ATTENTION:  Carefully read these binding Terms and Conditions of Use BEFORE you use the Service

TERMS AND CONDITIONS OF USE

BEFORE USING THE FORMOTIV LLC (“FORMOTIV”) ON-LINE SERVICE (“REFERENCED HEREIN “SERVICE”) YOU SHOULD CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS OF USE (REFERRED TO HEREIN AS “AGREEMENT”) THAT APPLIES TO THE SERVICE.  CLICK “I AGREE” IF YOU FULLY ACCEPT AND AGREE TO ALL OF THE PROVISIONS OF THIS AGREEMENT.  OTHERWISE, CLICK “CANCEL.”   CLICKING “I AGREE” OR OTHERWISE USING THE SERVICE ESTABLISHES A BINDING AGREEMENT BETWEEN YOU AS THE PERSON UTILIZING THE SERVICE, EITHER ON BEHALF OF YOURSELF OR ANY THIRD PARTY ENTITY (THE “LICENSEE”) AND FORMOTIV.   IF YOU DO NOT ACCEPT ALL OF THE TERMS OF THIS AGREEMENT, YOU SHALL HAVE NO RIGHT TO USE THE SERVICE. THE RIGHT TO USE THE SERVICE IS ONLY ON THE CONDITION THAT YOU AGREE TO THE FOLLOWING TERMS.

BY USING THE SERVICE, YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL CAPACITY AND AUTHORITY TO ENTER INTO A BINDING AGREEMENT TO ADHERE TO THE TERMS AND CONDITIONS SET FORTH HEREIN, AND THAT THE SERVICE WILL BE USED ONLY IN ACCORDANCE WITH THESE TERMS AND CONDITIONS AND WITH ALL APPLICABLE LAWS. IF AN INDIVIDUAL IS REGISTERING OR USING THE SERVICE ON BEHALF OF AN ENTITY OR ORGANIZATION, THAT INDIVIDUAL WARRANTS, REPRESENTS, AND COVENANTS TO FORMOTIV THAT SUCH INDIVIDUAL IS DULY AUTHORIZED TO AGREE TO THESE TERMS AND CONDITIONS ON BEHALF OF THE ORGANIZATION AND TO BIND THE ORGANIZATION TO THEM.

IN ORDER TO USE THE SERVICE, YOU MAY BE REQUIRED TO COMPLETE A DESIGNATED ACTIVATION PROCESS WITHIN THE SERVICE.

1.      Use of Service.  Formotiv hereby grants you, for your internal business purposes, a non-exclusive, non-transferable, limited license to access and use the Service, on a hosted basis, in accordance with the user documentation provided with the Service (“Documentation), and (ii) the Documentation, each for the Subscription Term set forth in the applicable Order Form completed by you.  Use of the Service is restricted and subject to the limitations set forth in the Order Form. During the Subscription Term, Formotiv will support the Service in accordance with the Formotiv Support and Service Level Policy found at https://formotiv.com/eula/

Your use of the Service is limited to the number of Sessions purchased by you, as set forth in the Order Form.  A “Session” is is defined as any data collected from an application like a keystroke or mouse hover. Formotiv may audit your usage of the Service, to determine the number of Sessions used by you.  In the event that such audit reveals any use of the Service by you other than in full compliance with the terms of this Agreement, you shall reimburse Formotiv for all reasonable expenses related to such audit in addition to any other liabilities you may be responsible for as a result of such non-compliance.

2. Fees and Taxes. Fees for the Service, which are inclusive of support and maintenance, will specified on an Order Form, and are due and payable as set forth therein, and are non-refundable. The scope of any professional or other services, and associated fees and payment terms, shall be set forth in a mutually agreed Statement of Work (“SOW”) or as otherwise agreed by the parties in writing. You agree to pay any pre-approved reasonable travel and living expenses incurred by Formotiv hereunder. Unless otherwise set forth on the Order Form, all fees will be invoiced upon the Effective Date of the Order Form. Payment terms are net 30 days from the date of receipt of invoice.  You are shall be responsible for all taxes on the fees, except for taxes on Formotiv’s income. If any fees or charges under any Order Form is not received from you by the due date, then at Formotiv’s discretion, (a) such amounts may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid; (b) you shall pay on demand all out-of-pocket costs (including attorney fees) reasonably incurred by Formotiv to collect such fees or charges; and/or (c) Formotiv may condition future term renewals and Order Forms on payment terms shorter than those specified herein. If any amount owing by you under these Terms and Conditions is fifteen (15) or more days overdue, Formotiv may, without limiting its other rights and remedies, suspend Services to you until such amounts are paid in full.
3. Confidentiality. Each party shall maintain as confidential and shall not disclose (except to its employees, accountants, attorneys, advisors, affiliates, outsourcers and third party service providers of recipient with a need to know in connection with recipient’s performance under these Terms and Conditions, and who have been advised of the obligation of confidentiality hereunder), copy or use for purposes other than the performance of these Terms and Conditions, any information which relates to the other party’s business affairs, trade secrets, technology, research, development, pricing or terms of these Terms and Conditions (“Confidential Information”) and each party agrees to protect all received Confidential Information with the same degree of care that it would use with its own Confidential Information and to prevent unauthorized, negligent or inadvertent use, disclosure or publication thereof. Breach of this Section may cause irreparable harm and damage. Thus in addition to all other remedies available at law or in equity, the disclosing party shall have the right to seek equitable and injunctive relief, and to recover the amount of damages (including reasonable attorneys’ fees and expenses) incurred in connection with such unauthorized use. The recipient shall be liable to the disclosing party for any use or disclosure in violation of this Section by recipient or its affiliates, employees, third party service providers or any other related party.  Confidential Information shall not include information that (a) is already known prior to the disclosure by the owning party; (b) is or becomes publicly known through no breach of these Terms and Conditions; (c) is independently developed without the use of the other party’s Confidential Information and evidence exists to substantiate such independent development; (d) information that is obtained from a third party, and that third party is not, in good faith belief to the recipient, under any legal obligation of confidentiality; or (e) the recipient receives written permission from the disclosing party for the right to disclose any Confidential Information..
4. Ownership; Feedback. Formotiv retains all title, ownership and intellectual property rights to the Service, including, but not limited to, any copies (including partial copies), translations, compilations, derivative works, updates and upgrades thereto. The Service is Formotiv’s confidential proprietary information and contains valuable trade secrets of Formotiv and its licensors. You agree not to disclose it or make it available to anyone without Formotiv’s written authorization. You will exercise no less than reasonable care to protect the Service from unauthorized access or disclosure. You shall not publish, or provide any results of benchmark tests, or other evaluations of the Service without Formotiv’s prior written consent.

During the Subscription Term, you may periodically provide to Formotiv information describing the results of your use of the Service. Such information may include: (i) interoperability and usability of the Service, (ii) design concepts for the user-interface and functional aspects of the Service, and (iii) problems, difficulties and bugs encountered while utilizing the Service (the “Feedback”). You agree that all intellectual property rights and all other ownership in any ideas, modifications, enhancements, improvements, inventions, works of authorship or any other suggestion it or any of its personnel proposes, creates, authors or develops relating to the Service or the Feedback are hereby assigned to Formotiv and shall be the sole and exclusive property of Formotiv.

Notwithstanding the foregoing, you retain all rights, title and interest in and to your own information and data, including your ideas, processes, standards, practices, and management policies and procedures, that is input or used by you with the Service or supplied to Formotiv (“Customer Data”). You represent and warrant that (i) you have the legal power to enter into these Terms and Conditions; and (ii) you have the lawful right to utilize or provide the Customer Data with Service.

5. Restrictions. You may not use the Service (or any components thereof) for any unlawful purpose. Without limiting the generality of the foregoing:

(a) The Service may not be used in violation of U.S. export control laws or the export or import regulations of other countries. You agree to comply strictly with all such laws and regulations and acknowledge that you have the responsibility to obtain licenses to export, re-export, or import as may be required. You assume sole responsibility for all related costs and for the violation of any applicable export law or regulation.

(b) You may not use the Service if you are a citizen, national, or resident of, or are under control of, the government of Cuba, Iran, Sudan, Libya, North Korea, Syria, or any other country to which the United States has prohibited export. Each time you use the Service you represent, warrant, and covenant that:  (i) you are not a citizen, national, or resident of, nor under the control of, any such country to which the United States has prohibited export; (ii) you will not export or re-export the Service, directly or indirectly, to the above mentioned countries nor to citizens, nationals or residents of those countries; (iii) you are not listed on the U.S. Department of Treasury’s Lists of Specially Designated Nationals, Specially Designated Terrorists, and Specially Designated Narcotic Traffickers, the U.S. Department of State’s List of Statutorily Debarred Parties, or the U.S. Department of Commerce’s Denied Persons List, Entity List, or Unverified List Table of Denial Orders; (iv) you will not export or re-export the Service, directly or indirectly, to persons on the above-mentioned lists; (v) you will neither use nor allow the Service to be used for, any purposes prohibited by United States federal or state law, including, without limitation, for the development, design, manufacture or production of nuclear, chemical, or biological weapons of mass destruction; and (vi) the Service will not be exported, directly, or indirectly, in violation of these laws, nor will the Service be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or any other restrictions that may be imposed by applicable law from time to time.

(c) You agree not to (and agree not to allow third parties to) (1) sublicense, publish, lease, rent, loan, transfer, or distribute the Service or any derivative thereof to any third party, (2) modify, adapt, translate, or prepare derivative works from the Service, (3) decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Service, (4) decrypt data or extract portions of the Service’s files for use in other applications, or (5) remove, obscure, or alter Formotiv’s or any third party’s trademarks or copyright or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through the Service. You agree you will not tamper with, bypass or alter any security features of the Service or attempt to do so.

(d) You agree to indemnify, defend, and hold harmless Formotiv, its officers, directors, employees and its suppliers from any and all loss, cost, liability, and expense arising from or related to your violation of these terms.  You agree to reimburse Formotiv for any costs or fees related to its enforcement of these Terms and Conditions.

6. Term and Termination. These Terms and Conditions are effective upon your use of the Service or execution of an Order Form referencing these Terms and Conditions, whichever comes first, and remains effective through the Subscription Term (and any renewal thereof), or until otherwise terminated as set forth herein.  The Subscription Term described in each Order Form will commence upon the Order Form Effective Date and continue as set forth therein (“Initial Term”) and will automatically renew for additional one (1) year terms (“Renewal Term”) unless either party has given the other party written notice of non-renewal at least ninety (90) days prior to the end of an Initial Term or Renewal Term.   Rates for any Renewal Term will not exceed the previous year’s rates by more than five percent (5%), unless the parties agree otherwise in writing.

In addition to any termination provisions set forth herein, these Terms and Conditions and your use of the Service (a) will terminate immediately without notice from Formotiv or judicial resolution if you fail to comply with any provision of these Terms and Conditions, or (b) if a party breaches any material term or condition of these Terms and Conditions (including non-payment by you of fees due), and such party fail to cure such breach within thirty (30) days after receipt of written notice of the same.  Upon such termination you must destroy all Documentation, written materials and all copies thereof provided by Formotiv with respect to the Service, as well as all Confidential Information of Formotiv. The sections entitled Limited Warranty, Limitation of Remedies and Damages, and General will survive any termination.

7. Limited Warranty. Formotiv represents and warrants that (i) it has the legal power to enter into these Terms and Conditions; and (ii) during the Subscription Term for which payment was received by Formotiv, the functionality of the Service will not be materially decreased (other than temporary loss of functionality due to maintenance work), provided that your exclusive remedy for a breach of such warranty shall be termination for material breach in accordance with Section 6. Except as set forth herein, the Service and written materials are provided “AS IS” and without warranty of any kind.  FORMOTIV AND ITS LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES, EITHER EXPRESS OF IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT.  FORMOTIV DOES NOT WARRANT THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SERVICE WILL BE CORRECTED.  YOU ASSUME THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SERVICE. FURTHERMORE, FORMOTIV DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICE OR RELATED DOCUMENTATION IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS, OR OTHERWISE. NO ORAL OR WRITTEN REPRESENTATIONS MADE BY FORMOTIV OR AN AGENT THEREOF SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. FORMOTIV DOES NOT WARRANT THE PERFORMANCE OF ANY SERVICE THAT HAS BEEN UTILIZED IN EXCESS OF SPECIFICATIONS. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES, SOME OR ALL OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
8. Limitation of Remedies and Damages. REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT SHALL FORMOTIV OR ANY OF ITS AFFILIATES, OR THEIR LICENSORS, DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR SIMILAR DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE), WHETHER FORESEEABLE OR UNFORESEEABLE, ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICE OR ACCOMPANYING WRITTEN MATERIALS, REGARDLESS OF THE BASIS OF THE CLAIM AND EVEN IF FORMOTIV HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.  THE CUMULATIVE LIABILITY OF FORMOTIVE TO YOU FOR ALL CLAIMS ARISING UNDER OR RELATED TO THESE TERMS AND CONDITIONS OR YOUR USE OF THE SERVICE, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID TO FORMOTIVE UNDER THE APPLICABLE ORDER FORM WITHIN THE YEAR PRECEDING THE CLAIM. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
9. U.S. Government Users. If you are a U.S. Government user, then the Service is provided with “RESTRICTED RIGHTS” as set forth in subparagraphs (c) of FAR 52 227-19.  In addition, use, duplication and disclosure by DOD agencies is subject solely to the terms of this Agreement, pursuant DFARS 227.7202, as applicable.
10. Additional Terms Applicable to Software as a Service (“SaaS”) Use.

(a) The Service provides the capability to store and retrieve Customer Data on Formotiv systems via the Internet during the Subscription Term. All or portions of the Service provided hereunder may be provided by a third-party provider. You are responsible for providing your own Internet access and computer equipment needed to access the Service. Formotiv shall not be liable for any downtime of the Service.

(b) You understand that the technical processing and transmission of electronic communications is fundamentally necessary to your use of the Service.  Formotiv has taken reasonable actions, including encryption and firewalls, to ensure that your information and Customer Data is disclosed only to those designated by you. You expressly consent to Formotiv’s interception and storage of electronic communications and/or Customer Data, and you acknowledge and understand that your electronic communications will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by Formotiv. You acknowledge and understand that changes to your electronic communications may occur in order to conform and adapt such data to the technical requirements of connecting networks or devices.  You further acknowledge that the Internet is an open system and Formotiv cannot and does not warrant or guarantee that any information or Customer Data will not be intercepted by third parties. Formotiv disclaims any liability for interception of any information, Customer Data or electronic communications. Notwithstanding anything herein to the contrary, Formotiv may decrypt or otherwise disclose information or Customer Data submitted by you to Formotiv if required by law or in the event that Formotiv, in good faith, believes disclosure is necessary to (i) troubleshoot the Service, (ii) comply with legal process or any subpoena, warrant, order, or regulation, or (iii) protect the rights or property of Formotiv or others. Formotiv may also provide access to Customer Data to government authorities if Formotiv suspects or believes that the Customer Data contain a prohibited data or that the Customer Data are being used for illegal purposes. You acknowledge that Formotiv, its third party service providers or Formotiv affiliates may use servers and other equipment to provide the Service that are located in the United States or in other countries where litigants, law enforcement, courts, and other agencies of the government may have the right to access data stored within their jurisdictions upon terms and conditions provided by local law, and that as a result, they may gain access to your data as provided by applicable local law.

Formotiv does not sell or rent your personal information to third parties for their marketing purposes without your explicit consent and we only use your information as described in the Formotiv privacy policy https://formotiv.com/privacy-policy-2/. If you object to your information being used in the manner set forth in the privacy policy, you should discontinue use of the Service.

(c) In addition to information regarding compliance with use restrictions, the Service may collect certain non-personally identifiable information that resides on your computer, including, without limitation, performance metrics relating to the Software, and configuration settings. This information collected will be sent to Formotiv and may be used by Formotiv or its third party service providers without restriction. The collected information is necessary for the purpose of delivering the functionality of the Service. When you use the Service, you agree that we and our third party service providers may copy and store Customer Data as part of the Service. You understand that electing to access Customer Data from a third party computer may cause the contents of Customer Data to become accessible to individuals other than you and that you accept this risk. You further acknowledge that depending upon the Service you use or the features of the Service you use that accessing Customer Data from any Internet enabled computer many not be possible. In addition, any Customer Data that you transmit or store through the Service may be transferred to a Formotiv entity in the United States or other countries that may have less data protection laws than the region in which you are situated (including outside the European Economic Area).

 

(d) Formotiv assumes no responsibility for the deletion of Customer Data, loss of data or the failure to store Customer Data. You acknowledge and agree that in connection with Service, Formotiv as part of its standard offering makes backup copies of Customer Data.  Formotiv shall also own all rights in all metadata, defined as data generated by Formotiv in connection with Formotiv’s delivery and analysis of Customer Data created during the performance of Formotiv’s obligations hereunder. Formotiv has no obligation to monitor the use of the Service and/or Customer Data transmitted or stored through the Service.

 

(e) You are solely responsible for any consequences arising in whole or in part out of your failure to maintain the confidentiality of any usernames and/or passwords.  You may access the Service only through the interfaces and protocols provided or authorized by Formotiv. You agree that you will not access the Service through unauthorized means, such as unlicensed software clients. You are solely responsible for protecting the information on your computer such as by installing anti-virus software, updating your applications, password protecting your files, and not permitting third party access to your computer.

 

11. General. These Terms and Conditions are governed by the laws of the Commonwealth of Pennsylvania without regard to its conflict of law provisions. If any action is brought by either party against the other party, the prevailing party shall be entitled to recover, in addition to any other relief granted, reasonable attorney fees and expenses of the action. Should any provision of these Terms and Conditions be declared void or unenforceable, such declaration shall have no effect on the remaining terms. Section headings are for convenience only and shall not affect the construction or interpretation of this these Terms and Conditions. You acknowledge you have read these Terms and Conditions and agree that it is the complete and exclusive statement of the agreement between the parties with respect to the subject matter hereof, and supersedes all prior proposals and understandings, oral and written, relating to the subject matter of these Terms and Conditions. Failure or delays by Formotiv in the performance of any obligation hereunder shall be excused if such failure or delay is due to causes beyond Formotiv’s reasonable control, including, without limitation, fire, strike, war, riots, acts of any civil or military authority, acts of God, acts of terrorism, or endemic failures on the World Wide Web, denial-of-service attacks, or interruptions of telecommunications service or access. The failure of either party to enforce any rights contained in these Terms and Conditions, or to take action against the other party in the event of a breach, shall not be deemed to be a waiver by that party as to the subsequent enforcement of rights. You acknowledge that, in the event of a breach of the provisions of these Terms and Conditions, Formotiv may not have an adequate remedy in money or damages, and Formotiv shall be entitled to seek an injunction against such breach (without the necessity of posting a bond). Formotiv’s right to seek injunctive relief shall not limit its right to seek other remedies. You may not assign or transfer any of your rights or obligations under these Terms and Conditions or an Order Form to a third party without the prior written consent of Formotiv. Formotiv may freely assign these Terms and Conditions and any associated Order Form or SOW. Any attempted assignment or transfer in violation of the foregoing will be void from the beginning. The relationship between the parties shall not be construed to be that of employer and employee, nor constitute a partnership, joint venture or agency of any kind.  Neither party shall have any right to enter into any contracts or commitments in the name of, or on behalf of, the other party, or to bind the other party in any respect whatsoever.