FloraLogistics Terms of Service
Below is the Everspring Terms of Service (the “Agreement”) which pertains to the services that Flora Logistics B.V. and its affiliated companies and entities (collectively “Flora Logistics”) to you (the “Customer”).
Article 1 - Subscription to Flora Logistics
1. During the term and in accordance with this Agreement, Customer may access and use
of the products to which the Customer has subscribed, either through a paying subscription or through a free trial subscription (each a “Product”), as stated in the offer, contract, Service Agreement or the invoice signed by the Customer (the “Order Form”).
2. Each Product may contain updates, cloud-based services, support services, applications or documentation, each of which be subject to the terms of this Agreement, as applicable.
3. Flora Logistics can supplement, change or discontinue a part of the Products at any time, with the understanding however, such modification will not materially affect Customer's obligations under this Agreement increase or materially diminish Customer's rights under this Agreement.
4. The Customer is responsible for all actions performed under its Flora Logistics account, regardless of whether these actions are performed by the Customer, its employees or a third party.
5. Customer shall adequately secure all account information in its possession or control.
6. Flora Logistics is not liable for any loss or damage resulting from unauthorized use of the account of the Customer.
Article 2 - Granting a License
1. During the Term, Flora Logistics grants the Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable license for the access to and use of the Products by the Customer, its employees and all other users who access and use the Products on Customer's behalf (collectively, the “Users”) under the terms set forth in this Agreement.
2. Customer agrees that all right, title and interest in and to all intellectual property rights in the Products, and all changes, extensions, scripts and other derivative works of the Products made by Flora Logistics are delivered or developed, are the sole property of Flora Logistics or its licensors. All rights granted in this Agreement not granted to Customer are reserved to Flora Logistics.
Article 3 - Limitations of the License
1. The Customer and any Users will not and will not allow Users or third parties:
a. the source code, underlying ideas, algorithms, file formats or programming interface, interoperability decompile, disassemble or reverse engineer or attempt to reconstruct or reverse interfaces of the Products discover, by any means;
b. distribute viruses or other harmful or malicious computer code through or in the Products;
c. engage in behavior that interferes with or prevents any third party from using and enjoying the Products;
d. remove any product identification, copyright or other notices from the Products;
e. sell, lease, loan, sublicense, grant access to or otherwise sell the Products transfer or disclose in whole or in part to third parties; f. use the Products for timesharing, service bureau or hosting purposes or otherwise use them, resell, sublicense, distribute or transfer or allow others to use the Products for or on behalf of third parties;
g. modify or integrate the Products into or with other software or create a derivative work of any part of the Products, unless agreed in writing by Flora Logistics;
h. use the output or other information generated by the Products for any purpose other than referred to in this Agreement;
i. use the Products for any use other than the Customer's internal business use;
j. use unauthorized modified versions of the Products, including, but not limited to, the building a similar or competing product or service or gaining unauthorized access to the Product; or
k. use the Products in a manner that violates any applicable local, state, federal, regional and foreign legislation, including, but not limited to, scale and VAT regulations, and legislation on it areas of privacy, data protection, electronic communications and anti-spam legislation.
2. Flora Logistics retains all rights to the Products, all copies, derivatives and improvements thereof and all related materials, unless expressly licensed herein.
Article 4 - Duration of the Agreement
1. The “Initial Term” means the number of months in the Term as specified in the
Order Form, commencing on the start date specified in the Order Form. After aoop of the Initial Term and unless otherwise stated in the Order Form, this Agreement will automatically renew for one duration equal to the lower of the Initial Term; or one year (each a “Renewal Term”, and the Initial Term and all Renewal Term together, the “Term”) until termination by the Customer or Flora Logistics through of written notice to the other party at least ninety (90) days prior to the end of the Initial Term or the then-current Renewal Term, as the case may be. In the case of Products listed in are licensed on a trial basis, the term of this Agreement is limited to the length of the trial period specified in it
Order form is indicated.
Article 5 - Fees and Payment
1. The Customer shall pay Flora Logistics the annual and/or monthly fees stated in the Order Form specified (“Fees”), in accordance with the time and currency specified in the Order Form specified.
2. All payments made by the Customer to Flora Logistics under this Agreement are non-refundable and will be made through the method of payment specified by Customer in the Order Form, or as otherwise agreed in writing by the parties agreed.
3. The Customer will perform all additional actions that are reasonably requested by Flora Logistics, if necessary set up an automated payment process.
4. All amounts overdue by Customer under this agreement shall be increased with interest at an interest rate of one and a half percent (1.5%) per month or, if lower, the maximum rate that is legal permitted, without prejudice to Flora Logistics' right to suspend the Customer's access to the Products.
5. Any applicable value added tax or other taxes will be added in pursuance of this Agreement Fees Due.
Article 6 - Confidential Information
1. Flora Logistics and the Customer (each a “Receiving Party”) will retain all information they receive from the other party (the “Disclosing Party”) received under or in connection with this Agreement and that the Disclosing Party identifies as proprietary and/or confidential or which, by the nature of the circumstances surrounding the disclosure should be treated in good faith as proprietary and/or confidential (“Confidential
Information”), keep it confidential and will not make use of such Confidential Information except where this is necessary to perform their respective obligations under this Agreement. Each party shall accept the terms and conditions treat the terms of this Agreement as confidential, but each party may have such information in confidence
with its legal and financial advisors as required in the ordinary course of business of that party. Notwithstanding the foregoing, the limitations set forth above do not apply to:
a. information previously known to the Receiving Party without reference to the Confidential Information of the Disclosing Party;
b. information that is or becomes public knowledge without any wrongful act of the Receiving Party;
c. information independently developed by the Receiving Party without reference to the Confidential Disclosing Party Information; or
d. information required by applicable law to be disclosed by means of
enforceable orders of a court or other government agency. The foregoing also prevents Flora Logistics not to use Customer Data on an aggregated, anonymized basis. Customer will take care of that its Users fully comply with the provisions of this article and are responsible for the damage that Flora Logistics suffers as a result of a User's default.
Article 7 - Representations and warranties of the Customer
1. The Customer represents and warrants that, at this time and throughout the term of the Agreement:
a. the Customer is fully authorized to enter into this Agreement and that the Customer and any Users are fully are authorized to use the Products;
b. the Customer and any Users are and remain in compliance with all Flora Logistics policies, applicable laws and regulations regarding his and their use of the Products and activities in in connection with this Agreement, including but not limited to scale and privacy laws; and
c. if the Customer or one of its Users enters lists into the Products for the purpose of sending electronic communications (e.g., emails, text messages) to such list of Customers, or otherwise collects electronic addresses for sending electronic messages, the Customer guarantees this each person on such list has previously opted in to receive promotional electronic communications communication from the Customer (as applicable) and that the content of such communication is by the Customer will comply with applicable laws and regulations.
Article 8 - Customer data and privacy
1. “Customer Data” means any data that the Customer or its Users enter into the Products for processing in connection with this Agreement, including any personally identifiable information ("Personal Data") contained therein part of such data.
2. Customer may select the Personal Data it enters into the Products at its sole discretion; Flora Logistics has none control over the nature, extent or origin of the Personal Data, or the manner in which Customer uses the Products acquires processed Personal Data. Flora Logistics will adhere to and ensure that its personnel comply to the requirements of applicable privacy law with respect to Customer Personal Data held of or under the control of Flora Logistics. Customer is solely responsible for compliance with any legal,
regulatory or similar restrictions applicable to the types of data Customer chooses to process with the Products. Customer remains responsible for the correct handling and processing of reports in this regard to Customer Personal Data and Customer Users.
3. The Products give the Customer the opportunity to independently make a back-up and archive the Customer data. Accordingly, Customer is responsible for performing regular backups of Customer Data. Nevertheless, Flora Logistics will regularly make backups of the Customer data stored in the Products. Flora Logistics will assist Customer in recovering and restoring Customer Data on the Products to the extent applicable commercially feasible. Customer understands and agrees that Flora Logistics is not responsible for loss or damage to Customer Data or other software.
4. Flora Logistics uses and protects the Customer Data, including the information sent via the Products accordance with the Flora Logistics Privacy Policy, which can be found at www.floralogistics.nl/legal/privacybeleid (the “Privacy Policy”) and the Flora Logistics Data Processing Agreement, which can be found at www.oralogistics.nl/legal/processors' agreement (the “Processors' Agreement”).
5. Both the Privacy Policy and the Data Processing Agreement are incorporated into this Agreement by these references. 6. In addition to the permissions granted in the Privacy Policy and the Processing Agreement, Customer allows Flora Logistics to use and share non-personal data with third parties to create anonymous data profiles, provide segmented marketing information, compile aggregated statistical reports and existing and create and improve new products and services.
Article 9 - Feedback
1. Customer agrees that all feedback it provides to Flora Logistics, including but not limited to questions, comments, suggestions, ideas, plans, notes, drawings, original or creative materials or otherwise information related to Flora Logistics or the Products, whether these materials are in email, feedback forms or be provided in any other form, exclusively belonging to Flora Logistics, without any obligation to acknowledge or
compensation to Customer.
Article 10 - Third Party Services
1. “Third Party Services” are logistics systems, sales platforms, marketplaces, products, applications, services software, networks, systems, directories, websites, webshops, databases and information of third parties, including Flora
Logistics to which one or more Products are linked, or which the Customer can use in combination with one or more Products
connect or activate. Customer may choose to activate Third Party Services (as defined above), in log in or use it. The Customer agrees that access to and use of such
Third Party Services is governed solely by the terms of such Third Party Services and that Flora Logistics is not responsible or liable for, and makes no representations or warranties with respect to, any aspect of such Third Party Services, including, without limitation, their content, functionality or data practices (including with respect to Customer Data and Personal Data) or any interaction between Customer and the provider of such Third Party Services, whether or not such Third Party Services are provided by a third party member
of a Flora Logistics partner program or has otherwise been designated by Flora Logistics as “certified”, “integrated” or “approved” by Flora Logistics. The use by the Customer of Third Party Services is made exclusively between the Customer and the relevant provider. The Customer irrevocably waives any claim against Flora Logistics in relation to such Third Party Services. Flora Logistics is not liable for any damage or loss caused or alleged to be caused by or in connection with the activation, access or use of such Third Party Services by Customer, or Customer's reliance on the privacy policy, Processor Agreement or other
policies of such Third Party Services.
Article 11 - Maintenance work
1. It may be necessary for Flora Logistics to carry out planned and/or unplanned repairs or maintenance, or to Remotely repair or upgrade product. This may temporarily affect the quality of the services or may lead to a partial or complete interruption of the Product. Flora Logistics will make every effort to carry out such works at times that cause the least disruption to the Customer's business. Customer will, if necessary, cooperate with these activities.
Article 12 - Termination and Suspension
1. "Termination for Violation" - In the event of a material breach of this Agreement by either parties, the non-infringing party may terminate this Agreement by written notice to the infringing party notify the nature of the breach in reasonable detail and the intention of the non-infringing party to terminate (a “Termination Statement”). If the infringement does not occur within the period of thirty (30) days after delivery of the Termination Notice is reinstated, this Agreement will automatically terminate.
2. "Suspension" - Notwithstanding the foregoing, Flora Logistics may terminate the Customer's access to the Products immediately and suspend without notice if Flora Logistics, in its sole discretion:
a. that this suspension is required by law;
b. that there is a security or privacy risk for the Customer;
c. that Customer violates or infringes the rights of third parties, or acts in a manner that is unlawful, is defamatory or abusive; or
d. Customer does not pay its Fees or any invoices on time; or
e. that Customer violates any material provisions of this Agreement, including its
licensing restrictions or confidentiality restrictions. A suspension of Customer's access to the Products will not limit Flora Logistics or cause Flora Logistics to waive the right to this Agreement or the terminate Customer's access to the Products.
3. "Eect of Termination" - Upon termination of this Agreement, Customer will cease using the Product(s). Notwithstanding the foregoing, the termination of this Agreement by Flora Logistics shall terminate the obligation of the Customer to pay all applicable fees, nor limit Flora Logistics in its ability to use other available remedies, including coercive remedies. Deadlines that have not yet expired will be added termination immediately due and payable. The Customer agrees that Flora Logistics will, after termination of the Customer's account and/or the use of the Product, can immediately deactivate the Customer's account and delete the Customer Data. The customer further agrees that Flora Logistics is not liable to the customer, nor to third parties, for the termination of the customer's access to the Product or for the deletion of the customer data in accordance with this Agreement. The clauses on license restrictions, fees and payment, confidentiality, statements of the
Customer, Indemnification and Limitation of Liability shall survive any termination of this Agreement together with all other provisions intended by their terms to survive.
Article 13 - Indemnification 1.
The Customer shall indemnify, indemnify and defend Flora Logistics and its officers, employees and agents against all losses, expenses, liabilities, damages and costs including, but not limited to, reasonable attorneys' fees (collectively, "Expenses"), to the extent such Fees are attributable to a breach by Customer or any of its Users, employees, independent contractors or affiliates, of any statements, warranties or other obligations contained in this Agreement. 2. Flora Logistics shall indemnify, defend and hold harmless Customer and its officers, employees and agents from and at all Costs, to the extent that these Costs are attributable to the infringing or abusive Products of any registered intellectual property right of a third party, including trademarks, patents and copyrights, if Flora Logistics is immediately notified in writing and permission, receive information and assistance for the defense or settlement of a related proceeding.
Article 14 - Limitation of Liability
1. To the extent permitted by applicable law, Flora Logistics' total liability under this
agreement is limited to the fees paid by the customer during the three-month period immediatelyprior to the date on which the claim giving rise to this liability was first presented.
2. To the fullest extent permitted by applicable law, neither party shall be liable for any indirect, incidental,consequential or special damages or for implied costs or lost profits or royalties, lost data or costs to the
purchase of replacement goods or services, whether or not the alleged damages result from a breach of contract, warranty, tort, statutory remedy or any other obligation and whether or not either party
has been advised or advised of the possibility of such loss or damage.
3. To the fullest extent permitted by applicable law, Customer hereby waives any claim that these exclusions would deprive him of an adequate remedy.
4. The parties recognize that the provisions of this paragraph make the risks under this agreement fair to them to divide.
5. The parties acknowledge that the limitations set out in this clause are an integral part of the amount of the fees charged to the customer in connection with making the products available to the customer and that, if Flora Logistics would assume more or additional liability than is stated in this clause determined, such fees would necessarily be set significantly higher.
Article 15 - Exclusion of Warranties
1. Customer confirms and accepts that:
a. Flora Logistics offers no guarantees regarding the expected,
results desired or obtained, or that the products will be available for use without interruption;
b. the products are provided on an "as is" and "as available" basis and without any representation, warranty or conditions, and Flora Logistics disclaims any liability, representation or warranty with respect thereto to the products, whether express or implied by law or otherwise arising, including but not limited to any warranty of merchantability or fitness for a particular purpose goal;
c. implied warranties arising from particular dealings, trade or usage practices, (c) warranties of the title or conformity; or
d. statutory right of redress on the part of the customer; and
e. Flora Logistics is not responsible for any product settings or product changes made by or on behalf of of customer are applied. Flora Logistics expressly disclaims any service level agreement or service level off commitments.
Article 16 - Assignment and Subcontractors
1. Customer may not transfer any of its rights or obligations under this Agreement without prior notice written permission from Flora Logistics;
2. Flora Logistics may, without the prior consent of the Customer, transfer its rights and obligations under this Transfer agreement. Subject to the foregoing, the provisions of this Agreement shall be binding upon and in effect for the benefit not only of the parties to this Agreement, but also of their legal successors and permitted assignees. Flora Logistics is free to execute this agreement in whole or in part via a or several subcontractors.
Article 17 - Applicable law
1. This Agreement shall be governed by and construed in accordance with the laws of the Netherlands jurisdiction. In the event of any controversy or claim arising out of or related to this Agreement, or the violation or interpretation thereof, the parties agree to submit to the exclusive jurisdiction of the applicable court. Each party hereby waives all defenses of lack of personal jurisdiction and Forum non conveniens in connection with any claim brought before the foregoing courts. The winning party in any action or proceeding brought under this Agreement is entitled to, in addition to all other forms of satisfaction, the reasonable fees of its attorneys and other experts and with respect to a
recover costs incurred in such action or proceeding from the other party.
2. Any claim, dispute or controversy (whether in contract or tort or under any law
or arrangement or otherwise, and whether for pre-existing, current or future claims) that
arising out of or related to:
a. this agreement;
b. the services or equipment provided by Flora Logistics;
c. oral or written statements, or advertisements or promotions related to this Agreement or the services or equipment; or
d. the relationships arising from this Agreement (collectively, the “Claim”) shall be determined by means of arbitration to the exclusion of the courts. Arbitration will be conducted by one arbitrator accordance with the laws and regulations regarding commercial arbitration in the jurisdiction specified in Section III below that are in effect on the date of the notification.
3. Klant stemt ermee in afstand te doen van enig recht dat Klant kan hebben om een collectieve rechtszaak of een representatieve procedure tegen Flora Logistics aan te spannen of daaraan deel te nemen met betrekking tot een Claim en, indien van toepassing, stemt Klant er tevens mee in zich uit te sluiten van een collectieve rechtszaak of een representatieve procedure tegen Flora Logistics.
4. Niettegenstaande het voorgaande: a. behoudt elke partij zich het recht voor om bij een bevoegde rechter een voorlopige of andere billijke voorziening te vorderen ter voorkoming van de feitelijke of dreigende inbreuk, verduistering of schending van de auteursrechten, handelsmerken, handelsgeheimen, octrooien of andere intellectuele eigendomsrechten van een partij; en b. behoudt Flora Logistics zich het recht voor om Vergoedingen die Klant aan Flora Logistics verschuldigd is, te innen bij een bevoegde rechter of via een buitengerechtelijke invorderingsprocedure
Article 18 - Compliance with export regulations and other restrictions
1. Products that Flora Logistics can deliver or make available to the Customer may be subject to the US export control and economic sanctions laws. The Customer agrees to comply with all laws or regulations governing access to and use of the Products. The Customer agrees not to allow access to the Product from any jurisdiction where supply of the Product is prohibited by virtue of of U.S. or other applicable law or regulation (a “Prohibited Country”) or access to the Product to any government, entity or person located in a Forbidden Land. The Customer represents, warrants and undertakes to: a. Customer is not a national of, or company registered in, a Prohibited Country; and b. Customer will not allow third parties to access or use the Product in violation of U.S. or other applicable export embargoes, prohibitions or restrictions.
Article 19 - General
1. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal or deemed unenforceable, the validity, legality and enforceability of the remaining provisions of this agreement unaffected.
2. Flora Logistics may provide all notices, statements and other communications to the Customer via email, posting on its website, via an in-product message, or by mail or express. Flora Logistics can also make announcements, including issue press releases for the purpose of referring to Customer as a customer of Flora Logistics.
3. Neither party shall be deemed to be in default or otherwise liable for any delay in or failure to perform this Agreement (excluding payment obligations) as a result of force majeure, fire, natural disasters, accidents, government measures, lack of materials, lack of transport or communication or of suppliers of goods or services, or any other cause beyond reasonable control of this party.
4. This Agreement, including any applicable Order Forms, Privacy Policy and Processor Agreement (at reference included in clause 8.4) constitutes the entire agreement and understanding between the parties with respect to it subject matter hereof and supersedes all prior or contemporaneous written, electronic or oral communications, statements, agreements or understandings between the parties relating to this subject matter.
5. Flora Logistics reserves the right at all times and with due observance of a notice period of thirty (30) days to change this Agreement, including making changes to the fees and amount of the Services.
6. The Customer has reviewed, understood and accepted the terms of this Agreement and prior to the performance of this Agreement consulted or knowingly waived legal counsel right to consult a legal adviser before signing.