Software license and software as a service terms and conditions
BY INSTALLING OR USING THE LICENSED SOFTWARE FROM FLO Partners Inc. (“FLO” ), THE INDIVIDUAL IF ACTING ON BEHALF OF HIMSELF OR HERSELF (“INDIVIDUAL CUSTOMER“) OR THE INDIVIDUAL WHO IS ACTING ON BEHALF OF A CORPORATION EDUCATIONAL OR NONPROFIT INSTITUTION, GOVERNMENTAL AGENCY, OR OTHER (“ENTITY CUSTOMER”), THE INDIVIDUAL CUSTOMER AND ENTITY CUSTOMER TOGETHER ARE ”CUSTOMER”) IS AGREEING TO BE BOUND BY THIS SOFTWARE LICENSE AGREEMENT (“AGREEMENT”). IF CUSTOMER DOES NOT AGREE TO THIS AGREEMENT, CUSTOMER MAY NOT ACCESS, INSTALL, COPY, OR USE THE LICENSED SOFTWARE. THE “EFFECTIVE DATE” FOR THIS AGREEMENT IS THE EARLIER OF THE FIRST DATE OF ANY APPLICABLE ORDER FORM OR THE FIRST DAY THE CUSTOMER INSTALLS, USES OR ACCESSES THE SOFTWARE.
“Activation Key” means, collectively, the specific Serial Number, code, and authorization for each copy or access licensed of the Licensed Software issued by FLO to Customer.
“Affiliates” or “Affiliate” means an entity, institution, or organization that controls, is controlled by, or is under common control with another entity, institution, or organization, with at least majority ownership.
“Authorized Reseller” means an authorized distributor, authorized reseller, or dealer of the Licensed Software.
“Authorized User” means an employee, contractor, registered student, research assistant, or agent of Entity Customer authorized by Entity Customer to use the Licensed Software.
“Confidential Information” has the meaning set forth in Section 7 of this Agreement.
“Customer Enhancements” means enhancements to any interface, search, script, code or other matter in which the copyright is owned by Customer and which are not derivative works of or equivalent in function or data format to the whole or any part of the Licensed Software or FLO Enhancements excluding process or customization documentation.
“Customer” means the Individual Customer and the Entity Customer jointly.
“Customer Materials” means process and customization documentation prepared by or on behalf of the Customer.
“Documentation” means the user manuals, videos, guides, and supporting documentation in electronic form provided with or available online and associated with the Licensed Software under this Agreement.
“FLO Enhancements” means enhancements to FLODocs Bundle in which the copyright is owned by FLO or distributed by FLO from time to time. FLO Enhancements are not defined as Software.
“FLO Website” means www.suiteview.net and www.flodocs.com.
“FLODocs Service” or “FLODocs” is online process documentation software provided by FLO. It is accessed directly or through an embedded frame within another software package with the FLODocs Bundle installed. Unless otherwise explicitly stated in writing within the relevant file(s) or in a document signed by FLO, Customer will not copy, edit, modify, reproduce or attempt to reverse engineer the FLODocs Service in whole or in part.
“FLODocs Bundle” comprises installable components comprising scripts,html files, images, documents, process descriptions, code objects and workflows or other materials, files or code (collectively “materials”) provided by FLO to customers installing FLODocs on servers or accounts not operated by FLO that permit FLODocs to more tightly integrate with customer’s business systems. Unless otherwise explicitly stated in writing within the relevant file(s) or in a document signed by FLO, Customer will not copy, edit, modify, reproduce or attempt to reverse engineer the materials or the FLODocs Bundle in whole or in part.
“License Fee” means the applicable fee for which Customer licenses the Licensed Software.
“License Period” means annually renewing term unless (a) terminated as provided below or (b) a specific fixed term is otherwise set forth in an agreement signed by both parties
“Licensed Software” means the FLODocs Service and/or the FLODocs Bundle software components or any other software components or services licensed to the Customer.
“Order Form” means (i) a completed copy of FLO’s printed Services estimate or order form, which sets out applicable pricing information and other information related to Customer’s use of FLODocs, that has been accepted in writing by FLO; and/or (ii) in the case of a subscription to the Services or an amendment thereto that is purchased online, the subscription information provided by Customer in FLO’s online order form together with the terms of this Agreement.
“Service Level Commitment” means a service level commitment to Customer by FLO contained in Article 10.
“Services” means the services provided by FLO to Customer under this Agreement, including providing access to FLODocs, the operation and management of FLODocs, any development, support or training services described in this Agreement. Note: Unless otherwise specified in the applicable Order Form.
“Technology” means all information technology, including but not limited to FLODocs and all other applications, software bundles, configurations bundles, saved searches, reports, interfaces, code and documentation, developed or provided by FLO or its suppliers at any time in relation to the Services and includes any enhancements, additions, amendments, improvements or derivatives of the Technology requested by or prepared by the Customer, including the Customer Enhancements. Technology does not include the Customer Materials.
“Third-Party Software” means certain software supplied by third parties that FLO provides access to as part of the Licensed Software or which are used concurrently with the Licensed Software, including but not limited to NetSuite.
“Update” means a revision to the Licensed Software or patch that improves the functionality of the Licensed Software, and may contain new features or enhancements, which is not an Upgrade.
“Upgrade” means a subsequent version of the Licensed Software that FLO designates as a new release and makes generally commercially available or a different flavor of the Licensed Software that FLO makes generally commercially available.
- LICENSE AND ACTIVATION KEY, LICENSE GRANTS, THIRD-PARTY RESTRICTIONS AND OWNERSHIP.
2.1 License and Activation Key.
Upon first access to the Licensed Software, FLO shall issue Customer a “License and Activation Key” that sets forth the specific Licensed Software, the specific number of Authorized Users for Entity Customers, and the Activation Key associated with the Licensed Software (the License and Activation Key). The License and Activation Key is hereby incorporated by reference into this Agreement. Certain of the licenses in Section 2.2(b) permit use by Authorized Users of Entity Customer and the Entity Customer is responsible for compliance of all such Authorized Users with the Agreement and shall be liable for the breach of the terms of this Agreement by such Authorized Users.
(a) Single-User License Grant.
This Section 2.2(a) applies only to an Individual Customer whose License and Activation Key issued by FLO specifies the “License Type” as “Single User”. A Single-User license is for a named individual who is identified as the only Authorized User. Subject to the terms and conditions of this Agreement, FLO grants to Customer a non-assignable, nontransferable license, without the right to sublicense, to use the Licensed Software, in object-code form only, solely for Customer’s internal business, research, or educational purposes, and solely by the Individual Customer. The Individual Customer cannot share access to the Licensed Software with any other individual and cannot transfer the license to another individual without FLO’s explicit written consent.
(b) Concurrent Authorized-User Grant.
(i) Enterprise License Grant — Licensed Software.
This Section 2.2(b) (i) applies only to a Customer whose License and Activation Key issued by FLO specifies the “License Type” as “Enterprise”. Subject to the terms and conditions of this Agreement, FLO grants to Customer a non-assignable, non-transferable license, without the right to sublicense, to access or use the Licensed Software, as applicable, as a web service or in object-code form only, solely for Customer’s internal business, research, or educational purposes. Customer is authorized by FLO to provide access to the Licensed Software to Authorized Users as long as the specific number of Authorized Users for which Customer has paid the applicable License Fee is not exceeded. Where the Licensed Software is deployed as an extension or component of another platform including but not limited to NetSuite, the license grant extends to a single account instance of that platform and its corresponding sandbox account, if applicable, provided that the Authorized Users on both accounts are the same.
(ii) Customer Obligations.
This Section 2.2(b) (ii) applies to a Customer whose License and Activation Key issued by FLO specifies the “License Type” as “Enterprise”. Customer is responsible for managing the usage of the Licensed Software to ensure that such usage does not exceed the specific number of Authorized Users for which Customer has paid the applicable License Fee. Customer may add additional Authorized Users to Customer’s account for the Licensed Software by placing an order with FLO or an Authorized Reseller.
(c) Agency License
(i) Agency License Grant — Licensed Software.
This Section 2.2(c) (i) applies only to a Customer whose License and Activation Key issued by FLO specifies the “License Type” as “Agency”. Subject to the terms and conditions of this Agreement, FLO grants to Customer a non-assignable, non-transferable license, without the right to sublicense, to access or use the Licensed Software, as applicable, as a web service or in object-code form only, solely for Customer’s internal business, research, or educational purposes. Where the Licensed Software is deployed as an extension or component of another platform including but not limited to NetSuite, the license grant extends to:
Any operational, sandbox, development or test account owned by the Customer other than accounts used to deliver managed services for a third party or otherwise used for the benefit of a third party.
Access by Customer staff or consultants to any platform account operated by or for the benefit of a third party under a service contract with Customer for period not to exceed 15 days for diagnostic and initial assessment purposes, provided that such third party has agreed to these terms.
Access by Customer staff or consultants to the Licensed Software operating in a platform account operated by a third party with a valid license from FLO.
All Customer’s employees or consultants working with the Licensed Software in any of the accounts specified in 1, 2 and 3 above.
(ii) Customer Obligations.
This Section 2.2(c) (ii) applies to a Customer whose License and Activation Key issued by FLO specifies the “License Type” as “Agency”. Customer is responsible for managing the usage of the Licensed Software to ensure that such usage does not exceed the license grants specified above and that any third party owning or operating such platform account has agreed to these terms.
2.3 Third-Party Software.
The Third-Party Software is subject to various other terms and conditions imposed by the licensors of such Third-Party Software. A list of the applicable Third-Party Software license terms is provided on the FLO Website. Customer’s use of the Third-Party Software is subject to, and governed by, the specified Third-Party license terms, except that this Section 2.3 (Third-Party Software) and Section 4.4 (No Warranty) and Section 8 (Limitation of Liability) of this Agreement also govern Customer’s use of the Third-Party Software. Customer agrees to comply with such Third-Party license terms.
2.4 Documentation License.
Subject to the terms and conditions of this Agreement, FLO grants to Customer a non-assignable, non-transferable license, without the right to sublicense, to use the Documentation in connection with Customer’s authorized use of the Licensed Software. Customer may not reproduce or distribute the Documentation in any manner, whether physically or electronically, without the express written permission of FLO.
2.5 License to FLO Enhancements.
Subject to the terms and conditions of this Agreement, FLO grants to Customer a non-assignable, non-transferable, royalty-free license, without the right to sublicense, to use the FLO Enhancements solely with the Software for Customer’s internal business, research, or educational purposes.
2.6 License to Customer Enhancements
Subject to the terms and conditions of this Agreement, FLO grants to CUSTOMER a non-assignable, non-transferable, royalty-free license during the term of this Agreement to create Customer Enhancements solely for use with the Licensed Software. Customer may distribute the Customer Enhancements to third parties either at no charge or for a fee during the term of this Agreement. Customer may also use or purchase enhancements from other FLO Customers. THE FLO ENHANCEMENTS AND ANY CUSTOMER ENHANCEMENTS USED BY CUSTOMER ARE PROVIDED TO CUSTOMER ON AN ‘AS IS’ AND ‘WHERE IS’ BASIS AND WITHOUT WARRANTY OF ANY TYPE OR KIND. FLO AND ITS THIRD-PARTY LICENSORS HEREBY EXPRESSLY DISCLAIM AND EXCLUDE ALL WARRANTIES AND CONDITIONS, WHETHER STATUTORY, EXPRESS, IMPLIED. OR OTHERWISE, WITH RESPECT TO THE FLO ENHANCEMENTS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.
2.7 License to Customer Enhancements.
If Customer submits Customer Enhancements to FLO or makes Customer Enhancements generally available for modification,use, or distribution without charge by third parties, Customer grants to FLO and to other FLO Customers a perpetual, irrevocable, transferable, royalty-free license to modify, reproduce, and distribute the Customer Enhancements, with the right to sublicense through multiple tiers of distribution. THE CUSTOMER ENHANCEMENTS ARE PROVIDED TO FLO AND OTHER CUSTOMERS ON AN ‘AS IS’ AND ‘WHERE IS’ BASIS AND WITHOUT WARRANTY OF ANY TYPE OR KIND. CUSTOMER HEREBY EXPRESSLY DISCLAIMS AND EXCLUDES ALL WARRANTIES AND CONDITIONS, WHETHER STATUTORY, EXPRESS, IMPLIED OR OTHERWISE, WITH RESPECT TO THE CUSTOMER ENHANCEMENTS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.
Customer shall not, nor permit any person (including any Authorized User) to: (i) reverse engineer, reverse compile, decrypt, disassemble, or otherwise attempt to derive the source code of the Licensed Software (except to the extent that this restriction is expressly prohibited by law); (ii) modify, translate, or create derivative works of the Licensed Software; (iii) sublicense, resell, rent, lease, distribute, market, commercialize, or otherwise transfer rights or usage to the Licensed Software (except as expressly permitted under this Agreement); (iv) remove, modify, or obscure any copyright notices or other proprietary notices or legends appearing on or in the Licensed Software, or any portion thereof; (v) transfer, use, or export the Licensed Software in violation of any applicable laws, rules, or regulations of any government or governmental agency; (vi) use the Licensed Software or any system services accessed through the Licensed Software to disrupt, disable, or otherwise harm the operations, software, hardware, equipment, and/or systems of a business, institution, or other entity, including, without limitation, exposing the business, institution, or other entity to any computer virus, trojan horse, or other harmful, disruptive, or unauthorized component; or (vii) embed the Licensed Software in any third-party applications, unless otherwise authorized in writing in advance by an officer of FLO.
The Licensed Software, FLO Enhancements, and Documentation contain copyrighted material and other proprietary material and information of FLO and/or its licensors. FLO and/or its licensors shall retain all right, title, and interest, including all intellectual property rights, in and to the Licensed Software, FLO Enhancements, and Documentation. Customer will not remove, alter, or destroy any form of copyright notice, proprietary markings, or confidential legends placed upon or contained within the Licensed Software, FLO Enhancements, or Documentation, or any component thereof. “FLO”, “FLODocs”, “SuiteView”, “If It’s Not Written Down It Doesn’t Exist”, “First, Last, One-Level”, “A Place for Everything and Everything in its Place” are trademarks and servicemarks of FLO Partners Inc.
2.10 CERTAIN INTELLECTUAL PROPERTY MATTERS
2.10.1 FLO does not own the Customer Materials, has no intellectual property rights in the Customer Materials except for the right under this Agreement to publish them using FLO, and has no responsibility for the Customer Materials or for any loss or damage they cause, or for any use of the Customer Materials by any other person. All rights in the Customer Materials that are not licensed under this Agreement are reserved by the owner.
2.10.2 FLO owns and shall own all intellectual property rights in the Technology, including its look and feel, the database designs, the architecture of all information technology included in it, and any elements of such technology that are intrinsic to the Technology. Customer will not acquire any right, title, or interest in or to the Technology except as expressly set forth in this Agreement. Customer will not modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Technology or any Services, or create or attempt to create a substitute or similar service or product through use of or access to the Services or proprietary information related thereto. Customer will not remove, obscure, or alter FLO’s copyright notices or other proprietary rights notices affixed to or contained within any Services or Customer Materials.
2.10.3 FLO may insert a legend in the footer on any webpage, interface or printed document (“Content”) derived from the Licensed Software or the Services indicating that the Content is produced or powered by FLO, the Licensed Software or the Services. FLO may insert a hyperlink in that legend to FLO’s own web site. FLO may use Customer’s name and trade-mark in a list of representative clients.
- TECHNICAL SUPPORT AND UPGRADES AND UPDATES.
3.1 Technical Support.
FLO agrees to provide Customer with technical support services which include periodic distribution of bug fixes and minor enhancements as Updates scheduled by FLO. All registered users of the then-current release of FLO and the previous release ofFLO are eligible for free limited technical support. Installation support inquiries by telephone will be accepted by FLO during normal business hours. Technical support email inquiries are accepted at any time and will be answered during normal FLO business hours. FLO will attempt to respond to inquiries within the same business day. Support email requests are to be submitted to firstname.lastname@example.org.
3.2 Updates and Upgrades.
To receive and use an Upgrade, Customer must pay the applicable fees for that Upgrade and agree to FLO’s standard terms and conditions governing the use of that Upgrade. If no such standard terms and conditions are stated by FLO, the terms of this Agreement shall apply and the Upgrade shall be deemed Licensed Software. FLO will issue a new Activation Key for the Upgrade. For a Single-User license, once FLO issues the new Activation Key for an Upgrade version, Customer shall be able to continue to use the prior version of the Licensed Software. For Enterprise licenses, once FLO issues the new Activation Key for an Upgrade, Customer shall be able to continue to use the prior version of the Licensed Software on the condition that technical support services are provided only for Authorized Users of the then-current version of the Licensed Software.
- LIMITED WARRANTY; WARRANTY DISCLAIMER.
4.1 Performance Warranty.
FLO represents and warrants that the Licensed Software substantially conforms to the functional specifications in the FLO Documentation. FLO will will use best efforts to repair Licensed Software if this warranty is breached unless it cannot do so within a reasonable period of time, then FLO will refund the fee paid for that license under the order for the remainder of the then current annual term (this Agreement will then terminate). FLO will have no obligation to repair, replace or refund fees in respect of versions or features that are labelled as Beta. FLO may remove or alter Beta features in its absolute discretion without liability. Customer must notify FLO in writing through proper support channels of any perceived defect or breach of this warranty. THIS SECTION CONTAINS CUSTOMER’S EXCLUSIVE REMEDY AND FLO’S SOLE LIABILITY FOR BREACH OF THIS WARRANTY.
4.2 No Disabling Code.
With respect to the Licensed Software (including any Updates or Upgrades) and as of the date of delivery, FLO represents and warrants that (i) it has used commercially reasonable efforts consistent with industry standards to scan for and remove any software viruses, and (ii) it has not inserted any Disabling Code.“Disabling Code” means computer code inserted by FLO that is not addressed in the Documentation and that is designed to delete, interfere with, or disable the normal operation of the Products. This Disabling Code warranty does not apply to FLO passwords necessary for the operation of the Licensed Software, to the Licensed Software’s Activation Key requirement, or for any use by Customer outside the scope of the license or after expiry of the term of any license.
4.3 Automated Documentation:
Documentation prepared in whole or in part utilizing documentation automation tools included in the licensed software is not a replacement for documentation prepared by a qualified expert in the process or configurations concerned. FLO specifically does not warrant that automated documentation is sufficient, complete or accurate enough to make any desired change. Customer acknowledges that such documentation is intended to be an aid to preparing such documentation. Customer further acknowledges that any changes to Customer’s system is made at Customer’s own risk. It is the Customer’s responsibility to ensure that no changes are made to the systems without following industry best practices, including but not limited to making such changes in a sandbox or test environment. FLO will have no liability of any kind for any such changes.
4.4 No Warranty.
EXCEPT FOR THE WARRANTIES ABOVE, THE LICENSED SOFTWARE, SERVICES, DOCUMENTATION, AND SUPPORT SERVICES ARE PROVIDED TO CUSTOMER ON AN ‘AS IS’ AND ‘WHERE IS’ BASIS AND WITHOUT WARRANTY OF ANY TYPE OR KIND. FLO HEREBY EXPRESSLY DISCLAIMS AND EXCLUDES ON BEHALF OF ITSELF AND ITS LICENSORS ALL WARRANTIES AND CONDITIONS, WHETHER STATUTORY, EXPRESS, IMPLIED, OR OTHERWISE, WITH RESPECT TO THE LICENSED SOFTWARE AND SUPPORT SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
- TERM AND TERMINATION.
Except for Customers with a fixed-term License Period, this Agreement shall commence on the Effective Date and shall continue in effect for recurring annual terms until terminated as set forth below. If the License Period is for a fixed term, this Agreement will commence on the Effective Date and shall continue until the earlier to occur of the expiration of the License Period or the termination of this Agreement as set forth below. In the case of additional Authorized Users who are authorized and added after the initial License Fee payment, the term of their usage of the Licensed Software shall be coterminous with the preexisting then-current term. If Customer purchases an Upgrade, the term of the Agreement shall be the specific term set forth in the new License and Activation Key issued for the Upgrade.
Customer may terminate this Agreement at any time upon written notice to FLO at least thirty (30) days’ prior to the end of any then current annual term. FLO may terminate this Agreement immediately without notice if Customer breaches any term of this Agreement, including, without limitation, breaching the scope of the license granted or confidentiality obligations under this Agreement.
5.3 Effect of Expiration or Termination.
Upon expiration or termination of this Agreement, (i) the rights and licenses granted to Customer pursuant to this Agreement shall automatically and immediately terminate and (ii) Customer shall immediately cease using the Licensed Software. In addition, for a fixed-term License Period, upon expiration of the License Period, the Activation Key will expire and the Licensed Software will cease to function. Unless the license is terminated for breach as specified in s.5.2, Entity Customer may convert its account to an Individual Customer account for archiving pruposes. Sections 2.3, 2.6, 2.7, 2.8, 2.9, 4.4, 5.3, 7, 8, 9, and 11 of this Agreement shall survive any expiration or termination of this Agreement.
- FEES AND PAYMENT.
6.1 Fees and Payment Terms.
Customer licenses the Licensed Software from FLO. This Agreement is between Customer and FLO solely, except in so far as it relates to Customer Enhancements. The applicable License Fee is specified on the FLO Website or in the specific price proposal provided by FLO or an Authorized Reseller. The payment terms and conditions for the License Fee payable to FLO are specified on the FLO invoice or in the specific price proposal provided by FLO. The payment terms and conditions for the License Fee payable to an Authorized Reseller are as specified by the specific Authorized Reseller. All fees paid to FLO are non-refundable except as explicitly permitted in this Agreement. FLO may terminate this Agreement and invalidate Customer’s Activation Key if the billing or contact information is false, fraudulent, or invalid or Fees are not paid when due. All overdue fees will bear an overdue finance charge of 1% per month. Customer will pay all taxes, including sales, use, personal property, value-added, excise, customs fees, import duties, stamp duties, and any other similar taxes and duties, including penalties and interest, imposed by any federal, state, provincial, or local government entity or any non-U.S. government entity on the transactions contemplated by this Agreement, excluding taxes based upon FLO’s net income from transactions with Customer, where applicable.
6.2 Additional Authorized Users Fee.
During the License Period, Customer shall pay to FLO or the specific Authorized Reseller the then-current rate for any licenses for additional Authorized Users. This fee shall be charged or invoiced to Customer on the date such additional Authorized Users are added to Customer’s account.
Customer and FLO agree to maintain the confidentiality of any confidential or proprietary information of one party (the “disclosing party”) received by the other party (the “receiving party”) during the term of, or prior to entering into, this Agreement that the receiving party should know is considered confidential or proprietary by the disclosing party based on the circumstances surrounding the disclosure, including, without limitation, non-public technical and business information (“Confidential Information”). The Licensed Software is copyrighted and shall be deemed FLO’s Confidential Information. The Documentation is copyrighted material of FLO. This section shall not apply to any information that is or becomes publicly available through no breach of this Agreement by the receiving party or is independently developed by the receiving party without access to or use of the Confidential Information of the disclosing party. The foregoing confidentiality obligations will not restrict either party from disclosing Confidential Information of the other party pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to enable the other party to seek a protective order or otherwise limit such disclosure. The receiving party of any Confidential Information of the disclosing party agrees not to use the disclosing party’s Confidential Information for any purpose except as necessary to fulfill its obligations and exercise its rights under this Agreement. The receiving party shall protect the secrecy of and avoid disclosure and unauthorized use of the disclosing party’s Confidential Information with no less than reasonable care. All the disclosing party’s information remains the property of the disclosing party.
- LIMITATION OF LIABILITY.
8.1 Consequential Damages Waiver.
IN NO EVENT SHALL FLO OR ITS LICENSORS HAVE ANY LIABILITY FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OF THE ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF ANY REPRESENTATIVE OF FLO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER.
8.2 Limitation of Liability.
IN NO EVENT SHALL FLO’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED: (I) IF THE LICENSED SOFTWARE OR SERVICE IS LICENSED OR OBTAINED FROM FLO DIRECTLY, THE LICENSE OR SERVICE FEES PAID BY CUSTOMER TO FLO FOR THE LICENSED SOFTWARE, OR (II) IF THE LICENSED SOFTWARE OR SERVICE IS LICENSED THROUGH AN AUTHORIZED RESELLER, THE LICENSE FEES PAID BY CUSTOMER TO THE APPLICABLE AUTHORIZED RESELLER, AS APPLICABLE. IN NO EVENT WILL FLO’S LICENSORS HAVE ANY LIABILITY FOR ANY CLAIM ARISING IN CONNECTION WITH THIS AGREEMENT.
8.3 Limitation of Remedies.
THE PARTIES AGREEE THAT THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER.
- U.S. GOVERNMENT END USERS.
The Licensed Software under this Agreement is “commercial computer software” as that term is described in DFAR 252.227-7014(a)(1). If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms and this Agreement as specified in 48 C.F.R. 12.212 (Computer Software) and 12.111(Technical Data) of the Federal Acquisition Regulations (“FAR”) and its successors. If acquired by or on behalf of any agency within the Department of Defense (“DOD”), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 227.7202 of the DOD FAR Supplement and its successors.
- SERVICE LEVEL COMMITMENT
FLO warrants that hosted versions of the Licensed Software will be have 99.99% availability, excluding pre-announced Scheduled Maintenance. The application will be considered available if the bulk of its core features are available to Customer’s users. Specific bugs and issues that do not impair the general or overall availability of the application will not be counted against this availability. Where the Licensed Software is deployed as an extension or component of another platform including but not limited to NetSuite, unavailability of that platform generally or bugs or issues arising from defects or bugs in that platform will not count against the available uptime.
Except as expressly provided herein, Customer may not assign or transfer any of its rights under this Agreement (including its licenses with respect to the Licensed Software and Documentation) without the prior written consent of FLO. Unless the Customer is required by statute or regulation to apply the law of a jurisdiction other than the State of New York, this Agreement will be governed by and construed in accordance with the laws of the State of New York and the federal U.S. laws applicable therein, excluding any conflicts of law provisions, and the Customer and FLO agree to submit to the personal and exclusive jurisdiction of the courts located in Erie County, New York. If the statute or regulation applying to the Customer requires the application of a law of a state other than New York, the parties agree that the terms of this Agreement shall be governed and construed in accordance with the law specified in such statute or regulation, and the Customer shall give written notice of such requirement to FLO. The application of such different law shall be effective upon the receipt of such written notice by FLO. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. The failure of either party to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter, nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself. If any provision of this Agreement is found void and unenforceable, it will be replaced to the extent possible by FLO with a provision that comes closest to the meaning of the original provision. This Agreement and the documents referenced in this Agreement constitute the entire agreement between Customer and FLO relating to its subject matter and all terms herein and supersede all prior or contemporaneous agreements or understandings. FLO may modify the terms of this Agreement at any time, provided that such changes in terms will not apply to existing Customers until the later of sixty days after written notice of the change or the start of the next annual renewal term, whichever is later. In all other circumstances, this Agreement may be modified or changed only in writing signed by authorized representatives of Customer and FLO. Notices here under shall be in writing and addressed to Customer at the address provided when purchasing this license or, in the case of FLO, when addressed to FLO PARTNERS INC., Attn: Director of Operations, 80 Peter St, Toronto, ON, M5V 2G5, CANADA and when addressed to the Customer to the billing address on the most recent Order Form.