End-User License Agreement for Flowserve Corporation’s Mobile Software Application “Flowserve FlowSync”

End-User License Agreement for Flowserve Corporation’s Mobile Software Application “Flowserve FlowSync”

PLEASE READ THE LICENSE CAREFULLY BEFORE DOWNLOADING THE APPLICATION. BY USING FLOWSERVE’S APPLICATION SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, YOU ARE NOT AUTHORIZED TO DOWNLOAD OR USE THIS APPLICATION.

This End-User License Agreement (“EULA”) is a legal agreement between you, the end user, (either an individual person or a single legal entity (hereinafter referred to as “You” or “Licensee”) and Flowserve Corporation (hereinafter referred to as “Flowserve” or the “Application Provider”). This EULA applies to the mobile application software programs that accompany the EULA (hereinafter referred to as the “Licensed Application”). By selecting Accept or by using the Licensed Application, you agree to be bound by the terms of this EULA.

1. Scope of License. This license granted to You for the Licensed Application by Application Provider is limited to a non-transferable license to use the Licensed Application on any mobile device that You own. This license does not allow You to use the Licensed Application on any device that You do not own, and You may not distribute or make the Licensed Application available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, sell, redistribute or sublicense the Licensed Application. You may not copy (except as expressly permitted herein), decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Licensed Application, any updates, or any part thereof. Any attempt to do so is a violation of the rights of the Application Provider and its licensors. If You breach this restriction, You may be subject to prosecution and damages. The Licensed Application is made available for use solely with the products and services provided through Application Provider and any use with products or services provided by an entity other than Application Provider is prohibited. The terms of the license will govern any upgrades provided by Application Provider that replace and/or supplement the original Product, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.

   Title to the Licensed Application remains with Application Provider. You acknowledge that the Licensed Application contains confidential information of Flowserve which is proprietary to and trade secrets of Flowserve and that any publication or disclosure to third parties of the confidential information may cause immediate and irreparable harm to Flowserve. You will take all responsible steps to protect the confidentiality of the Licensed Application during the term of this EULA and for an additional five (5) years thereafter.

2. Use of Licensed Application. You understand, acknowledge and accept that the Licensed Software can read, change and write system configurations and parameters of the supported actuator system, which enables commissioning, programming and controlling actuators. Flowserve reserves the right to extend, improve or modify functions and services of the Licensed Application at any time.

   You acknowledge, agree and commit not to disclose any of Your actuator passwords to any third parties. You shall be liable for any and all damages incurred as a result of third parties having obtained knowledge of Your passwords due for any reason, including but not limited to unauthorized access to Your information, access to the equipment’s operating manual, involuntary disclosure, etc. In the event that Your passwords have been stolen or if You obtain knowledge that Your passwords are being unlawfully used by a third party, You must immediately inform Flowserve in writing. Flowserve reserves the right to temporarily deactivate user accounts if misuse or violation of the present End User License Agreement is suspected or verified.

3. Consent to Use of Data. You agree that Application Provider may collect and use technical data and related information, including but not limited to technical information about Your device, system and application software, images and videos selected and/or provided by You, and peripherals, that are gathered periodically to facilitate the provision of software updates, product support and other services to You (if any) related to the Licensed Application. Application Provider may use this information, as long as it is in a form that does not personally identify You, to improve its products or to provide services or technologies to You.
4. Termination. The license is effective until terminated by You or Application Provider. The Application Provider may at its discretion terminate this license at any time. Your rights under this license will terminate automatically without notice from the Application Provider if You fail to comply with any term(s) of this license. Upon termination of the license, You shall cease all use of the Licensed Application, and destroy all copies, full or partial, of the Licensed Application.

5. Services. The Licensed Application may enable access to Application Provider’s and third party services and web sites (collectively and individually, "Services"). Use of the Services may require Internet access and that You accept additional terms of service.

   Certain Services may display, include or make available content, data, information, applications or materials from third parties (“Third Party Materials”) or provide links to certain third-party web sites. By using the Services, You acknowledge and agree that the Application Provider is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or web sites. The Application Provider does not warrant or endorse and does not assume and will not have any liability or responsibility to You or any other person for any third-party Services, Third Party Materials or web sites, or for any other materials, products, or services of third parties. Third Party Materials and links to other web sites are provided solely as a convenience to You.

   The Application Provider, and its licensors, reserve the right to change, suspend, remove, or disable access to any Services at any time without notice. In no event will the Application Provider be liable for the removal of or disabling of access to any such Services. The Application Provider may also impose limits on the use of or access to certain Services, in any case and without notice or liability.

6. No Reliance on Information. All information, including but not limited to information related to engineering decisions, calculations, and/or unit conversions, provided through any Services or the Licensed Application are for general informational purposes only and are not intended to be relied upon as engineering advice. Before relying on any information obtained through the Services or the Licensed Application, You should consult with a professional engineer.
7. NO WARRANTY. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE LICENSED APPLICATION IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED APPLICATION AND ANY SERVICES PERFORMED OR PROVIDED BY THE LICENSED APPLICATION ("APPLICATION SERVICES") ARE PROVIDED "AS IS" AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND APPLICATION PROVIDER HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE LICENSED APPLICATION AND ANY APPLICATION SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. APPLICATION PROVIDER DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE LICENSED APPLICATION, THAT THE FUNCTIONS CONTAINED IN, OR APPLICATION SERVICES PERFORMED OR PROVIDED BY, THE LICENSED APPLICATION WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE LICENSED APPLICATION OR APPLICATION SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE LICENSED APPLICATION OR APPLICATION SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY APPLICATION PROVIDER OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE LICENSED APPLICATION OR APPLICATION SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
8. LIMITATION OF LIABILITY. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL APPLICATION PROVIDER BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, PUNATIVE, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, INACCURACY OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OF OR INABILITY TO USE THE LICENSED APPLICATION, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, INCLUDING NEGLIGENCE, OR OTHERWISE) AND EVEN IF APPLICATION PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT SHALL APPLICATION PROVIDER’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF FIFTY DOLLARS ($50.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE OR IN THE EVENT OF A FUNDAMENTAL BREACH.
9. DISCLAIMER AND SAFETY INSTRUCTIONS FOR USE OF THE LICENSED APPLICATION. PRIOR TO FIRST USE, YOU MUST VERIFY THAT ALL SETTINGS IN YOUR EQUIPMENT MEET THE REQUIREMENTS FOR USE OF THE APPLICATION. FAILURE BY YOU TO PERFORM SUCH CHECKS OR INCORRECT SETTINGS OR PARAMETERS IN YOUR EQUIPMENT MAY PRESENT A HAZARD OR DANGER TO SUCH EQUIPMENT. THE LICENSED APPLICATION ENABLES YOU (OR ANY OTHER USER OF THE LICENSED APPLICATION) TO CONTROL AND CHANGE THE PARAMETERS OF THE ACTUATOR SYSTEM, INCLUDING BUT NOT LIMITED TO CRITICAL PARAMETERS SUCH AS TORQUE LIMITS OF THE ACTUATOR SYSTEM OR SETTING OF VALVE END POSITIONS. ISSUING COMMANDS SUCH AS OPERATION COMMANDS ON THE ACTUATOR SYSTEM IS CONSIDERED AS CRITICAL ACTION. AFTER CHANGING PARAMETERS OR PRIOR TO ISSUING OPERATION COMMANDS IT IS CRITICAL THAT ALL SETTINGS ARE FURTHER CHECKED AS TO WHETHER THEY STILL MEET TO THE REQUIREMENTS OF THE LICENSED APPLICATION. PRIOR TO USING THE LICENSED APPLICATION, YOU AND YOUR STAFF MUST HAVE THOROUGHLY READ AND UNDERSTOOD THESE CONDITIONS FOR USE AND, FURTHERMORE, KNOW AND OBSERVE ALL APPLICABLE RULES AND REGULATIONS, INCLUDING THOSE REGARDING OCCUPATIONAL HEALTH AND SAFETY. YOU MUST ENSURE THAT ONLY AUTHORIZED QUALIFIED PERSONNEL HAVE ACCESS TO THE LICENSED APPLICATION AND TO THE USE OF ANY SUPPORTED ACTUATOR SYSTEMS THEREUNDER.

10. Import/Export. You may not use or otherwise export or re-export the Licensed Application except as authorized by United States law and the laws of the jurisdiction in which the Licensed Application was obtained. In particular, but without limitation, the Licensed Application may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Licensed Application, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.

    The Licensed Application and related documentation are "Commercial Items", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished rights reserved under the copyright laws of the United States.

11. Governing Language. You agree that the English language version of this EULA will govern Your rights and use of the Licensed Application. If there is any contradiction between what the English language version of this EULA says and what a translation says, then the English language version shall take precedence.
12. Governing Law. Jurisdiction. The laws of the State of Texas, excluding its conflicts of law rules, govern this EULA and your use of the Licensed Application. You consent to the jurisdiction of any court in the United States of America with respect to the agreement and that venue is proper therein. The United Nations Convention on the International Sale of Goods shall not apply to this agreement.
13. ENTIRE AGREEMENT. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE AND CONFIRM THAT YOU ARE BOUND BY ITS TERMS AND CONDITIONS. YOU FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND FLOWSERVE, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR ORAL OR WRITTEN COMMUNICATION OR AGREEMENT, RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.