This agreement is entered into between Flutterboots Services LLP (“Flutterboots” or “We”), a Limited Liability Partnership set up in India under the Limited Liability Partnership Act, 2008, having its registered office at "Block No. 39/40, Behind Shakti Mata Bar and Restaurant, Amargol, Hubballi, Karnataka, 560025, India." and the Customer (“Customer” or “You”), who uses the Services of Flutterboots.
Capitalized terms used in this Agreement, shall have the meanings indicated in this Clause 1. Capitalized terms not defined in this Clause 1 shall have the meanings assigned to them in the other parts of this Agreement where indicated. Any term not defined in this Agreement herein shall have a meaning as is commonly understood and interpreted by the Courts in India and consonant with the spirit of this Agreement.
- “Agreement” shall mean this Agreement, and includes the Recitals and Exhibits to this Agreement, and any amendments to this Agreement effected in accordance with the terms of this Agreement.
- “Affiliate(s)” means:
- in relation to a Person other than an individual, any other Person that directly or indirectly controls, is controlled by or is under common control with the Person; where “control” means (a) the ownership of 50% or more of the voting rights, share capital or other equity interests of such Person; or (b) through contractual or other arrangements, the power to direct the management or policies of a Person, to direct the shareholders’ meeting, to appoint more than half of the members of the board of directors or similar governing body of such Person; and
- in relation to an individual, any Relative of such individual.
- “Applicable Law” means all statutes, enactments, acts of legislature or parliament, laws, by-laws, rules, regulations, notifications, circulars, orders, ordinances, codes, guidelines, policies, notices, directions and judgments or other requirements of any Governmental Authority in any relevant jurisdiction, as applicable to the Party concerned.
- “Confidential Information” means all information disclosed by one of us to the other, whether before or after the effective date of the Agreement, that the recipient should reasonably understand to be confidential, including: (i) unpublished prices and other terms of service, audit and security reports, product development plans, nonpublic information of the parties relating to its business activities or financial affairs, data center designs (including non-graphic information you may observe on a tour of a data center), server configuration designs, and other proprietary information or technology, and (ii) information that is marked or otherwise conspicuously designated as confidential. Information that is developed by Flutterboots on its own, without reference to the other's Confidential Information, or that becomes available to Flutterboots other than through violation of the Agreement or applicable law, shall not be “Confidential Information” of the other party. Confidential Information shall not include Customer Data.
- “Customer” means any Person who agrees to avail Services from Flutterboots in accordance with the terms of this Agreement.
- “Customer Data” means all data, records, files, input materials, reports, forms and other such items that are received, stored, or transmitted using the Services.
- “Execution Date” shall mean the date of execution of this Agreement or the Acceptance of this Agreement by either of the following actions taken by You:
- Signing a hard copy of this Services Agreement, a copy of which is delivered to Flutterboots in original or photocopy or in any other manner, or
- Clicking on the “Agree” button, or
- Using the Services provided by Flutterboots.
By performing any of the actions mentioned above or on Execution Date, You acknowledge that You have read this Agreement and you fully understand the same and agree to be bound by it.
- “Governmental Authority” means any government authority, regulatory authority, statutory authority, government department, agency, commission, board, tribunal or court or other Applicable Law, rule or regulation making entity having or purporting to have jurisdiction in India or any state or other subdivision thereof or any municipality, district or other subdivision thereof.
- “Licenses” shall mean the Licenses and any related registrations relating to the provision of Services under this Agreement.
- “Loss(es)” shall include actual and direct loss, demands, complaints, grievances, actions, suits, causes of action, orders, charges, penalties, proceedings, or other similar process, assessments or reassessments, debts, liabilities, claims, expenses, costs, damages contingent or otherwise, reasonable professional fees (including fees of legal counsel) and all direct costs incurred in investigating or pursuing any of the foregoing. For the avoidance of doubt, “Losses” shall exclude any remote, indirect or consequential losses.
- “Order” means a Purchase Order or an email or any other document which has the effect of requesting for the Services under this Agreement.
- “Parties” means the parties to this Agreement, ie Flutterboots and the Customer, who individually shall be referred to as “Party”.
- “Person” means any individual, joint venture, company, corporation, partnership (whether limited or unlimited), proprietorship, trust or other enterprise (whether incorporated or not), union, association, and shall include their respective successors and in case of an individual shall include his/her legal representatives, administrators, executors and heirs and in case of a trust shall include the trustee or the trustees for the time being.
- “Purchase Price” shall mean such amount as may be paid by the Customer to Flutterboots under this Agreement.
- “Services” means the software and services described in the Order and includes any services which you self-provide through our website or which you utilize via an API, including email verification services.
- “Tax” or “Taxes” shall mean all taxes, levies, duties, imposts, charges and withholding of any nature whatsoever, however denominated, including any interest, penalties or additions to tax that may become payable in respect thereof, imposed by any governmental body, which taxes shall include, without limiting the generality of the foregoing, all income taxes, sales and use taxes, service taxes, excise taxes, gross receipts taxes, occupation taxes, real and personal property taxes, stamp duty, customs duty, cess, surcharge and other obligations of the same or a similar nature.
- “Terms of Service” means the terms and conditions (whether included in this Agreement or displayed on the website or otherwise notified) subject to which the Services would be rendered under this Agreement.
- For purposes of this Agreement, the words “hereof”, “herein”, “hereby” and other words of similar import refer to this Agreement as a whole.
- The language hereof will not be construed for or against either Party. A reference to a section or exhibit will mean a section in, or an exhibit to, this Agreement, unless otherwise explicitly set forth. The titles and headings in this Agreement are for reference purposes only and will not in any manner limit the construction of this Agreement. For the purposes of such construction, this Agreement shall be considered as a whole
- Provision of Services
Upon the execution date and during the term of this Agreement, Flutterboots agrees to provide Services to the Customer or You in accordance with the terms and conditions laid down in this Agreement, subject to the Customer paying Flutterboots for the Services subscribed by the Customer at the prescribed rates.
- Payment for the Services
- The rates for the Services shall be prescribed and agreed upon by Flutterboots with the Customer. The Services shall be rendered by Flutterboots to the Customer only on the Customer making the payment as per the agreed rate in full prior to availing the Services.
- Flutterboots may suspend all Services (including Services provided pursuant to any unrelated Order or other agreement it may have with You) if its charges or payment is rejected for any reason (such as refusal by credit card company, etc). Flutterboots may charge interest on overdue amounts at 2% per month. If any amount is overdue by more than thirty (30) days, and Flutterboots brings a legal action to collect, or engages a collection agency, You will be liable to pay Flutterboots’ reasonable costs of collection, including attorney fees and court costs. All fees are stated and will be charged in INR. Charges that are not disputed within three (3) days of the date charged are conclusively deemed accurate. You must provide Flutterboots with accurate factual information to help Flutterboots determine if any tax is due with respect to the provision of the Services, and if Flutterboots is required by law to collect taxes on the provision of the Services, you must pay Flutterboots the amount of the tax that is due or provide satisfactory evidence of your exemption from the tax.
- Flutterboots reserves the right to increase the fees for any Services that are provided on a month-to-month term and shall intimate the Customer of such fee increase in writing over email or any other mode. Flutterboots shall give an advance notice of thirty (30) days before the fee increase can take effect.
- Customers’ Covenants, Representations and Obligations
- You will comply with all the applicable laws while availing the Services from Flutterboots.
- You will not use the Services for posting/ sending unauthorized commercial communications (such as spam).
- You will not access or collect any Confidential Information or other information including any Customer Data belonging to Flutterboots or any of its Customers, using any means including automated means (such as harvesting bots, robots, spiders, or scrapers).
- You will not engage in unlawful multi-level marketing, such as a pyramid scheme, etc.
- You will not send or upload viruses or other malicious code.
- You will not use the Services that in any manner can be construed to be unlawful, illegal, misleading, malicious, or discriminatory under any of the laws for the time being in force, especially under the Information Technology Act, 2000.
- You will not provide any false personal information at the time of availing the Services from Flutterboots.
- You represent that you are in a position to legally enter into a contract to bind yourself to the terms and conditions of this Agreement and that you are not barred from entering into this Agreement under any law for the time being in force.
- You will exercise appropriate care and caution while availing the Services from Flutterboots and will not share your password, let anyone else access your account or do anything else that might jeopardize the security of your account.
- You will not use our copyrights or Trademarks or any confusingly similar marks, except as expressly permitted by Flutterboots or with our prior written consent.
- You agree to do each of the following:
- pay when due the fees for the Services,
- use reasonable security precautions in light of your use of the Services, including encrypting any PII transmitted to and from, and while stored on, the Services (including the underlying servers and devices),
- cooperate with Flutterboots’ reasonable investigation of outages, security problems, and any suspected breach of the Agreement,
- keep your billing contact and other account information up to date, immediately notify Flutterboots of any unauthorized use of your account or any other breach of security. In the event of a dispute between the Customer and Flutterboots regarding the interpretation of applicable law or this Agreement, Flutterboots’ reasonable determination/ interpretation shall apply.
- Customer Data Security: In addition to the foregoing obligations, you acknowledge that you are solely responsible for taking steps to maintain appropriate security, protection and backup of Customer Data. Flutterboots’ does not have any security obligations with respect to Customer Data. Further, Flutterboots makes no other representation regarding the security of Customer Data. Customer is solely responsible for determining the suitability of the Services in light of the type of Customer Data used with the Services.
- Access to the Services
You may access the Services via the online Flutterboots control panel, via SMTP, or via Flutterboots API. Flutterboots may modify the Flutterboots website or APIs at any time, or may transition to new API's.
- Suspension of Services
We may suspend the Services without liability if:
- We reasonably believe that the Services are being used (or have been or will be used) in violation of the Agreement,
- We discover that You are, or are affiliated in any manner with, a person who has used similar services abusively in the past,
- You don't cooperate with our reasonable investigation of any suspected violation of the Agreement,
- We reasonably believe that the Services have been accessed or manipulated by a third party without your consent,
- We reasonably believe that suspension of the Services is necessary to protect our network or our other customers,
- a payment for the Services is overdue for any reason,
- suspension is required by law.
- We will give you reasonable advance notice of a suspension under this paragraph and a chance to cure the grounds on which the suspension are based, unless We determine, in our reasonable commercial judgment, that a suspension on shorter notice or no notice is necessary to protect Flutterboots or our other customers from imminent and significant operational or security risk. If the suspension was based on your breach of your obligations under the Agreement, then we may continue to charge You the fees for the Services during the suspension, and may charge You a reasonable reinstatement fee upon reinstatement of the Services.
- Restrictions on Use
- You agree that You shall not reverse engineer, decompile, copy or disassemble the Services. You shall not modify, or create derivative works based upon, the Services in whole or in part. You shall not resell, lease, rent, transfer, sublicense, or otherwise transfer rights to the Services. You shall not use our Services to perform competitive analysis. You shall not create more than one free account. You shall not attempt to interfere with the Services. Any use in violation of this Section shall immediately terminate your license to use the Services.
- Acceptable Use
- You agree on behalf of yourself and your Authorized Users that you will not use the Services for any of the following purposes. If you do, We may immediately suspend or limit the Services, or terminate the applicable license and services agreement without further liability or obligation to you, in addition to any other remedies that We may have.
- Using the Services in a way that has a detrimental effect upon Flutterboots, its customers or the Services, as determined by Flutterboots in its sole discretion
- Attempting to use the Services in contravention of the terms of this Agreement
- Committing or attempting to commit a crime or facilitate the commission of any crime or other illegal or tortious act
- Using the Services for any unlawful, invasive, infringing, defamatory or fraudulent purpose
- Using the Services for purposes directly or indirectly relating to the sending of unsolicited bulk commercial email ("Spam") of any kind
- Using the Services to verify email address(es) obtained from a third party or obtained indirectly
- Using the Services to verify email address(es) of anyone who has not opted-in, or who has opted-out, of receiving email communications from you
- Using the Services to harvest email addresses or otherwise determine the existence of unknown email addresses
- Interfering with the use of the Services by Flutterboots’ customers or other Authorized Users
- Altering, tampering with or circumventing any aspect of the Services
- Testing or reverse engineering the Services in order to find limitations or vulnerabilities
- Resale of Services
You shall not resell the Services provided to You under this Agreement by Flutterboots or any other service provider on behalf of Flutterboots, without the express consent in writing of Flutterboots. In the event Flutterboots refuses to give its written consent for resale of Services by You, You agree that You shall not proceed to resale the Services. You also agree that if You proceed to resale the Services, You shall make good the actual and notional damages that Flutterboots has incurred.
- Intellectual Property Rights
You hereby agree that no Intellectual Property Rights are transferred or assigned to You, as part of the Services rendered to You. Flutterboots retains all right, title and interest in and to its trade secrets, inventions, copyrights, and other intellectual property. You specifically agree that during the performance of Services, if any intellectual property is developed by Flutterboots, the same shall belong to Flutterboots and You shall have no manner of right, title or interest over it.
- Limitation on Damages
Our obligations to You are defined by this Agreement. We are not liable to you for failing to provide the Services unless the failure results from our willful misconduct. Flutterboots (nor any of its employees, agents, affiliates or suppliers) is not liable to You for any lost profits or any other indirect, special, incidental or consequential loss or damages of any kind.
Notwithstanding anything in the Agreement to the contrary, the maximum aggregate monetary liability of Flutterboots and any of its employees, agents, suppliers, or affiliates in connection with the Services, the Agreement, and any act or omission related to the Services or Agreement, under any theory of law resulting from Flutterboots’ willful misconduct shall not exceed the lower of (i) the amount of fees you paid for the Services for the last one month prior to the occurrence of the event giving rise to the claim, or (ii) Rupees Ten Thousand only.
If We, our affiliates, or any of our or their respective employees, agents, or suppliers (the “Flutterboots Indemnitees”) are faced with a legal claim by a third party arising out of your actual or alleged negligence, willful misconduct, violation of law, failure to meet the security obligations required by the Agreement, violation of any of the terms of this Agreement or any Policy of Flutterboots, then You will pay the cost of defending the claim (including the actual attorney fees) and any damages award, fine, or other amount that is imposed on Flutterboots Indemnitees as a result of the claim. Your obligations under this Section include claims arising out of the acts or omissions of your employees, any other person to whom you have given access to the Services, and any person who gains access to the Services as a result of your failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorized by You. If You resell the Services albeit without authorisation, the grounds for indemnification stated above also include any claim brought by your customers or end users arising out of your resale of the Services. You must comply with our reasonable requests for assistance and cooperation in the defense of the claim. We may not settle the claim without your consent, although such consent may not be unreasonably withheld. You must pay expenses due under this Section as we incur them.
- Conditionalities to Services
- We do not promise that the Services will be uninterrupted, error-free, or completely secure. You acknowledge that there are risks inherent in Internet connectivity that could result in the loss of your privacy, Customer Data, Confidential Information, and property. Flutterboots has no obligation to provide security other than as stated in this Agreement or applicable Purchase Order.
- We disclaim any and all warranties not expressly stated in the Agreement, including the implied warranties of merchantability, fitness for a particular purpose, and non-infringement. You are solely responsible for the suitability of the service chosen, including the suitability as it relates to your Customer Data. The Services are provided AS IS. Any voluntary services We may perform for You at your request and without any additional charge are provided AS IS, including any services that are deemed Unsupported.
- Some of the services are designed to help You comply with various regulatory requirements that may be applicable to You. However, You are responsible for understanding the regulatory requirements applicable to your business and for selecting and using those services in a manner that complies with the applicable requirements. You expressly consent that You alone are solely responsible for non-compliance with any law for the time being in force in respect of the Services utilized by You from Flutterboots and Flutterboots is not responsible for any Loss, either direct or indirect, caused to You or any third party by virtue of You availing Services from Flutterboots.
- You are solely responsible for determining the suitability of the Services for your use in light of any applicable regulations or other applicable data privacy laws and regulations.
- Usage of Customer Data: Usage Data. We collect and store information related to your use of the Services, such as use of the Website, API, SMTP, POPS, IMAP, and filtering choices and usage. You agree that we may use this information for our general business purposes and may disclose the information to third parties in aggregate statistical form, provided that we do not include any information that could be used to identify You.
- Message Size Limitations: An individual email message may not exceed the per message size limit (including attachments) of 25MB. or it may be permanently lost.
During the course of provision of Services, either Flutterboots or third party service providers through whom Services are rendered do provide some email filtering services designed to filter spam it does not provide virus scanning and Flutterboots recommends that You employ additional security measures to protect against spam, email phishing attempts and email infected with viruses. Email that is quarantined by the filtering system is excluded from this Agreement. Flutterboots will use commercially reasonable efforts to deliver your email messages. Third party filtering services and other policies of recipient email services may from time to time prevent successful delivery of your messages. Recipient email services may block the attempts of Flutterboots or third party service providers through whom Services are rendered to deliver email successfully. While Flutterboots will reattempt to deliver email according to its policies, it does not store outbound email messages so if the email is not accepted by the recipient email service, it will be lost. You acknowledge that the technological limitations of the filtering service will likely result in the capture of some legitimate email and the failure to capture some unwanted email, including email infected with viruses. In addition, you acknowledge that there is no guarantee that your email will be delivered successfully and your email will be lost if it is not accepted by the recipient email service. You hereby release Flutterboots and its employees, agents, affiliates, and third party suppliers from any liability for damages arising from the failure of the filtering services of Flutterboots’ or third party service providers through whom Services are rendered to capture unwanted email or from the capture of legitimate email, or from a failure of your email to reach its intended recipient.
- Termination of Agreement
- We may terminate this Agreement for “Cause” with immediate effect, without giving any notice of termination or any compensation of whatsoever nature, to You. Cause for the purposes of this clause shall mean any or all of the following:
- Conviction by, or entry of a plea of guilty in a court of competent and final jurisdiction for any crime involving moral turpitude or punishable by imprisonment;
- Commission of an act of fraud, whether prior to or subsequent to the date of this Agreement;
- Continuing, repeated and willful failure or refusal to perform any act required under this Agreement if a written notice has been provided and the situation is not remedied to the satisfaction of Flutterboots within 30 days from the date of such notice;
- Commission of any acts which is detrimental to Flutterboots’ business or goodwill;
- Non-payment of any fees or amounts due by You to Flutterboots;
- Violation of any other provision of this Agreement if a written notice has been provided and the situation is not remedied to the satisfaction of Flutterboots within 30 days from the date of such notice.
- Termination by Flutterboots
Flutterboots may terminate this Agreement at its discretion with 30 (thirty) days prior written notice or in the case of any emergency, without any prior written notice.
- Termination by You
You may terminate this Agreement with Flutterboots with 30 (thirty) days prior written notice. If any amount, including the minimum monthly financial commitment is owed to Flutterboots by You, You will be required to make an immediate payment prior to termination.
- Amendment: This Agreement may be amended by Flutterboots and Flutterboots reserves the right to modify the terms and conditions of providing the Services to You, without your specific consent. Any correspondence that adds or modifies Services in connection with an account established by an Order shall be deemed to be an amendment to that Order, notwithstanding the fact that the correspondence does not expressly refer to the Order.
- Waiver: Either Party may at any time waive compliance by the other Party with any covenants or conditions contained in this Agreement, but only by written instrument executed by the Party waiving such compliance. No such waiver, however, shall be deemed to constitute the waiver of any such covenant or condition in any other circumstance or the waiver of any other covenant or condition.
- Severability: If any provision of this Agreement shall finally be determined to be unlawful, then such provision shall be deemed to be severed from this Agreement and every other provision of this Agreement shall remain in full force and effect.
- Other Remedies: Except as otherwise provided herein, any and all remedies herein expressly conferred upon a party shall be deemed cumulative with and not exclusive of any other remedy conferred hereby or by law on such party, and the exercise of any one remedy will not preclude the exercise of any other.
- Force Majeure:
- Any non-performance or delay in performance by any Party of any of its duties, obligations or responsibilities under this Agreement shall be excused if, and to the extent that such non-performance or delay in performance is caused by Force Majeure.
- For the purposes of this Agreement, “Force Majeure” shall be defined as follows:
- “Force Majeure” means any event or circumstance or combination of events or circumstances that materially and adversely affects, prevents or delays any Party (the “Affected Party”) in the performance of its obligations in accordance with the terms of this Agreement, but only if and to the extent that such events and circumstances are not (directly or indirectly) within the Affected Party’s reasonable control, or was not reasonably foreseeable by the Affected Party and without the fault or negligence of the Affected Party and which the Affected Party could not have prevented through the employment of reasonable skill and care.
- Force Majeure circumstances and events shall be limited to the following events to the extent that such events or their consequences (it being agreed that if a causing event is within the reasonable control of an Affected Party, the direct consequences shall also be deemed to be within the Affected Party’s reasonable control) satisfy the above requirements:
- the effect of any natural element or other act of God, such as any storm, flood, lightning, earthquake, cyclone or other natural disaster;
- fire or explosion (other than as a result of negligence);
- act of war (whether declared or undeclared), terrorism or act of a public enemy (including the acts of any independent unit or individual engaged in activities in furtherance of a program of irregular warfare), acts of belligerents or foreign enemies (whether accorded diplomatic recognition or not), riots, war, blockages, civil disturbance, revolution, rebellion or insurrection, exercise of military or usurped power, or any attempt at usurpation of power;
- general strikes; or
- restraint by order of a Governmental Authority, adversely affecting the Affected Party as well as a specified class of Persons, for no fault (whether by omission or commission) of the Affected Party.
- Notices: All notices, requests and other communications hereunder to Flutterboots shall be in writing and shall be deemed to have been duly given at the time of receipt if delivered by hand or communicated by electronic transmission, or, if mailed, three (3) days after mailing registered or certified mail, return receipt requested with postage prepaid:
If to Flutterboots, to:
Flutterboots Services LLP
Flat No 107, Mahaveer Sanctum Annex,
No. 7/2, 7th Cross, LB Shastry Nagar,
Similarly, all notices, requests and other communications hereunder to You shall be in writing and shall be deemed to have been duly given at the time of receipt if delivered by hand or communicated by electronic transmission, or, posted on the website of Flutterboots, or if mailed to the address available with Flutterboots, three (3) days after mailing registered or certified mail, return receipt requested with postage prepaid.
- Assignment: This Agreement shall be binding upon and inure to the benefit of the successors of Flutterboots, but shall not be assignable by You without the prior written consent of Flutterboots. However, Flutterboots may assign this Agreement in whole or in part to an Affiliate or third party in order to meet its obligations under this Agreement or as part of a corporate reorganization or a sale of our business, or otherwise, and Flutterboots may transfer your Confidential Information as part of any such transaction. Flutterboots may use third party service providers to perform all or any part of the Services, but Flutterboots remains responsible to you under this Agreement for work performed by its third party service providers to the same extent as if Rackspace performed the Services itself.
- No Third Parties: Neither this Agreement nor any provisions set forth herein is intended to, or shall, create any rights in or confer any benefits upon any person other than the Parties to this Agreement.
- Independent Parties: Our relationship is that of independent contractors and not business partners. Neither of us is the agent for the other, and neither of us has the right to bind the other on any agreement with a third party.
- Law: This Agreement will be governed by and construed in accordance with the laws of India. The Parties shall refer any disputes arising between them which relate to this Agreement or transactions contemplated hereby to arbitration to be conducted in accordance with the Arbitration and Conciliation Act, 1996. The venue of arbitration shall be Bangalore and the courts of Karnataka, India, shall have jurisdiction over the Parties.
- Entire Agreement: This Agreement along with its Exhibits, if any, hereto constitutes the entire understanding and agreement of the parties hereto with respect to the subject matter hereof and supersede all prior and contemporaneous agreements or understandings, inducements or conditions, express or implied, written or oral, between the parties with respect to the subject matter hereof. The express terms hereof control and supersede any course of performance or usage of trade inconsistent with any of the terms hereof.