ACKNOWLEDGEMENT AND ACCEPTANCE
Thank you for using our sites and services. FlowMSP, Inc. (also referred to as “FlowMSP”, “us”, or “we”) provides this website, other websites, and applications available for download in the App Store and Google Play (collectively the “FlowMSP Applications”) with application integration platforms, tools, software, mobile applications and related services (the “Services”), together sometimes referred to herein as Licensed Products, subject to your compliance with all the terms, conditions, and notices contained or referenced herein (the “Terms and Conditions” or the “Agreement”). By using the Services or accessing the FlowMSP Applications, You agree to the Terms and Conditions. We reserve the right to change the Terms and Conditions from time to time. You acknowledge and agree that it is Your responsibility to review the Terms and Conditions periodically to learn of any modifications. Your continued access or use of the FlowMSP Applications, Services or Licensed Products after such change constitutes Your consent to be bound by the modified Terms and Conditions.
Please read carefully the following legally binding Agreement between FlowMSP and You for the Licensed Products. By selecting the accept option, accessing the Licensed Products or otherwise installing, accessing, copying or using the FlowMSP Applications or the Services You acknowledge that You have read, understand, and agree to be bound by the terms of this Agreement. If You do not agree with the terms of this Agreement, do not access or use the FlowMSP Applications, Services or Licensed Products.
If you do not agree with the Terms and Conditions, you are not authorized to access or use the Licensed Products for any purpose whatsoever. Also, by accessing, installing, copying or otherwise using Updates and/or Upgrades from FlowMSP You agree to be bound by any additional License terms that accompany such Updates and/or Upgrades. If You do not agree to the License terms that accompany such Updates and/or Upgrades, You may not access, install, copy or use such Updates and/or Upgrades.
Where a reseller, service provider, consultant, contractor or other party downloads or accesses the Licensed Products for You and/or installs the Licensed Products on Your behalf and/or creates an account on Your behalf to access the Licensed Products prior to Your access or use of the Licensed Products, such reseller, service provider, consultant, contractor or other party will be deemed to be Your agent acting on Your behalf and, You will be deemed to have accepted all of the Terms and Conditions as if You had directly downloaded, installed, created an account, accessed or used the Licensed Products.
‘Computer’ means where the Licensed Products is deployed, including non-persistent deployments using web agent technology, such as ActiveX, hosting, applications or otherwise providing access to the Licensed Products: (i) on or called by an email server, Your computers (including but not limited to any mobile, tablet or similar device) or any electronic or connected devices that are capable of receiving mail from any server; (ii) on or called by an internet proxy or other gateway device, Your computers and any electronic or connected devices that are capable of connecting to that proxy; (iii) on a database, Your computers and electronic or connected devices that are capable of retrieving data from that database; (iv) in any other manner to scan data, Your computers and any electronic or connected devices that are capable of retrieving that data; (v) on or called by a virtual machine running an operating system, each concurrently operating virtual machine, and (vi) on or called by a computer or any electronic or connected device, Your computer.
‘Documentation’ means any documentation provided to You by FlowMSP (whether electronic, audio, video, printed or other media), including any documentation which is accessible through the FlowMSP Applications, Services or accompanies the Licensed Products.
‘Expiry Date’ means such date as may be set out in the Schedule.
‘Fee’ means the Licensed Products Fee and the Support Fee (if applicable).
‘FlowMSP’ means FlowMSP, Inc. and its subsidiaries, or, as the context so applies, any of them.
‘License Term’ means the License term set out in Paragraph 3.2 of this Agreement.
‘Licensed Products’ means all or each (as the context so allows) of those FlowMSP Applications, services and products which are listed on the Schedule together with the Documentation and any of the Upgrades and Updates to those FlowMSP Applications, services or products.
‘Licensed Products Fee’ means the sums payable by You in respect of a License to use the Licensed Products for the License Term, or, with respect to certain of FlowMSP’s Products, in respect of a license to use the Licensed Products in perpetuity.
‘Maintenance’ means collectively Upgrades and/or Updates (where applicable to the Licensed Products), and standard technical support, or enhanced technical support if You have paid a Support Fee.
‘Schedule’ means the schedule provided to You by FlowMSP which sets out certain details in relation to Your use of the Licensed Products from time to time and which forms part of this Agreement.
‘Server’ means a Computer upon which the Licensed Products are installed AND from which other Computers receive or retrieve data PROVIDED THAT a Computer is not a Server where it is a single Computer from which other Computers receive or retrieve data AND such data is solely generated by the Licensed Products.
‘Software’ means any program or data file of FlowMSP or its resellers, distributors or dealers which you access or download, including through any service, internet connection, login, application or the like, including any Upgrades, Updates or the like accessible by You.
‘Start Date’ means such date that you first access, download or otherwise engage with the FlowMSP Applications, Services or Licensed Products.
‘Suggestions’ has the definition set out in Paragraph 6.2.
‘Support Fee’ means the sums payable by You in consideration of the provision by FlowMSP of enhanced support services (including implementation support services), if applicable.
‘Terms and Conditions’ means this FlowMSP Agreement and the Schedule.
‘Update’ means an update to the library of rules and/or identities made available to You by FlowMSP; and/or other updates to the FlowMSP Applications, Services, Licensed Products, filters or the like, including but not limited to an update to the IP address reputation libraries made available to You by FlowMSP.
‘Upgrade’ means any enhancement or improvement to the functionality of the Licensed Products (excluding Updates) made available to You by FlowMSP at its sole discretion from time to time but excluding any service, site, software and/or updates or the like marketed and licensed by FlowMSP as a new version or new release of the Licensed Products.
‘User’ means an employee, consultant or other individual who uses a Computer which benefits from the Licensed Product licensed to You and ‘Users’ shall be construed accordingly.
‘User Licenses’ means the maximum number of Users, or Computers (if applicable in accordance with the License exception set forth in Paragraph 3.3.1), as specified in the Schedule that are permitted to benefit from the Licensed Products.
‘You’ means the licensee and ‘Your’ means belonging to You or engaged by You or otherwise pertaining to You as the context so allows, whether on a temporary basis or otherwise. Any reference to “You” or “Your” shall include any individual, employee, corporation, municipality, fire department or any other entity using the Services or accessing the FlowMSP Applications.
‘Your Internal Business Purpose’ has the definition set out in Paragraph 3.3.1.
Once You have paid the Licensed Products Fee, or if you are evaluating the product as permitted in Paragraph 3.1, You may access the Licensed Products. You do not own any site, service, software, application, documentation, code or the like. The Licensed Products and Documentation are the exclusive property of FlowMSP and its licensors. The Licensed Products and the Documentation including all know-how, concepts, logic, specifications, and the like are proprietary information, property and products of FlowMSP and its licensors and are protected throughout the world by copyright and other intellectual property rights. No License, right or interest in FlowMSP’s logos, trademarks or any other intellectual property is granted to You under this Agreement and You hereby agree not to remove any product identification or notice of proprietary rights, registrations, or restrictions. Further, You hereby acknowledge and agree that all right, title and interest in any modification made by You to the Licensed Products or the like, including any downloaded information, intellectual property or the like, as provided for below in this Agreement, is retained by and owned by FlowMSP.
3.1 Evaluation. You may use the Licensed Products for evaluation purposes only in a trial, evaluation, or test environment without payment of a fee for a maximum of 30 days or such other duration as is specified by FlowMSP at FlowMSP’s sole discretion. The Licensed Products are provided “AS IS” during such evaluation period and Paragraphs 3.3 and 5 below do not apply to such evaluation.
3.2 License Term. This Agreement is effective from the moment of acceptance as described in the first paragraph of this Agreement or from the Start Date, whichever date is earlier, and shall remain in force either until the Expiry Date specified in the Schedule or, upon renewal of Your License, the Expiry Date of Your renewed License as set out in a Schedule provided to You by FlowMSP (and if no such date is specified, this Agreement shall continue in perpetuity although Your right to use the Licensed Products is dependent upon Your payment of the applicable Licensed Products Fee) or until terminated as provided in Paragraph 11 below, whichever is the sooner. If You want to renew Your License You should contact FlowMSP or Your reseller, distributor or dealer, as applicable. Your obligations under this Agreement in respect of all of the intellectual property and confidential information of FlowMSP shall survive any expiry or termination of this Agreement.
3.3 Rights. In consideration of the payment of the Fee by You and subject to Your compliance with the Terms and Conditions, FlowMSP hereby grants to You a limited, non-exclusive, non-sub licensable, revocable, non-transferrable license to (i) access and use the FlowMSP Applications and Services on your device solely in connection with your use of the Licensed Products; and (ii) access and use any content, information and related materials that may be made available through the Licensed Products, in each case solely for your noncommercial use and receive Maintenance for the License Term subject to the terms and conditions contained within this Agreement and any other conditions required by FlowMSP. Any rights not expressly granted herein are reserved by FlowMSP and its licensors. You are permitted to:
3.3.1 use the Licensed Products for Your internal business purpose, relating specifically to the integrity of Your systems, networks, documents, emails and other data (“Your Internal Business Purpose”). The number of Users for which You may use the Licensed Products for Your Internal Business Purpose must not exceed the number of User Licenses;
3.3.2 except as provided in Paragraph 3.3.3 below, which relates only to the Documentation, make one copy of uploaded data or any part thereof for backup purposes provided that You reproduce FlowMSP’s proprietary notices on any such backup copy made. You agree that such restriction do not prevent You from backing up or archiving Your data;
3.3.3 use, copy, and reproduce in whole or in part, the Documentation for Your Internal Business Purpose only; and/or
3.3.4 transfer the Licensed Products and Your rights under this Agreement on a permanent basis to another person or entity, provided that You transfer all access to all FlowMSP Applications, Services and Documentation and prior to such transfer (i) You pass in writing full contact details for the recipient to FlowMSP; and (ii) You procure in writing that the recipient agrees to be bound by the terms of this Agreement and notifies FlowMSP in writing of its agreement; and (iii) any third party transferee or recipient agrees to continue to make all payments required under this Agreement to FlowMSP.
3.4 Restrictions. You are not permitted to:
3.4.1 use the Licensed Products for the provision of any service for the benefit of third parties unless You first acquire the appropriate License in writing from FlowMSP;
3.4.2 modify or translate the Licensed Products except (i) as necessary to configure the Licensed Products using the menus, options and tools provided for such purposes and contained in the FlowMSP Applications; and, (ii) in relation to the Documentation, except as necessary to produce and adapt manuals and/or other documentation for Your Internal Business Purpose;
3.4.3 reverse engineer, disassemble or decompile the Licensed Products or any portion thereof or otherwise attempt to derive or determine the source code or the logic therein except to the extent and for the express purposes authorized by applicable law;
3.4.4 transmit or provide access to the Licensed Products other than as permitted in this Agreement;
3.4.5 use or access any site, service, application, software or the like other than the Licensed Products;
3.4.6 sub-license, rent, sell, lease, distribute or otherwise transfer the Licensed Products except as provided under this Agreement unless You obtain a separate License in writing from FlowMSP for such purposes (by way of example only, You may not embed the Licensed Products into another application and then distribute such to third parties unless You first acquire an appropriate written License from FlowMSP);
3.4.7 use the Licensed Products in or in association with safety critical applications where the failure of the Licensed Products to perform can reasonably be expected to result in a significant physical injury, or in loss of property, or loss of life. The Licensed Products are provided as a supplement to existing primary response systems, and are not intended, and shall not be used by You, as a dispatch system for emergency events or situations, as a substitute for existing emergency communication systems, or as a substitute for the exercise of reasonable judgments made by You or reasonable emergency services providers. Use Your good, reasonable common sense when using the Licensed Products, and do not substitute the Licensed Products for such common sense. Any such use is entirely at Your own risk, and You agree to hold FlowMSP harmless from any and all claims or losses relating to such unauthorized use; and/or
3.4.8 use the Licensed Products for the purposes of competing with FlowMSP, including without limitation competitive intelligence.
3.5 The Licensed Products may contain or be accompanied by software provided by third parties (“Third Party Software”) that is subject to separate license terms (the “Third-Party Terms”), and not any license contained in the terms of this Agreement. Your use of the Third-Party Software in conjunction with the Services must be in a manner consistent with the Third-Party Terms.
3.6 By using the Licensed Products, You grant FlowMSP a free and irrevocable, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use, copy, reproduce, process, adapt, modify, publish, transmit, display, sell and distribute Your data which includes, but is not limited to all structure information, hydrant information and flow rates, main locations and information, curb-stop and water-shut-off valve locations, maintenance schedules and results, structure locations, latitude/longitude, images, annotations, incident notifications and detail, and any other data or information you provide in using the FlowMSP Applications, Services, Licensed Products and the like. You also agree that FlowMSP and FlowMSP’s licensees and licensors may collect and use technical data and related information, including but not limited to technical information about your device, system and application software, peripherals that are gathered to facilitate software updates, product support, development, revision and any other services FlowMSP provides, may provide in the future or desires for any reason whatsoever.
4.1 This Agreement entitles You to receive Maintenance for the License Term provided that You have paid all applicable fees.
4.2 You acknowledge and agree that the Licensed Products and FlowMSP may directly and remotely communicate for the purposes of, without limitation, verifying Your credentials, issuing reports and alerts such as automated support requests and alert messages, and to provide Maintenance.
4.3 FlowMSP reserves the right in its discretion to limit the number of Users who may contact FlowMSP technical support.
5.1 To the best of FlowMSP’s knowledge, FlowMSP represents and warrants to You from the date of purchase (the “Warranty Period”): (i) the Licensed Products will perform substantially in accordance with the Documentation provided that the Licensed Products are operated in accordance with the Documentation, and (ii) the Documentation adequately describes the operation of the Licensed Products in all material respects.
5.2 If FlowMSP is notified in writing of a breach of this warranty during the Warranty Period, FlowMSP’s entire liability and Your sole remedy shall be (at FlowMSP’s option) to correct or replace the Licensed Products and/or its Documentation within a reasonable time or provide, or authorize a refund of the Fee following termination of all access to all Licensed Products accompanied by proof of purchase. Any items provided as replacement under the terms of this warranty will be warranted for the remainder of the original Warranty Period.
5.3 You shall not be entitled to the benefit of the Warranty Period if:
5.3.1 You fail to notify FlowMSP in writing within ten (10) days of any claim being made or proceedings being served on, issued or instituted against You with respect to the Licensed Products; or
5.3.2 You do not at the written request of FlowMSP forthwith cease to use or distribute the Licensed Products upon any such claim being made; or
5.3.3 You shall have, without the prior written consent of FlowMSP, acknowledged the validity of the claim or proceedings of such third party or taken any action which would or might impair the ability of FlowMSP to contest the claim or proceedings of the third party if it so elects, and in any such case, FlowMSP shall be entitled to terminate this Agreement forthwith by notice to You.
5.4 FlowMSP shall have no liability under paragraph 5.3 or otherwise if the alleged claim arises due to:
5.4.1 modification of the Licensed Products by anyone other than FlowMSP; or
5.4.2 use of the Licensed Products with any hardware, software or other component not provided by FlowMSP; or
5.4.3 use of the Licensed Products other than in accordance with the Documentation or
5.4.4 Your use, posting, uploading, or publishing any of Your or FlowMSP data or information .
5.5 You must be at least 18 years of age, or supervised by an individual of at least 18 years of age, to use the Licensed Products. By agreeing to the Terms and Conditions, You represent and warrant to FlowMSP that: You are at least 18 years old; You have not previously been suspended or removed from the Licensed Products; You have not previously been convicted of a felony; and Your registration and Your use of the Licensed Products, data and information is in compliance with all applicable laws and regulations.
5.6 You shall at Your own expense hold harmless, defend and fully and effectively indemnify FlowMSP, its affiliates, subsidiaries, licensors and licensees against any claims, proceedings, damages, costs, expenses (including attorneys fees) or other liability whatsoever arising out of, resulting from, or made against FlowMSP relating to Your use of the Licensed Products, FlowMSP data or information, Your data or information (including without limitation breach of Your warranty in Paragraph 5.6), and/or any Suggestions made by FlowMSP.
5.7 If You are using the Licensed Products on behalf of an entity, organization, or municipality, You represent and warrant that You have the authority to bind that organization to this Agreement and You agree to be bound by the terms and conditions of the Agreement on behalf of that organization.
5.8 You understand that by using the Service, You are given access to certain information for Your use solely as intended through the provided functionality of the Licensed Products and as permitted under the Terms and Conditions. You are solely responsible for Your own user content and the consequences of posting Your user content on the Licensed Products, including Your use of the Licensed Products that results in a violation of any individual’s or organization’s privacy rights.
5.9 FlowMSP may provide tools through the Licensed Products that enable You to export information, including data and information, to third party services. By using one of these tools, You agree that FlowMSP may transfer such exported information to the applicable third-party service. Third-party services are not under control of FlowMSP, and FlowMSP is not responsible for any third-party service’s use of Your data or information.
5.10 You are solely responsible for Your data and information and the consequences of posting, uploading, or publishing Your user data and information, including any required compliance under any federal or state laws. By posting, uploading, or publishing Your data and information, You represent, and warrant that: You are the creator and owner of, or have the necessary licenses, rights, consents, and permissions to use and to authorize FlowMSP and Your users of the Licensed Products to use and distribute Your data and information; that you are compliant with all federal and state laws including the Health Insurance Portability and Accountability Act (HIPAA); and the use thereof as contemplated herein, does not and will not: (i) infringe any third-party right, including any intellectual property, privacy or proprietary right; or (ii) slander, defame, libel, or invade the right of privacy, publicity or other property right of any other person. You acknowledge that FlowMSP is not HIPPA compliant for any such purpose.
5.11 FlowMSP is under no obligation to edit or control Your data and information that You or other users post, upload, or publish and will not be in any way responsible or liable for Your data or information, including data reformatted, edited, posted, uploaded, or published by FlowMSP on your behalf. For the benefit of doubt, FlowMSP will not be in any way responsible or liable for any errors or inaccuracies that occur during or as a result of FlowMSP’s performance under this Agreement. FlowMSP may, however, at any time and without prior notice, screen, remove, edit, or block any of Your data or information that in FlowMSP’s sole judgment violates the Terms and Conditions or is otherwise objectionable. You agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against FlowMSP with respect to Your data or information.
6.1 THE LICENSED PRODUCTS ARE PROVIDED “AS IS” AND “AS AVAILABLE.” EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED IN PARAGRAPH 5 ABOVE, FLOWMSP AND ANY OF ITS THIRD-PARTY LICENSORS AND SUPPLIERS AND THE CONTRIBUTORS OF CERTAIN INCLUDED SOFTWARE, APPLICATIONS, SITES AND THE LIKE MAKE NO WARRANTIES, CONDITIONS, UNDERTAKINGS OR REPRESENTATIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE IN RELATION TO THE LICENSED PRODUCTS INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ARISING FROM COURSE OF DEALING, USAGE OR TRADE. SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE OR BY JURISDICTIONS. WITHOUT LIMITATION TO THE FOREGOING, FLOWMSP DOES NOT WARRANT THAT THE LICENSED PRODUCTS WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE LICENSED PRODUCTS WILL BE ERROR FREE OR UNINTERRUPTED OR THAT DEFECTS IN THE LICENSED PRODUCTS WILL BE CORRECTED. FLOWMSP DOES NOT WARRANT THAT THE LICENSED PRODUCTS WILL BLOCK, DETECT AND/OR CORRECTLY IDENTIFY AND/OR DISINFECT ALL THREATS, APPLICATIONS (WHETHER MALICIOUS OR OTHERWISE) OR OTHER COMPONENTS. FLOWMSP DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, FLOWMSP MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE FLOWMSP APPLICATIONS, SERVICES, LICENSED PRODUCTS, INFORMATION, DATA, OR ANY SERVICE, DATA, INFORMATION OR GOODS REQUESTED THROUGH THE USE OF THE FLOWMSP APPLICATIONS, SERVICES OR LICENSED PRODUCTS, OR THAT THE FLOWMSP APPLICATIONS, SERVICES OR LICENSED PRODUCTS, WILL BE UNINTERRUPTED OR ERROR-FREE.
6.2 FLOWMSP DOES NOT WARRANT OR REPRESENT THAT YOU ARE ENTITLED TO BLOCK ANY THIRD PARTY APPLICATIONS AND EXPRESSLY DISCLAIMS LIABILITY FOR ANY SUGGESTIONS MADE BY FLOWMSP (INCLUDING WITHOUT LIMITATION BY ITS EMPLOYEES, CONSULTANTS AND SUB-CONTRACTORS) IN CONNECTION WITH YOUR USE OF THE LICENSED PRODUCTS (“SUGGESTIONS”).
6.3 FLOWMSP DOES NOT WARRANT THAT YOU ARE ENTITLED TO ENCRYPT OR DECRYPT ANY THIRD-PARTY INFORMATION.
6.4 YOU FURTHER ACKNOWLEDGE AND AGREE THAT YOU SHALL BE SOLELY RESPONSIBLE FOR PROPER BACK-UP OF ALL DATA AND THAT YOU SHALL TAKE APPROPRIATE MEASURES TO PROTECT SUCH DATA. FLOWMSP AND ITS LICENSORS ASSUME NO LIABILITY OR RESPONSIBILITY WHATSOEVER IF DATA IS LOST.
7.1 YOU USE THE FLOWMSP APPLICATIONS, SERVICES AND LICENSED PRODUCTS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL FLOWMSP OR ANY OF ITS LICENSORS, SUPPLIERS OR THE CONTRIBUTORS OF CERTAIN INCLUDED SOFTWARE, APPLICATIONS, SERVICES, DATA, INFORMATION AND THE LIKE BE LIABLE TO YOU, TO ANY THRID PARTY, OR TO THOSE CLAIMING THROUGH YOU FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES OR LOSS OF ANY KIND INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF CONTRACTS, LOSS OF BUSINESS OPPORTUNITIES, BUSINESS INTERRUPTIONS, PROPETY DAMAGE, LOSS OF LIFE, BODILY HARM OF ANY SORT, LOSS OF OR CORRUPTION OF OR ERROS IN DATA OR INFORMATION, OR FOR COSTS OF PROCURING SUBSTITUTE SITES OR SERVICES, HOWEVER CAUSED AND WHETHER ARISING UNDER CONTRACT OR TORT, INCLUDING NEGLIGENCE, EVEN IF FLOWMSP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.2 IF ANY LIMITATION, EXCLUSION, DISCLAIMER OR OTHER PROVISION CONTAINED IN THIS AGREEMENT IS HELD TO BE INVALID FOR ANY REASON BY A COURT OF COMPETENT JURISDICTION AND FLOWMSP BECOMES LIABLE THEREBY FOR LOSS OR DAMAGE THAT MAY LAWFULLY BE LIMITED, SUCH LIABILITY WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL NOT EXCEED THE LOWER OF THE LICENSED PRODUCTS FEE PAID BY YOU AND FLOWMSP’S LIST PRICE FOR THE LICENSED PRODUCTS.
7.3 IN NO EVENT SHALL FLOWMSP’S AGGREGATE LIABILITY TO YOU ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, FROM ALL CAUSES OF ACTION AND THEORIES OF LIABILITY, EXCEED THE AMOUNTS PAID BY YOU TO FLOWMSP UNDER THIS AGREEMENT IN THE SIX (6) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY.
8.1 If You do not choose to allow: (i) sharing of data with any other FlowMSP customer or application in order to improve protection, data accuracy, and recency; or (ii) remote assistance, this Paragraph 8 does not apply to You.
8.2 If You choose to allow sharing of data with any other FlowMSP customer or authorize FlowMSP to provide remote assistance, You have agreed to implement optional functions which allow the Licensed Products to provide FlowMSP or other FlowMSP customers with various data. While FlowMSP does not intend that such data include proprietary, confidential or user-identifiable data, by enabling this option You acknowledge that it may be possible for such data to include proprietary, confidential or user-identifiable data and You represent to FlowMSP that You have obtained all necessary permissions to share such data with FlowMSP or other FlowMSP customers.
If You choose to allow sharing of data with any other FlowMSP customer and You choose to allow your data to be kept up-to-date utilizing FlowMSP data sharing services, you understand your data may be deleted and overwritten by more recent data collected or provided by a data sharing partner. You are solely responsible for Your data and information and the consequences of sharing data with any other FlowMSP customer, including any deletion or loss of data that is overwritten in conjunction with data sharing.
8.3 FlowMSP cannot control how You or other FlowMSP customers use data that may be shared between parties by enabling this option, and FlowMSP disclaims all liability arising from any data sharing or related use.
If You are an agency or other part of the U.S. Government, the Licensed Products and the Documentation are commercial computer software and commercial computer software documentation and their use, duplication and disclosure are subject to the terms of this Agreement per FAR 12.212 or DFARS 227.7202-3, as amended.
You hereby agree that You will use, disclose and/or transport the Licensed Products in accordance with any applicable export control laws and regulations and that You are solely responsible for fulfilling any applicable governmental requirements in connection with Your use, disclosure and/or transport of the Licensed Products and relating to any transfer under Paragraph 3.3.4 above. You agree to indemnify and hold FlowMSP harmless from and against any claim, loss, liability or damage suffered or incurred by FlowMSP resulting from or related to Your violation of this paragraph.
You agree that FlowMSP may, at any time, and at FlowMSP’s sole discretion, terminate Your account or suspend or prohibit Your access to the Licensed Products without prior notice to You for violating any of the terms or conditions of this Agreement or for any other reason whatsoever. You may terminate this Agreement at any time by terminating your logon credentials and ceasing use of the Licensed Products by written notice to FlowMSP. This Agreement and Your rights under it will also terminate immediately if: (i) You fail to pay the Fee in accordance with the agreed payment terms; or (ii) You fail to comply with any of the terms and conditions of this Agreement; or (iii) if You take or suffer any action on account of debt or are insolvent. On termination of this Agreement, You must terminate your logon credentials and cease use of the Licensed Products. Within one month after the date of termination of this Agreement, You must supply written certification to FlowMSP of your compliance hereunder. Upon termination of Your use of the Licensed Products You continue to be bound by applicable provisions of this Agreement. If You terminate Your account, You remain obligated to pay all outstanding fees, if any, relating to Your use of the Licensed Products incurred prior to termination.
12.1 The Licensed Products include confidential information that is secret and valuable to FlowMSP and its licensors. You are not entitled to use or disclose that confidential information other than strictly in accordance with the Terms and Conditions. FlowMSP reserves the right to disclose details of the Agreement to third parties for publicity and promotional purposes and:
12.1.1 You expressly give FlowMSP permission to include and publish Your name and logo on lists of FlowMSP’s customers for the Licensed Products; and
12.1.2 You agree that FlowMSP may send emails to You to provide information and goods and services to You and to let You know about other goods and services in which You may be interested.
12.2 If You do not wish to give FlowMSP permission under Paragraph 12.1.1 and/or 12.1.2, You must notify FlowMSP by the date no later than seven days after the License Start Date specifying which permission is not granted.
12.3 Notwithstanding the foregoing, FlowMSP will only process personal information in accordance with the provisions of the Data Protection Act 1998. Personal information may be disclosed within the FlowMSP group of companies.
12.4 In order to use the Licensed Products, You must register for an account. You agree that the information You provide when registering is accurate and that You will keep it accurate and up-to-date at all times. You are solely responsible for maintaining the confidentiality of Your account and password. You agree to accept responsibility for all activities that occur under Your account, including activities conducted by FlowMSP on your behalf. If You have reason to believe that Your account is no longer secure, then You must immediately notify FlowMSP.
12.5 The Licensed Products are owned and operated by FlowMSP. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code and object code), products, software, services, and all other elements of the FlowMSP Applications, Services and Licensed Products provided by FlowMSP are protected by intellectual property and other laws. All such intellectual property and rights are solely owned by FlowMSP. Except as expressly authorized by FlowMSP in this Agreement, You may not make use of the FlowMSP Applications, Services or Licensed Products. In addition, FlowMSP owns any and all right, title, and interest in and to any data, information, or materials You convey to us related to the FlowMSP Applications, Services or Licensed Products in connection with Your use thereof. You hereby assign to FlowMSP all right, title, and interest in all such data, information, and materials.
13.1 Any reseller, distributor or dealer from whom You may have purchased any product which is not appointed or authorized by FlowMSP as its servant or agent shall have no authority under this Agreement. No third-party entity or person has any authority, either express or implied, to enter into any contract or provide You with any representation, warranty or guarantee with or to You or to translate or modify this Agreement in any way on behalf of FlowMSP or otherwise to bind FlowMSP in any way whatsoever.
13.2 You agree that FlowMSP may use any technical information provided by You, including without limitation information provided under the terms of Paragraph 8, for its business purposes, including without limitation for product support and development.
13.3 You agree to pay the Fee in full in accordance with an invoice from FlowMSP, or an authorized reseller, distributor, or dealer, if applicable. Unless otherwise stated, the Fee is exclusive of any federal, state, municipal or other governmental taxes, duties, Licenses, fees, excises or tariffs. You agree to pay such taxes or, in lieu thereof, to provide an exemption certificate acceptable to FlowMSP and the applicable authority. Invoices may provide for interest to be paid on any sums not remitted by the due date.
13.4 You shall permit FlowMSP or an independent certified accountant appointed by FlowMSP access on written notice to Your premises and Your books of account and records at any time during normal business hours for the purpose of inspecting, auditing, verifying or monitoring the manner and performance of Your obligations under this Agreement, including without limitation the payment of all applicable Fees. FlowMSP shall not be able to exercise this right more than twice in each calendar year. If an audit reveals that You have underpaid fees to FlowMSP, You shall be invoiced for and shall pay to FlowMSP within 30 days of the date of invoice an amount equal to the shortfall between the fees due and those paid by You. If the amount of the underpayment exceeds 5% of the fees due or the audit reveals a violation of any License restrictions pursuant to this Agreement then, without prejudice to FlowMSP’s other rights and remedies, You shall also pay FlowMSP’s reasonable costs of conducting the audit.
13.5 FlowMSP may at its sole discretion subcontract any of its rights or obligations hereunder to any of its subsidiaries, resellers, distributors or dealers, as applicable.
13.6 FlowMSP may amend the Terms and Conditions at any time by reasonable notice, including without limitation by posting revised terms on its website at the URL https://www.flowmsp.com which amended terms and conditions shall be binding upon You.
13.7 Failure by FlowMSP to enforce any particular term of this Agreement shall not be construed as a waiver of any of its rights hereunder.
13.8 The illegality, invalidity or unenforceability of any part of this Agreement will not affect the legality, validity or enforceability of the remainder.
13.9 FlowMSP will not be liable for any failure or delay in the availability of the Licensed Products, or any other performance of its obligations under the Agreement on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, material shortages, national or global pandemics, or any other cause that is beyond FlowMSP’s reasonable control, including any failure of wireless or cellular services provided by any third-party in connection with Your use of the Licensed Products.
13.10 If You and FlowMSP have signed a separate written License agreement covering the use of a product, the terms of such signed License agreement shall take precedence over any conflicting terms of this Agreement. Otherwise, this Agreement and the Schedule constitute the entire agreement between the parties in relation to the Licensed Products and its licensing and supersedes any other oral or written communication, agreement or representation with respect to the Licensed Products, except for any oral or written communications, agreements or representations made fraudulently.
13.11 If there are any inconsistencies between the English language version of this Agreement and any translated version, then the English language version shall prevail.
13.12 A person who is not a party to this Agreement has no right to enforce any term of this Agreement under applicable legislation and the parties to this Agreement do not intend that any third-party rights are created by this Agreement.
13.13 All disputes under this Agreement between You and FlowMSP shall be resolved by BINDING ARBITRATION. You agree to give up Your right to file a lawsuit in any court to assert or defend Your rights under this Agreement. Your rights will be determined by a neutral arbitrator and not a judge or jury, in accordance with the rules of the American Arbitration Association and Your claims cannot be brought as a class action. Unless the parties agree otherwise, all proceedings shall be held in a State of Delaware venue in the English language.
13.14 This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware and the courts of the State of Delaware shall have non-exclusive jurisdiction to determine any disputes, which may arise out of, under, or in connection with this Agreement.
Any notices required to be given in writing to FlowMSP or any questions concerning the Terms and Conditions should be addressed to FlowMSP, Inc. at 2740 Columbus Street, #182, Ottawa, IL, 61350.