End User License Agreement
Powerful Forms - Focuspoint Interactive Inc.
You are viewing this End User License Agreement (this “EULA”) because you have elected to purchase and are preparing to download, install or access our products (“Products”), which shall include all of our tools, templates, interfaces, wireframes, mobile apps and the contents (such as and audio and visual information, forms, documents, cartography, data and services) contained in or made available to you from the Products. As used in this EULA, the terms: “you”, “your” and their variants mean the company, entity or person who has purchased the right to install and access the Products; “Powerful Forms”, “we” and “our” means Powerful Forms - Focuspoint Interactive Inc. or its affiliated companies. Capitalized terms used in this EULA, other than those capitalized for grammatical reasons, are defined in the Section in which they are first used as indicated by bold type. This English language version of this EULA is the controlling version regardless of any translation.
IMPORTANT NOTE TO BE READ BEFORE DOWNLOADING, INSTALLING OR USING THE PRODUCTS: Before you click indicating acceptance of the purchase of and prior to using the Products, you should carefully read all the terms and conditions of this EULA. By clicking on the “SUBMIT” button at the bottom of the account setup screen, or after trial period you are intend to use this Product, you are consenting to be bound by and are becoming a party to the contract formed by this EULA and also will be acknowledging that you have the authority to enter into this EULA and bind yourself or your company, as applicable. If you do not agree to all of the terms of this EULA, do not click acceptance of its terms and stop the account setup process or using our Product.
- Registration; Account Creation. In order to use the Products and exercise your rights under the License granted below, you will have to register and create an account (an “Account”). In doing so, you will: (a) submit only complete and accurate information to include valid credit card data or data for such alternative automatic payment options as we may accept (the “Account Information”); and (b) maintain and promptly update your Account Information if it changes. During the registration and Account creation process we will, among other things, assign to you a private location on our web site under the www.powerfulforms.com domain (each, an “Account Domain”). You will be issued credentials, typically in the form of an unique user identification and a password, to authenticate your right to access the Account and Account Domain (collectively, your “Account Credentials”). Your commitment to maintaining the strict confidentiality of your Account Credentials is a material condition of your right to access the Account Domain and use the Products. You must not allow others to use your Account Credentials or access your Account Domain and you agree to: (i) immediately notify us of any unauthorized use of your Account Credentials or any other breach of security related to the Account Domain or Products; and (ii) ensure that you log-off and exit from your Account at the end of each session. You are responsible for all activity that occurs under your Account Credentials. You are responsible for notifying us if you desire to cancel your Account. The Products are intended solely for access and use by individuals who are thirteen (13) years of age or older and have agreed to this EULA. By accessing and using the Products, you represent that you are at least thirteen (13) years old. If you are between the ages of thirteen (13) and eighteen (18), your parent or legal guardian must review and approve this EULA on your behalf.
- License Rights. Subject to the terms and conditions of this EULA and the limits set by the License Metrics (as defined below), we grant you a personal, revocable, non-exclusive, non-assignable, non-transferable license (for use on a single mobile device only) to permit your employees and subcontractors during the License Term to access, display and perform the Products from the Account Domain or via our mobile application solely to create User Forms to be used in connection with your lawful internal business activities (the “License”). Your rights under the License also include the right to access, download, display and print the Documentation provided for the Products as reasonably required in connection with your authorized use. “Documentation” means the online help and user guides we may publish and update from time to time and make available to authorized licensees. In addition to the limitations set forth in this EULA, at the time of Account creation and each time you upgrade or add a Product to your Account thereafter, you will be informed of any limits (the “License Metrics”) applicable to the License Fee-level you selected. Please review carefully and take notice. As set forth above, the License is for use of the purchased Product on a single mobile device. If you allow any other person to use your Account Credentials to access the Product or if you use or allow your Account Credentials to be used to access the Product with more than one device, we will not only immediately terminate your License but will also pursue its rights under applicable law, including claims for monetary damages for your violation of this EULA. You will be responsible for any and all costs (including reasonable attorneys’ fees) incurred by Powerful Forms for any legal recourse it may take to enforce this provision.
- License Scope, Restrictions and Conditions. (a) Scope. The License rights are non-exclusive such that we may grant to others or reserve for our own use, rights that are the same as or similar to those we grant to you. All rights not expressly granted to you are reserved by Powerful Forms and its licensors. The License has a limited term as specified in the applicable License Metrics (the “License Term”) and will expire at the end of that License Term unless you renew. Each License is personal to you and thus is non-transferable, non-assignable and non-sublicenseable. (b) Restrictions. Neither you nor any of your employees or subcontractors shall: (i) modify, translate, reverse engineer, decompile, disassemble (except to the extent applicable local laws specifically prohibit such restriction), or create derivative works based on, or improvements of the Products; (ii) make any copies of the Products; (iii) create Internet “links” to the Products or “frame” or “mirror” any Products thereon on any other server or wireless or Internet-based device; (iv) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Products in any way; or (v) access the Products or the information contained therein in order to build a similar or competitive product or service or attempt to access the Products through any unapproved interface. (c) Conditions. You are responsible for the acts of and omissions of all employees and subcontractors who access and use the Products under the License. You acknowledge that the Products may contain features and functionality (including codes that act as keys to “lock” and “unlock” access to the Products) designed to render the Products technologically incapable of being used except as permitted by this EULA. You must not remove, modify or obscure proprietary rights notices that we place on the Products or Documentation. This means that if you print any portion of the Documentation, you must reproduce and prominently display our copyright and similar rights notices. You must comply with all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Products, including those related to data privacy, international communications and the transmission of technical or personal data. You also must notify us immediately of any unauthorized use of the Products or any other known or suspected breach of security of the Products or your Account. You may not use the Products if you are a direct competitor of Powerful Forms, except with our prior written consent. In addition, you may not use the Products for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes. (d) Export; Government Access. The Products may be subject to restrictions and controls imposed by the United States Export Administration Act and other applicable transfer control and prohibited person laws and regulations of the United States and other jurisdictions (collectively the “Export Laws”). You will not import or export the Products except as permitted by Export Laws. If you are required to provide a government or regulatory body with access to the Products, then such access must be subject to this Section and your confidentiality obligations and subject to our rights and your obligations with respect to us as your third party licensor under FARS and DFARS (or their successor regulations).
- License Fees. The license and subscription fees for the Products shall be set at the time of purchase (the “Fees”).
- Remote Access and Support. From time to time, we may need to communicate with your device via remote access for the maintenance and support of the Products. Such access may include accessing, viewing and transferring diagnostic log files, checking the version of the Products installed on your device(s) and implementing updates, as applicable. The Products, in the form delivered to you, do not capture, and the log files are not intended to contain, any proprietary information about you, your employees or the User Forms you create using the Products. Your right to receive, and our ability to provide the maintenance and support for the Products is predicated upon you maintaining such connectivity and otherwise reasonably cooperating with us. Please note that in connection with Powerful Forms' mobile communications access, carrier rates for phone, data and text messaging may apply. Due to the inherently open and unpredictable nature of mobile communications, use of the Products may be subject to certain limitations, availability, delays and other similar problems. Powerful Forms is not responsible for any damages resulting from such problems. The Products may also include global positioning system (GPS) data and cartographic data. You understand and acknowledge that GPS location data and the cartographic data may not be accurate or complete or up to date. The Products shall never be used for navigation.
- New Releases; No Support Services. We may from time to time develop and make generally available, either at no-charge or for a specified upgrade fee, new releases of the Products containing new features or functionality or modifications, bug fixes or enhancements to the Products existing capabilities. This EULA and all of the terms hereof apply to all such releases even if we do not separately require you to provide re-confirmation of your assent. We will not otherwise provide you with new releases or any other support, maintenance, training, consulting or customization services unless Powerful Forms and your company has entered into a separate written agreement therefor.
- Intellectual Property; Third Party Content. (a) Ownership. As between you and Powerful Forms, all intellectual property rights (including copyrights, trademarks and patents), proprietary rights (including trade secrets) and moral rights (including rights of authorship and modification) throughout the world in and to the Products and Documentation and all of their derivative works and improvements are owned or licensed by, and are proprietary to, Powerful Forms. Without altering the foregoing, we make no claims to the User Forms themselves. You may elect to designate certain User Forms as “Public Forms” so that they may be shared freely with and among other users of the Products. You agree that by designating a User Form as a Public Form you grant Powerful Forms and other users of the Products an unrestricted, perpetual, transferable, worldwide, royalty-free license to the form, and you certify that you are the owner of the form or have the rights to grant such license. You are prohibited from using our and our Products’ names, brands or logos in any manner other than as required by this EULA with respect to copies of the Documentation. This EULA is not a sale and does not convey to you any rights of ownership in or related to the Products or Documentation. (b) Third Party Content. The Products may require use of software code, data, or other content owned by and licensed from third parties which includes the Apache License (http://www.apache.org)(the “Third Party Content”). When we include Third Party Content as part of the Products, we provide it to you on either a sublicense or pass-through basis subject to the separate terms and conditions of its owners and licensors. We do not have the authority to modify those terms and conditions. We do, however, warrant that we have the authority to grant you the rights granted under each License, even to the extent we provide Third Party Content in the applicable Products.
- Term and Termination. This EULA and the License become effective upon acceptance of this EULA and continue for the License Term as specified in the License Metrics unless earlier terminated by Powerful Forms under this Section. This EULA, and the License granted hereunder, will terminate immediately and without notice to you if you or, if applicable, any of your employees, agents or subcontractors, fail to comply with any term or condition of this EULA or in any way infringe on our intellectual property rights. Upon any termination or expiration of this EULA, you and, if applicable, all of your employees, agents and subcontractors: (a) shall immediately discontinue all use of the Products and Documentation; and (b) immediately return or destroy (as determined by Powerful Forms) the Products and Documentation, together with all copies, and certify to such return or destruction in writing. If you pay for the Products by credit card, you understand and agree that at the end of the License Term we will automatically charge to your credit card for a renewal, with your consent to this EULA serving as authorization, for a renewal period of the same length as the initial License Term. We will continue to do so at the end of each successive License Term until you cancel prior to the expiration or termination of the applicable License Term by emailing us at firstname.lastname@example.org. For a License Term of at least one (1) year and greater than one (1) month in duration, you must provide notice to us no later than thirty (30) days prior to the expiration of the term. WE DO NOT PROVIDE REFUNDS. IF YOU DO NOT WANT TO BE CHARGED FOR RENEWAL YOU MUST TIMELY CANCEL.
- User Data. Information and data that you load in the Products (“User Data”) is owned by you. You, not Powerful Forms, shall have sole discretion and control as to the User Data entered into and used with the Products. Accordingly, you have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and the right to use all User Data. Powerful Forms shall not be responsible or liable for your deletion, destruction, damage, loss or failure to store User Data. Certain types of information are subject to special regulation which would give rise to specific data handling requirements under applicable laws and regulations (“Regulated Information”). Powerful Forms does not intend to receive Regulated Information and shall not be responsible for any requirements therefor. When the License expires or terminates, Powerful Forms will continue to hold User Data online for 30 days and make it available to you for export in our native format to your own systems. You acknowledge that Powerful Forms has no obligation to so retain, and may delete User Data 30 days after expiration or termination.
- Confidential Information. Our Products are protected by intellectual property laws and our disclosure of them to you and your use thereof is governed by the License. In the course of doing business with us, we necessarily may disclose to you pricing information, information regarding Product performance and strategic direction, and for reference checking or other purposes, the identities and details of our relationships with other licensees and our third party suppliers (“Confidential Information”). You shall not: (a) use the Confidential Information, including internally within your own organization, except to the extent necessary to operate the Products; or (b) disclose the Confidential Information to any third party without the express written consent of us, except to those with a need to know who have signed an agreement at least as protective of the Confidential Information as this EULA. You always shall handle Confidential Information with at least reasonable care and shall be responsible for the actions of those persons to whom disclosure is made. The non-use and non-disclosure obligations under this Section shall not apply to Confidential Information demonstrated by reasonable contemporaneous written evidence to be: (i) already known or independently developed prior to receipt; (ii) lawfully made available to the public by us without restriction or breach of confidentiality obligation; or (iii) lawfully independently obtained from a third party. If you are required by a court to disclose the Confidential Information, so much as is legally required may be disclosed but only after providing us with written notice and reasonable assistance in obtaining and enforcing means of safeguarding the Confidential Information. If you have previously entered into a non-disclosure or other agreement for confidentiality with Powerful Forms, this Section shall supersede such agreement with respect to the Products.
- Warranties, Disclaimers and Liability. We expressly warrant to you that, in its original, unmodified form the Products will operate as described by the Documentation and do not contain any virus that is reasonably capable of being detected and removed by the corporate enterprise strength anti-virus software we use in development. These are the only warranties we provide with respect to the Products. We are not responsible under this warranty or otherwise for: (a) User Forms; (b) User Data; (c) matters related to causes external to the Products including failures of the mobile devices or any product into which it is embedded; (d) your use of the Products in a manner or on or in conjunction with third party components that do not conform to our specifications; and/or (e) any defect or non-conformity not reported in accordance with this Section. Your sole remedy and our only liability for breach of the warranty provided in this Section is to provide a free download for a new release as described below. Such remedy is expressly conditioned on your providing actual, written notice to us immediately upon discovering an alleged breach. The Products may contain certain “open source” or other third party code. We provide no warranties with respect to such code. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR PURPOSE, NON-INFRINGEMENT AND THOSE CONFERRED BY UCITA OR SIMILAR LAWS. WE DO NOT WARRANT THAT THE PRODUCTS WILL MEET YOUR REQUIREMENTS, OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE. THE PRODUCTS ARE PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE WILL NOT be liable for ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, reliance OR PUNITIVE damages OR LOST OR IMPUTED profits OR LOST DATA. OUR TOTAL liability for all claims arising in connection with this eula and the PRODUCT WILL be limited to direct damages in the amount equivalent to the fees actually received by US for the PRODUCT IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. You will defend, indemnify and hold us, our third party licensors and each such party’s parent organizations, affiliates officers, directors, employees, attorneys and agents harmless from all claims, causes of action and all damages, costs and expenses (including reasonable legal costs) arising from (x) User Data and/or User Forms infringing the rights of, or causing harm to, a third party; and/or (y) your breach of this EULA. You must bring all claims and causes of action within 6 months of their being discovered. These limitations and exclusions apply to all claims or causes of action under whatever theory brought and whether or not we were advised of the possibility of the claim.
- Assignment and Transfer. You and your employees and subcontractors are prohibited from transferring, assigning or sublicensing any right under this EULA or from otherwise providing the Products to or permitting its use by anyone else. Without limiting the foregoing, we may consent to such assignment: (a) in connection with the sale or other transfer of all or substantially all of your entities’ assets or stock; and/or (b) to the surviving or resulting entity in any merger; provided, in each case, that all of the Transfer Conditions are met. The term “Transfer Conditions” shall mean your obligation: (i) to provide Powerful Forms with written notice within thirty (30) calendar days of completing a permitted assignment or transfer; (ii) require your assignee or transferee to pay or cause to be paid such additional fees as are reasonably required by Powerful Forms in connection with a permitted transfer or assignment; (iii) require your assignee or transferee to execute or otherwise assent to a new EULA; and (iv) such other conditions as may be reasonably required by Powerful Forms. In all events, permitted transfer or assignment under this Section shall result in automatic and immediate termination of all applicable Licenses granted to you and your employees and subcontractors.
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