Flowmon Networks End-user License Agreement
(For trial, NFR – not for resale and standard paid license)
IMPORTANT: PLEASE READ THIS END USER LICENSE AGREEMENT BEFORE INSTALLATION, COPYING, DOWNLOAD OR USE OF THE FLOWMON NETWORKS PRODUCT THAT YOU ARE ATTEMPTING TO DOWNLOAD, INSTALL, COPY, USE OR THAT OTHERWISE ACCOMPANIES OR IS PROVIDED WITH THIS END USER LICENSE AGREEMENT. IF YOU DO NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DOWNLOAD, COPYING, INSTALLATION OR USE OF THE PRODUCT IS STRICTLY PROHIBITED. BY CLICKING ON THE “I ACCEPT” BUTTON, DOWNLOADING, INSTALLING OR OTHERWISE USING OR OBTAINING OF THE PRODUCT, THE CORPORATION, COMPANY, PARTNERSHIP OR OTHER ENTITY THAT YOU REPRESENT IS UNCONDITIONALLY CONSENTING TO BE BOUND BY AND IS BECOMING A PARTY TO THIS AGREEMENT. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF ANY CORPORATION, COMPANY PARTNERSHIP OR OTHER ENTITY, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO LEGALLY BIND SUCH ENTITY TO THIS AGREEMENT. THE SOFTWARE CONTAINED IN THE PRODUCT IS PROTECTED BY COPYRIGHT LAWS AND INTERNATIONAL COPYRIGHT TREATIES AS WELL AS OTHER INTELLECTUAL PROPERTY LAWS AND TREATIES. THE SOFTWARE CONTAINED IN THE PRODUCT IS LICENSED, NOT SOLD.
1. Introductory provisions
1.1 This End User License Agreement (“Agreement”) stipulates rights and obligations of authorized user (“Client”) of software products (“Product”) provided by Flowmon Networks a.s., a company established and existing under the laws of the Czech Republic, having its registered office at Škrobárenská 5, 617 00, Czech Republic, ID No.: 27730450, registered in the Commercial Register maintained by the Regional Court in Brno, section B, insert 4906 (“Flowmon”).
1.2 The Client obtains the Product based on a separate contract, purchase order or any similar document, based on which the Product shall be provided to the Client, concluded in particular between the Client and Flowmon or between the Client and Flowmon’s authorized reseller or distributor (“Contract”).
1.3 The Product may be provided to the Client:
a) jointly with hardware, on which the Product may be also directly embedded on or preinstalled; or
b) as a software provided on a standalone basis.
1.4 This Agreement shall apply to any Product provided to the Client in any way in compliance with Section 1.3 of this Agreement. This Agreement shall apply to any newer versions, updates, or changes to the Product.
1.5 Documents to which this Agreement refers and other possible arrangements with the Client are integral part of this Agreement. In case of discrepancy between the Contract and this Agreement, this Agreement shall prevail.
2.1 By concluding the Contract, by clicking the button “I ACCEPT”, downloading, copying, installing, obtaining or otherwise using the Product the Client agrees without reservation with this Agreement. Flowmon grants the Client the right to use the Product in accordance with this Agreement (“License”) and other terms of the Contract.
2.2 The License represents a limited, non-exclusive, non-transferable, non-sublicensable and non-assignable right to use the Product.
2.3 If the Product is provided to the Client as software on a standalone basis under the Contract, Flowmon also grants the Client the right to install one (1) copy of the Product on one (1) hardware or into one (1) virtual environment per one (1) License bought. The number of License bought by the Client is set out in the Contract and the Client may purchase more Licenses under conditions stipulated in the Contract. The Client is obliged to restrain from any additional installation of the Product in contradiction with this provision.
2.4 The License is granted
a) without any territorial limitations, with the exception of countries for which the U.S. Export Administration Regulations, European Union or other relevant body regulations prohibit export transactions;
b) for the duration set out in the Contract;
c) for the manner, means and methods of use for which the Product was created and provided to the Client;
d) with the quantitative limitation of one (1) installation of the Product on one (1) hardware, on which the Product is preinstalled, or of one (1) installation of the Product on Client’s hardware or in Client’s virtual environment as stipulated in Section 2.3 of this Agreement.
2.5 The Client is not entitled to allow any third party or its customers to use the Product. Any controlled or controlling legal entity of the Client is considered as third party for the purpose of this Agreement.
2.6 Source codes are not provided to the Client. The Client shall have no right to obtain or use source codes of the Product.
2.7 The Client is entitled to create copies of the Product as may be necessary for backup and archival purposes only. Such backup copies must be stored securely with access allowed only to authorized personnel. The Client shall prevent any unauthorized access to such backup copies.
2.8 The Product may contain third party software including open source software. The use of third party software is governed by separate terms and conditions relevant for each such software product.
2.9 Following the expiry of the License period or its termination, the Client shall:
a) no longer use the Product;
b) destroy and remove all copies of the Product, including backups, from its computers, hard drives, networks, systems and any other storage media;
c) return or remove all other information, documents obtained from Flowmon relating to the Product; and
d) on Flowmon's request confirm and certify the fulfilment of the aforementioned obligations to Flowmon in writing.
3. Client’s rights and obligations
3.1 The Product shall be used only for Client's activities, and under Client's supervision and at its liability.
3.2 The Client shall:
a) use the Product in compliance with this Agreement, the Contract, relevant documentation and applicable laws and regulations, particularly with those governing the processing of personal or sensitive data;
b) ensure that all computer programs and hardware used in conjunction with the Product are free from any defects that may have a negative effect on the functionality or operation of the Product;
c) ensure to have implemented its own disaster recovery plans including necessary measures to replace the Product in its infrastructure (including data backups, security of data traffic, data protection and a redundancy of critical systems);
d) promptly inform Flowmon of any infringement of Flowmon’s rights in relation to the Product, and provide Flowmon with necessary assistance in establishing Flowmon’s claim regarding the infringement of the rights to the Product;
e) refrain from making public and promptly inform Flowmon of any discovered vulnerabilities of the Product and of any errors or faults incurred or discovered while using the Product, and provide Flowmon with any necessary cooperation in order to address and fix such vulnerabilities, errors or faults, in particular to allow Flowmon without undue delay full access to the hardware on which the Product was used and to any other software with which the Product was used;
f) allow Flowmon to perform an audit of proper use of the Product in accordance with this Agreement and the Contract and provide Flowmon with necessary cooperation as well as true and accurate information and documents to allow Flowmon to perform such an audit.
3.3 The Client shall also undertake all reasonable steps to prevent the occurrence of any material or non-material damage, in particular, the Client:
a) is required to use the Product with compatible software and hardware at all time;
b) shall have appropriate licenses for all other software installed on the device (“Other Software”) on which the Product is used;
c) is obliged to have the Product and all the Other Software properly updated with the latest available updates and patches;
d) is obliged to verify with Flowmon compatibility of the Product with the Other Software;
e) shall regularly at appropriate intervals, especially before performing any updates, back-up all configuration settings located on the hardware or virtual environment on which the Product is used; and
f) is obliged to properly train all persons working with the Product and ensure refresher training for all persons using the current version of the Product is made at regular intervals.
3.4 The Client shall not:
a) reproduce, distribute, lend, borrow, sell, rent and lease the Product and all copyrighted works or databases contained therein, whether free of charge or not, with the exception of (i) evaluation versions of the Product available for download from Flowmon's websites, which may be freely distributed by any means and without need of any prior permission of Flowmon, and (ii) of situations in which Flowmon expressly gave the Client a prior written consent;
b) transfer, assign or sub-license the Product or any other kind of right to use the Product and all copyrighted works and databases contained therein to any other third parties;
c) modify, edit, change, transcribe, examine, derive, disassemble, compile, decompile, alter, reverse engineer or otherwise modify or translate the Product and any copyrighted works and databases contained therein, its titles, author’s designation and any other data relating to the designation of such Product and copyrighted works and databases contained therein, with an exception of its configuration in accordance with the Contract and/or Product’s documentation;
d) combine or use the Products and all copyrighted works and all databases contained therein together with any other works, parts, materials, products or any other object of intellectual property, and to include the Product and all copyrighted works and databases contained therein in any other collective work, with an exception of other software that may be interconnected or integrated with the Product via respective Product’s API (application programming interface) and other software that may be necessary to use the Product the way for which was provided to the Client, in particular software mentioned in the Contract and/or the Product’s documentation, in such a case the Product may be used with such software, but may not be combined with it;
e) remove or modify any indication concerning copyrights, trademarks, trade names or other intellectual or industrial property rights from the Product, including indications concerning the confidential character and the confidentiality of the Product;
f) develop any other software or other copyright work based on the Product;
g) use the Product in the manner, which is not expressly authorized by Flowmon within this Agreement or allowed pursuant to a provision of the applicable law that cannot be waived (mandatory law / public order). Should the Client have any doubts whether the Product may be used in some way, the Client is obliged to contact Flowmon and request a prior consent of Flowmon in writing.
4. Fees and Support Services
4.1 The License is granted for a fee agreed in the Contract. Unless otherwise agreed, Flowmon or respective Flowmon’s distributor or reseller (according to the respective Contract) may invoice the Client for the license fee under payment terms stipulated in the Contract.
4.2 Unless otherwise agreed in the Contract, the Client is not entitled to any support and maintenance services (“Support Services”).
4.3 Should the Client have any Support Services agreed in the Contract, such Support Services shall be provided by Flowmon or its authorised partners under terms and conditions stipulated therein. Any supplemental software code provided to the Client as part of the agreed Support Services shall be considered as part of the Product and subject to the terms and conditions of this Agreement.
4.4 Support Services encompasse receiving "Updates" to the current version of the Product you license. In an effort to improve the Product and develop such Updates, the Product contains features that allow Flowmon to remotely and automatically identify, track and analyze certain aspects of use and performance of Product and/or the systems on which it is installed, as well as the operator and operating environment (including problems and issues that arise in connection therewith). You may disable this Update feature of the Product at any time, otherwise you hereby agree that Flowmon may use any data and information it collects strictly for its internal purposes. Flowmon will protect and keep confidential such information, not use such information for reasons other those discussed in this Agreement, and not sell, distribute or pass on such information to any third party.
4.5 Should the Client require Support Services, in which Flowmon may access and/or process confidential data and/or personal data of data subjects on behalf of the Client while providing such Support Services, the Client is, before commencing the provision of requested Support Services, obliged to (i) inform Flowmon about such accessing and/or processing of confidential and/or personal data and (ii) evaluate the need of conclusion of the data processing agreement and conclude such data processing agreement with Flowmon, if necessary. In any case, Flowmon agrees and covenants to implement appropriate technical and organisational measures and ensure the protection of the rights of the data subjects and a level of security appropriate to risks that are presented by processing, in particular from accidental or unlawful destructions, losses, alterations, unauthorised disclosures of, or accesses to personal data and confidential information.
5.1 All titles, including but not limited to copyrights, in and to the Product and any copies thereof are owned by Flowmon or its suppliers. All title and intellectual property rights in and to the content which may be accessed through use of the Product is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This Agreement grants the Client no rights to use such content. All rights not expressly granted are reserved by Flowmon.
6. Liability and Warranties
6.1 Flowmon is not aware of any malware or other harmful code included in the Product.
6.2 The use of the Product is at Client’s own risk and the Product is provided to the Client on an "AS IS" and "AS AVAILABLE" basis, without express or implied warranty or condition of any kind. To the extent permitted by law, Flowmon disclaims all warranties and conditions, express or implied, of any kind, including but not limited to any warranties of merchantability, fitness for a particular purpose, and non-infringement. Flowmon does not warrant or assume responsibility for the availability of the Product, accuracy or completeness of any information, text, graphics, links or other items contained within the Product, including, but not limited to, any errors or omissions contained therein, libel, infringements of any third party rights and rights of publicity, privacy, trademark rights, business interruption, personal injury, loss of privacy, moral rights or the disclosure of confidential information. Flowmon makes no warranties with respect to any harm that may be caused by the transmission of a computer virus, worm, or other such computer program. Flowmon further expressly disclaims any warranty or representation with the same extent to any other users or to any third party.
6.3 Nothing in this Agreement shall exclude or limit Flowmon’s liability for damages which may not be lawfully excluded or limited by applicable law.
6.4 To the maximum extent permitted by applicable law, Flowmon shall not be liable for any consequential, incidental, indirect, punitive, or special damages of any kind, or any damages whatsoever, or business interruption, loss of profits or revenues, whether incurred directly or indirectly, or any loss of data, use, goodwill or other intangible losses, resulting from
a) Client’s access to or use of, or inability to access or use, the Product;
b) any content obtained from the Product;
c) unauthorized access, use, or alteration of the Product or its content; or
d) any conduct or content within the Product made by the Client and/or its end users.
6.5 The limitations of this Section 6 (Liability and Warranties) shall apply to any theory of liability, whether based on warranty, contract, statute, tort (including negligence), or otherwise, and whether or not Flowmon has been informed of the possibility of any such damage, and even if a remedy set forth herein is found to have failed of its essential purpose.
7. Term and termination
7.1 This Agreement shall commence on the date on which the Client accepts this Agreement, i.e. by clicking the “I ACCEPT” button, by downloading, installing, copying or using the Product, and shall remain effective for the duration of the License. Should the License period be prolonged, this Agreement is automatically prolonged as well.
7.2 The Client is entitled to prematurely terminate this Agreement at any time, for any cause, but without the right to return of the agreed license fee or any part thereof.
7.3 Flowmon is entitled to prematurely terminate this Agreement, if the Client violates or fails to comply with any provision of this Agreement or the Contract, particularly if the Client fails to pay the agreed license fee in timely manner to the respective entity (i.e. Flowmon, or the respective Flowmon’s distributor or Flowmon’s reseller) under payment terms stipulated in the Contract.
7.4 In the event that the Product or any part of it is held to, or Flowmon believes is likely to be held to, infringe any third party rights (in particular patent, copyright, trademark or trade secret), Flowmon will have the right to prematurely terminate this Agreement subject to making reasonable commercial efforts to modify the Product or its parts, procure the necessary rights or replace the Product or its part with a functional equivalent. If the Agreement is terminated in accordance with this Section 7.4, Flowmon will refund the Client for any prepaid and unused services.
7.5 If the Client violates any of the obligations set forth in Section 3.4, this Agreement and the License shall become terminated automatically without further notice and the Client shall immediately terminate any use of the Product.
7.6 Any termination of this Agreement terminates the granted License as well. Upon termination of this Agreement, the Client shall without undue delay fulfil obligations set out in Section 2.9 of this Agreement. Unless otherwise agreed in this Agreement, all license fees are non-refundable.
8. Final provisions
8.1 This Agreement constitutes the full agreement between Flowmon and the Client with respect to the License of the Product, to the exclusion of any pre-printed licensing terms, in particular Product’s documentations, or contrary and/or additional licensing terms stipulated in the Contract and supersedes and cancels any prior discussions, undertakings or representations between Flowmon and the Client regarding licensing terms of the Product.
8.2 This Agreement and all matters relating to it shall be governed by, and construed in accordance with the laws of the Czech Republic. Any action or proceeding arising out of or relating to this Agreement or the Product shall be brought and maintained exclusively by the Czech courts.
8.3 The failure of Flowmon to enforce any right or provision of this Agreement will not be deemed a waiver of such right or provision. In the event that any provision of this Agreement held to be invalid or unenforceable, then that provision will be limited or eliminated to the minimum extent necessary, and the remaining provisions of this Agreement will remain in full force and effect.
8.4 Flowmon reserves its right to change this Agreement unilaterally about which it must inform the Client; such information may be realized by a requirement to consent with a newer version of this Agreement. The Client may use the Product under the Agreement valid at the time of granting the License. However, once the Client acquires and installs any update, upgrade or any other newer versions of the Product, the Client accepts the Agreement valid at the moment of such update, upgrade or any newer version is installed or used which shall apply to the Product as a whole.
8.5 If any term, provision, covenant, or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the rest of this Agreement shall remain in full force and effect and shall in no way be affected, impaired, or invalidated. Any restrictions imposed on the Client or rights of Flowmon under this Agreement shall be interpreted as agreed within the maximum extent allowed by the applicable law.
Document version: 1.4.2019