This customer agreement (“Agreement”) is a legal agreement between you and FormKiQ Inc. If you are agreeing to this Agreement not as an individual but on behalf of your company, then a reference to "you" or "Customer" in this Agreement is a reference to the company, and the company will be bound by this Agreement.
BY INDICATING YOUR ACCEPTANCE BY USING THE SERVICES, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MUST IMMEDIATELY UNINSTALL OR CEASE USING THE SERVICES.
1. Scope of Agreement
1.1. Scope. This Agreement govern access to and use of the FormKiQ, Inc. ("FormKiQ", "we", "us", "our") products, services and other deliverables (collectively, the "Services") by entities or individuals who purchase the Services.
1.2. Rights. You have no rights in, or to, any Product or Support Service other than the rights granted under this Agreement.
2. Accounts, Orders, Payments and Refunds
2.1. Accounts. You must register an Account with us in order to place Orders or access the Services. Your account information must be kept accurate and complete. You must keep your account information current, so that we may send notices, statements, and other information to you by email or through your Account. You are responsible for all actions taken through your Account, including Orders and Subscriptions made.
2.2. Orders. You create an Order by following the purchase or subscription flows on our website, or by requesting an invoice from us. Your Order will name the Product you are purchasing, any limits on the number of Targets you will be able to manage, and the License Term or Subscription Term. All Orders are intent only and are not binding (on you or on us) until payment is received in full by us and processed, and access to the corresponding Product is delivered. In the case of a monthly subscription to FormKiQ, a new Order is raised automatically at the end of each billing period unless you cancel your subscription.
2.3. Payment. You will pay all fees in accordance with each Order, by the due dates and in the currency specified in the Order.
2.4 Refund policy. As part of our commitment to customer satisfaction, you may terminate your initial Order of the applicable Software or Cloud Services under this Agreement, for no reason or any reason, by providing notice of termination. In the event you terminate your initial Order, we may disable the license key that allowed the Software to operate or disable access to the Cloud Services.
For Software or Cloud Services Orders, we will refund your payment in full if you request a refund within 30 days of the payment of your Order.
3. Use of the Software
3.1. Grant of License. Under the terms of this Agreement, we grant you a worldwide, non-exclusive, non-transferable license to install and use the Services for your own business purposes, during the applicable License Term (upon full payment of subscription fees). The Services is made available on a limited license or access basis, and no ownership right is conveyed to you, irrespective of the use of terms such as "purchase" or "sale".
3.2. License Delivery. To activate and use the Software, you will be required to provide a your AWS Account Id. License keys will be delivered electronically to your AWS Account and via email when payment has been received as per your Order.
3.3. License Term and Renewals. Your license to use the Software is granted for a specific time period (License Term). Unless noted otherwise on your Order, all subscriptions will automatically renew for periods equal to your initial Subscription Term unless you cancel your subscription.
3.4. Support, Maintenance and New Releases. During the License Term you will have access, free of charge, to all updates, upgrades, new releases and patches for the Software that we release during the License Term, along with technical support. You acknowledge and agree that we may, but are under no obligation to, release any update, upgrade or patch at any time or for any reason.
3.5. Number of Instances. For each License that you purchase, you may install and use the software in up to three (3) separate "AWS Account(s)".
Except as otherwise permitted in this Agreement, or by us in writing, you will not:
- (a) intentionally use any Services in any way that could damage our reputation; or
- (b) rent, lease, sub-license, loan, translate, merge, adapt, vary or modify any Services, without our express written consent.
5. Termination of Agreement
5.1. Term. This Agreement is effective as of the Effective Date and continues until expiration of all License Terms, unless earlier terminated as set forth herein.
5.2. Termination for Cause. Either party may terminate this Agreement (including all related Orders) if the other party (a) fails to cure any material breach of this Agreement within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).
5.3. Termination for Convenience. You may choose to stop using the Services and terminate this Agreement (including all Orders) at any time for any reason upon written notice to FormKiQ, but, unless you are exercising your right to terminate early pursuant to Section 2.4 (Refund Policy).
5.4. Obligations on Termination. On termination of this Agreement, or on termination or expiry of any relevant Order (unless you retain a right to continue using the Services after the end of that Order, you must immediately cease use of, uninstall, and destroy, any and all copies of any Services, and you acknowledge that you will lose access to any Cloud Services.
5.5. Survival. The following Sections will survive any termination or expiration of this Agreement: 4 (Restrictions), 8.4 (Warranty Disclaimer), 8 (IP Indemnification) (but solely with respect to claims arising from your use of the Software during the License Term), and 10 (Export).
6. Warranties and Disclaimer
6.1. General Warranties. Each party represents and warrants that it has the legal power and authority to enter into this Agreement. If you are an entity, you represent and warrant that this Agreement and each Order is entered into by an employee or agent of such entity with all necessary authority to bind such entity to the terms and conditions of this Agreement.
6.2. Virus Warranty. We represent and warrant that we will take reasonable efforts to ensure that the Services, in the form and when provided to you, will be free of any viruses, malware, trojans or other harmful code. For any breach of the foregoing warranty, your sole and exclusive remedy, and our sole obligation, is to fix or replace the Products promptly upon notice.
6.3. Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6.1 (GENERAL WARRANTIES) AND 6.2 (VIRUS WARRANTY), ALL SOFTWARE, SUPPORT AND MAINTENANCE AND ANY ADDITIONAL SERVICES ARE PROVIDED “AS IS,” AND FORMKIQ AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY. FORMKIQ WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF FORMKIQ. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER FORMKIQ NOR ANY OF ITS THIRD PARTY SUPPLIERS MAKES ANY REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF ANY SOFTWARE OR ANY CONTENT THEREIN OR GENERATED THEREWITH, OR THAT: (A) THE USE OF ANY SOFTWARE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (B) THE SOFTWARE WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (C) THE SOFTWARE (OR ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SOFTWARE) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS); (D) ERRORS OR DEFECTS WILL BE CORRECTED; OR (E) EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8.2 (VIRUS WARRANTY), THE SOFTWARE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU MAY HAVE OTHER STATUTORY RIGHTS, IN WHICH CASE: (F) THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW; (G) YOUR ENTITLEMENT TO RELIEF IS LIMITED TO THOSE FORMS OF RELIEF REQUIRED BY STATUTE; AND (H) TO THE EXTENT PERMITTED BY LAW, THE FORM OF ANY RELIEF SHALL BE AT OUR DISCRETION.
7. Limitations of Liability
7.1. Exclusions to Liability. Neither party (nor their suppliers or Affiliates) will have any liability (whether in contract, tort, strict liability or otherwise) arising out of or related to this agreement for ANY LOSS OF USE, LOST OR INACCURATE DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
7.2. Liability Cap. Except to the extent that any law or regulation provides otherwise, EACH PARTY’S AND ITS SUPPLIERS’ AGGREGATE LIABILITY TO THE OTHER ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY YOU TO US UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM.
8. IP Indemnification
8.1 Indemnification by FormKiQ. FormKiQ will defend, indemnify, and hold harmless you and your members, employees, and agents from and against any third party liability, claims, demands, damages, judgments, losses and expenses of any nature, including legal expenses and attorney’s fees, arising out of any theory of liability (including tort, warranty, or strict liability) or out of damage to any property, due to any third party claim alleging that the Services, as delivered, infringes, misappropriates or violates any third party copyrights, trademarks or patent rights.
You will defend, indemnify, and hold harmless FormKiQ and its members, employees, and agents from and against any third party liability, claims, demands, damages, judgments, losses and expenses of any nature, including legal expenses and attorney’s fees, arising out of any theory of liability (including tort, warranty, or strict liability) or out of damage to any property, related in any way to your use of the Services or exercise of the rights granted under these Terms except to the extent the claim is subject to FormKiQ’s indemnification obligation set forth in section 8.1.
You may not assign or transfer this Agreement without our prior written consent. As an exception to the foregoing, you may assign this Agreement in its entirety (including all Orders) to your successor resulting from your merger, acquisition, or sale of all or substantially all of your assets or voting securities, provided that you provide us with prompt written notice of the assignment and the assignee agrees in writing to assume all of your obligations under this Agreement (including liability for past performance). Any attempt by you to transfer or assign this Agreement except as expressly authorized above will be null and void.
We may assign our rights and obligations under this Agreement (in whole or in part) without your consent. We may also permit our affiliates, agents and contractors to exercise our rights or perform our obligations under this Agreement, in which case we will remain responsible for their compliance with this Agreement. Subject to the foregoing, this Agreement will inure to the parties’ permitted successors and assigns.
10. Export Restrictions
You represent and warrant that you are not in violation of and will not violate any export control laws, regulations or directives in the United States, Canada, or in your own country or region (if applicable) by entering into or in the performance of your rights or obligations under this Agreement.
11. Publicity Rights
We may identify you as an FormKiQ customer in our promotional materials. We will promptly stop doing so upon your request sent to email@example.com.
Any notice under this Agreement must be given in writing. We may provide notice to you via email or through your account. You agree that any such electronic communication will satisfy any applicable legal communication requirements, including that such communications be in writing. Our notices to you will be deemed given upon the first business day after we send it.
Either party’s failure to insist upon strict performance of any obligations under this Agreement, or the failure to exercise any of the rights or remedies to which either party is entitled under this Agreement, does not constitute a waiver of such rights or remedies and shall not relieve either party from compliance with such obligations.
Our waiver of any default shall not constitute a waiver of any subsequent default.
A waiver of any of these terms and conditions shall not be effective unless it is expressly stated to be a waiver and is communicated to the other party in writing.
If any of the terms of this Agreement are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
15. Changes to this Agreement
We may modify the terms and conditions of this Agreement from time to time. We will post the revised terms to our website ("Website") with a last updated date. We will attempt to notify you of any material updates via email, or through the Services. Continuing to use the Services after the effective date, you agree to be bound by the revised terms. You agree that we shall not be liable to you or to any third party for any modification of the Terms.
16. Entire Agreement
This Agreement constitutes the whole of the agreement between the parties. You agree that you have not relied on any statement, representation, assurance or warranty made by any person (including a third party) in entering into this Agreement. This Agreement supersedes all prior or contemporaneous oral or written communications, proposals and representations between you and FormKiQ with respect to the Products or any other subject matter covered by this Agreement.
17. Force Majeure
Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
18. Law and Jurisdiction
This Agreement and any action related thereto will be governed by the laws of the Province of Manitoba, Canada without regard to its conflict of laws provisions.