Software license and software as a service terms and conditions
BY INSTALLING OR USING THE LICENSED SOFTWARE FROM FLO Partners Inc. carrying on business as Strongpoint (“FLO” ), THE INDIVIDUAL IF ACTING ON BEHALF OF HIMSELF OR HERSELF (“INDIVIDUAL CUSTOMER“) OR WHERE 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 individual granted access to or permission to use the Licensed Software by the Customer.
“Confidential Information” has the meaning set forth in Section 7 of this Agreement.
“Customer Data” means all electronic data and information, or any derivatives thereof, uploaded, submitted or otherwise transmitted to or through the Licensed Software, including Customer Materials, which shall also be known and treated as Customer’s Confidential Information. Customer Data shall be and remain the sole and exclusive property of Customer. Customer Data does not include data generated by Strongpoint solely describing the licensing parameters and the usage and efficiency of operation of components of the Licensed Software. NOTE: FLO does not store or transmit any customer data on its own servers. All Customer Data will therefore at all times be stored exclusively on Customer’s servers or within Customer’s relevant cloud platforms.
“Customer Indemnitees” means the Customer, its Affiliates, officers and directors and Authorized Users
“Customer Materials” means process and customization documentation prepared by or on behalf of the Customer and the Customer Data.
“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.
“Effective Date” for this agreement is the earlier of the Start Date specified on any applicable order form or the first day the customer installs, uses or accesses the software.
“FLO Website” means flodocs.com or strongpoint.io and any site or page at any subdomain thereof.
“STRONGPOINT”, formerly known as FLODocs, is online documentation and change management software provided by FLO. It is accessed directly or through an embedded frame within another software package with the STRONGPOINT Bundle installed.
“STRONGPOINT Bundle”, formerly known as the FLODocs Bundle, is an installable bundle, app, package or set of components comprising scripts, forms, layouts, templates, searches, reports, interfaces, html files, images, documents, process descriptions, system objects, code objects and workflows or other materials, files or code (collectively “materials”) provided by FLO to customers installing FLO on servers or platform accounts or instances not operated by FLO that permit FLO to more tightly integrate with customer’s business systems.
“Full Users” are individuals with access or to the system or systems with which FLO is being used and includes any licensed user seat of the system whether or not that seat is in use. For the purpose of counting Full Users, users with restricted access to a platform, such as NetSuite or Salesforce.com, will be counted as partial full users of the system
“License Fee” means the applicable fee for which Customer licenses the Licensed Software.
“License Period” means the initial term commencing on the Start Date and ending on the End Date specified on any applicable Order Form and each annually renewing term unless (a) terminated as provided below or (b) a specific fixed term is otherwise set forth in this agreement or in the Order Form.
“Licensed Software” means FLO and/or the STRONGPOINT Bundle software components or any other software components or services licensed to the Customer by FLO.
“Order Form” means (i) an unexpired estimate, quote or order form, which sets out applicable license scope, pricing information and other information related to Customer’s use of STRONGPOINT, that has been accepted in writing by Customer;
“Service Level Commitment” means a service level commitment to Customer by FLO contained in Section10.
“Services” means any training, support and implementation services provided by FLO as specified on any Order Form.
“Technology” means all information technology, including but not limited to STRONGPOINT 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 STRONGPOINT, the STRONGPOINT Bundle or 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 and Salesforce.com.
“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 version of the Licensed Software that the customer is not licensed to use prior to the upgrade.
2. LICENSE AND ACTIVATION KEY, LICENSE GRANTS, THIRD-PARTY RESTRICTIONS AND OWNERSHIP.
2.1. License and Activation Key.
Upon first access to the Licensed Software or any Upgrade or renewal, FLO shall issue Customer a “License and Activation Key” that sets forth the specific Licensed Software, and the then current License Period.
Subject to the terms and conditions of this Agreement, FLO grants to Customer during the License Period a worldwide, 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. Unless otherwise specified on the Order Form, where the Licensed Software is deployed as an extension or component of another platform including but not limited to NetSuite and Salesforce.com, the license grant extends to a single account instance of that platform and its corresponding sandbox / test accounts, if applicable.
2.3. Documentation License.
Subject to the terms and conditions of this Agreement, FLO grants to Customer during the License Period a worldwide, non-assignable, non-transferable license, without the right to sublicense, to use, reproduce and distribute the Documentation in furtherance of Customer’s authorized use of the Licensed Software.
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 or otherwise attempt to derive source code from the Licensed Software or the Technology, or create or attempt to create a substitute or similar service or product through use of or access to the Licensed Software or proprietary information related thereto; (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 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 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 Softwareor Documentation, or any component thereof. “FLO”, “FLODocs”, “STRONGPOINT”, “Agent”, “First, Last, One-Level”, “Faster, Safer, Compliant” are trademarks and servicemarks of FLO.
2.6. CERTAIN INTELLECTUAL PROPERTY MATTERS
2.6.1. FLO does not own the Customer Materials, has no intellectual property rights in the Customer Materials 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 Customer.
2.6.2. FLO owns and shall own all intellectual property rights in the Technology and the Licensed Software, including but not limited to all inventions, designs, works of any kind, all code objects, all interfaces, its look and feel, the data model and database designs, the architecture of all information technology included in any of the above. Customer will not acquire any right, title, or interest in or to the Technology except as expressly set forth in this Agreement.
3. 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 of FLO are eligible for free limited email technical support. Phone support is available in enhanced support and coaching packages (“Enhanced Support”). Installation support or Enhanced Support inquiries by telephone will be accepted by FLO during normal business hours of 8am to 9pm eastern time. 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. Any enhanced support services beyond the above must be specified under an applicable Order Form.
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 any. 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.
4. 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 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 in either the interface of the Licensed Software or the Documentation. All new features are deemed Beta whether or not so labeled in the first 3 months after they are introduced. FLO may remove or alter Beta features in its absolute discretion without liability. Customer must notify FLO in writing through support forms on the FLO Web Site or via email to email@example.com 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 and during the License Period, 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.
5. TERM AND TERMINATION.
Unless otherwise specified this Agreement shall commence on the Effective Date and shall continue in effect for the initial term specified by the Start and End Dates on the Order Form and thereafter 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 later of the Start Date or 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 event that the FLO bundle remains installed in any account owned or controlled by the Customer after expiry of the previous License Period, the license will be deemed to be extended thereafter for automatically renewing annual terms unless previously terminated as described below. If Customer purchases an Upgrade, the term of the Agreement shall be the extended to include the specific term set forth in the new License and Activation Key issued for the Upgrade.
Either party 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. Either party may terminate this Agreement if the other party breaches any term of this Agreement, including, without limitation, breaching the scope of the license granted or confidentiality obligations under this Agreement and such breach is not cured within 30 days of written notice to the address noted above in respect of that party or the email address of person executing this agreement.
5.3. Effect of Expiration or Termination.
Upon expiration or termination of this Agreement without renewal, (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. Unless the license is terminated for breach as specified in s.5.2, Customer may convert its account to a non-functional account for archiving purposes by contacting FLO and requesting an archiving license. Alternatively, FLO will, at the Customer’s expense, assist customer in migrating any relevant data into CSV format to the extent possible through standard interfaces of the relevant system. Sections 2.2, 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.
6. 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. After providing notification and 60 days to cure, 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 License Fee.
FLO pricing is proportional to the size of the system being managed measured in Full Users. For example, the license to cover a NetSuite instance with 1000 Full Users would be twice the price of an instance having only 500 Full Users. Upon renewal, Customer shall advise FLO of any substantial (ie greater than 10%) increase in licensed Full Users of the relevant system and pay to FLO or the specific Authorized Reseller the pro rata additional license fees net of any negotiated discount.
6.3. Price Protection
FLO will not increase the License Fee in any renewal term for the same functionality other than as provided in 6.2 above by more than 5% per year.
7.1. Meaning of Confidential Information.
For the purposes of this Agreement, the term “Confidential Information” will mean and include, without limitation, all such information, material and data of the Party disclosing Confidential Information (the “Disclosing Party”) (a) labeled or designated in writing as confidential or proprietary, (b) which the Party receiving the Confidential Information (the “Receiving Party”) is advised is proprietary or confidential or (c) which, in view of the nature of such information and/or the circumstances of its disclosure the Receiving Party knows or reasonably should know is confidential or proprietary relating to Disclosing Party or Disclosing Party’s Affiliates, and solely by way of illustration and not in limitation will include the following information: financial data, plans, forecasts, intellectual property, methodologies, algorithms, agreements, market intelligence, technical concepts, Customer information, strategic analyses, internal developments, publications, accountings or any other activities conducted or planned by a Disclosing Party or its Affiliates. The term “Confidential Information” does not include any information or documentation that was: (i) already in the possession of the Receiving Party or its Representatives (defined below) without an obligation of confidentiality; (ii) developed independently by the Receiving Party or its Representatives, as demonstrated by the Receiving Party or its Representatives, without violating the Disclosing Party’s proprietary rights; (iii) obtained from a source other than the Disclosing Party without an obligation of confidentiality; or, (iv) publicly available when received, or thereafter became publicly available (other than through any unauthorized disclosure by, through, or on behalf of the Receiving Party or its Representatives). Customer Data is the Confidential Information of Customer.
7.2. Obligation of Confidentiality.
Receiving Party agrees to hold all Confidential Information in strict confidence and not to copy, reproduce, sell, transfer, or otherwise dispose of, give or disclose such Confidential Information to third parties other than its Affiliates, employees, directors, agents, subcontractors or professional advisers (e.g., attorneys, auditors, financial advisors, accountants and other professional representatives) (collectively, “Representatives”) who have a legitimate need to know in connection with this Agreement or to use such Confidential Information for any purposes whatsoever other than the performance of this Agreement; provided that such Representatives are bound by confidentiality restrictions no less restrictive and protective than those contained in this Agreement and those Representatives are not direct competitors of the Disclosing Party. Receiving Party and its Representatives will use all reasonable care in handling and securing the Disclosing Party’s Confidential Information and will employ all security measures used for their own proprietary information of similar nature. The Receiving Party agrees to advise its Representatives of their obligations to keep such information confidential and will be liable to Disclosing Party for any acts and omissions of Receiving Party’s Representatives related thereto.
7.3. Authorized Disclosure and Cooperation to Prevent Disclosure of Confidential Information.
If a Receiving Party or any of its Representatives to whom it has becomes subject to an order that requires it to disclose Confidential Information, Receiving Party will, to the extent permitted by law: (a) promptly notify the Disclosing Party of the order's terms and the circumstances surrounding its issuance; and (b) disclose only the Confidential Information that it is legally required to disclose, consistent with a reasonable interpretation of the order. Each Party will use its best efforts to assist the other Party in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limitation of the foregoing, each Party will advise the other Party immediately in the event either Party learns or has reason to believe that any Representative or other person who has had access to Confidential Information has violated or intends to violate the terms of this Agreement and each Party will cooperate with the other Party in seeking injunctive or other equitable relief against any such person.
7.4. Remedies for Breach of Obligation of Confidentiality.
Receiving Party acknowledges and agrees that the breach of its obligation of confidentiality may give rise to irreparable injury to the Disclosing Party, which damage may be inadequately compensable in the form of monetary damages. Accordingly, Disclosing Party may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings without the requirement of posting a bond or other form of security, in addition to any other legal remedies which may be available.
7.5. Cumulative Remedies.
All rights and remedies of a Party herein will be in addition to all other rights and remedies available at law or in equity, including, without limitation, specific performance for the enforcement of this Agreement, and temporary and permanent injunctive relief.
8. INTELLECTUAL PROPERTY INDEMNIFICATION
8.1. Intellectual Property Right Indemnification.
FLO agrees to indemnify, defend, and hold the Customer Indemnitees harmless from and against any and all Claims and Losses which may be suffered by, accrued against, charged to, or recoverable from any Customer Indemnitee, arising out of a third-party Claim that the Licensed Software infringes or misappropriates any patent, copyright, trade secret, trademark, or other intellectual property right. In the event that FLO is enjoined or FLO reasonably believes that the Licensed Software is likely to become the subject of such a Claim, then FLO will, at its expense: (a) obtain for Customer the right to continue accessing and using the Licensed Software (b) replace or modify the Licensed Software so that it do not infringe upon or misappropriate such intellectual property right and is free to be delivered to, accessed and used by Customer with substantially similar functionality and performance; or (c) in the event that FLO is unable or determines, in its reasonable judgment, that it is commercially unreasonable to do either of the aforementioned, FLO will terminate the affected Order Forms and promptly reimburse to Customer any prepaid fees for which the Licensed Software and Services that have not been rendered or provided. Neither FLO’s election to proceed under subsections (a) or (b) nor Customer’s election to terminate shall relieve FLO of indemnification obligations that arose prior to such election.
8.2. Indemnification Procedures.
Promptly after receipt by Customer of a threat of any Claim, or a notice of the commencement, or filing of any Claim against Customer, Customer will give notice thereof to FLO, provided that failure to give or delay in giving such notice to FLO will not relieve FLO of any liability it may have to Customer except to the extent that FLO demonstrates that the defense of such Claim is prejudiced thereby. Customer will not independently defend or respond to any such Claim; provided, however, that: (a) Customer may defend or respond to any such Claim, at FLO’s expense, if Customer’s counsel determines, in its sole discretion, that such defense or response is necessary to preclude a default judgment from being entered against Customer; and, (b) Customer will have the right, at its own expense, to monitor FLO’s defense of any such Claim. FLO will have sole control of the defense and of all negotiations for settlement of such Claim. At FLO’s request, Customer will cooperate with FLO in defending or settling any such action; provided, however, that FLO will reimburse Customer for all reasonable out-of-pocket costs incurred by Customer (including, without limitation, reasonable attorneys’ fees and expenses) in providing such cooperation, and FLO may not settle any Claim without Customer’s prior written consent unless such settlement include a complete and final release of liability and losses against Customer and does not impose any obligations on Customer.
9. LIMITATION OF LIABILITY.
9.1. Consequential Damages Waiver.
WITH THE EXCEPTION OF THE CONFIDENTIALITY AND INTELLECTUAL PROPERTY OBLIGATIONS IN SECTIONS 7 AND 8 ABOVE, 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.
9.2. Limitation of Liability.
WITH THE EXCEPTION OF THE CONFIDENTIALITY AND INTELLECTUAL PROPERTY OBLIGATIONS IN SECTIONS 7 AND 8 ABOVE, 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.
9.3. 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.
10. SERVICE LEVEL COMMITMENT
FLO warrants that hosted versions of the Licensed Software will have 99.99% availability. 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 or Salesforce.com, unavailability of that platform generally, the inability of Customer to access that platform for any reason or bugs or issues arising from defects or bugs in that platform will not count against the available uptime. FLO will advise customers as quickly as reasonably possible of any loss of availability. In the event that the application is available for less than the prescribed time, FLO will issue a pro rata credit for the fees for the applicable period to be applied at the end of the then current License Period.
Except as expressly provided herein, neither Party may assign or transfer any of its rights under this Agreement (including its licenses with respect to the Licensed Software and Documentation) except as part of a general assignment of assets without the prior written consent of the other which will not be unreasonably withheld. Unless the Customer is required by statute or regulation to apply the law of a jurisdiction other than the State of California, this Agreement will be governed by and construed in accordance with the laws of the State of California 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 Irvine, California. If the statute or regulation applying to the Customer requires the application of a law of a state other than California, 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 a valid 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 hereunder 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: VP Operations, 100 University Avenue, Fifth Floor, Toronto, ON, M5J 1V6, CANADA and when addressed to the Customer to the billing address on the most recent Order Form.