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By installing the software from Flow Software Inc. (“Software”), you indicate that you have read this End User License Agreement (“EULA”) and unconditionally accept its terms and conditions. This is a legal agreement between you, the person, end user, company, or other legal entity that is downloading, installing, or using the Software, (“You” or “Your”) and Flow Software, Inc. (“Licensor”).
You acknowledge and agree that the Software and any current information regarding the Software that is provided or made available to You by Licensor either in electronic or print form (“Documentation”) is the property of Licensor, and is protected by International Copyright laws and International treaty provisions. No ownership rights are granted by this Agreement or possession of the Software and Documentation and ownership of the Software and Documentation remains with Licensor. You are not obtaining ownership of the Software and Documentation or any intellectual property rights related to the Software and Documentation by licensing the Software. Licensor retains all right, title, and interest in and to the Software, including any enhancements, updates, modifications, improvements and derivatives thereof, and all intellectual property rights therein. Licensor may make changes to the Software and Documentation from time-to-time. Licensor will use commercially reasonable efforts to provide notice of any material changes to the Software via their website(s) or other means of printed or electronic communication.
The Software and Documentation are licensed, not sold, and are subject to Your compliance with all terms and conditions of this EULA, including, but not limited to, Your timely payment of all applicable license fees and Your compliance with the license process, Licensor grants you a worldwide, personal, non-exclusive, non-transferable, and non-sublicensable license to download, install, and use the Software and Documentation solely for Your internal business purposes pursuant to the terms of this EULA. Therefore, you must treat the Software like any other copyrighted material (e.g. a book or musical recording). Licensor reserves all other rights in and to the Software and Documentation not granted to You in writing herein.
The Software you acquired may be specifically marked or otherwise identified as intended for a specific purpose or limited use. When this is the case, you may only use the Software for the purpose specified. You may not use the versions of the Software marked (i) Demo, Software intended only for evaluation or trial periods of 90 days or less, or (ii) Education, Software intended for teaching and training purposes within higher education institutions, or (iii) Home, Software intended for personal use by an individual, for any commercial purposes.
Once you activate the Software using the alphanumeric code that enables you to activate the Software (“License Key”) provided by Licensor, You have a registered instance, a single copy of the Software running on a physical or virtual machine, (“Instance”) of the Software. You are licensed to activate only the number of Instances of the Software corresponding to the number of License that You receive from the Licensor. All License Keys will be regenerated by Licensor upon renewal of an expired maintenance and support contract and will require You to reactive the Software.
This EULA does not give you any right to any support services or consultation services that Licensor my offer from time to time. Support and consultation services require separate contracts and payment between You and Licensor.
This Section details the terms for both Subscription and Perpetual Licensing options available for the Software, supplementing the terms of the EULA.
2.1 Subscription Licensing
License Grant: Licensor grants You a time-bound, non-exclusive, non-transferable, and non-sublicensable license to download, install, and use the Software and Documentation for Your internal business purposes, for a term of twelve (12) months ("Subscription Term").
Fee and Payment: The subscription fee is payable monthly or annually. Monthly payments require a credit card and incur an automatic charge each month for the full Subscription Term. Annual renewals will be subject to an increase of 4.25% on the initial fee.
Renewal: Your subscription will automatically renew at the end of each Subscription Term unless You notify Licensor of Your intent not to renew 30 days prior to the term's expiration.
Maintenance Included: Standard Maintenance is included with all subscription licenses, providing support services without additional cost. Premium Maintenance is available at an additional cost.
2.2 Perpetual Licensing
License Grant: Licensor grants You a perpetual, non-exclusive, non-transferable, and non-sublicensable license to download, install, and use the Software and Documentation for Your internal business purposes.
Maintenance Options: Annual maintenance contracts are optional for perpetual licenses but required for version upgrades, bug fixes, and technical support.
Renewal of Maintenance: You may choose to purchase Standard or Premium Maintenance annually. Lack of a maintenance contract may affect the functionality of the Software and excludes maintenance benefits.
2.3 General Terms for All Licenses
Data Ownership and Export: You retain ownership of all data and configurations created or stored by You. Upon termination, You may export such data following the procedures outlined in the Software Documentation.
License Expiration: Non-renewal of a subscription will render the Software inoperable. With a perpetual license, the Software remains operational regardless of maintenance contract renewal.
Governing Law: This Contract is governed by the laws of the State of Texas, without regard to its conflict of laws principles, and is supplementary to the EULA.
2.4 Acceptance of Licensing Terms
By selecting a license type, making a payment, and using the Software, You acknowledge that You have read and understand the licensing terms outlined in this Section 3, and agree to be bound by them as part of this EULA. Your use and payment constitute acceptance of the respective license and any associated terms.
Your rights and obligations in the Software’s use are described as follows:
- You may use this Software on a supported platform as listed on www.flow-software.com.
- You are responsible for the collective of Your employees, agents, users, and other authorized end users and contractors (“Users”) with respect to the Software, the Documentation and this EULA. Without limiting the generality of the foregoing, any breach of this EULA by Your Users, or any actions or omissions of Your Users pertaining the Software, the Documentation, or this EULA, will be deemed to be Your breach, action or omission, as applicable.
- You may not modify or attempt to reverse engineer the Software, or make any attempt to change or even examine the source code of the Software.
- You may not work around or bypass any technical restrictions or limitations within the Software.
- You may give or distribute copies of the Software or written materials associated with the Software to others, but you may not attempt to give or distribute the accompanying license key to others.
- You may not sub-license, sell, or lease the Software to any person or business without Licensor’s written consent.
- You acknowledge and consent that hosted commercial systems for the benefit of a third party are prohibited and You will not permit any third party to benefit from the use and functionality of the Software via a rental or lease agreement without Licensor’s written consent.
- You may not publish or publicly distribute any License Keys, serial numbers, passwords, or other end user specific registration information that would allow a third party to activate the Software without a valid license from Licensor.
- You agree that Licensor may audit Your use of the Software for compliance with the terms and conditions of this EULA, upon reasonable notice. You agree to cooperate fully with Licensor and its authorized agents in any such audit to assist in accurately determining Your compliance with the terms and conditions of this EULA. If such audit reveals any use of the Software by You other than in full compliance with the terms of this EULA, You will take all necessary action to bring Your usage into compliance and will pay Licensor for all reasonable expenses related to such audit in addition to any other liabilities You may incur as a result of such non-compliance.
- You may not remove, minimize, block, or modify any logos, trademarks, copyright notices or other notices Licensor includes in the Software or Documentation.
- You are responsible for the security of your systems and data, including Software on Your systems. You are responsible for excluding code, files, scripts, agents, or programs intended to do harm including, but not limited to, malware, Trojan horses, viruses, or spyware.
Licensor’s obligations under this EULA are conditioned upon Your compliance with, and You agree to comply with, all applicable export and re-export controls, embargoes, and economic and trade sanctions laws and regulations, including those of the United States (“Export Laws”).
You agree to take all reasonable action to ensure the Software is not made available to a sanctioned person, meaning, any person (i) included on an export control or sanctions list of designated or blocked persons maintained by the U.S. Department of Treasury’s Office of Foreign Assets Control, the U.S. Department of Commerce, the U.S. Department of State, the United Nations Security Council, the European Union, any Member State of the European Union, or the United Kingdom; (ii) operating, organized, or resident in a Sanctioned Country; (iii) the government of, or acting for or on behalf of the government of, Afghanistan, Myanmar, Venezuela or a Sanctioned Country; or (iv) owned or controlled by one or more such persons (“Sanctioned Person”) or a sanctioned country, meaning, a country or territory that is itself the subject or target of any comprehensive trade or economic sanctions, currently Belarus, Cuba, Iran, North Korea, Russia, Syria, and certain regions of Ukraine (“Sanctioned Country”).
You represent that any Software or Documentation provided hereunder and any derivatives thereof will not be (i) downloaded or accessed by a Sanctioned Person, (ii) exported, re-exported (including any ‘deemed exports’), shipped, distributed, delivered, sold, resold, supplied, or otherwise transferred, directly or indirectly, to any Sanctioned Person or otherwise in a manner contrary to the Export Laws, (iii) used for any purpose prohibited by the Export Laws, or unless expressly authorized by Licensor in writing, or (iv) used for non-civilian purposes (e.g. armaments, nuclear activities, weapons, rockets, long-range unmanned aerial vehicles any other usage in the field of defense and military).
Without limiting the foregoing, You represent and warrant that (a) You are not a Sanctioned Person, and (b) You will not download or otherwise access, or facilitate a third party’s download or access of, any Software or Documentation from a Sanctioned Country. You will, at least once per year, review and update Your list of Users who have access to the Software and Documentation and confirm that no such User is a Sanctioned Person and that all such Users may continue to access the Software and Documentation in compliance with Export Laws.
Licensor may conduct the necessary Export Laws checks and, upon request, You will promptly provide Licensor with any necessary information.
In the event that You fail to comply with any provision of this section or violate any Export Laws in connection with the Software or Documentation, Licensor will have the right to act in accordance with the terms of this EULA and as required by U.S. law or the applicable law. Further, You will defend, indemnify and hold harmless Licensor, its affiliates and their respective officers, members, directors, employees, agents, successors, licensors and assigns against any losses, claims, damages, fines, and costs (including attorney’s fees and expenses) relating in any way to Your noncompliance with this section, including Your violation or alleged violation of any Export Laws; provided, that Licensor reserves the right, in its sole discretion and at its own expense, to assume the exclusive defense and control of any claims (and without limiting Your indemnification obligations with respect to such claims), and You agree to reasonably cooperate as requested by Licensor in the defense of any claims.
You agree to diagnostic information regarding the use of the Software to be sent to Licensor via your internet access point at your cost. Such diagnostic information includes software registration, license usage and error reporting. Furthermore, you acknowledge and agree that Licensor may: (i) collect and process technical and related information about Your use of the Software, which may include, without limitation, modules installed, usage statistics (e.g., number of events, measures, tags, instances, dashboards, connections, etc.), Software version, country, language, time zone, OS version, CPU architecture, memory size, and other similar data; and (ii) create certain aggregated, de-identified information related to the Software, including information about the Software environment, performance, and other usage information. You authorize Licensor to use such data to support and troubleshoot, analyze trends and benchmark, and test and improve the Software.
Licensor does not warrant that the Software or the Documentation will be error free, that it will satisfy your planned applications or that all defects in the Software and Documentation can be corrected. If Licensor provides information or assistance regarding the use of the Software or the Documentation, or otherwise, Licensor is not assuming the role of engineering consultant. Licensor disclaims responsibility for any errors or omissions arising in connection with engineering in which its Software or its Documentation or such information or assistance is used.
The Software may be used to access and transfer information over the internet or be used in connection with hardware and other products that are connected to the internet. You acknowledge and agree that Licensor does not operate or control the internet and that: (a) worms, viruses, Trojan horses, and other undesirable data or software and malware; or (b) unauthorized users may attempt to obtain access to and damage your data, websites, computers or networks. Licensor will not be responsible for these activities.
Licensor’s entire liability shall be, at Licensor’s option, either (a) return of the price paid for the Software (or component), or (b) repair or replacement of the Software (or component) that does not meet Licensor’s limited warranty and which is returned to Licensor within the warranty period. This shall be the sole and exclusive obligation of Licensor. The limited warranty is void if failure of the Software (or component) has resulted from accident, abuse or misapplication.
To the maximum extent permitted by applicable law, in no event will Licensor be liable for any special, incidental, indirect, punitive, exemplary or consequential damages of any kind or nature whatsoever (including, but not limited to, damages or costs for lost profits, lost revenue, lost data, loss of goodwill, cost of cover or business interruption) arising out of or in any way related to this EULA or the use of or inability to use the Software or Documentation, regardless of the form of action, whether in contract, tort, negligence, strict liability or otherwise, even if Licensor, its affiliates, its distributors, or its resellers have been informed of the possibility of such damages or if any remedy specified in this EULA otherwise fails of its essential purpose.
Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages so the above limitation may not apply to You. The maximum aggregate liability of Licensor together with all its affiliates and licensors arising out of or related to this EULA, whether or not insured, will not exceed the greater of (i) the total license fees actually paid by You to Licensor for the Software and Documentation under this EULA during the twelve (12) months immediately preceding the claim or (ii) $14,000 USD, but in no event, more than $56,000 USD.
Confidential Information (“Confidential Information”) means all information disclosed by a party (“Disclosing Party”) to the other party
(“Receiving Party”) under this EULA, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.
Confidential Information of Licensor includes (i) the Software, (ii) the technology, ideas, know-how, documentation processes, algorithms and trade secrets embodied in the Software, (iii) any License Keys related to the Software, and (iv) the terms and conditions of this EULA and any Supplemental Terms (including pricing). Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. Confidential Information does not include information that: (i) is known to the Receiving Party prior to disclosure by the Disclosing Party; (ii) is or becomes publicly available without breach of any obligation owed to the Disclosing Party; (iii) is received by the Receiving Party from a third-party without knowledge of any breach of any obligation owed to the Disclosing Party; or (iv) is or has been independently developed by the Receiving Party without the use of or reference to the Disclosing Party’s Confidential Information.
Use and Disclosure of Confidential Information. The Receiving Party will (i) not disclose Confidential Information of the Disclosing Party, except on a need-to-know basis to its employees, members, directors, officers, consultants and representatives (including, but not limited to, financial, tax and legal advisors) (collectively, “Representatives”), (ii) use and copy Confidential Information only as required to exercise rights or perform obligations under this EULA, and (iii) protect Confidential Information from unauthorized use or disclosure using the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care). The Receiving Party (a) will ensure that all its Representatives receiving Confidential Information are bound by confidentiality obligations and use restrictions at least as restrictive as those herein, and (b) will be liable for compliance with this section by each of its Representatives.
Permitted Disclosure. The Receiving Party may disclose the Disclosing Party’s Confidential Information if required by a governmental agency, by operation of law, or if necessary, in any proceeding to establish rights or obligations under this EULA; provided, that the Receiving Party gives the Disclosing Party prior notice of the required disclosure (if permitted to do so under law) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
Publicity. Licensor may identify You as a customer (by name, logo or other mark) on its websites and in customer lists and other marketing materials.
Software Instances licensed by You may be lost due to environmental, mechanical, electrical, or human error and are Your sole responsibility. Failure to maintain a support contract on any licensed Software Instance jeopardizes Your ability to recover that license. It is at the sole discretion of the Licensor to provide new License Keys for existing licensed Instances of the Software when said Software Instances are not bound by a valid support contract. Instances of the Software that are bound by a valid support contract will receive one (1) free re-licensing of an Instance of the Software.
You will pay Licensor the applicable fees for the Software and Documentation within net 45 days from the date of invoice or as otherwise agreed by the parties in writing. Payments not made within the time required may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by applicable Laws, whichever is lower.
All prices are exclusive of any taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any governmental authority, including any interest, additions to tax or penalties applicable thereto (“Taxes”). You agree to pay or reimburse Licensor for the payment of any applicable Taxes or duties including, but not limited to, sales Taxes, value added Taxes, goods and services Taxes, consumption Taxes, and any withholding Taxes imposed by any government authority on Your use of or license to the Software and Documentation and on any payments made by You to Licensor with respect thereto, excluding, however, income Taxes on profits which may be levied against Licensor. If You are exempt from value-added or sales tax, then You must provide a valid, timely, and executed exemption certificate, direct pay permit, or other such government-approved documentation to Licensor. Upon Your reasonable request, Licensor shall provide you with a duly executed and properly completed IRS Form W-9. If You are required by Law to make any income tax deduction or to withhold income tax, after the application of reductions or exemptions available under applicable Law or international treaties, from any sum payable directly to Licensor hereunder, You will promptly effect payment thereof to the applicable tax authorities, You will promptly provide Licensor with official tax receipts or other evidence issued by the applicable tax authorities, and You will increase the sum payable to Licensor as necessary so that after such deduction or withholding has been made (including such deductions or withholdings applicable to additional sums payable under this section), Licensor receives an amount equal to the sum it would have received had no such deduction or withholding been made. For the avoidance of doubt, You are responsible for, and will indemnify Licensor for, any Taxes, including withholding Taxes, resulting from making licenses available to users in geographic regions outside the country in which You are located.
No Supplemental Terms. No provision of this Agreement shall be amended, supplemented or waived except by written agreement signed by the parties hereto. This Agreement sets forth the entire understanding and agreement between the parties with respect to the subject matter set forth herein and supersedes any prior or contemporaneous discussions, understandings, orders, requests or statements regarding such subject matter, other than the pricing and payment terms contained on the attached or related invoice.
Changes to the EULA. You acknowledge and agree that Licensor may amend this EULA from time to time, and the amendments will be effective upon Your clicking accept, indicating Your acceptance electronically or upon Your downloading, installing or using a new version of the Software. If You do not want to accept the terms of the amended EULA, then You will not be able to use the new version of the Software, but You may continue using Your old version of the Software under the terms of the EULA previously accepted by You.
Severability. If any provision of this EULA is found by a competent judicial authority to be unenforceable in any respect, such provision will be limited or eliminated to the minimum extent necessary so that the remainder of this EULA will continue in full force and effect.
Waiver. The failure by either party to enforce any provision of this EULA will not be construed as a waiver of such provision. No waiver of any rights under this EULA will be effective unless in writing signed by both parties, and the waiver of any breach or default will not constitute a waiver of any other right under this EULA or any subsequent breach or default.
Third Party Agreements. The Software may incorporate, embed, or be bundled with third party software which requires You to accept and agree to be bound by notices and/or additional terms and conditions. It is your responsibility to request Licensor provide copies of any applicable EULAs in writing and agree to review such terms and conditions set forth therein, if any. Your use of the Software will be deemed to be Your acceptance of any third party software EULAs thereof.
Feedback and Enhancements. If You provide any ideas regarding the Software or Documentation, including suggestions for changes or enhancements, (“Feedback”) in the course of using or evaluating the Software or Documentation, You agree that such Feedback may be used by Licensor without condition or restriction.
Force Majeure Events. Neither party will be in default nor liable for any delay or failure to comply with this EULA due to a natural disaster, pandemic, war or act of terrorism, act of government, or other circumstance beyond the reasonable control of the affected party (each a “Force Majeure Event”) for the duration of the Force Majeure Event; provided, that such party promptly notifies the other party of the occurrence of the Force Majeure Event. Notwithstanding the foregoing, a Force Majeure Event does not permit You to delay or fail to comply with Your payment obligations under this EULA unless the Force Majeure Event results in the inability of the banking system to process payments.
Governing Law and Jurisdiction. This EULA will be governed by and construed in accordance with the Laws of the State of Texas, without regard to the principles of conflicts of law, and any dispute, controversy or claim arising out of, relating to or in connection with this EULA will be brought exclusively in the state or federal courts of competent jurisdiction sitting in Austin, Texas. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this EULA. Each party consents to the personal jurisdiction, venue and convenience of such courts.
Independent Status of Parties. This EULA does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
Counsel and Interpretation. The parties and their respective counsel have had an opportunity to review this EULA. The parties acknowledge and agree that: (i) the rule of construction to the effect that any ambiguities are resolved against the drafting party will not be employed in the interpretation of this EULA; and (ii) the terms and provisions of this EULA will be construed fairly as to all parties hereto and not in favor of or against any party, regardless of which party was generally responsible for the preparation of this EULA. The section headings used in this EULA are for convenience and reference only and do not form part of this EULA. A word importing the singular includes the plural and vice versa. The word “including” will be interpreted to mean “including without limitation”.
Notices. Notices related to this EULA will be in writing and sent to the party’s address as specified in the applicable Licensor invoice. All notices sent to Licensor will be sent to the attention of the Legal Department.
If you have questions or concerns about our Privacy Policy, please contact us at information@flow-software.com.
Last updated: March 06, 2024
