TERMS OF SERVICE
Forms On Fire, Inc., headquartered in Bellevue, Washington, USA (“FOF”, “Us” or “We”) provides FOF products, services and websites (collectively the “FOF Service”) to you, our client, and to all other persons authorized by you to use or access the FOF Service on your behalf, including any company you represent (collectively “you”), subject to your compliance with all terms, conditions and notices contained or referenced in this document (the “Terms”).
Please read these Terms carefully. By using the FOF Service, you are stating that you have read, understood, and agree to be bound by these Terms. If you do not agree to these Terms, you are not permitted to use the FOF Service. If you require an Enterprise or Partner agreement, please contact us to request this option.
1. No Resale of the FOF Service
You agree not to reproduce, duplicate, copy, sell, resell, or exploit for any commercial purposes any portion (except for your app designs and data, to which FOF agrees you retain all rights) of the FOF Service, use of the FOF Service, or access to the FOF Service. If you wish to pursue resale of the FOF Service, contact our sales team to discuss our Partner options.
2. Legal Use Only; No Competitors
You agree not to use the FOF Service to violate any local, state, national, or international law or regulation. You may not sign up to the FOF Service if you are currently employed by, or otherwise associated with, one of our identified competitors. This is to protect us against violation of intellectual property and to protect you from potential litigation from FOF.
3. Ownership and Responsibility for Your Apps
FOF does not claim ownership of any information, data, text, software, music, sound, photographs, graphics, video, messages, tags, or other materials you create, submit or make available for inclusion on or through the FOF Service (your “App Data“). As between FOF and you, you own all rights to your App Data. FOF does not review apps that you create and you agree that you are solely responsible for all of your App Data.
4. Fees and Billing
(a) User License Fees.
Each user that is registered on the FOF Service is subject to a recurring user license fee. A unique, named user login is required and no sharing of logins is allowed. A user may use their login on more than one device but not simultaneously. Simultaneous use under a single login is a violation of our terms. Sometimes there is a need to provide for a generic type login, such as for a reception area. However, that login may only be used on one device at a time and cannot be shared between devices. User license fees are charged at the rates shown in the store of the FOF website.
(b) Subscription and Service Fees.
Any additional subscriptions and/or services, such as professional services (“Pro Services”), that you select are provided at the rates set forth in the Store of the FOF website.
(c) Invoicing and Automatic Renewal.
FOF charges on the first day of every month in advance for all existing users and services enabled on your account. We will promptly generate invoices for this billing and will charge your registered credit card on the invoice due date. Your FOF licenses, subscription and/or services will automatically renew on the first day of each month until you cancel your account, which is done by emailing our support team.
(d) Value Added Tax, Sales Tax and Other Amounts.
Unless otherwise expressly stated, all fees are exclusive of local value added tax, sales tax, other taxes, duties and charges imposed or levied in connection with these Terms (“Taxes”). FOF will add any such applicable Taxes to your invoices as required by prevailing legislation. Without limiting the foregoing, you will be liable for any new Taxes imposed or levied in any relevant jurisdiction subsequent to commencing your FOF Service account.
(e) Fee Review.
FOF may periodically review fees, at which point FOF may increase or amend any such fee. Such reviews will occur no more than once within a continuous 12 month period. Where there is any net increase in the fees payable, FOF shall give no less than 30 days written notice to you of such increase.
5. Professional Services
You may purchase professional consulting or training services (“Pro Services”) from FOF to assist in your design for the FOF Service. You remain the “data controller” in this relationship, authorizing our personal to design on your behalf only. As a result of Pro Services delivered under these Terms, FOF may generate ideas, inventions, suggestions, copyrightable materials or other information (“Intellectual Property”) which fall into one of two categories:
a. Intellectual Property specifically related to the subject matter of FOF’s efforts under these Terms, and directly related to, or incorporated into, the work product to be produced by FOF and delivered to you under these Terms. Title to Intellectual Property described in this paragraph, that is developed solely by FOF, or jointly by FOF and you, shall remain in FOF at all times. FOF grants and you hereby accept, a perpetual, worldwide, royalty-free, EXCLUSIVE license to use all such Intellectual Property as incorporated into the FOF work product; and
b. Intellectual Property of general applicability, whether or not related to, or incorporated into, the work product to be produced by FOF and delivered to you under these Terms. Title to Intellectual Property described in this paragraph, including any Intellectual Property developed by FOF prior to or outside of these Terms, shall remain in FOF. To the extent such Intellectual Property is incorporated into work product to be produced by FOF and delivered to you, FOF grants and you hereby accept, a perpetual, worldwide, royalty-free, NON-EXCLUSIVE license to use all such Intellectual Property as incorporated into the FOF work product.
6. Payment of FOF Fees
The default option for paying your FOF fees is by credit card. When paying by credit card, you warrant that the credit card information you provide is correct and you shall promptly update your credit card information upon any change. If you cannot pay by credit card, contact our support team to request special dispensation to pay your fees by electronic funds transfer (EFT), international money transfer (IMT) or by check. You agree that if your payment is not received by the invoice due date, for any reason, FOF may suspend or cancel your FOF subscription.
7. Making changes to your account
If you choose to downgrade, upgrade or otherwise change your FOF users, services or subscriptions, this may cause the loss of or addition to features or capacity on your account. To the extent permitted by applicable law, FOF does not accept any liability for such losses. Changes you make will usually only take effect from your next billing date.
8. Spam, Scams, Phishing
You agree that:
(a) FOF may terminate your account immediately if an app you created on the FOF Service is found to be linked or otherwise used inside or in connection with an unsolicited email.
(b) You will not use the FOF Service or any apps you create using the FOF Service for scamming purposes to attract, lure, or illegally obtain payment of any sort from others. Any account reported or found doing so will be immediately suspended.
(c) FOF may terminate your FOF Service immediately if an app you create is found to be deceptively or without proper authority obtaining sensitive or personal information (for example credit card details, social security numbers, user login credentials). All such activities are considered as Phishing and any account along with the violating apps and data will be suspended immediately.
9. Collecting Sensitive Information
You may not use the FOF Service to collect certain types of sensitive information, including but not limited to, credit card information and any type of login credentials. You may collect some sensitive information such as social security numbers, driver’s license numbers or Personal Health Information (“PHI”), but you are solely responsible for compliance with any data protection and privacy laws and regulations applicable to the sensitive information. To the extent you store PHI on the FOF Service, then the terms of the FOF Business Associate Agreement (“BAA”) will apply. Please contact our support staff to request an executable version of the BAA.
10. European and United Kingdom Data Collection
If you collect personal data in or from any person resident (or normally resident) in Europe or the United Kingdom, your actions occur under the prevailing EU data protection and privacy regulations and you are likely considered to be a “data controller”. You agree to ensure that your use of the FOF Service is compliant with prevailing EU data protection regulations. Should you qualify as a data controller under prevailing EU data protection and privacy regulations, you also acknowledge and agree to the FOF Data Processing Addendum (“DPA”), available upon request, and as updated from time to time.
We maintain appropriate technical and operational measures, internal controls, and data security routines intended to protect your data against accidental loss or change, unauthorized disclosure or access, or unlawful destruction. We are not responsible for the security of any data stored on any mobile device owned or controlled by you, your clients or any other Service users.
12. Privacy and Data Processing
13. Copyright Infringement
FOF respects the intellectual property rights of others. Accordingly, FOF has a policy of disabling access to any FOF client that violates copyright law, suspending access to the FOF Service to any user who uses the FOF Service in violation of copyright law, and/or terminating in appropriate circumstances the account of any user or client who uses the FOF Service in violation of copyright law.
The phrase “Forms On Fire” and the Forms On Fire logo are registered trademarks of FOF. You may use such trademarks for your standard marketing promotions, provide that you agree to cease or alter such use at FOF’s request where such use is contrary to FOF’s branding policies. FOF may use Client’s business name and logo in an appropriate and acceptable manner for standard marketing promotions, provided that FOF agrees to cease or alter such use at Client’s request.
You agree that FOF may terminate your FOF Service membership or suspend your access to all or part of the FOF Service, without notice, if FOF determines, in its sole and absolute discretion, that you have violated these Terms. Further, you agree that FOF shall not be liable to you or any third party for removing your apps or suspending or terminating your access to the FOF Service. You may discontinue your participation in and access to the FOF Service at any time, in which case any pre-paid payments are non-refundable and any pending payments must be settled with us.
16. Modifications to these Terms
FOF may, in its sole and absolute discretion, change these Terms from time to time. FOF will post notice of such changes on the FOF website. If you object to any such changes, your sole recourse shall be to cease using the FOF Service. Continued use of the FOF Service following notice of any such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
17. Modifications to the FOF Service
FOF reserves the right to modify or discontinue the FOF Service with or without notice to you. FOF shall not be liable to you or any third party should FOF exercise its right to modify or discontinue the FOF Service.
18. Email Communications
By giving your email address to FOF, you agree to receive administrative, announcements, newsletters, sales, and marketing emails from FOF. You can opt-out from these emails by clicking on the “unsubscribe” link at the end of the emails.
19. Links, Content and Resources
FOF’s provision of a link to FOF resources and/or any other website or internet resource is for your convenience only and does not signify FOF endorsement of such other web site or resource or its contents. FOF shall have no responsibility or liability for any information, software, or materials found at any other web site or internet resource.
20. Delivery of Emails, Notifications and Other Messages
FOF goes to great lengths to ensure successful delivery of emails, push notifications and other messages generated on or by the FOF Service, however we do not guarantee successful delivery of these. You agree that FOF cannot be held responsible for any consequences of such delivery failure. This is because delivery is not solely controlled by FOF and is subject to a number of points of failure which can prevent delivery. See our support site for more information about why delivery cannot be guaranteed.
21. Service Availability
You agree that access to the FOF Service is reliant upon various factors outside of FOF’s control, including, without limitation, your internet service provider, global telecommunications links, our hosting and other service providers, and other factors which may impact upon the availability of the FOF Service. While we will use all reasonable endeavors to ensure that you have continuous access to the FOF Service and apps created thereon, we will not be liable to you or any other person for any loss or damage caused by unavailability of the FOF Service.
22. Disclaimer of Warranties
You understand and expressly agree that use of the FOF Service is at your sole risk. The FOF Service is provided on an “as is” and “as available” basis. FOF expressly disclaims all warranties of any kind, whether express or implied, with respect to the FOF Service (including, but not limited to, the implied warranties of merchantability, fitness for a particular use or purpose, and non-infringement). FOF makes no warranty that the FOF Service will meet your requirements, or that the FOF Service will be uninterrupted, timely, secure, or error free. You understand and agree that any material and/or information downloaded or otherwise obtained through the use of FOF is done at your own discretion and risk and that you will be solely responsible for any damage or consequential losses arising therefrom. No advice or information, whether oral or written, obtained by you from FOF or through the FOF Service shall create any warranty not expressly made herein.
23. Limitation of Liability
You understand and expressly agree that, to the extent permitted under applicable law, in no event will FOF or its officers, employees, directors, shareholders, parents, subsidiaries, affiliates, agents, or licensors be liable under any theory of liability (whether in contract, tort, statutory, or otherwise) for any direct, indirect, incidental, special, consequential, or exemplary damages, including but not limited to, damages for loss of revenues, profits, goodwill, use, data, or other intangible losses (even if such parties were advised of, knew of, or should have known of the possibility of such damages), resulting from your (or anyone using your account’s) use of the FOF Service.
24. Resolution by Arbitration
This agreement requires the use of arbitration on an individual basis to resolve disputes, rather than injunctive legal actions, jury trials or class actions, and also limits the remedies available to you in the event of a dispute.
25. Exclusions And Limitations
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the limitations and disclaimers in these Terms may not apply to you. To the extent that FOF may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of FOF liability shall be the minimum permitted under such applicable law. Unless expressly provided otherwise, the limitation of liability shall not exceed the amount of the fees paid by you over the preceding 12 months, to use for the provision of the FOF Service.
You agree to indemnify, defend, and hold harmless FOF, its parents, subsidiaries, affiliates, officers, directors, employees, consultants, and agents from and against any and all claims, liabilities, damages, losses, costs, expenses, and fees (including reasonable attorneys. fees) that such parties may incur as a result of or arising from (a) any information (including, without limitation, your Submissions or any other content) you (or anyone using your account) submits, posts, or transmits through the FOF Service, (b) your (or anyone using your account’s) use of the FOF Service, (c) your (or anyone using your account’s) violation of these Terms, and (d) your (or anyone using your account’s) violation of any rights of any other person or entity.
27. Relationship of Parties
No joint venture, partnership, employment, or agency relationship exists between FOF and you as a result of these Terms or use of the FOF Service.
These Terms constitute the entire and exclusive and final statement of the agreement between you and FOF with respect to the subject matter hereof and supersedes any prior agreements or negotiations between you and FOF with respect to the subject matter hereof. These Terms and the relationship between you and FOF shall be governed by the laws of the State of Washington, USA without giving effect to conflict of laws principles. Any and all disputes, controversies and claims arising out of or relating to these Terms or concerning the respective rights or obligations of the parties hereto shall be settled and determined by arbitration before a panel of one (1) arbitrator in King County, Washington, pursuant to the Commercial Rules of the American Arbitration Assocaition then in effect. Judgment upon the award rendered may be entered in any court having jurisdiction or application may be made to such court for a judicial acceptance of the award and an order of enforcement. The parties agree that the arbitrator shall have the power to award damages, injunctive relief and reasonable attorneys’ fees and expenses to the prevailing party. The failure of FOF to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, you nevertheless agree that the court should endeavor to give effect to the intentions of FOF and you as reflected in the provision, and that the other provisions of these Terms remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the FOF Services or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section titles in these Terms are for convenience only and have no legal or contractual effect. All terms, as well as any limitations on liability explicitly set forth herein, shall remain in full force and effect notwithstanding any termination of your use of the FOF Service.