1. Terms of Service.
FlowWorks, Inc. (FlowWorks), a provider of proprietary data management tools (hereinafter referred to as FlowWorks Data Service or FlowWorks Service), hereby grants Users access to and use of the FlowWorks Service for the purchase prices specified in your Service Agreement. This Agreement shall be effective from the Effective Date set forth in the executed Service Agreement and shall remain in effect until terminated as set forth in this Agreement. FlowWorks does not guarantee the accuracy or timeliness of information available from the FlowWorks Service.
Please note that FlowWorks does not do engineering or flow analysis. FlowWorks provides data warehousing, data management, publishing and analysis tools, and alarming functions only.
The FlowWorks Service, which includes all data, calculation functions, tools and other information available on the www.flowworks.com website is for the exclusive use and benefit of users and their designated personnel (collectively “Users”). Only Users may use their FlowWorks Service account. Users are responsible for all activity that takes place with their service account. Users may not authorize any third party to access and/or use the FlowWorks Service on their behalf except where Users and FlowWorks agree to providing a mechanism for third parties to access the service on Users behalf.
3. Protection of Data.
- FlowWorks Security.
While FlowWorks shall use commercially reasonable means to protect its servers from security breaches, it does not warrant that that its site, its servers, and/or information received from FlowWorks are free of viruses or other harmful components, nor does it warrant that data on the FlowWorks site is safe from data theft and/or republishing by third parties.
- Users Security Obligations/Back Up Data.
An Interruption of FlowWorks Services, or termination or cancellation of the FlowWorks Service by Users or FlowWorks for any reason will result in a loss of data to Users. FlowWorks Services shall provide redundant server services to backup all data stored by User under this Agreement.
Users may from time to time experience interruptions of service or availability or a degradation of functionality of FlowWorks Services or some of its features, including, but not limited to, interruptions or degradation in data collection, due to Internet outages, equipment failures, power failures, or similar events beyond the control of FlowWorks (“Interruptions”). FlowWorks shall use commercially reasonable means to minimize and mitigate any loss of data during such Interruptions. FlowWorks shall accurately restore at no cost to User all data properly transmitted to FlowWorks 60 minutes or more prior to the Interruption and lost due to the Interruption .
Users agree to report any suspected Interruptions to Flow Works Inc. within 24 hours and to provide a detailed description of the situation surrounding the detection of the Interruption. FlowWorks shall use commercially reasonable means to diagnose the Interruption and to correct it. FlowWorks is not responsible for retrieving or reentering any data not properly transmitted to FlowWorks 60 minutes or more prior to the Interruption and lost due to the Interruption.
“Properly transmitted” is hereby defined as adhering to a transfer protocol established and approved by FlowWorks in advance of the transmission.
FlowWorks may also be temporarily unavailable due to maintenance, repairs or upgrades (“Maintenance”). While FlowWorks will make commercially reasonable efforts to notify Users in advance of such Maintenance, it is not always possible to give notice of every Maintenance event. Monthly fees are not pro-rated due to Interruptions or Maintenance, unless FlowWorks is unavailable for more than 5% of any given month.
6. No Infringement.
FlowWorks represents the product and services offered hereunder are owned or are the properly licensed property of FlowWorks. FlowWorks further represents the products, services and software furnished under this Agreement are free and clear of infringement in the U.S. of any patent or copyright covering the structure or composition of such articles.
In the event of a claim, suit or action against User alleging such infringement, FlowWorks shall indemnify and save User harmless from liability as finally determined by a court of competent jurisdiction, for such infringement.
7. LIABILITY LIMITATION.
Users can recover from the FlowWorks parties only direct damages. Users cannot recover any other damages, including consequential, lost profits, special, indirect, incidental or punitive damages. This limitation applies to anything related to:
- The FlowWorks Service
- Viruses or other disabling features that affect Users access to or use of the FlowWorks Service
- Incompatibility between the FlowWorks Service and other services, software and hardware
- Delays or failures Users may have in initiating, conducting, or completing any transmissions or transactions in connection with the FlowWorks Service in an accurate or timely manner, and
- Claims for breach of contract, breach of warranty, guarantee or condition, strict liability, negligence or other tort, and
It also applies if:
- This remedy does not fully compensate Users for any losses, or fails of its essential purpose; or
- FlowWorks knew or should have known about the possibility of damages.
Each party shall indemnify and hold harmless the other party and their respective shareholders, directors, officers employees and agents (each an “Indemnified Party”) from and against any and all third party suits or proceedings, claims, demands, causes of action, damages, expenses (including without limitation reasonable attorneys’ fees and other legal expenses), liabilities and other losses resulting from or arising out of the wrongful acts or omissions of the offending party, or any person acting on Users behalf, in connection with Users use of the FlowWorks Service, including without limitation (i) a breach of any provision, representation or warranty of this contract, or (ii) the negligence or willful misconduct (whether by act or omission of either party or any person under the party’s control or acting on the party’s behalf. or (iii) any use of the FlowWorks Service by Users, or a third party within Users control or behalf, that is not in accord with this Agreement.
9. Ownership of Intellectual Property.
Users acknowledge and agree that (a) the FlowWorks Data Service, and all intellectual property rights (such as copyrights, patents, and trade secrets) pertaining to the FlowWorks Data Service are owned exclusively by FlowWorks, and are protected under U.S. patent, copyright, trademark and trade secret laws of general applicability; and (b) all right, title and interest in and to the FlowWorks Data Service, together with all modifications, enhancements, and derivative works, and all intellectual property rights such as copyrights, patents and trade secrets, pertaining to the FlowWorks Data Service are and shall remain owned exclusively by FlowWorks.
10. Protection of Intellectual Property.
Users agree to establish reasonable precautions and use commercially reasonable efforts, no less rigorous than those Users use to protect their own confidential information, to protect and maintain the confidentiality and security of the FlowWorks Data Service in Users control and to which Users have access. Without limiting the generality of the foregoing, Users shall use reasonable measures to protect the FlowWorks Data Service from unauthorized copying, dissemination, or disclosure and from other unauthorized use.
Users may not assign or dispose of any rights or obligations under this contract, without FlowWorks prior written consent.
12. No Third Party Beneficiaries.
This contract is solely for Users, its designated customer and FlowWorks benefit. It is not for the benefit of any other person, except for permitted successors and assigns under this contract.
13. Claims Must Be Filed Within One Year.
Any claim related to this Agreement or the FlowWorks Service may not be brought unless brought within one year. The one-year period begins on the date when the claim first could be filed. If it is not filed in time, then that claim is permanently barred.
If any term or condition is determined by the court having jurisdiction to be overbroad or unenforceable, the smallest possible part of the Term or Condition shall be severed, with the remainder of these Terms and Conditions fully enforceable.
15. No Modification of Agreement.
This Agreement may not be modified or amended, except in writing signed by the parties to this Agreement.
All claims, disputes, and/or issues arising under, arising out of, or relating to the Agreement between FlowWorks and Users, without exception, will be settled by arbitration in Seattle, Washington, by a sole arbitrator, in accordance with the commercial arbitration rules of the American Arbitration Association (“AAA”) then in effect, except that the arbitrator shall deliver to the parties a reasoned award in writing, whether or not otherwise required or permitted by AAA rules. A judgment upon the award entered by the arbitrator may be entered in any court having jurisdiction thereof. The successful or prevailing party in any arbitration proceeding shall be entitled to an award which includes its reasonable attorneys’ fees, costs and expenses. The arbitration shall be decided under and in accordance with the laws of the State of Washington, without reference to Washington State’s choice of law principles.
All notices permitted or required under this Agreement shall be in writing and will be deemed given upon actual delivery. Any notice will be addressed to the party at the address set forth in the Service Agreement.
18. Entire Agreement.
This Agreement consists of the Service Agreement, Terms and Conditions, and referenced Appendix A, which contain the entire agreement of the parties hereto concerning the subject matter hereof. All previous oral and/or written agreements concerning this subject matter are superseded hereby.
APPENDIX A: SCOPE OF SERVICES
1. Set Up means the initial server configuration to allow a new or reactivated station to accept incoming data and be displayed by the FlowWorks data service (i.e. station name, location, channel names, file format, etc). Set Up includes time for FlowWorks staff to be available via phone and email support to confirm with User’s field staff that a station is successfully connecting to FlowWorks. Set Up also covers basic set up of calculations in the FlowWorks systems (basic flow parameters, etc. supplied by User) as required.
2. Custom Programming means additional programming beyond Set Up (defined in 1, above) intended to allow the User to use FlowWorks to meet specific needs. By adding business and application-specific reporting, analysis and display functions to the basic FlowWorks interface, FlowWorks developers can deliver the precise system required.
3. Data Stations include active stations and deactivated stations. An Active Station is a station set up on the FlowWorks data service and available to receive data from the FlowWorks Service. A station is deemed to be Active from the time it is set up until such time as the User notifies FlowWorks management in writing that the station is to be deactivated. A Deactivated Station, also known as an “Inactive”, “Historic” or “Non-Reporting” station, is a station that has been disconnected from the FlowWorks Service.
4. FlowWorks Charges for Active Stations. The monthly service fee applies to all stations active for any part of a given month.
5. Deactivated Station Data is available to Users if:
- Users have one or more active sites on FlowWorks and are current in payment of FlowWorks fees, or
- Users do not have an active site but have contracted to pay FlowWorks an agreed upon monthly data maintenance charge.
In the event Users do not comply with either case, FlowWorks may, at its sole discretion, remove Users’ login accounts, block access to Users’ data and purge Users’ data from the FlowWorks servers.
6. Data Back Up is provided by FlowWorks using both onsite and offsite systems, as part of Users monthly fees, but FlowWorks does not provide warranties for the FlowWorks Service and it limits its liability for data loss (see Terms and Conditions, Sections 1 and 7).
FlowWorks recommends that Users back up data from FlowWorks routinely to their own systems. FlowWorks will consult with you on data back up procedures during the Set Up phase of the FlowWorks Service.