THIS USER AGREEMENT (“Agreement”) is made and entered by and between Florisoft, Delhi based company ("Details") and the individual or entity identifying itself as the "Customer" by acknowledging acceptance of all terms and conditions herein by clicking "Accept" during account creation. Details and Customer referred to herein sometimes as the "parties" or individually as a "party."
In light of the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Effective Date. This Agreement will become effective (the “Effective Date”) on the date of account activation.
2. Florisoft’ Portal. On or immediately following the Effective Date, Florisoft will grant the Customer access to its online floral portal via a unique username and password. The portal allows the Customer to use Florisoft’ proprietary website, software and/or applications (“Services”), which includes, but is not limited to all planning, invoicing, purchasing, reporting and other capabilities available to Florisoft’ similarly situated customers. Upon the Effective Date, Florisoft shall further provide the following:
1. Customer Service. Customer service and assistance with user-interface for the Services shall be available during regular business hours, Monday through Friday, 9:00am to 5:00pm IST.
2. Uptime. Florisoft will strive to achieve a 99% uptime for the Services.
3. Florisoft Service. Florisoft’ Services may include customization. Florisoft reserves the right to change improve and/or update the Services periodically in its sole discretion.
4. Fees; Payment Terms. For the Services as contemplated herein, Customer shall pay Florisoft a fee monthly, semi-annually or annually (the "Fees") depending on the current subscription rates and package selected. Florisoft shall invoice monthly, semi-annually or annually and require credit card authorization. Unless provided otherwise therein all payments are non-cancelable and amounts paid are non-refundable for all subscription types. All pricing terms are confidential, and Customer agrees not to disclose them to any third party. Florisoft reserves the right to update or amend pricing for any of its subscriptions or packages at any time with prior written notice to the Customer.
5. Term; Termination. This Agreement shall begin on the Effective Date and shall continue in effect for a period of 30 days (the "Initial Term"), Semi-annually, or Annually. This Agreement shall automatically renew for an additional, successive 1 month, 6 month, or 1 year term/s (each a "Renewal Term," the Initial Term and any Renewal Terms collectively referred to herein as the "Term" of this Agreement). Florisoft may terminate this Agreement immediately upon Customer's material breach of this Agreement, including but not limited to, Customer's failure to timely pay any Fees due. Upon termination, Florisoft shall immediately cease providing access to the Services and Customer shall immediately pay any and all amounts due for all Services rendered through the date of termination.
6. Suspension of Service. Florisoft reserves the right to suspend Customer’s access to the Services or terminate this Agreement if (a) Customer is in material breach of the Agreement and, in Florisoft’ sole judgment, an immediate restriction or suspension is necessary to protect the Florisoft Services or Florisoft’ ability to provide services to other customers; or (b) Customer’s account is unpaid.
7. Termination by Either Party. Either party may terminate this Agreement if the other party (a) terminates or suspends its business activities; (b) becomes insolvent, admits in writing its inability to pay debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to control of a trustee, receiver or similar authority; or (c) becomes subject to any bankruptcy or insolvency proceeding, or proceeding involving the protection of or from its creditors, that is not dismissed within 60 days.
8. Reconnection and Data Retention. Florisoft reserves the right to impose a reconnection fee in the event Customer is suspended and thereafter request access to the Services. Customer acknowledges and agrees that Florisoft has no obligation to retain its data when an account is suspended or after expiration or termination of this Agreement, and that such data may be irretrievably deleted if Customer’s account is suspended or terminated for any reason.
9. Prohibited Uses and Termination by Florisoft. It shall be deemed a material violation of this Agreement if Customer, directly or through a third party: (a) disseminates malware or other malicious or damaging code (even if unintentionally malicious); (b) creates a new account to use the Services after Florisoft has terminated this Agreement or Customer's account for any reason; or (c) engages in any action or practice that reflects poorly on Florisoft or otherwise disparages or damages Florisoft reputation or goodwill, as determined in the sole discretion of Florisoft. The existence of Florisoft’ right to terminate Customer’s use of the Services and this Agreement for material violations of this Agreement shall not preclude Florisoft’ exercise of any other rights and remedies which Florisoft may have at law or in equity.
10. Software License. During the term of the Agreement, Florisoft grants Customer a non-exclusive, non-sublicensable, limited license to access the Services for the purposes provided under this Agreement. This license shall immediately terminate upon termination of this Agreement or suspension of Customer’s account.
11. Content. All information or material accessible as part of, or through, the Services (including but not limited to any and all content uploaded by Customer, if any) (the "Content") is the sole responsibility of the person from whom such material originated. All Content may be protected by intellectual property rights, which are owned by the provider of the Content (or by third parties). Customer agrees that it will not upload, modify, distribute, copy, sell, or create derivative works based on Content not owned by Customer. Customer acknowledges and agrees that: (a) Florisoft and its licensors own all legal, right, title, and interest in and to the Services, and to the content created by Florisoft and its licensors, including any intellectual property rights which subsist in the Services, including any trademarks, copyrights, and the goodwill associated therewith (whether those rights happen to be registered or not, and wherever in the world those rights might exist) ("Florisoft IP") and that should Customer ever acquire any right, title, or interest in Florisoft IP, Customer shall assign all such right, title, or interest to Florisoft or its licensor immediately upon request; and (b) that Florisoft is in no way responsible for, nor shall have any liability related to, any content which is not created by Florisoft.
13. Customer Representations and Warranties. Customer represents and warrants that: (a) all information provided to Florisoft is true, accurate, correct, and complete; (b) it has the power and authority to enter into this Agreement; (c) its performance of its obligations hereunder does not violate any agreement Customer may have with any third party; and (d) Customer is responsible for all activity occurring under its account(s). Customer shall notify Florisoft immediately of any unauthorized use of its account.
14. Confidentiality. The term “Confidential Information” means any material disclosed to Customer by Florisoft that Florisoft does not disclose to the public, trade secrets, or information designated in writing as confidential. Customer agrees that it will not disclose the Confidential Information to any third party and that this Agreement shall be deemed Confidential Information. Customer further agrees that the Services and all proprietary information and trade secrets related thereto, are Confidential Information of Florisoft, regardless of whether or not the same are identified as "Confidential."
15. Indemnity. Customer agrees to indemnify, defend, and hold harmless Florisoft, from and against any action brought against Florisoft, by any third party, with respect to any claim, demand, cause of action, debt, or liability, including reasonable attorneys' fees, to the extent that such action is based upon, or in any way related to Customer's breach of any of its representations, warranties, or covenants contained herein, or based on Customer's use of the Services, including without limitation, Customer's uploading of any Content in use of the Services.
16. Limitation on Liability; Disclaimer of Warranties. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, FLORISOFT HAS NO LIABILITY TO CUSTOMER OR ANY THIRD PARTY. IN NO EVENT WILL FLORISOFT BE LIABLE FOR ANY CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, INDIRECT, OR SPECIAL DAMAGES, ARISING FROM OR IN ANY WAY RELATED TO, THIS AGREEMENT, EVEN IF FLORISOFT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, FLORISOFT MAKES NO WARRANTIES HEREUNDER, AND EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. Customer recognizes that the internet consists of multiple participating networks that are separately owned and not subject to Florisoft’ control. Customer agrees that Florisoft shall not be liable for damages incurred or sums paid when the services are temporarily or permanently unavailable due to malfunction of, or cessation of, internet services by network(s) or internet service providers not subject to Florisoft’ control, or for transmission errors in, corruption of, or the security of information carried on such networks or internet service providers or as a result of the disconnection from or unavailability of any network.
17. Calculation and Taxation. Customer agrees that it is solely responsible for calculating and verifying all amounts that are listed on its invoices and that it charges to its customers. Customer further agrees that it is solely responsible for calculating, collecting, and remitting all sales and other taxes charged on products and services that it provides to its customers. Complying with all applicable laws relating to Customer’s business and its transactions with its customers is Customer’s sole and exclusive responsibility. Customer agrees to indemnify, defend, and hold harmless Florisoft from and against all claims, demands, causes of action, debts, and liabilities, including reasonable attorneys’ fees, that arise from Customer or any third party bringing a claim against Florisoft relating to amounts that Customer charges or the collection and payment of any taxes by Customer. FLORISOFT UNDERTAKES NO RESPONSIBILITY FOR ANY OF THE MATTERS REFERENCED IN THIS PARAGRAPH, NOR DOES IT MAKE ANY REPRESENTATION, WARRANTY, OR COVENANT REGARDING CALCULATION OF FEES AND TAXES, ALL OF WHICH ARE EXPRESSLY DISCLAIMED BY FLORISOFT AND WAIVED BY CUSTOMER.
18. Survival. The provisions of paragraphs 8 through 25 shall survive termination of this Agreement.
19. Acknowledgment. Customer acknowledges and agrees that: (1) it has read and understood this Agreement; (2) the terms of this Agreement are fair, reasonable, and not unduly restrictive; and (3) Customer has had the opportunity to confer with legal counsel of its choosing regarding this Agreement prior to executing same.
20. Entire Agreement. This Agreement comprises the entire understanding between the parties with respect to, and supersedes any prior understanding or agreement, oral or written, relating to, the subject matter hereof. A writing signed by both parties may only amend this Agreement.
21. Notices. All notices and other communication between the parties subject to this Agreement shall be in writing, shall be addressed to the receiving party's email address as listed above or as a party may designate by notice hereunder, and shall be deemed to have been given at the time that receipt thereof has been acknowledged by electronic confirmation.
22. Severability. Any term or provision of this Agreement that is deemed invalid or unenforceable by a court of competent jurisdiction shall be ineffective to the extent of such invalidity or un-enforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement. If any provision of this Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable.
23. Waiver. Failure by any party at any time to require performance by another party or to claim a breach of any provision of this Agreement will not be construed as a waiver of any right accruing under this Agreement, nor affect any subsequent breach, nor affect the effectiveness of this Agreement or any part hereof, nor prejudice any party as regards any subsequent action.
24. Governing Law; Jurisdiction; Venue. Delhi, without regard to conflicts of laws, shall govern this Agreement. Any proceeding arising out of the parties' relationship shall be brought exclusively in the courts of Delhi. Either party may, as a matter of convenience, request the other to execute the Agreement some place other than the Delhi. In exchange for such convenience, each party hereby knowingly and voluntary waives any defense it may have to jurisdiction and venue of any action brought on this Agreement, and irrevocably consents and submits to the jurisdiction of, and venue in, the aforementioned courts, and further waives any claim that a proceeding brought therein has been brought in an inconvenient forum.
Last Updated 01/02/2021