TERMS OF SERVICE
Subscription Use Agreement
IMPORTANT – READ CAREFULLY: THIS SUBSCRIPTION USE AGREEMENT (THE “AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN YOU AND ANY COMPANY YOU REPRESENT (COLLECTIVELY, “YOU” AND “YOUR”) AND EFORMS MOBILE, INC. (“EFORMS”).
THIS AGREEMENT APPLIES TO (1) ALL SUBSCRIPTIONS FOR EFORMS HOSTED SOFTWARE AS A SERVICE (SAAS) SOLUTIONS (INCLUDING BUT NOT LIMITED TO WEB AND MOBILE BASED FORM SOLUTIONS (2) ANY OTHER RELATED SERVICES THAT EFORMS MAY PROVIDE TO YOU IN CONNECTION WITH SUCH SAAS SOLUTIONS AND (3) USE OF ANY WEB SITE OPERATED BY EFORMS MOBILE.
PLEASE READ THE AGREEMENT CAREFULLY BEFORE CONTINUING YOUR SUBSCRIPTION REGISTRATION. BY CLICKING THE “I ACCEPT” BUTTON OR OTHERWISE ACCEPTING THIS AGREEMENT AS SET FORTH IN ANY ONLINE OR PRINTED ORDER FORM REFERENCING THIS AGREEMENT, YOU AND ANY COMPANY YOU REPRESENT AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF YOUR COMPANY, YOU ARE REPRESENTING TO US THAT YOU HAVE THE AUTHORITY TO BIND YOUR COMPANY TO THIS AGREEMENT, AND THE TERM “YOU” SHALL REFER TO YOUR COMPANY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST CHOOSE THE “CANCEL” BUTTON AND YOU SHALL NOT BE PERMITTED TO USE THE EFORMS SERVICE.
ARTICLE I. DEFINITIONS
For purposes of this Agreement, the definitions set forth below apply:
“Authorized User” means any of Your employees, consultants, contractors or agents authorized by Your administrator to access and use the EForms Mobile Service on behalf of Your business, in each case subject to such person’s agreement to be bound by the terms of this Agreement.
“Front End Code” means our user interface display and usability platform. This includes, but is not limited to, the layout, color scheme, HTML pages, mobile applications and source code, etc.
“EForms Mobile Materials” means any documentation, user guides or other similar materials provided by EForms Mobile to You in connection with Your use of the EForms Mobile Service.
“EForms Mobile Service” means any of the EForms Mobile set of SaaS or mobile solutions that are developed, operated, and maintained by EForms Mobile (and its third party service providers) and that are subscribed to through a EForms Mobile branded or controlled website (or EForms Mobile partner website) that includes a link to this Agreement. The definition of EForms Mobile Service does not include any separate professional Services (as defined below) that may be purchased by You from EForms Mobile.
“Order Form” means any online or written subscription order form for the EForms Mobile Service or for Services submitted by You either during an online subscription process or separately signed by You and submitted to EForms Mobile, and any future purchase order or order form that makes reference to this Agreement.
“PHI” means (i) “protected health information” as defined in 45 CFR § 160.103, and (ii) any other patient or health information protected by the Health Insurance Portability and Accountability Act of 1996, as it may be amended from time to time (“HIPAA”), including the regulatory revisions implemented pursuant to the Health Information Technology for Economic and Clinical Health Act (the “HITECH ACT”).
“Services” means any implementation, training or other professional services provided by EForms Mobile to You pursuant to the terms of an Order Form.
“Subscription Term” means the use term for the EForms Mobile Service set forth on Your Order Form and any additional renewals of such term.
“Third Party Content” means the content, including software code, that a EForms Mobile partner or other third party may bundle with the EForms Mobile Service, for a specific market or niche offering.
“Your Data” means registration information, information concerning Your Authorized Users and customers and contacts, business, marketing and financial information, operational information, and any similar data that You upload to the EForms Mobile Service.
ARTICLE II. USE RIGHTS AND RESTRICTIONS
2.1 Use Rights; Restrictions. Subject to the terms of this Agreement, EForms Mobile grants to You during the Subscription Term the non-transferable (except as permitted below), non-exclusive right to permit Your Authorized Users to access and use the EForms Mobile Service (and any EForms Mobile Materials provided to You) to allow You to perform business functions that the EForms Mobile Service is designed to perform, subject to the following restrictions: (i) Your use of the EForms Mobile Service may not be on behalf of third parties unless a separate agreement between You and EForms Mobile permits use of the EForms Mobile Service on behalf of Your clients (and in such case limited to use on behalf of clients for whom You have purchased access and use rights); (ii) except as expressly permitted herein or in a separate partner agreement between You and EForms Mobile, You may not license, sell, rent, lease, transfer, assign, distribute, display, host, outsource otherwise commercially exploit or make the EForms Mobile Service or the EForms Mobile Materials available to any third party; (iii) You may not modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the EForms Mobile Service or EForms Mobile Materials (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law), or access or use the EForms Mobile Service or EForms Mobile Materials in order to build a similar or competitive product or service; (iv) Your use of the EForms Mobile Service (in terms of number of Authorized Users, maximum list sizes, monthly email limitations, etc.) shall conform with the restrictions set forth in the Order Form for the level of subscription purchased by You (EForms Mobile may monitor Your compliance with these limits and if it detects overuse require that You upgrade to the appropriate higher subscription level); and (v) Your use of the EForms Mobile Service must not cause undue strain or stress on the EForms Mobile network through excessive API calls or other non-standard use.
2.2 Technical Support. During the Subscription Term, You will be entitled at no extra charge to access online user guides, knowledge bases and self-help tools, and any additional standard technical support resources (collectively, “Technical Support”) for the EForms Mobile Service offered by EForms Mobile from time to time, the terms of conditions of which may be described and updated from time to time on the support or sections of the relevant EForms Mobile websites (www.formsonfire.com, secure.formsonfire.com, or other sites). EForms Mobile reserves the right to modify the posted terms and conditions for Technical Support, at any time at its sole discretion.
2.3 Intellectual Property Rights. EForms Mobile shall retain all right, title and interest (including all copyrights, patents, service marks, trademarks and other intellectual property rights) in and to the EForms Mobile Service and EForms Mobile Materials (including application development, business and technical methodologies, and implementation and business processes, used by EForms Mobile to develop or provide the EForms Mobile Service or EForms Mobile Materials), and any and all updates, enhancements, customizations, revisions, modifications, future releases and any other changes relating to any of the foregoing. Except for the limited access and use rights granted pursuant to this Agreement, You do not acquire any interest in the EForms Mobile Service or EForms Mobile Materials. You agree that any suggestions, enhancement requests, feedback, recommendations or other information provided by You or any of Your Authorized Users relating to the EForms Mobile Service or the EForms Mobile Materials may be used by EForms Mobile without restriction or obligation to You.
2.4 Additional Restrictions. You are expressly prohibited from using any Front End Code for any purpose outside of the intended design and implementation of Your authorized use of the EForms Mobile Service. Any replication or use of any aspect of the Front End Code or other EForms Mobile application or Services for any purpose designed or intended to compete with EForms Mobile’s solutions is strictly prohibited.
2.5 Ownership of Your Data. As between You and EForms Mobile, Your Data and any similar data provided to EForms Mobile outside of the uploading process (either in hard copy or electronic format) is and shall remain Your property. To enable EForms Mobile to provide You with the EForms Mobile Service, and subject to the terms and conditions of this Agreement, You hereby grant to EForms Mobile a non-exclusive right to use, copy, distribute and display Your Data solely in connection with EForms Mobile’s operation of the EForms Mobile Service on Your behalf. You, not EForms Mobile, shall have sole responsibility for the accuracy, integrity, and reliability of Your Data, and EForms Mobile will not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any of Your Data. EForms Mobile will protect any of Your Data provided to EForms Mobile as confidential in accordance with Article IV below.
2.6 Protection of PHI. You agree to alert EForms Mobile in writing if you will be using the Services to store or process PHI. To the extent that You do use the Services to store or process PHI, then the terms of the EForms Mobile Business Associate Agreement will apply to any PHI stored or processed by You using the Services and the terms of the EForms Mobile Business Associate Agreement are incorporated herein by reference. Upon either Your or EForms Mobile’s request, both parties will execute a signable version of the EForms Mobile Business Associate Agreement.
ARTICLE III. FEES
3.1 Fees. The fees for the EForms Mobile Service and any additional Services (“Fees”) are set forth in the Order Form and are payable in advance, irrevocable and non-refundable except as set forth in the Order Form and this Agreement. You agree to provide EForms Mobile with complete and accurate billing and contact information. Where payment by credit card is indicated in the Order Form, or You otherwise provide EForms Mobile with credit card information, You authorize EForms Mobile to bill such credit card (a) at the time that You order the EForms Mobile Service or other Services set forth in the Order Form, (b) for any billing frequency otherwise established in the Order Form, and (c) at the time of any renewal, for the amount charged plus any applicable sales taxes for any renewed Subscription Term. If EForms Mobile, in its discretion, permits You to make payment using a method other than a credit card, EForms Mobile will invoice You at the time of the initial Order Form and thereafter on a monthly basis in advance of the relevant billing period, and all such amounts invoiced will be due within ten (10) days of Your receipt of EForms Mobile’s invoice. Late payments shall be subject to a service charge of one and one-half percent (1.5%) per month, or the maximum charge permitted by law, whichever is less.
3.2 Taxes. You shall pay all personal property, sales, use, value-added, withholding and similar taxes (other than taxes on EForms Mobile’s net income) arising from the transactions described in this Agreement, even if such amounts are not listed on an Order Form. To the extent You are exempt from sales or other taxes, You agree to provide EForms Mobile, upon request, with the appropriate exemption certificate.
3.3 Non-Payment; Other Suspension Rights. EForms Mobile may terminate the EForms Mobile Service if the billing or contact information provided by You is false or fraudulent. EForms Mobile also reserves the right, in its discretion, to suspend Your access and/or use of the EForms Mobile Service: (i) where any payment is due but unpaid and You have been requested but failed to promptly cure such payment failure; or (ii) in the event a dispute arises on Your account as to who at Your business has authority to act or manage Your account and EForms Mobile is not promptly provided with written instructions from the interested parties associated with Your account that fully resolves the dispute. You acknowledge and agree that it a dispute arises as to management of Your account, then (i) if the listed owner of the account is a corporation, limited liability company or other registered entity, EForms Mobile may rely on public records (to the extent available) concerning the appropriate authorized executives or managers of Your entity; or (ii) if the listed owner is a dba or sole proprietorship, or any other entity for which public records of control are not readily accessible online, EForms Mobile may assume that the person or entity that has been making payments on Your account has the authority to manage the account. You agree that EForms Mobile shall not be liable to You nor to any third party for any suspension of the EForms Mobile Service resulting from Your non-payment of Fees or from a dispute as to the management rights to Your account.
ARTICLE IV. CONFIDENTIALITY; USE OF NAMES
4.1 Confidential Information. For purposes of this Agreement, confidential information shall include the business terms in the Order Form, Your Data, the EForms Mobile Service and the EForms Mobile Materials, and any information that is clearly identified in writing at the time of disclosure as confidential or that should be reasonably understood to be confidential by the receiving party given the nature of the information and the circumstances of its disclosure (“Confidential Information”). Each party agrees: (a) to receive and maintain in confidence all Confidential Information disclosed to it by the other party or by a third-party; (b) not to use the Confidential Information of the other party except to the extent necessary to perform its obligations or exercise rights hereunder; (c) to limit the internal dissemination of Confidential Information to those employees and contractors of the recipient who have a need to know and an obligation to protect it; and (d) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information). EForms Mobile will restrict its employees’ access to Your Confidential Information to only those employees necessary to successfully provide the EForms Mobile Service. EForms Mobile may disclose Confidential Information on a need-to-know basis to its contractors who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services for EForms Mobile in connection with the performance of this Agreement. Confidential Information shall not include information that: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the recipient, subsequent to disclosure by the disclosing party; or (4) the recipient becomes aware of from a third party not bound by non-disclosure obligations to the disclosing party and with the lawful right to disclose such information to the recipient. This Section will not be construed to prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority. The parties agree to give the other party prompt notice of the receipt of any subpoena or other similar request for such disclosure.
4.2 Credit Card Information. EForms Mobile agrees that it will retain and store any provided credit card information only for the minimum amount of time required for business, legal and/or regulatory purposes, and will use standard industry practices to protect such information from unauthorized access, disclosure or use.
4.3 Use of Names in Marketing. You may use EForms Mobile’s name and credentials in an appropriate and acceptable manner for Your standard marketing promotions, provided that You agree to cease or alter such use at EForms Mobile’s request where such use is contrary to EForms Mobile’s branding policies, could cause any brand confusion in the market or is otherwise objectionable to EForms Mobile. Similarly, EForms Mobile may use Your business name in an appropriate and acceptable manner for standard marketing promotions, provided that EForms Mobile agrees to cease or alter such use at Your request where such use is contrary to Your branding policies, could cause any brand confusion in the market or is otherwise objectionable to You. Acceptable and standard marketing promotions include, but are not limited to: client listings, press releases, surveys, interviews, reputable business publications, television, and web site presentation and promotion, etc.
ARTICLE V. TERM & TERMINATION
5.1 Standard Term. Unless a different Term is specified in a signed Order Form between You and EForms Mobile, the Initial Term of Your subscription to an EForms Mobile Service will begin on the submission or execution of Your Order Form and shall continue on a monthly or yearly basis until the subscription is terminated as provided for in this Article 5. The term of this Agreement will automatically terminate when all active Subscription Terms have been terminated.
5.2 Termination without Cause. Either party may terminate the Subscription Term to an EForms Mobile Service by providing thirty (30) days’ prior written notice to the other party. EForms Mobile’s termination rights are in addition to any suspension rights it may have under this Agreement or the incorporated Acceptable Use Policy.
5.3 Effect of Termination. Upon termination of the Subscription Term, all Fees then due and payable to EForms Mobile must be paid in full. Contingent upon its receipt of all such Fees, EForms Mobile will continue to make Your Data available for downloading through the termination date. In addition, for a period of thirty (30) days following termination, You may arrange for the downloading of Your Data by contacting EForms Mobile. Following this (30) day grace period, EForms Mobile may remove Your Data from the production environment for the EForms Mobile Service. The provisions of this Agreement which by their nature are intended to survive expiration or termination shall survive, including but not limited to obligations concerning confidentiality, protection of intellectual property, indemnification and payment of unpaid Fees and expenses.
ARTICLE VI. WARRANTIES/LIMITATION OF LIABILITY/INDEMNITY
6.1 Limited Warranties. EForms Mobile warrants for a period of thirty (30) days following their delivery that all professional Services provided hereunder will be performed in a workmanlike manner, in conformity with the professional standards for comparable services in the industry. For any breach of this warranty timely reported by You, Your exclusive remedy shall be the re-performance of the deficient Services, and if EForms Mobile is unable to re-perform the deficient Services as warranted, You shall be entitled to recover the portion of the Fees paid to EForms Mobile for such deficient Services, and such refund shall be EForms Mobile’s entire liability. You warrant that Your business shall, at all times, comply with, and shall remain solely responsible for compliance with, all applicable federal, state and local laws and regulations in connection with Your use of the EForms Mobile Service, and You agree to indemnify and hold EForms Mobile harmless from and against any third party or government claims, including all related damages, costs and expenses (including reasonable attorneys’ fees), that arise due to Your violation of law or breach of this warranty in Your use of the EForms Mobile Service.
All third party hardware, including but not limited to mobile devices, and other products included or sold with the Services are provided solely according to the warranty and other terms specified by the manufacturer, who is solely responsible for service and support for its product. For service, support, or warranty assistance, you should contact the manufacturer directly. EFORMS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO SUCH THIRD PARTY PRODUCTS, AND EXPRESSLY DISCLAIMS ANY WARRANTY OR CONDITION OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL EFORMS BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, OR COVER DAMAGES ARISING OUT OF YOUR USE OF OR INABILITY TO USE THIRD PARTY PRODUCTS OR ANY AMOUNT IN EXCESS OF THE AMOUNT PAID BY YOU FOR THE PRODUCT THAT GIVES RISE TO ANY CLAIM.
6.2 EForms Mobile Not Responsible for Third Party Content. The EForms Mobile Service may be bundled by third parties (including but not limited to EForms Mobile resellers or partners) with Third Party Content designed to facilitate use of the EForms Mobile Service in certain market niches or to customize the EForms Mobile Service for use by certain categories of target customers. To the extent that You either purchase the EForms Mobile Service from such third parties or acquire the Third Party Content or configuration services from such third parties (even though you may purchase the core EForms Mobile Service directly from EForms Mobile), EForms Mobile does not warrant in any manner and will not be responsible for such Third Party Content and You agree to look solely to the relevant third party provider (and not EForms Mobile) if and to the extent that you have any complaints or issues relating to the Third Party Content or its interaction with an EForms Mobile Service
6.2 Warranty Disclaimers. EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, UNINTERRUPTED SERVICE OR FITNESS FOR A PARTICULAR PURPOSE. YOU ACKNOWLEDGE THAT EFORMS SPECIFICALLY DISCLAIMS ALL WARRANTIES RELATING TO THE EFORMS SERVICE.
6.3 Limitation of Liability. IN NO EVENT WILL EFORMS BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA, LOSS OF BUSINESS OR OTHER LOSS ARISING OUT OF OR RESULTING FROM THIS AGREEMENT EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING SHALL APPLY REGARDLESS OF WHETHER SUCH LIABILITY SOUNDS IN CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER THEORY OF LEGAL LIABILITY. IN ADDITION, IN NO EVENT WILL EFORMS’S CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID BY YOU TO EFORMS DURING THE SIX MONTH PERIOD PRECEDING THE ALLEGED LIABILITY EVENT.
ARTICLE VII. GENERAL PROVISIONS
7.1 Notice. Notices regarding this Agreement to EForms Mobile shall be in writing and sent by first class mail or overnight courier (if from within the United States), or international courier, addressed to EForms Mobile, Attn. Contracts Administrator, PO Box 40406, Bellevue, WA 98015. EForms Mobile may give notice applicable to EForms Mobile’s general client base by means of a general notice on the EForms Mobile Service portal, and notices specific to You by electronic mail to Your designated contact’s email address on record with EForms Mobile, or by written communication sent by first class mail or overnight courier (if to an address within the United States), or international courier, to Your address on record in EForms Mobile’s account information. All notices shall be deemed to have been given three (3) days after mailing or posting (if sent by first class mail), upon delivery in the case of courier, or twelve (12) hours after sending by confirmed facsimile, email or posting to the EForms Mobile Service portal.
7.2 Assignment. You may not assign this Agreement without providing prior notice to and obtaining the consent of EForms Mobile, which shall not be unreasonably denied provided Your account is in good standing. Any purported assignment in violation of this Section shall be void.
7.3 Integration; Modification. This Agreement and the information incorporated into this Agreement by written reference (including reference to information contained in a URL or referenced policy), together with any applicable Order Form, represent the parties’ entire understanding relating to the EForms Mobile Service, the EForms Mobile Materials and the Services, and supersede any prior or contemporaneous, conflicting or additional communications. The terms and conditions of this Agreement may only be amended by written agreement of the parties.
7.4 Governing Law; Arbitration. This Agreement shall be governed by the laws of the State of Washington without giving effect to conflict of laws principles. Any and all disputes, controversies and claims arising out of or relating to this Agreement 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 Association 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.
7.5 Force Majeure. Except for Your obligation to pay Fees for the EForms Mobile Service or other Services rendered, neither party will be responsible for failure of performance due to causes beyond its control. Such causes include (without limitation) accidents, acts of God, labor disputes, actions of any government agency, shortage of materials, acts of terrorism, or the stability or availability of the Internet or a portion thereof.
7.6 Export. You agree that U.S. export control laws and other applicable export and import laws govern Your use of the EForms Mobile Service, including EForms Mobile technology. You represent that You are neither a citizen of an embargoed country nor prohibited end user under applicable U.S. export or anti-terrorism laws, regulations and lists. You agree not to use or export, nor allow a third party to use or export, the EForms Mobile Service or technology in any manner that would violate applicable law, including but not limited to applicable export and import control laws and regulations.
7.7 Severability. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect.
7.8 Relationship of Parties. No joint venture, partnership, employment, or agency relationship exists between EForms Mobile and You as a result of this Agreement or use of the EForms Mobile Service.
7.9 Waiver. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing.
7.10 Invalidity; Waivers. If any provision or portion of this Agreement is held invalid, illegal, void or unenforceable as it appears in this Agreement by reason of any rule of law, administrative or judicial provision or public policy, then such provision shall be construed as being enforceable to the extent such rule of law, administrative or judicial provision or public policy allows. All other provisions of this Agreement shall nevertheless remain in full force and effect. Neither of the parties shall be deemed to have waived any of its rights, powers or remedies hereunder unless the waiving party expresses such a waiver in writing.
7.11 Competitors. You may not sign up to the EForms Mobile site or 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 by EForms Mobile, Inc.
Copyright 2017, EForms Mobile, Inc. Any rights not expressly granted herein are reserved by EForms Mobile.