Flomatika Terms of Use

Date of publication: 01 September 2021

By indicating your acceptance of these Terms or accessing or using our Flomatika platform, you are agreeing to be bound by the terms and conditions of these Terms of Use . Each party expressly agrees that these Terms of Use are legally binding upon it. If you do not accept all or any part of the Terms, please do not access or use the Flomatika platform, our website or any Flomatika services.

These Terms of Use (Terms) are entered into between Flomatika Trading Co Pty Ltd (Flomatika) and the person placing an order for or accessing the Flomatika Platform. “You” means the entity you represent in accepting these Terms or, if that does not apply, you individually.  If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer or such entity to these Terms; (ii) you have read and understand these Terms; and (iii) you agree to these Terms on behalf of the party that you represent. 

These Terms are effective as of the date you first click “I agree” (or similar button or checkbox) or use or access the Platform, whichever is earlier (the Effective Date). These Terms do not have to be signed in order to be binding.

Please note that Flomatika reserves the right to make changes to these Terms from time to time. Any such changes will be posted via the www.flomatika.com website and will take immediate effect from the date of their publication. It is your responsibility to review the Terms as published at www.flomatika.com at regular intervals.

You must not use the Platform and must not accept the Terms if:

●     you are not of legal age to form a binding contract with Flomatika; or

●     you are a person barred from receiving the Platform under the laws of Australia or other countries including the country in which you are resident or from which you use the Platform.

1. What these Terms cover

These Terms govern our Platform, related support and additional services. These Terms include our policies (including the Privacy Policy) and may include separate terms which apply specific to the account entered into between you (or the entity you represent) and Flomatika (SubscriptionTerms). If there is any inconsistency between these Terms and the Subscription Terms then the Subscription Terms will prevail.

2. What is the Platform?

Flomatika is a cloud based platform that interfaces with your work management software to pull and populate your data into a dashboard; and derive metrics from that data, for the purpose of analysing the data through visualisations, to improve performance. Further details regarding the Platform and its functionality can be found in the Documentation at www.flomatika.com.

3. How the Platform is administered

Administrators

The Platform will allow you to specify certain Users as Administrators, who will have important rights and controls over your use of the Platform and User accounts. This may include creating, de-provisioning, monitoring or modifying End User Accounts, and setting End User usage permissions; and managing access to Your Data by End Users or others.

Administrators may take over management of accounts previously registered using an email address belonging to your domain. You agree that our responsibilities do not extend to the internal management or administration of the Platform for you.

Administrators are responsible for understanding the settings and controls for your use and for controlling whom you allow to become an User. Administrators are also responsible for activities of your Users.

Credentials

If you are an Administrator, you must require that all Users keep their user IDs and passwords for the Platform strictly confidential and do not share such information with any unauthorised person. User IDs are granted to individuals, named persons and may not be shared. As an Administrator you are responsible for any and all actions taken using User accounts and passwords, and you agree to immediately notify us of any unauthorised use of which you become aware.

Subscriptions

There are different types of subscription accounts to the Platform currently offered. You acknowledge and agree that the accounts offered, as well as the account features may change from time to time, and may be governed by Subscription Terms.

4. What’s included in the subscription

In order to access the Platform, you must purchase a subscription through the website and pay the applicable Fees, unless the entity you represent has otherwise entered into Subscription Terms.

Once you have been created as a User you will be granted access to the Platform from the time your access is granted to the time the subscription period expires. The rights granted to you are non-exclusive, non-sublicensable and non-transferable.

You acknowledge and agree that it is your responsibility to ensure that the subscription you elect to purchase is suitable for your use.

As part of the registration process, or as part of your continued use of the Platform, you may be required to provide personal information about yourself (such as identification or contact details), including but not limited to name, email address and credit card details. You warrant that any information you give to Flomatika in the course of completing the registration process will always be accurate, correct and up to date.

Use of Flomatika Content

You can view, copy, print, distribute (but not modify), and download Flomatika Content for use in accordance with these Terms, provided you include the copyright notice or other attribution associated with the content.

Restrictions

You must not or attempt to (including authorising any person to):

  • make the Platform or any Flomatika Content available to any third party not authorised to access and use it;
  • send or store code (including malicious code and malware) that could result in damage to the Platform;
  • except to the extent otherwise specified, integrate or link the Platform with other software (without Flomatika’s prior written consent);
  • use the Platform for any illegal or offensive purpose or to violate the rights of any third party, or to retrieve, store, manipulate, process, transmit, display or forward any Customer Content that is illegal, defamatory or offensive;
  • wilfully interfere with or disrupt the integrity of the Platform or circumvent or disable the Platform’s security, copyright protection, or license management mechanisms;
  • disclose the results of testing or benchmarking of the Platform;
  • interfere with the Platform’s operation; or
  • gain unauthorised access to any underlying software or infrastructure used to provide the Platform or any of Flomatika’s related systems or networks.

Support

We will provide support services during the Term with a view to ensuring, to the extent reasonably possible, that the Platform materially conforms with the Documentation and any service levels specified in the Subscription Terms.  

When requesting support services, you must provide Flomatika with all relevant information in relation to the problem and the request.

On receiving your support request, we will provide such support in a timely and professional manner during normal business hours in Australia (AEST).

5. Our security and data policies

Security

We implement and maintain physical, technical and administrative security measures designed to protect your data from unauthorised access, destruction, use, modification, or disclosure.

We recommend that you install and use up-to-date anti-virus, anti-spyware and firewall software on your computer.

Privacy

Flomatika collects, stores, and processes certain data and information about you and your Users in connection with your and your Users’ use of the Platform and otherwise in connection with these Terms. The information is used to provide the Platform to you and to facilitate and improve Flomatika’s services and business operations.

Flomatika takes your privacy seriously and all information provided through your use of the Platform is subject to our Privacy Policy. By using the Platform and accessing the Flomatika website, you agree to the terms of our Privacy Policy, including any obligations imposed on you.

6. Confidentiality

Except as otherwise set forth in these Terms, each party agrees that all code, inventions, know-how and business, technical and financial information disclosed to such party (Recipient) by the disclosing party (Disclosing Party) constitute the confidential property of the Disclosing Party (Confidential Information), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Recipient to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure.

Confidential Information may be disclosed to Recipient’s employees, agents, professional advisors and contractors (Related Parties) on a need-to know basis only, and the Recipient must ensure that those persons maintain such Confidential Information in accordance with these Terms.

The Recipient will, on request of the Disclosing Party or upon termination of the Terms, return to the Disclosing Party all Confidential Information in its possession or certify the destruction of it.

The obligations under these Terms do not apply to any disclosure or use of Confidential Information:

  • where the Confidential Information becomes publicly available through no act or omission of the Recipient or Related Parties;
  • for the purposes of performing a party’s obligation, or exercising a party’s rights, under this Terms;
  • where required by law; or
  • which was rightfully received by a party from a third party without restriction and without breach of any obligation of confidentiality.
  • Nothing in these Terms will:
  • preclude us from using any ideas, methods, concepts and know-how developed in the course of providing the Platform or implementation services (if any); or
  • limit our rights to provide similar services or software to other customers.

7. Feedback

Any feedback you provide to us will not be considered Confidential Information and nothing in these Terms limit our right to independently use, develop, evaluate, or market products or services, whether incorporating such feedback or otherwise. You hereby grant Flomatika  a worldwide, royalty-free, non-exclusive, perpetual and irrevocable license to use, copy, modify and otherwise exploit Feedback for any purpose, including incorporating or implementing the Feedback in the Platform. You agree that Flomatika may exploit all Feedback without any restriction or obligation on account of intellectual property rights or otherwise. “Feedback” means any feedback, comments, suggestions or materials that you may provide to Flomatika about or in connection with the Platform or Flomatika Content, including any ideas, concepts, know-how or techniques contained therein.

This clause will survive the termination or expiry of these Terms and your subscription.

8. Intellectual Property

Flomatika (or our relevant licensor) retain all the right, title, Intellectual Property Rights and other proprietary rights in or relating to the Platform and the Flomatika website, including all Flomatika Content.

The Platform is made available on a limited license or access basis , and no ownership right is conveyed to you. You must not (and must not authorise any person to) directly or indirectly:

  • copy, modify or create derivative works from the Flomatika Content, except with our prior written consent;
  • copy, modify or create derivative works from the Platform;
  • decompile, reverse engineer, or translate any part of the Platform into human-readable form (except to the extent expressly allowed by applicable law);
  • rent, lease, share, distribute, or sell the Platform to any third party, including on a service bureau or similar basis;
  • remove, alter or deface any proprietary notices or marks on the Platform or Documentation, or in any way injure the reputation or distinctiveness of any branding, logos or creatives included in the Flomatika Content;
  • challenge or contest our ownership of any Intellectual Property Rights in or relating to the Flomatika Content or Platform; nor
  • seek to register or use any graphics, logos, marks, names or images which are deceptively similar to those used by Flomatika as trade or brand indicia (including the word “Flomatika” (or any combination of those words).

For any breach of these Terms, we may take any action deemed reasonable, including:

  • denying access to the Platform; or
  • suspending or terminating your subscription to the Platform.

You own all rights, title and interest (including Intellectual Property Rights) in all your content. You must ensure you have all the necessary right to provide any of this content to us or to transmit it, or upload it onto, the Platform. You grant us a non-exclusive, royalty free, non-transferable and revocable licence to use any of your Intellectual Property Rights as reasonably required for us to provide the Platform subscription to you.  The licence outlined in this clause includes use of your logo, branding or other trademarks (the “Trademarks”) for Flomatika’s marketing efforts.

This clause will survive the termination or expiry of these Terms and your subscription.

9. Payment and Billing

You agree to pay all applicable fees, unless the entity you represent has otherwise entered into Subscription Terms.

All Fees are non-cancellable and non-refundable.

We may reasonably increase the Fees (including to reflect increased costs of delivering the Platform):

  • at any time if any applicable Use Limits are exceeded; or  
  • at the end of the Initial Term or any Renewal Term,  by providing at least 45 days’ notice of the change prior to expiry of the then current Term.

If any Fees are not paid by the due date, we may charge interest at 3% per month compounded for the overdue period, or the maximum amount allowed by law, unless you have raised a bona fide dispute (supported by written explanation and documentation provided to us) before the due date.

If Your account is 30 days or more overdue, we may without prior written notice suspend the Platform, without liability, until such amounts are paid in full.

10. Renewals

Except as otherwise specified in the Subscription Term, unless either party cancels your subscription prior to expiration of the current subscription Term, your subscription will automatically renew for another subscription Term of a period equal to your initial Term.

You will provide any notice of non-renewal through the means we designate, which may include account settings in the Platform or by  contacting our support team. Cancelling your subscription means that you will not be charged for the next billing cycle, but you will not receive any refunds or credits for amounts that have already been charged.

11. Termination

Either Party may terminate these Terms if the other party is in material breach of any provision of these Terms, and where the breach is capable of remedy, has failed to remedy the breach within 30 days after notice of the breach has been received.

We may terminate these Terms and your subscription at any time (in whole or part) where:

  • you have breached any provision of these Terms or intend to breach any provision;
  • an insolvency event has occurred, is occurring or may occur in relation to you and that termination is allowed at law;
  • we reasonably believe we need to do so to comply with any law or any order or request of any government or regulatory body; or
  • we are unable to continue to supply the Platform to you for any reason (including due to termination or expiry of any terms with our suppliers),

12. Warranties

Flomatika represents and warrants that for so long as you continue to pay the Fees, the Platform will perform materially in accordance with the Documentation and Flomatika will use all reasonable efforts to meet any agreed service levels (subject to failures caused by you (or the entity you represent) or any third party, and to any scheduled maintenance downtime).

We do not warrant that Users will have continuous access to the Platform, or will be error free, and Flomatika will not be liable if the Platform is unavailable due to computer downtime.

You acknowledge that:

  • We have no control over telecommunications networks or services, the internet or other technology required to make the Platform available over the internet - and accepts no responsibility or liability for any direct or indirect loss in any form associated with them, whether due to congestion, technical malfunction, viruses or otherwise;
  • We do not guarantee the delivery of communications over the internet; and
  • electronic communication (including electronic mail) is vulnerable to interception by third parties - so while we will implement reasonable and appropriate measures designed to help the you secure the Customer Content against accidental or unlawful loss, access or disclosure, we do not guarantee the security or confidentiality of these communications or the security of the Platform.

Except as set out above, to the extent permitted by law, the Platform and Flomatika Content is provided “as is” and no other warranties, whether express or implied, including warranties of merchantability, suitability or satisfactory quality, non-infringement, or fitness for a particular purpose, are made by us. We also make no warranties with respect to any third party hardware, equipment, software or services which we may use to provide the Platform.  

13. Limitation of liability

Our total liability arising out of or in connection with the Platform, Flomatika Content or these Terms, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the resupply of the services to you.

You expressly understand and agree that Flomatika, its affiliates, employees, agents, contributors and licensors shall not be liable to you for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you, however caused and under any theory of liability. This shall include, but is not limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation and any other intangible loss.

14. Indemnity

You agree to indemnify Flomatika, its affiliates, employees, agents, contributors, third party content providers and licensors from and against:

  • all actions, suits, claims, demands, liabilities, costs, expenses, loss and damage (including legal fees on a full indemnity basis) incurred, suffered or arising out of or in connection with Customer Content;
  • any direct or indirect consequences of you accessing, using or transacting on the Platform and Flomatika website or attempts to do so; and
  • any breach of these Terms.

15. Dispute resolution

Compulsory: If a dispute arises out of or relates to the Terms, either party may not commence any tribunal or court proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought).

Notice: A party to these Terms claiming a dispute has arisen under the Terms, must give written notice to the other party detailing the nature of the dispute, the desired outcome and the action required to settle the dispute.

Resolution: On receipt of that notice by that other party, the parties to the Terms must:

  • Within 14 days days of the notice endeavour in good faith to resolve the dispute expeditiously by negotiation or such other means upon which they may mutually agree;
  • If for any reason whatsoever, 30 days days after the date of the notice, the dispute has not been resolved, the parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by the President of the Australian Disputes Centre or his or her nominee;
  • The parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing undertaking to pay any amounts requested by the mediator as a precondition to the mediation commencing. The parties must each pay their own costs associated with the mediation;
  • The mediation will be held in Melbourne, Australia.

Confidential: All communications concerning negotiations made by the parties arising out of and in connection with this dispute resolution clause are confidential and to the extent possible, must be treated as "without prejudice" negotiations for the purpose of applicable laws of evidence.

Termination of Mediation: If 5 days have elapsed after the start of a mediation of the dispute and the dispute has not been resolved, either party may ask the mediator to terminate the mediation and the mediator must do so.

16. General

Governing law: The Terms are governed by the laws of Victoria. Any dispute, controversy, proceeding or claim of whatever nature arising out of or in any way relating to the Terms and the rights created hereby shall be governed, interpreted and construed by, under and pursuant to the laws of Victoria, Australia without reference to conflict of law principles, notwithstanding mandatory rules.

Independent Legal Advice: Both parties confirm and declare that the provisions of the Terms are fair and reasonable and both parties having taken the opportunity to obtain independent legal advice and declare the Terms are not against public policy on the grounds of inequality or bargaining power or general grounds of restraint of trade

Links to other sites: This site may contain hypertext links, frames or other references to other parties and their websites. Flomatika cannot control the contents of those other sites, and make no warranty about the accuracy, timeliness or subject matter of the material located on those sites. Flomatika do not necessarily approve of, endorse, or sponsor any content or material on such sites. Flomatika make no warranties or representations that material on other websites to which this website is linked does not infringe the intellectual property rights of any person anywhere in the world.

Severance: If any provision of these Terms is held to be void, invalid, unenforceable or illegal, the other provisions will continue in full force and effect.

Survival: Clauses relating to Confidentiality, Intellectual Property, Limitation of Liability and Termination will survive termination or expiry of these Terms.

17. Definitions and Interpretation

Definitions

In these Terms, unless the context otherwise requires:

Administrator” means the personnel designated by you (or the entity you represent) who administer the Platform to Users on your (or your entity’s) behalf.

Customer Content” means any information, data, graphics, comment, text or other materials that you or any User uploads to the Platform or transmits or communicates through the Platform (other than feedback relating to the Platform);

Documentation” means Supplier’s standard documentation and user manuals, made available by Flomatika in relation to the Platform;

Fees” means the (GST exclusive) fees payable for the Platform and any implementation services specified in the Subscription Terms and as amended from time to time under the these Terms;

Initial Term” means 12 months from the Effective Date or as otherwise set out in the Subscription Terms;

Intellectual Property Rights” means any existing or future, registered or unregistered, intellectual property rights including any patent, trade mark, copyright, design, business name or trade secret;

Platform” means Flomatika’s proprietary cloud service performance data science platform known as Flomatika, as modified from time to time;

Flomatika Content” means any graphics, names, marks, information, images, text, or other material provided by Flomatika and included within the Platform or provided with it (such as training materials);

Renewal Term” means the successive 12 month periods from expiry of the Initial Term or then current Renewal Term or as otherwise set out in the Subscription Terms.

Users” means individuals authorised by the Administrator to access and use the Platform and who have been provided user identifications and passwords to do so; and

Use Limits” means any restrictions on the use of the Platform based on the then current Fees payable, and subscription model selected.  

Interpretation

Where interpreting the Terms:

  • headings are for ease of reference only and do not affect the meaning of the Terms;
  • a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this Terms or any part of it;
  • a reference to the word ‘including’ or ‘includes’ is to be construed without limitation to the preceding words; and
  • a reference to “$“ or “dollar” is to the Australian currency.

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