PLEASE NOTE THAT YOUR USE OF AND ACCESS TO OUR SERVICES (DEFINED BELOW) ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.
Effective date: March 29, 2019
Welcome to https://formsort.com (the “Website”). Please read on to learn the rules and restrictions that govern your use of our website(s), products, services and applications (the “Services”). If you have any questions, comments, or concerns regarding these terms or the Services, please contact us at firstname.lastname@example.org.
NOTICE: Please read these Terms carefully. They cover important information about Services provided to you as well as the Agreement (as defined below) between you and Formsort if you sign up as an Embedding Customer (as defined below). These Terms include information about future changes to these Terms, limitations of liability, a class action waiver, and resolution of disputes by arbitration instead of by a court proceeding.
Will these Terms ever change?
We are constantly trying to improve our Services, so these Terms may need to change along with the Services. We reserve the right to change the Terms at any time, but if we do, we will bring it to your attention by placing a notice on the Website, by sending you an email, and/or by some other means.
If you don’t agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. If you use the Services in any way after a change to the Terms is effective, that means you agree to all of the changes.
Except for changes by us as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both you and us.
What about my privacy?
The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under 13. We do not knowingly collect or solicit personally identifiable information from children under 16; if you are a child under 16, please do not attempt to register for the Services or send any personal information about yourself to us. If we learn we have collected personal information from a child under 16, we will delete that information as quickly as possible. If you believe that a child under 16 may have provided us personal information, please contact us at email@example.com.
What are the basics of using the Services?
You may be required to sign up for an account, and select a password and user name (“Formsort User ID”). You promise to provide us with accurate, complete, and updated registration information about yourself. You may not select as your Formsort User ID a name that you don’t have the right to use, or another person’s name with the intent to impersonate that person. You may not transfer your account to anyone else without our prior written permission.
You represent and warrant that you are of legal age to form a binding contract (or if not, you’ve received your parent’s or guardian’s permission to use the Services and gotten your parent or guardian to agree to these Terms on your behalf). If you’re agreeing to these Terms on behalf of an organization or entity, you represent and warrant that you are authorized to agree to these Terms on that organization or entity’s behalf and bind them to these Terms (in which case, the references to “you” and “your” in these Terms, except for in this sentence, refer to that organization or entity).
You will only use the Services for your own personal use, and not on behalf of or for the benefit of any third party, and only in a manner that complies with all laws that apply to you. If your use of the Services is prohibited by applicable laws, then you aren’t authorized to use the Services. We can’t and won’t be responsible for your using the Services in a way that breaks the law.
You will not share your account or password with anyone, and you must protect the security of your account and your password. You’re responsible for any activity associated with your account.
Your use of the Services is subject to the following additional restrictions:
You represent, warrant, and agree that you will not contribute any Content or User Submission (each of those terms is defined below) or otherwise use the Services or interact with the Services in a manner that:
a. Infringes or violates the intellectual property rights or any other rights of anyone else (including Formsort); b. Violates any law or regulation, including, without limitation, any applicable export control laws; c. Is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable; d. Jeopardizes the security of your Formsort account or anyone else’s (such as allowing someone else to log in to the Services as you); e. Attempts, in any manner, to obtain the password, account, or other security information from any other user; f. Violates the security of any computer network, or cracks any passwords or security encryption codes; g. Runs Maillist, Listserv, any form of auto-responder or “spam” on the Services, or any processes that run or are activated while you are not logged into the Services, or that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure); h. “Crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the Services or Content (through use of manual or automated means); i. Copies or stores any significant portion of the Content; j. Decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services.
A violation of any of the foregoing is grounds for termination of your right to use or access the Services.
What are my rights in the Services?
The materials displayed or performed or available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, images, illustrations, User Submissions, and so forth (all of the foregoing, the “Content”) are protected by copyright and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you won’t use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell, commercialize or otherwise exploit for any purpose any Content not owned by you, (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else’s (including Formsort’s) rights.
You understand that Formsort owns the Services. You won’t modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section), create derivative works based on, or otherwise exploit any of the Services.
The Services may allow you to copy or download certain Content; please remember that just because this functionality exists, doesn’t mean that all the restrictions above don’t apply – they do!
Do I have to grant any licenses to Formsort or to other users?
For all User Submissions, you hereby grant Formsort a license to translate, modify (for technical purposes, for example making sure your content is viewable on an iPhone as well as a computer) and reproduce and otherwise act with respect to such User Submissions, in each case to enable us to operate the Services, as described in more detail below. This is a license only – your ownership in User Submissions is not affected.
If you store a User Submission in your own personal Formsort account, in a manner that is not viewable by any other user except you (a “Personal User Submission”), you grant Formsort the license above, as well as a license to display, perform, and distribute your Personal User Submission for the sole purpose of making that Personal User Submission accessible to you and providing the Services necessary to do so.
If you share a User Submission only in a manner that only certain specified users can view (a “Limited Audience User Submission”), then you grant Formsort the licenses above, as well as a license to display, perform, and distribute your Limited Audience User Submission for the sole purpose of making that Limited Audience User Submission accessible to such other specified users, and providing the Services necessary to do so. Also, you grant such other specified users a license to access that Limited Audience User Submission, and to use and exercise all rights in it, as permitted by the functionality of the Services. If you share a User Submission publicly on the Services and/or in a manner that more than just you or certain specified users can view, or if you provide us (in a direct email or otherwise) with any feedback, suggestions, improvements, enhancements, and/or feature requests relating to the Services (each of the foregoing, a “Public User Submission”), then you grant Formsort the licenses above, as well as a license to display, perform, and distribute your Public User Submission for the purpose of making that Public User Submission accessible to all Formsort users and providing the Services necessary to do so, as well as all other rights necessary to use and exercise all rights in that Public User Submission in connection with the Services and/or otherwise in connection with Formsort’s business for any purpose, provided that Formsort will try to notify you if it uses your Public User Submission for any reason other than displaying it on the Services. Also, you grant all other users of the Services a license to access that Public User Submission, and to use and exercise all rights in it, as permitted by the functionality of the Services.
You agree that the licenses you grant are royalty-free, perpetual, irrevocable, and worldwide, provided that when you delete your Formsort account, we will stop displaying your User Submissions (other than Public User Submissions, which may remain fully available) to other users (if applicable), but you understand and agree that it may not be possible to completely delete that content from Formsort’s records, and that your User Submissions may remain viewable elsewhere to the extent that they were copied or stored by other users.
Notwithstanding anything to the contrary, you acknowledge and agree that Formsort may (i) use and modify any data or Content you provide Formsort for the purposes of (A) providing the Services, (B) testing, improving and operating Formsort’s products and services, and © generating Aggregated Anonymous Data (as defined below), and (ii) freely retain, use and make available Aggregated Anonymous Data for Formsort’s business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing Formsort’s products and services). “Aggregated Anonymous Data” means data or Content submitted to, collected by, or generated by Formsort in connection with your use of the Service, but only in aggregate, anonymized form which can in no way be linked specifically to you.
Finally, you understand and agree that Formsort, in performing the required technical steps to provide the Services to our users (including you), may need to make changes to your User Submissions to conform and adapt those User Submissions to the technical requirements of connection networks, devices, services, or media, and the foregoing licenses include the rights to do so.
What if I see something on the Services that infringes my copyright?
You may have heard of the Digital Millennium Copyright Act (the “DMCA”), as it relates to online service providers, like Formsort, being asked to remove material that allegedly violates someone’s copyright. We respect others’ intellectual property rights, and we reserve the right to delete or disable Content alleged to be infringing, and to terminate the accounts of repeat alleged infringers; to review our complete Copyright Dispute Policy and learn how to report potentially infringing content, click here. To learn more about the DMCA, click here.
Who is responsible for what I see and do on the Services?
Any information, data, or content publicly posted or privately transmitted through the Services is the sole responsibility of the person from whom such content originated, and you access all such information and content at your own risk, and we aren’t liable for any errors or omissions in that information or content or for any damages or loss you might suffer in connection with it. We cannot control and have no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Services. We can’t guarantee the identity of any users with whom you interact in using the Services and are not responsible for which users gain access to the Services.
You are responsible for all Content, including data, you contribute, in any manner, to the Services or to Formsort, and you represent and warrant you have all rights necessary to do so, in the manner in which you contribute it. Formsort will be provided and process such Content, including data, only to perform its obligations under these Terms. You will keep all your registration information accurate and current. You are responsible for all your activity in connection with the Services.
Formsort has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third party websites or by any third party that you interact with through the Services. In addition, Formsort will not and cannot monitor, verify, censor or edit the content of any third party site or service. By using the Services, you release and hold us harmless from any and all liability arising from your use of any third party website or service. Your interactions with organizations and/or individuals found on or through the Services, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that Formsort shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings.
If there is a dispute between participants on this site, or between users and any third party, you agree that Formsort is under no obligation to become involved. In the event that you have a dispute with one or more other users, you release Formsort, its officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services. If you are a New York resident, you shall and hereby do waive New York Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
Will Formsort ever change the Services?
We’re always trying to improve the Services, so they may change over time. We may suspend or discontinue any part of the Services, or we may introduce new features or impose limits on certain features or restrict access to parts or all of the Services. We reserve the right to remove any Content from the Services at any time, for any reason (including, but not limited to, if someone alleges you contributed that Content in violation of these Terms), in our sole discretion, and without notice.
Do the Services cost anything?
Through the Services, you may either (i) subscribe to the basic plan for limited access to the Services (“Basic Plan”), or (ii) subscribe to the premium plan for full access to the Services (“Premium Plan”). The Basic Plan currently does not have a monthly subscription fee whereas the Premium Plan does.
You may request to change your plan via the Services. If you choose to upgrade from the Basic Plan to the Premium Plan, then such upgrade will go into effect after payment for the first month, and you will begin receiving access to the features and Services available under the Premium Plan at the time of such upgrade. The fee schedule for Premium Plan will be applied to the calendar month in which you upgraded and for each calendar month thereafter for so long as you are subscribed to the Premium Plan.
If you choose to downgrade from the Premium Plan to the Basic Plan, then the downgrade will not go into effect until the beginning of the calendar month following the calendar month in which you elected to downgrade to the Basic Plan (“Downgrade Election Month”). You will still receive access to the features and Services available through the Premium Plan until the end of the Downgrade Election Month. After the Downgrade Election Month, you will lose access to some of the features and Services available through the Premium Plan and will only have access to the features and Services available under the Basic Plan. The fee schedule for the Basic Plan will be applied to the calendar month following the Downgrade Election Month and for each calendar month thereafter for so long as you are subscribed to the Basic Plan.
What if I want to stop using the Services?
Formsort is also free to terminate (or suspend access to) your use of the Services or your account, for any reason in our discretion, including your breach of these Terms. Formsort has the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms. Account termination may result in destruction of any Content associated with your account, so keep that in mind before you decide to terminate your account.
Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us.
What else do I need to know?
Warranty Disclaimer. Neither Formsort nor its licensors or suppliers make any representations or warranties concerning any content contained in or accessed through the Services, and we will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services. We (and our licensors and suppliers) make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through the Services. Products and services purchased or offered (whether or not following such recommendations and suggestions) through the Services are provided “AS IS” and without any warranty of any kind from Formsort or others (unless, with respect to such others only, provided expressly and unambiguously in writing by a designated third party for a specific product). THE SERVICES AND CONTENT ARE PROVIDED BY FORMSORT (AND ITS LICENSORS AND SUPPLIERS) ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL FORMSORT (OR ITS LICENSORS OR SUPPLIERS) BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, OR (B) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) $100 OR (II) THE AMOUNTS PAID BY YOU TO FORMSORT IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM, OR (III) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
Indemnity. To the fullest extent allowed by applicable law, you agree to indemnify and hold Formsort, its affiliates, officers, agents, employees, and partners harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any third party claims relating to (a) your use of the Services (including any actions taken by a third party using your account), and (b) your violation of these Terms.
Assignment. You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without Formsort’s prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.
Choice of Law. These Terms are governed by and will be construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of New York, without regard to the conflicts of laws provisions thereof.
Arbitration Agreement. Please read the following ARBITRATION AGREEMENT carefully. It requires you to arbitrate certain disputes and claims with Formsort and limits the manner in which you can seek relief from us. Both you and Formsort acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of these Terms, Formsort’s officers, directors, employees and independent contractors (“Personnel”) are third party beneficiaries of these Terms, and that upon your acceptance of these Terms, Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third party beneficiary hereof. Any arbitration under these Terms will take place on an individual basis: class arbitrations and class actions are not permitted. YOU UNDERSTAND AND AGREE THAT BY ENTERING INTO THESE TERMS, YOU AND FORMSORT ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION.
(a) Arbitration Rules; Applicability of Arbitration Agreement. Any dispute arising out of or relating to the subject matter of these Terms shall be finally settled by binding arbitration in New York County, New York. The arbitration will proceed in the English language, in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction.
(b) Costs of Arbitration. The JAMS rules will govern payment of all arbitration fees. Formsort will pay all arbitration fees for claims less than $10,000. Formsort will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
© Small Claims Court. Furthermore, either you or Formsort may assert claims, if they qualify, in small claims court in New York County, New York or any United States county where you live or work.
(d) Waiver of Jury Trial. YOU AND FORMSORT WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and Formsort are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and Formsort over whether to vacate or enforce an arbitration award, YOU AND FORMSORT WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
(e) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor we are entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in (g) below.
(f) Opt-out. You have the right to opt out of the provisions of this section by sending written notice of your decision to opt out either by email at firstname.lastname@example.org or by mail, postmarked within 30 days of first accepting these Terms to the following address: 525 E 11TH ST, 6C, NEW YORK, NY 10009 USA. Your notice (whether submitted via email or via mail) must include (1) your name and residence address; (2) the email address and/or telephone number associated with your account; and (3) a clear statement that you want to opt out of these Terms’ arbitration agreement.
(g) Exclusive Venue. If you send the opt-out notice in (f), and/or in any circumstances where the foregoing arbitration agreement permits either you or Formsort to litigate any dispute arising out of or relating to the subject matter of these Terms in court, then the foregoing arbitration agreement will not apply to either party and both you and Formsort agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in New York County, New York.
Miscellaneous. You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services, provided that the Formsort may, in its sole discretion, do any of the foregoing on your behalf or for itself as it sees fit. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable.
You and Formsort agree that these Terms are the complete and exclusive statement of the mutual understanding between you and Formsort, and that it supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of Formsort, and you do not have any authority of any kind to bind Formsort in any respect whatsoever. Notwithstanding anything to the contrary, Formsort is permitted to disclose that you are one of its customers to any third-party at its sole discretion. Formsort will not showcase your flows in a gallery on its website without your prior written consent, which may include, but is not limited to, consent via email.
You and Formsort agree there are no third party beneficiaries intended under these Terms.
In the event you wish to use the Services as an Embedding Customer (as defined below), you and Formsort may subsequently execute a separate agreement with respect to the embedding relationship (“Separate Agreement”). If you sign up as an Embedding Customer and no Separate Agreement is entered into between you and Formsort in connection with your role as an Embedding Customer, then the following terms (the “Agreement”) will also apply to you in your role as an Embedding Customer:
Capitalized terms used in this Agreement but not defined in this Agreement shall have the meaning given to such terms in the applicable Order Form (as defined below).
SERVICES AND SUPPORT
Subject to the terms and conditions of this Agreement governing the relationship between you in your role as an embedding customer (“Embedding Customer”) and Formsort, Formsort will provide Embedding Customer and its direct clients located in the Territory (“Clients”) with access to the Services through the internet as further described in the applicable Order Form (as defined below). This Agreement incorporates any and all Order Forms by reference. “Order Form” shall mean any order form mutually agreed to between Embedding Customer and Formsort in connection with this Agreement.
The Services are subject to modification from time to time at Formsort’s sole discretion, for any purpose deemed appropriate by Formsort. Formsort will use reasonable efforts to give Embedding Customer prior written notice of any such modification. Embedding Customer shall not make Services available to Clients except pursuant to an enforceable written agreement for Formsort’s benefit signed by the Client that is at least as protective of Formsort and its rights and technology as this Agreement
Formsort will undertake commercially reasonable efforts to make the Services available 99.9% of the time, excluding any time referred to in the next sentence. Notwithstanding the foregoing, Formsort reserves the right to suspend Embedding Customer’s and/or Clients’ access to the Services: (i) for scheduled or emergency maintenance, or (ii) in the event Embedding Customer is in breach of this Agreement, including failure to pay any amounts due to Formsort.
RESTRICTIONS AND RESPONSIBILITIES
Access to the Services may require the Embedding Customer to install certain software applications. Embedding Customer agrees to be bound by any End-User Software Agreements that govern the installation and use of such client software applications. If Formsort authorizes Embedding Customer to distribute any such application to its end user content customers (“End Users”) or Clients, Embedding Customer may do so only after effectively binding such End Users or Clients to the applicable End-User Software Agreements for the benefit of Formsort.
Embedding Customer will not, and will not permit any third party to: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to the Services (“Software”) (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); modify, translate, or create derivative works based on the Services or Software; use the Services or Software for timesharing or service bureau purposes or for any purpose other than for the internal benefit of Clients; use the Services or Software other than in accordance with this Agreement or in compliance with all applicable laws and regulations, including but not limited to any privacy laws, and laws or regulations concerning intellectual property, consumer and child protection, obscenity or defamation; or use or access the Services outside the Territory.
Embedding Customer will cooperate with Formsort in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as Formsort may reasonably request. Embedding Customer will also cooperate with Formsort in establishing a password or other procedures for verifying that only designated employees of Embedding Customer have access to any administrative functions of the Services.
Embedding Customer will designate an employee who will be responsible for all matters relating to this Agreement (“Primary Contact”). Embedding Customer may change the individual designated as Primary Contact at any time by providing written notice to Formsort.
Formsort shall provide reasonable support to Embedding Customer for the Services as specified, and during the time periods, specified on the applicable Order Form.
Embedding Customer will use Formsort’s then-current names, marks, logos, and other identifiers for the Services (“Trademarks”) and Formsort designated intellectual property related notices in and for the Services and Embedding Customer’s advertising and promotional materials for such Services, provided that Embedding Customer will: (a) only use Trademarks in the form and manner, and in accordance with the quality standards and usage guidelines that Formsort specifically prescribes and only in connection with the Services; and (b) upon termination of this Agreement for any reason, immediately cease all use of the Trademarks. Notwithstanding the foregoing, any Embedding Customer using the Services for a fee will not be required to display Formsort’s Trademarks when using the Services; however, if such paying Embedding Customer chooses to use Formsort’s Trademarks for any reason, such Embedding Customer must comply with the Trademark requirements in the foregoing sentence. Subject to prior review and approval by Formsort, Embedding Customer will make all applicable trademark filings and registrations to protect Formsort’s Service and services names, and the Formsort trade name and logo, in the Territory; all such filings and registrations (and any use by Embedding Customer and any related goodwill) shall be solely for the benefit of Formsort and shall name Formsort as the owner. None of Embedding Customer or any affiliate will (a) otherwise brand the Services or (b) otherwise use or register (or make any filing with respect to) any trademark, name or other designation relevant to the subject matter of this agreement anywhere in the world, whether during or after the Service Term of this Agreement or (b) contest anywhere in the world the use by or authorized by Formsort of any trademark, name or other designation relevant to the subject matter of this Agreement or any application or registration therefore, whether during or after the Service Term of this Agreement.
Embedding Customer hereby agrees to indemnify and hold harmless Formsort against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from use of Services by (or that arises in connection with content used or provided by) Embedding Customer or its Clients. Although Formsort has no obligation to monitor the content provided by Embedding Customer or its Clients or Embedding Customer’s or its Clients’ use of the Services, Formsort may do so and may remove any such content or prohibit any use of the Services it believes may be (or alleged to be) in violation of this Agreement or any law or regulation or right of any third party.
Embedding Customer will be responsible for maintaining the security of Embedding Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Embedding Customer account with or without Embedding Customer’s knowledge or consent.
Embedding Customer acknowledges and agrees that the Services operate on or with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (“Third Party Services”). Formsort is not responsible for the operation of any Third Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third Party Services. Embedding Customer is solely responsible for procuring any and all rights necessary for it and its Clients to access Third Party Services and for complying with any applicable terms or conditions thereof. Formsort does not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between Embedding Customer and a third party provider is solely between Embedding Customer and such third party provider and is governed by such third party’s terms and conditions.
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).
The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (i) to give access to such Proprietary Information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or © was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. In any event, Formsort may collect data with respect to and report on the aggregate response rate and other aggregate measures of the Services’ performance.
Embedding Customer acknowledges that Formsort does not wish to receive any Proprietary Information from Embedding Customer that is not necessary for Formsort to perform its obligations under this Agreement, and, unless the parties specifically agree otherwise, Formsort may reasonably presume that any unrelated information received from Embedding Customer is not confidential or Proprietary Information.
Both parties will have the right to disclose the existence but not the terms and conditions of this Agreement, unless such disclosure is approved in writing by both parties prior to such disclosure, or is included in a filing required to be made by a Party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors or acquirers.
INTELLECTUAL PROPERTY RIGHTS
Except as expressly set forth herein, Formsort alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Service or the Software, as well as any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service and/or the Software, which are hereby assigned to Formsort. Embedding Customer will not, and will not permit any third party to, copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Agreement. Embedding Customer is hereby granted a non-exclusive, nontransferable, revocable right to use the Data (as defined below) provided by Formsort for its and Clients’ internal analysis purposes only. The license granted herein is sublicensable by Embedding Customer only to Clients, and Embedding Customer will not permit sublicense such license.
Formsort will be provided and process certain of Embedding Customer’s and Clients’ data (“Data”) only to perform its obligations under this Agreement. Embedding Customer and Clients shall and hereby do represent and warrant that they do have and retain all right, title and interest (including, without limitation, sole ownership of) all Data provided to Formsort and all rights with respect to that Data. If Formsort receives any notice or claim that any Data, or activities hereunder with respect to any Data, may infringe or violate rights of a third party or any laws or regulations (a “Claim”), Formsort may, but is not required to, suspend or terminate Services. Notwithstanding anything to the contrary, Embedding Customer acknowledges and agrees that Formsort may (i) use and modify Data for the purposes of (A) providing the Service, (B) testing, improving and operating Formsort’s products and services, and © generating Aggregated Anonymous Data (as defined below), and (ii) freely retain, use and make available Aggregated Anonymous Data for Formsort’s business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing Formsort’s products and services). “Aggregated Anonymous Data” means data submitted to, collected by, or generated by Formsort in connection with Embedding Customer’s and/or Clients’ use of the Service, but only in aggregate, anonymized form which can in no way be linked specifically to Embedding Customer or any Client.
Formsort shall indemnify Embedding Customer from liability to unaffiliated third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Formsort is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Formsort will not be responsible for any settlement it does not approve. The foregoing obligations do not apply with respect to portions or components of the Services (i) not created by Formsort, (ii) resulting in whole or in part in accordance from Embedding Customer specifications, (iii) that are modified after delivery by Formsort, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Embedding Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Embedding Customer’s use of is not strictly in accordance with this Agreement and all related documentation. Embedding Customer will indemnify Formsort from all damages, costs, settlements, attorneys’ fees and expenses related to any claim of infringement or misappropriation excluded from Formsort’s indemnity obligation by the preceding sentence.
PAYMENT OF FEES
Embedding Customer will pay Formsort the applicable fees in accordance with the Order Form (the “Fees”). If Embedding Customer or Client use of the Services exceeds the Service Capacity set forth on the Order Form, Embedding Customer will be invoiced at the end of each calendar month for the excess usage over the Service Capacity, at the rate set forth on the Order Form, and Embedding Customer agrees to pay the additional fees without any right of set-off or deduction. To the extent applicable, Embedding Customer will pay Formsort for additional services, such as integration fees or other consulting fees. If not otherwise specified, payments will be due within thirty (30) days of invoice.
Unpaid Fees are subject to a finance charge of one percent (1.0%) per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees. Fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Embedding Customer agrees to pay such taxes (excluding US taxes based on Formsort’s net income) unless Embedding Customer has provided Formsort with a valid exemption certificate. In the case of any withholding requirements, Embedding Customer will pay any required withholding itself and will not reduce the amount paid to Formsort on account thereof. Notwithstanding anything to the contrary, in addition to any other remedy available, Formsort may restrict or suspend Embedding Customer’s access to the Services without warning if payment is not made when due.
Subject to earlier termination as provided below, this Service Agreement is for the Service Term as specified in the Order Form.
In the event of any material breach of this Agreement, the non-breaching party may terminate this Agreement prior to the end of the Service Term by giving thirty (30) days prior written notice to the breaching party; provided, however, that this Agreement will not terminate if the breaching party has cured the breach prior to the expiration of such thirty-day period. Either party may terminate this Agreement, without notice, (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings, (ii) upon the other party’s making an assignment for the benefit of creditors, or (iii) upon the other party’s dissolution or ceasing to do business. Notwithstanding anything to the contrary in this Agreement or these Terms, any Fees (prepaid or otherwise) received in connection with this Agreement from the Embedding Customer to Formsort are non-refundable.
All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, restrictions, accrued rights to payment, confidentiality obligations, intellectual property rights, warranty disclaimers, and limitations of liability.
THE SERVICES AND FORMSORT PROPRIETARY INFORMATION AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED “AS-IS,” WITHOUT ANY WARRANTIES OF ANY KIND. FORMSORT (AND ITS AGENTS, AFFILIATES, LICENSORS AND SUPPLIERS) HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
LIMITATION OF LIABILITY
IN NO EVENT WILL FORMSORT (OR ANY OF ITS AGENTS, AFFILIATES, LICENSORS OR SUPPLIERS) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF FORMSORT HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE TOTAL LIABILITY OF FORMSORT, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE LESSER OF (i) TEN THOUSAND DOLLARS, OR (ii) THE FEES PAID TO FORMSORT HEREUNDER IN THE THREE MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
U.S. GOVERNMENT MATTERS
Notwithstanding anything else, Embedding Customer may not knowingly provide to any person or export or re-export or allow the export or re-export of the Services or any software or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing Embedding Customer acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Use of the Service is representation and warranty that the user is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations. As defined in FAR section 2.101, any software or documentation provided by Formsort are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Service Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Embedding Customer except with Formsort’s prior written consent. Formsort may transfer and assign any of its rights and obligations under this Agreement with written notice to Embedding Customer. 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, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Embedding Customer does not have any authority of any kind to bind Formsort in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. Formsort will not be liable for any loss resulting from a cause over which it does not have direct control. This Agreement will be governed by the laws of the State of New York, U.S.A. without regard to its conflict of laws provisions. The federal and state courts sitting in New York County, New York, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement. Embedding Customer agrees to participate in press announcements or other forms reasonably requested by Formsort. Formsort is permitted to disclose that Embedding Customer is one of its customers to any third-party at its sole discretion. Formsort will not showcase Embedding Customer’s flows in a gallery on its website without the prior written consent of Embedding Customer, which may include, but is not limited to, consent via email.