other party’s right to use its Brand Features pursuant to this Agreement with written notice to the other and a reasonable period to stop the use.
7.4 Software License. In consideration of your acceptance to this Agreement and your payment of all applicable fees, Del Systems grants you a limited, non-exclusive, non-transferable (or restrictedly transferable), revocable authorization to access and make use of the Service solely for your internal business purposes, in accordance with the Agreement and any other instructions on the Platform.
Nothing in this Agreement obligates Del Systems to deliver or make available any copies of computer programs or code to the User of Ocamba, whether in object code or source code form. You agree to use the Service only in compliance with all applicable local, state, national, and international laws, rules, and regulations.
In connection with Customer’s use of the Services, (a) Customer may state publicly that it is a Del Systems customer and display Ocamba Brand Features consistent with the Trademark and its integrity while being the Customer of Del Systems (b) Del Systems may (i) orally state that Customer is a Del Systems customer and (ii) include Customer’s name or Customer Brand Features in a list of Del Systems customers in Del Systems’s online or offline promotional materials. Neither party needs approval if it is using the other party’s name or Brand Features in a manner that is substantially similar to a previously approved manner. Any use of a party’s Brand Features will inure to the benefit of the party holding Intellectual Property Rights to those Brand Features. A party may revoke the other party’s right to use its Brand Features under this Section with written notice to the other party and a reasonable period to stop the use.
9. Representations, Warranties and Disclaimers
Your use of Ocamba is at your sole risk. The Service is provided on an “as is” and “as available” basis.
Any warranty of Del Systems regarding the Website, Service or Platform (or part thereof) not expressly stated herein shall be deemed withheld. Supplier disclaims, to the fullest extent permitted under the applicable law, all statutory warranties and course of performance, course of dealing and usage related to licensees’ and users’ expectations.
User is solely responsible for any damage User may suffer resulting from the use of the Service. No oral or written information or advice given by Del Systems or its authorized representatives shall create a warranty or in any way increase the scope of Del Systems’ obligations.
Without prejudice to the generality of the previous provisions, Del Systems does not warrant that:
(a) the Service will meet Customer’s specific requirements nor that the Service will be “fit for purpose”, unless Del Systems and a Customer agree on customization of Ocamba by Del Systems in a separate Agreement.
(b) the Service will be uninterrupted, timely, secure, error-free or of satisfactory quality,
(c) the results that may be obtained from the use of the Service will be accurate or reliable,
(d) any errors in the Service will be corrected.
Del Systems and/or its suppliers make no representations about the suitability, reliability, availability, continuity, timeliness, and accuracy of the Service and Platform.
Without limiting the foregoing, Ocamba is not designed or licensed for use in hazardous environments requiring fail-safe controls (for example, aircraft navigation/communication systems, air traffic control, medical device and life support machines, or weapon systems) in which the failure of the Platform could lead to death, personal injury or physical and environmental damage (‘High-Risk Activities’). Accordingly, this Agreement excludes any High-Risk Activities and User agrees not to use the Platform in connection with High-Risk Activities.
In connection to Ocamba, Del Systems reserves the right (but has no obligation) to do any of the following, at any time:
to modify, suspend or terminate operation of or access to Ocamba, or any part of the Service or any feature for any reason,
to modify, change, upgrade Ocamba or any part of it,
to interrupt the operation of Ocamba or any part of it, as necessary to perform routine or non-routine maintenance, error correction, or other changes,
with one month’s notice to Customers.
10.1 Agreement Term. This Agreement will remain in effect for the Term.
10.2 Term and Purchases During Term. Del Systems will provide the Services to Customer during the Term. Unless the parties agree otherwise in writing, End User Accounts purchased during any Term will have a prorated term ending on the last day of that Term.
10.3 Revising Rates. Del Systems may revise its rates for the following Term by providing Customer written notice (which may be by email) at least thirty days prior to the start of the following Term.
This Agreement shall continue until either:
(1) you cancel your subscription and/or request for your Account to be deactivated and deleted;
(2) terminated by Del Systems.
11.1 Termination by Customer. Customer of Ocamba may terminate this Agreement by cancelling subscription and deinstalling the App (Hard-delete).
You may cancel your subscription at any time via your Admin account. If you cancel after your subscription renewal date, you will not receive a refund for any amounts that have been charged. Your cancellation will be effective at the end of your then-current Subscription Term, subject to applicable law, and you may use the Service until your cancellation is effective (unless your access is suspended or terminated in accordance with this Agreement or the applicable law). In other words, you may use the Service until the end of your Subscription Term.
If you only wish to upgrade/downgrade your Paid Plan to another Paid Plan, please see Section 3.4.
If you use any Paid Plan that involves a recurring payment of a fee, we will stop charging the Service from the moment you notify us that you wish to cancel or that you do not want to automatically renew your subscription. Until such cancellation, you understand that we have the right to automatically continue (without notice to you, unless required by the applicable law) to collect the then-applicable fees and any taxes, as stipulated in Section 3 of the TC.
You understand that cessation of use of the Service will not entitle you to any refund. If you do not use the Service, you need to cancel the subscription to any Paid Plan and deinstall the App.
Del Systems has no means or powers to provide the End User with the possibility to close the User Account. If you are an End User, please contact the Customer regarding this matter.
11.2. Termination by Del Systems. You agree that Del Systems may immediately terminate this Agreement if you do not pay the fees when due in accordance with your Paid Plan.
Del Systems also reserves the right to cancel your subscription and your use of the Service.
Del Systems may deny you access to all or any part of the Service or terminate your account with or without prior notice if you engage in any conduct or activities that Del Systems determines, at its sole discretion, violate this Agreement or the rights of Del Systems or any third party, or is otherwise inappropriate. Without limitation, Del Systems may deny you access to the Service, or terminate this Agreement and your User Account.
Del Systems may, at its sole discretion, at any time and for any reason, terminate the Service, terminate this Agreement, or suspend or terminate any User Account at Ocamba. Del Systems will send notice to User at the email address User provides when creating User Account, or such other email address User may later provide to Del Systems.
Del Systems may, at its sole discretion for any reason, terminate the Service and/or terminate the Agreement with Customer in relation to Ocamba, after the expiry of 60 days from the day the notice of such termination is sent to Customer.
If you are an End user of a Customer, the Customer may decide to revoke your license or terminate your account.
11.3 Termination for Cause. Either party may suspend performance or terminate this Agreement if: (i) the other party is in material breach of the Agreement and fails to cure that breach within thirty days after receipt of written notice; (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety days; or (iii) the other party is in material breach of this Agreement more than two times notwithstanding any cure of such breaches.
11.4 Effects of Termination. If this Agreement terminates or expires, then: (i) the rights granted by one party to the other will cease immediately (except as set forth in Section 14.12 (Survival)); (ii) Customer will not have access to, or the ability to export, the Customer Data after the effective date of termination or expiry of the Agreement; (iii) all Fees owed by Customer to Del Systems are immediately due; (iv) Customer will not have access to, or the ability to export, Customer Data after the effective date of termination or expiry of the Agreement and will be responsible for determining whether (and the extent to which) to use the functionality of the Services to delete Customer Data prior to such date; (v) Del Systems may delete Customer’s Data after the effective date of termination or expiry of the Agreement; and (vi) upon request each party will promptly use reasonable efforts to return or destroy any remaining Confidential Information of the other party. If a Customer on an annual plan terminates the Agreement prior to the conclusion of its annual plan, Del Systems will bill Customer, and Customer is responsible for paying Del Systems, for the remaining unpaid amount of Customer’s annual commitment.
11.5 User data download and uninstallation. In the event you wish to stop using Ocamba, you can download the information provided, inputted, or uploaded to Ocamba databases via downloading a detailed report as explained here.
When you uninstall the App, User Data on your User Account will be deleted depending on the type of deletion you opted for. If you decide to delete only one App, but still want to remain Del System’s Customer, User Data on your User Account will be deleted after the expiration of 100 days from the date of App uninstallation (Soft Delete). If you decide to terminate business relationship with Del Systems and uninstall all Apps, User Data on your User Account will be deleted immediately (Hard Delete).
12. Defense and Indemnity
You agree to indemnify and hold Del Systems harmless from any and all demands, losses, liability, claims or expenses (including attorneys’ fees) made against Del Systems by any third party due to or arising out of or in connection with your use of Ocamba and the Service or, if You are an Admin User, in connection with the End user’s use, including but not limited to:
(a) your use of the Service and/or Platform in violation of this Agreement and any applicable law, and/or arising from a breach of this Agreement and any applicable law;
(b) any third-party claim of infringement of copyright or other Intellectual Property Rights or invasion of privacy arising from hosting your User Content on the Platform, and/or your making available thereof to other users of the Platform, and/or the actual use of your User Content by other users of the Platform or related services in accordance with the Agreement;
(c) any activity related to your account, be it by You or by any other person accessing your account with or without your consent unless such activity was caused by the act or default of Del Systems.
In addition, Customer shall defend, indemnify and hold harmless Del Systems, its officers, directors, employees, contractors, agents and representatives from and against all claims made by, and all damages, liabilities, penalties, fines, costs and expenses payable to, any third party, which arise from Customer’s or its End User’s:
(a) breach of this Agreement;
(b) use of the Service;
(c) processing of User’s personal data;
(d) contributions to the Service; or
(e) infringement of any Intellectual Property Rights or any proprietary or personal right.
13. Limitation of Liability
To the maximum extent permitted by the applicable law, Del Systems and/or its suppliers, employees and representatives shall be liable in no event for:
(1) any loss, damage, expense or other harmful consequences resulting from anyone’s use or inability to use Ocamba;
(2) any installation, implementation, customization or modification of the Platform not carried out by Del Systems;
(3) any failure to apply available update, service pack, fix or upgrade that would have avoided the harmful event;
(4) any unauthorized access to the User Content;
(5) any unauthorized use of any User’s credentials.
To the maximum extent permitted by applicable law, in no event shall Del Systems and/or its suppliers, employees and representatives be liable for: any indirect, punitive, incidental, special, consequential damages or any damages whatsoever (including, without limitation, damages for loss of use, data or profits, or business interruption) arising out of or in any way connected:
with the use or performance of Ocamba,
with the delay or inability to use Ocamba and the Service, including the provision of or failure to provide Service,
with information, Website, Platform, products, Service, and related graphics obtained through Ocamba, or otherwise arising out of the use of Ocamba, whether based on contract, tort, negligence, strict liability or otherwise.
In the event that any of the foregoing limitations are deemed unenforceable or in the event any liability of Del Systems is established, to the greatest extent permitted by law, You agree that the entire aggregate liability of Del Systems and sole remedy available to any User in any case in any way arising out of or relating to the Agreement, Platform or the Service shall be limited to monetary damages that in the aggregate may not exceed the sum of any amount paid (if any) by that User during the twelve months prior to notice to Del Systems of the dispute for which the remedy is sought. If the User had no obligation to make such payment during such a period, monetary damages that in the aggregate may not exceed the sum of $100 (hundred dollars).
You agree that this limitation of liability represents a reasonable allocation of risk and is a fundamental element of the basis of the bargain between Del Systems and you. You understand that the Website, Service and Platform would not be provided without such limitations.
Some countries do not allow the limitation of certain damages, so some or all of this limitation of liability may not apply to you and you may have additional rights. Nevertheless, if any portion of these sections is held to be invalid under the applicable law, the invalidity of such portion shall not affect the validity of the remaining portions of the applicable sections.
This Section does not exclude mandatory liability for:
(a) Willful breach by Del Systems of any of its obligations;
(b) Death or personal injury caused by a defective item produced by Del Systems.
Neither Party shall be liable for breaching its obligations due to a circumstance they reasonably could not have foreseen and which is beyond their control, such as, e.g., a force of nature, an act of a legislative or an executive authority, war, civil unrest, act of terror, strike, non-trivial cyber-attack, failure of a third-party hosting, Internet failure or any other circumstance qualifying as force majeure under the applicable law — to the extent that the respective circumstance prevented or hindered the Party’s performance. For the avoidance of doubt, the provisions of this section:
(a) are not intended to derogate from, or limit the application of, any statutory limitation or exclusion of liability;
(b) shall not be construed to limit the amount of, or excuse Customer from paying, any fee or other consideration owed hereunder.
Del Systems does not provide its Users with legal advice regarding compliance, data privacy, or other relevant applicable laws in the jurisdictions in which you use the Service, and any statements made by Del Systems to you shall not constitute legal advice.
14.1 Notices. Del Systems may provide any notice to Customer under this Agreement by: (a) sending an email to Notification Email Address or by (b) posting a notice in the Admin Console (c) or by mail or courier to the address provided for that Customer. Customer may provide notice to Del Systems under this Agreement by sending an email to Del Systems’ legal department at [email protected] or by mail or courier to the address of Del Systems’ registered seat. Notice will be treated as received when (x) the email is sent, whether the other party has received the email or (y) notice is posted in the Admin Console or (z) five workdays after posting the notice via courier or registered post. By workday, we mean workdays at Del Systems’ registered seat.
14.2 Assignment. Neither party may assign or transfer any part of this Agreement without the written consent of the other party, except to an Affiliate, but only if: (a) the assignee agrees in writing to be bound by the terms of this Agreement; and (b) the assigning party remains liable for obligations incurred under the Agreement prior to the assignment. Any other attempt to transfer or assign is void.
14.3 Change of Control. Upon a change of control (for example, through a stock purchase or sale, merger, or other form of corporate transaction): (a) the party experiencing the change of control will provide written notice to the other party within thirty days after the change of control; and (b) the other party may immediately terminate this Agreement any time between the change of control and thirty days after it receives the written notice in subsection (a).
14.4 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, labor condition, governmental action, and severe Internet disturbance) that was beyond the party’s reasonable control, occurred after the conclusion of the Agreement.
14.5 No Waiver. Failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision.
14.6 Severability. If any provision of this Agreement is found invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.
If any provision of this Agreement violates any mandatory rule of the applicable law and proves to be void as a result thereof, such provision shall, for those specific circumstances and only in that particular respect in which it is void, be deemed to have been amended to comply with the law. Any such amendment shall be confined to the minimum necessary to make the provision valid and shall retain as much of its original ambit and meaning as possible.
14.7 No Agency. The parties are independent contractors, and this Agreement does not create an agency, partnership or joint venture.
14.8 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
14.9 Equitable Relief. Nothing in this Agreement will limit either party’s ability to seek equitable relief.
14.10 Governing Law, Jurisdiction, Dispute Resolution. This Agreement and any matter or dispute arising out of or related to the subject matter of the Agreement shall be governed, construed, and enforced in accordance with the Laws of the Republic of Serbia, without regard to its conflict of laws rules. Specifically excluded from application to this Agreement is that law known as the United Nations Convention on the International Sale of Goods.
Mindful of the high cost of arbitration, you and Del Systems agree to the following dispute resolution procedure: in the event of any controversy, claim, action or dispute arising out of or related to: (i) the Website; (ii) this Agreement; (iii) the Service; (iv) the breach, enforcement, interpretation, or validity of this Agreement; or (v) any other dispute between you and Del Systems ( “Dispute”), the Party asserting the Dispute shall first try in good faith to settle such Dispute by providing written notice to the other Party (by first-class or registered mail) describing the facts and circumstances (including any relevant documentation) of the Dispute and allowing the receiving Party 30 days in which to respond to or settle the Dispute ("Mandatory negotiations").
Notice shall be sent:
(1) if to Del Systems at: Del Systems d.o.o., Dragise Misovica 163B, 32000 Cacak, Republic of Serbia.
(2) if to you at: your last-used address in your account information or the address of the registered seat of the company.
If no such address exists, or if the delivery to such address is unsuccessful, the notice shall be sent to the email address connected to that User’s Account.
Both you and Del Systems agree that this dispute resolution procedure is a condition precedent that must be satisfied before initiating any arbitration or filing any claim against the other Party.
Failing to resolve the dispute as described in previous paragraphs of this Section, any controversy or claims arising out of or relating to this Agreement, or the breach thereof, shall be finally settled by arbitration administered by the Belgrade Arbitration Center in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The seat of arbitration shall be in Belgrade.
If the above agreement, with respect to arbitration, proves to be void or unenforceable, all disputes to which it was intended to apply shall be subject to the exclusive jurisdiction of the competent court in the Republic of Serbia. In such a case, the Mandatory negotiations clause remains applicable as a precondition to initiating court resolution of the dispute.
This clause shall survive termination of the Agreement.
Notwithstanding the provisions above, Del Systems may, at its absolute discretion, assert and seek the protection of its Intellectual Property Rights and rights concerning confidential information or data processing anywhere in the world.
NO CLASS ACTION
Except where prohibited by law, as a condition of using the Platform and/or Service, you agree that any and all disputes, claims and causes of action arising out of or connected with the Platform and/or Service, shall be resolved individually, without resort to any form of class action.
Any arbitration under these General Terms and Conditions will take place on an individual basis; class arbitrations and class/representative/collective actions are not permitted. THE PARTIES AGREE THAT A PARTY MAY BRING CLAIMS AGAINST THE OTHER PARTY ONLY IN EACH INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PUTATIVE CLASS, COLLECTIVE AND/ OR REPRESENTATIVE PROCEEDING, SUCH AS IN THE FORM OF A PRIVATE ATTORNEY GENERAL ACTION AGAINST THE OTHER. Further, unless both you and Del Systems agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.
14.11 Amendments and Electronic communications. Del Systems may revise and update these General Terms and Conditions or any part of Agreement at any time.
Any amendment must be in writing and expressly state that it is amending this Agreement.
Del Systems will send you the notification on the amendments of TC. If you do not agree to the new TC, you must notify Del Systems within 10 days from receipt of such notification or delete your User Account. If you fail to send such notification to Del Systems or delete your User Account, your continued use will be deemed as acceptance to the new TC. If you do not wish to comply with the new TC and you send a notification with the refusal to comply within 10 days, the existing Agreement will continue to be valid until the expiration of the then-current billing term (for example, until the expiry of the year for which Customer has already made payment to Del Systems), unless the Parties agree otherwise.
By accepting these TC, you agree to this electronic contract. In addition, by visiting or sending emails to Del Systems constitutes electronic communications. You consent to receive electronic communications and you agree that all agreements, notices, disclosures and other communications that we provide to you electronically, via email, satisfy any legal requirement that such communications be in writing.
Please note that notifications about any amendment of TC by this Section (Amendments) or any material change to the Service or the Agreement will be sent to your email (Notification Email Address). We have a legal obligation to inform you about the change of the terms so you can decide whether to continue using the Service. Such correspondence does not constitute marketing or promotional emails, and you cannot unsubscribe from receiving such notifications. If you do not wish to receive such notifications, you need to terminate the Agreement by deleting your account.
14.12 Survival. The following sections will survive expiration or termination of this Agreement: Section 3, 6, 7.1, 9, 11.2, 12, 13, 14.10.
14.13 Entire Agreement. This Agreement and all documents referenced herein, is the parties’ entire agreement relating to its subject and supersedes any prior or contemporaneous agreements on that subject. The terms located at a URL and referenced in this Agreement are hereby incorporated by this reference.
14.14 Interpretation of Conflicting Terms. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: the Order Form, the Agreement, and the terms located at any URL.
14.15 Counterparts. The parties may enter into this Agreement by executing the applicable Order Form, which may be executed in counterparts, including facsimile, PDF, or other electronic copies, which taken together will constitute one instrument.
15. USER CONTENT, USER DATA AND PERSONAL DATA PROTECTION
All facilities used to store and process Customer Data will adhere to reasonable security standards no less protective than the security standards at facilities where Del Systems stores and processes its own information of a similar type. As part of providing the Services, Del Systems may transfer, store and process Customer Data in the United States or any other country in which Del Systems or its agents maintain facilities. By using the Services, Customer consents to this transfer, processing, and storage of Customer Data in order to be able to deliver the Services that is to exercise its rights and fulfill its duties arising from its agreement and arrangement with the Customer.
15.1 Lawful use of the user content. Users are also solely responsible for all text, documents, User Data (as defined in Section 15.4), or other User Content or information uploaded, processed, entered, or otherwise transmitted in connection with your use of the Service and/or Platform. By accepting this Agreement, each User warrants, represents, and covenants that the User owns or has a valid and enforceable license to use all User Content. User Content will not infringe, misappropriate or violate the rights of any person or entity, or any applicable law, rule, or regulation of any government authority of competent jurisdiction. Without limiting the foregoing, any feature(s) of the Service and/or Software that may permit you to temporarily save or otherwise store User Content is offered for your convenience only and Del Systems does not guarantee that the User Content will be retrievable. You are solely responsible for saving, storing, and otherwise maintaining User Content including by maintaining backup copies of your User Content on appropriate independent systems that do not rely on the Service and/or Platform.
Ocamba allows you to store or share User Content or obtain access to the User Content from other Users. Nevertheless, if a User submits, uploads or creates content as an End User, User acknowledges and accepts that Admin has exclusive, non-transferable and irrevocable license to access, copy, modify and/or remove such content, including but not limited to adding or removing User from the team or enabling or disabling their or third-party integrations.
Del Systems reserves the right to refuse, limit or cancel the Service, terminate User Accounts, or remove or edit User Content at its sole discretion. Therefore, when investigating alleged violations of this Agreement, Del Systems reserves the right to review your User Content to resolve the issue (such as to prevent harmful or illegal activity). Del Systems may also access the User Content when providing technical support or when performing other legal obligations under this Agreement. Nevertheless, Del Systems has no obligation to monitor User Content (and will make no attempt to do so) and has no obligation to remove any User Content.
Del Systems cannot be held responsible for any loss, damage, expense or other harmful consequences to any User resulting from User Content.
15.2 Risk of exposure. The User recognizes and agrees that providing and using cloud-based services involves risks of unauthorized disclosure or exposure and by accessing and using the Platform, the User assumes such risks. Del Systems offers no representation, warranty, or guarantee that User Data (as defined in Section 15.4) will not be exposed or disclosed through errors or the unlawful actions of third parties.
15.3 Data accuracy. Del Systems will have no responsibility or liability for the accuracy of data uploaded to the Platform by User, including without limitation User Data (as defined in Section 15.4) and any other data uploaded by Users.
Each User understand and accepts that Ocamba functionalities are not meant to be used for the processing of any special categories of personal data (including racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, genetic or biometric data, health data, sex life or sexual orientation).
The User shall indemnify, defend and hold harmless Del Systems in full and on-demand from and against any and all liabilities, claims, demands, damages, losses or expenses (including legal and other professional adviser’s fees and disbursements), interest and penalties incurred by Del Systems arising out of or in connection with the User’s breach of the obligations stipulated in this paragraph.
15.6 Consequences of the illegal User Content. In the event Del Systems becomes aware of the illegal User Content, activities that infringe anyone’s Intellectual Property Rights or personal data or any other right, or activities that infringe these General Terms and Conditions, Del Systems may, in its sole discretion, disable, close, temporarily, or permanently limit access to any User Account without any notice. Del Systems may not be liable for any loss, damages or undesirable consequences resulting from such action. Del Systems may permanently erase User Data if the User Account is delinquent, suspended, or terminated for 30 (thirty) days or more.
15.7. SECURITY BREACH
External Breach: In the event of an accidental, unauthorized, or unlawful destruction, loss, alteration, disclosure of, or access to, personal data (a “Security Breach”), that impacts the personal data you maintain through Ocamba, and which is perpetrated by anyone other than your employees, contractors or agents, upon discovery of such Security Breach, Del Systems will: (a) initiate remedial actions that are in compliance with applicable law and consistent with industry standards; and (b) notify you of the Security Breach, its nature and scope, the remedial actions Del Systems will undertake, and the timeline within which Del Systems expects to remedy the Security Breach. You will be responsible for fulfilling your obligations under applicable law.
Internal Breach: In the event of a Security Breach, as defined by applicable law, which is perpetrated by your affiliate, employee, contractor, or agent, or due to your failure to maintain your systems, network, or User Data in a secure manner, you shall have sole responsibility for initiating remedial actions and you shall notify Del Systems immediately of the Security Breach and steps you will take to remedy such breach. In our sole discretion, we may take any action, including suspension of your access to the Service, to prevent harm to you, us, the Service, or other third parties. You waive any right to make a claim against us for losses you incur that may result from our actions.