This Form.io Technology Services Agreement for Hosted Solution (“Agreement”) is entered into between Customer and Form.io, LLC, a Texas limited liability company with offices at 13770 Noel Road #801872 Dallas, Texas 75380 (“Form.io”). This Agreement which includes and incorporates the attached Subscription Plan, governs your use of the Form.io Technology. Customer and Form.io may be referred to individually as a “Party” and collectively as the “Parties.” This Agreement is entered into as of the Effective Date.
A. Affiliates. “Affiliates” shall mean all entities which are controlling, controlled by or under common control with Customer where control means the possession direct or indirect of the power to cause the direction of the management and policies of an entity whether through ownership of voting securities or equity interests of such entity, by contract or otherwise.
B. Authorized Platforms. “Authorized Platforms” means the web browsers that are supported by Form.io, and the operating systems that support the use of those web browsers.
C. Customer. “Customer” means the customer named on the Subscription Plan, and includes any employee, consultant, or contractor of the Customer, provided that the employee, consultant, or contractor is using the Software in the performance of his or her duties as an employee, consultant, or contractor of the Customer.
D. Customer Applications. “Customer Applications” means the applications, websites, and software operated by Customer which include forms that are enabled by or created through the Software or Services to be used by Customer and Customer’s Affiliates, partners, and End Users.
E. Customer Data. “Customer Data” means any all data and information which is provided by Customer to Form.io and any other data and information belonging to the Customer, including End User Data, which may be delivered to or otherwise come into the possession or control of, Form.io.
F. Customer Systems. “Customer Systems” means Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services.
G. Documentation. “Documentation” means all user manuals and other written material, including product descriptions available at Form.io, created by Form.io to describe the functionality and assist in the use of the Software.
H. Effective Date. “Effective Date” shall be the date as listed on the Subscription Plan.
I. End User. “End User” means the user of Customer Applications
J. End User Data “End User Data” means the personally identifiable and non-personally identifiable data collected from the End User by the Customer via the Customer Applications by the use Form.io Services.
K. Form.io Portal. “Form.io Portal” means the access page use by Form.io Customers to access the Services and is located at https://portal.form.io/#/auth.
L. Form.io Systems. “Form.io Systems” means Form.io’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by Form.io or through the use of Subcontractors.
M. Hosted Solution. “Hosted Solution” means the version of the Services that is hosted and stored on Form.io Systems.
N. Intended Use. “Intended Use” means the development of web and mobile software and applications to be integrated within Customer Applications for Customer’s internal and commercial use, including, but not limited to, marketing and selling Customer Applications directly and indirectly, whether by Customer or through Customer’s Affiliates worldwide.
O. Open-Source Components. “Open-Source Components” means any component of the Software that is subject to any open-source copyright license agreement, including any GNU General Public License or GNU Library or Lesser Public License, or other obligation, restriction or license agreement that substantially conforms to the Open-Source Definition as prescribed by the Open-Source Initiative or otherwise may require disclosure or licensing to any third party of any source code with which such software component is used or compiled.
P. Open-Source Software. “Open-Source Software” means any software that contains or is derived in any manner (in whole or in part) from any software, code or libraries that are distributed as free software, or copyleft software, or ShareAlike software, or as Open-Source software or under any licensing or distribution models similar to Open-Source, including, without limitation, software licensed or distributed under any of the following licenses or distribution models, or any unlisted versions of the following licenses or distribution models, or licenses or distribution models similar to the following: the Apache License; the BSD 3-Clause License; the BSD 2-Clause License; the GNU General Public License; the GNU Lesser General Public License; the MIT License; the Mozilla Public License; the Netscape Public License; the Sun Common Development and Distribution License; or the Eclipse Public License.
Q. Services. “Services” means the form creation and data management platform functions, as accessed through the Form.io Portal, to be provided by Form.io to Customer, in accordance with the Subscription Plan and as operated by the Software.
R. Site. “Site” means www.form.io.
S. Software. “Software” means the computer program or programs marketed and sold as Form.io, in object and/or source code form, as solely determined by Form.io, and the Documentation. Software includes any updates, modification, bug fixes, upgrades, enhancements, or other modifications. It does not include any version of the Software that includes new features or capabilities that Form.io, in its sole discretion, deems constitute a separate product because of differences in function or features.
T. Subscription Fee. “Subscription Fee” means the fee to be paid by Customer, in accordance with the Subscription Plan, to Form.io as consideration for the license granted under this Agreement and the right to use the Software and the Documentation.
U. Subscription Plan. “Subscription Plan” means the subscription plan as agreed to in writing between Customer and Form.io as included and incorporated in the Agreement.
V. Technical Support. “Technical Support” means the technical support and maintenance provided by Form.io in connection with Customer’s use of the Software as described in the Subscription Plan.
ARTICLE I: SERVICE AND TECHNICAL SUPPORT
1.1 Services. Customer, on behalf of itself and its Affiliates, desires to acquire a subscription to access the Services and utilize all functions, facilities, and content related thereto and as specified in the Subscription Plan, on the terms and conditions set in this Agreement.
1.2 License Grant. Form.io grants to Customer, and its Affiliates, during the Term (as defined in Article V) , a non-exclusive, non-transferable, worldwide license for Customer and Customer Affiliates to use all portions of the Services on behalf of Customer for the Intended Use in strict accordance with this Agreement and the features as set forth in the Subscription Plan. This license is for use by Customer and its Affiliates, as set forth in Subscription Plan for the commercial purposes of Customer and its Affiliates only, for which the applicable Subscription Fees shall be paid in accordance with Article III of this Agreement. Customer may access the Form.io Portal by desktop, remote solution, or mobile.
1.3 Open-Source. The Software includes licensed Open-Source Components. Copies of the applicable Open-Source license agreements can be found on the Site (each, an “Open-Source License”). A list of current Open-Source components, which may be amended by Form.io at any time without notice to Customer, is attached as Exhibit A.Any use of the Open-Source Components by Customer shall be governed by, and subject to, the terms and conditions of the Open-Source License(s). Nothing in this Agreement limits Customer’s rights under, or grants Customer rights that supersede, the terms and conditions of any applicable Open-Source License for the Open-Source Components. If required by such Open-Source Licenses, on written request to Form.io, Form.io shall provide Customer with a complete, machine-readable copy of the source code for such Open-Source Components in accordance with the terms of the Open-Source License(s) at no cost to Customer.
1.4 Customer Affiliates. All of the Services provided by Form.io under this Agreement may be used by the Affiliates subject to the terms of this Agreement. The Affiliates shall be entitled to enforce this Agreement as third party beneficiaries.
1.5 Deliverables. Form.io shall deliver to Customer access to the Services and the Software in accordance with the Subscription Plan.
1.6 Email Support. Form.io shall provide Customer email support via email@example.com which shall be available Monday through Friday, 9:00 a.m. to 6:00 p.m. Central Standard Time, excluding the bank recognized holidays in the United States (“Holiday”). In the event that Customer anticipates a need for support over the weekend or during a Holiday, Customer may request such support via a customized support contract to be defined on a case by case basis in a separate agreement.
1.7 Service Levels and Credits.
(a) Availability Requirement. Form.io shall make the Services available, as measured over the course of each calendar month during the Term and any additional periods during which Form.io does or is required to perform any Services (each such calendar month, a “Service Period”), at least 99.95% of the time, excluding only the time the Services are not available solely as a result of one or more Exceptions (the “Availability Requirement”). “Available” means the Services are available and operable for access and use by Customer and its End Users over the internet in material conformity with the Specifications. “Availability” has a correlative meaning. The Services are not considered Available in the event of a material performance degradation or inoperability of the Services, in whole or in part.
(b) Exceptions. No period of Service degradation or inoperability will be included in calculating Availability to the extent that such downtime or degradation is due to any of the following (”Exceptions”): (i) Customer’s or any of its End Users’ misuse of the Services; (ii) failures of Customer’s or its End Users’ internet connectivity; (iii) internet or other network traffic problems other than problems arising in or from networks actually or required to be provided or controlled by Form.io; (iv) Customer’s or any of its End Users’ failure to meet any minimum hardware or software requirements; or (v) Scheduled Downtime as set forth in Paragraph 1.7(c).
(c) Scheduled Downtime. Throughout the Term, Form.io shall use its best efforts to provide live updates to avoid any downtime. In the event that Services require downtime, Form.io shall notify Customer at least 24 hours in advance of all scheduled outages of the Services in whole or in part (“Scheduled Downtime”). All such scheduled outages shall: (a) last no longer than one hour; (b) be scheduled between the hours of 12:00 a.m. and 5:00 a.m., Central Time; and (c) occur no more frequently than once per month; provided that Form.io may notify Customer of extensions of Scheduled Downtime above one hour.
(d) Customer Reporting. Customer shall report any unscheduled system downtime lasting more than three (3) hours and any material error, bug, or defect in the Services to Form.io’s support email listed above immediately upon becoming aware or receiving notice of such material system downtime, error, bug, or defect.
(e) Remedies for Service Availability Failures. If the actual Availability of the Services is less than the Availability requirement for any Service Period, such failure shall constitute a service error for which Form.io shall issue to Customer the corresponding Service Availability Credits as set forth in below (”Service Availability Credits”) and in accordance with Section 1.7(e).
Availability and Service Availability Credits
Required Availability Service LevelServices shall be Available 99.95% of the time during each Service Period excluding periods Services are not Available due to an Exception.
Calculation Formula(Actual Uptime ÷ (Scheduled Uptime – Total Minutes in Service Period Services are not Available Due to an Exception)) x 100 = Percentage Uptime.
Service Availability CreditsNo Service Availability Credits will be given for any Service Period in which Percentage Uptime equals or exceeds the Availability requirement. Customer shall be entitled to a Service Availability Credit of 10% of the Total Monthly Subscription Fees payable for Services provided during the Service Period for each 1% by which Percentage Uptime is less than the Availability Requirement, such credit not to exceed 100%.
(f) Availability and Service Availability Credits. The parties acknowledge and agree that each of the Service Availability Credits assessed pursuant to Section 1.7: (a) is a reasonable estimate of the diminished value of the Services that may arise from the corresponding service error, which would be impossible or very difficult to accurately estimate as of the Effective Date; (b) is not intended as, and should not be deemed to be, a penalty or forfeiture; and (c) may be credited or set off against any Total Monthly Subscription Fees or other charges payable to Form.io under this Agreement.
1.8 Changes 1.1 Form.io reserves the right, in its sole discretion, to make any changes to the Services that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of the Services to its customers; (ii) the competitive strength of, or market for the Services; or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable law, provided that the above changes shall not impact the material functions of the Services. In any case, Form.io warrants the backward compatibilities between the versions of the Software. Form.io shall provide Customer with thirty (30) days’ advanced notice prior to any material changes to the Services.
1.9 Suspension Form.io may, directly or indirectly, suspend, Customer’s or any other person’s access to or use of all or any part of the Services, without incurring any resulting obligation or liability, if: (a) Form.io receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires Form.io to do so without prior notice; or (b) Customer is, has been, involved in any fraudulent, misleading or unlawful activities relating to or in connection with any of the Services. This Section 1.9 does not limit any of Form.io’s other rights or remedies under this Agreement.
1.10 Subcontractors Form.io may from time to time in its discretion, engage third parties to perform Services (each, a “Subcontractor”). In any case, Form.io shall remain solely responsible for the complete fulfillment of its obligations under the Agreement.
1.11 Third Parties The Services may operate, interface or be delivered with software or other technology that is licensed from and owned by third parties (“Third Party Licensors”). Customer agrees that (a) it will use third party material in accordance with this Agreement, (b) no Third Party Licensor makes any representation or warranty to Customer concerning the Services, and (c) no Third Party Licensor will have any obligation or liability to Customer as a result of this Agreement or Customer’s use of the Services, it being agreed that Form.io shall be solely responsible for any violations or breaches of this Agreement caused by such Third Parties software or technology.
ARTICLE II: RESTRICTIONS AND RESPONSIBILITIES
2.1 End User Consent to Use End User Data. Customer warrants that Customer shall have obtained, either directly or through a third party, all rights and consents necessary from any End User to use End User Data prior to uploading or submitting any End User Data to Form.io.
2.3 Customer Applications. CUSTOMER AGREES THAT FORM.IO MAY MONITOR USE OF THE SOFTWARE TO ENSURE QUALITY, IMPROVE FORM.IO’S PRODUCTS AND SERVICES, AND VERIFY CUSTOMER’S COMPLIANCE WITH THIS AGREEMENT. This monitoring shall be limited to Form.io accessing and using Customer Applications. All Confidentiality provisions outlined in Article IV of this Agreement shall be applicable to such monitoring.
2.4 Input of End User Data. Form.io is not responsible for the input or accuracy of End User Data. Form.io does not provide End User Data and can only provide form and data management services in accordance with this Agreement.
2.5 Prohibited Use. Except as expressly provided in this Agreement, in particular as part of the Intended Use, Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code, or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services; modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Form.io or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.
2.6 No Export. Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof 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.
2.7 Governmental Use. The Software and Documentation are provided with restricted rights. Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph (c)(1) of the Commercial Computer Software – Restricted Rights clause at FAR 52.227-19, subparagraph (c)(1)(ii) of The Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, or subparagraph (d) of the Commercial Computer Software – Licensing at NASA FAR supplement 16-52.227-86, or their equivalent, as applicable.
2.8 Customer Systems and Cooperation. Customer shall at all times during the Term: (a) set up, maintain and operate in good repair all Customer Systems on or through which the Services are accessed or used; and (b) provide all cooperation and assistance as Form.io may reasonably request to enable Form.io to exercise its rights and perform its obligations under and in connection with this Agreement.
2.9 Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by Section 2.5, Customer shall promptly: (a) take all reasonable and lawful measures within its control that are necessary to stop the activity or threatened activity and to mitigate its effects; and (b) notify Form.io of any such actual or threatened activity.
ARTICLE III: PAYMENTS OF FEES
3.1 Fees. Customer will pay Form.io the then applicable and undisputed fees in accordance with the applicable Subscription Plan for the Services (the “Subscription Fees”). If Customer believes that Form.io has billed Customer incorrectly, Customer must contact Form.io no later than thirty (30) calendar days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Form.io’s accounting and finance department.
3.2 Billing. Customer agrees to pay the Subscription Fees in accordance with the Subscription Plan. The Subscription Plan will continue month-to-month and automatically renew unless terminated in accordance with Article V. Customer agrees to provide a current, valid, accepted method of payment. Form.io will bill the monthly Subscription Fees fee to Customer’s payment method. The Subscription Fee remains for the same for each monthly term no matter if Customer accesses the Services during said monthly term. EVEN IF CUSTOMER DOES NOT USE THE SERVICES, CUSTOMER WILL BE RESPONSIBLE FOR ANY SUBSCRIPTION FEES UNTIL THE SUBSCRIPTION PLAN IS CANCELLED IN ACCORDANCE WITH ARTICLE V.
3.3 Taxes. Customer shall be responsible for any and all sales taxes associated with Services other than U.S. taxes based on Form.io’s net income. Taxable services include the technology based subscription fees associated with the contract and any other hosting or product related services. Any consulting and integration professional services are considered non-taxable services and Customer will not be charged taxes on these types of services. Notwithstanding the foregoing, Customer will not make deductions from any fees to be paid to Form.io hereunder for federal, state or municipal income taxes or for social security taxes, unless otherwise required to do so by governmental regulations. Form.io shall be responsible for and shall pay all federal, state or municipal taxes with respect to compensation, wages, or other remuneration for any services to be performed pursuant to this Agreement and shall indemnify, defend, and hold harmless Customer from and against all such taxes and shall comply with all governmental regulations with respect thereto, including the filing of all necessary reports and returns.
ARTICLE IV: PAYMENTS OF FEES
4.1 Reservation of Rights. Nothing in this Agreement grants any right, title or interest in or to any intellectual property rights in or relating to, the Services or third-party materials, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Services and the third party software or technology are and will remain with Form.io. All right, title, and interest in the third-party materials are and will remain with the respective rights holders. In addition, Form.io acknowledges and agrees that all intellectual property rights, title and interest, in and to the Customer Applications and any related third party component are and will remain with Customer and its respective rights holders.
4.2 Proprietary Information. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Form.io includes non-public information regarding features, functionality and performance of the Services. Proprietary Information of Customer includes Customer Data. The Receiving Party agrees: (a) to take reasonable precautions to protect such Proprietary Information; and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. Neither Party shall disclose the other Party’s Confidential Information to anyone other than their adequately trained employees, agents and/or independent contractor(s) under their direction and/or control with a need to know or as otherwise authorized by the other Party in writing.
4.3 Disclosure of Proprietary Information. Notwithstanding the foregoing, in the event that either party (“Disclosing Party”) is subpoenaed, demanded, requested, or ordered to testify or otherwise to disclose any confidential or Proprietary Information, whether in a legal or a regulatory proceeding or otherwise (a “Disclosure Order”), the Disclosing Party or its representative shall immediately, but in no event less than five (5) business days from receipt of a Disclosure Order and prior to any such disclosure, notify the other party of each such Disclosure Order so that the Disclosing Party may seek to prevent disclosure or, if that cannot be achieved, the entry of a protective order or other appropriate protective device or procedure in order to assure, to the extent practicable, compliance with the provisions of this Agreement and the protection of the other party’s legitimate business interests. In the event that a Disclosure Order requires the Disclosing Party to act with less than five (5) days of its receipt of such Disclosure Order, the Disclosing Party shall within one (1) day of such receipt notify the other party pursuant to the terms hereof. The notification provisions contained herein shall not apply in the event the Disclosure Order prohibits the Disclosing Party from notifying the other Party. Upon receipt of Disclosure Order, the Disclosing Party shall not produce or otherwise disclose confidential or Proprietary Information unless and until the other party has given written permission to do so, or the other party seeks relief and a valid order of said court or tribunal requiring disclosure be entered. In the case of any required disclosure, Disclosing Party shall disclose only that portion of the confidential or Proprietary Information that the Disclosing Party is ordered to disclose based on an opinion of its counsel. The other party agrees to pay the Disclosing Party’s legal fees for its compliance with this Section 4.3, with the other party’s prior written approval and provided that the legal or regulatory proceeding is not instituted or instigated by the Disclosing Party and further provided that the Disclosing Party segregates such fees from any other legal fees. Nothing contained herein shall require the Disclosing Party to violate law in order to maintain compliance with this Section 4.3. This provision shall survive termination or expiration of this Agreement.
4.4 Limitations on Confidentiality Restrictions. Confidential information shall not include information which is (a) in or becomes publicly available other than by disclosure by the receiving party in violation of this Agreement, (b) demonstrably known to the other party previously, (c) independently developed by the receiving party without any use of confidential information, (d) rightfully obtained by the receiving party from third parties, or (e) is required to be disclosed by the receiving party as a matter of law (provided that the receiving party will use all reasonable efforts to provide the disclosing party with prior notice of such disclosure and to obtain a protective order therefor, if the receiving party is not prohibited by law from providing such notice). This provision shall survive termination or expiration of this Agreement.
4.5 Ownership of Customer Data. Customer represents and warrants that is owns, and shall continue to own throughout the Term of this Agreement, all right, title and interest in and to the Customer Data. Form.io does not acquire any ownership of any Customer Data. Throughout the Term of this Agreement, and for the sole purpose of enabling Form.io to provide and improve the Services under Hosted Solution subscriptions, Customer grants Form.io an irrevocable, worldwide, royalty-free, and non-exclusive license to use, process, host, and store Customer Data submitted to Form.io.
4.6 Ownership of End User Data. Customer represents and warrants that it owns, and shall continue to own throughout the Term of this Agreement, all rights and interests to use End User Data in accordance with this Agreement. Form.io does not acquire any ownership of any End User Data. Throughout the Term of this Agreement, and for the sole purpose of enabling Form.io to provide and improve the Services under Hosted Solution subscriptions, Customer grants to Form.io an irrevocable, worldwide, royalty-free, and non-exclusive license to use, process, host, and store End User Data submitted to Form.io.
4.7 Confidential Information After Expiration or Termination. Upon the expiration or termination of this Agreement for any reason, each party shall promptly destroy the Confidential Information of the other party and shall certify the same in writing at the request of the Disclosing Party.
ARTICLE IV: TERMS AND TERMINATION
5.1 Term. This Agreement, and the license granted under this Agreement, shall commence the Effective Date and shall automatically renew on a monthly basis unless otherwise terminated as described in this Article V (the “Term”).
5.2 Termination for Convenience. Customer may terminate the Agreement at any time and from time to time. Customer must cancel the applicable Subscription Plan before the next monthly period in order to avoid billing of the next month's Subscription Fees. Form.io may terminate the Agreement upon one hundred eighty (180) calendar days’ notice to Customer. Upon termination for convenience by Form.io, Customer’s subscription shall expire on the last day of the calendar month after the 180 day notice period ends.
5.3 Termination Upon Breach. In addition to any other remedies it may have, Form.io may (a) terminate this Agreement upon thirty (30) calendar days’ notice, if Customer materially breaches any of the terms or conditions of this Agreement; or (b) immediately terminate this Agreement if any of Customer’s Form.io accounts are sixty (60) days past due. Customer will pay in full for the undisputed Services up to and including the last day on which the Services are provided. Customer shall be entitled to a refund of any unearned fees.
5.5 Rights on Termination. On termination, all rights granted to Customer under this Agreement cease and Customer will promptly cease all use and reproduction of the Software and Documentation. Without limitation Articles IV, VII, VIII, and IX will survive termination or expiration of this Agreement as will any cause of action or claim of either party, whether in law or in equity, arising out of any breach or default.
ARTICLE VI: SECURITY
6.2 Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data; (b) all information, instructions and materials provided by or on behalf of Customer in connection with the Services; (c) Customer Systems; (d) the security and use of Customer’s access credentials; and (e) all access to and use of the Services directly or indirectly by or through the Customer Systems, with or without Customer’s knowledge or consent, including the use of all the results obtained from, and all conclusions, decisions and actions based on, such access or use.
6.3 Access and Security. Customer shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all access credentials and protect against any unauthorized access to or use of the Services; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data or End User Data for processing by the Services.
6.4 Data Backup. Form.io’s information technology infrastructure, including computers, software, databases, electronic systems and networks are programmed to perform routine data backups from time to time. In the event of any loss, destruction, damage or corruption of Customer Data caused by the Services, Form.io will, as its sole obligation and liability and as Customer’s sole remedy, restore the Customer Data from Form.io’s then most current backup of such Customer Data.
ARTICLE VII: REPRESENTATIONS AND WARRANTIES
7.1 Mutual Representations and Warranties. Each party represents and warrants to the other party that: (a) if Customer is a corporation or other entity, it is duly organized, validly existing and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization; (b) it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants or is required to grant under this Agreement; (c) the execution of this Agreement by its representative has been duly authorized by all necessary corporate or organizational action of such party; and (d) when executed, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
7.2 Additional Form.io Representations, Warranties and Covenants. warrants that (a) the Software and the Services will operate in compliance with the Agreement and the Documentation; (b) it shall use reasonable efforts consistent with prevailing industry standards for similar services to maintain the Services in a manner which minimizes errors and interruptions in the Services; (c) it has implemented reasonable processes and systems for the protection and security of the Confidential Information; (d) it shall perform the Services in a professional and workmanlike manner; and (e) it does not and will not infringe, misappropriate, or otherwise violate any intellectual property rights or any privacy or other rights of any third party. In the event that Form.io breaches any warranty set forth in this Section 7.2, Form.io shall use its best efforts to replace any defective Software within seven (7) days notification by Customer of such defect.
7.3 Additional Customer Representations, Warranties and Covenants. Customer represents, warrants and covenants to Form.io that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data and End User Data so that, as received by Form.io and processed in accordance with this Agreement, they do not and will not infringe, misappropriate or otherwise violate any intellectual property rights, or any privacy or other rights of any third party or violate any applicable law.
7.4 DISCLAIMER OF WARRANTIES. 1.1 EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 7.1 AND SECTION 7.2, ALL SERVICES ARE PROVIDED “AS IS” AND FORM.IO HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND FORM.IO SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, FORM.IO MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES EXCEPT IF AND TO THE EXTENT EXPRESSLY SET FORTH IN THE SUBSCRIPTION PLAN OR DOCUMENTATION, OR ERROR FREE.
ARTICLE VIII: INDEMNIFICATION
8.1 Form.io Indemnification. Form.io shall indemnify, defend and hold harmless Customer, Affiliates, resellers, and their officers, directors, employees, consultants, agents, permitted successors and permitted assigns (each, a “Customer Indemnitee”) from and against any and all losses incurred by such Customer Indemnitee arising out of or relating to any claim, suit, action or proceeding (each, an “Action”) by a third party (other than an affiliate of a Customer Indemnitee) to the extent that such losses arise from:
(a) any allegation in such Action that the use of the Services and/or the Software (excluding Customer Data) in compliance with this Agreement infringes an intellectual property right. The foregoing obligation does not apply to any Action or losses arising out of or relating to any:
(i) access to or use of the Services in combination with any hardware, system, software, network or other materials or service not provided or authorized in writing by Form.io, in the event that such Action is the result of such combination;
(ii) modification of the Services other than: (A) by or on behalf of Form.io; or (B) with Form.io’s written approval in accordance with Form.io’s written specification;
(iii) failure to timely implement any modifications, upgrades, replacements or enhancements made available to Customer by or on behalf of Form.io provided that (A) such modifications, upgrades, replacements or enhancements do not alter the functionalities and/or performances of the Services and/or the Software; and (B) if such modifications, upgrades, replacements, or enhancements had been implemented, the Action would have been prevented;
(iv) any act described in paragraph 8.2 whether or not the same results in any Action against or losses by any Form.io Indemnitee;
(b) allegation of facts that, if true, would constitute Form.io’s breach of any of its representations, warranties, covenants or obligations under this Agreement;
(c) negligence or more culpable act or omission (including recklessness or willful misconduct) by Form.io or any third party on behalf of Form.io in connection with this Agreement; or
(d) any violation of applicable laws or regulations Form.io, including without limitation laws regarding data protection and discrimination.
8.2 Customer Indemnification. Customer shall indemnify, defend and hold harmless Form.io and its Subcontractors and its Affiliates, and each of its and their respective officers, directors, employees, agents, successors and assigns (each, a “Form.io Indemnitee”) from and against any and all losses incurred by such Form.io Indemnitee in connection with any Action by a third party (other than an affiliate of a Form.io Indemnitee) to the extent that such losses arise out of or relate to any: (a) Customer Data or End User Data, including any processing of Customer Data or End User Data by or through the Software or Services in accordance with this Agreement; (b) any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of Customer, including Form.io’s compliance with any specifications or directions provided by or on behalf of Customer to the extent prepared without any contribution by Form.io infringes an intellectual property right; (c) allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants or obligations under this Agreement; or (d) negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer or any third party on behalf of Customer, in connection with this Agreement. The foregoing obligation does not apply to any Action or losses out of or relating to any act described in paragraph 8.1.
8.3 Indemnification Procedure. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 8.1 or Section 8.2, as the case may be. The party seeking indemnification (the “Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Action and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 8.3 will not relieve the Indemnitor of its obligations under this Article 8 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
8.4 Mitigation. If any of the Software and/or Services are, or in Form.io’s opinion are likely to be, claimed to infringe, misappropriate or otherwise violate any third-party intellectual property right, or if Customer’s use of the Services is enjoined or threatened to be enjoined, Form.io may, at its option and sole cost and expense: (a) obtain the right for Customer to continue to use the Software and/or Services as contemplated by this Agreement; (b) modify or replace the Software and/or Services, in whole or in part, to seek to make the Services (as so modified or replaced) non-infringing, while providing equivalent features, functionality, and performance, in which case such modifications or replacements will constitute the Software and/or Services, as applicable, under this Agreement; or (c) by written notice to Customer, terminate this Agreement with respect to all or part of the Services, and require Customer to immediately cease any use of the Services or any specified part or feature thereof.
ARTICLE XI: LIMITATIONS OF LIABILITY
NEITHER PARTY IS LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING THE LOSS OF PROFITS, REVENUE, DATA, OR WITH RESPECT TO FORM.IO, USE OR COST OF PROCUREMENT OF SUBSTITUTE GOODS INCURRED BY CUSTOMER OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY, EVEN IF THE CONCERNED PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS OTHERWISE EXPRESSLY STATED IN THE AGREEMENT, EACH PARTY’S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO FORM.IO UNDER THIS AGREEMENT.
ARTICLE X: GENERAL
10.1 Entire Agreement. Form.io agrees to accept, assign, and evaluate Customers and Customer’s End Users regardless of race, sex, sexual orientation, color, religion, creed, national origin or ancestry, age, military or veteran status.
10.2 Entire Agreement. This Agreement, together with the Subscription Plan and any documents referenced herein, 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. In the event of any conflict between this Agreement and any “click through,” “click wrap,” automatic update agreements, or other agreement between Form.io and Customer, this Agreement shall govern. Form.io agrees that no such individual agreements or acknowledgements of any kind will be presented to End Users.
10.3 Severability; Waiver. 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. The failure of either party to enforce any provision of this Agreement shall not be deemed a waiver of the provisions or of the right of such party thereafter to enforce that or any other provision.
10.4 Limitations Period. No action arising out of or in connection with this Agreement or the transactions contemplated by the Agreement may be brought by either party against the other more than 365 days after knowledge of the action accrues.
10.5 Governing Law and Venue. This Agreement shall be governed by the laws of the State of Texas without regard to its conflict of laws provisions. Each Party agrees that any action at law or in equity arising out of or relating to this Agreement, shall be filed only in the state or federal courts located in Dallas County, Texas.
10.6 Dispute Resolution. In the event of any dispute between the parties arising out of this Agreement, the parties shall first attempt to resolve the dispute via non-binding mediation with a mutually agreed upon mediator via phone or video conference, or, if in person, in Dallas County, Texas. In the event that such dispute cannot be resolved at mediation, then it shall be resolved by arbitration under the rules of the American Arbitration Association by an arbitrator agreed upon in writing by the parties. In the event the parties cannot agree upon the choice of an arbitrator, each party shall appoint one individual representative and the party representatives shall, between themselves, chose an arbitrator.
10.7 Assignment. Neither Party shall assign, sub-license, sub-contract, charge or otherwise encumber any of its rights or obligations under this Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed except that either party may assign this Agreement or any of its rights or obligations hereunder to any Affiliate or to any entity which succeeds to all or substantially all of the concerned party’s assets and business subject to the other party’s information in writing. Any attempted assignment in violation of this Section 10.7 shall be null and void.
10.8 Relationship. No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither Party has any authority of any kind to bind the other Party in any respect whatsoever.
10.9 Public Announcements. Neither party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or, unless expressly permitted under this Agreement, otherwise use the other party's trademarks, service marks, trade names, logos, domain names, or other indicia of source, association, or sponsorship, in each case, without the prior written consent of the other party, which consent shall not be unreasonably withheld, provided, however, that Form.io may, without Customer's consent, include Customer's name and other indicia in its lists of Form.io’s current or former customers of Form.io in promotional and marketing materials. This provision shall survive termination or expiration of this Agreement.
10.10 Attorney’s Fees. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover reasonable costs and attorneys’ fees.
10.11 Notice. 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 e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
Open Source. This list is current as of October 31, 2017 and may be amended from time to time, without notice, by Form.io in its sole discretion. An updated list may be found at https://form.io/#/opensource.
This Subscription Plan is entered into between Customer and Form.io, LLC, a Texas limited liability company with offices at 13770 Noel Road #801872 Dallas, Texas 75380. This Subscription Plan incorporates the Form.io Technology Services Agreement for Hosted Solution. This Agreement is entered into as of the Effective Date. Terms not defined in this Subscription Plan are defined in the Form.io Technology Services Agreement for Hosted Solution.
Customer orders from Form.io the items in this Subscription Plan and agrees to pay the related fees.
|Form.io Subscription Type||Basic/Independent/Team Pro/Commercial Plan|
|Renewal||Automatically renews on a monthly basis.|
|Total Monthly Subscription Fee||
$XXX USD per month per EACH individual project defined as a separate project placards on the Form.io Portal and corresponding to each Customer Application.
Platform Deployment Fee:
$XXX USD per month per EACH group of three (3) instances of the then current Form.io API Server Platform software deployed to Customer Systems via Docker containers
$150.00 USD per hour for direct developer support beyond Form.io standard Support (as defined in Section 1.6 of the Form.io Technology Service Agreement), as may be requested in advance by Customer at their option.
Custom Software Development Services
$150.00 USD per hour for custom software development services as may be requested in advance by Customer at their option.
New Feature Capability Modules:
Additional major features and capabilities not currently available in the Form.io Software will be priced separately at the time of their introduction to the market by Form.io.
|Deliverables||Form.io shall deliver to Customer access to the Form.io form creation and data management platform through the Form.io Portal and shall deploy Software to be stored on Customer Systems.|
Unlimited access to the Form.io Portal (located at https://portal.form.io) via unique authenticated user
accounts for an unlimited number of users.
Unlimited use of the Form.io Portal (located at https://portal.form.io) to create customized projects that contain an unlimited number of customized forms, resources, API connections, and actions, as is enabled by the Form.io platform.
Ability to integrate such forms and corresponding submission data into Customer Applications as is enabled by the Form.io platform.
|Other Services Provided||
Delivery of the current Form.io API Server Platform portion of the Software deployed to Customer Systems
via Docker containers
Updates to the Form.io Software at no charge.
Prioritized email support of customer-defined issues (as defined in Section 1.6 of the Form.io Technology Services Agreement) at no charge.
1. You (the Customer) order from Form.io the items in this Subscription Plan and agree to pay the related fees. All fees are in U.S. Dollars.
2. This Subscription Plan is subject to the Form.io Technology Services Agreement.
This Subscription Plan is between Form.io, LLC and Customer, and is effective as of signing up on the Form.io platform.