IN THIS AGREEMENT, "YOU" OR "YOUR" MEANS THE INDIVIDUAL WHO ACCEPTS THIS AGREEMENT WHERE THE YOU IS AN INDIVIDUAL AND, WHERE YOU ARE A CORPORATION, PARTNERSHIP, OR OTHER LEGAL ENTITY WHICH HAS GROUPS OF USERS WHO NEED TO ACCESS AND USE THE PRODUCT YOU OR YOUR MEANS THE CORPORATION, PARTNERSHIP OR OTHER LEGAL ENTITY,. THE INDIVIDUAL ACCEPTING THESE TERMS AND CONITIONS ON BEHALF OF THE CORPORATION, PARTNERSHIP OR OTHER LEGAL ENTITY REPRESENTS AND WARRANTS THAT HE/SHE HAS THE AUTHORITY TO BIND THE CORPORATION, PARTNERSHIP OR OTHER LEGAL ENTITY AND SHALL ENSURE THAT ALL PERSONS GIVEN ACCESS TO THE PRONTOFORMS SERVICES SHALL AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
- General. This Agreement sets forth the terms and conditions pursuant to which You may use the Forms, as they may be corrected, updated, modified, enhanced, deleted or replaced by TrueContext from time to time. Together, the Forms, the software ("Software") required in order to use the PRONTOFORMS SERVICE and any related documentation ("Documentation") are referred to in this Agreement as (the "Product"). The Product is the property of TrueContext or its licensors, and is protected by copyright and other intellectual property laws. The Product is licensed, not sold, to You for use only under the terms of this Agreement, and TrueContext and its licensors reserve all rights not expressly granted to You under this Agreement. You shall only permit its employees and contractors to access the PRONTOFORMS SERVICE through its account, provided that the number of employees and contractors permitted to access the PRONTOFORMS SERVICE does not exceed the number of users licenses purchased by You. If You wish to increase the number of users, You shall follow the procedure from time to time prescribed by TrueContext for adding additional users. The additional monthly fee applicable for the additional users shall be added to Your account. The additional users shall be subject to the terms and conditions of this Agreement. You will be responsible for all acts and omissions of any employee or contractor that it permits to access the PRONTOFORMS SERVICE and agrees to indemnify and hold TrueContext harmless from all costs, losses and damages suffered by TrueContext as a result of such acts or omissions of anyone gaining access to the PRONTOFORMS SERVICE through You.
- Grant of License. Subject to the terms and conditions of this Agreement and for so long as You continue to pay the subscription fees for the PRONTOFORMS SERVICE, TrueContext grants to You a non-exclusive, non-transferable, revocable license to: (a) download, configure and use any of the Forms on each computer or personal digital assistant from which You access the PRONTOFORMS SERVICE; (b) modify specifically designated portions of the Forms; (c) input data into the Forms; (d) archive the Forms and delete any data input to the Forms; (e) print and use, but not further reproduce, one copy of the Documentation solely for the purpose of accessing and using the PRONTOFORMS SERVICE; (f) use or authorize each of its users to use a single copy of the Software in object code form on a personal digital device to access and use the PRONTOFORMS SERVICE. If this license is an evaluation or trial license, You agree that at the end of the thirty (30) day trial period You will no longer be able to use the PRONTOFORMS SERVICE unless You purchase a license or unless You register for a free license. You further agree that any data which it input into the PRONTOFORMS SERVICE during the trial period or any free license period may not be accessible after the end of the trial period or after termination of the free license as set out below. If You register for a free license and You do not use or account within thirty (30) days after You register, or if Your free account is not used for a period of one hundred and twenty (120) consecutive days, TrueContext may terminate Your free license. You agree that the free license shall only be used for non-commercial uses and for no other purpose.
- License Restrictions. Except as expressly permitted in Section 2 of this Agreement You may not: (a) use the Product except to receive the PRONTOFORMS SERVICE; (b) use, reproduce, copy, modify, adapt, translate, update or transmit the Product, in whole or in part; (c) sell, rent, lease, license, transfer, distribute or otherwise provide access to the Product or PRONTOFORMS SERVICE to any third party, except to those employees and contractors providing services to You; (d) alter, remove, or cover trademarks, copyright, or other proprietary notices or legends in or on the Product; (e) use the Product for service bureau purposes or otherwise to provide services to any third party; (g) use the Product in the operation of critical data systems, such as those used for the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control systems, patient data systems, life support machines or other equipment in which the failure of the Product could lead to death, personal injury, or severe physical or environmental damage; (f) reverse engineer, decompile or otherwise attempt to get the source code for the Software.
- Software. In order to use the forms as part of the PRONTOFORMS SERVICE You acknowledge and agree that You will need to download TrueContext’s client component of the Software. A copy of the client Software can be obtained from live.prontoforms.com. To the extent that the Software contains any third party software including open source software, You agree and shall ensure that Your users agree to be bound by the terms and conditions of any license associated with or reference in such third party software. Certain of the open source software has been modified by TrueContext and such modifications have been noted by TrueContext in the documentation provided with such open source software product.
- Ownership. You acknowledge and agree that TrueContext or its licensors own all right, title and interest in and to the Product, and that this Agreement does not grant to You any right, title or interest in or to the Product, other than the limited license granted herein. This license is not a sale of a copy of any of the Product and does not render You the owner of a copy of any of the Product.
- Transfer. You may not assign this Agreement or otherwise transfer the Product without the prior written consent of TrueContext, which consent TrueContext has no obligation to provide.
- Payment. You agree to pay to TrueContext any and all monthly subscription fees and other fees which are payable to TrueContext in connection with the PRONTOFORMS SERVICE. All monthly subscription fees are payable in advance on the first day of each month that You is a subscriber to the PRONTOFORMS SERVICE. Fees for the first month of service commencing on the Commencement Date (as defined on the first page hereof) will be pro-rated for the number of calendar days between the Commencement Date and the last calendar day in the first month of service and will be billed together with the fees for the first full calendar month of PRONTOFORMS SERVICE. If You sign up for additional subscribers at any time while this Agreement is in effect, the fees for such additional subscribers shall commence upon the date that You request that the additional subscribers be added, regardless of when such subscribers actually begin using the PRONTOFORMS SERVICE. If the PRONTOFORMS SERVICE for the additional subscribers commence during a month, the fees for the additional subscribers will be prorated and billed with the fees for all subscribers (both new and existing) at the beginning of the following month. TrueContext may require a deposit from You. Any deposit will be credited to Your account any time after at least six (6) consecutive months in good standing on all of Your accounts with TrueContext, You will not earn any interest on any deposits held by TrueContext. If this Agreement is terminated, TrueContext will apply the deposit against the outstanding balance on Your account as well as any early termination charges which may be payable as a result of the termination.
- Privacy. TrueContext's privacy and security policies may be viewed at www.prontoforms.com. TrueContext reserves the right to modify its privacy and security policies in its reasonable discretion from time to time. Individual users when they initially login will be asked whether or not they wish to receive marketing and other non-critical service-related communications from TrueContext from time to time. They may opt out of receiving such communications at that time or at any subsequent time by changing their preference under My Account. Note that because the PRONTOFORMS SERVICE is a hosted, online application, TrueContext occasionally may need to notify all users of the PRONTOFORMS SERVICE (whether or not they have opted out as described above) of important announcements regarding the operation of the PRONTOFORMS SERVICE. If You become a paying customer of the PRONTOFORMS SERVICE, You agree that TrueContext can disclose the fact that You are a customer of the PRONTOFORMS SERVICE. You are responsible for protecting the privacy of any of Your customer's personal information that You input into the Forms and You acknowledge and agree that TrueContext shall have no liability for any claims made against You as a result of any claims by Your customers or any third party related to the misuse of personal information and You agree to indemnify and hold TrueContext harmless from any claims, costs, losses or damages arising from any claims by Your customers or any third party related to the misuse of personal information.
- Export and Territorial Restrictions. The Product contains encryption technology that is controlled for export by the U.S. and Canadian government, and may be subject to import and/or use regulations in other jurisdictions. It is Your responsibility to comply with laws and regulations relating to the export, import and use of the Product. You represent, warrant and covenant that it is not and will not be (i) a national of or resident of Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria, or to persons or entities prohibited from receiving U.S. exports; (ii) anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders or Entity List; or (iii) a resident of any jurisdiction to which export or re-export of the Product is prohibited, including, without limitation, jurisdictions included under the Area Control List of the Exports and Imports Permit Act of Canada. You will not, in any manner whatsoever, remove, convey, export, re-export or transmit the Product in a manner that would contravene the spirit or the letter of any export law, regulations or policies in any country, including any international treaties or agreements, and You will not permit, encourage, assist or facilitate such activities by any other person or entity.
- Term and Termination. This Agreement is a month to month agreement commencing on the Commencement Date. This Agreement will be automatically renewed at the end of each month for an additional month if neither party gives the other party thirty (30) days notice prior to the start of the next month that it does not wish to renew this Agreement. This Agreement may be terminated immediately by TrueContext without notice from TrueContext: (a) upon the termination or expiration of the agreement between TrueContext and the Service Provider pursuant to which TrueContext grants to the Service Provider the right to provide the PRONTOFORMS SERVICE to You; (b) upon the termination of Your agreement with the Service Provider relating to the PRONTOFORMS SERVICE; or (c) if the Service Provider ceases to offer the PRONTOFORMS SERVICE. TrueContext may terminate this Agreement if You are in breach of this Agreement and fails to remedy such breach within fifteen (15) days of notice from TrueContext.
- Effect of Termination. Upon any termination or non-renewal of this Agreement, You must immediately cease all use of the Product and destroy all copies of the Product in Your possession. In addition, TrueContext or the Service Provider may immediately take such technical steps as may be necessary to bar any further use of the Product by You. Furthermore, upon termination of Your subscription to the PRONTOFORMS SERVICE any data that may be stored on any TrueContext computer shall be deleted by TrueContext without notice or liability to You.
- United States Government. The Software and Product are "Commercial Items", as that term is defined at 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation", respectively, as such terms are used in DFAR Section 227.7202 and FAR Section 12.212 (or successor regulations), as applicable. Consistent with 48 C.F.R. 12.212 or 48 C.F.R. 227.7202-1 through 227.7202-4, as applicable, TrueContext is providing the Product to U.S. Government end users only as Commercial Items and only pursuant to the terms and conditions of this Agreement. If You are licensing the Product on behalf of a government other than the U.S. Government, then, to the extent that You operate under laws similar to those U.S. laws addressed in C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, the Products are licensed to You pursuant to the terms and conditions of this Agreement.
- No Warranty. THE PRODUCT AND PRONTOFORMS SERVICE ARE PROVIDED "AS IS", WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, TRUECONTEXT DOES NOT WARRANT THAT: (A) THE PRODUCT OR PRONTOFORMS SERVICE WILL MEET YOUR REQUIREMENTS; (B) THE PRODUCT OR PRONTOFORMS SERVICE WILL BE FREE FROM ANY DISABLING CODE; (C) OPERATION OF THE PRODUCT AND PRONTOFORMS SERVICE WILL BE UNINTERRUPTED; (D) THE PRODUCT AND PRONTOFORMS SERVICE WILL BE ERROR-FREE; (E) YOU WILL ENJOY USE OF THE PRODUCT AND PRONTOFORMS SERVICE WITHOUT INTERFERENCE; (F) ERRORS OR OTHER DEFECTS IN THE PRODUCT AND/OR PRONTOFORMS SERVICE WILL BE CORRECTED OR WILL BE CORRECTED WITHIN A SPECIFIC PERIOD OF TIME; OR (G) UNAUTHORIZED THIRD PARTIES WILL BE RESTRICTED FROM ACCESSING OR INTERFERING WITH DATA SENT OR RECEIVED USING THE PRONTOFORMS SERVICE. TRUECONTEXT HEREBY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS AND IMPLIED, INCLUDING ANY IMPLIED WARRANTIES, REPRESENTATIONS OR CONDITIONS OF MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. THE ENTIRE RISK AS TO THE QUALITY, PERFORMANCE AND ACCURACY OF THE PRODUCT AND THE PRONTOFORMS SERVICE IS BORNE BY YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
- Technical Support. English language technical support is offered between the hours of 8:00 am - 8:00 pm Eastern Standard Time Monday to Friday, excluding Ontario, Canada public holidays, via toll-free phone in North America: 1-866-667-3882. Customers may contact technical support for assistance related to downloading and installing mobile forms on their handheld devices, or with questions related to using mobile forms. Technical support can provide assistance on how customers can access and manage their data through the web based interface.
- Maintenance/Upgrades and Data Archival. Occasionally the PRONTOFORMS SERVICE may be temporarily unavailable due to service maintenance and upgrades. Typically, scheduled maintenance occurs on Sundays from 3-6am EST to minimize customer impact. During scheduled and unscheduled downtime, real-time access to the PRONTOFORMS SERVICE will be unavailable; however, offline activities can continue during this period and data be later synchronized with the PRONTOFORMS server(s) when service is resumed.
You are responsible to develop, implement and maintain procedures to archive their data as suitable for their business needs. TrueContext recommends that data, i.e. form records, be retrieved from the PRONTOFORMS server(s) and saved by You locally on a daily, or at minimum weekly, basis. Data will be maintained on the PRONTOFORMS Server for a period of 30 days from record creation. After 30 days the data will be archived for a further 30 days and may be accessed via a specific request in writing. No data will be maintained by TrueContext for more than 60 days from the date of record creation.
- Limitation of Liability. TRUECONTEXT'S LIABILITY TO YOU WILL, IN ALL CIRCUMSTANCES, BE LIMITED TO DIRECT DAMAGES ONLY AND TRUECONTEXT'S TOTAL AGGREGATE LIABILITY FOR ALL CLAIMS ARISING UNDER THIS AGREEMENT OR IN CONNECTION WITH YOUR USE OR INABILITY TO USE THE PRODUCT OR PRONTOFORMS SERVICE WILL NOT EXCEED THE AMOUNT PAID BY YOU TO TRUECONTEXT FOR THE PRONTOFORMS SERVICE DURING THE SIX (6) MONTH PERIOD PRECEDING THE DATE OF THE MOST RECENT CLAIM. IN NO EVENT WILL TRUECONTEXT BE LIABLE, FOR ANY LOST REVENUE, LOST PROFIT, LOSS OF ANTICIPATED SAVINGS, LOSS OF DATA OR OTHER ECONOMIC LOSS (INCLUDING, WITHOUT LIMITATION, DAMAGES RESULTING FROM A BREACH OF SECURITY), OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR YOUR USE OF OR INABILITY TO USE THE PRODUCT OR PRONTOFORMS SERVICE, EVEN IF TRUECONTEXT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE REASONABLY FORESEEABLE. THE FOREGOING EXCLUSIONS AND LIMITATIONS OF LIABILITY SHALL APPLY REGARDLES OF WHETHER THE CLAIM ARISES IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND GROSS NEGLIGENCE), EQUITY OR ANY OTHER LEGAL THEORY (INCLUDING FUNDAMENTAL BREACH AND FAILURE OF ESSENTIAL PURPOSE). SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
- Governing Law. This Agreement will be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without giving effect to the principles of conflicts of law, and excluding the body of law applicable to choice of law and excluding the United Nations Convention on Contracts for the International Sale of Goods, if applicable. Each party irrevocably submits to the non-exclusive jurisdiction of the courts of Ontario for the purpose of any suit, action or other proceeding arising out of this Agreement or the subject matter hereof. Each of the parties hereby waive: (a) the right to trial by jury of any such suit, action or proceeding; (b) any right, claim or entitlement to any punitive or exemplary damages whatsoever; and (c) any right, claim or entitlement to participate in a class action relating to this Agreement.
- Entire Agreement; Amendment; Waiver; Severability; Survival. This Agreement is the entire agreement between TrueContext and You with respect to the Product and the PRONTOFORMS SERVICE and supersedes all prior or contemporaneous oral or written agreements, communications, proposals, representations and warranties, and prevails over any conflicting or additional terms of any quote, order, acknowledgment, purchase order or other communication between the parties relating to its subject matter. TrueContext may amend any term or condition of this Agreement at any time in its discretion by providing notice to You by email or otherwise. No waiver of this Agreement will be binding unless in writing and signed by a duly authorized representative of the party or parties hereto that will be bound by it. If any provision of this Agreement is found to be invalid or unenforceable by a court having jurisdiction, such provision will be severed from this Agreement and the remaining provisions will remain in full force and effect. Sections 1, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 16, 17 and 18 of this Agreement, and such other provisions as are necessary for the interpretation thereof will survive expiration or termination of this Agreement.