Terms of Use, End User License Agreement, Disclaimer of Warranty, Indemnity Agreement and Release of Liability

 

Please Read This Document Carefully.  Acceptance of these Terms creates a binding contract between you and FormForce, Inc. (“FormForce”)

 

These Terms of Use, End User License Agreement, Disclaimer of Warranty, Indemnity Agreement, and Release of Liability (collectively, the “Agreement”) cover all of your use of the FormForce application and FormForce services.  By downloading and using the FormForce Application both you and FormForce agree to be bound by the terms of this Agreement.  If you do not agree to be bound by the terms of this Agreement, you should not use the FormForce Application or any FormForce services. 

 

This Terms of Use, End User License Agreement, Disclaimer, and Release of Liability (“the Agreement”) is a legal agreement between you and FormForce for use of any FormForce applications or services.  Such applications include, but are not limited to FormForce applications, services, solutions, compilations, reports, summaries, other documents, computer software, and associated media and printed materials generated from use of the FormForce Application (collectively referred to as, the “Software”).

 

 

1. Restricted Use of This Product and Disclaimer.

 

The Software is designed exclusively for customers of FormForce who have properly purchased the rights to use the FormForce application and services and been specifically authorized in writing by FormForce to use Software. THE MATERIALS, INFORMATION, AND DOCUMENTS CONTAINED IN THE SOFTWARE ARE SOLELY APPLICABLE TO THE AUTHORIZED USERS HOLDING AN APPROVED PASSWORD. 

 

Use of the Software without a FormForce supplied password is a violation of this Agreement and other state and federal civil and criminal laws.  FormForce tracks authorized and unauthorized use of the Software.  Unauthorized users will be prosecuted to the fullest extent of the law.  

 

 

2. Software Product License.

 

The Software is protected by copyright laws, as well as other intellectual property laws. The Software is licensed, not sold.  You may view and use the Software on the terms and conditions specified herein. You may not store, copy, replicate, or otherwise save any portion of the Software. You may not reverse engineer, de-compile, disassemble, modify, translate, make any attempt to discover the source code of the Software, or create derivative works from the Software. The Software is licensed as a single product. Its component parts may not be separated for use on more than one computing device. You may not rent, sub-license, or lease the Software. You may not transfer the Software or any rights you may have as a user under this Agreement to another person or entity.

 

 

3. Intellectual Property Rights.

 

The following provisions shall apply with respect to copyrightable works, proprietary, development, technical, assessment methodologies, artwork, presentation materials, manuals, computer programming techniques and all record bearing media containing or disclosing such information and techniques, ideas, discoveries, inventions, applications for patents, and patents (collectively, “Intellectual Property”).

 

FormForce personally holds an interest in and solely owns the Intellectual Property that is described herein. Intellectual Property will include, but not be limited to those applications, products and services, including but not limited to the Software developed by FormForce and/or its affiliates or subcontractors, before, during, and after you have agreed to the terms of this Agreement.  Any changes, modifications, or improvements to Intellectual Property items listed herein, further inventions or improvements, and any new items of Intellectual Property discovered or developed by FormForce (or its employees or agents,) during and after the term of this Agreement shall be the sole and exclusive property of FormForce.  Under no circumstances will you acquire any rights or interest in any way in such Intellectual Property by virtue of the development, experimentation, modification, or adaptation of any portion of the Software (collectively “Changes”) whether arising out of your use of the Software or whether such Changes are invented, discovered, proposed, or recommended by you or any of your employees, contractors, or agents.  

 

You hereby irrevocably assign to us all right, title, and interest in and to any such Changes and agree to provide FormForce any assistance we may require to document, perfect, and maintain our rights in this regard.

 

FormForce grants you a limited, non-transferable, non-exclusive, license to use FormForce’s intellectual property embodied in the Software needed to exploit the rights granted under this Agreement. Nothing in this Agreement shall constitute a waiver of any patents, trademarks, service marks, ownership interests, or copyrights that FormForce has in the Software.

 

You agree that you will not distribute the Intellectual Property or software of FormForce contained in the Software to any person or entity other than as contemplated in this Agreement. You agree to undertake your best efforts to prevent transmission of usernames or passwords provided by FormForce to any person or entity except as provided in this Agreement.

 

 

4. Title and Protection.

 

All rights, title, and interest in and to the Software are and shall remain at all times the property of FormForce and/or FormForce’s suppliers. You agree to take all reasonable steps to protect the Intellectual Property rights of FormForce, including, but not limited to distributing unauthorized passwords, storing any portion of the Software, streaming content or media, or otherwise taking any actions to dilute the Intellectual Property rights of FormForce.

 

 

5. Copyright.

 

All titles and copyrights in and to the Software, the accompanying printed materials, and any copies of the Software, are owned by FormForce or its suppliers. The Software is protected by U.S. and international copyright laws. Therefore, you must treat the Software like any other copyrighted material.

 

U.S. GOVERNMENT RESTRICTED RIGHTS.

 

The Software and documentation are provided with restricted rights. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software Restricted Rights at 48 CFR 52.227-19, as applicable. The Manufacturer is FormForce 8503 Crippen Street, Bakersfield, CA  93311

 

 

6. Consent to Use of Data.

 

You will be the owner of all data or information created by you and stored on FormForce’s servers (collectively, “Client Data”).

 

You agree that FormForce may collect and use technical data and related information, including but not limited to technical information about the device(s) you use to access FormForce and application software, and peripherals.  This information is gathered periodically to facilitate the provision of software updates, product support and other services to you (if any) related to the Software.

 

You hereby grant FormForce a non-exclusive, fully paid, world-wide and irrevocable license permitting FormForce to copy, anonymize, aggregate, process and display Client Data to derive anonymous statistical and usage data, and data about the functionality of the Software, provided such data cannot be used to identify you or individual users (“Anonymous Data”), for the purposes of combining or incorporating such Anonymous Data with or into other similar data and information available, derived or obtained from other clients, licensees, users, or otherwise (when so combined or incorporated, referred to as "Aggregate Data"), so as to permit FormForce to provide services including the copying, publication, distribution, display, licensing or sale of Aggregate Data and related or similar other statistics or data to third parties.  FormForce will be the owner of all right, title and interest in and to Aggregate Data.

 

 

7. No Warranties and Indemnification.

 

YOU UNDERSTAND AND AGREE THAT THE SOFTWARE AND FORMFORCE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND FORMFORCE, ITS AFFILIATES, SUPPLIERS, AND RESELLERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. FORMFORCE, ITS AFFILIATES, SUPPLIERS, AND RESELLERS MAKE NO WARRANTY OR REPRESENTATION REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SOFTWARE OR ANY FORMFORCE SERVICES, REGARDING: (i)THE ACCURACY,  RELIABILITY, ACCESSIBILITY, OR INTEGRITY, OF ANY INFORMATION OBTAINED THROUGH OR STORED BY, THE SOFTWARE; (ii) (ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH YOUR USE OF THE SOFTWARE OR FORMFORCE SERVICES; (iii) ANY TRANSACTIONS ENTERED INTO THROUGH THE SOFTWARE OR THAT THE SOFTWARE WILL MEET ANY USER'S REQUIREMENTS  OR BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE.  USE OF THE SOFTWARE AND FORMFORCE SERVICES IS AT YOUR SOLE RISK. ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SOFTWARE IS AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOU RESULTING FROM THE USE OF THE SOFTWARE. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE SOFTWARE REMAINS WITH YOU.

 

You agree to indemnify, defend and hold harmless FormForce, its affiliates, shareholders, officers, directors, employees, members, managers, insurers, consultants, agents, and suppliers from any and all third party claims, liability, damages and/or costs (including, but not limited to, reasonable attorney’s fees) arising from your use of the Software, whether such claim arises from the sole, active, or passive negligence of FormForce, concurrent or otherwise, your violation of this Agreement, upon theories of express or implied warranty, strict products liability, disclosure of confidential information, other fault of FormForce, its agents, and/or employees or the infringement or violation by you or any other user of your account, of any intellectual property or other right of any person or entity.

 

 

8. Limitation of Liabilities.

 

TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL FORMFORCE BE LIABLE FOR PERSONAL INJURY, OR DEATH, OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES ARISING FROM LOSS OF USE, LOSS OF PROFITS, LOSS 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 SOFTWARE, ANY APPLICATIONS, OR FORMFORCE SERVICES, HOWEVER CAUSED, WHETHER USING THE SOFTWARE ON A DEVICE OWNED BY YOU, FORMFORCE, OR OTHERWISE, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF FORMFORCE 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. 

 

 

9. Charges.

 

You agree that FormForce may charge to your credit card or other payment mechanism selected by you and approved by FormForce for all amounts due and owed, including service fees, set up fees, subscription fees, overage fees, consulting fees or any other fee or charge associated with your use of the Software or other FormForce services. FormForce may change prices at any time without prior notice. You agree that in the event FormForce is unable to collect the fees owed to FormForce, FormForce may take any other steps it deems necessary to collect such fees and that you will be responsible for all costs and expenses incurred by FormForce in connection with such collection activity, including collection fees, court costs and attorneys’ fees. You further agree that FormForce may collect interest at the lesser of 1.5% per month or the highest amount permitted by law on any amounts not paid when due.

 

In the event that FormForce detects unauthorized use of the Software, FormForce, in addition to any other rights and remedies it has, all of which are expressly reserved, may elect to charge any person or entity associated with such unauthorized use the entire amount such individual or entity should have paid had such use of the Software been authorized.

 

 

10. Termination By Customer.

 

You may terminate this Agreement by providing written notice to FormForce via email to admin@formforceinc.com.  Such termination will be effective on the last day of the billing cycle, subject to (30) days prior written notice.

 

 

11. Export Restrictions.

 

You acknowledge that the Software, or portion thereof may be subject to the export control laws of the United States. You will not export, re-export, divert, transfer or disclose any portion of the Software or any related technical information or materials, directly or indirectly, in violation of any applicable export law or regulation

 

 

12. Injunctive Relief.

 

You acknowledge that any use of the Software contrary to this Agreement, or any transfer, sublicensing, copying or disclosure of technical information or materials related to the Software, may cause irreparable injury to FormForce, its affiliates, suppliers and any other party authorized by FormForce to resell, distribute, or promote the Software, and under such circumstances FormForce will be entitled to equitable relief, without posting bond or other security, including, but not limited to, preliminary and permanent injunctive relief.

 

 

13. Choice of Law and Forum.

 

This Agreement shall be governed by and construed under the laws of the State of California, U.S.A., as to the exclusive jurisdiction and venue of the courts located in and serving Kern County, California.

 

 

14. Waiver and Severability.

 

Failure by either party to exercise any of its rights under, or to enforce any provision of, this Agreement will not be deemed a waiver or forfeiture of such rights or ability to enforce such provision. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision will be amended to achieve as nearly as possible the same economic effect of the original provision and the remainder of this Agreement will remain in full force and effect.

 

 

15. Entire Agreement.

 

This Agreement embodies the entire understanding and agreement between you and FormForce respecting the subject matter of this Agreement and supersedes any and all prior understandings and agreements between the parties respecting such subject matter.  This Agreement has been prepared in the English Language and such version shall be controlling in all respects and any non-English version of this Agreement is solely for accommodation purposes. All notices or other correspondence to FormForce under this Agreement must be sent to the following e-mail address: admin@formforceinc.com, or other address as provided by FormForce for such purpose.  Any and all rights and remedies of FormForce upon your breach or other default under this Agreement will be deemed cumulative and not exclusive of any other right or remedy conferred by this Agreement or by law or equity on FormForce, and the exercise of any one remedy will not preclude the exercise of any other. The captions and headings appearing in this Agreement are for reference only and will not be considered in construing this Agreement.

 

 

16. Responsibility for Content of Your Communications.

 

You agree that you are solely responsible for the content of all visual, written or audible communications sent by you and you will not use the Software to send unsolicited commercial e-mail outside your company or organization in violation of applicable law. You further agree not to use the Software to communicate any message or material that is harassing, libelous, threatening, obscene, indecent, or would violate the intellectual property rights of any party or is otherwise unlawful, that would give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any applicable law or regulation or that violates your agreed upon responsibilities to other entities. You also agree that FormForce may delete any such communications in its sole and absolute discretion without notice.

 

 

17. Termination By FormForce.

 

Without prejudice to any other rights, FormForce may terminate this Agreement if you fail to comply with any of the terms or conditions of this Agreement. 

 

 

18. Passwords.

 

You have been, or will be, provided with a username and password. You are not allowed, under any circumstances to share your username and password with any other person or entity. Doing so terminates any rights you have under this Agreement. It is the policy of FormForce to require that each customer identify one, and only one, individual to whom an administrative password will be issued (the Account Administrator”). The Account Administrator is solely and exclusively responsible for guarding their password. Any additional passwords authorized for multiple users of the Software will be issued to the Account Administrator, who will have sole and exclusive responsibility to provide any additional passwords to other authorized users. FormForce is not responsible for any unauthorized acquisition and use of passwords or unauthorized access to the Software resulting from such acquisition and use after the Account Administrator is provided the administrative password by FormForce.

 

 

19. Telephone Lines and Internet Connections.

 

This Software transmits signals over telephone lines, cables or other Internet communication media. FormForce cannot, and does not, maintain or repair telephone or Internet connection lines and equipment or computer or networking equipment. Under no circumstances shall FormForce or its agents be liable for any network interruptions, including without limitation, any downtime regarding computer servers or interruption of Internet service providers. You assume responsibility for all phone line or Internet access charges or excessive abuse of the Internet-based portion of the Software.

 

 

20. Assignment.

 

FormForce shall have the right to assign this Agreement in its entirety and the right to change or reassign various duties regarding the operation and performance of any duties imposed by this Agreement.

 

 

21. Force Majeure.

 

Inability or delay in providing access to the Software resulting from cause beyond the control of FormForce, including but not limited to interruption of communication lines, labor disputes, acts of terrorism, government action or order, laws, or acts of God or war shall not constitute a breach of contract.

 

 

22. Compliance with Law.

 

Each of the parties to this Agreement shall exert every reasonable effort in the performance of their respective obligations hereunder to comply with all applicable municipal, county, state and federal laws, ordinances and regulations.

 

 

23. Reservation of Rights.

 

Copyright © 2015 FormForce, Inc. All rights reserved. No part of the material protected by this copyright may be reproduced or utilized in any form or by any means, electric or mechanical, including photocopying, recording, and broadcasting, or by any information storage and retrieval system, without permission in writing from FormForce. FormForce, formforceinc.com, FormForce logos, and FormForce Seal(s), are registered trademarks of FormForce, registered in the State of California, Federal registry and/or other jurisdictions. All other trademarks referenced are the trademark, service mark, or registered trademark of the respective holders. The software and technology used to implement the Software contain trade secrets that FormForce considers to be confidential and proprietary information, and your right to use this material is subject to the restrictions in this Agreement under which you obtained it. Companies, names, products and data used in the examples illustrating FormForce services, and in the training materials and demonstrations of FormForce are fictitious. Any resemblance to existing companies, persons, or products is coincidental and unintentional.