Flume End User License Agreement (EULA)
Last Updated July 16, 2020Flume, Inc., a Delaware corporation with corporate offices located at 75 Higuera Street, Suite 120, San Luis Obispo, CA 93401 (“Flume”), desires to offer certain hardware and software products, developed by and proprietary to Flume or its licensors. There are two types of software covered by this End User License Agreement ("EULA"): (1) The Flume hardware Product you have acquired contains embedded software (“Embedded Software,” as defined in more detail below) which is integral to such Product's operation; and (2) application software provided to you on a downloadable basis (“Application Software,” as defined in more detail below). Embedded Software and Application Software are collectively referred to as “Software” (as defined in more detail below) and are both subject to the terms and conditions contained in this EULA. Software is provided only for use with, and for authorized end users of, the Flume hardware Product you have acquired from Flume or its authorized representative ("Flume Hardware Product"). Portions of the Software may include or operate with open source software or libraries (“Open Source”). This End User Software License Agreement (“EULA” or "Agreement") is a legally binding agreement governing the licensing of the Software and Documentation by Flume, Inc. ("Flume") to the entity or person who has purchased or otherwise acquired a Flume Hardware Product, whether directly from Flume or from its authorized representative (“You” or "End User"). For purposes of this Agreement, any software that is not Embedded Software or Application Software is software that may be associated with a separate end-user license agreement licensed to You under the terms of that license agreement. Software is provided only for use with the Flume Hardware Product and any other use of Software is strictly prohibited and may subject You to legal action. Software is provided to You under license, subject to the terms and conditions of this EULA. Any and all updates to Software shall also be subject to this EULA. If You use the Flume Hardware Product, You will be deemed to have accepted the terms and conditions of this EULA. If You do not intend to be bound to the terms of this EULA, Flume is not willing to license the Software to You; You may not use the Flume Hardware Product or the Software; and You must contact the party from whom You acquired the Flume Hardware Product for instructions on how to return the Flume Hardware Product.
Flume and You (or “End User”) (each a “Party” or together the “Parties”) hereby agree as follows:
- Definitions: 1.1. “Affiliate” means a business entity currently existing or later acquired that is controlled by, or is under common control with Flume.1.2. “Authorized Third Party Program Participant” means entities such as insurers, water utilities, or other entities with a customer base that offer a program to its customers that utilizes the Flume Hardware Product and Flume Software for use of Product Data.1.3. “Documentation" means materials such as user's guides, program reference guides, quick reference guides, manuals, or similar materials associated with, or related to, the Flume Hardware Product and/or Software, whether in printed; electronic online; or other form.1.4. “Proprietary Information” means: (a) source code, object code, software, unpublished documentation, and any related internal design, system design, database design, algorithms, technology, technical data or information, implementation techniques, and trade secrets related to the Flume Hardware Product and/or the Software, (b) any other trade secrets marked appropriately or identified as proprietary or confidential, when disclosed; all of which are not publicly available and (c) any information that End User, under the circumstances, should recognize as confidential to Flume. Proprietary Information does not include any information that the receiving Party can establish was (1) in the public domain, (2) already in the receiving Party's possession or rightfully known prior to receipt, (3) rightfully learned from a third party not in violation of any other's proprietary rights, or (4) independently developed without access to Proprietary Information1.5. “Product Data” means all information, data, content and materials of any kind collected or compiled by Flume Hardware Products and/or Software, or otherwise furnished or made available directly or indirectly to Flume by or on behalf of End User. 1.5. “Software” means: (a) any software or computer programs of Flume or its third party licensors in machine readable form which is embedded in the Flume Hardware Product (“Embedded Software); and/or (b) application software solely for use with the Flume Hardware Product (“Application Software”). Software includes any replacement, update, upgrade, enhancement or modification to Embedded Software or Application Software obtained directly or indirectly by End User.
- Transfers, Support 3.1. Any copying, installing, reproduction, remanufacture, electronic transfer, or other use of the Software other than on, or otherwise in connection with, the Designated Flume Hardware Product will be a material breach of this Agreement.3.2. End User shall not sell, assign, sublicense, distribute, lend, rent, give, or otherwise transfer the Flume Hardware Product to any third party unless such third party agrees with Flume in writing to be bound by the terms and conditions of this Agreement. Any such transfer of the Flume Hardware Product absent such agreement shall be null and void.
- Intellectual Property 4.1. End User acknowledges that the Software constitutes valuable trade secrets of Flume or Flume's third party licensors and that the Software is protected by all applicable intellectual property laws and treaties. Except for the license rights expressly granted in this Agreement, the license set forth in this Agreement does not transfer to End User any ownership, right, title, or interest, in or to Flume’s, or its third party licensors', copyrights, patents, trademarks, service marks, trade secrets, or other intellectual property rights. End User shall not remove, modify, or take any other action that would obscure any copyright, trademark, patent marking, or other intellectual property notices contained in or on the Flume Hardware Product or in the Software. Names used on the Flume Hardware Product or in this Agreement may constitute trademarks of Flume or its licensors and no right is granted herein to the End User for use of such trademarks.
- Proprietary Information 5.1. End User acknowledges that Proprietary Information is the confidential, proprietary, and trade secret property of Flume and Flume's third party licensors and that, except as otherwise expressly provided in this Agreement, End User acquires no right or interest in any Proprietary Information.5.2. End User shall not disclose, provide, or otherwise make available Proprietary Information to any person other than End User's authorized employees or agents who are under confidentiality agreement, and End User shall not use Proprietary Information other than in conjunction with use of the Flume Hardware Product solely for End User's personal or internal business purposes (as applicable). End User shall take steps to protect Proprietary Information that are no less secure than for End User's own intellectual property.5.3. The provisions of this Proprietary Information Section shall survive and continue for five (5) years after the termination of this Agreement, or for Proprietary Information that qualifies as trade secrets, as long as allowed by applicable law.
- Limited Warranty 6.1. Flume warrants that, under normal use and operation, the Flume Hardware Product and Software will conform substantially to the applicable Documentation. For all defects reported to Flume, Flume's liability is limited to providing End User with one copy of corrections or responding to End User's problem reports according to Flume's then-current standard assistance practices. Flume does not warrant that Software will meet End User's requirements or that use of Software will be uninterrupted or error free, or that Flume's remedial efforts will correct any nonconformance. End User agrees that the existence of such non conformities or errors and Flume’s inability to remedy such errors shall not constitute a breach of this Agreement. This limited warranty does not cover use of the Software with any hardware system other than the Flume Hardware Product or to Software that has been subjected to damage or abuse, whether intentionally, accidentally, or by neglect, or to unauthorized repair or unauthorized installation, and shall be void if End User modifies the Flume Hardware Product or Software, uses the Flume Hardware Product or Software in any manner other than as allowed in the Documentation, or if End User breaches any of the provisions of this Agreement.6.2. EXCEPT AS PROVIDED IN THIS AGREEMENT, THE FLUME HARDWARE PRODUCTS AND SOFTWARE ARE PROVIDED "AS IS" AND NEITHER FLUME NOR ANY AUTHORIZED THIRD PARTY MAKES ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WRITTEN OR ORAL, WITH RESPECT TO THE FLUME HARDWARE PRODUCTS OR SOFTWARE, AND FLUME (ON BEHALF OF ITSELF AND ANY AUTHORIZED THIRD PARTY PROGRAM PARTICIPANT) SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
- Limitation of Liabilities NEITHER FLUME, NOR ANY OF FLUME’S LICENSORS OR AUTHORIZED THIRD PARTY PROGRAM PARTICIPANTS SHALL BE LIABLE FOR ANY CLAIMS AGAINST END USER BY ANY OTHER PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SUBJECT MATTER HEREOF. IN NO EVENT SHALL FLUME'S AND/OR AUTHORIZED THIRD PARTY PROGRAM PARTICIPANTS COLLECTIVE AGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, IF ANY, WHETHER BASED UPON CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY, WARRANTY, OR ANY OTHER BASIS, EXCEED THE PRICE OR FEE PAID BY END USER (OR BY AN AUTHORIZED THIRD PARTY PROGRAM PARTICIPANTS ON END USER’S BEHALF) FOR THE FLUME HARDWARE PRODUCT AND SOFTWARE. UNDER NO CIRCUMSTANCES SHALL FLUME, AUTHORIZED THIRD PARTY PROGRAM PARTICIPANTS OR FLUME’S LICENSORS BE LIABLE TO END USER OR ANY THIRD PARTY FOR LOST PROFITS, LOST DATA, INTERRUPTION OF BUSINESS OR SERVICE, OR FOR ANY OTHER SPECIAL, CONSEQUENTIAL, CONTINGENT, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, OR OTHER SIMILAR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, EVEN IF FLUME, ANY INSURER, OR FLUME’S LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Government Restricted Rights; International Use. 8.1. Except for Open Source software, Use, duplication, or disclosure of the Software by the U.S. Government is subject to the restrictions for computer software developed at private expense as set forth in the U.S. Federal Acquisition Regulations at FAR 52.227-14(g), or 52.227-19 or in the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013(c)(1), whichever is applicable.8.2. End User is restricted to using the Application Software within the United States, if End User uses the Application Software outside the United States, End User must comply with the applicable local laws of the country in which the Flume Application Software is used, with U.S. export control laws, and with the English language version of this Agreement. The provisions of the "United Nations Convention on International Sale of Goods" shall not apply to this Agreement.
- Termination 9.1. Either Party may terminate this Agreement or any license granted under this Agreement at any time upon written notice if the other Party materially breaches any provision of this Agreement and has not cured such breach within a 30-day period following receipt of written notice thereof from the non-breaching Party.9.2. Upon termination of this Agreement, End User immediately shall cease using any Software, subject to the following two sentences. For Embedded Software, End User agrees to sign a waiver prepared by Flume concerning further use of the Embedded Software. End User's resumed or continued use of the Embedded Software and/or the Application software after termination shall constitute End User's agreement to be bound anew by the terms and conditions of this Agreement for such use.
- General Provisions 10.1. Entire Agreement; Amendment. This document contains the entire agreement between the Parties relating to use of the Flume Hardware Products and the licensing of the Flume Software and, except for business agreements between Flume and End User, supersedes all prior or contemporaneous agreements, written or oral, between the Parties concerning the use of the Flume Hardware Products and licensing of the Flume Software. This Agreement may be modified by Flume with notice to You by e-mail or in the download process to apply to future versions of Flume Products.10.2. Notice. All notices required or authorized under this Agreement shall be given in writing, and shall be effective when received, with evidence of receipt. Notices to Flume shall be sent to the attention of Contract Administration, Flume, Inc., 75 Higuera Street, Suite 120, San Luis Obispo, CA 93401, or such other address as may be specified by Flume in writing.10.3. Waiver. A Party's failure to enforce any of the terms and conditions of this Agreement shall not prevent the Party's later enforcement of such terms and conditions.10.4. Attorneys’ Fees. In the event an action is brought to enforce the terms and conditions of this Agreement, the prevailing Party shall be entitled to reasonable attorneys' fees, both at trial and on appeal.10.5. Governing Law; Venue: This Agreement and the rights of the Parties hereunder shall be governed by and construed in accordance with the laws of California, without regard to the rules governing conflicts of law. The state and federal courts located in the above jurisdiction shall have exclusive jurisdiction over all matters regarding this Agreement, except that Flume shall have the right, at its absolute discretion, to initiate proceedings in the courts of any other state, country, or territory in which End User resides, or in which any of End User's assets are located.