Welcome to DigitalConsulting’s Terms of Service! The first portion of our Terms of Service is an introduction, which is structured like an FAQ and lays out some high-level concepts before diving into other terms.
What documents make up the TOS?
We refer to the Terms of Service as the “TOS”
This page lays out the core of our TOS, but we also have other contractual documents that you can think of as additional terms for specific topics. Legally speaking, these other documents are incorporated by reference as if they were written here and form part of the overall TOS. Therefore, you should also review these other documents, which can be found at the links below:
Whom does this TOS apply to?
When we refer to “DigitalConsulting” or we use pronouns like “we”, “us” or “our”, we are referring to DigitalConsulting, as well as its parents, affiliates and subsidiaries.
When we refer to the “User”, we are talking about you, and we will also use words like “you” and “your” to refer to you. Who “you” are can get more complicated if you are using our services on behalf of a company, organization, or other entity. In that case, you are representing to us that you have the authority to bind your company, organization, other entity to this TOS and that you agree to be legally bound by this TOS on behalf of such entity (and “User”, “you”, and “your” then refer to such entity). If you aren’t sure what this means or whether you are authorized to bind your company, organization, or entity to this contract, you should ask others in your organization to get clarification about authority.
What is the TOS?
This TOS is a binding contract between you and DigitalConsulting, and covers all of the offerings, websites, products, services, features, content, applications and other things we offer to users like you.
We will periodically differentiate between our websites such as DigitalConsulting.lk or RetailPOS.lk (which we will refer to collectively as the “Websites”) and all of our other services, such as our RetailPOS.lk ERP system and other paid services (which we will refer to collectively as the “Services”).
As you will see later in the TOS, Section 3 (Website Terms) is specific to your use of the Websites and Section 4 (Service Terms) is specific to your use of the Services.
When does this TOS apply to me?
Now that we have some common language, we want to ensure you understand when and how the TOS applies.
First and foremost, you must understand that this is a binding legal contract that is required to use our Websites and Services. As such, you may only use our Websites and Services if you agree that you that have read, understood, and consented to be bound by this TOS.
If you sign up for Services or create an account through our Websites, this TOS takes effect when you click “I accept” or other functionality indicating your acceptance of its terms. If you purchase Services through a separate written contract, this TOS is incorporated into that contract, whether it is called out or not. Regardless of these other methods, when you access or use our Websites and Services, this TOS applies and is legally binding on you and to your access and use. These are common examples, and this paragraph does not necessarily include all the other ways you can become bound to this TOS.
What happens with disputes under this TOS?
One requirement of our TOS is that you must agree to resolve disputes arising under this TOS through binding arbitration directly between you and DigitalConsulting. In arbitration, a neutral arbitrator or panel of arbitrators will hear the arguments of both sides and decide on disputes in an expedient and cost-effective manner. You will still be able to pursue cases in court when those cases are for small claims, but all other claims will be subject to arbitration.
You should understand that this means neither you nor DigitalConsulting will have the opportunity to resolve some disputes in court before a judge or jury. You will be unable to pursue claims in a conventional trial and will not be able to participate in a court-based class action or similar proceeding.
Terms & Conditions of the TOS
Eligibility & Registration
1.1 Before you use our Websites and Services, you must ensure that such use is in compliance with all laws, rules and regulations applicable to you. Your right to access the Websites and Services is revoked to the extent your use thereof is prohibited or to the extent our provision thereof conflicts with any applicable law, rule or regulation. You are responsible for making these determinations before using the Websites and Services.
1.2 The Websites and Services are not targeted towards, nor intended for use by, anyone under the age of 18. By using the Websites and Services, you represent and warrant to us that: (a) you are 18 years of age or older; or (b) you otherwise have sufficient legal consent, permission and capacity to use the Websites and Services in applicable jurisdiction(s) as determined by you.
1.4 We may, in our sole discretion, refuse to provide or continue providing the Websites and Services to any person or entity and change eligibility criteria at any time, including if you fail to comply with the TOS. We reserve the right to deactivate, terminate, prevent access to, disable services for, and/or delete any Accounts or access to the Websites and Services at any time at our sole discretion.
DigitalConsulting’s Proprietary Rights
2.1 As between you and DigitalConsulting, the Websites and Services are owned and/or provided by DigitalConsulting. The names, logos, trademarks, trade dress, arrangements, visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Websites and Services (“Materials”) that we provide are protected by intellectual property and other laws. All Materials included in the Websites and Services are the property of DigitalConsulting or its third-party licensors. You may only use the Websites and Services as expressly authorized by us and as set forth in this TOS. You shall abide by and maintain all intellectual property notices, information, and restrictions contained in the Websites and Services. We reserve all rights to the Websites and Services not granted expressly in this TOS.
2.2 If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Websites and Services (“Feedback”) then you hereby grant to us an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Websites and Services and create other products and services.
2.3 You grant us permission to include your name, logos, and trademarks in our promotional and marketing materials and communications.
2.4 Some of the Materials provided by DigitalConsulting are licensed under one or more open source, Creative Commons, or similar licenses (collectively, “Open Source Licenses”). Nothing in this TOS prevents, restricts, or is intended to prevent or restrict you from obtaining such materials under the applicable Open Source Licenses or to limit your use of such materials under those Open Source Licenses.
2.5 Subject to your complete and ongoing compliance with this TOS and our rights therein, DigitalConsulting grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Websites and/or Services as described in and subject to this TOS.
3.1 Certain features of the Websites (such as DigitalConsulting Contact us or signup) permit you to submit or upload content, including messages, reviews, media, images, folders, data, text, and other types of works (your “User Content”) and to publish your User Content on our Websites.
3.2 By providing your User Content to or via the Websites, you grant DigitalConsulting a worldwide, non-exclusive, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any media formats and through any media channels.
3.3 By providing your User Content via the Websites, you grant to our other users a non-exclusive license to access and use your User Content as permitted by this TOS and the functionality of the Websites.
3.4 You are solely responsible for your User Content, and you agree DigitalConsulting is not and will not be in any way liable for your User Content. By providing your User Content via the Websites, you affirm, represent, and warrant that:
1. You are the creator and owner of your User Content, or have the necessary licenses, rights, consents, and permissions to authorize DigitalConsulting and users of the Websites to use and distribute your User Content as necessary to exercise the licenses granted by you in this TOS or otherwise required of you under this TOS;
2. Your User Content, and use of your User Content as contemplated by this TOS, does not and will not: (i) infringe, violate, or misappropriate any third party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade a right of privacy, publicity or other property right of any other person; or (iii) cause us to violate any law or regulation; and
3. You will indemnify us for any third-party claims arising from your User Content.
3.5 We are under no obligation to edit or control your User Content or the User Content of others, and will not be in any way responsible or liable for User Content. We may, however, at any time and without prior notice, screen, remove, edit, or block any of your User Content at our discretion.
3.6 By submitting or uploading your User Content, you also agree to abide by the terms of any Open Source Licenses that may apply to your User Content.
4.1 Our Services allow you to provide us with files, processes, interfaces, data, text, settings, media, or other information for storage, hosting, or processing by the Services (your “Services Content”).
4.2 Subject to this TOS, by providing your Services Content to or via the Services, you grant DigitalConsulting a license to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your Services Content solely for the purpose of providing the Services to you.
4.3 As between you and DigitalConsulting, you retain any copyright and other ownership rights that you may hold in your Services Content.
4.4 Some of our Services allow third parties to access, use, or contribute to your Services Content, including via resale, your own products and services, or public-facing websites, applications, interfaces, and other manifestations of your Services Content. Such other users are collectively defined as your “End Users” for purposes of this TOS. For clarity, “End Users” in this context includes all such other users, regardless of whether they are intermediary parties, End Users of other End Users, or the like. You are responsible for your End Users’ compliance with this TOS.
4.5 You are solely responsible for your Services Content, End Users and any activity by your End Users, and you agree DigitalConsulting is not and will not be in any way liable for your Services Content, End Users and/or activity by your End Users. By providing your Services Content via the Services, you affirm, represent, and warrant that:
- Your Services Content, and your or your End Users’ use of your Services Content, will not violate this TOS (including the AUP) or any applicable law, regulation, rule, or third party rights;
- You are solely responsible for the development, moderation, operation, maintenance, support and use of your Services Content, including when your Services Content is contributed by your End Users;
- Your Services Content, and your or your End Users’ use of your Services Content, does not and will not: (i) infringe, violate, or misappropriate any third party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade a right of privacy, publicity or other property rights of any other person; or (iii) cause us to violate any law, regulation, rule, or rights of third parties; and
- Except for the specific Services provided to you under this TOS or other express contract, you are solely responsible for the technical operation of your Services Content, including on behalf of your End Users.
4.6 You are responsible for properly configuring and using the Services and taking your own steps to maintain appropriate security, protection and backup of your Services Content, which may include the use of encryption technology to protect your Services Content from unauthorized access and routine archiving your Services Content. DigitalConsulting does not promise to retain any preservations or backups of your Services Content. You are solely responsible for the integrity, preservation and backup of your Services Content, regardless of whether your use of Services includes a DigitalConsulting backup feature or functionality, and to the fullest extent permitted by law, DigitalConsulting shall have no liability for any data loss, unavailability, or other consequences related to the foregoing. But we keep overall data backups in case of the of any system wide data loss or data leakage.
Rules of Conduct
5.1 You must use the Websites and Services in accordance with our AUP, which is incorporated by reference. Accordingly, any use of the Websites and Services in violation of the AUP shall constitute a breach of this TOS.
5.2 You are solely responsible for the activity that occurs on your Account, regardless of whether the activities are undertaken by you, your employees, any third party (including your contractors or agents), your End Users, your licensees, or your customers.
5.3 You are responsible for notifying your employees, agents, and others related to your use of the Websites and Services of the provisions of this TOS, including where the terms of the TOS are binding on them.
5.4 You shall not (directly or indirectly): (i) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Websites or Services (including without limitation any application), except to the limited extent applicable laws specifically prohibit such restriction; (ii) modify, translate, or otherwise create derivative works of any part of the Websites or Services; or (iii) copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder. You shall abide by all applicable local, state, national and international laws and regulations. To the extent any portions of the Websites or Services are subject to Open Source Licenses, such Open Source Licenses apply regardless of this section.
5.5 We reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) respond to any applicable law, regulation, legal process or governmental request; (ii) enforce this TOS, including investigation of potential violations hereof; (iii) detect, prevent, or otherwise address fraud, security or technical issues; (iv) respond to user support requests; or (v) protect the rights, property or safety of us, our users and the public.
5.6 As a reward for being early adopters of the Services, some Users with older Accounts received package promotions with discounts contingent on their Accounts remaining operative, in good standing, and in compliance with this TOS.
5.7 You agree not to – directly or indirectly – sell, export, reexport, transfer, divert, or otherwise dispose of any service received from DigitalConsulting in contradiction with these laws and regulations. Failure to comply with these laws and regulations may result in the suspension or termination of your Account.
5.8 You agree to comply with all applicable export and import control laws and regulations in your use of the Services, and, in particular, you will not utilize the Services to export or re-export data without all required Sri Lanka and foreign government licenses. You assume full legal responsibility for any access and use of the Services from outside the Sri Lanka, with full understanding that such access or use may constitute export of technology and technical data that may implicate export regulations and/or require export license.
5.9 You shall utilize proper security protocols, such as setting strong passwords and access control mechanisms, safeguarding access to all logins and passwords, and verifying the trustworthiness of persons who are entrusted with account access information. You are solely responsible for any unauthorized access to your Account, and must notify DigitalConsulting immediately of any such unauthorized access upon becoming aware of it.
5.10 You shall notify DigitalConsulting if and when you learn of any security incidents or breaches affecting the Websites or Services, including unauthorized access to your Account or Account credentials, and shall aid in any investigation or legal action that is taken by authorities and/or DigitalConsulting to investigate and cure the security incident or breach to the extent caused by your Account or your use of the Websites and Services. Our Data Processing Agreement includes more information about security incidents as they pertain to certain personal data.
Payments and Billing
6.1 Subscription Fees. When You are on a paying Plan, you shall be charged a fee based on the Plan You choose for the Services (“Subscription Fees”). Unless specified otherwise herein or in a Pricing Agreement, the Subscription Fees are payable in full and in advance until Your Subscription is terminated in accordance with Section 11 (Term, Termination).
6.2 Payment. You agree to pay the Subscription Fees through a payment method acceptable to Us. You hereby authorize Us and/or Our authorized agents, as applicable, to bill You in accordance with Your Plan and/or Pricing Agreement for Your Subscription (and any renewal thereof). Unless otherwise stated in a Pricing Agreement, Your payment is due in full immediately upon each due date with respect to Your Subscription.
6.3 Renewal. For any Renewal Term (as defined below), unless otherwise agreed to in a Pricing Agreement, We reserve the right to change the subscription fees and billing methods upon a thirty (30) day notice. For existing Subscriptions for which the Subscription Fees has been already received by Us, We will implement the price changes during the next Renewal Term.
6.4 Refunds. Unless otherwise specified in these Terms or Pricing Agreement, all Subscription Fees are non-refundable. We do not provide refunds or credits for any partial use or non-use of the Services.
6.5 Taxes. Unless otherwise specified in a Pricing Agreement, the Subscription Fees do not include any taxes, duties, fees or other amounts assessed or imposed by any government authority, for which You are responsible except for taxes imposed on Our income. You agree to pay or reimburse Us for all such amounts upon demand or provide evidence of payment or exemption.
6.6 Delayed Payments/Non-payment of Subscription Fees. Where We do not receive payment towards the Subscription Fees within the due date for a Subscription, You shall be notified of such non-payment. We must receive payments within a maximum of thirty (30) days from the date of Our notice. If We do not receive payment within the abovementioned time period, in addition to Our right to other remedies available under law, We may (i) charge an interest for late payment (a) @ 1.5% per month on the outstanding balance where the Subscription Fees is payable monthly; or (b) @ 1.5% per month on the outstanding balance where the Subscription Fees is payable annually; and/or (ii) suspend Your access to and use of the Services until We receive Your payment towards the outstanding Subscription Fees; and/or (iii) terminate the Subscription in accordance with Section 11 (Term, Termination).
6.6 Upgrades and Downgrades. You may upgrade or downgrade between the Plans. You understand that downgrading may cause loss of features or capacity of the Services as available to You before downgrading Your Subscription. We will not be liable for such loss. When You upgrade or downgrade, the new Subscription Fees become immediately applicable. Upon upgrade, the new Subscription Fees for the subsisting month would be charged on a pro-rated basis and shall be payable in accordance with Section 6.2 (Payment). Subsequent months will be charged in full according to the new Subscription Fees and any credits will be adjusted appropriately.
6.7 Benefits. We may, at Our sole discretion, offer You certain non-transferrable benefits (such as discounts on Subscription Fees or a free extension in Term) specific to a Subscription. The benefits may have an expiry date. If they do not have an expiry date, they will expire upon completion of twelve (12) months from their date of offer.
Third Party Services
The Websites and Services may include links to third party websites, services or other resources on the Internet, and third-party websites, services or other resources may include links to our Websites and Services as well. When you access third party resources on the Internet, you do so at your own risk. These third-party resources are not under our control, and, to the fullest extent permitted by law, we are not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such resources. The inclusion of any such link does not imply our endorsement or any association between us and any third party. To the fullest extent permitted by law, we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such third party resource. It is your responsibility to protect your system from risks such as viruses, worms, Trojan horses and other security risks that may be presented by the third party resources or Vendor Offerings described in this section.
8.1 To the extent you receive or possess any nonpublic information from us that is designated confidential or, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential, such information is our “Confidential Information” and must be handled according to this TOS. Confidential Information includes but is not limited to: (a) nonpublic information about our technology, customers, business plans, marketing and sales activities, finances, operations and other business information; and (b) the existence and content of our discussions or negotiations with you regarding your Account and/or use of the Services. Confidential Information does not include any information that: (i) is or becomes publicly available without breach of this TOS; (ii) can be shown by documentation to have been known to you at the time of your receipt from us; (iii) is received from a third party who did not acquire or disclose the information by a wrongful or tortious act or by violating the rights of us or third parties; or (iv) can be shown by documentation to have been independently developed by you without reference to the Confidential Information.
8.2 You may not use Confidential Information except in connection with your use of the Service as permitted under this TOS or as separately authorized in a signed writing by us. You agree to not disclose Confidential Information during the term of this TOS, after you cease using the Services and after this TOS otherwise no longer applies. You will take all reasonable measures to avoid disclosure or unauthorized use of Confidential Information, including at least the measures you take to protect your own confidential information of a similar nature.
Limitation of Liability
9.1 To the fullest extent permitted by law, in no event will we be liable to you for any indirect, incidental, special, consequential or punitive damages (including damages for loss of profits, goodwill, or any other intangible loss) arising out of or relating to your access to or use of, or your inability to access or use, the Websites and Services or any materials or content on the Websites and Services, whether based on warranty, contract, tort (including negligence), statute, or any other legal theory, and whether or not we have been informed of the possibility of damage. To the fullest extent permitted by law, you agree we will have no liability for any data that may be destroyed, lost or otherwise rendered inaccessible, whether because you failed to backup your data or for any other reason.
9.2 Except as provided in Section 13 and to the fullest extent permitted by law, our aggregate liability to you for all claims arising out of or relating to this TOS or the Websites and Services, whether in contract, tort, or otherwise, is limited to the amount you have paid to us for the Services at issue in the month prior to the event or circumstance giving rise to claim.
9.3 Each provision of this TOS that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is intended to and does allocate the risks between the parties under this TOS. This allocation is an essential element of the basis of the bargain between you and us. Each of these provisions is severable and independent of all other provisions of this TOS. The limitations in this section will apply even if any limited remedy fails of its essential purpose.
To the fullest extent permitted by law, you are responsible for your use of the Websites and Services, and you shall defend, indemnify, and hold harmless us and our employees, officers, directors, agents, contractors, and representatives from all liabilities, claims, and expenses, including reasonable attorneys’ fees and costs, that arise from or relate to your Services Content, User Content, your End Users, or your access to or use of the Websites and Services, including your breach of this TOS or applicable law, willful misconduct, negligence, illegal activity, breach of security or data, unauthorized access to or use of your Account, or infringement of a third party’s right, including any intellectual property, confidentiality, property or privacy right. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, without limiting your indemnification obligations with respect to that matter, in which event you will make best efforts to assist and cooperate with us in defending the matter at your expense.
While we prefer to give advance notice of termination, we reserve the right, in our sole discretion, to terminate your access to all or any part of the Websites and/or Services at any time, with or without notice, effective immediately. Any such termination may result in the immediate forfeiture and destruction of data associated with your Account. Except as otherwise set forth herein or expressly agreed between the parties, any and all fees paid to us are non-refundable and any and all fees still owed to us at the time of such termination shall be immediately due and payable. Upon termination, any and all rights granted to you by this TOS will immediately be terminated, and you must also promptly discontinue all use of the Websites and/or Services. All provisions of this TOS which by their nature should reasonably be expected to survive termination shall survive termination, including Sections 2.1-2.4, 3, 4, 6, 8, 9, 10, 11, 12, 13, and 14.
12.1 Updates and Modifications. DigitalConsulting reserves the right to update, change or otherwise modify this TOS on a going-forward basis at any time and in DigitalConsulting’s sole discretion. If DigitalConsulting updates this TOS, DigitalConsulting may provide notice of such updates, such as by sending an email notification to the email address listed in your Account and/or updating the “Last Updated” date at the beginning of this TOS. Updates will be effective on the date specified in the notice. By continuing to access or use the Websites or Services after the date specified in the notice or updated TOS, you are agreeing to accept and be bound by the updated TOS and all of the terms incorporated therein. If you do not agree to the updated TOS, then you may not continue to use the Websites or Services and your sole and exclusive remedy is to deactivate your Account and otherwise discontinue use of the Websites and/or Services.
12.2 Assignment. You may not assign, transfer or delegate this TOS or any of your rights and obligations under the TOS, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign, transfer or delegate this TOS or our rights and obligations under this TOS without notice or consent. Subject to this section, this TOS will be binding upon and inure to the benefit of the parties and their respective permitted successors and assigns, and any assignment or transfer in violation of this section will be void.
12.4 Relationship of the Parties. The parties are independent contractors. This TOS does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other.
12.5 Force Majeure. DigitalConsulting shall not be liable for nonperformance of the terms herein to the extent that DigitalConsulting is prevented from performing as a result of any act or event which occurs and is beyond DigitalConsulting’s reasonable control, including, without limitation, acts of God, war, unrest or riot, strikes, any action of a governmental entity, weather, quarantine, fire, flood, earthquake, explosion, utility or telecommunications outages, Internet disturbance, epidemic, pandemic or any unforeseen change in circumstances, or any other causes beyond our reasonable control.
12.6 No Third-Party Beneficiaries. This TOS does not create any third party beneficiary rights in any individual or entity that is not a party to this TOS.
Copyright 2015 – 2021 DigitalConsulting . All rights reserved. No part of DigitalConsulting’s Website may be reproduced, modified, or distributed in any form or manner without the prior written permission of Digital Consulting.
END OF TERMS OF SERVICES DIGITAL CONSULTING