These Terms of Use (“Terms”) describe the terms under which 5day.io (“5day.io” “Us”, “We”, “Our”) provides a subscriber (“You”, “Your”, “Yourself”) access to and use of Our Services. By accessing and/or using Our Service,
a. You agree to be bound by these Terms and acknowledge having read the Privacy Policy located here https://www.5day.io/terms-of-use
b. You warrant to Us that You are aged 18 years or above and are competent to enter into this agreement.
You and 5day.io shall be hereinafter collectively be referred to as “Parties” and individually as “Party”.
Account means any accounts or instances created by You or on Your behalf for access and use of the Services.
API means the application programming interfaces developed, enabled by or licensed to 5day.io that permits certain functionalities provided by the Services.Customer Data means all electronic data, text, messages, personal data or other materials, including without limitation Personal Data of Users and End Users, submitted to the Services by You through Your Account in connection with Your use of the Services.
Confidential Information means all information disclosed by one Party to the other Party which is in tangible form and labelled “confidential” (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure. Notwithstanding the foregoing, Confidential Information shall not include any information which (a) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (b) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (c) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party’s files and records prior to the time of disclosure; (d) is obtained by the receiving party from a third-party without a breach of such third-party’s obligations of confidentiality; (e) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession; or (f) is required by law to be disclosed by the receiving party, provided that the receiving party shall, to the extent legally permitted, give the disclosing party written notice of such requirement prior to disclosing so that the disclosing party may seek a protective order or other appropriate relief.
Documentation means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Services provided or made available by 5day.io to You or Your Users through the Services or otherwise.
End User means any person or entity other than You or Your Users with whom You interact using the Service(s).
Order Form means any service order form specifying the Services provided, particular features and functionalities in the Services that You wish to avail.
Personal Data means any information relating to an identified or identifiable natural person that is submitted by You to the Services as part of Customer Data.
Process means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
Sensitive Personal Information means information that relates to an individual’s racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health, or data concerning a natural person’s sex life or sexual orientation. It also includes information about an individual’s criminal offences or convictions, as well as any other information deemed sensitive under applicable data protection laws.
Services means the cloud-based proprietary collaborative customer onboarding platform of 5day.io and any new services that 5day.io may introduce as a Service to which You may subscribe to, and any updates, modifications or improvements thereto, including individually and collectively, the API, Software and any Documentation.
Software means any software provided by 5day.io (either by download or access through the internet) that allows You to use any functionality in connection with the Service(s).
Subscription Charges means all charges associated with Your Account and use of the Services.
Subscription Plan means the pricing plan and any limitations for the Services that the You have subscribed to.
Subscription Term means the period during which You have agreed to subscribe to the Services as specified in the relevant Order Form or as mentioned in a relevant Subscription Plan.
Third-Party Services shall mean third-party application(s) or service(s) integrating with the Services through APIs or otherwise enabled through the Services.
User means a designated user within the Services, including an Account administrator, employee, shareholder, auditor, lawyer, founder and other designated users.
Website(s) shall mean the websites owned and operated by 5day.io including 5day.io
3.3.You represent and warrant to 5day.io that You own or have the necessary rights to transmit the Customer Data to 5day.io and that doing so does not violate any applicable law, proprietary or privacy rights.
4.1. Any enhancements, new features or updates (“Updates”) to the Services are also subject to these Terms and 5day.io reserves the right to deploy Updates at any time.
4.2. The Services may temporarily be unavailable due to scheduled downtime for upgrades and maintenance in which case 5day.io shall use commercially reasonable endeavours to notify you in advance.
4.3. Notwithstanding anything to the contrary contained elsewhere, 5day.io shall not be liable for unavailability of the Services caused by circumstances beyond 5day.io’s reasonable control, such as, but not limited to, acts of God, acts of government, acts of terror or civil unrest, technical failures beyond 5day.io’s reasonable control (including, without limitation, inability to access the internet), or acts undertaken by third-parties, including without limitation, distributed denial of service attacks.
4.4. We provide cloud software and applications for businesses, including associated offline and mobile applications. You may use the Services for your personal and business use or for internal business purpose in the organization that you represent. You may connect to the Services using any Internet browser supported by the Services. You are responsible for obtaining access to the Internet and the equipment necessary to use the Services. You can create and edit content with your user account and if you choose to do so, you can publish and share such content.
4.5. If you register for a free trial of one or more Services, 5day will make the applicable Services available to you on a trial basis free of charge until the earlier of (i) the end of the free trial period of the applicable Services (unless terminated earlier by you), (ii) the start date of the paid subscription period for the applicable Services, or (iii) termination by 5day in its sole discretion. Any data that you enter into the Services, and any customizations made to the Services during the free trial will be permanently lost unless you (i) purchase the corresponding paid subscription plan for the account, (ii) purchase applicable Service upgrades, or (iii) export such data before the end of the trial period. Notwithstanding anything contained in this Section, Services are offered as-is during the free trial, without any warranty, covenant, support or liability whatsoever, to the extent permitted by law.
4.6. Hosting Location: – The location of the cloud facility from which you are served is at present in Mumbai, India. If you are accessing the services from the European Union or the United Kingdom, you are categorically aware of the fact that your personal data and sensitive personal information may be transferred, stored, controlled, and processed at Mumbai, and you consent to the same by using the services.
5.1. Except for the rights granted to You under clause 2, all rights, title and interest in and to all intellectual property and/or proprietary rights, title and interest in or related to the Services, including patents, inventions, copyrights, trademarks, domain names, trade secrets or know-how shall belong to and remain exclusively with 5day.io.
5.2. You own the rights to the Customer Data that You provide to 5day.io. 5day.io does not claim ownership over such Customer Data. 5day.io shall have a right and license to incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback it receives from You.
5.3. 5day.io reserves its rights to re-use any and all techniques and know-how gathered by 5day.io while providing the Services to You.
5.4. All rights not expressly provided to You herein are reserved.
7.1.Subscription Charges: Unless otherwise mentioned in an Order Form, the Subscription Charges are due in full and payable in advance, in accordance with clause 7.2, when You subscribe to the Services. The Subscription Charges shall be specified on Our Website(s) or in an Order Form.
7.2.Payment: You hereby authorize 5day.io or 5day.io’s authorized agents, as applicable, to bill You upon Your subscription to the Services (and any renewal thereof). Unless otherwise stated in an Order Form, Your payment is due within seven (07) days of 5day.io’s invoice date.
7.3.Refunds: Unless otherwise specified in these Terms, all Subscription Charges are non-refundable. No refunds shall be issued for partial use or non-use of the Services by You.
7.4.Late Payments/Non-payment of Subscription Charges: 5day.io will notify You if 5day.io does not receive payment towards the Subscription Charges within the due date for Your Account. 5day.io must receive payments within a maximum of five (05) days from the date of 5day.io’s notice. If 5day.io does not receive payment within the foregoing time period, in addition to its right to other remedies available under law, 5day.io may (i) charge an interest for late payment @ 1.5% per month and/or; (ii) suspend Your access to and use of the Services until 5day.io receives Your payment towards the Subscription Charges as specified herein and/or; (iii) terminate Your Account.
7.5.Applicable Taxes: Unless otherwise stated, the Subscription Charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”).
8.1.The Subscription Term shall be as set forth in the relevant Order Form.
8.2.Termination by You: You may terminate your Account and subscription to the Services at any time, but will remain liable for all Subscription Charges for the Subscription Term. Unless Your Account and subscription to the Services is terminated, Your subscription to the Services will renew for a Subscription Term equivalent in length to the then expiring Subscription Term at 5day.io’s then prevailing Subscription Charges.
8.3.Termination and Suspension by 5day.io: In addition to suspension for late payment or non-payment of Subscription Charges, 5day.io may in its discretion, suspend or terminate Your access to and use of the Your Account or the Services if You are in violation of the terms of these Terms. 5day.io will notify You of activities that violate these Terms and provide You with a period of thirty (30) days to cure or cease such activities (“Cure Period”). If You do not cure or cease such activities within the said Cure Period or if 5day.io believes that Your breach of these Terms cannot be cured, Your Account shall be terminated immediately. Further, 5day.io also reserves the right to terminate Your Account at any time by written notice due to business reasons which shall include discontinuation of the Services.
8.4.Termination for Insolvency: Notwithstanding anything contained herein, either Party may terminate these Terms with notice if the other Party becomes insolvent, makes or has made an assignment for the benefit of creditors, is the subject of proceedings in voluntary or involuntary bankruptcy instituted on behalf of or against such Party (except for involuntary bankruptcies) which are dismissed within sixty (60) days, or has a receiver or trustee appointed for substantially all of its property.
8.5.Effect of Terminating Your Account: Following the termination of Your Account either by You or 5day.io, You may request us to reinstate your Account within thirty (30) days of effective termination of Your Account (“Data Retention Period”). Beyond the Data Retention Period, 5day.io reserves the right to delete all the Customer Data in its possession.
9.1.Confidentiality obligations: Each of the Parties will protect the other’s Confidential Information from unauthorized use, access or disclosure in the same manner as each of the Parties protects its own Confidential Information, and in any event, no less than reasonable care. Except as otherwise expressly permitted under these Terms, each of the Parties may use the other’s Confidential Information solely to exercise its respective rights and perform its respective obligations under these Terms and shall disclose such Confidential Information solely to those of its respective employees, representatives and agents who have a need to know such Confidential Information for such purposes and who are bound to maintain the confidentiality of, and not misuse, such Confidential Information. The provisions of this sub-section shall supersede any non-disclosure agreement by and between the Parties entered prior to these Terms that would purport to address the confidentiality of any Confidential Information and such agreement shall have no further force or effect with respect to the Confidential Information.
10.1. You understand and acknowledge that, in connection with the use of the Services, 5day.io may Process any Personal Data in accordance with these Terms and 5day.io’s Privacy Policy.
10.2. 5day.io may Process Customer Data to provide, maintain and improve the Services, or prevent or address any technical problems, or at Your request in connection with support requests.
10.3. 5day.io may perform analytics on Customer Data to improve, enhance, support and operate the Services and compile statistical reports and record insights.
10.4. You shall not disclose (and shall not permit any individual to disclose) any Sensitive Personal Information to Us for Processing.
10.5. We shall ensure that any person We authorize to Process Customer Data shall protect the Customer Data in accordance with Our confidentiality obligations under these Terms.
10.6. You acknowledge and agree that We may access or disclose information about You, Your Account, Users, including Customer Data in order to (a) comply with the law or respond to lawful requests or legal process; or (b) prevent any infringement of group companies’ or Our customers’ proprietary rights. Further, at Our sole discretion, any suspected fraudulent, abusive, or illegal activity by You may be referred to law enforcement authorities.
10.7. We shall use appropriate technical and organizational measures to protect the Customer Data as specified in applicable laws. The measures used are designed to provide a level of security appropriate to the risk of Processing the Customer Data. .
10.8. We shall, without undue delay, notify You of any accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to the Customer Data processed by Us.We shall reasonably assist You, at Your expense, in meeting Your obligations under applicable data protection laws.
11.1. THE SERVICES, INCLUDING ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. ALL EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OR NON-INFRINGEMENT, ARE HEREBY EXCLUDED.
11.2. YOU ACKNOWLEDGE THAT 5DAY.IO DOES NOT WARRANT THAT THE ACCESS TO THE SERVICE, WHICH IS PROVIDED OVER INTERNET AND VARIOUS TELECOMMUNICATIONS NETWORKS, ALL OF WHICH ARE BEYOND 5DAY.IO’S CONTROL, WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE.
13.1.Indemnification by You: You will indemnify and hold 5day.io harmless against any claim brought by a third-party against 5day.io, and its respective employees, officers, directors and agents arising from Your acts or omissions in connection with clause 3 of these Terms provided that (a) 5day.io promptly notifies You of the threat or notice of such a claim, (b) You have or will have the sole and exclusive control and authority to select defense attorneys, defend and/or settle any such claim; and (c) 5day.io fully cooperates with You in connection therewith. You will have no obligation or liability with respect to any such claim arising out of the gross negligence or wilful misconduct of 5day.io.
13.2.Indemnification by 5day.io: Subject to the Customer’s compliance with this Agreement, 5day.io will indemnify and hold the Customer harmless, from and against any claim brought against the Customer by a third-party alleging that the Services subscribed to infringes or misappropriates such third-party’s valid patent, copyright, or trademark (an “IP Claim”). 5day.io shall, at its expense, defend such IP Claim and pay damages finally awarded against the Customer in connection therewith, including the reasonable fees and expenses of the attorneys, provided that (a) the Customer promptly notifies 5day.io of the threat or notice of such IP Claim; (b) 5day.io has or will have the sole and exclusive control and authority to select defense attorneys, defend and/or settle any such IP Claim; and (c) Customer fully cooperates with 5day.io in connection therewith. 5day.io will have no liability or obligation with respect to any IP Claim if such claim is caused by (i) compliance with designs, data, instructions or specifications provided by the Customer; (ii) modification of the Services by anyone other than 5day.io; or (iii) the combination, operation or use of the Services with other hardware or software where the Services would not by themselves be infringing. If use of the Services by the Customer has become, or in 5day.io’s opinion is likely to become, the subject of any IP Claim, 5day.io may at its own option and expense (a) procure for the Customer the right to continue using the Services as set forth hereunder; (b) replace or modify the Services to make it non-infringing; or (c) if options (a) or (b) are not commercially and reasonably practicable as determined by 5day.io, terminate the Customer’s subscription to the Services and repay the Customer, on a pro-rated basis, any Subscription Charges the Customer has previously paid 5day.io for the corresponding unused portion. This clause states 5day.io’s sole, exclusive and entire liability to the Customer and constitutes the Customer’s sole remedy with respect to an IP Claim brought by reason of access to or use of the Services.
14.1.Assignment: Any rights or obligations hereunder may be assigned by 5day.io without the prior written consent of the other Party. However, You shall not assign any rights or obligations hereunder without the prior written consent of 5day.io. These Terms binds, and inures to the benefit of, the Parties and their respective successors and permitted assigns.
14.2.Entire Agreement: These Terms together with any supplementary terms, constitute the entire agreement, and supersede any and all prior agreements between You and 5day.io with regard to the subject matter hereof. These Terms shall prevail over the terms or conditions in any purchase order or other order documentation You or any entity that You represent provides (all such terms or conditions being null and void), and, except as expressly stated herein, there are no other agreements, representations, warranties, or commitments which may be relied upon by either Party with respect to the subject matter hereof. In case of a conflict between these Terms and an Order Form, these Terms shall prevail. In case of a conflict between two Order Forms, the Order Form later in date shall prevail.
14.3.Amendment: We may amend these Terms from time to time, in which case the new Terms will supersede prior versions. We will notify You of any material revisions not less than five (05) days prior to the effective date of any amendments to these Terms and Your continued use of the Services following the effective date of any such amendment may be relied upon by Us as Your acceptance of any such amendment. You can review the most current version of the Terms at any time by visiting this page.
14.4.Severability; No Waiver: If any provision in these Terms is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by applicable law, and the remaining provisions of these Terms shall remain in effect. 5day.io’s non-exercise of any right under any provision of these Terms does not constitute a waiver of that right or provision of these Terms.
14.5.Relationship of the Parties: The Parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the Parties.
14.6.Survival: All clauses which, by their nature are intended to survive, including without limitation clauses 1 (Definitions), 5 (Intellectual Property Rights), 7 (Charges and Payment), 9 (Confidentiality), 11 (Disclaimer of Warranties), 12 (Limitation of Liability), 13 (Indemnification), 14 (Miscellaneous) shall survive any termination of 5day.io’s agreement with respect to use of the Services by You. Termination shall not limit either Party’s liability for obligations accrued as of or prior to such termination or for any breach of these Terms.
14.7.Notices and Consent to Electronic Communications: All notices to be provided by 5day.io to You under these Terms may be delivered in writing (i) by nationally recognized overnight delivery service (“Courier”) or to the contact mailing address provided by You on any Order Form while subscribing to the Services; or (ii) electronic mail to the e-mail address provided for Your Account. 5day.io’s address for a notice to 5day.io in writing by Courier is Vadodara with a CC to legal@5day.io for electronic mail. All notices shall be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, two (2) business days after being deposited in the mail or with a Courier as permitted above.
14.8.Publicity Rights: You hereby grant 5day.io the right to identify Yourself as 5day.io’s customer on 5day.io’s websites and/or marketing collateral and to include Your use of the Services in case studies.
14.9.Governing Law and Dispute Resolution: These Terms shall be governed by the laws of Vadodara, Gujarat, India without regard to conflict of law principles. Any disputes or differences arising under, relating to or connected with these Terms shall be resolved by mediation first, failing which they shall be resolved by final and binding arbitration adjudicated by the sole arbitrator in accordance with the Arbitration and Conciliation Act, 1996, as amended from time to time. The arbitration shall be presided by a sole arbitrator appointed mutually by the Parties. The Parties agree that the courts situated in the Vadodara, Gujarat, India shall have exclusive jurisdiction over any dispute that arises from these Terms.
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