This public offer contract of rendering services of the flespi platform (“Contract”) is a contract between an individual or entity using the Company’s Services (the “Customer”) and the “Company” and applies to Customer’s use of the Company’s Services.
This Contract is an electronic document and does not require to be signed. The Contract can be translated by the Customer into all languages without the consent of the Company. The translated versions can be used for information only. In case of any discrepancy between the English version of this Contract and translation, the English version shall take precedence.
This Contract comes into force from the date of full and unconditional acceptance of this Contract (i.e., confirmation from the Customer who received the offer of his/her consent to enter into this Contract). The Contract is accepted by the Customer if the Customer completes the registration form to open a Customer’s account of the flespi platform and fills in the details of its entity or individual.
For purposes of this Contract:
“the Company“ means a legal entity on whose behalf an invoice is issued and called:
- Gurtam UAB established under the law of Lithuania and registered at the address: 9-ojo Forto g.47, 2nd floor, 2-26, LT-48100 Kaunas, Lithuania; or
- Any other Affiliate that means, with respect to a specified entity, (a) an entity that directly or indirectly, through one or more intermediaries, owns more than 50% of the outstanding voting securities of the Company, and (b) an entity that directly or indirectly through one or more intermediaries, is controlled by the Company, in each case where the term control means possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract interest or otherwise.
“flespi platform” means a set of useful services in the area of telematics available via REST API;
“flespi gateway” means a service providing interaction between telematics devices and Customer’s software applications via REST API, available as a part of flespi platform;
“channel” means an entrance point for telematics devices to flespi gateway. Configured channel starts to listen to new TCP/UDP connections from tracking devices on specified host:port. One channel can communicate with devices using only one protocol configured for it;
“protocol” means a set of rules for formatting incoming and outgoing byte streams used for communication with telematics devices. Protocols can be developed by third-party manufacturers of the devices, and the Company does not have any responsibility for their quality;
“flespi device” means virtual device, created on the flespi platform identified by unique identifier and bound to the specified channel;
“panel” is a part of the Customer’s account used to perform administrative and management operating system tasks and/or provide access to specific features of the flespi platform;
“telegram” is a free cloud-based instant messaging service for smartphones and other devices that allows an exchange of text messages, photos and files of any type;
“service” means any maintenance, professional, advisory or managed services, or technical support and any other service performed or to be performed by the Company.
Now therefore, the Parties hereto agree as follows:
1. Subject of the Contract
This Contract governs the Services provided by the Company according to the Service level agreement, consisting of granting access to the flespi platform by configuration of channels and other related services and for which the Customer agreed to pay.
2. Consideration to the Company
(a) The cost of the Services provided under this Contract is determined on the basis of the volume and nature of the Services ordered by the Customer in accordance with the most recent price list and reflected in the invoice issued by the Company for payment by the Customer.
(b) The Customer shall pay the fee for each reporting period of using the Services. The reporting period is one calendar month. The invoice will be delivered to the Customer’s confirmed e-mail address within five (5) business days after the end of the reporting period. The Customer shall pay the invoice prior to the beginning of the reporting period following the month in which the invoice was issued. In case the Customer fails to pay the fee, the Company reserves the right to suspend and limit the Services to the Customer by giving the written reminder about unpaid invoice at least three (3) business days prior to suspension of Services. In the event of Service suspension, full Service delivery will be restored within 12 hours from the date and time that payment is made to the Company. A restoration fee is not charged.
(c) The cost of the Services does not include any shipping, duties, bank fees, sales, use, excise or similar taxes due. If the Company is required to pay any such amounts, the Customer shall reimburse the Company in full. The invoice for such amounts will be delivered to the Customer’s confirmed e-mail address. The Customer shall submit payment to reimburse the Company within thirty (30) days of delivering invoice to the Customer.
(d) The Company shall submit the Certificate of services solely issued by the Company and rendered to the Customer within 15 business days as from rendering of the corresponding Services in the reporting period.
(e) Should there be any claims as to the Services rendered by the Company, the Customer undertakes to send them to the Company in writing within seven (7) calendar days as from receipt of the Certificate of services rendered. Should the Company fail to receive any written claims within one calendar month as from sending the Certificate of services rendered to the Customer, the Certificate is viewed as true and correct and the Services are viewed as accepted.
3. Intellectual property
No provisions of the Contract give the Customer the right to use any brand names, trademarks, service marks, logos, domain names, brands or other distinctive signs of the Company other than stipulated by the purpose of this Contract.
The Customer undertakes not to remove, hide or change any signs of ownership (including copyright marks and trademarks) that may or may not be contained on the flespi platform.
This Contract shall be made for unlimited term up to its termination in the order stipulated by Section 5 hereof.
The Company may terminate this Contract if the Customer is in default of any of the terms and conditions of this Contract and fails to correct such default within five (5) days after notice thereof from the Company. In the event of termination, the Company will immediately discontinue Customer’s access to their account of the flespi platform. Notwithstanding the foregoing, either party may terminate this Contract upon thirty (30) days notice. The Customer shall unconditionally agree that should this Contract be terminated in compliance with the first sentence of this Section, it is deprived of its right to request refund of any amounts from the Company, paid in terms of the Services, even if the validity terms of Service have not yet expired.
6. Technical Support
(a) The Company provides the Customer with technical support on setup of Customer’s account, access, and other related issues to the flespi platform. The Company does not provide support for web applications, third party software, scripts, or components from third parties or developed by the Customer.
(b) Тhe flespi platform is monitored 24 hours per day, seven (7) days per week, 365 days per year and support agents are available by tools according to the Service level agreement.
(c) The Customer is provided with certain online tools, and the Company expects the Customer to use these tools to perform all available account and flespi platform, flespi gateway, channels management tasks.
(d) These tools, together with API documentation and help, are available at the moment of the beginning of using the Company’s Services. If the Customer experiences difficulty using these tools, the Company’s technical support personnel will help the Customer learn how to use these tools. However, the Company’s technical support personnel shall not be expected to perform for the Customer the tasks that can be done through the available tools.
7. Liability of the Parties
(a) The Parties shall be liable for nonfulfillment or undue fulfillment of liabilities hereunder in compliance with the applicable law, with due consideration of this Contract.
(b) The Company shall be released from liability for the losses, incurred by the Customer directly or indirectly as a result of full or partial use or failure to use the Services in the following cases:
- should the losses be caused by the activities or failure to act of the third parties;
- should the losses be attributed to the software errors or malicious software components used by the Customer;
- should the losses be caused by the Customer’s failure to ensure the confidentiality of its account data or any other confidential information, or as a result of third party unauthorized access to any Customer’s technical and informational resources.
(c) The Company shall not be responsible for the contents of information, sent by the Customer via telecommunication channels and communications networks, as well as information from the Customer’s technical and information resources.
(d) The Parties hereto unconditionally agree that the maximum foreseeable loss, to be recovered from the Company, shall be limited by the sum of the Services paid by the Customer in the relevant month, in which the non-execution or undue execution of the Services occurred and the stated losses were caused.
(e) The Company’s limitation of liability stipulated by clause (d) hereof shall not be applied if:
- The extent of liability for this type of liability or for this violation is stipulated by the applicable law;
- Company’s non-fulfillment or undue fulfillment of liabilities hereunder is attributed to his express malice.
(f) The Customer shall be fully liable for any of its activities in the process of using Internet, information resources or Company’s Services, as well as for any consequences hereof.
(g) The Customer shall be fully liable for any third party activities, including unauthorized activities, arising out of the Customer’s non-observance of confidentiality of its account data or any other confidential information, as well as for any consequences hereof.
(a) The Parties are released from liability for full or partial non-fulfillment of their obligations hereunder, should it be caused by the circumstances of insuperable force (force majeure), arising after conclusion of this Contract due to extraordinary events, which could be neither reasonably foreseen nor prevented by the Parties.
(b) Force majeure include events, which cannot be influenced by the Party and for which it may not be held liable, namely: war, riot, strike, earthquake, flood, fire, unfavorable weather conditions or any other acts of God, executive orders, orders (decrees) of governmental authorities and officials, laws and other regulations of competent authorities, taken after acceptance of this Contract and preventing from fulfillment of obligations hereunder, including, but not limited to the activities of state and local public and governing authorities or their representatives, preventing from this Contract execution and other unforeseen circumstances, including urban network faults, technical problems at the internet transit nodes and other faults of the communications network, not influenced by the Parties.
(c) Should the force-majeure prevent from due obligations fulfillment hereunder, the term of such obligations fulfillment is extended for the period of force-majeure duration and the period, required to take the corresponding remedial measures, but not exceeding sixty calendar days.
(d) Should force-majeure exceed the term stated in clause (c) hereof, or should upon force-majeure onset it become apparent to both the Parties that the force-majeure exceed the stated term, the Parties undertake to discuss the alternative variants of Contract execution or terminate it without any losses recovery.
9. Volume of the stored data
The total volume of data the Customer can store, traffic level, number of active connections, etc. are limited according to the Restrictions on use of the flespi platform. The Customer can manage the volume of the stored data through the Panel. The channel may stop accepting, processing, or delivering data when the purchased limit is reached, thus causing channel unavailability according to the Restrictions on use of the flespi platform. The Company shall not be held responsible for such unavailability or data losses.
10. Ownership of data
All data created by the Customer and/or stored by the Customer on the Company’s flespi platform are Customer’s property and is for Customer’s exclusive use unless access to such data is permitted by the Customer. The Company shall allow access to such data by authorized Company personnel and shall provide access in compliance with the Section 16. The Company makes no claim of ownership of any content or any other type of data contained within the Customer’s flespi platform space.
11. Data retention
The Сompany shall not retain any of Сustomer’s data after account termination. All data is deleted from the flespi platform at the time the account is terminated. The Сompany shall not restore, “burn” to any data storage device, or send out any data pertaining to terminated accounts.
12. Collection of information
The Company may collect information relating to how often the Customer uses the flespi platform or the frequency with which certain features are used. For purposes of analytics, the Company collects a limited set of usage statistics and performance data. The Company gathers this set of usage statistics without identifying the Customer, analyses them only after the data is aggregated, and uses them to improve the Services’ performance and usage. The Company’s system does not process any personally identifiable data and does not combine the processed data with any personal information. The Company may also share this data with or sell this data to third parties in compliance with applicable law. This data is shared and sold anonymously in a form that does not personally identify the Customer.
13. Notices and notifications
(a) The Parties unconditionally agree that any documents and correspondence, received by fax and/or e-mail, subject to concurrent sending of their original hard copies by mail, shall have legal effect.
(b) The Parties unconditionally agree that any correspondence, notices and notifications, delivered to e-mails, stated in the legal details of the Parties shall be viewed as duly delivered to the addressee. The Customer shall be entitled to change its contact e-mail by sending the corresponding request to the Company from the previous contact e-mail or by using tools of the Customer’s account.
(c) The Parties shall duly check the information, delivered to their e-mails, on timely basis.
(d) Any risks related to adverse effects, associated with non-fulfillment of the requirements stipulated by clause (c) hereof, shall be attributed to the defaulting Party.
In the event any provision of this Contract is determined to be invalid or unenforceable, the remainder of this Contract shall remain in force as if such provision were not a part.
15. Governing law/forum
(a) This Contract shall be governed and interpreted by the laws of Lithuania.
(b) Any and all claims, disputes or controversies arising under, out of, or in connection with this Contract, breach, termination or validity thereof, which have not been resolved by good faith negotiations between the Company and the Customer within the period of thirty (30) calendar days after receipt of a notice from one Party to the other requesting negotiations shall be resolved by final and binding arbitration in the Vilnius Court of Commercial Arbitration in accordance with its Rules of Arbitration as in force and effect on the date of the Contract. Disputes shall be settled by a single arbitrator. Arbitration proceedings shall be held in Vilnius, Lithuania. The place of arbitration shall be Vilnius, Lithuania. The language of arbitration shall be English. Relevant documents in other languages shall be translated into English if the arbitrators so direct. All expenses and costs of the arbitrators and the arbitration in connection therewith will be shared equally, except that the Company and Customer will each bear the costs of its own prosecution and defense, including without limitation attorney’s fees and the production of witnesses and other evidence. Any award rendered in such arbitration shall be final and may be enforced by either Party.
(c) Notwithstanding the foregoing, nothing in this Contract shall be construed to waive any rights or timely performance of any obligations existing under this Contract, including without limitation Customer’s obligations to make payments. Notwithstanding any other provision of this Contract, the Customer agrees that it shall not withhold or offset such payments, and agrees that Customer’s sole remedy for alleged breaches by the Company is pursuant to this section.
(d) Notwithstanding any other term of this Contract, prior arbitration shall not be required, nor shall any arbitrator have the power to enjoin, notice of termination or effective termination of the Services of this Contract.
(e) The Parties agree to keep all details of the arbitration proceedings and arbitral award strictly confidential and shall use all reasonable efforts to take such action as may be appropriate to prevent the unauthorized disclosure of the proceedings, any information disclosed in connection therewith and the award granted.
(a) The Parties within the validity period of Contract and during 10 years after its termination are obliged to provide confidentiality of present Contract and any other information and datum of any kind received from each other (oral, written, electronic, other) in relation to performance of the Contract (including the datum concerned with information security facilities and identification/ authentication, authorization (login, password), statistic information, information about users, products, services, research results etc.) which possess real or potential business value being unknown to the third parties. Such information is legally prevented from free access and is determined by Disclosing Party as confidential (hereinafter – confidential information). Each Party undertakes not to disclose confidential information to third parties without written permission of the other Party.
Information is not considered to be confidential if:
- information is publicly available or subsequently became publicly available without breach of this section by the Receiving Party;
- information has been known the Receiving Party at the moment of its disclosure by disclosing Party, which fact can be approved with proper evidence;
- information has been received from the third Party legally without violation of this section;
- information has been transferred by disclosing Party with express consent to information disclosure without limitation to the third Party.
(b) The Parties undertake immediately inform each other about the information disclosure occurrence or risk, illegal receipt or use of confidential information by third parties.
(c) Under the disclosure of confidential information under this Contract means an act or omission of one of the Parties, in which the confidential information becomes known to third parties without the consent of the Disclosing Party.
The form of disclosure of confidential information to third parties does not matter.
(d) Providing confidential information on the legal requirement of law enforcement and other authorized state bodies and administrative officials in cases and in order prescribed by applicable law is not considered as a breach of confidentiality.
The Company and the Customer hereby represent to one another as follows:
(a) It is a full aged and legally capable individual or a company or corporation duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated, and has full corporate or other power and authority and the legal right to own or license and operate its property and assets and to carry on its business as it is now being conducted and as contemplated in this Contract.
(b) This Contract has been duly executed and delivered on behalf of the Company and the Customer, by signatories duly authorized to enter into this Contract.
18. Entire agreement
This Contract sets forth the entire understanding between the Parties with respect to the subject matter hereof, and merges and supersedes all prior agreements, discussions and understandings, express or implied, concerning such matters. This Contract shall take precedence over any additional or conflicting terms which may be contained in Services’ purchase order or Company’s order acknowledgment forms.
19. Changes in the terms of the Contract
The Company has the right to change the terms of this Contract unilaterally by updating this Contract of rendering services of the flespi platform at the Company’s site without any prior notice. In such a case the changes come into force from the moment of publication of a new version of the Contract at the following address: https://flespi.com/contract. If the Customer continues to use the Company’s Services after amending to the terms of the Contract, it means the acceptance and agreement with such amendments.