FLOWMATIKS TERMS AND CONDITIONS
Updated June 10, 2020
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. Your use of the Service signifies your agreement to the following terms and conditions and any policies referenced herein (collectively, the “Agreement”). The Agreement is a binding legal contract entered into by you and Flowmatiks Technologies Inc. (“Flowmatiks”).
THE SERVICES. Flowmatiks may provide the following property management services to you via the internet as a software as a service (“SaaS”; the services collectively referred to herein as the “Services”). Flowmatiks may change this list at its sole discretion without notice at any time.
- Online rent collection;
- Repair request receipt;
- Property listing site integration;
- Income and expenses accounting;
- Property and tenant accounting;
- Tenant application receipt; and
- Ability to be integrated with third-party APIs.
FEES AND SUBSCRIPTION TERMS.
Free Trial Period. No fees will be due during the free trial period. During this period, you may cancel at any time.
Paid Services. Certain features of the Services will only be available to paid subscribers. Paid subscribers shall pay the listed recurring monthly fee in advance, plus additional per property and/or per unit fees as further described on the Fees page.
Automatic Renewals. Paid subscriptions shall automatically renew on a monthly basis until cancelled.
TERM AND TERMINATION.
Term. This Agreement will commence upon your first access of the Services and continue for the duration that you have the ability to access the Services.
Termination. Notwithstanding the foregoing, Flowmatiks may terminate this Agreement with you (by providing an email notice of such termination): (i) if you have breached any provision of this Agreement (or have acted in a manner which clearly shows that you do not intend to, or are unable to comply with the provisions of this Agreement); (ii) if we believe we are required to do so by law (for example, where the provision of the Services to you is, or becomes, unlawful); (iii) if we no longer offer any of the Services you utilize; (iv) if you no longer agree to the terms and conditions of this Agreement; or (v) for any other reason or no reason, in Flowmatik’s sole and absolute discretion. The termination of this Agreement will not affect any of Flowmatik’s rights or your obligations arising under this Agreement prior to termination.
Survival. The following sections shall survive the termination of this Agreement for any reason: 2, 3.3, 4, 6, 7, 8.4, 9, and 10. Further any provision that must survive to fulfill its essential purpose shall do so.
OWNERSHIP AND LICENSE GRANTS.
Ownership. Flowmatiks owns all worldwide right, title and interest in and to the SaaS, the Services, all of their underlying technologies, all derivatives thereof, and all worldwide intellectual property rights therein. Except as expressly described herein, this Agreement does not grant you any intellectual property license or rights in or to the Service, the Services, any of their components, or any trademarks, service marks, or other intellectual property of Flowmatiks.
3rd Party Services and Marks. All rights with respect to the marks, trade names, and/or service names of any third-party reproduced in providing the Services shall remain with said third-party. Said marks are used solely in a descriptive manner to actually reference said third-party’s services.
Internal Use Only. Flowmatiks grants you a non-exclusive, limited, non-transferable, non-sublicensable, revocable licenses during the term of your active subscription to use the Services solely for your internal business use. You shall not redistribute, or otherwise make the Services available to any third-party.
YOUR USE OF THE SERVICE.
Account Credentials. You shall use no less than reasonable efforts to maintain the security of your Service credentials. You agree not to transfer your account to any third-party. You shall be solely responsible for use of your credentials and/or your account by any third-party. You must notify Flowmatiks upon becoming aware of any breach or suspected breach of the security of your account.
Accurate Information. You agree to keep your personal information accurate and complete. Misrepresentation of your identity or the ownership of the account information used with the Services shall be a material breach of the terms herein and may be a violation of applicable law.
Appropriate Conduct. You hereby warrant and agree that you shall not: a.) use the SaaS or Services for any illegal or unauthorized purpose; b.) use the SaaS or Services in any way that violates any applicable law, regulation, legislation, or other applicable rules of any governing body; c.) modify, adapt, hack, or reverse engineer the SaaS or Services; d.) engage in any activities that would create a false association with the SaaS or Services; e.) use any robot, spider, webcrawler, scraper, deep link or similar automated extraction or data gathering mechanism, program or tool to access, copy or monitor the SaaS or Services or any portion thereof without Flowmatik’s prior written consent; or f.) transfer or resell the Service or Services.
Third-Party Content and Services. You acknowledge and agree that content and links that you come across via the Services may be provided by third-parties and may include and point to content outside of Flowmatiks’s control (“Third-Party Content”). Flowmatiks shall have no liability whatsoever for any such Third-Party Content, or any third-party fees you may incur by accessing such Third-Party Content, and you hereby release Flowmatiks from any claims related to or arising therefrom.
Other Use Restrictions. You agree that you will use the Services for your own internal business use only. You will not: a.) allow third-parties to exploit the Services; b.) provide Services passwords or other login information to any third-party; c.) share non-public Services features or content with any third-party; or d.) access the Services in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the Services, or to copy any ideas, features, functions or graphics of the Services.
Consent to Messages. You hereby consent to continue to receive from Flowmatiks, Services related messages, marketing, and/or advertising for additional services, events, affiliate products, and services through the mediums of electronic mail, printed mails, phone calls, text messages (carrier fees may apply), and/or social media messages. You may opt-out of future marketing and advertising from Flowmatiks at any time through either express written notice, or by clicking on the applicable unsubscribe links contained in any such material.
Required Disclosures to Tenants. You hereby agree to disclose to and/or amend your contractual agreement with your tenant to obtain permission to send electronic mails, SMS text message communications, and automated phone calls should you use Flowmatiks’ automated communication systems. You shall comply with all laws and regulations related to the marketing, communications, and advertising policies of your state and/or the Federal Government. You shall disclose to all tenants and prospective tenants that you may communicate with them via SMS text message and fees may apply for such text messages to be received by the tenants.
Email Reputation & Appropriate Usage. You shall not use Flowmatiks’ automated communication services to automate, send, and/or broadcast any emails that may contain spam, illegal business practices, sexual content, solicitation of illegal substances, and/or activities related to gambling and online gaming.
Prohibited Use of Software Service. You shall not use Flowmatiks Software Service to conduct any businesses that fall into the following category:
- Multi-Level Marketing Offerings or Advertising
- Credit Repair and/or Credit Services
- Debt Collection Services (other than past lease obligations)
- Debt Consolidation and/or Removal Services
- Online Gaming and Gambling
- Sale, Production, and/or distribution of Marijuana-related products or services.
- Sale, Production, and/or distribution of adult content.
CUSTOMER DATA AND PRIVACY.
WARRANTY, DISCLAIMER AND LIMITATION OF LIABILITY.
Warranty Disclaimer. The Service and Services are provided to you without warranty of any kind, whether express or implied. FLOWMATIKS SPECIFICALLY EXCLUDES AND DISCLAIMS WARRANTIES OF NONINFRINGEMENT, TITLE, THE WARRANTY OF MERCHANTABILITY, AND THE WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
Damages Limitation. IN NO EVENT SHALL FLOWMATIKS BE LIABLE TO YOU FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES HOWEVER CAUSED AND WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCTS LIABILITY OR ANY OTHER THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST REVENUES, LOST SAVINGS, COSTS OF CAPITAL, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, DOWNTIME COSTS, LOSS OR IMPAIRMENT OF DATA AND OTHER BUSINESS LOSS. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER FLOWMATIKS KNOWS OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN.
Limitation of Liability. IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF FLOWMATIKS TO YOU ON WHATEVER BASIS, EXCEED THE TOTAL OF FEES RECEIVED BY FLOWMATIKS FROM YOU DURING THE 6-MONTH PERIOD PRECEDING THE ACTION GIVING RISE TO THE CLAIM.
Risk Allocation. The provisions herein allocate risks of loss or failure between you and Flowmatiks. The provisions contained in this Agreement reflect this allocation of risk and the disclaimer and limitations of liability contained herein.
RIGHTS OF FLOWMATIKS.
Changes to the Service. Flowmatiks may, at its sole discretion, change or remove some or all of the SaaS or Services at any time. Flowmatiks reserves the right to interrupt the Services with or without prior notice for any reason or no reason. You agree that Flowmatiks will not be liable to you for any loss of availability of the Service, interruption of the Services, delay, or failure to perform.
Change to the Agreement. Flowmatiks reserves the right to amend this Agreement at any time. If amendments constitute a material change to the Agreement, to be determined at the sole discretion of Flowmatiks, Flowmatiks will notify you via e-mail or via a conspicuous notice on the Services.
Refusal of Service. Flowmatiks reserves the right to refuse service to anyone for any reason at any time. Flowmatiks may permanently or temporarily terminate, suspend, or otherwise refuse to permit your access to the Services without notice and liability for any reason, including if in Flowmatiks’s sole determination you violate any provision of this Agreement, or for no reason.
Trademarks. All Flowmatiks graphics, logos, designs, page headers, button icons, scripts, and service names are registered or unregistered trademarks or service marks of Flowmatiks. Flowmatiks reserves all rights in said trademarks and service marks and no rights therein are granted or transferred hereunder. You shall not use any of Flowmatiks’s trademarks or service marks, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion.
Indemnity. You agree to indemnify and hold harmless Flowmatiks, its subsidiaries, Affiliates, officers, directors, agents, and employees (collectively, the “Indemnitees”), harmless from any claim, loss, damage, or demand (collectively, “Claims”) arising out of or related to your use of the SaaS or the Services, your violation of any law or the rights of any third-party, or your breach of any term or warranty within this Agreement. For the avoidance of doubt, the foregoing obligation includes an obligation to defend Flowmatiks from any Claim from any property, unit, or tenant managed or otherwise interacted with via the Services.
“Affiliate” means, with respect to any entity, any other entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such entity, and the term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such entity, whether through ownership of voting securities, by contract, or otherwise.
Relationship Between Parties. Neither party shall be deemed to be an employee, agent or partner of the other in connection with this Agreement. Neither party shall have any right or authority to assume or create any obligation or responsibility, either express or implied, on behalf of the other party. The Parties shall be and remain independent contractors with respect to this Agreement.
Governing Law. This Agreement shall in all respects be interpreted, construed in accordance with and governed by the laws of the State of Illinois. The Parties specifically exclude the application of the 1980 United Nations Convention on Contracts for the International Sale of Goods, if otherwise applicable.
Venue and Jurisdiction Provisions. Subject to the dispute resolution clause in Section 10.17 below, in the event of any litigation between the Parties, the Parties agree that the sole and exclusive venue and jurisdiction for any such action shall be in the courts of competent jurisdiction located in Illinois. The Parties agree that the above referenced courts shall have personal and exclusive jurisdiction over the Parties for any dispute arising out of this Agreement.
Severability. In the event that any one or more of the provisions of this Agreement is for any reason held to be illegal or unenforceable in any respect, such illegality or unenforceability shall not affect the other provisions of this Agreement, which shall remain in full force and effect.
Force Majeure. Neither party will be liable for any failure to perform due to unforeseen circumstances or causes beyond such party’s reasonable control, including, without limitation, acts of God, pandemic, war, riot, acts of civil or military authorities, delay in delivery by vendors, fire, flood, accident, strikes, inability to secure communication or transportation facilities or labor or materials. In the event of a force majeure event, such party’s time for delivery or other performance will be extended for a period equal to the duration of the delay caused thereby.
Entire Agreement. This Agreement is the entire agreement between the Parties and supersedes all proposals, all prior agreements, commitments, oral or written, and all negotiations, conversations or discussions between the Parties relating to this Agreement.
Modifications. Except as otherwise allowed per the terms of this Agreement, this Agreement may be modified only by a writing signed by each party.
Headings. Headings included in this Agreement are for convenience only and are not to be used to interpret the provisions of the Agreement between the Parties.
Assignment. You may not assign or delegate the rights and obligations of this Agreement without the prior express written permission of Flowmatiks. Flowmatiks may unilaterally assign or delegate the rights and obligations of this Agreement at its sole discretion. The terms of this Agreement shall be binding upon and inure to the benefit of the Parties and their successors and permitted assigns.
Waiver. The failure of either party to enforce at any time any of the provisions hereof shall not be construed to be a waiver of the right of such party thereafter to enforce any such provisions.
Benefit. This Agreement is made for the benefit of each of the Parties and not for the benefit of any other persons.
Attorneys’ Fees. In any litigation or arbitration between the Parties, the prevailing party shall be entitled to reasonable attorney fees and all costs incurred in connection with such proceedings.
No Presumption. There shall be no presumption applied against any party on the ground that such party was responsible for preparing this Agreement or any part of it.
Conflict with Terms of Service or Other Policies. Should any conflict arise between this Agreement or any other policy documents, this Agreement shall prevail.
Equitable Relief. Each party acknowledges that a breach by the other party of any confidentiality or proprietary rights provision of this Agreement may cause the non-breaching party irreparable damage, for which the award of damages would not be adequate compensation. Consequently, the non-breaching party may institute an action to enjoin the breaching party from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and a party may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching party may be entitled at law or in equity.
DMCA Notices. The Digital Millennium Copyright Act of 1998 (the “DMCA“) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials hosted by Flowmatiks infringe upon your copyright, you (or your agent) may send us a notice requesting that the material be removed, or access to it blocked. The notice must include the following information as required by 17 USC § 512(c)(3)(A): (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed (or if multiple copyrighted works located on the site are covered by a single notification, a representative list of such works); (c) identification of the material that is claimed to be infringing or the subject of infringing activity, and information reasonably sufficient to allow Indeed to locate the material on the site; (d) the name, address, telephone number, and email address (if available) of the complaining party; (e) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send Flowmatiks a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. Notices and counter-notices should be sent in writing to firstname.lastname@example.org Subject: Copyright Notice. Please be aware that there are penalties for false claims under the DMCA.
Dispute Resolution. You agree to notify Flowmatiks of any potential disputes. If we are not able to resolve your claims within 60 days, you may seek relief through arbitration as set forth below.
Any and all claims, except for those for which Illinois courts shall have jurisdiction per the terms above, will be resolved by binding arbitration, rather than in court. This includes any claims you assert against us, our subsidiaries, users, or any companies offering products or services through us (which are beneficiaries of this arbitration agreement). Arbitrations will be conducted by the American Arbitration Association (AAA) under its rules.
Any and all proceedings to resolve claims will be conducted only on an individual basis and not in a class, consolidated, or representative action. If for any reason a claim proceeds in court rather than in arbitration we each waive any right to a jury trial. An arbitration decision may be confirmed by any court with competent jurisdiction.
Contact Information. If you have any questions, concerns, or complaints about our Services or anything under this Agreement or other Agreements with us, please contact us at the following email address or telephone number:
3S721 West Ave Suite 150
Warrenville, IL 60555