Terms of Service

These Terms govern your access to and use of Flowcates.com, as well as all content and Nyxsoft products and services available at or through this websites (collectively, “Services”). Our Services are offered subject to your acceptance, without modification, of all of the terms and conditions contained herein and all other operating rules, policies (including, without limitation, Flowcates’s Privacy Policy), and procedures that may be published from time to time by Nyxsoft (collectively, the “Agreement”). You agree that we may automatically upgrade our Services, and the Agreement will apply to any upgrades. Please read the Agreement carefully before accessing or using our Services. By accessing or using any part of our Services, you agree to become bound by the Agreement. If you do not agree to all the terms of the Agreement, then you may not access or use our Services.

1. Who’s Who

   Throughout these Terms, “you” applies to both individuals and entities that access or use our Services. If you are an individual using our Services on behalf of an entity, you represent and warrant that you have the authority to bind that entity to the Agreement and that by using our Service(s), you are accepting the Agreement on behalf of that entity.

2. Your Account

   Where use of our Services requires an account, you agree to provide us with complete and accurate information when you register for an account and keep the information current. This is important because sometimes we may need to send you notable updates (for example, about changes to our Terms of Service or Privacy Policy), or we may want to let you know about and make informed choices in response to legal inquiries or complaints.

   You will be solely responsible and liable for any activity that occurs under your account. You are responsible for keeping your account information up-to-date and for keeping your password secure.

   You are responsible for maintaining the security of your account, and you are fully responsible for all activities that occur under your account and any other actions taken in connection with our Services. You shall not share or misuse your access credentials. You must immediately notify us of any unauthorized uses of your account, or of any other breach of security. We will not be liable for any acts or omissions by you, including any damages of any kind incurred as a result of such acts or omissions.

   When you create a Flowcates.com account, we consider that to be an inquiry about our products and services, which means that we may contact you to share more details about what we have to offer. Don't worry -- if you aren't interested in learning more, you can opt out of the marketing communication, whether it's an email, phone call, or text message.

3. Minimum Age Requirements

   Our Services are not directed to children. Access to and use of our Services is only for those over the age of 13 (or 16 in the European Union). If you are younger than this, you may not register for or use our Services. Any person who registers as a user or provides their personal information to our Services represents that they are 13 years of age or older (or 16 years or older in the European Union).

4. Responsibility of Visitors and Users

   We have not reviewed, and cannot review, all of the content (such as, but not limited to, text, photo, video, audio, code, computer software, items for sale, or other materials) posted to our Services by users or anyone else (“Content”) and are not responsible for any use or effects of such Content. So, for example:

   • We do not endorse any Content or represent that Content is accurate, useful, or non-harmful. Content could be offensive, indecent, or objectionable; include technical inaccuracies, typographical mistakes, or other errors; or violate or infringe the privacy, publicity rights, intellectual property rights (see our Copyright Infringement and DMCA Policy section to submit copyright complaints), or other proprietary rights of third parties.
   • If you post Content, or otherwise make (or allow any third party to make) Content available on our Services, you are entirely responsible for the Content, and any harm resulting from, that Content or your conduct.
   • We disclaim any responsibility for any harm resulting from anyone’s use, purchase, or downloading of Content. If you access or use any Content, you are responsible for taking precautions as necessary to protect yourself and your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content.

5. External Content

   We have not reviewed, and cannot review, all of the material, including computer software, made available through the websites and web pages that link to, or are linked from, Flowcates.com or our other Services. For example:

   • We do not have any control over those websites and are not responsible for their contents or their use.
   • The existence of a link to or from one of our Services does not represent or imply that we endorse such website.
   • You are responsible for taking precautions as necessary to protect yourself and your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content.
   • We disclaim any responsibility for any harm resulting from non-Nyxsoft websites.

6. Fees, Payment, and Renewal

   Fees for Paid Services. Most of our Services are offered for a fee (collectively, “Paid Services”). By using a Paid Service, you agree to pay the specified fees (for example, Flowcates.com plans, and fees associated with specific features). Depending on the Paid Service, there may be one-time fees, recurring fees, or usage-based fees. For recurring fees, we’ll bill or charge you in regular automatically-renewing intervals (such as monthly, annually, or biennially), on a pre-pay basis until you cancel, which you can do at any time by contacting the relevant support team. For usage-based fees -- such as fees associated with the number of locates under management -- you pay us according to the rate as described in your plan or contract. Usage-based fees are ongoing.

   Taxes. To the extent permitted by law, or unless explicitly stated otherwise, all fees are exclusive of applicable federal, provincial, state, local or other governmental sales, goods and services, harmonized or other taxes, fees, or charges now in force or enacted in the future (“Taxes”). You are responsible for payment of all applicable Taxes relating to your use of our Services, your payments, or your purchases. If we are obligated to pay or collect Taxes on the Fees you’ve paid or will pay, you are responsible for such Taxes, and we may collect payment for such Taxes.

   Payment. If your payment fails or if Paid Services are otherwise not paid for or paid for on time, we may immediately cancel or revoke your access to the Paid Services. If you contact your bank or credit card company to decline or reverse the charge of fees for Paid Services, we may revoke your access to our Services in general.

   Automatic Renewal. To ensure uninterrupted service, recurring Paid Services are automatically renewed. This means that unless you cancel a Paid Service before the end of the applicable subscription period, it will automatically renew, and you authorize us to invoice you or use any payment mechanism we have on record for you to collect the then-applicable subscription fee (as well as any Taxes). By default, your Paid Services will be renewed for the same interval of time as your original subscription period. For example, if you purchase a Flowcates.com annual plan, you will be charged each year for the following 12-month period. We may charge your account up to one month before the end of the subscription period. It is your responsibility to make sure you are checking your email (including any spam or other filters) in order to receive any reminder email we send to you in advance of renewal. The date for the automatic renewal is determined automatically based on the date of the original purchase.

   Cancelling Automatic Renewal. You can manage and cancel your Paid Services at the respective Service’s site. For example, you can manage all of your Flowcates.com plans through your Flowcates.com dashboard.

   Fee Changes. We may change our fees at any time, or start charging fees for Services that were previously free. When applicable, we may give you advance notice of the fee changes. If you don’t agree with the fee changes, you must cancel your Paid Service.

   No-Show Policy. We may have a “no-show policy” for some Paid Services, which means that if you fail to show up or are late for a scheduled session, we may withhold the Service without a refund.

   Refunds. While you may cancel a Paid Service at any time, refunds are issued in our sole discretion, unless otherwise required by applicable law.

7. General Representation and Warranty

   You represent and warrant that your use of our Services:

   • Will be in strict accordance with these Terms;
   • Will comply with all applicable laws and regulations (including, without limitation, all applicable laws regarding online conduct and acceptable content, privacy, data protection, the transmission of technical data exported from Canada, the United States, or the country in which you reside, the use of financial services, notification and consumer protection, unfair competition, and false advertising);
   • Will not use the Services for any unlawful purposes, to publish illegal content, or in furtherance of illegal activities;
   • Will not infringe or misappropriate the intellectual property rights of any third party;
   • Will not overburden Nyxsoft’s systems, as determined by us in our sole discretion;
   • Will not disclose sensitive personal information of others;
   • Will not be used to send spam or bulk unsolicited messages;
   • Will not interfere with, disrupt, or attack any service or network; and
   • Will not be used to create, distribute, or enable material that is - or that facilitates or operates in conjunction with - malware, spyware, adware, or other malicious programs or code.

8. Specific Service Terms

   Flowcates.com provides excavators with a simple and powerful tool for managing locates information. A Flowcates.com account allows you to sign into our Services. We may, at our discretion, offer free trials or a free tier of service that allow you to access some basic features or track a limited number of locates at no cost. Paid plans provide access to advanced features and/or additional usage tiers.

9. Copyright Infringement and DMCA Policy

   As we ask others to respect our intellectual property rights, we respect the intellectual property rights of others. If you believe that material located on or associated with a Nyxsoft product or service violates your copyright, please notify us. We will respond to all such notices, including as required or appropriate by removing the infringing material or disabling all links to the infringing material. We will terminate a visitor’s access to and use of the website if, under appropriate circumstances, the visitor is determined to be a repeat infringer of the copyrights or other intellectual property rights of Nyxsoft or others. In the case of such termination, we will have no obligation to provide a refund of any amounts previously paid to us.

10. Intellectual Property

    The Agreement does not transfer from Nyxsoft to you any Nyxsoft or third party intellectual property, and all right, title, and interest in and to such property will remain (as between the parties) solely with Nyxsoft. Nyxsoft, Flowcates, and all other trademarks, service marks, graphics, and logos used in connection with Flowcates.com or our Services, are trademarks or registered trademarks of Nyxsoft or Nyxsoft’s licensors. Other trademarks, service marks, graphics, and logos used in connection with our Services may be the trademarks of other third parties. Your use of our Services grants you no right or license to reproduce or otherwise use any Nyxsoft or third party trademarks.

11. Changes

    We are constantly updating our Services and that means sometimes we have to change the legal terms under which our Services are offered. These Terms may only be modified by a written amendment signed by an authorized executive of Nyxsoft, or by the posting by Nyxsoft of a revised version. If we make changes that are material, we will let you know by posting on one of our blogs, or by sending you an email or other communication before the changes take effect. The notice will designate a reasonable period of time after which the new terms will take effect. If you disagree with our changes, then you should stop using our Services within the designated notice period, or once the changes become effective. Your continued use of our Services will be subject to the new terms.

12. Termination

    We may terminate your access to all or any part of our Services at any time, with or without cause, with or without notice, effective immediately. We have the right (though not the obligation) to, in our sole discretion, terminate or deny access to and use of any of our Services to any individual or entity for any reason. We will have no obligation to provide a refund of any amounts previously paid.

    If you wish to terminate the Agreement or your Flowcates.com account, you may simply discontinue using our Services, or, if you are using a paid service, you may cancel at any time, subject to the Fees, Payment, and Renewal section in these Terms.

    All provisions of the Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity, and limitations of liability.

13. Disclaimer of Warranties

    Our Services are provided “as is.” Nyxsoft and its suppliers and licensors hereby disclaim all warranties of any kind, express or implied, including, without limitation, the warranties of merchantability, fitness for a particular purpose and non-infringement. Neither Nyxsoft, nor its suppliers and licensors, makes any warranty that our Services will be error free or that access thereto will be continuous or uninterrupted. You understand that you download from, or otherwise obtain content or services through, our Services at your own discretion and risk.

14. Jurisdiction and Applicable Law.

    Except to the extent any applicable law provides otherwise, the Agreement and any access to or use of our Services will be governed by the laws of the province of Ontario, Canada, excluding its conflict of law provisions. The proper venue for any disputes arising out of or relating to the Agreement and any access to or use of our Services will be the provincial and federal courts located in Ontario, Canada.

15. Limitation of Liability

    In no event will Nyxsoft, or its suppliers, partners, or licensors, be liable with respect to any subject matter of the Agreement under any contract, negligence, strict liability or other legal or equitable theory for: (i) any special, incidental or consequential damages; (ii) the cost of procurement for substitute products or services; (iii) for interruption of use or loss or corruption of data; or (iv) for any amounts that exceed $50 or the fees paid by you to Nyxsoft under the Agreement during the twelve (12) month period prior to the cause of action, whichever is greater. Nyxsoft shall have no liability for any failure or delay due to matters beyond their reasonable control. The foregoing shall not apply to the extent prohibited by applicable law.

16. Indemnification

    You agree to indemnify and hold harmless Nyxsoft, its contractors, and its licensors, and their respective directors, officers, employees, and agents from and against any and all losses, liabilities, demands, damages, costs, claims, and expenses, including attorneys’ fees, arising out of or related to your use of our Services, including but not limited to your violation of the Agreement or any agreement with a provider of third-party services used in connection with the Services, Content that you post, and any ecommerce activities conducted through your or another user’s website.

17. Translation

    These Terms were originally written in English. We may translate these terms into other languages. In the event of a conflict between a translated version of these Terms and the English version, the English version will control.

18. Miscellaneous

    The Agreement constitutes the entire agreement between Nyxsoft and you concerning the subject matter hereof. If any part of the Agreement is held invalid or unenforceable, that part will be construed to reflect the parties’ original intent, and the remaining portions will remain in full force and effect. A waiver by either party of any term or condition of the Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. You may assign your rights under the Agreement to any party that consents to, and agrees to be bound by, its terms and conditions; Nyxsoft may assign its rights under the Agreement without condition. The Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns.