BY SIGNING IN TO THE ONLINE SERVICE AND/OR INSTALLING THE SOFTWARE ON A MOBILE DEVICE, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THE “AGREEMENT”) GOVERNING YOUR USE OF FORMOTUS, INC.’S ONLINE SERVICE, INCLUDING OFFLINE COMPONENTS (COLLECTIVELY, THE “SERVICE”). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MAY NOT USE THE SERVICE.
1. Grant of License.
Subject to all the terms and restrictions of this Agreement, Formotus, Inc. (“Formotus”) grants you a non-sublicensable, non-exclusive, non-transferable right under Formotus’s intellectual property rights (the “License”) to use the Service on the number of wireless devices (“Devices”) for which you purchase a license, only for your own internal business purposes and in accordance with the applicable user documentation provided by Formotus as a part of the Service. You have no right to receive, use or examine any source code or design documentation relating to the Service.
2. Ownership of the Service.
As between the parties, Formotus retains title to and ownership of and all proprietary rights with respect to the Service and all portions thereof (including all derivatives or improvements thereof), whether or not incorporated into or used with other software or hardware, except to the extent of the license expressly granted herein. As between the parties, Formotus owns any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. The License does not constitute a sale of the Service or any portion or copy of it. The Formotus name, logo, and the product names associated with the Service are trademarks of Formotus or third parties, and no right or license is granted to use them.
The rights granted to you in this Agreement are subject to all of the following agreements and restrictions: (i) the maximum number of Devices that you use or authorize to use with the Service may not exceed the number of Device licenses you have purchased; (ii) you shall not modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Service, or in any way attempt to reconstruct or discover any source code or underlying ideas or algorithms of any part of the Service; (iii) you shall not access or use the Service in order to build a similar or competitive product or service; (iv) except as expressly stated herein, no part of the Service may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; (v) you shall not create internet “links” to the Service or “frame” or “mirror” any Service content on any other server or wireless or internet-capable device; (vi) you shall not create or disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the Service without Formotus’s prior written approval; and (vii) you agree not to attempt to gain unauthorized access to the Service and to make every reasonable effort to prevent unauthorized third parties from accessing the Service.
You further agree not to use or permit use of the Service, including by uploading, emailing, posting, publishing or otherwise transmitting any material, in any manner that may: (i) menace or harass any person or cause damage or injury to any person or property; (ii) involve the publication of any material that is obscene, defamatory, threatening, libelous, or otherwise unlawful or tortious; (iii) violate privacy rights or promote hatred or harm; (iv) introduce into the Service material containing software viruses, worms, trojan horses or other harmful computer code, files, scripts, agents or programs; (v) constitute unsolicited bulk email, “junk mail,” “spam” or chain letters; (vi) interfere with or disrupt the integrity or performance of the Service or the data therein; (vii) constitute an infringement of intellectual property or other proprietary rights; or (viii) otherwise violate applicable laws, ordinances or regulations.
Without limiting its available remedies, Formotus reserves the right to terminate the Service for a violation of your obligations under this section and/or remove or disable access to any material that violates the restrictions in this section. Formotus will have no liability to you in the event that Formotus takes such action. You agree to defend and indemnify Formotus against any claim arising out of a violation of your obligations under this section.
4. Your Responsibilities.
You are responsible for all activity occurring under your user accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including, without limitation, those related to data privacy, international communications and the transmission of technical or personal data. You agree to notify Formotus immediately of any unauthorized use of the Service of which you become aware or any other known or suspected breach of security.
5. Billing and Payment.
You agree to pay in advance for all products and services ordered under this Agreement except as may be otherwise agreed between you and Formotus or an authorized distributor of the Service. The Service will automatically renew for successive terms equal in duration to the initial term and Formotus will bill your credit card, charge your PayPal or other payment service account, or issue an invoice to you (i) each month for monthly licenses; (ii) each quarter for quarterly licenses, (iii) each year on the subsequent anniversary for annual licenses, or (iv) as otherwise mutually agreed upon between you and Formotus or an authorized distributor of the Service. Subscription renewals will be charged at the rates in effect as of the renewal date. You may purchase licenses for additional Devices during a subscription term at then-current rates (billed in whole-month increments, including a single-month charge for the month in which they are ordered), which licenses will expire at the end of the then-current subscription term (or in each case as may be otherwise agreed between you and Formotus or an authorized distributor of the Service).
All payment obligations under this Agreement are non-cancelable and all fees are nonrefundable. All fees are exclusive of all taxes, levies, duties and the like, and you will be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on Formotus’s income. You will provide Formotus (or its authorized distributor, as applicable) with complete and accurate billing and contact information. If you provide credit card, PayPal, or other payment service account information to Formotus, you authorize Formotus to bill such credit card or other account (i) at the time that you order any products or services, for all such products and services ordered, and (ii) at the time of any renewal, for the amount charged for any renewal subscription term(s). Formotus reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least 30 days prior notice to you in accordance with Section 16 of this Agreement (except that renewal subscriptions are subject to then-current rates and Formotus is not required to provide notice of rate changes in connection with renewals). All pricing terms are confidential, and you agree not to disclose them to any third party.
Without limiting any other rights Formotus may have, Formotus reserves the right to suspend or terminate this Agreement and your access to the Service if your account with Formotus or an authorized distributor of the Service becomes delinquent. Delinquent accounts are subject to interest of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection, unless otherwise agreed with Formotus or an authorized distributor of the Service. You will continue to be charged for licenses during any period of suspension. If you or Formotus (or an authorized distributor of the Service, if applicable) initiates termination of this Agreement, you will be obligated to pay the balance due on your account, and Formotus or an authorized distributor of the Service, as applicable, may charge such unpaid fees to your credit card or other payment account or otherwise bill you for such unpaid fees. Formotus reserves the right to impose a reconnection fee in the event your access is suspended and you thereafter request access to the Service.
6. Trial Services.
If Formotus makes a trial subscription of the Service available, you may use the trial subscription for evaluative, non-production purposes only. You may not use a trial subscription to provide or attend third party training on the content or functionality of the Service. The term of a trial subscription will expire and this Agreement will terminate upon lapse of the trial period indicated in the ordering process, at which point your usage rights will terminate. Notwithstanding the foregoing, Formotus may terminate a trial subscription at any time in its sole discretion. The Services provided in any trial subscription are provided “as is” and Formotus does not provide technical support or offer any warranties for these services.
7. Term and Termination.
This Agreement commences on the earlier of (i) the date this Agreement is accepted by selecting the “I Accept” option presented in the ordering process or (ii) the date you begin using the Service. Either party may terminate this Agreement or reduce the number of licenses, effective only upon the expiration of the then-current license term, by notifying the other party in writing at least five business days prior to the expiration date for the current license term.
Formotus, in its sole discretion, may terminate your account and/or access to or use of the Service if you breach or otherwise fail to comply with this Agreement, including, without limitation, any breach of your payment obligations or any unauthorized use of the Service.
Upon any termination or expiration of this Agreement, your right to access and use the Service will terminate. Sections 2, 3, 7, 11, 12, 13, 14, 16, and 17 will survive any termination or expiration of this Agreement.
8. Your Data.
Formotus does not own any data, information or material that you submit to the Service in the course of using the Service (“Customer Data”). You have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and Formotus is not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. Some Customer Data, such as data input to a form, might never be transmitted to or stored by Formotus. Some Customer Data including blank form templates, which might be created using a product such as Microsoft Office InfoPath, may be transmitted to Formotus for the purpose of converting them into a format usable by the Customer’s devices. You agree that from time to time Formotus may need to reconvert or otherwise manipulate Customer form templates for the purpose of compatibility with upgraded services. You acknowledge and agree that Customer Data may be transferred or stored outside of the country or other jurisdiction where you and your users of the Service are located. In addition, you acknowledge and agree that it is your obligation to inform third parties of the use, processing or transfer of Customer Data and to ensure that such third parties have given their consent to such use, processing, and transfer as required by all applicable data protection legislation. If this Agreement is terminated (other than by reason of your breach), Formotus will make available to you a file of the Customer Data then in its possession within 30 days of termination if you so request at the time of termination. Formotus reserves the right to withhold, remove and/or discard Customer Data without notice for any breach of this Agreement by you, including, without limitation, your non-payment. Upon termination for cause, your right to access or use Customer Data immediately ceases. Formotus will have no obligation to maintain or forward any Customer Data after any termination of this Agreement except as otherwise specifically provided above.
9. Third-Party Sites.
If you enter into correspondence with, purchase goods or services from, or participate in promotions of companies other than Formotus through the Service, any such activity and any terms, conditions, warranties or representations associated with such activity are governed solely by the terms between you and the applicable third party. Formotus has no liability or obligation for, and does not endorse or accept any responsibility for, the contents or use of third-party websites or any transactions entered into with third parties. The inclusion of any link is as a convenience only and does not imply endorsement by Formotus of the linked website, notwithstanding any inclusion on such site of Formotus trademarks.
10. Representations and Warranties.
Each party represents and warrants that it has the power and authority to enter into this Agreement. Formotus represents and warrants that (i) it will provide the Service in a manner consistent with general industry standards reasonably applicable to the Service and (ii) the Service will perform substantially in accordance with the online Service documentation provided by Formotus, under normal use and circumstances. You represent and warrant that you have not provided any false information to gain access to the Service and that your billing information is correct. You must notify Formotus of any warranty deficiencies within 30 days from performance of the relevant Services in order to receive warranty remedies. For any breach of the express warranty for Services as set forth above, your exclusive remedy is the re-performance of the deficient Services, and if Formotus is unable to re-perform the deficient Services as warranted, you will be entitled to recover the portion of the fees paid to Formotus for such deficient Services, and such refund will be Formotus’s entire liability.
11. Disclaimer of Warranties.
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 10 ABOVE, FORMOTUS AND ITS LICENSORS HEREBY DISCLAIM ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES WITH REGARD TO THE SERVICE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED, THE SERVICE AND ALL CONTENT THEREIN IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. FORMOTUS AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT CONTAINED THEREIN. FORMOTUS AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (I) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (II) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (III) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (V) ERRORS OR DEFECTS WILL BE CORRECTED, OR (VI) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE OR WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
FORMOTUS’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. FORMOTUS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
Some states and/or jurisdictions do not allow the exclusion of implied warranties, so some exclusions set forth above may not apply to you.
12. Limitation of Liability
IN NO EVENT SHALL FORMOTUS’S OR FORMOTUS’S LICENSORS’ AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OR FOR LOSS OF DATA, REVENUE OR PROFITS (EXCLUDING FEES UNDER THIS AGREEMENT), USE OR OTHER ECONOMIC ADVANTAGE ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Some states and/or jurisdictions do not allow the limitation of liability for incidental, consequential, or certain other types of damages, so some exclusions set forth above may not apply to you.
If a third party brings a claim against either you or Formotus (“Recipient” which may refer to you or Formotus depending upon which party received the Material (as defined below)), alleging that any information, design, specification, instruction, software, data, or material (“Material”) furnished by either you or Formotus (“Provider” which may refer to you or Formotus depending on which party provided the Material), and used by the Recipient infringes its intellectual property rights, the Provider will indemnify the Recipient against the claim if the Recipient: (i) notifies the Provider promptly in writing, in any event not later than 15 days after the Recipient receives notice of the claim (or sooner if required by applicable law); (ii) gives the Provider sole control of the defense and any settlement negotiations (provided that any settlement involving other than monetary matters for which Provider acknowledges responsibility must be first approved by Recipient, which approval will not be unreasonably withheld); and (iii) gives the Provider the information, authority, and assistance the Provider needs to defend against or settle the claim.
The Provider will not indemnify the Recipient if the Recipient alters the Material or uses it outside the scope of use identified in the Provider’s user documentation or if the Recipient uses a version of the Material that has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Material which was provided to the Recipient. The Provider will not indemnify the Recipient to the extent that an infringement claim is based upon any information, design, specification, instruction, software, data, or material not furnished by the Provider. Formotus will not indemnify you to the extent that an infringement claim is based upon the combination of any Material with any products or services not provided by Formotus. This section provides the parties’ exclusive remedy for any infringement claims or damages.
If the Provider believes or it is determined that any of the Material may have violated a third party’s intellectual property rights, the Provider may choose to either modify the Material to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, the Provider may end the license for, and require return of, the applicable Material and refund any fees the Recipient may have paid that are attributable to it. If you are the Provider and such return materially affects Formotus’s ability to meet its obligations hereunder, then Formotus may, at its option and upon 10 days’ prior written notice, terminate this Agreement.
14. Government Matters.
You agree to comply with all applicable export laws, restrictions, and regulations of any United States or foreign agency or authority. You will not export or re-export, or allow the export or re-export of the Service or any part of it or any product, technology or information you obtain or learn pursuant to this Agreement (or any direct product thereof) in violation of any such laws, restrictions or regulations. You will obtain and bear all expenses relating to any necessary licenses and/or exemptions with respect to applicable export laws, restrictions, and regulations.
As defined in FAR section 2.101, DFAR section 252.227-7014(a)(1) and DFAR section 252.227-7014(a)(5) or otherwise, all software and accompanying documentation provided in connection with this Agreement are “commercial items,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the U.S. Government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement.
15. Modifications to this Agreement.
Formotus reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on the Service. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute your consent to such changes.
Formotus may give notice by means of a general notice on the Service, email to your email address on record with Formotus, or by written communication sent by a nationally-recognized overnight delivery service or first-class postage prepaid mail to your address on record with Formotus. Such notice shall be deemed to have been given upon posting on the Service, 12 hours after sending by email, one day after sending by overnight delivery service, or two days after mailing. You may give notice to Formotus (such notice shall be deemed given when received by Formotus) at any time by letter sent by confirmed fax to Formotus at 206-260-7235 or by letter delivered by a nationally-recognized overnight delivery service or first-class postage prepaid mail to Formotus at 3633 136th Pl SE, Suite 202, Bellevue, WA 98006; in each case, addressed to the attention of: Chief Financial Officer.
This Agreement shall be deemed to have been made in, and shall be construed pursuant to the laws of the State of Washington and the United States without regard to conflicts of laws provisions thereof. Any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the courts located in King County, Washington. Although fully assignable and transferable by Formotus, this Agreement (including all rights and obligations) are not assignable or transferable by you without the prior written consent of Formotus; any attempt to do so shall be void. No failure to exercise, and no delay in exercising, on the part of either party, any privilege, any power or any rights hereunder will operate as a waiver thereof, nor will any single or partial exercise of any right or power hereunder preclude further exercise of any other right hereunder. If any provision of this Agreement is adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. The parties agree that a material breach of this Agreement adversely affecting Formotus’s proprietary rights in the Service would cause irreparable injury to Formotus for which monetary damages would not be an adequate remedy and that Formotus shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Each party recognizes and agrees that the warranty disclaimers and liability and remedy limitations in this Agreement are material bargained for bases of this Agreement and that they have been taken into account and reflected in determining the consideration to be given by each party under this Agreement and in the decision by each party to enter into this Agreement.