GoFormz Software-As-A-Service Terms of Use Agreement



Updated: April 15, 2016

GOFORMZ, INC., TERMS OF SERVICE

This is a legal agreement between you and GoFormz, Inc. ("GoFormz"), a Delaware corporation with its principal offices located at 655 W Broadway, Suite 200, San Diego, California, 92101. Your use of GoFormz's Internet site (the 'Site') or any of the software subscription service offerings or other services offered on the Site including any off-line or third party components, data, lists, reports, dashboards, templates or services (collectively, the 'Services') is subject to these Terms of Use (this "Agreement"). This Agreement governs your access to and use of the Services and takes effect when, upon presentation of these terms, you click an "I Accept" button or check box labeled with terms of acceptance or, if earlier, upon your use of any of the Services (the "Effective Date").  You represent and warrant that (i) you have full legal authority and capacity to enter into this Agreement, whether for yourself or on behalf of another person or entity; (ii) you have fully read and understand this Agreement; and (iii) if you are entering into this Agreement on behalf of another person or entity, you agree to this Agreement on the other person or entity's behalf.  GoFormz may modify this Agreement at any time without notice to you by posting a revised Agreement on the Site. Your continued use of the Site constitutes your binding acceptance of this Agreement, including any modifications that GoFormz makes. You are responsible for regularly reviewing this Agreement.

THIS AGREEMENT CONTAINS AN ARBITRATION AGREEMENT, WHICH WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST US TO FINAL, BINDING ARBITRATION.  UNDER THE ARBITRATION AGREEMENT, YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST GOFORMZ ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, YOU WILL ONLY BE PERMITTED TO SEEK RELIEF ON AN INDIVIDUAL BASIS, AND YOU ARE WAIVING YOUR RIGHT TO A JURY TRIAL AND YOUR RIGHT TO HAVE YOUR CLAIMS DECIDED BY A JUDGE OR JURY.

1        Services

1.1           Right to Use. Subject to the terms of this Agreement, during the Term, you may (i) use the GoFormz Service and (ii) use any Software provided by GoFormz as part of the Service, subject to the terms of any End User License Agreement associated with such Software.  Additionally, if your Subscription includes authorization to use the GoFormz API, then subject to the terms of this Agreement, during the Term, you may also integrate the Services into any of your Applications.  You will adhere to all laws, rules, and regulations applicable to your use of the Services and Software, including the Acceptable Use Policy, any applicable End User Licensing Agreements, the Trademark Use Guidelines, and any other applicable Policies as defined below.  GoFormz reserves all other rights.  Rights to use GoFormz Services by an End User may not be transferred from one individual to another unless the original no longer requires, and is no longer permitted, access to the Services.

1.2           Additional Conditions.  Some of the Services may be subject to additional conditions either posted on the Site or contained in Purchase Order documents that describe order-specific information, such as Services names, billing information, subscription prices, user quantities, and license terms. Your use of the Services is subject to those conditions, which are incorporated into this Agreement by reference. In the event of an inconsistency between this Agreement and any additional conditions, the provisions of such additional conditions will prevail.

1.3           Communications Authorization.  You understand and agree that the Services may include communications such as service announcements and administrative messages from GoFormz or GoFormz's partners. You will not be able to opt out of receiving these service announcements and administrative messages while using the Site and Services until you send GoFormz a specific written notice pursuant to Section 14.2 requesting the termination of your subscription and that your details be eliminated from the Site and any mailing list. You also understand that GoFormz's Services may include advertisements.

2        Preview and Free Trial Releases

2.1           Preview Releases.  GoFormz may make Preview Releases available. Preview Releases may not be covered by support.  Preview Releases may be subject to reduced or different security, compliance, and privacy commitments.  GoFormz may change or discontinue Preview Releases at any time without notice.  GoFormz is under no obligation to provide Preview Releases and may, in its exclusive discretion, choose to not release a Preview Release into general availability. Preview Releases are provided 'as-is', 'with all faults', and 'as-available,' and are excluded from all limited warranties provided in this Agreement.

2.2           Free Trial. GoFormz may, on occasion and in its sole discretion, offer a free trial membership regarding certain Services or Software.  By accessing or using the Site, Services or Software, as a part of any such free trial membership, you agree to the terms of any such trial as well as the terms of this Agreement.  GoFormz may change or discontinue free trial memberships at any time without notice.  GoFormz is under no obligation to provide or continue free trial membership.  GoFormz is under no obligation to keep or maintain any of your content generated through a free trial unless the free trial is subsequently converted to a paid subscription.  Accessing or using the Site, Services, or Software, as a part of any such free trial membership is provided 'as-is', 'with all faults', and 'as available', and are excluded from all limited warranties provided in this Agreement. 

3        Changes and Updates

3.1           Changes to the Services.  GoFormz may make commercially reasonable updates to any of the Services or Software (including the Services as a whole).  If GoFormz makes a material change to the Services or Software, GoFormz will notify you.

3.2           Changes to the APIs.  GoFormz may make commercially reasonable updates to any of the APIs for the Services.  In the event of a material change to the APIs, GoFormz will use commercially reasonable efforts to continue supporting the previous version of such API for the twelve months following the material change, unless if doing so (a) would pose a security or intellectual property issue, (b) is unduly burdensome, or (c) is needed to comply with the law or requests of governmental entities.

4        Team Usage Rights

4.1           If you are an Account Administrator, you may permit such number of End Users as has been agreed between you and GoFormz to access and make use of the Site, Services, and Software, subject to the terms of this Agreement and to any applicable Policy.  Account Administrators shall ensure that the total number of End Users does not exceed the maximum number of user subscriptions authorized by and purchased from GoFormz (each of which user subscription represents a unique, named End User).  End Users may not sublicense, lease, assign or otherwise transfer (including by operation of law) their subscription, username, or right to use the GoFormz Site, Services, or Software to any third party.  You, the Account Administrator, are solely responsible for the manner in which your End Users use the Site, Services, and Software, and for ensuring that all of your End Users comply with all of the terms and conditions of this Agreement and all Policies.  Any violations of the terms and/or conditions of this Agreement by an End User shall be deemed a violation thereof by you.

5         Proprietary Interests, Rights, and Licenses

5.1           Reservation of Rights.  Except as expressly set forth in this Agreement, this Agreement does not grant either party any rights, implied or otherwise, to the other's Content, Services, or Software or any of the other's intellectual property.  As between the parties, you own all Intellectual Property Rights in your Content, and GoFormz owns all Intellectual Property Rights in the Site, Services, Software, and its Data.

5.2           License to Host Content.  You grant GoFormz, its affiliates and applicable contractors a worldwide, royalty-free, nonexclusive, sublicensable license to host, copy, transmit and display your Content for your use of the Services, as reasonably necessary for GoFormz to provide the Services in accordance with this Agreement.  Subject to the limited licenses granted herein, GoFormz acquires no right, title or interest from you or your licensors under this Agreement in or to any of your Data.

5.3           Adequate Rights.  You represent and warrant that (i) you hold sufficient rights in your Content necessary to grant the rights contemplated by this Agreement and (ii) none of your Content, or the use thereof by you or any End User or other third party under your control, will violate the Acceptable Use Policy.

5.4           Use of Feedback.  Nothing in this Agreement or in the parties' dealings arising out of or related to this Agreement will restrict GoFormz's right to use, profit from, disclose, publish, or otherwise utilize any Feedback, without obligation to you.  You hereby irrevocably assign to GoFormz all right, title, and interest in and to the Feedback. 

5.5           Neither you nor any End User may use the Service or Software in any manner or purpose other than as permitted by this Agreement.  You will not, and will not allow any End User or other Third Party under its control, to (or attempt to) (a) modify, alter, tamper with, repair, or otherwise create derivative works of any Service or Software (except to the extent Services or Software are provided to you under a separate license expressly permitting the creation of derivative works), (b) reverse engineer, disassemble, or decompile the Site, Software or Services, or access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes (except to the extent such restriction is expressly prohibited by applicable law), (c) access or use the Software or Services in a way intended to avoid incurring fees or exceeding usage limits or quotas, (d) resell or sublicense the Services or Software (except to the extent a separate agreement with GoFormz expressly authorizes you to resell or sublicense the Services or Software), or (e) process or store any of your Content that is subject to the International Traffic in Arms Regulations maintained by the United States Department of State.  Unless explicitly stated otherwise in writing by GoFormz, GoFormz disclaims any intent to use the Services to create obligations under HIPAA and makes no representation that the Services satisfy any requirements under HIPAA.  If you are (or become) a Covered Entity or Business Associate, as defined in HIPAA, you will not use the Services for any purpose or in any manner involving Protected Health Information (as defined in HIPAA) unless you receive prior written consent to such use from GoFormz.  All licenses granted to you under this Agreement are conditional on your continued compliance with this Agreement and will immediately and automatically terminate if you fail to comply with any term or condition of this Agreement.  During and after the Term, you will not assert, nor will you authorize, assist, or encourage any third party to assert, against GoFormz or any of its affiliates, customers, vendors, business partners, or licensors, any patent infringement or other intellectual property infringement claim regarding any Software or Services used by you or End Users.

6        Third Party Integrations, Sites, Products, and Services

6.1           Third Party Integrations.  GoFormz or third parties may make available data integration with third party products or services, for example, the capability to transmit data from your GoFormz Account to a third party provider ('GoFormz Integration Services').  Additionally, if you use the GoFormz API to exchange information between GoFormz's Services system and a third-party system, User Data may be transmitted outside of either system.  We do not warrant or support non-GoFormz applications, products, or services, whether or not they are designated by GoFormz as a 'partner', as certified, or otherwise, unless expressly provided otherwise in a separate, written agreement between the parties and executed by GoFormz.

6.2           If you choose to use GoFormz Integration Services with a third party provider, you grant GoFormz permission to allow the third party provider to access your Content as required for that Integration Service.  GoFormz is not responsible for any disclosure, modification or deletion of your Content resulting from such integration with a third party provider.

6.3           The Services may contain features designed to interoperate or capable of interoperation with third party applications, products, or services.  To use such features, you may be required to obtain access to such applications, products, or services from their providers, and may be required to grant GoFormz access to Accounts on such third party applications, products, or services.  GoFormz cannot guarantee the continued availability of such Service features, and may cease providing them without entitling you to any refund, credit, or other compensation if, for example, the provider of a third party application, product, or service ceases to make said application, product, or service available for interoperation with GoFormz Services in a manner acceptable to GoFormz.

6.4           If and to the extent that you create any applications using the GoFormz API or utilize the GoFormz Integration Services, you represent that neither you nor your applications will, without appropriate prior user consent or except to the extent required by applicable law, (1) modify the content of User Data in a manner that adversely affects the integrity of that User Data, (2) disclose User Data to any third party, or (3) use User Data for any purpose other than (in the case of the GoFormz API) providing application functionality to users of your applications. A modification or disclosure of User Data does not violate either of the two preceding sentences to the extent it results from an activity of an authorized user using your application and a reasonable user would expect that modification or disclosure of its User Data to occur as a result of that activity.

6.5           GoFormz is only responsible or liable for the content posted on the Site to the extent created by GoFormz. The Site may contain links to external Web sites and information provided on such external websites by GoFormz partners and third-party service providers. GoFormz shall not be responsible for the contents of any linked Web site, or any changes or updates to such sites. You further agree that GoFormz shall not be directly or indirectly responsible or liable for any damage or loss caused or alleged to be caused by or in connection with your use of or reliance on any content, goods or services available on or through any such linked Web site. Any article, information, data, code, text, software, documentation, graphics, image, marketing material, video, photograph, message, or posting to any forum, wiki, or blog on the Site, whether publicly posted or privately transmitted, is the sole responsibility of the person or entity providing the content.

7        Confidentiality/Intellectual Property Rights

Your Content will be protected from disclosure to third parties by GoFormz with at least the same protective precautions that GoFormz takes to protect its similar proprietary information from unauthorized disclosure. GoFormz will not, without your prior written consent, disclose any of your Content to any thirty party, except to those bona fide individuals whose access is necessary to enable GoFormz to perform its obligations hereunder or as necessary to comply with any legal or governmental order or similar requirement.

8        Fees

8.1           You agree to pay all fees specified in all Purchase Orders according to the terms of this Agreement.  Except as otherwise specified herein or expressly in a Purchase Order, (i) fees are based on Subscriptions purchased and not actual use, (ii) fees paid are non-refundable, (iii) payment obligations are non-cancelable, (iv) Subscription quantities cannot be decreased during the relevant subscription term, and (v) shall be paid in lawful United States currency.   

8.2           Invoicing and Payment.  You will provide GoFormz with valid and up-to-date credit card information or alternative payment method reasonably acceptable to GoFormz.  If you provide GoFormz with credit card information, you authorize GoFormz to charge such credit card for all Services listed in the Purchase Order for the initial subscription term and any renewal subscription term(s) set forth in Section 10.2 (Term of Subscriptions).  Such charges shall be made in advance, either monthly, annually, or otherwise in accordance with the billing frequency specified in the Purchase Order.  If the Purchase Order specifies that payment will be by a method other than credit card, GoFormz will invoice you in advance and in accordance with the relevant Purchase Order.  Unless otherwise stated in the Purchase Order, invoiced charges are due net 30 days from the invoice date.  You are responsible for providing complete and accurate billing and contact information to GoFormz and notifying GoFormz of any changes to such information. 

8.3           Overdue Charges.  If GoFormz does not receive, by the date due, any invoiced amount, then without limiting GoFormz's rights or remedies, (i) the unpaid invoiced amount 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, and/or (ii) GoFormz may condition future subscription renewals and Purchase Orders on payment terms shorter than those specified in Section 8.2 (Invoicing and Payment).

8.4           Suspension of Service and Acceleration.  If any amount owing by you under this or any other agreement for GoFormz Services is thirty or more days overdue (or ten or more days overdue for amounts you have authorized GoFormz to charge to your credit card), GoFormz may, without limiting GoFormz's other rights and remedies, accelerate your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend GoFormz services to you until such amounts are paid in full.  Other than for your paying by credit card or direct debit whose payment has been declined, GoFormz will provide you with at least 10 days' prior notice that your payment is overdue, in accordance with Section 18.4 (Notice) for billing notices, before suspending your services.  GoFormz is under no obligation to provide such notice if you are paying by credit card or direct debit whose payment has been declined.

8.5           Payment Disputes.  GoFormz will not exercise its rights under Section 8.3 (Overdue Charges) or 8.4 (Suspension of Service and Acceleration) if you reasonably and in good faith dispute the applicable charges and are cooperating diligently to resolve the dispute. To the fullest extent permitted by law, you waive any and all claims relating to Fees unless claimed within sixty days after charged (this does not affect any of your rights with your credit card issuer).  Any refunds are at the sole discretion of GoFormz and will be exclusively in the form of credit for the Services.  Nothing in this Agreement obligates GoFormz to extend credit to you, an End User, or third party.

8.6           GoFormz fees do not include any taxes, levies, duties or similar governmental assessment of any nature.  You are responsible for paying all taxes associated with your purchases hereunder, and you will pay GoFormz all of GoFormz's fees without any reduction for taxes.  If GoFormz has the legal obligation to collect or pay taxes for which you are responsible under this section, GoFormz will invoice you and you will pay that amount.  GoFormz is solely responsible for taxes assessable against it based on its income, property, and employees.

8.7           Functionality.  You agree that your payment obligations under this Agreement are not contingent on the delivery of any future functionality or features or dependent on any oral or written public comments made by GoFormz regarding future functionality or features.

9        Storage Capacity

The maximum storage space provided to you at no additional charge may be specified in the Order Schedule. If not so specified, the maximum storage amount for a Service may be set at 1.0 GB by GoFormz, or such other amount generally established by GoFormz for such Service. If the amount of disk storage required exceeds these limits, you will be charged GoFormz's then-current storage fees.

10     Term and Termination; Service Cancellation

10.1        Term.  This Agreement commences upon the Effective Date and continues until all Subscriptions hereunder have expired or have been terminated (the 'Term').

10.2        Term of Subscriptions.  The term of each subscription shall be as specified in the applicable Purchase Order.  Except as otherwise specified in a Purchase Order, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term.  The per-unit pricing of any renewal will be the list price for the relevant subscription time and type as specified on the Subscription Portal at the time of the applicable renewal or, if none specified, the same rate as the expiring subscription term, unless GoFormz notifies you of different pricing at least forty-five days prior to the applicable renewal term.  Except as expressly provided in an applicable Purchase Order, renewal of promotional or one-time priced subscriptions will be at GoFormz's applicable list price in effect at the time of the applicable renewal.

10.3        Termination for Cause.  Either party may terminate this Agreement for cause upon 30 days' written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, but only if written notice is supplied within thirty days of the occurrence of said material breach.  GoFormz may also terminate this Agreement immediately upon notice to you (A) for cause, if any act or omission by you or any End User results in a suspension described in Section 11.1, (B) if GoFormz believes providing the Service could create a substantial economic or technical burden or material security risk for GoFormz, (C) in order to comply with the law or requests of governmental entities, or (D) if GoFormz determines use of the Service or Software by you or any End User or GoFormz's provision of any of the Services to you or any End User has become impractical or unfeasible for any legal or regulatory reason.

10.4        Effect of Termination.  Upon termination of this Agreement: (i) all your rights under this Agreement terminate immediately; and (ii) you remain responsible for all fees and charges incurred through the date of termination, including fees and charges for in-process tasks completed after the date of termination.  

10.5        Post-Termination Data Retention.  Unless GoFormz terminates your use of the Service pursuant Section 10.3 (Termination for Cause), during the 30 days following termination (a) GoFormz will not erase any of your Content as a result of the termination, and (b) you may retrieve your Content only if you have paid all other amounts due.

10.6        No Refund Obligation Upon Termination.  Upon termination by GoFormz of this Agreement or any part thereof in accordance with this Agreement as a result of your breach, negligence or default, GoFormz will have no obligation to refund to you any fees paid by you. The provisions of this section will not apply to those situations defined by law.

10.7        In the event GoFormz (or its successor in interest) permanently ceases to operate the Services, GoFormz will refund to you any pre-paid subscription fees for the remaining months where you no longer have access to the Services.

11     Suspension

11.1        General Terms.  GoFormz may suspend your Account or any End User's right to access or use any portion or all of the Software or Services immediately upon notice to you if GoFormz determines:

(a)   Your use or an End User's use of the Service of Software (i) poses a security risk to GoFormz or any third party, (ii) may adversely impact the Service of Software or the systems of GoFormz or any other GoFormz customers, (iii) may subject GoFormz, its affiliates, or any third party to liability, or (iv) may be fraudulent.

(b)  You or any End User is in breach of this Agreement, including if you are delinquent on any payment obligation for more than thirty days; or

(c)   You have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding. 

11.2        Effect of Suspension.  If GoFormz suspends your right to access or use any portion or all of the Service or Software, (i) you remain responsible for all fees and charges incurred up to and including the date of suspension; (ii) you remain responsible for any applicable fees and charges for any Service or Software to which you continue to have access; and (iii) GoFormz will not erase your Content as a result of your suspension, except as specified elsewhere in this Agreement.

11.3        Suspension Rights Nonexclusive.  GoFormz's right to suspend described in Section 11.1 above is in addition to GoFormz's right to terminate this Agreement pursuant Section 10.3. 

12     Privacy Policy

12.1        All of the information that GoFormz collects from you, such as registration information, is subject to GoFormz's privacy policy and applicable privacy laws. Please go to http://goformz.com/privacy to see GoFormz's full privacy policy. This policy is expressly incorporated into and a part of this Agreement.

12.2        Because GoFormz operates globally, you understand and agree that any personal information that you may provide may be processed by GoFormz and GoFormz may, for example, transfer such information within GoFormz's global operations. If it is necessary for the purposes for which you have shared personal information with GoFormz for GoFormz to share your information within GoFormz's global operations, GoFormz will do so consistent with GoFormz's privacy policy.

12.3        The Site is hosted in the United States. If you are visiting from the European Union or other regions with laws governing data collection and use that may differ from U.S. law, please note that you may transfer your Content to the United States and by providing your Content to GoFormz you represent, warrant, and covenant to GoFormz that: (i) you have the authority and right to enter into this Agreement, to grant the rights granted by you under this Agreement, and to perform your obligations under this Agreement; (ii) any consents or approvals required from any third party or governmental authority with respect to the entering into or the performance of this Agreement by such party, are in place, or will be obtained by you as may be necessary for either party to perform its obligations, (iii) you are authorized to distribute your Content to GoFormz, and (iv) you are not breaching any applicable data privacy rule or regulations, any of your contractual obligations, or any of your internal privacy policies.

12.4        You acknowledge and agree that certain of the Services may be provided by GoFormz's partners, and that your contact information may be provided to such partners in order for them to provide the Services, and such partners may contact you directly regarding other service offerings (you may opt out of receiving information about a partner's other service offerings by following the notice procedure set forth below).

12.5        If you use the GoFormz API or GoFormz Integration Services to exchange or transfer User Data with any third party provider, to the extent the User Data has left the system of either GoFormz or the third party provider, GoFormz is not responsible for the privacy, security or integrity of that User Data.  The representation set forth in Section 12.3 applies to the transfer of User Data pursuant to this paragraph or Section 6.1 through 6.5, inclusive (Third Party Integration).

13     Your Conduct on the Site and other Restrictions

13.1        You and any End User must have an Account and a Token (where applicable) to use the Services and Software.  It is solely your responsibility to create any Accounts, and to manage the security of the Token and passwords for the Accounts, and any use thereof.  If you become aware of unauthorized use of your (or your End User's) passwords, Account or Token, or otherwise believe that a third party may be using your Account without authorization, you will notify GoFormz as promptly as possible.  GoFormz has no obligation to provide you with multiple Tokens or Accounts.

13.2        Acceptable Use Policy Compliance.  You bear sole responsibility for all activities that occur under your Account, whether the activities are undertaken by you, an End User, an employee, or a third party (including your Contractors or Agents) and bear sole responsibility that all such activities under your Account comply with the terms of the Acceptable Use Policy.

13.3        If GoFormz provides you with an administrator user ID and password for accessing the Service, you will assign them to your administrator. You will be responsible, through your administrator, for setting and modifying your and your users' profile and preferences for the Services, authorizing and terminating individual user ID's and passwords and specifying the access rights of those individuals to the Services. The administrator will notify GoFormz if the administrator needs to change the administrator's or any user's ID, and the administrator may do so only by contacting GoFormz at the email address for technical support specified by GoFormz from time to time.

13.4        Unauthorized access to the Site is a breach of this Agreement and a violation of the law. You agree not to access the Site by any means other than through the interface that is provided by GoFormz for use in accessing the Site. You agree not to use any automated means, including, without limitation, agents, robots, scripts, or spiders, to access, monitor, or copy any part of the Site, except those automated means that GoFormz has approved in advance in writing.

13.5        Use of the Site is subject to existing laws and legal process. Nothing contained in this Agreement will limit GoFormz's right to comply with governmental, court, and law-enforcement requests or requirements relating to your use of the Site, which may include disclosing your Content to the applicable authorities. 

14     Indemnification

14.1        You will defend GoFormz and its other affiliated entities from any third party claim, and will pay all damages finally awarded against GoFormz in such claim or amounts agreed to in settlement, arising out of: (i) your use of the Site, Services, or Software; (ii) any use or alleged use of your Accounts or your passwords by any person, whether or not authorized by you; (iii) the content, the quality, or the performance of content that you submit to the Site; or (iv) your violation of this Agreement.

14.2        GoFormz will defend you from any third party claim that your use of GoFormz's proprietary software hosted on the Site infringes such third party's copyright, patent or trademark, and will pay all damages finally awarded against you in such claim. If GoFormz settles the claim, GoFormz will pay all settlement amounts on your behalf. In exchange, you must (i) promptly notify GoFormz if such a claim is asserted against you, (ii) allow GoFormz sole defense of the claim, and (iii) cooperate with GoFormz's requests for reasonable assistance, at GoFormz's expense. GoFormz will not be obligated to indemnify you if you are in violation of this Agreement. If as a result of the infringement or misappropriation your use of the software hosting on the Site is enjoined by a court of law, GoFormz will modify the software to make it non-infringing, acquire a license for you to continue using the software, or if neither option is possible, refund to you the applicable subscription fees paid by you during the twelve (12) month period preceding the injunction. This is your exclusive remedy for a third party's infringement or misappropriation claim against your use of the software hosted on the Site.

15     Warranty; Disclaimers

THE SITE AND THE SERVICES, ITS SOFTWARE, CONTENT AND OTHER MATERIALS, ARE PROVIDED ON AN 'AS IS, AS AVAILABLE' BASIS. GOFORMZ AND ITS AFFILIATES, SUPPLIERS AND PARTNERS MAKE NO WARRANTY, REPRESENTATION, GUARANTY OR CONDITION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE OR NONINFRINGEMENT, OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SITE OR ANY OF THE CONTENT, SERVICES, PRODUCTS, SOFTWARE OR OTHER MATERIALS AVAILABLE THROUGH THE SITE.

16     LIMITATION OF LIABILITY

16.1        TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER GOFORMZ NOR ITS AFFILIATES, SUPPLIERS OR PARTNERS WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THE SERVICES OR THE SITE, ITS SOFTWARE, CONTENT OR OTHER MATERIALS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE OR LOSS OF DATA OR OTHER INTANGIBLE LOSSES.  FURTHER, NEITHER GOFORMZ NOR ITS AFFILIATES WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) YOUR INABILITY TO USE THE SERVICES, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE OR SOFTWARE, (II) GOFORMZ'S DISCONTINUATION OF ANY OR ALL OF THE SERVICES, OR (III) ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICES FOR ANY REASON, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE OR SOFTWARE; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF YOUR CONTENT.

16.2        TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GOFORMZ AND ITS AFFILIATES, SUPPLIERS AND PARTNERS WILL NOT BE LIABLE FOR ANY DAMAGES THAT EXCEED THE TOTAL AMOUNTS PAID BY YOU TO GOFORMZ FOR THE SERVICES DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.

16.3        GOFORMZ WILL NOT BE RESPONSIBLE FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND IN ANY WAY ARISING OUT OF CONTENT YOU ACCESS OR ENCOUNTER ON THE SITE THAT IS SUPPLIED BY THIRD PARTIES.

16.4        SOME STATES/JURISDICTIONS DO NOT ALLOW EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH STATES/JURISDICTIONS, GOFORMZ'S LIABILITY AND THAT OF ITS AFFILIATES, SUPPLIERS AND PARTNERS WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

17     Arbitration

17.1        Any dispute arising out of or relating to this Agreement or the Site will be finally settled by arbitration, except that GoFormz may bring an action in a court of competent jurisdiction with respect to any dispute affecting GoFormz's intellectual property rights whether statutory or contractual. The arbitration will be conducted in accordance with the commercial arbitration rules (the 'Rules') of the American Arbitration Association. Any such controversy or claim will be arbitrated on an individual basis and will not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration will be conducted in San Diego, California, United States, and judgment on the arbitration award may be entered in any court having jurisdiction thereof. All arbitration proceedings will be conducted in English by a single arbitrator selected under the Rules who must be a lawyer and fluent in English. The arbitrator has no authority to award damages in excess of those permitted in this Agreement for any reason. Any award in excess of such limitation will be deemed void as between the parties. Either you or GoFormz may seek any interim or preliminary relief from a court of competent jurisdiction in San Diego, California, necessary to protect the rights or the property of you or GoFormz (or its affiliates, agents, suppliers, and subcontractors), pending the completion of arbitration. 

18     Miscellaneous

18.1        The Site features trademarks, service marks, and logos that are the property of GoFormz and/or its affiliates, suppliers, and partners. The Site also may include trademarks, service marks or logos of other third parties. All of these trademarks, service marks and logos are the property of their respective owners, and you agree not to use them in any manner without the prior written permission of the applicable owner.

18.2        GoFormz may be required by state or federal law to notify you of certain events. You hereby acknowledge and consent that such notices will be effective upon GoFormz's posting them on the Site or delivering them to you through e-mail. You may update your e-mail address by visiting the Services where you have provided contact information. If you do not provide GoFormz with accurate information, GoFormz cannot be held liable if GoFormz fails to notify you. You may have the right to request that GoFormz provide such notices to you in paper format, and may do so by notifying GoFormz pursuant Section 18.3.

18.3        Notice to GoFormz.  To give GoFormz notice under this Agreement, you must contact GoFormz as follows by personal delivery, overnight courier or registered or certified mail to GoFormz, Inc., Contracts Administration, 655 W Broadway, Suite 200, San Diego, California 92101.  GoFormz may update the address for notices to GoFormz by posting a notice on the GoFormz Site. Notices provided by personal delivery will be effective immediately. Notices provided by overnight courier will be effective one business day after they are sent. Notices provided registered or certified mail will be effective three business days after they are sent.

18.4        Notice to You.  GoFormz may provide any notice to you under this Agreement by sending a message to the email address then associated with your Account.  Notices GoFormz provides by email will be effective when GoFormz sends the email. It is your responsibility to keep your email address current. You will be deemed to have received any email sent to the email address then associated with your Account when GoFormz sends the email, whether or not you actually receive the email.

18.5        No Waivers.  The failure by GoFormz to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit GoFormz's right to enforce such provision at a later time. All waivers by GoFormz must be in writing to be effective.

18.6        This Agreement, including any applicable Purchase Order and all terms, conditions, and Policies that are incorporated into these terms by reference, constitute the entire agreement between you and GoFormz and govern your use of the Site and Services, superseding any prior agreements that you may have with GoFormz.  Except as otherwise provided herein, no modification, amendment or waiver of any provision in this Agreement will be effective unless in writing and signed by both parties.  The parties agree that any term or condition stated in any of your order documentation (excluding Purchase Orders) is void.  In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Purchase Order, (2) this Agreement, and (3) the Policies.

18.7        Governing Law; Venue.  This Agreement shall be governed by and construed in accordance with the laws of the State of California, USA (excluding the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is hereby expressly excluded). The parties shall attempt to amicably resolve any controversy, dispute or difference arising out of this Agreement and, failing that, without limitation to the requirements of Section 17.1 (Arbitration), either party may initiate litigation only in the United States District Court for the Southern District of California or, if such court lacks subject matter jurisdiction, in the Superior Court of California, County of San Diego.  The parties hereby submit and consent to personal jurisdiction in said courts and waive any and all defenses regarding personal jurisdiction, venue, inappropriate forum, forum non conveniens, or the enforceability of the consent to jurisdiction set forth in this sentence.

18.8        In connection with this Agreement, each party will comply with all applicable import, re-import, export, and re-export control laws and regulations, including the Export Administration Regulations, the International Traffic in Arms Regulations, and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control.  You are solely responsible for compliance related to the manner in which you (including any and all End Users and third parties under your control) choose to use the Site, Service and Software, including your transfer and processing of your Content, the provision of your Content to End Users, and the region in which any of the foregoing occur.

18.9        Severability.  If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to effect the intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement but the rest of the Agreement will remain in full force and effect.

18.10     Force Majeure.  GoFormz and its affiliates will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond GoFormz's reasonable control, including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.

18.11     Independent Contractors; Non-Exclusive Rights.  GoFormz and you are independent contractors, and neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other.  Both parties reserve the right (a) to develop or have developed for it products, services, concepts, systems, or techniques that are similar to or complete with the products, services, concepts, systems, or techniques developed or contemplated by the other party and (b) to assist third party developers or systems integrators who may offer products or services which compete with the other part's products or services.

18.12     No Third Party Beneficiaries.  This Agreement does not create any third party beneficiary rights in any individual or entity that is not party to this Agreement.

18.13     Assignment. You will not assign this Agreement, or delegate or sublicense any of your rights under this Agreement, without our prior written consent of GoFormz.  Any assignment or transfer in violation of this Section 18.13 will be void.  Subject to the foregoing, this Agreement will be binding upon, inure to the benefit of, and be enforceable by and against the parties and their respective successors and permitted assigns.

18.14     No Waivers.  The failure by GoFormz to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit GoFormz's right to enforce such provision at a later time. All waivers by GoFormz must be in writing to be effective.

18.15      Equitable Relief Available.  Nothing in this Agreement is intended to limit the equitable relief available to either party, and nothing in this Agreement limits the ability of either party to seek equitable relief.

19     Definitions

19.1        In addition to the terms elsewhere defined in this Agreement (including any Policy), the following terms in this Agreements shall have the following meanings:

 'Acceptable Use Policy' means the policy currently available at goformz.com/acceptable-use-policy, as it may be updated by GoFormz from time to time. 

'Account' means a GoFormz Services account.

'API' means an application program interface.

'Application' means any web or other software application.

'Content' means any Data uploaded to your GoFormz Account, whether by you, End User, contractor, or any other third party.

'Data' means text, data, audio, video, images, and any other data of any kind. 

'End User' means any individual or entity that directly or indirectly through another user accesses or uses the Services under your Account.  The term 'End User' does not include individuals or entities when they are accessing or using the Services under their own Account, rather than your Account. 

'Feedback' means all suggested improvements to the Service or Software that you provide to us, including without limitation, comments or suggestions regarding the possible creation, modification, correction, improvement or enhancement of Services or any other GoFormz site, service, or product, or input as to whether you believe GoFormz's development direction is consistent with your own business and IT needs, the technology marketplace in general, and the like.        

'GoFormz API' means the group of API resources offered by GoFormz via which you may develop applications or integrate with third party programs or services. 

 'GoFormz Site' means www.goformz.com and any successor, child, or related site designed by GoFormz. 

'Intellectual Property Rights' means current and future worldwide rights under patent, copyright, trade secret, trademark, and moral rights laws, and all other similar rights. 

'Policies' means the Acceptable Use Policy, the Privacy Policy, all restrictions described on the GoFormz Site, and any other policy or terms referenced or incorporated into this Agreement.  Policies do not include marketing materials or whitepapers referenced on the GoFormz Site. 

'Privacy Policy' means the privacy policy currently referenced at http://goformz.com/privacy, as it may be updated by GoFormz from time to time.

'Purchase Order' means an order for GoFormz Service subscriptions purchased through the GoFormz Subscription Portal or a written instrument you submit that specifies the GoFormz Services subscribed to by you, as in effect and as renewed from time to time. 

'Service' means each of the web services made available by GoFormz or its affiliates, including those web services available at the GoFormz Site.  

'Software' means any and all applications, tools, or other program installed on a personal computer or device for usage, system operation, or diagnostic to facilitate the GoFormz Services.  Without limitation, Software can include Software installed by you or other End User and those downloaded, installed, and used on mobile devices using a software distribution platform, such as an app store or app market. 

The 'Subscription Portal' refers to the web portal available online from which subscription services can either be purchased, activated or renewed and from which contract details or services details can be accessed. 

'Account Administrator' means any entity or organization that has subscribed for more than one End User to the Services or Software. 

'Token' means an alphanumeric key that is uniquely associated with your Account or an Account of one of your End Users. 

'User Data' means your Content as well as electronic data or information submitted or electronically stored by a third-party system interfacing with the Services through the API.