1.1. “Customer Data” means data, including email, provided, generated, transmitted or displayed via Flock SAAS by the Customer or the End User;
1.2. “Confidential Information” means information disclosed by a party to the other party under this Agreement that is marked as confidential or would normally be considered confidential under the circumstances;
1.3. “End User” means the individuals the Customer permits to use Flock SAAS subject to the terms and conditions of this Agreement;
1.4. “End User Account” means a Flock account established by the Customer through Flock SAAS for an End User;
1.6. “Flock Calendar” shall mean SAAS managed by Flock that enables customers to manage their calendars and schedule meetings;
1.7. “Flock Contacts” shall mean SAAS managed by Flock that enables customers to manage their contacts;
1.8. “Flock Mail Client” means SAAS managed by Flock that enables customers to access, send and receive email from email accounts of the customer;
1.9. “Flock Mail Service” in the context of an email plan, refers to the services comprising of e-mail storage, IMAP server, POP server and SMTP server; managed by Flock;
1.10. “Flock Meetings” shall mean SAAS managed by Flock that enables customers to participate in audio and video calls;
1.11. “Flock SAAS” shall mean, collectively, Flock Mail Client, Flock Mail Service, Flock Meetings, Flock Calendar and Flock Contacts;
1.12. “High Risk Activities” means uses of Flock SAAS in situations where the use or failure of Flock SAAS could lead to death, personal injury, or environmental damage, such as operation of nuclear facilities, air traffic control, life support systems, use of heavy equipment in construction sites, etc.;
1.13. “Hosting Partner” means the party that has executed an agreement with Flock in order to provide Flock SAAS to the Customer;
1.14. “SAAS” shall mean software as a service comprising of a web interface software, desktop client software, mobile apps, server software and server infrastructure;
1.15. “Subscription” means a Flock SAAS subscription obtained by/subscribed to by the Customer from the Hosting Partner under this Agreement; and
1.16. “Plan” means the different types of Flock SAAS plans made available to the Customer by Flock through the Hosting Partner, from time to time. Each Plan will specify the capacity, features, number of users and other relevant parameters that will be available to the Customer.
2. Customer Obligations
2.1. The Customer will use Flock SAAS in accordance with all applicable laws and the AUP specified by Flock from time to time. The AUP in effect as on the date of this Agreement may be found here.
2.2. The Customer will use commercially reasonable efforts to prevent unauthorized use of Flock SAAS, and to terminate any unauthorized use. The Customer will promptly notify Flock of any unauthorized use of, or access to, the Flock SAAS of which it becomes aware, and cooperate with Flock and any others as directed by Flock, to undertake all actions necessary to end or penalize such unauthorized use.
2.3. Unless Flock specifically agrees in writing, the Customer will not, and will use commercially reasonable efforts to make sure that the End User does not: (a) sell, resell, lease, or the functional equivalent, Flock SAAS to a third party (unless expressly authorized in this Agreement); (b) attempt to reverse engineer Flock SAAS or any component; (c) attempt to create a substitute or similar service through use of, or access to, Flock SAAS; or (d) use Flock SAAS for High Risk Activities.
2.4. The Customer must promptly cooperate with Flock’s reasonable investigation of Flock SAAS outages, security problems, and any suspected breach of the Agreement.
3. Flock’s Obligations
3.1. Flock shall provide Flock SAAS in accordance with the mandatory legal requirements to which it is subject to, and in accordance with the terms and conditions outlined in this Agreement. However, the Customer acknowledge and agree that the provision of Flock SAAS is also dependent on third party factors outside Flock’s control, such as internet connectivity, mobile data availability, etc., and failure or reduction of Flock SAAS on account of such factors does not result in any breach of provision of Flock SAAS by Flock.
3.2. Flock will maintain security practices that are at least as stringent as the minimum security practices that Flock uses for its own data.
4. Modification of Flock SAAS, Plans, and Agreement
4.1. Flock may make commercially reasonable changes to the Plans and to the features of Flock SAAS, from time to time. If Flock makes a material change to either the Plans or to the features of Flock SAAS, Flock will inform the Customer, provided that the Customer has subscribed to be informed of such changes.
4.2. Flock may make changes to this Agreement, from time to time which shall become effective as and when Flock notifies the Customer of such changes. If the Customer does not agree to any change, then the Customer may terminate this Agreement and request Flock to cancel the Customer’s Subscription. Such a termination and cancellation will be the exclusive remedy of the Customer if the Customer does not wish to abide by any change to this Agreement.
5. End User Accounts
5.1. The Customer shall be solely responsible to ensure that each End User adheres to the terms of this Agreement, the End User’s ToU, any applicable law and the AUP.
5.2. Use of Flock SAAS is available only to persons above the age of majority as determined by the laws of the jurisdiction from where such person’s access Flock SAAS ("Age of Majority").It shall be the sole responsibility of the Customer to ensure that all End Users are of the Age of Majority. Flock shall bear no responsibility for any violation of this provision and reserves the right to terminate a Customer's Subscription if it is brought to Flock's notice or if it is discovered that any End User is under the Age of Majority.
6.1. The Agreement, and the Subscription shall commence from the time of the Acceptance Confirmation and shall be in force for the time period specified to Flock by the Hosting Partner at the time of creation of the Subscription and as subsequently extended or reduced by the Hosting Partner (“Term”).
7. Payment Terms
7.1. Unless the Customer has opted for a free Plan, in consideration of the Customer utilizing, renewing or upgrading the Subscription or the Customer either changing its Plan, adding additional End Users to its Subscription, or accessing additional features of Flock SAAS, the Customer shall pay the Hosting Partner or Flock, sufficient and valid consideration, the details of which are provided by the Hosting Partner/Flock to the Customer (“Fee”). The Fee shall be payable in accordance with the terms and conditions that have been provided here.
7.2. It will be the sole responsibility of the Customer to pay the Fees to the Hosting Partner/Flock. In the event that the Customer does not pay the Hosting Partner/Flock the requisite Fees, or if the Hosting Partner does not transfer the applicable Fees to Flock (in case the Fee is collected by the Hosting Partner), then Flock, at its sole discretion, reserves the right to either suspend the Customer’s Subscription or terminate this Agreement immediately without giving any notice to the Customer.
7.3. If a customer raises a refund request within the first 30 days of a new purchase, Flock will refund the full money charged from the Customer, upon Customer raising a request for the refund with the Hosting Partner/Flock. Post 30 days, the Customer will not be eligible for any refunds.
7.4. If a customer wants to upgrade the existing Plan, it will have to be done for all the mail accounts created within the existing Plan. Also, all the new mail accounts created after the Plan upgrade will be created under the new Plan.
8. Suspension of Subscription
8.1. Flock may suspend Subscription without any liability and without any notice for any of the following reasons:
(i) Flock reasonably believes that the Subscription is being used in violation of the Agreement;
(ii) The Customer does not cooperate with Flock’s investigation of any suspected violation of the Agreement;
(iii) There is an attack on the Customer’s systems;
(iv) Flock is required by applicable law, or a regulatory or government body to suspend the provision of the Subscription or Flock SAAS; or
(v) Occurrence of any other event where Flock reasonably believes that the suspension of Subscription is necessary to protect the Flock network or its other customers.
9.1. The Customer agrees that Flock may include the Customer’s name in a list of Flock’s customers, online or in promotional materials. The Customer also agrees that Flock may verbally reference the Customer as a customer of the Flock products or services that are the subject of this Agreement.
10. Representations and Warranties
10.1. Flock and the Customer, individually represent and warrant to the other that:
(i) It is a validly incorporated business entity;
(ii) It has all necessary rights, powers and authority to perform its obligations under this Agreement, and the execution, delivery and performance of this Agreement by Flock and the Customer has been duly authorized by all necessary corporate actions; and
(iii) It shall at all times and at its own expense strictly comply with all applicable laws and maintain in full force and effect all licenses, permits and authorization from all governmental departments and agencies to the extent necessary to perform its obligations under this Agreement.
10.2. The Customer represents and warrants that:
(i) By entering into this Agreement, it is not violating or infringing upon or otherwise violating the rights of any third party;
(ii) It will not be involved in distribution of malware, abusively operating botnets, phishing, piracy, trademark or copyright infringement, fraudulent or deceptive practices, counterfeiting or otherwise engaging in activity contrary to applicable law;
(iii) It will correct and update its information within seven (7) days of any change;
(iv) It will ensure that the End User is using Flock SAAS in a manner that is compliant with the terms and conditions mentioned in this Agreement, all applicable law, and the AUP; and
(v) It will respond promptly to any enquiries from Flock concerning the terms of this Agreement or the provision of the Customer’s Subscription.
(vi) The Customer acknowledges that a breach of its representations and warranties will constitute a material breach of the Agreement, which will entitle Flock to terminate this Agreement immediately upon such breach without any liability, refund or notice to the Customer.
(vii) Each Party further represents and warrants to the other Party that (i) it has full power and authority to enter into the Agreement; and (ii) it will comply with all laws and regulations applicable to its provision, or use, of Flock SAAS, as applicable (including applicable security breach notification law).
11.1. Notwithstanding any of the other Clauses in the Agreement, Flock may terminate this Agreement immediately without giving the Customer any notice if the Hosting Partner requests Flock to terminate this Agreement
11.2. The Customer may terminate this Agreement as per the termination provisions specified by the Hosting Partner.
12. Consequences of termination
12.1. Upon the termination of this Agreement, both parties agree that:
(i) rights granted by one party to the other will cease immediately (except as set forth in this Clause);
(ii) Unless Flock is required to retain the Customer Data for a mandatory time period specified by provisions of applicable law, Flock, at its sole discretion, may immediately or within a reasonable period of time, delete all Customer Data; and
(iii) Upon request, each party will promptly use commercially reasonable efforts to return or destroy all other Confidential Information of the other party, and if so requested, confirm such deletion to the requesting party.
13.1. The Customer agrees and acknowledges to defend, indemnify, and hold harmless Flock and its respective directors, officers, employees, agents, affiliates, and contractors, from all liabilities, claims and expenses, including attorney’s fees, arising out of any third party claim relating to:
(i) The Customer’s data or its domain name ownership;
(ii) The Customer’s infringement of any third parties’ intellectual property; and
(iii) The Customer or the End User violating any of the terms of this Agreement or any of Flock’s policies.
13.2. The Customer agrees that Flock will have the right to choose legal counsel to defend the claim, provided that these decisions must be reasonable and must be promptly communicated to the Customer. The Customer must comply with all requests for assistance and cooperation made by Flock in the defence of the claim.
13.3. This provision will survive the termination of this Agreement.
14. Limitation of liability
14.1. To the extent permitted by law, neither party will be liable under this Agreement for lost revenues or indirect, special, incidental, consequential, exemplary, or punitive damages, losses or expenses, even if the party knew or should have known that such damages, losses or expenses were possible and even if direct damages do not satisfy a remedy.
14.2. Under no circumstance shall Flock be liable to the Customer for loss of Customer Data.
14.3. The Customer agrees that its sole and exclusive remedy, with respect to Flock SAAS being provided under this Agreement and any breach of this Agreement is to terminate this Agreement. Flock’s liability for any breach of this Agreement is limited to the lower of (i) the Fees remitted by the Hosting Partner to Flock in the immediately preceding 6 (Six) months from the date on which the claim of action first arose, and (ii) the maximum amount permitted by applicable law. In the event that the Customer has subscribed to a free Plan, then the Customer agrees that Flock’s liability will be limited to the maximum extent permitted under applicable law.
15. Disclaimer of warranties
15.1. The Customer acknowledges and agrees that Flock SAAS is provided/supplied by Flock on an ‘as is where is’ basis. Neither Flock nor any of its representatives has made nor will make any representation or warranty whatsoever, express, implied or statutory, including, without limitation, any implied representations or warranties of merchantability, fitness for a particular purpose, title, enforceability or non- infringement.
15.2. The Customer agrees and acknowledges that any warranty with respect to Flock SAAS that barring the express warranties made by Flock in this Agreement, Flock does not make any other warranty of any kind, whether express or implied.
15.3. Flock does not promise that Flock SAAS will be uninterrupted, error-free, or completely secure. The Customer acknowledges that there are risks inherent in internet connectivity that could result in the loss of privacy, customer data, Confidential Information, etc., which could adversely impact Flock SAAS, which are not in Flock’s control.
16. Restrictions on use of Flock SAAS
16.1. The Customer and the End Users are not permitted to upload any data that is in excess of the amount permitted in their Plan on Flock’s servers without prior agreement with Flock.
16.2. Illegal material is not permitted on any of Flock's servers, whether this be images, film clips, other types of files or link to unlawful photos or similar material. For example, unlawful material is, but not limited to, copyright protected material or other material you are not entitled to publish or store according to legislation. Nor is it permitted to store erotic, pornographic or other offensive material on servers owned by Flock. It is entirely Flock's decision to determine whether material belongs to one or more of the above categories, and Flock reserves the right to delete any such material at any time without notice. In the event of such material being deleted the Customer cannot advance any claim against Flock related to the deletion.
16.3. Traffic, though unlimited, must be normal in nature and not disrupt that of other customers. If the Customer's traffic disrupts that of others, Flock reserves the right to close the Customer's web space without notice and/or make a separate charge for the traffic, which will be borne by the Customer. Flock reserves the absolute right to decide whether or not traffic is excessive. On closure of a web space, no refund will be made of any subscription paid in advance.
16.4. Unwanted (spam) mail must not be sent from Flock's servers. In the event of transgression of this rule, Flock reserves the right to inform the relevant authority and submit log details etc. to that authority. Flock reserves the right to demand payment for time spent in relation to such information and its submission to the relevant authority.
18. Intellectual Property Rights
18.1. For the purpose of this Agreement, intellectual property rights shall mean all current and future worldwide rights under patent law, copyright law, trade secret law, trademark law, moral rights law, and other similar rights (“Intellectual Property Rights”).
18.2. Except as expressly set forth herein, this Agreement does not grant either party any Intellectual Property Rights to the other party. The Customer agrees and acknowledges that Flock owns any and all Intellectual Property Rights in and to Flock SAAS. Flock agrees that the Customer shall own any and all Intellectual Property Rights over Customer Data.
19. Confidential Information
19.1. The Customer and Flock, both agree not to use the other’s Confidential Information except in connection with the performance or use of Flock SAAS.
19.2. Flock and the Customer agree that they will: (a) protect the other party’s Confidential Information with the same standard of care it uses to protect its own Confidential Information; and (b) not disclose the Confidential Information, except to affiliates, employees and agents who need to know it and who have agreed in writing to keep it confidential. Each party (and any affiliates, employees and agents to whom it has disclosed Confidential Information) may use Confidential Information only to exercise rights and fulfil its obligations under this Agreement, while using reasonable care to protect it. Each party is responsible for any actions of its affiliates, employees and agents in violation of this Clause.
19.3. Each party may disclose the other party’s Confidential Information when required by law but only after it, if legally permissible: (a) uses commercially reasonable efforts to notify the other party; and (b) gives the other party the chance to challenge the disclosure.
20. Governing Law and Dispute Resolution
20.1. This Agreement shall be governed by the laws of Singapore.
20.2. And dispute arising out of or in connection with this Agreement, including any questions regarding its existence, validity and termination, shall be referred to and finally resolved by arbitration administered by the Singapore International Arbitration Centre (“SIAC”) in accordance with the Arbitration Rules of SIAC (“SIAC Rules”) for the time being in force, which rules are deemed to be incorporated by reference to this clause.
20.3. The tribunal will consist of 1(One) arbitrator who will appointed by the parties mutually. If the parties are unable to appoint an arbitrator mutually, the arbitrator shall be appointed by SIAC as per the provisions of the SIAC Rules.
20.4. The seat of the arbitration will be Singapore and the language of the arbitration shall be English.
20.5. Flock and the Customer shall bear their own costs and expenses, incurred in connection with the arbitration proceedings, unless otherwise awarded by the arbitrator in the arbitral award.
20.6. Nothing herein shall preclude either Flock or the Customer from seeking interim or permanent equitable or injunctive relief, or both, from any court having jurisdiction to grant the same. The pursuit of equitable or injunctive relief shall not be a waiver of the right of the parties to pursue any remedy for monetary damages through the arbitration described in this Clause 20.
20.7 Subject to Clause 20.2 above, Courts in Singapore shall have exclusive jurisdiction upon all matters arising out of this Agreement.
21.1. Entire Agreement: This Agreement, along with the AUP constitutes the entire understanding between Flock and the Customer and supersedes all other discussions and understanding between Flock and the Customer.
21.2. Force Majeure: Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, labour condition, governmental action, and Internet disturbance) that was beyond the party’s reasonable control.
21.3. Notices: Unless specified otherwise herein, (a) all notices must be in writing and addressed to the attention of the other party’s legal department and primary point of contact and (b)notice will be deemed given: (i) when verified by written receipt if sent by personal courier, overnight courier, or when received if sent by mail without verification of receipt; or (ii) when verified by automated receipt or electronic logs if sent by facsimile or email.
21.4. Severability: The invalidity or unenforceability of any provision in this Agreement shall in no way affect the validity or enforceability of any other clause in the Agreement.
21.5. Survival: The provisions which by their nature, intend to survive the termination of this Agreement, shall survive the termination of this Agreement.
21.6. Conflict: Unless otherwise provided for, in the event of any conflict between the terms of this Agreement and any other agreement executed between Flock and the Customer, the terms of this Agreement shall prevail.
21.7. Contact Person and Grievance Officer: If you have any questions about the terms of this Agreement or do not understand any of the provisions, you can contact our grievance desk at firstname.lastname@example.org