PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THIS SERVICE.
BY USING THE SERVICE, CLICKING AGREE OR OTHER FORM OF ASSENT, YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT. IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF OR FOR THE BENEFIT OF YOUR EMPLOYER OR A THIRD PARTY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY AUTHORITY TO AGREE TO THIS AGREEMENT ON THEIR BEHALF.
This agreement is between Form.io LLC, a Texas limited liability company (Form.io), and the Customer agreeing to these terms (Customer).
1. SOFTWARE SERVICE.
This agreement provides Customer access to and usage of an Internet-based software service, including, without limitation, its features, functions, and user interface, as specified on an order (Service).
2. USE OF SERVICE.
a. Grant. Subject to the other terms of this agreement, Form.io grants Customer and its Affiliates, under an order, for the duration specified in the order, a term-based (subscription), non-exclusive, non-transferable license up to the license capacity purchased to integrate the Service into Customer’s and its Affiliate’s proprietary applications (Customer Applications), for both Customer’s and its Affiliate’s internal and commercial use, including but not limited to marketing and selling Customer Applications directly and indirectly to Customer’s and its Affiliate’s clients. With respect to any components of the Service or Software (as defined below) that are distributed with Customer Applications, Customer agrees that it requires its distributors, clients, and end user customers to agree to terms that are at least as protective of the Service and Software as the terms of this agreement. Customer is responsible for the compliance with this agreement by its Affiliates. Affiliate means any company controlled by or under common control with Customer, directly or indirectly, with an ownership interest of at least 50%.
b. Customer Owned Data. All data uploaded by Customer to the Service remains the property of Customer, as between Form.io and Customer (Customer Data). Customer Data may not include information that relates to an identified or identifiable individual (Personal Data). Customer grants Form.io the right to use the Customer Data solely for purposes of performing under this agreement. During the term of this agreement, Customer may export its Customer Data as allowed by functionality within the Service.
c. Access and Usage. Customer may allow its contractors to access the Service in compliance with the terms of this agreement, which access must be for the sole benefit of Customer. Customer is responsible for the compliance with this agreement by its contractors.
d. Customer Responsibilities. Customer: (i) must keep its passwords secure and confidential; (ii) is solely responsible for Customer Data and all activity in its account in the Service; (iii) must use commercially reasonable efforts to prevent unauthorized access to its account, and notify Form.io promptly of any such unauthorized access; and (iv) may use the Service only in accordance with the Service’s online documentation and applicable law.
e. Form.io Support. Form.io must provide Customer support for the Service under the terms of Form.io’s Customer Support Policy (Support), which is located at form.io/support. Form.io has no responsibility to support or maintain any Customer Application.
f. 30-Day Trial Version. If Customer has registered for a trial use of the Service, Customer may access the Service for a 30-day time period (unless extended by Form.io in writing) per project. The Service is provided ‘AS IS’, with no warranty during this time period.
g. Free Version. Once the trial described above is complete, Customer may either purchase a subscription to the full version of the Service, or Customer will be downgrade to the lesser functionality free version. The free version of the Service is provided ‘AS IS’, with no warranty during the no-charge period.
3. SERVICE LEVEL AGREEMENT & WARRANTY.
a. Warranty. Form.io warrants to Customer: (i) that commercially reasonable efforts will be made to maintain the online availability of the Service for a minimum of availability in any given month as provided in the chart below (excluding maintenance outages, outages beyond Form.io’s reasonable control, and outages that result from any Customer technology issues); (ii) the functionality or features of the Service may change but will not materially decrease during any paid term; and (iii) that the Support may change but will not materially degrade during any paid term.
i. Availability Warranty and Credit.
| Less than 99.95% online availability = 3% of monthly fee for each full hour of an outage (beyond the warranty). |
| *Maximum amount of the credit is 100% of the fee for such month. |
b. LIMITED REMEDY. CUSTOMER’S EXCLUSIVE REMEDY AND FORM.IO’S SOLE OBLIGATION FOR ITS FAILURE TO MEET THE WARRANTY IN SECTION (A)(I) ABOVE WILL BE FOR FORM.IO TO PROVIDE A CREDIT FOR THE APPLICABLE MONTH, AS PROVIDED IN THE CHART ABOVE (IF THIS AGREEMENT IS NOT RENEWED, THEN A REFUND FOR THE MONTH), PROVIDED THAT CUSTOMER NOTIFIES FORM.IO OF SUCH BREACH WITHIN 30 DAYS OF THE END OF THAT MONTH.
c. DISCLAIMER. FORM.IO DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. WHILE FORM.IO TAKES REASONABLE PHYSICAL, TECHNICAL, AND ADMINISTRATIVE MEASURES TO SECURE THE SERVICE, FORM.IO DOES NOT GUARANTEE THAT THE SERVICE CANNOT BE COMPROMISED. CUSTOMER UNDERSTANDS THAT THE SERVICE MAY NOT BE ERROR FREE, AND USE MAY BE INTERRUPTED. FORM.IO HAS NO RESPONSIBILITY OR LIABILITY TO CUSTOMER, CUSTOMER’S CLIENTS, CUSTOMER’S DISTRIBUTORS, CUSTOMER’S END USER CUSTOMERS, AFFILIATES, OR ANY OTHER THIRD PARTY FOR ANY CUSTOMER APPLICATION.
4. PAYMENT.
Unless otherwise provided on an order, Customer will pay all fees due within 30 days of receipt of an invoice, plus applicable sales, use, withholding, VAT, and other similar taxes. This agreement contemplates one or more orders for the Service, which orders are governed by the terms of this agreement.
5. MUTUAL CONFIDENTIALITY.
a. Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (Discloser) to the other party (Recipient), whether orally, visually, or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). Form.io’s Confidential Information includes, without limitation, the Service, its user interface design and layout, and pricing information, and the Software and Documentation (defined below). Customer’s Confidential Information includes, without limitation, the Customer Data.
b. Protection of Confidential Information. The Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care), and it may not disclose or use any Confidential Information of the Discloser for any purpose outside the scope of this agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this agreement.
c. Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser; (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser; (iii) is received from a third party without breach of any obligation owed to Discloser; or (iv) was independently developed by the Recipient without use or access to the Confidential Information. The Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice to seek a protective order.
6. PROPERTY.
a. Reservation of Rights. The Service and the Software and Documentation are the proprietary property of Form.io and its licensors, and all right, title, and interest in and to the Service and the Software and Documentation, including all associated intellectual property rights, remain only with Form.io. Customer may not remove or modify any proprietary marking or restrictive legends in the Service or Software and Documentation. Form.io reserves all rights unless expressly granted in this agreement.
b. Restrictions. Customer may not: (i) sell, resell, rent, or lease the Service or use it in a service-provider capacity; (ii) use the Service to store or transmit unsolicited marketing emails, libelous, or otherwise objectionable, unlawful, or tortious material, or to store or transmit infringing material in violation of third-party rights; (iii) interfere with or disrupt the integrity or performance of the Service; (iv) attempt to gain unauthorized access to the Service or its related systems or networks; (v) reverse engineer the Service or the Software and Documentation; (vi) access the Service or use the Software and Documentation to build a competitive service or product, or copy any feature, function, or graphic for competitive purposes; or (vii) upload, transmit, transfer or input any Personal Data into or through the Service.
c. Software and Documentation. All software provided by Form.io as part of the Service, and the Service documentation, sample data, marketing materials, training materials, and other materials provided through the Service or by Form.io (Software and Documentation) are licensed to Customer as follows: Form.io grants Customer a non-exclusive, non-transferable license during the term of this agreement, to use and copy such Software in accordance with the Documentation, solely in connection with the Service.
d. Open Source Software Licenses.
i. Third party Open Source Components. The Software may contain embedded open source software components, which are provided as part of the Software and for which, (A) additional license terms may be included in the technical documentation (Open Source License Terms), and (B) Customer may have broader rights under the Open Source License Terms. Nothing in this agreement is intended to impose further restrictions on Customer’s use of such open source components as stand-alone components.
ii. Form.io Owned Open Source Components (Form.io OSS). With respect to the Form.io OSS: (A) the Form.io OSS is licensed as a part of the Software under this agreement; (B) by licensing the Software under this agreement, Customer has neither, (I) an obligation to disclose the Form.io OSS to its clients in source code form, nor (II) an obligation to disclose its Customer Applications to its clients in source code form.
iii. All open source components in the Software are listed here: https://form.io/open-source.
e. Statistical Information. Form.io may compile statistical information related to the performance of the Service and may make such information publicly available, provided that such information does not identify Customer Data, and there is no means to re-identify Customer Data. Form.io retains all intellectual property rights in such information.
7. TERM AND TERMINATION.
a. Term. This agreement continues until all orders have expired or are terminated for material breach under Section 7(b).
b. Mutual Termination for Material Breach. If either party is in material breach of this agreement, the other party may terminate this agreement at the end of a written 30-day notice/cure period, if the breach has not been cured.
c. Return of Customer Data.
i. Within 60 days after termination, upon request, Form.io will make the Service available for Customer to export Customer Data as provided in Section 2(a).
ii. After such 60-day period, Form.io has no obligation to maintain the Customer Data and may destroy it.
d. Return Form.io Property Upon Termination. Upon termination of this agreement for any reason, Customer must pay Form.io for any unpaid amounts and destroy or return all property of Form.io. Upon Form.io’s request, Customer will confirm in writing its compliance with this destruction or return requirement.
e. Suspension for Violations of Law. Form.io may temporarily suspend the Service and/or remove the applicable Customer Data if it in good faith believes that, as part of using the Service, Customer has violated a law. Form.io will attempt to contact Customer in advance.
f. Suspension for Non-Payment. Form.io may temporarily suspend the Service if Customer is more than 30 days late on any payment due pursuant to an order.
8. LIABILITY LIMIT.
a. EXCLUSION OF INDIRECT DAMAGES. FORM.IO IS NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, COSTS OF DELAY; LOSS OF OR UNAUTHORIZED ACCESS TO DATA OR INFORMATION; AND LOST PROFITS, REVENUE, OR ANTICIPATED COST SAVINGS), EVEN IF IT KNOWS OF THE POSSIBILITY OR FORESEEABILITY OF SUCH DAMAGE OR LOSS.
b. TOTAL LIMIT ON LIABILITY. EXCEPT FOR FORM.IO’S INDEMNITY OBLIGATIONS, FORM.IO’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT, OR OTHERWISE) DOES NOT EXCEED THE AMOUNT PAID BY CUSTOMER WITHIN THE 12-MONTH PERIOD PRIOR TO THE EVENT THAT GAVE RISE TO THE LIABILITY.
9. DEFENSE OF THIRD-PARTY CLAIMS.
a. Form.io Indemnity. Form.io will defend or settle any third-party claim against Customer to the extent that such claim alleges that Form.io technology used to provide the Service violates a copyright, patent, trademark, or other intellectual property right, if Customer promptly notifies Form.io of the claim in writing, cooperates with Form.io in the defense, and allows Form.io to solely control the defense or settlement of the claim. Costs. Form.io will pay infringement claim defense costs it incurs in defending Customer, Form.io-negotiated settlement amounts, and court-awarded damages. Process. If such a claim appears likely, then Form.io may modify the Service, procure the necessary rights, or replace it with the functional equivalent. If Form.io determines that none of these are reasonably available, then Form.io may terminate the Service and refund any prepaid and unused fees. Exclusions. Form.io has no obligation for any claim arising from: Form.io’s compliance with Customer’s specifications; a combination of the Service with other technology or aspects where the infringement would not occur but for the combination; use of Customer Data; or technology or aspects not provided by Form.io. THIS SECTION CONTAINS CUSTOMER’S EXCLUSIVE REMEDIES AND FORM.IO’S SOLE LIABILITY FOR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS.
b. Customer Indemnity. If a third party claims against Form.io that any part of the Customer Data is unlawful or infringes or violates that party’s patent, copyright, or other right, Customer will defend Form.io against that claim at Customer’s expense and pay all costs, damages, and attorneys’ fees that a court finally awards or that are included in a settlement approved by Customer, provided that Form.io promptly notifies Customer of the claim in writing, cooperates with Customer in the defense, and allows Customer to solely control the defense or settlement of the claim.
10. GOVERNING LAW AND FORUM.
This agreement is governed by the laws of the State of Texas (without regard to conflicts of law principles) for any dispute between the parties or relating in any way to the subject matter of this agreement. Any suit or legal proceeding must be exclusively brought in the federal or state courts for Dallas County, Texas, and Customer submits to this personal jurisdiction and venue. Nothing in this agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any litigation is entitled to recover its attorneys’ fees and costs from the other party.
11. OTHER TERMS.
a. Entire Agreement and Changes. This agreement and the order constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Customer is not relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation, promise, or inducement not included in this agreement is binding. No modification or waiver of any term of this agreement is effective unless both parties sign it, however this agreement may be modified through an online process provided by Form.io.
b. No Assignment. Neither party may assign or transfer this agreement to a third party, nor delegate any duty, except that the agreement and all orders may be assigned, without the consent of the other party, as part of a merger or sale of all or substantially all the businesses or assets of a party.
c. Independent Contractors. The parties are independent contractors with respect to each other.
d. Enforceability and Force Majeure. If any term of this agreement is invalid or unenforceable, the other terms remain in effect. Except for the payment of monies, neither party is liable for events beyond its reasonable control, including, without limitation, force majeure events.
e. Money Damages Insufficient. Any breach by a party of this agreement or violation of the other party’s intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach of this agreement.
f. No Additional Terms. Form.io rejects additional or conflicting terms of a Customer’s form-purchasing document.
g. Order of Precedence. If there is an inconsistency between this agreement and an order, the order prevails.
h. Survival of Terms. Any terms, that by their nature survive termination of this agreement for a party to assert its rights and receive the protections of this agreement, will survive (including, without limitation, the confidentiality terms). The UN Convention on Contracts for the International Sale of Goods does not apply.
i. Feedback. If Customer provides feedback or suggestions about the Service, then Form.io (and those it allows to use its technology) may use such information without obligation to Customer.
Last Revised 01.13.23.
