FLOWMON NETWORKS END-USER LICENSE AGREEMENT FOR FLOWMON

(for trial, NFR – not for resale and standard paid license)

IMPORTANT: PLEASE READ BEFORE INSTALLATION, COPYING, DOWNLOAD OR USE OF THE FLOWMON NETWORKS TECHNOLOGY PRODUCT (“PRODUCT”) THAT YOU ARE ATTEMPTING TO DOWNLOAD OR THAT OTHERWISE ACCOMPANIES OR IS PROVIDED WITH THIS END USER LICENSE AGREEMENT ("AGREEMENT"). THE PRODUCT MAY CONSIST OF HARDWARE WITH SOFTWARE EMBEDDED ON OR PROVIDED WITH THAT HARDWARE, OR SOFTWARE PROVIDED ON A STAND ALONE BASIS; ANY SOFTWARE PROVIDED ON OR WITH HARDWARE OR PROVIDED ON A STAND ALONE BASIS, INCLUDING ANY UPGRADES, PATCHES, ENHANCEMENTS OR FIXES THERETO, SHALL BE DEEMED “SOFTWARE”. BY DOWNLOADING, COPYING, INSTALLING OR IN ANY WAY USING THE PRODUCT, THE ENTITY OR COMPANY THAT YOU REPRESENT ("LICENSEE") IS UNCONDITIONALLY CONSENTING TO BE BOUND BY AND IS BECOMING A PARTY TO THIS AGREEMENT WITH FLOWMON NETWORKS, a.s., WITH AN OFFICE AT SOCHOROVA 3232/34, BRNO, CZECH REPUBLIC (“FLOWMON). IF LICENSEE DOES NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DOWNLOAD, COPYING, INSTALLATION OR USE OF THE PRODUCT IS STRICTLY PROHIBITED. THIS AGREEMENT CONSTITUTES THE AGREEMENT BETWEEN FLOWMON AND LICENSEE WITH RESPECT TO SUCH PRODUCTS, TO THE EXCLUSION OF ANY PRE-PRINTED OR CONTRARY TERMS OF ANY PURCHASE ORDER (OR SIMILAR DOCUMENT) AND SUPERSEDES AND CANCELS ANY PRIOR DISCUSSIONS, UNDERSTANDINGS OR REPRESENTATIONS BETWEEN THE PARTIES. AS USED HEREIN, THE “EFFECTIVE DATE” MEANS THE DATE ON WHICH LICENSEE COPIES, DOWNLOADS, INSTALLS OR USES THE PRODUCT. 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. GRANT OF LICENSE.

The PRODUCT is licensed as follows:

(a) Installation and Use.

FLOWMON grants LICENSEE the right to use the PRODUCT. If and only if the PRODUCT consists only of SOFTWARE, FLOWMON grants LICENSEE the right to install and use copies of the PRODUCT on hardware where software is preinstalled or into their virtual environment.

(b) Backup Copies.

LICENSEE may also make copies of the PRODUCT as may be necessary for backup and archival purposes.

(c) Limitation of Copies

LICENSEE is entitled to use one exact installation of the PRODUCT on one exact hardware where software is preinstalled or into one exact virtual environment per one LICENSE bought. LICENSEE is obliged to restrain from any additional installation of the PRODUCT in contradiction with this article.

 

2. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS.

(a) Maintenance of Copyright Notices.

LICENSEE must not remove or alter any copyright notices on any and all copies of the PRODUCT.

(b) Distribution.

LICENSEE may not distribute copies of the PRODUCT to third parties. Evaluation versions available for download from FLOWMON's websites may be freely distributed.

(c) Prohibition on Reverse Engineering, Decompilation, and Disassembly.

LICENSEE may not reverse engineer, decompile, or disassemble the PRODUCT, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.

(d) Rental.

LICENSEE may not rent, lease, or lend the PRODUCT without prior written consent from FLOWMON.

(e) Support Services.

FLOWMON may provide LICENSEE with support services related to the PRODUCT ("Support Services"). Any supplemental software code provided to LICENSEE as part of the Support Services shall be considered part of the PRODUCT and subject to the terms and conditions of this AGREEMENT.

(f) Compliance with Applicable Laws.

LICENSEE must comply with all applicable laws regarding use of the PRODUCT.

 

3 PAYMENT; TAXES

3.1 PAYMENT.

FLOWMON may invoice LICENSEE for the license fee identified by FLOWMON to LICENSEE in connection with this AGREEMENT. LICENSEE shall pay FLOWMON’s invoices in full fourteen (14) days after the invoice date, without any deduction, counterclaim or offset. Overdue amounts shall accrue interest at the rate of one and one-half percent (1.5%) per month, or at the highest legal interest rate, if less. Notwithstanding the foregoing, FLOWMON may require prepayment or other security, depending on FLOWMON’s credit review or LICENSEE’s payment history or changes in financial condition. If LICENSEE’s procedures require that an invoice be submitted against a purchase order before payment can be made, LICENSEE will be responsible for issuing and delivering of such purchase order.

 

3.2 TRANSFER TAXES.

The amounts payable to FLOWMON pursuant to this AGREEMENT are exclusive of any sales or use or other taxes or governmental charges. LICENSEE shall be responsible for payment of all such taxes or charges, except for any taxes based solely on FLOWMON’s net income. If applicable, LICENSEE will provide FLOWMON with valid certification of any exemption from tax or reduced rate of tax imposed by any applicable taxing authority at the time of order. In case license is provided for the use in Czech Republic, VAT (Value added tax) is included in the price and LICENSEE is obligated to pay it.

 

3.3 WITHHOLDING TAXES.

If LICENSEE is required by applicable law to apply withholding taxes, LICENSEE shall provide FLOWMON with advance notification of the requirement to apply such taxes and shall take all allowable actions requested by FLOWMON that will reduce the withholding tax liability regarding transactions under this AGREEMENT, including, but not limited to, applying on its own or on FLOWMON’ behalf for reduced withholding rates, concessionary tax rates or other favorable tax treatment. LICENSEE shall comply with applicable tax laws and regulations at its sole expense. LICENSEE will assist FLOWMON’ efforts to obtain allowable tax credits or deductions for withholding taxes by providing to FLOWMON, in a form acceptable to LICENSEE, original or certified copies of tax payments receipts or other evidence of payment of taxes withheld by LICENSEE regarding payments made under this AGREEMENT.

 

4. TERM AND TERMINATION

This AGREEMENT will commence upon the EFFECTIVE DATE and will remain effective until terminated as set forth in this section. A license granted for a fixed period will expire at the end of the period. LICENSEE may terminate this AGREEMENT at any time, without the right to the return of the license fee or part thereof. This AGREEMENT may be terminated by FLOWMON if LICENSEE violates or fails to comply with any provision of this AGREEMENT, particularly if LICENSEE violates the payment terms specified in section 3 of this AGREEMENT. Any termination of this AGREEMENT shall also terminate the licenses granted hereunder. Upon termination of this AGREEMENT, LICENSEE shall no longer use the SOFTWARE, shall destroy and remove from all computers, hard drives, networks and other storage media all copies of the SOFTWARE, and shall certify to FLOWMON that such actions have occurred. Sections 2, 5, 6, 7 and 9 of this AGREEMENT shall survive termination of this AGREEMENT.

 

5. COPYRIGHT

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 LICENSEE no rights to use such content. All rights not expressly granted are reserved by FLOWMON.

 

6. NO WARRANTIES

FLOWMON expressly disclaims any warranty for the PRODUCT. The PRODUCT is provided 'As Is' without any express or implied warranty of any kind, including but not limited to any warranties of merchantability, noninfringement, or fitness of a particular purpose. FLOWMON does not warrant or assume responsibility for the accuracy or completeness of any information, text, graphics, links or other items contained within the PRODUCT. FLOWMON makes no warranties respecting 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 to Authorized Users or to any third party.

 

 

7. LIMITATION OF LIABILITY

LICENSEE is obliged to use the PRODUCT in a proper manner in accordance with this AGREEMENT. LICENSEE is obliged to undertake all reasonable steps to prevent the occurrence of any material or non-material damage, in particular LICENSEE (I) is required to use the PRODUCT with compatible software and hardware at all time, (II) shall have appropriate licenses for all other software installed on the device (OTHER SOFTWARE) on which the PRODUCT is used, (III) is obliged to have all the OTHER SOFTWARE properly updated with the latest available updates and patches, (IV) is obliged to verify with FLOWMON compatibility of the PRODUCT with OTHER SOFTWARE, (V) shall regularly at appropriate intervals, especially before performing product updates, back-up all data located on the hardware on which is the PRODUCT used, (VI) is obliged to properly train all persons working with the PRODUCT and ensure at least one per calendar year refresher training for all persons using the current version of the PRODUCT, (VII) is obliged without undue delay to notify FLOWMON of any defect in PRODUCT functionality, (VIII) shall, in the event of PRODUCT defect, immediately allow FLOWMON full access to the hardware on which the PRODUCT was used and to the OTHER SOFTWARE with which the PRODUCT was used. In no event shall FLOWMON be liable for any damages (including, without limitation, lost profits, business interruption, or lost information) rising out of 'Authorized Users' use of or inability to use the PRODUCT, even if FLOWMON has been advised of the possibility of such damages. In no event will FLOWMON be liable for loss of data or for indirect, special, incidental, consequential (including lost profit), or other damages based in contract, tort or otherwise. FLOWMON shall have no liability with respect to the content of the PRODUCT or any part thereof, including but not limited to errors or omissions contained therein, libel, infringements of rights of publicity, privacy, trademark rights, business interruption, personal injury, loss of privacy, moral rights or the disclosure of confidential information. Limitation of liability of FLOWMON does not apply to instances where the LICENSEE has not breached any of its obligations under this AGREEMENT and further to the extent that the damage was intentional or of gross negligence on the part of FLOWMON.

 

8. WHOLE AGREEMENT

LICENSEE read and understood this AGREEMENT, and agrees that it constitutes the final, complete AGREEMENT of the parties with respect to the subject matter hereof and supersedes all prior offers, negotiations, understandings, and agreements. No additional or different terms or conditions, or modifications to this AGREEMENT, whether in writing or in any other form, shall become a part of the AGREEMENT unless expressed in writing and signed by both parties. In the event LICENSEE does not understand this AGREEMENT or any part thereof, unless they are made in writing and signed by both parties. LICENSEE must refrain from installing, copying, downloading or use of the PRODUCT. If LICENSEE still wants to install, copy, download or use the PRODUCT, LICENSEE must contact the FLOWMON for clarification of this AGREEMENT. If the LICENSEE violates any of the obligations set forth in this AGREEMENT, in particular obligations set forth in Section 2 and in Section 7, the license for the PRODUCT shall become terminated automatically without further notice and the LICENSEE shall immediately terminate any use of the PRODUCT.

 

9. GOVERNING LAW

This AGREEMENT shall be governed, construed, and interpreted in accordance with the laws of Czech Republic. Each party agrees to accept venue in Czech Republic and to submit to the jurisdiction of the courts therein.

 

Document version: 31.10.2017