FLOW CORPORATION MASTER SUBSCRIPTION AGREEMENT
LAST UPDATED: December 1st, 2015
THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES.
IF YOU REGISTER FOR A FREE SUBSCRIPTION FOR OUR SERVICES, THIS AGREEMENT WILL ALSO GOVERN THAT FREE SUBSCRIPTION.
BY ACCEPTING THIS AGREEMENT, EITHER BY REGISTERING FOR A USER ACCOUNT AT THE FLOWTHINGS.IO WEBSITE OR BY EXECUTING A PRODUCT ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
You may not access the services if you are our direct competitor, except with our prior written consent. In addition, you may not access the services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
THIS AGREEMENT IS EFFECTIVE BETWEEN YOU AND US AS OF THE DATE OF YOU ACCEPTING THIS AGREEMENT.
"Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” means this Master Subscription Agreement.
“API” is refers to the acronym for Application Programing Interfaces.
“Customer” means the entity identified as “Customer” on the Product Order Form.
“Effective Date” has the meaning set forth above.
“flowthings.io Platform” means the products and services that are ordered by You under a free subscription or a Product Order Form and made available by Us, including associated offline components, software downloads, and usage of Application Programming Interfaces (API). .
“Flow Units” means the unit of measurement by which We charge for Our Services. Flow Units are accounted for by numeric volume against a total monthly allowance. The amount of Flow Units consumed by Your usage of the flowthings.io Platform is roughly equivalent to the volume of Your Data ingested and the amount of processing performed on Your Data.
“Intellectual Property Rights” means patents, copyrights, trademarks, service marks, or trade secret rights.
“Product Order Form” defines scope of Flow products licensed including associated pricing terms.
"Purchased Services" means Services that You or Your Affiliate purchase under an Order Form, as distinguished from those provided pursuant to a free trial.
“Services” means the products and services that are ordered by You under a free subscription or a Product Order Form and made available by Us, including associated offline components, software downloads, and usage of Application Programming Interfaces (API).
“User” means an individual who is authorized by You to use a Service, for whom You have ordered the Service, and to whom You (or We at Your request) have supplied a user identification and password. Users may include, for example, Your employees, consultants, contractors and agents, and third parties with which You transact business.
“User Content” means any content or work of authorship submitted by Customer or their end-users that is transmitted, rendered, displayed or executed on or through the Service, including without limitation any text, postings, audio, sounds, video, photos, images, messages, code and materials.
"We," "Us" or "Our" refers to Flow Corporation.
"You" or “Your" refer to you personally (i.e., the individual who reads and agrees to be bound by these Terms), and, if you access the flowthings.io Service on behalf of a corporation or other legal entity, you and such corporation or other legal entity on whose behalf you access the flowthings.io Service.
“Your Data” means electronic data and information submitted by or for You to the Purchased Services or collected and processed by or for You using the Purchased Services.
If You register at flowthings.io website for a Free Subscription, we will make Our Services available to You free of charge until the earlier of (a) You exceed the level of Free usage (20,000 Flow Units per Month), or (b) the start date of any Purchased Service subscriptions ordered by You for such Service(s).
USE OF SERVICE
Flow hereby grants You a worldwide, royalty-free, non-exclusive, non-sublicenseable and non-transferable license and right to use the Our Services at its discretion, with no obligation to use such Services, and to make the flowthings.io Platform available to its Users, under the terms of this Agreement. All rights not expressly granted to You pursuant to this Agreement are reserved by Flow and its licensors.
Unless otherwise provided in the applicable Product Order Form, (a) Services are purchased as subscriptions, (b) subscriptions may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions.
Services are subject to usage limits as specified in a Product Order Form as a quantity of Flow Units provisioned on a monthly basis. If You exceed a contractual usage limit, We will work with You to execute a Product Order Form for additional quantities of the Services.
You will not: (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service in any way, except as expressly authorized in this Agreement; (ii) modify (except as permitted through the Service) or make derivative works of the Service; or (iii) reverse engineer or access the Service in order to build a competitive product or service.
We shall make (a) the Service available to You pursuant to this Agreement and the applicable Product Order Forms, (b) provide Our standard level support for the Purchased Services to You at no additional charge, and/or Premium support if purchased, and (c) use commercially reasonable efforts to make Purchased Services available 24 hours a day, 7 days a week, except for: (i) planned downtime and (ii) any unavailability caused by circumstances beyond Our reasonable control, including, for example, act of government, flood, fire, earthquake, Internet service provider failure or denial of service attack.
You will (a) be responsible for Users’ compliance with this Agreement, (b) be responsible for the accuracy, quality and legality of Your Data and the means by which You acquired Your Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services, and notify Us promptly of any such unauthorized access or use, and (d) use Services and Your Data only in accordance with the Documentation and applicable laws and government regulations.
You are responsible to pay all fees as specified in Product Order Forms. Payment obligations are non- cancelable and fees paid are non-refundable, and quantities purchased cannot be decreased during the relevant subscription term. Fees are based on Service purchased, not actual usage.
Invoicing and Payment
Invoices will be issued upon execution of associated Product Order Forms and are due within thirty (30) business days of the date of the invoice unless otherwise stated in a Product Order Form. All payments are specified in US Dollars.
Renewal of subscriptions shall be invoiced thirty (30) days before the end of the then-current Subscription Term. Failure to renew Service subscriptions may result in Service downtime or loss of User Data.
Our pricing on Product Order Forms does not include any taxes, levies, duties, or other government assessments that may apply (collectively Taxes”). You shall be the responsible for paying all Taxes associated with Your Purchased Services.
PROPRIETARY RIGHTS, LICENSES, AND INTELLECTUAL PROPERTY
Flow Intellectual Property
Flow and its licensors, partners, or affiliates, where applicable, shall own all right, title and interest, including all related Intellectual Property Rights in and to Services and flowthings.io Platform. This Agreement is not a sale and does not convey to You any rights of ownership in or related to the Services, the flowthings.io Platform, or the Intellectual Property Rights owned by Flow. No right or license is granted to use any Flow or flowthings.io trademarks, including product names and logos.
You grant Us and Our Affiliates a worldwide, limited- term license to host, copy, transmit, display and process Your Data, and program code created by or for You using Our Service, as necessary for Us to provide the Services in accordance with this Agreement. All right, title and interest in and to all User Data shall be owned by You.
You grant to Us and our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services to any enhancement requests, recommendations, suggestions, comments, evaluations, ideas, or other information relating to the Service (the “Feedback”) provided by You or Users in relationship to Our Service.
Confidential Information means all information or data which is provided by or on behalf of either party (the “Disclosing Party”), including an Affiliate, to the other party (the “Receiving Party”) in any form that has been marked confidential, or has been orally identified as confidential, or which would be considered confidential to a reasonable person familiar with the Disclosing Party’s business operations.
Information will not be deemed Confidential Information if such information: (a) is known to the other party before it received it and is not subject to an existing obligation of confidence between the parties; (b) is provided to a party by a third party who is not under an obligation of confidence in respect of the information; (c) is available in the public domain, other than as a result of a breach of this agreement; or (d) is independently developed by the Receiving Party as can be demonstrated by documentary evidence.
Each party must (a) keep the other party’s Confidential Information secret and confidential; (b) not access, use or reproduce the other party’s Confidential Information for any purpose outside the scope of the Agreement, nor assist or permit any other person to do so; (c) not distribute, sublicense, rent, lease, transfer, modify, adapt, emulate, translate, make derivative works from, analyze for structure or composition, reverse engineer, de-compile, disassemble, or otherwise attempt to derive source code from, the other party’s Confidential Information; (d) not disclose nor use the other party’s Confidential Information except as permitted under this Agreement; and (e) take all steps reasonably necessary to safeguard the other party’s Confidential Information from unauthorized access, use, or disclosure.A party may disclose the other party’s Confidential Information (a) if disclosure is required by law or the rules of any stock exchange, provided that it first notifies the other party of the required disclosure so to allow it (where practicable) a reasonable opportunity to object to such disclosure and seek a protective order or other appropriate remedy. In any event, such disclosure must be limited only to such Confidential Information specifically required and only the extent required by said law or rules; or (b) with the prior written consent of the other party.
Term and Termination
Term of Agreement
The term of this Agreement starts on the date You accept the Agreement and continues until all subscriptions hereunder have expired or have been terminated.
Term of Paid Subscriptions
Paid subscriptions as defined in executed Product Order Forms automatically renew for terms equal to the expiring subscription unless either Party provides 30 days written notice on intent not to renew. Pricing will be the equivalent to the expiring subscription terms unless We notify You of pricing change with a minimum of 60 days written notice.
Either Party may terminate this Agreement at any time upon 30 days written notice to the other Party: (i) if the other Party materially breaches any material provision of this Agreement and fails to remedy such material breach within thirty (30) days after receiving written notice of such breach; or (ii) if the other party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party’s property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other Party and is not dismissed within ninety (90) days, or the other party becomes judicially declared insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course of business.
Upon termination or expiration of this Agreement, the following provisions will survive in full force and effect the termination or expiration of this Agreement: 5, 6, 7, 9, 10, 11, and 12.
Indemnification by Us
We shall indemnify and hold harmless Customer, its parent organizations, subsidiaries, affiliates, officers, directors, employees and agents from and against any and all third party claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) the use of a Purchased Service in accordance with and as expressly permitted under this Agreement, including third party claims that the a Purchased Services infringes or misappropriates any third party’s Intellectual Property Rights; (ii) Flow’s misuse of User Data; or (v) the negligent acts of Flow in connection with the performance of this Agreement.
Indemnification by You
You shall indemnify and hold harmless Flow, its parent organizations, subsidiaries, affiliates, officers, directors, employees and agents from and against any and all third party claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) the User Content, including without limitation any third party claim alleging that use of any User Content infringes or misappropriates the rights of, or has caused harm to, a third party; or (ii) the breach or violation by Customer of any of its responsibilities, representations, covenants, or warranties under this Agreement.
A Party’s obligation to indemnify (“Indemnifier”) the other Party (“Claimant”) pursuant to this Section 10 shall only arise if: (i) the Claimant promptly notifies the Indemnifier in writing of the claim; (ii) the Indemnifier has sole control of the defense and of any negotiations for its settlement; and (iii) the Claimant provides the Indemnifier with reasonable assistance, information, and authority necessary to perform the above. Claimant will have the right to employ separate counsel and participate in the defense at Claimant’s sole expense. Neither Party will settle or compromise any claim or action on the other party’s behalf without first obtaining the other Party’s written permission, which permission will not be unreasonably withheld.
EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICE IS PROVIDED ON AN “AS-IS” BASIS AND FLOW MAKES NO REPRESENTATIONS, WARRANTIES, OR GUARANTIES AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE. FLOW DOES NOT REPRESENT OR WARRANT THAT: (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, (C) ANY DATA ACCESSED THROUGH THE SERVICE WILL BE ACCURATE OR RELIABLE, (D) ERRORS OR DEFECTS WILL BE CORRECTED, OR (E) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. FLOW AND ITS LICENSORS DISCLAIM (TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW) ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT AND/OR THE SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY DATA OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF SUCH PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT SHALL EITHER PARTY HAVE AGGREGATE LIABILITY ARISING OUT OF, WITH RESPECT TO OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNTS PAID BY YOU TO FLOW PURSUANT TO THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT UPON WHICH CLAIMS ARE BASED.
This Agreement shall be governed by New York law and controlling United States law, without regard to the choice or conflicts of law provisions thereof, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement shall be subject to the exclusive jurisdiction of the state and federal courts located in New York, NY.
This Agreement comprises the entire agreement between You and Us and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the Parties regarding the subject matter contained herein. No provision of this Agreement may be terminated or modified unless such termination or modification is set forth in a written agreement executed by an authorized representative of the Parties.
This Agreement may not be assigned by either Party without the prior written approval of the other Party and any such assignment shall be null and void. Notwithstanding the foregoing, either Party may assign the Agreement, without the other Party’s consent, to any successor to all or substantially all of such party’s assets (whether by way of merger, consolidation, stock sale or otherwise) or another entity that directly or indirectly controls, is controlled by, or is under the common control with such assigning party.
Relationship of Parties
The parties are independent contractors. This Agreement does not create a partnership, joint venture, agency, franchise, fiduciary or employment relationship between the parties.
All notices required to be given under this Agreement must be in writing and will be deemed given: (i) if delivered personally, on the date given; (ii) if delivered by an overnight courier delivery service, on the date of delivery; and (iii) if sent by electronic mail, upon receipt of a return e-mail (other than an automatically generated return e-mail indicating that the notice has been delivered) and provided that a copy of the notice is also sent via first-class mail. Billing-related notices to You shall be addressed to the relevant billing contact designated by You. All other notices to You shall be addressed to the relevant Services system administrator designated by You.
The failure of either Party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by the waiving Party in writing.
If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.