Terms and Conditions
TERMS AND CONDITIONS – READ CAREFULLY
Last Updated on: August 10, 2020
Thank you for using/ visiting/ downloading ‘Listener’ (“Application”). The Application is operated by Folly Systems Private Limited (“Folly Systems” or “Company”). “You” (whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms) means you individually or the entity you represent (and as applicable, the users). Your use, access and review of content on the Application is conditioned upon compliance with and acceptance of these Terms and Conditions of Use (“Terms” / “Agreement”).
By clicking/tapping or conveying your acceptance to the Terms in any other manner by checking of the check box stating “I agree” or any similar button and by continuing use of the website regardless of subscription, You affirmatively accept these Terms and the Terms would constitute a binding legal agreement between You and the Company. Without prejudice to acceptance to the Terms, You will also be bound when You first use the Application. These Terms would be agreed upon by You and the Company for the data presented on the Application. The reference to the term ‘Application’ includes, but is not limited to, all the content, data, reports, analysis, views, codes, etc. available or accessible on the Applicable. The Application is not available to persons who are not legally eligible to be bound by these Terms.
Folly Systems would provide the Application and You may use, access or review the Application in accordance with these Terms.
- The Application is a cloud-based software that enables you to record and transcribe your video meetings, create video highlights and take notes (this will be collectively referred to as “Content”). The Application enables You to analyze and share the Content with your team in order to bring them closer to your customers, augment customer experiences and other business capabilities.
- Use of the Application
- The Company permits You to use the Application rightfully subject to a valid subscription for the fee specified from time to time. You may use the Application only (a) during the term of the subscription, (b) for Your own benefit and (c) in accordance with the Terms.
- Upon your subscription to the Application, the Company would grant you access to the Application or certain parts of it, which would allow you to add user accounts (“Permitted Users”) and to control or manage certain features of the Application. To use the Application, the Permitted Users’ must register and set up an account with their credentials. The Permitted Users’ on setting up their account agree for the Company to store their respective credentials. Permitted Users’ access to the Application is limited and personal. You are responsible for:
- actions taken by Permitted Users or by any other person using user accounts added under Your subscription or by any other user using, accessing or reviewing the Application using Your accounts and passwords.
- Your Content.
- Compliance to the Terms by the Permitted Users’.
- The Company uses reasonable efforts to make available the Application for a continuous and uninterrupted use. However, the Company does not guarantee that the Application would operate in an uninterrupted and an error-free manner. Further, the Company performs service maintenance and uses reasonable efforts to schedule system down-time to off-peak hours to avoid service interruptions and delays. If the Company reasonably believes that a problem with the use of the Application may be attributable to Your Content or to Your use of the Application, You must cooperate to identify the source of the error and resolve the same.
- If You believe that Your subscription has been compromised including any unauthorized access to or use or disclosure of any account information, passwords, user names or login credentials, You must notify the Company vide means including but not limited to communicating in accordance with the means prescribed by the Company
- Evaluation Period
- The Application may be made available during the early access period up to September 30, 2020 or a period of 2 (two) weeks (“Evaluation Period”) on a trial basis (“Evaluation Service”). If You use, access or review the Application on an Evaluation Service basis, the conditions in the clause 1.3 of the Terms would apply along with other conditions applicable to using, accessing or reviewing the Application; provided that, You will not be charged subscription fee in accordance with clause 1.2.1 of these T
- The Application would be available as an Evaluation Service until the earlier of:
- The end of the applicable evaluation period pursuant to the download.
- The purchase of the subscription to the Application.
- Any termination of the evaluation by the Company for any reason or for no reason at all, by sending a termination notice with immediate effect.
- The Application provided as an Evaluation Service would be provided without support and without any indemnification, warranty or condition of any kind. No service level commitment will apply to the Evaluation Service.
- Certain features or functionality of the Application may not be available in an Evaluation Service. Providing any Evaluation Service, or any feature or functionality in an Evaluation Service, does not constitute our commitment to offer the Evaluation Service or that feature or functionality on a generally available basis.
- The terms of the Evaluation Service may be changed or modified at any time by the Company, and such modification would not be deemed to be a material change.
- Modifications 11. The Company may from time to time (a) modify the Terms, or (b) cease providing any Application. 12. The changes (including any new functionality) will become effective immediately on the date published. 13. The continued use of the Application after the effective date of any change will be deemed acceptance of the modified Terms.
- Optional Feedback You may provide comments and suggestions regarding the Application, but You are not required to do so. If you provide comments or suggestions, the Company may use that feedback without restriction, and You hereby irrevocably assign to us all right, title, and interest in and to that feedback. Subject to the preceding sentence regarding any feedback you provide, providing any comments and suggestions does not grant us any rights in Your Content or your intellectual property.
- You are responsible for taking and maintaining appropriate steps to protect the confidentiality, integrity and security of Your Content by controlling access you provide to Your user accounts and Permitted Users and configuring the Application appropriately
- You are responsible for providing any necessary notices to every user of the Application, who provides their credentials to be a Permitted User.
- The terms of the Data Processing Addendum (“DPA”) (available at https://listener.app/dpa) are incorporated by reference to these Terms and apply to the processing of personal information which is part of Your Content.
Third Party Services
- When using the Application in conjunction with other third party services, You will comply with the terms and conditions of such third party services including any separate fees or charges imposed by the provider of the third party service.
- The Company shall not be liable for any termination, breach of terms or suspension of service resulting from your use of the Application.
- The Company also holds discretion to suspend or terminate provision and hosting of any third party service at any time; and that such suspension or termination would not be deemed to be a material change.
- You assumed full responsibility for Your and your Permitted Users’ use of the Application in accordance with this Agreement and with applicable local, state, federal, national and international laws, regulations and treaties, and warrant that you have obtained all rights in the Content to authorize the Company to input, process, distribute and display the Content as contemplated by these Terms.
- You will not, and ensure that your Permitted Users will not, use the Application or Content for any use or purpose that:
- is obscene, libelous, blasphemous, defamatory, inciting hatred, terrorism or any similar offence;
- infringes or misappropriates the intellectual property rights or violates the privacy rights of any third party (including without limitation, copyright, trademark, patent, trade secret, or other intellectual property right, moral right, or right of publicity);
- contains any data that You do not have a right to upload into the Application;
- is in violation or may encourage any manner of acting that would violate any applicable local, state, national and foreign laws, treatises and regulations; or
- may drive or encourage any third party to do any of the above.
- You will not, and will ensure that your Permitted Users will not:
- use the Application for non-business calls or abuse the Application;
- resell, transfer, grant others permission to use the Application, pledge, lease, rent, or share Your rights under this Agreement (including without limitation to any of your affiliates);
- modify, remove or amend Company’s name or logo, update, reproduce, duplicate, copy all or any part of the Application;
- use the Application in any way that restricts or inhibits the use of the Application;
- access or attempt to access any of the Company’s systems, programs or data that are not made available for public use, or attempt to bypass any registration processes on the Application or any of the Application’s security and traffic management devices; or
- attempt to decompile, disassemble, re-engineer or reverse engineer the Application or otherwise create or attempt to create or permit, allow, or assist others to extract source code of the Application, its structural framework or allow or facilitate a third party, to violate or infringe any rights of the Company.
- You may not access or use the Application if you are a direct competitor of the Company, or for monitoring the Application’s availability, performance or functionality, or for any other benchmarking or competitive purposes.
- Ownership of the Application
- All parts of the Application are protected by copyrights, trademarks and other proprietary rights, as a collective work or compilation, pursuant to laws and international conventions (“Intellectual Property Rights”). The Company owns all right, title and interest in the Application and any related improvements, enhancements, modifications and derivative works of them and all Intellectual Property Rights in all of them. Your rights to use the Application are limited to those expressly granted in these Terms.
- Ownership of Your Content
- Except for Your Content, all rights to the Application and derivatives thereof are retained by the Company. The Company makes no claims of ownership to your trademarks or the trademarks of any third party linked or displayed on the Application or with respect to any publisher or publication mentioned on the Application.
- Ownership of the Application
- Each of You and the Company represent, warrant and covenant to the other that: (a) it has the full corporate right, power and authority to enter into and perform this Agreement / (in case You are an individual natural person), you are of the legal age to contract under the laws applicable to you / (in case you are any other incorporated or unincorporated business entity, partnership, concern, association, trust or body) you have full right, power and authority to enter into and perform this Agreement under the constitutional or incorporation document governing you, and such execution and performance does not and will not violate any other agreement to which it is a party, and (b) this Agreement constitutes its legal, valid and binding obligation.
- EXCEPT AS EXPRESSLY PROVIDED ABOVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE ABOVE, WE MAKE NO WARRANTY WHATSOEVER WITH RESPECT TO (I) THE APPLICATION MEETING YOUR REQUIREMENTS, OR BEING UNINTERRUPTED, CONTINUOUS, TIMELY, OR ERROR OR VIRUS FREE; (II) WHETHER YOUR USE OF THE APPLICATION OR THE CONTENT WILL GENERATE ANY RESULTS OR CONSEQUENCES; OR (III) WHETHER YOUR USE OF THE APPLICATION IS LAWFUL IN ANY PARTICULAR JURISDICTION.
- “Confidential Information” means your all information provided by a party to other party, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, and excluding any information that was or has become publicly available without the receiving party’s actions or inactions.
- The Company's confidential information includes, without limitation, the Application’s features, functionality and performance and any feedback.
- Your Confidential Information does not, for purposes of the Agreement, include Your Content. If you disclose Your Content to us or if the access to Your Content is permitted by these Terms, including for purposes of providing support to you, the Company will use the same standard of care with respect to that data as it uses to protect its own Confidential Information.
- Each party would hold the other party’s Confidential Information in strict confidence and not make available the other party’s Confidential Information available to any third party unless to the extent required by applicable law, implement adequate security measures to ensure against unauthorized access to use or copying of each other’s Confidential Information and notify the other party in writing of any misuse or misappropriation of the other party’s Confidential Information of which the receiving party may become aware.
Suspension and Termination
- Temporary Suspension
- The Company may suspend Your use of the Application if:
- You are in breach of the Terms (other than payment) and do not cure that breach within 10 days after we notify You of that breach.
- Any payment is not received when due.
- The Company believes that Your use of the Application poses a security risk to the Application or to other users of the Application.
- The Company suspects fraud or abuse.
- Company will give You notice before suspending Your use of the Application unless the Company reasonably determines that providing notice presents a risk of harm to the Application, to other users of the Application, or to any person or property, in which case the Company will notify You as soon as feasible or permitted.
- The Company will promptly reinstate Your access to the Application once we have determined that the issue causing the suspension has been resolved.
- You will remain responsible for all fees incurred before and during any suspension and not be entitled to any credits.
- The Company may suspend Your use of the Application if:
- You have the right to use the Application during the applicable term for which the Application has been subscribed by you. The Company holds the right to terminate the Terms effective immediately upon written notice to You, on occurrence of any of the events specified in clause 8.1.1 above.
- Without prejudice to the notice requirement specified above in clause 8.2.1, the Company holds the right to terminate the Terms with immediate effect to comply with applicable law in any relevant jurisdiction.
- Either You or the Company may terminate the Agreement effective immediately upon sending the other party notice if that party:
- Becomes insolvent, admits in writing its inability to pay its debts as they mature or makes an assignment for the benefit of creditors; or
- Becomes subject to control of a trustee, receiver or similar authority, or to any insolvency or bankruptcy proceeding.
- Effect of Termination
- Upon termination of the Terms for any reason:
- You must stop using the Application; and
- You must return or, if the Company requests, destroy, any Confidential Information of the Company in Your possession or under Your control.
- You are responsible for ensuring that You have the necessary copies of Your Content prior to the effective date of any termination.
- Any provision that, by its nature and context is intended to survive termination or expiration of the Terms, will survive. The Data Processing Addendum will also survive any termination or expiration of the Agreement.** **
- To the extent that any party terminates the Terms pursuant to a modification as per clause 1.4. above, You will not be entitled to any refunds, credits and be liable to all fees incurred as of the effective termination date.
- If the Terms are terminated due to an uncured breach by the Company, the Company will refund any prepaid Application fees prorated as of the effective date of termination.
- Notwithstanding anything stated in this Clause 8, you agree that these Terms shall survive and continue unabated even after any change in ownership or capital structure or management control of the Company.
- Upon termination of the Terms for any reason:
- Temporary Suspension
- Indemnification by You
- You agree that You will:
- indemnify, defend and hold harmless the Company, its officers, directors, employees, agents and affiliates, from and against all losses, liabilities, claims, obligations, costs and expenses (including reasonable attorneys’ fees) arising out of or relating to any third-party claims (“Claims”) with respect to your use of the Application, including without limitation Your Content and any claims against the Company by your employees, users, consultants, customers, service providers or the like in connection with their use of the Application, and excluding The Company’s indemnification obligations pursuant to the clause 9.2 immediately below.
- Indemnify the Company from all fines, damages and other costs finally awarded by a court of competent jurisdiction or a government agency, or agreed to in settlement.
- You agree that You will:
- Indemnification by the Company
- The Company agrees that it will:
- indemnify, defend and hold harmless You, Your officers, directors, employees, agents and affiliates from and against all losses, liabilities, claims, obligations, costs and expenses (including reasonable attorneys’ fees) that you incur in responding to a third-party claim or demand alleging that the Application (excluding any Content) infringes or misappropriates any third party’s trademark, patent, copyright or trade secret.
- If a court of competent jurisdiction or the Company reasonably determines that any such claim prevails or is likely to prevail, The Company may at its sole discretion and expense: (a) procure the right for You to continue to use the Application; (b) replace or modify the applicable service so that it no longer infringes or misappropriates, as applicable, such patent or copyright; or (c) terminate these Terms and refund you any prepaid subscription fees for the period subsequent to such termination, on a pro-rated basis.
- The Company agrees that it will:
- As a condition to such indemnification, each party will provide the other with a written notice of such claim. Neither party would enter into any settlement or compromise without the indemnifying party’s written consent. In all events, the Company and You will cooperate with the other in the defense of any claim.
- Indemnification by You
Limitation of Liability and Claims
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES; IN EACH CASE, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR LOSS OF CONTENT FOR ANY REASON, EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE.
Cap on Monetary Liability
EXCLUDING LIABILITY FOR A BREACH OF CLAUSE 7 (CONFIDENTIALITY), YOUR PAYMENT OBLIGATIONS, INDEMNIFICATION OBLIGATIONS UNDER CLAUSE 9 (INDEMNIFICATION) AND ANY LIABILITY WHICH MAY NOT BE EXCLUDED BY LAW, EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE APPLICATION WILL NOT EXCEED THE FEES ACTUALLY RECEIVED BY THE COMPANY FROM YOU UNDER THIS AGREEMENT
Limitation on Claims
Any Claim or cause of action arising out of or related to use of the Application or the Terms must be filed within 6 months after such Claim or cause of action arose, or forever be barred.
- You may not assign or transfer rights arising out of these Terms, in whole or in part, by operation of law or otherwise, without the prior written consent of the Company. Any attempted assignment or transfer of the rights arising out of these Terms without such written consent will be void and will be a breach of the Terms. Subject to these limitations, the Terms will bind and inure to the benefit of the parties and their respective successors and assigns.
Any notice given by the Company under these Terms will be given (a) via email to the email address associated with Your account; or (b) any other method agreed upon the parties.
You must direct notices arising out of Your use of the Application requiring support or an address to the grievance to via the email associated with Your Account to the following email ID:
You must direct notices arising out of any condition that requires a notice to be sent to the Company under these Terms the following: -
Postal Address: Kothi Pole, Raopura, Vadodara, Gujarat 390001, India
- Neither You nor the Company would be liable for any delay or failure to perform its obligations under the Terms, except for Your payment obligations, due to any cause beyond Your or the Company’s reasonable control including labour or other industrial disputes or disturbances, systemic electrical, telecommunications or other utility failures, earthquakes, storms, floods or other acts of natures, embargoes, riots , acts or orders of government, acts of terrorism or war, or outbreak of any disease declared as an epidemic or a pandemic by the relevant authority resulting in a situation making it reasonably difficult to perform its obligations under these Terms.
- The language used in the Terms is English and the English language version governs any conflict with a translation into any other language.
Independent Parties & Third-party Rights
- The Company and You are independent parties and the Terms is not to be construed to create a partnership, joint venture, agency or employment relationship between us. Neither You nor the Company not any of our respective affiliates, officers, directors or employees, is an agent of the other for any purpose or has an authority to bind the other.
- Other than as expressly provided in the Terms, the Terms do not create any rights for any person who is not a party to it, and only parties to the Terms may enforce any of its terms or rely on any exclusion or limitation contained in the Terms.
Governing Law & Jurisdiction
- The Terms will be governed by the law of India, without regard to any conflicts of law principles.
- The parties consent to the exclusive jurisdiction and venue in the courts of Vadodara, Gujarat, India except that temporary relief to enjoin infringement of intellectual property rights may be sought in any court where such infringement has occurred.
- Each party waives any objection on the grounds of lack of jurisdiction, forum non conveniens or otherwise to the exercise of such jurisdiction over it by any such courts.
- The Terms as it may be modified from time to time is the entire Terms between You and the Company regarding the Application. The Terms supersede all prior or contemporaneous communications, understandings and agreements, whether written or oral, between You and the Company regarding its subject matter.