PLEASE READ THIS CUSTOMER TERMS, CONDITIONS AND USER AGREEMENT (the “Agreement”) BEFORE USING FORMED AI, INC.’S (“Formed AI”) SERVICES. BY ACCESSING OR USING FORMED AI’S PRODUCTS, THE CUSTOMER SIGNIFIES ACCEPTANCE OF AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE PRODUCTS.
This Agreement form a part of the agreement between the Customer and Formed AI with respect to any Products (as defined below) purchased by Customer. From time to time, Formed AI may update the Agreement to comply with applicable law or to support its then-current business practices. Customer agrees that Formed AI may communicate changes to Customer via email, Formed AI website, or by any other reasonable means and that Customer’s continued use of the Products after the date of such notification shall constitute Customer’s agreement to such changes (subject to Customer’s right to cancel the Products in accordance with Section 7 below).
Capitalized terms used in any of the Agreement documents shall have the following meanings, unless otherwise defined in such documents:
“Affiliate” means any third party that directly or indirectly controls, is controlled by, or is under common control with, either of the parties to the Agreement. For this purpose, “control” means the direct or indirect possession of power to direct or cause the direction of the management or policies of a party, whether through ownership of stock or other securities, by contract or otherwise. Ownership of more than fifty percent (50%) of the beneficial interest of an entity shall be conclusive evidence that control exists.
“Formed AI Content” means the audio, visual and/or electronic information, data, documents, or materials made available by Formed AI or its third-party suppliers to Customer in the course of using the Products;
“Formed AI Technology” means all of Formed AI proprietary and/or licensed technology, including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs, documentation, and other tangible or intangible technical materials or information;
“Billing Cycle” means the period of time between billings for Products fees (e.g., one-time, monthly, quarterly, annually);
“Business Day” means any calendar day, excluding Saturdays, Sundays and United States federal government holidays;
“Customer” means the legal entity identified in the registration and identification data provided to Formed AI via an Order Form;
“Customer Materials” means the audio, visual and/or electronic information, data, documents, or materials provided by Customer in the course of using the Products;
“Customer Systems” means all necessary systems, facilities and resources of any kind required to be provided by Customer to effectively access and use the Products, including, as applicable, Customer or third-party communication lines, databases, content libraries, software, hosted platforms, hardware, firewalls, internet connections, routing and network addresses, configurations, logos, trademarks, general information, facilities, APIs, personnel, and key contacts for problem escalation;
“Customer Systems and Materials” means Customer Systems together with Customer Materials;
“days” means calendar days unless otherwise specified;
“including” means including without limitation;
“Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature;
“Invoice” or “Bill” means any document related to accounts payable including an invoice, vendor statement, work order, purchase order or general vendor correspondence;
“Products” means the various products, services and solutions for sale to the Customer by Formed AI, including software and services hosted by Formed AI, Inc. or one of its Affiliates via a secure web portal. This may include data extraction, document/data workflow, enterprise content management, system integration and other solutions as more particularly described on one or more Order Forms or Statements of Work agreed to by Customer and Formed AI;
“Quotations” means the quote(s) evidencing any payment terms for Products, specifying, among other things, the Products contracted for, the applicable fees, the Billing Cycle, and other charges and terms as agreed to between the parties;
“Support” means the maintenance, hosting and support services for the Products; and
“Transaction” means each document, form, invoice, purchase order, contract, notice, statement, image, or any other item processed by Formed AI via the Products on a fee per item basis. A transaction charge applies to each individual item submitted into the Products by Customer.
Formed AI grants to Customer a non-exclusive, non-assignable or transferable (except to permitted successors and assigns in accordance with Section 19 below), limited right to access and use the Products, Formed AI Technology and Formed AI Content solely for Customer’s own internal business purposes and operations during the term of the Agreement, subject to Customer’s compliance with the terms and conditions of the Agreement, including payment of all applicable charges. Customer agrees to accept all modifications that Formed AI in its sole discretion may make to the Products and provide to Customer at no additional charge, including any updates, upgrades and fixes. Customer agrees it will not (i) license, sublicense, sell, resell, rent, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Products, Formed AI Technology or Formed AI Content in any way; (ii) copy, modify, republish or make derivative works based upon the Products, Formed AI Technology, Formed AI Content or any documentation related thereto; (iii) use or access the Products to provide service bureau, time-sharing or other computer hosting services to third parties; (iv) remove, modify or obscure any copyright, trademark or other proprietary notices contained in the software used to provide the Products or in any documentation; (v) create internet links to the Products or frame or mirror any Formed AI Content on any other server or wireless or internet-based device; (vi) reverse engineer the Products, Formed AI Technology or Formed AI Content; or (vii) access the Products, Formed AI Technology or Formed AI Content in order to (a) build a competitive product or service; (b) build a product using similar ideas, features, functions or graphics; (c) monitor its availability, performance or functionality or for any other benchmarking or competitive purposes; or (d) copy any ideas, features, functions or graphics of the Products, Formed AI Technology or Formed AI Content.
Customer further agrees it will not use the Products, Formed AI Technology or Formed AI Content to: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable law; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Products or the data contained therein; or (v) attempt to gain unauthorized access to the Products, Formed AI Technology, Formed AI Content or any related systems or networks.
Formed AI will give Customer access to and use of the Products and Products via a browser (or similar) interface, FTP (file transfer protocol), or proprietary software installed locally on Customer’s hardware. Customer is responsible for any and all activities that occur through Customer’s user account(s) and shall abide by all applicable law in connection with use of the Products.
Customer shall: (i) keep all passwords and user ID’s confidential and promptly notify Formed AI after discovery of any unauthorized use of any password or user account or any other known or suspected breach of security and (ii) not knowingly impersonate another user of the Products or provide false information to gain access to or use the Products. Formed AI may suspend or deactivate Products as reasonably required to investigate or stop illegal, fraudulent or suspicious activities, provided that Formed AI will give Customer notice of any such suspension or deactivation as soon as practicable if such notice is permitted by law enforcement or regulatory agencies and reinstate suspended Products promptly when the reasons for the suspension are cured.
Except for the limited right to access and use the Products granted to Customer in this Section, Formed AI and its third-party licensors retain all right, title and interest, including all intellectual property rights, relating to or embodied in the Products, Formed AI Technology, Formed AI Content, services, documentation, and any suggestions, ideas, enhancement requests, feedback, recommendations or other information relating thereto offered by Customer or any other party. The Agreement is not a sale of and does not convey to Customer any rights of ownership in or related to the Products, Formed AI Technology, Formed AI Content or intellectual property rights of Formed AI. Formed AI name, logos and the product names associated with the Products are trademarks of Formed AI or third parties, and no right or license is granted for Customer to use them. Customer agrees that all aggregated user data available from the Products, Formed AI Technology and Formed AI Content that is not specific to and does not identify Customer is owned exclusively by Formed AI.
3. CUSTOMER’S OBLIGATIONS
Customer agrees to provide and maintain at its sole expense all Customer Systems and is responsible for upgrading and configuring Customer Systems to be and remain compatible with the Products and Formed AI Technology. Formed AI shall not be liable under the Agreement with respect to the Customer Systems and Materials, including the failure by Customer to timely provide the Customer Systems and Materials. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and intellectual property rights to use, and the provision and maintenance of, all Customer Systems and Materials in connection with the Products. To the extent that Customer includes personal or consumer information within Customer Materials, Customer, and not Formed AI, shall be solely responsible for such information and compliance with all applicable law relating thereto, including any notices or remedies that may be required to be provided to any party, and Customer shall indemnify and hold Formed AI harmless against any liability that may arise in connection with such information. Notwithstanding the foregoing, Formed AI remains responsible for its confidentiality obligations under Section 12 below.
During implementation of the Products, the Customer agrees to:
- Designate a person known as the Customer Project Manager who will have the authority to act on behalf of the Customer in all matters regarding the project and statement of work. The Customer Project Manager will be responsible for facilitating all communications between the Customer and Formed AI, and for cooperating as to issue resolution, activity scheduling, interview scheduling, and information collection and dissemination. The timeliness of communications and other activities will directly affect our ability to meet agreed upon schedule deadlines;
- Ensure that Formed AI has access to the account(s) associated with the relevant Formed AI software offerings and all related infrastructure, networks and facilities;
- Provide Formed AI with a work area for personnel if on-site work is required, which shall include access to any required network, servers, printers, Internet connection (to support a Virtual Private Network connection), and a working telephone;
4. CUSTOMER’S AUTHORIZATIONS
Customer authorizes Formed AI: (i) to use and disclose Customer Materials to the extent necessary to provide the Products; (ii) as may be applicable for any given Product, to act on behalf of Customer to facilitate electronic document receipt when available from Customer-selected, electronic submission-ready vendors, including the facilitation of email and data only submissions
5. FEES AND PAYMENT
The fees for the Products are set forth on the approved statement of work or any/all applicable quotations or invoices. Customer agrees that invoices for the fees and any other amounts due and payable to Formed AI under the Agreement may be sent by check or transmitted electronically. Customer will give Formed AI complete and accurate billing and contact information, including Customer’s legal name, street address, email address and the name(s) and telephone number(s) of authorized billing contact(s) and administrator(s). Customer agrees to update this information as soon as practicable following any changes.
Unless otherwise noted in an invoice or statement of work, any services will be performed during normal business hours (Monday through Friday, 8:00am to 5:00pm local time, excluding holidays). To the extent that Customer requires services to be provided outside of normal business hours, if acceptable to Formed AI in our reasonable discretion, a Change Order may be issued, which may include an increase to the applicable Fees. All fees are independent of any travel or other expenses incurred by Formed AI in relation to onsite work (if applicable) and related charges, which shall be separately invoiced. Unless expressly included in an invoice or statement of work, (i) the scope of any services does not include system administration activities such as creating user accounts, adding users to groups, managing attribute lookup data and related activities.
Any amounts due to Formed AI are payable via check or electronic funds (ACH, EFT or wire) and due within fifteen (15) days from the invoice date. Any late payment not disputed by Customer in good faith in writing by the applicable due date shall bear interest at the rate of 2.5% per month (prorated for partial periods), calculated daily, until payment is received by Formed AI. For the avoidance of doubt, Formed AI shall have no obligations under this Agreement until it has received cleared funds to cover the fees (for that period) of the Formed AI software support relating to the relevant Formed AI service and/or product. Customer shall reimburse Formed AI for any out-of-pocket costs incurred to collect past due amounts (including reasonable legal fees). Failure to timely collect any invoice amounts shall not constitute a waiver by Formed AI to collect or receive such amounts. Formed AI reserves the right to refuse to provide Products while any accrued and undisputed amounts remain unpaid. Notwithstanding any such suspension, Customer shall remain liable to Formed AI for all amounts payable under the Agreement.
If Customer is billed for any portion of the Products by an authorized reseller of Formed AI, Customer and Formed AI agree that the billing terms between Customer and such authorized reseller will govern Customer’s payment of the Service fees and related charges. Customer further agrees that if such reseller notifies Formed AI that Customer is in default of its payment obligations and instructs Formed AI to suspend the Products for non-payment, Formed AI shall have the right to suspend the Products without any obligation to verify such default has occurred and will make the Products available again when notice is received from the reseller that Customer has paid all past due amounts.
Fees and charges for the Products are exclusive of all taxes, levies, duties or other assessments by governmental authorities (collectively, “Taxes”), and Customer shall be responsible for payment of all Taxes in connection with the Products or arising from the Agreement, excluding only amounts based on Formed AI income. Formed AI shall add to each invoice, and Customer shall pay to Formed AI, any applicable Taxes. If any taxing authority determines at any time that Formed AI has incorrectly determined or not collected any Tax liability for which Customer is responsible, Formed AI, as applicable, shall have the right to invoice Customer for Taxes determined by such taxing authority to be due and owing or shall refund to Customer Taxes previously collected in error once such amounts have been refunded to Formed AI by the taxing authority.
6. PROJECT MANAGEMENT, GOVERNANCE AND THIRD-PARTY INTERACTIONS
As needed based on the scope of the SOW, Formed AI will assign a project manager to proactively manage and control the scope and budget of the project as well as direct the work of our resources. All personnel who work on the Products by or on behalf of Formed AI (“Personnel”) are (i) either regular, full or part-time employees or subcontractors that have valid work authorizations to the extent required by applicable law; and (ii) bound by agreements that contain obligations related to intellectual property and confidentiality no less restrictive than those set forth herein. We retain the exclusive right to select the Personnel that will provide the Professional Services and to make changes as required in our discretion. We are fully responsible for the performance of such Personnel who are providing Professional Services in connection with the SOW.
Formed AI shall have the right to use third parties, including independent contractors and the employees of Formed AI Affiliates, in the performance of its obligations under the Agreement at no additional expense to Customer. Customer agrees that no employees of Formed AI or its contractors shall be required to individually sign any agreement with Customer in order to provide Products, including access, security, facilities or confidentiality agreements. Notwithstanding the foregoing, the Agreement is for the sole benefit of Formed AI and Customer and their respective successors and permitted assigns; and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever.
The Agreement may be terminated prior to expiration of the term by either party upon the failure of the other party to perform any material obligation that is not cured within thirty (30) days after receipt of written notice and demand for cure from the affected party or within such longer period of time that may be agreed upon by the Parties. Except as may be expressly agreed to otherwise by the Parties, termination of the Agreement by a party shall be in addition to, and not in lieu of, any other remedies available to such party.
8. RENEWAL OF AGREEMENT
This agreement will be automatically renewed on the day following the last day of the initial signed contract.
Formed AI has the right to increase their usage, licensing, service, support, and/or processing fees up to 5% per year without notice, unless noted otherwise within the pricing proposal and/or approved statement of work. Formed AI may vary their non-financial terms of this Agreement relating to Support on one month’s written notice by email to the email address given on registration. Whenever such notice is given Customer shall have the right to terminate this Agreement if Customer has notified Formed AI in writing of their intention to terminate before the end of the notice period. Except as set out above, no amendment or variation shall take effect unless it is in writing and signed by an authorized representative of each of the parties. Without prejudice to any other rights, Formed AI may terminate this Agreement if Customer fails to comply with the terms and conditions of this Agreement or if Customer suffers any form of insolvency.
10. INTELLECTUAL PROPERTY RIGHTS
All intellectual property rights and any analogous rights of any nature created prior, during, or after the provision of the Agreement are the property of Formed AI. Nothing in this Agreement shall prevent or restrict Formed AI from using and exploiting any intellectual property rights, techniques, tools, ideas or know-how created, used or developed during the provision of the support for the Agreement for any purpose whatsoever. Customer will keep Formed AI fully indemnified against all reasonable costs, claims, expenses, judgments and liabilities suffered by Formed AI that arises through infringement of third-party intellectual property rights in any software or other material Customer has combined with the Formed AI’s Products when Formed AI is performing its obligations in accordance with this Agreement.
11. CHOICE OF LAW AND JURISDICTION
This agreement shall be governed by and construed in accordance with American law and the parties hereby submit to the exclusive jurisdiction of the laws in the United States, specifically in the State of New York.
12. DATA PROTECTION
Both parties undertake to comply with provisions of the Data Protection Act 1998 (“the Act”) in relation to the disclosure, use and storage of any personal information as defined in the Act. Customer name, phone, fax number, address and email address will be put into the Formed AI database and processed by us in servicing our relationship with Customer. By submitting Customer data to us, Customer agrees to our storage and use, and will not disclose your data. Unless Customer notifies us otherwise, Customer agrees that Formed AI may use and analyze their data to give Customer information about our other services, which may be of interest to them.
Each party may disclose (the “Discloser”) confidential and proprietary information (“Confidential Information”) to the other party (the “Recipient”) in connection with the performance of the Agreement. The Recipient shall hold such Confidential Information in confidence and shall not disclose it except to its employees or agents who have a need to know such Confidential Information in order to perform the Recipient’s obligations under the Agreement. Customer’s Confidential Information shall include all information relating to the trade secrets or business affairs of Customer, including its financial information and its computing environment. The Confidential Information of Formed AI shall include the Products and related fee information, Formed AI Technology, Formed AI Content and other information relating to the trade secrets or business affairs of Formed AI, its suppliers and agents.
Recipient shall protect and safeguard the Confidential Information of the Discloser and agrees not to, in whole or in part, sell, lease, license, assign, transfer or disclose such Confidential Information to any third party and shall not copy, reproduce or distribute the Confidential Information, except as contemplated by the Agreement. Recipient shall take reasonable precautions, but no less than those precautions used to protect its own Confidential Information, to prevent the theft, disclosure and unauthorized copying, reproduction or distribution of the Discloser’s Confidential Information. Recipient shall promptly notify Discloser if Recipient has a reasonable belief that Discloser’s Confidential Information has been disclosed other than as permitted by the Agreement. The parties acknowledge and agree that Formed AI may disclose Confidential Information on a confidential basis to a third party in connection with any work that the third party is performing on behalf of Formed AI.
Neither party shall have any rights in the other party’s Confidential Information and shall return or destroy all such Confidential Information upon the termination or expiration of the Agreement or upon receipt of written notice from the Discloser. Notwithstanding the foregoing, the parties agree that the Recipient shall not be required to return to the Discloser or destroy those copies of Confidential Information residing on Recipient’s backup, disaster recovery, or business continuity systems and that the obligations hereunder with respect to such Confidential Information shall survive until it is destroyed from such systems by the Recipient and for such additional period specified in this Section.
Recipient acknowledges that Discloser shall have the right to take all reasonable steps to protect its Confidential Information including, but not limited to, injunctive relief and any other remedies as may be available at law or in equity in the event the Recipient does not fulfill its obligations under this Section.
Confidential Information shall not include information that: (a) was already in the lawful possession of the Recipient prior to receipt thereof, directly or indirectly, from the Discloser; (b) becomes available to Recipient on a non-confidential basis from a source other than Discloser that is not under an obligation to keep such information confidential; (c) is generally available to the public other than as a result of a breach of the Agreement by Recipient or its representative(s); or (d) is independently developed by or for Recipient without reference to the Confidential Information. In addition, a party shall not be considered to have breached its obligations by disclosing Confidential Information of the other party as required to satisfy any request of a competent governmental body, provided that promptly upon receiving any such request, and to the extent that it may legally do so, such party advises the other party of the request prior to making such disclosure so that the other party may object to such disclosure, take action to assure confidential handling of the Confidential Information, or take such other action as it deems appropriate to protect the Confidential Information.
The terms and conditions of this Section shall survive termination or expiration of the Agreement for a period of three (3) years; provided, however, with respect to any information provided by the Discloser concerning the infrastructure or security of its computing network, these terms and conditions shall continue until such information is no longer protected as Confidential Information by the Discloser.
Customer shall defend, indemnify and hold harmless Formed AI, its Affiliates and licensors and their respective directors, officers, employees and agents against any and all third party claims, damages, losses, liabilities, costs and reasonable expenses (including reasonable attorneys’ fees) arising out of or in connection with (i) any claim alleging that use of the Customer Systems and Materials in connection with the Products infringes the rights of, or has caused harm to, a third party or (ii) a breach of Customer’s representations, warranties or obligations under the Agreement.
Formed AI shall defend, indemnify and hold harmless Customer, its Affiliates and their respective directors, officers, employees and agents against any and all third party claims, damages, losses, liabilities, costs and reasonable expenses (including reasonable attorneys’ fees) arising out of any claim made by any third party that the Products as supplied by Formed AI infringe a United States copyright or a United States patent. If such a claim is made or is likely to be made, Formed AI will, at its own expense and sole discretion, exercise one or more of the following remedies: (a) obtain for Customer the right to continue to use the Products consistent with the Agreement; (b) modify the Products so they are non-infringing and in compliance with the Agreement; or (c) terminate the infringing portion of the Products without liability for such termination other than the ongoing indemnity obligation hereunder. Formed AI will have no indemnity obligation or other liability hereunder arising from: (1) Customer’s negligence, breach of the Agreement or alteration of the Products as provided by Formed AI; (2) the Customer Systems and Materials or information, designs, specifications, directions, instructions, software, data or materials not furnished by Formed AI; or (3) the combination of the Products with Customer Systems and Materials or hardware, software, materials, products or Products not provided by Formed AI. The foregoing states the entire obligation of Formed AI and its licensors, and the exclusive remedy of Customer, with respect to infringement of proprietary rights.
A party claiming indemnification under this Section (the “Indemnified Party”) shall give the other party prompt written notice of such claim for indemnification, reasonable assistance in the defense of the claim and exclusive authority to defend, compromise or settle the claim, so long as no such settlement or compromise places any obligations on, or waives any rights of, the Indemnified Party without its prior written consent.
15. WARRANTY AND DISCLAIMER
Formed AI warrants to Customer that the Products will conform in all material respects with the terms of the Agreement and any product documentation published by Formed AI. If Customer notifies Formed AI of a breach of warranty during the Agreement term, upon confirmation by Formed AI, Formed AI will use reasonable efforts to correct the defect, which may include providing a work-around, patch or replacement technology of functional equivalence. Customer agrees to use reasonable efforts to assist Formed AI in diagnosing, replicating and correcting defects or other issues concerning the Products, which may include providing information and remote access to Customer Systems, but only to the extent reasonably required to resolve the issue. The foregoing remedy is sole and exclusive for any breach of warranty claim. Formed AI and its licensors make no other representation, warranty, or guarantee as to the suitability, quality, reliability, timeliness, truth, availability, accuracy or completeness of the Products or any content.
EXCEPT FOR THE EXPRESS WARRANTY GIVEN IN THIS SECTION, THE PRODUCTS AND ALL FORMED AI CONTENT ARE PROVIDED TO CUSTOMER STRICTLY ON AN “AS IS, AS AVAILABLE” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
Service errors, defects, failures or other non-compliance caused, in whole or in part, by (a) Customer’s failure to comply with the Agreement; (b) the acts or omissions of any person other than Formed AI or its agents; (c) Customer’s modification of the Products or any part thereof; (d) Customer’s use of the Products or any part thereof in combination with any Customer Systems and Materials or systems or materials furnished by a third party; or (e) any other cause beyond Formed AI reasonable control (e.g., computer viruses, hackers, failure of electric power, internet downtime) are excluded from Formed AI warranty.
16. INTERNET AND OTHER DELAYS AND/OR FAILURES
Neither party shall be liable for any delay or failure to perform (excluding, however, Customer’s obligations to pay for Products provided) due to causes beyond its reasonable control, including without limitation, acts of God; fires; explosions; floods; stability or availability of the internet; telecommunication failures; war; technology attacks; epidemics; acts of terrorism; riots; embargoes; quarantines; viruses; strikes; lockouts; disputes with workmen or other labor disturbances; total or partial failure of transportation, utilities, delivery facilities or supplies; acts or requests of any governmental authority; or any other cause beyond its reasonable control whether or not similar to the foregoing.
17. LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY OR ITS LICENSORS BE LIABLE FOR ANY PUNITIVE, SPECIAL, COVER, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES OF ANY TYPE OR KIND (INCLUDING FOR EXAMPLE, LOSS OF GOODWILL, DATA, REVENUE, PROFITS, SAVINGS, USE OR ECONOMIC ADVANTAGE) ARISING OUT OF, OR RELATING TO, THE PRODUCTS OR THE AGREEMENT, EVEN IF A PARTY OR ITS LICENSORS WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE FORESEEABLE.
THE CUMULATIVE LIABILITY OF FORMED AI UNDER THE AGREEMENT IN CONNECTION WITH ANY GIVEN SERVICE, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES RECEIVED FROM CUSTOMER FOR SUCH SERVICE WITHIN THE MOST RECENT SIX-MONTH PERIOD UNDER THE AGREEMENT.
NO ACTION ARISING OUT OF THE AGREEMENT MAY BE BROUGHT MORE THAN ONE (6) MONTHS AFTER THE CAUSE OF ACTION HAS ACCRUED.
THE DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THE AGREEMENT SHALL SURVIVE EXPIRATION OR TERMINATION OF THE AGREEMENT, WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THE AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE AND FORM AN ESSENTIAL PART OF THE CONSIDERATION FOR THE PARTIES’ PERFORMANCE.
You agree that all access and use of the Products, websites, tools or data that is made available by Formed AI and its affiliates is at your own risk. By using these Products, websites, tools or data, you acknowledge that Formed AI specifically disclaims any liability (whether based in contract, tort, negligence, strict liability or otherwise) for any direct, indirect, incidental, common law, statutory, regulatory, consequential, compensatory, punitive, or special damages arising out of or in any way connected with your access to or use of the Products, websites, tools or data (even if Formed AI has been advised of the possibility of such damages) including, but not limited to, any liability associated with any viruses which may infect your computer equipment.
For purposes of this section, “Formed AI” includes its employees, sub-contractors and suppliers, partners, and affiliates.
Any notice required or permitted to be given concerning a party’s obligations or rights under the Agreement shall be sent in writing by confirmed facsimile, first class mail (postage prepaid with return receipt requested) or by nationally recognized overnight delivery service and shall be deemed given upon receipt. Formed AI shall use Customer’s then current contact information on record in Formed AI account information for all notices. Customer shall send notices to Formed AI either i) by mail to Formed AI, Inc., 414 Union Street Schenectady, NY 12305; or ii) by email to firstname.lastname@example.org.
Formed AI reserves the right to modify its policies relating to the Products and this Agreement at any time. Such changes may be communicated to Customer by posting them on Formed AI website or the web portal for the Products or by sending an email to Customer or by any other reasonable means of communication. Customer’s continued use of the Products after implementation of such changes constitutes Customer’s acceptance thereof. If Customer notifies Formed AI in writing within 30 days following Formed AI implementation of such changes that they materially adversely affect Customer and Formed AI does not agree to a modification to mitigate such adverse effect to Customer, then Customer shall have the right to terminate the Agreement without penalty upon 30 days prior written notice provided that Customer has paid all amounts due and owing as of the termination date.
20. ASSIGNMENT AND TRANSFERABILITY
Customer may not assign or transfer the Agreement without the prior written consent of Formed AI, which consent shall not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, either party may assign the Agreement without the prior written consent of the other party: (i) to any Affiliate of the assigning party, provided that the assigning party remains the guarantor of all the assignee’s obligations hereunder; (ii) in connection with the sale of all or substantially all of the assigning party’s assets or equity interests or (iii) to any lender where such assignment serves solely as collateral for security purposes. All of the terms of the Agreement shall be binding upon and inure to the benefit of the parties’ permitted successors and assigns.
Formed AI will provide a web-based support ticketing system which will be communicated directly to Customer, and will follow-up by telephone, email, and/or on-site support to provide the level of required technical support needed to resolve the issue related to the following inquiry:
- Installation of any Formed AI software products;
- Basic functionality of the Formed AI Products; and
- Configuration of the Formed AI software application settings
Customer acknowledges that due to the multiple hardware and software environments into which our Products may be installed and/or used, Formed AI cannot guarantee that every inquiry or connectivity issue between our services, third-party services, service providers, and the hardware or software in question will be resolved. Subject to and in accordance with the terms of this Agreement, Formed AI sole support obligation is to provide reasonable and good faith efforts to resolve your inquiries arising from your use of the Formed AI Products.
Support calls may be recorded to maintain quality of service and for training purpose.
22. SUPPORT AVAILABILITY
Formed AI will provide technical support on weekdays between the hours of 8:00am and 5:00pm (Mountain Standard Time) from the date of the purchase. Formed AI retains the right to refuse support if an invoice is not paid current or the agreement has been terminated. Formed AI will not provide support on United States public holidays or where it reasonably determines (in its sole discretion) that support staff will not be available.
Formed AI reserves the right to limit the number of individuals from the end user company that are authorized to solicit support.
23. WHERE SUPPORT WILL NOT BE PROVIDED
Formed AI may not provide Support where it reasonably determines (in its sole discretion) that:
- Customer inquiries relate to business practice, application consulting or training;
- Customer use or request of the Formed AI Products is outside the parameters set out in the agreed upon statement of work;
- Customer use of the Support is excessive, abusive or fraudulent;
- Customer is not using a current release of a Formed AI product or its immediate predecessor;
- Customer request falls outside or beyond the scope of work presented in a custom development enhancement or add-on to a Product, or to the overall statement of work;
- Customer request is to change, modify or enhance the original Product release, custom development enhancement or add-on or is work outside of the agreed upon SOW.
The Agreement shall be deemed made in, and governed by the laws of, the state of New York without regard to any conflicts of law provisions of any jurisdiction. The parties agree that any claims will be resolved on an individual basis without resort to any form of class action and will not be consolidated with the claims of any other parties. No text or information set forth on any purchase order or other preprinted form or document shall add to or vary the terms and conditions of the Agreement. If any provision of the Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the Agreement shall be modified to reflect the intent of the invalid or unenforceable provision to the greatest possible extent, with all other provisions remaining in full force and effect. The parties are independent contractors and no joint venture, partnership, franchise, employment or agency relationship exists between Customer and Formed AI as a result of the Agreement or use of the Products. The failure of Formed AI to enforce any right or provision in the Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Formed AI in writing. No waiver shall be deemed a continuing waiver or waiver in respect of any subsequent breach or default, whether of similar or different nature, unless expressly stated in writing.
Except for materials already made public, neither party will publish any news releases or other information concerning the Agreement, nor use the other party’s name or trademarks, without the other party’s prior written consent. Notwithstanding the foregoing, Formed AI may use Customer’s name and trademarks in a list of customers or in connection with written sales or promotional materials.
All provisions of the Agreement which by their nature may require performance after expiration or termination of the Agreement shall survive such expiration or termination, including appropriate provisions of Section 2 (Customer’s Obligations), Section 3 (Customer’s Authorizations), Section 4 (Fees and Payment), Section 5 (Third Party Interactions), Section 12 (Confidentiality), Section 13 (Indemnification), Section 16 (Limitation of Liability), Section 23 (General) and Section 24 (Definitions).