This legally binding agreement (the "Agreement") between Floreta Design Technologies Private Limited (“Floreta”), having its registered office at 612, Surya Kiran Building, 19 Kasturba Gandhi Marg, Connaught Place, New Delhi-110001, India and entity identified in its respective Account (“User”) governs the terms and conditions of the User’s registration on the Portal and use of the Portal by the User.
Hereinafter, Floreta and User are individually referred to as “Party” and collectively as “Parties”.
NOW THEREFORE, in consideration of the foregoing, of the mutual covenants and agreements herein contained the receipt and sufficiency of which is hereby acknowledged, the Parties hereto, intending legally to be bound, hereby agree as follows:
- DEFINITIONS AND INTERPRETATION
1.1 Definitions: In this Agreement, unless repugnant or contrary to the context hereof, the following terms, when capitalized, shall have the meanings assigned herein when used in this Agreement. When not capitalized, such words shall be attributed their ordinary meaning.
“Account” refers to the account created by the User on the Portal by providing Registration Details in order to access/make use of the Services;
“Affiliates” means with respect to any Party any company directly or indirectly controlling, controlled by or under common Control with, that Party. It stands clarified that for Floreta, the term Affiliates shall include any company/ entity that is specifically established to undertake the operations of the Portal;
“Agreement” means this Agreement with all its annexures, schedules and any amendment hereto, and the terms “hereof”, “herein”, “hereby”, “hereto” and derivative or similar words refer to this entire Agreement;
“Business Day(s)” means days on which banks are open for business in New Delhi, but excludes weekends, and public holidays notified by the Government of India from time to time;
“Confidential Information” means all non-public information that this Agreement or a Party designates as being confidential, or which, under the circumstances of disclosure ought to be treated as confidential and it includes, without limitation, the terms and conditions of this Agreement, information relating to the financial and accounting books and records, marketing or promotion, business policies or practices, customers, potential customers or suppliers of information, trade secrets, source codes, documentation, technology, or information received from others that a Party is obligated to treat as confidential;
“Data” has the meaning ascribed to it in the definition of Server herein;
“Event of Default” occurs if any of the following events occur:
(i) if either Party:
- breaches any material provision of this Agreement or refuses to comply with any provisions of this Agreement; and
- commits a material breach of this Agreement and such material breach is not cured by the breaching Party within 30 (thirty) days of having been given notice in writing specifying the breach and requiring it to be remedied provided such material breach is capable of being remedied;
(ii) if a Party makes any unauthorized use or disclosure of any Confidential Information;
(iii) if either Party repudiates this Agreement; or
(iv) if either Party:
- files a voluntary petition for bankruptcy;
- files a petition and a resolution is passed for a voluntary winding up;
- files a petition and a resolution is passed for a creditors winding up;
- makes an application for the appointment of an examiner;
- is adjudged bankrupt;
- files for appointment of a trustee or receiver by a court for all or a substantial portion of the assets of the other;
- becomes insolvent or suspends its business; and
- makes an assignment of its assets for the benefit of its creditors except as required in the ordinary course of business.
“Force Majeure” means a circumstance which could not be reasonably foreseen, which is beyond the reasonable control of the Parties and which results in a Party being unable to observe or perform on time an obligation under this Agreement. Such circumstances shall include but shall not be limited to acts of God, epidemics, lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disaster; decrees or restraints by governmental authorities, acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution; network downtime and strikes;
“Intellectual Property Rights” means any and all now known or hereafter known tangible and intangible (a) rights associated with works of authorship throughout the universe, including but not limited to copyrights, moral rights, and mask works (b) trade mark and trade name rights and similar rights (c) trade secret rights (d) patents, design, algorithms and other industrial property rights (e) all other intellectual and industrial property rights (of every kind or nature throughout the universe and however designated) including “logos” “rental” rights and rights to remuneration, whether arising by operation of law, contract, license or otherwise and (f) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues here now or hereafter in force (including any rights in any of the foregoing);
“Products” refers to products hosted at Floreta for sale to the Users;
“Payment Gateway” refers to an online payment gateway services provider appointed by Floreta to provide payment gateway services on the Portal to facilitate the collection of payments for Floreta;
“Portal” refers to Floreta’s web portal “www.floreta.in” and its’ corresponding application for other electronic devices in order to register with the Services, receives information feed from the Server and facilitates the User’s purchases and making online payments for such purchases through a payment gateway provider;
“Services” refers to Floreta’s programme for availing the services provided at the Portal and facilitating online payments for the purchases made thereof;
“Registration Details” has the meaning ascribed to it in clause 2.1(a);
“Server” refers to Floreta’s proprietary server where information relating to the Users and otherwise is stored, monitored and analyzed by Floreta (“Data”) shall be stored;
“Floreta” means Floreta Design Technologies Private Limited;
“Floreta Properties” means any web site, application or online point of presence, on any platform, that is owned or operated by or under license by Floreta or co-branded with Floreta, and any web site, application, device or online point of presence through which any Floreta Properties or products available on them are syndicated, offered, merchandised, advertised or described;
“Term” shall have the meaning ascribed to it in clause 6.1; and
“User” means the individual or the entity registering the Account on the Portal and consequently participating in the Services.
- In this Agreement, unless the context requires otherwise:
- Reference to the singular includes a reference to the plural and vice versa;
- Reference to any gender includes a reference to all other genders;
- Reference to an individual shall include his legal representative, successor, legal heir, executor and administrator;
- Reference to any statute or regulation made using a commonly used abbreviation shall be construed as a reference to the title of the statute or regulation; and
- Reference to any clause, Clause, section, schedule, annexure or appendixes, if any, shall be deemed to be a reference to an clause, a Clause, a section, schedule, annexure or appendix of or to this Agreement.
- Headings in this Agreement are inserted for convenience only and shall not be used in its interpretation.
- Any word or phrase defined in the body of this Agreement as opposed to being defined in clause 1.1 above shall have the meaning assigned to it in such definition throughout this Agreement, unless the contrary is expressly stated or the contrary clearly appears from the context.
- If any provision in clause 1 is a substantive provision conferring rights or imposing obligations on any Party, effect shall be given to it as if it were a substantive provision in the body of this Agreement.
- When any number of Business Days is prescribed in any document, same shall be reckoned exclusively of the first and inclusively of the last day unless the last day does not fall on a Business Day, in which case the last day shall be the next succeeding day which is a Business Day.
- The use of the word "including" followed by a specific example/s in this Agreement shall not be construed as limiting the meaning of the general wording preceding it.
- The rule of construction, if any, that a contract should be interpreted against the Parties responsible for the drafting and preparation thereof shall not apply.
- The recitals, schedules, annexes, appendices, if any, to this Agreement shall be deemed to be incorporated in and form an integral part of this Agreement.
- Reference to any agreement, deed, document, instrument, rule, regulation, notification, statute or the like shall mean a reference to the same as may have been duly amended, modified or replaced. For the avoidance of doubt, a document shall be construed as amended, modified or replaced only if such amendment, modification or replacement is executed in compliance with the provisions of such document(s).
- REGISTRATION / ACCOUNT
- The User shall register and maintain an active Account in order to participate in the Services, and with respect to the same:
- shall provide required information for registration on the Portal, including all personal information, as requested, and update the same as and when applicable (“Registration Details”);
- shall be solely responsible for safeguarding and maintaining the confidentiality of its Account username and password and for all activities that occur under its Account;
- shall not permit any third party to use the Services through its Account and will not use the Account of any third party; and
- shall immediately notify Floreta of any unauthorized use of its username, password or Account.
- The User shall avail the Services through the Portal. User undertakes to only utilize the Platform in accordance with the terms and conditions hereof and for no other purpose whatsoever.
- The Registration Details and the Data shall be treated as Confidential Information and Floreta shall treat it as such.
For products shipped internationally, please note that any manufacturer warranty may not be valid; manufacturer service options may not be available; product manuals, instructions and safety warnings may not be in destination country languages; the products (and accompanying materials) may not be designed in accordance with destination country standards, specifications, and labeling requirements; and the products may not conform to destination country voltage and other electrical standards (requiring use of an adapter or converter if appropriate). You are responsible for assuring that the product can be lawfully imported to the destination country. When ordering from the Platform, the recipient is the importer of record and must comply with all laws and regulations of the destination country.
- Floreta retains all ownership rights in and to the copyrights and all other rights and interests in and to the Services, the Floreta Properties, and any materials provided to User for use relating to the Services.
- Floreta will be responsible for, and will have full discretion with respect to the terms, features, and operation of the Services and the Floreta Properties and related marketing, but the Data will be subject to the terms of this Agreement and shall be kept confidential.
- This Agreement does not grant User any license or other rights to or in any intellectual property, Intellectual Property Rights or technology owned or operated by Floreta or any of its Affiliates, including, without limitation, any trademarks or trade names. Nothing in this Agreement restricts any rights Floreta may have under applicable law or otherwise.
All merchandise purchased from Floreta or Merchant is made pursuant to a shipment contract. This means that the risk of loss and title for such items pass to you upon our delivery to the carrier.
Floreta attempts to be as accurate as possible. However, Floreta does not warrant that product descriptions or other content of any Floreta Service is accurate, complete, reliable, current, or error-free. If a product offered by Floreta itself is not as described, your sole remedy is to return it in unused condition.
Except where noted otherwise, the price or suggested price displayed for products on the Site or Applications represents the full retail price listed on the product itself, suggested by the manufacturer or supplier, or estimated in accordance with standard industry practice; or the estimated retail value for a comparably featured item offered elsewhere. Where an item is offered for sale by one of our Merchants, the list price or suggested price may be provided by the Merchant.
Product specifications, prices and quantity are subject to change. With respect to items sold by Floreta, we cannot confirm the price of an item until you order. Despite our best efforts, a small number of the items in our catalog may be mispriced. If the correct price of an item sold by Floreta is higher than our stated price, we will, at our discretion, either contact you for instructions before shipping or cancel your order and notify you of such cancellation. Other merchants may follow different policies in the event of a mispriced item. From time to time, we may offer coupon codes or rebates as a form of purchase. All purchases paid with a coupon code or rebate are final sale and may not be returned. Terms of coupon codes and rebates are subject to change in the sole discretion of Floreta and may be altered without notice.
We generally do not charge your credit card until after your order has entered the shipping process. Products offered for sale on the Site or Applications may be limited to stock and while supplies last. Product offerings are available for end users only. Not available to distributors, dealers or resellers, as determined by Floreta.
Parties other than Floreta may operate stores, provide services, or sell product lines on the Site or through the Applications. In addition, we provide links to the sites of affiliated companies and certain other businesses. We are not responsible for examining or evaluating, and we do not warrant the offerings of, any of these businesses or individuals or the content of their websites. Floreta does not assume any responsibility or liability for the actions, product, and content of all these and any other third parties. You should carefully review their privacy statements and other conditions of use.
Floreta does not take title to returned items until the item arrives at our designated fulfillment center. Customer Merchandise returns will issued credit toward the Site, exclusive of shipping fees. Shipping shall not be credited upon return of Merchandise. At our discretion, a credit may be issued without requiring a return. In this situation, Floreta does not take title to the refunded item.
The Site and Services are intended solely for persons who are 18 or older. Any access to or use of the Site or Services by anyone under 18 is expressly prohibited. By accessing or using the Site, Applications or Services you represent and warrant that you are 18 or older.
- The User understands that the Data reflected on the Portal shall be as stored at the Server. The Payment Gateway will solely be responsible for processing payments and payment collection. However, Floreta shall provide all related User services.
- Floreta shall establish appropriate arrangements with the Payment Gateway to permit the User to make online payments.
- The User understands and agrees that once the product is sold through the Platform, then there is no refund policy; and Payment Gateway shall charge a transaction fee for every payment made through the Services.
- Floreta shall be responsible for generating an invoice after a successful online payment and email the same to the Users based upon the information received through the Payment Gateway. Floreta shall never be held responsible with respect to any aspect of billing or payments made through the Services; however, in case of any issues or conflict regarding any such payments, the User may contact Floreta’s User help-desk.
- The User recognizes that the Portal may be unavailable for certain periods of time, inter alia for maintenance, repairs, updation etc., without any liability to either Party. Whilst Floreta will endeavor to give prior notice for such unavailability, the User agrees that such prior notice may not always be possible.
- The User understands that as per law, they are prohibited to host, display, upload, modify, publish, transmit, update or share any information that –
- belongs to another person and to which the User does not have any right to;
- is grossly harmful, harassing, blasphemous defamatory, obscene, pornographic, paedophilic, libellous, invasive of another's privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever;
- harm minors in any way;
- infringes any patent, trademark, copyright or other proprietary rights;
- violates any law for the time being in force;
- deceives or misleads the addressee about the origin of such messages or communicates any information which is grossly offensive or menacing in nature;
- impersonate another person;
- contains software viruses or any other files programs designed to interrupt, destroy or limit the functionality of any computer resource; or
- threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states, or public order or causes incitement to the commission of any cognisable offence or prevents investigation of any offence or is insulting any other nation.
- User help-desk(s) shall be made available / installed in order to assist the Users by handling complaints, queries, enquires, etc., details of which are provided at the Portal. The User help-desk may require and shall have unfettered rights to access Data for analysis or troubleshooting customer reported problems or suggesting any recommendations.
- By accepting the terms and conditions mentioned herein, the User authorizes Floreta to intercept, monitor and decrypt any Data and/or information provided by the User at the Portal.
If you decide to use an Application, subject to your compliance with these Terms, Floreta grants you a limited non-exclusive, non-transferable, revocable license, without the right to sublicense, for you to install, access and use such Application on a mobile device that you own or control, solely for your personal and non-commercial purposes. Floreta reserves all rights in the Applications not expressly granted to you by these Terms.
Subject to your compliance with these Terms, Floreta grants you a limited, non-exclusive, non-transferable license, without the right to sublicense, to access, view, download and print any Floreta Content solely for your personal and non-commercial purposes. Subject to your compliance with these Terms, Floreta grants you a limited, non-exclusive, non-transferable license, without the right to sublicense, to access and view any Member Content solely for your personal and internal business purposes. You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Site, Applications, Services, or Site Content except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Floreta or its licensors, except for the licenses and rights expressly granted in these Terms.
We may permit Members to post, upload, publish, submit or transmit Member Content. Floreta does not claim any ownership rights in any Member Content and nothing in these Terms restricts any rights that you may have to use and exploit any Member Content. By making available any Member Content through the Site, Applications or Services, you grant Floreta a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such Member Content only on, through or by means of the Site, Applications or Services.
You are solely responsible for all Member Content that you make available through the Site, Applications and Services. You represent and warrant that you are the sole owner of all Member Content that you make available through the Site, Applications and Services or you have all rights, licenses, consents and releases necessary to grant to Floreta the rights in such Member Content, as contemplated under these Terms. You also represent and warrant that neither the Member Content nor your posting, uploading, publication, submission or transmittal of the Member Content or Floreta’s use of the Member Content will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
Members may post comments and other content so long as the content is not illegal, obscene, threatening, defamatory, invasive of privacy, infringing of intellectual property rights, or otherwise injurious to third parties or objectionable and does not consist of or contain software viruses, political campaigning, commercial solicitation, chain letters, mass mailings, or any form of "spam." You may not use a false e-mail address, impersonate any person or entity, or otherwise mislead as to the origin of a card or other content. Floreta reserves the right (but not the obligation) to remove or edit such content, but does not regularly review posted content.
You agree not to do any of the following, either directly or indirectly:
- Post, upload, publish, submit, provide access to or transmit any Content that:
- i.infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy.
- ii.violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability.
- iii.is fraudulent, false, misleading or deceptive.
- iv.is defamatory, obscene, vulgar or offensive, pornographic or contains nudity.
- v.promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group.
- vi.is violent or threatening or promotes violence or actions that are threatening to any other person.
- vii.promotes illegal or harmful activities or substances.
Floreta reserves the right, at any time and without prior notice, to remove or disable access to any Site Content that Floreta, at its sole discretion, considers to be objectionable for any reason, in violation of these Terms or otherwise harmful to the Site, Applications or Services.
- Notwithstanding anything to the contrary elsewhere, it stands clarified that all taxes applicable in relation to the services envisaged hereunder, including service tax, shall be borne by the User. Specifically, Floreta will charge and collect service tax on the online payments to be deposited by Floreta with the government.
You agree to defend, indemnify, and hold Floreta, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with:
- i.Your access to or use of the Site, Applications, Services or Site Content,
- ii.Your Member Content
- iii.Your violation of these Terms.
- The term of this Agreement will begin upon its acceptance by the User and will continue until terminated in accordance with the terms hereof (“Term”).
- Either Party may terminate this Agreement:
- by providing to the other a written notice of 30 (thirty) Business Days to remedy an Event of Default; or
- in the event of a breach by the other of representations and or warranties made hereunder.
- Upon the completion of the Expiry Period, Floreta may delete / terminate such Account without any liability. If the User wishes to continue to use the Portal, using the Services following such termination, he / she / it may register a new Account. It stands clarified that Floreta will not provide any Meter read Data and services as under the Subscription to the User after Expiry Period.
- Following the conclusion or termination hereof, Floreta will have the right but not the obligation to continue to maintain copies of the Data, if it is required for functional requirements. However, the Data shall always be treated as Confidential Information.
- The Services is provided on an “as is” basis. Floreta will in no event be liable for any loss of data, loss of profits, cost of cover or other special, incidental, consequential, indirect, exemplary or reliance damages arising from or in relation to this Agreement.
- Notwithstanding anything to the contrary elsewhere, in no event shall the cumulative liability of Floreta exceed 10% of the pro-rated consideration paid for one-year it receives hereunder preceding the claim.
- Floreta specifically disclaims with respect to all services, software, programmes or products provided by it in connection with this Agreement, all warranties, expressed or implied, including but not limited to the implied warranties of Usability, fitness for a particular purpose and non-infringement.
User acknowledges and agrees that Floreta cannot ensure that the Registration Details and Data will be protected from theft or misuse and Floreta will have no liability arising from a failure of any security system or procedure or any third party to comply with any Services usage rules.
- Floreta will have no liability arising from system or process failures, interruptions, inaccuracies, errors or latencies.
- This Agreement, its existence and all information and other material passing between the Parties shall be considered to be Confidential Information and shall not be disclosed to any person or third party without the prior written consent of the other Party. The obligations of confidentiality shall not extend to information which:
- is disclosed with the consent of the Party who supplied the information; or
- is required to be disclosed by any applicable law or any applicable regulatory requirements or by any regulatory body to whose jurisdiction the relevant Party is subject or with whose instructions it is customary to comply under notice to the other Party;
- is, at the date this Agreement, lawfully in the possession of the recipient of the information through sources other than the Party who supplied the information; or
- is generally and publicly available, other than as a result of breach of confidentiality by the Person receiving the information.
- Neither Party shall be liable for any delay or failure to perform its obligations pursuant to this Agreement if such delay is due to circumstances beyond its reasonable control including without limitation Force Majeure.
- If a delay or failure by a Party to perform its obligations due to Force Majeure exceeds 60 (sixty) Business Days, either Party may immediately terminate the Agreement by providing notice in writing to the other Party.
- The provisions of this Agreement will not be varied, except by agreement in writing signed by the Parties.
- Notwithstanding clause 10.1, the User shall abide by all the terms and conditions expressed on the Portal, as may be amended from time to time, and which shall take precedence over the terms hereof in the event of any conflict. The continued use of the Services by User, after Floreta posts the changes, will constitute User’s acceptance of any such changes. If User does not agree to the changes, then it must withdraw from the Services and close its Account followed by handing over of any Floreta Properties that he/ she/it may have in possession.
- The benefit of this Agreement is personal to both Parties and shall not be assigned by either Party without the prior written consent of the other Party.
- Notwithstanding anything contained in clause 11.1, Floreta may, upon written notice, assign this Agreement to its parent or a subsidiary or Affiliate, without the consent of the other Party, and further provided that the assignee company has the assets and facilities to carry out the Party’s obligations hereunder. However, the Parties reserve the right to decline carrying on business hereunder with such new entity in case of change in the constitution of the original Party.
- All disputes arising out of or in connection with this Agreement shall be finally settled by arbitration under the (Indian) Arbitration & Conciliation Act, 1996 and the rules framed thereunder, by a sole arbitrator appointed in accordance with the said rules. The arbitral proceedings shall be held at New Delhi. Subject to the foregoing the courts in New Delhi shall have exclusive jurisdiction over any matter related thereof. The language for arbitration shall be English. Both the Parties shall bear their respective costs.
- Nothing herein shall prevent a Party from seeking urgent equitable relief before an appropriate court.
This Agreement shall be construed and enforced in accordance with the laws of India, without regard to its conflicts of law principles.
If any provision of this Agreement is held invalid, unenforceable or illegal for any reason by a court of competent jurisdiction or other competent authority, the Agreement shall remain otherwise in full force apart from such provisions, which shall be deemed deleted.
This Agreement is the complete and exclusive statement of the agreement between the Parties relating to the subject matter hereof and supersedes all previous communications, representations and arrangements, written or oral.
- No right under this Agreement shall be deemed to be waived except by notice in writing signed by each Party.
- A waiver by a Party shall not prejudice its rights in respect of any subsequent breach of the Agreement by the other Party.
- Subject to clause 16, any failure by the Party to enforce any clause of this Agreement, or any forbearance, delay or indulgence granted by the Party to the other Party, will not be construed as a waiver of the Party’s rights under this Agreement.
- Subject to any provision to the contrary, this Agreement shall inure to the benefit of and binding upon the Parties and their successors or permitted assigns.
- The covenants, conditions and provisions of this Agreement, which are capable of having effect after the expiration of the Agreement, shall remain in full force and effect following the expiration of the Agreement.
Neither Party shall have nor represent that it has any right or authority to bind the other or to assume or create any obligation or responsibility under law expressed or implied on behalf of the other or in the name of the other unless provided in this Agreement.
Any notice or other writing required or permitted to be given under this Agreement (hereinafter called a “Notice”) shall be sufficiently given if delivered by hand to the Party to whom it is addressed or mailed by prepaid, registered airmail at the address specified below, or e-mailed to other Party with a proof that the message transmitted was displayed on the screen of the intended recipient provided however, that in the event that normal mail deliveries are interrupted by weather or labor disturbances, the Parties shall give notice by facsimile, telex or other written form of communication:
(a) In the case of Notice to Floreta:
Floreta Design Technologies Pvt Ltd
612 Surya Kiran Building , 19 KG Marg,
Connaught Place , New Delhi - 110001
(b) In the case of Notice to User, the Notice shall be sent at the address mentioned as per Registration Details.
20.1 Or at such other address as the Party to whom such Notice is to be given shall have last notified the Party giving notice.
20.2 Any Notice delivered by hand to the Party to whom it is addressed shall be deemed to have been given and received on the day of delivery.
20.3 Any Notice given by facsimile, telex, email or other written form of telecommunication shall be deemed to have been received on the Business Day following the date of transmission.
20.4 Any Notice mailed as aforesaid shall be deemed to have been given and received on the 5th Business Day following the date of its mailing.