Last Updated: Tuesday, September 8, 2020
Welcome, and thank you for your interest in Formant, Inc. (“Company”, “us”, “our”, or “we”) and our website located at www.formant.io (the “Site”), our proprietary software-as-a-service platform for monitoring, analytics, and teleoperation of robotics infrastructure (“Platform”), any associated software code provided to you for the purpose of incorporating with your robotics software by Company (each a “Software Agent”), any associated websites and subdomains, networks, and services, and any additional services as described in more detail in an agreed-upon statement of work (“Professional Services”) or ordering document or online order specifying the service to be provided hereunder (“Order Form”) that is entered into between you and Company (collectively, the “Service”). Certain features of the Service may be subject to additional guidelines, terms, or rules, which will be posted on the Service in connection with such features or included with your Order Form. All such additional terms, guidelines, and rules, as well as any Order Form, are incorporated by reference into these Terms.
THESE TERMS REQUIRE THE USE OF ARBITRATION (SECTION 13 - DISPUTE RESOLUTION) ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
- Account Creation. In order to use certain features of the Service, you must register for an account (“Account”) and provide certain information about yourself as prompted in the account registration process. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information. You may delete your Account in accordance with the terms in Section 12 by contacting firstname.lastname@example.org or email@example.com to request deletion of your Account. Company may suspend or terminate your Account in accordance with Section 12 - Term and Termination or Section 2(F) - Modification.
- Account Responsibilities. You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. Any act or omission by a third party or parties accessing the Service using your access protocols or account shall constitute a breach of these Terms by you. You agree to immediately notify Company of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. Company cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
- Access to the Service
- Access and Use. Subject to these Terms, Company grants you a non-exclusive, revocable, limited, non-transferable, non-assignable, and “as is” right to use and access the features of the Service described in an applicable Order Form solely for your own internal use, subject to any use limitations put in place or provided by Company.
- Software Agent License. Subject to the terms and conditions of this Agreement, if Company provides you with any proprietary Software Agent, Company grants you a limited, royalty-free, nonexclusive, non-transferable, non-assignable, internal, license during the Order Term (as defined in Section 12(A) - Term) (without the right to sublicense) to: (i) install such Software Agent on systems owned, controlled, or made by you or on your behalf (each an “Integrated Product”); (ii) use such Software Agent solely as integrated or embedded with your Integrated Product, including but not limited to your robotics software or code, solely in connection with submitting data, information, or content to the Platform pursuant to these Terms; and (iii) use any supporting documentation provided by Company to you (the “Documentation”) in connection with your use of the Software Agent and Service hereunder. You agree to be solely responsible for installing and maintaining the most up-to-date Software Agent as may be necessary for you to connect to, access, and use the Service. Company may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Software Agent and related Service (“Updates”). Company may cease to provide support for any prior version of the Software Agent on the 30th day following the release of the most recent Updates. You acknowledge that you may be required to remotely install Updates to use the Software Agent and the Service and you agree to promptly install any Updates Company provides.
- Integrated Product Requirements.
- Before and as a pre-condition to use of an Integrated Product, you shall conduct all testing that may be necessary to determine if the Software Agent, when integrated with the Integrated Product, operates in accordance with the Documentation.
- You shall ensure that any end user of an Integrated Product receives, is aware of, and accepts these Terms before using the Integrated Products and promptly reports to us in writing any actual or suspected non-compliance.
- You agree to promptly give Company written notice of and investigate and address any notice, complaint, or claim of which you becomes aware concerning any data security breach, personal injury, property damage, or other injury alleged to have been caused, in whole or in part, by any Integrated Product, any use of an Integrated Product; and
- You agree to store all Integrated Products in appropriate storage conditions and provide appropriate security for the Integrated Products.
- Usage Statistics. Notwithstanding anything to the contrary in these Terms, Company may monitor your use of the Service and collect and compile data and information related to your use of the Service, where the foregoing may include by way of example and not limitation statistical and performance information related to the provision and operation of the Service (“Usage Statistics”).
- Certain Restrictions. The Service is made available to you solely for your internal use. You shall not, directly or indirectly, authorize any third party to: (i) decompile, disassemble, reverse engineer, or otherwise attempt to derive any source code (not otherwise made available to you), structure, ideas, algorithms, or associated know-how of, the Service, or reconstruct, or discover, any hidden or non-public elements of the Service, Resultant Data, Usage Statistics, and Documentation (collectively, the “Formant Technology”) (except to the extent expressly permitted by applicable law notwithstanding this restriction) ; (ii) translate, adapt, or modify the Service or any portion thereof; (iii) write or develop any program based upon the Service or any portion or software applications thereof, or otherwise use the Service in any manner for the purpose of developing, distributing or making accessible products or services that compete with the Service; (iv) sell, sublicense, transfer, assign, lease, rent, distribute, or grant a security interest in the Service or any rights thereto; (v) export, sell or distribute any content or portion of the Service, allow access to the Service (or any content or other portion thereof) by any third persons, make the Service available on a service bureau basis, or otherwise access or use the Service for the benefit of a third party; (vi) permit the Service to be accessed or used by any persons other than your employee personnel as applicable; (vii) transmit unlawful, infringing, or harmful data or code or any other data or code that you are not authorized to transmit, either to or from the Service; (viii) alter or remove any trademarks or proprietary notices contained in or on the Service; or (ix) otherwise use the Service except as expressly permitted hereunder. Company may suspend your access to the Service for any period during which you are, or Company has a reasonable basis for alleging you are in noncompliance with the foregoing.
- Modification. Company reserves the right, at any time, to modify or suspend the Service (in whole or in part) with or without notice to you.
- Customer Support . The access rights granted hereunder entitle You to email support during normal business hours (9:30am – 5:30pm PST every Monday – Friday, except USA state and federal holidays), as well as emergency support for critical support issues on a commercially reasonable, 24/7/365 basis. Additional support terms, if offered, will be detailed in an agreed upon Order Form.
- Free Trials. Should you register for a free trial for any of the Service, Company will make such Service available on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered to use the applicable Service; (b) the start date of any subscription to such Service you purchased for such Service; or (c) termination of the trial by Company’s sole discretion. Trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into these Terms by reference and are legally binding. Please review the applicable documentation during the trial period to become familiar with the features and functions of the Service before making a purchase. ANY DATA YOU ENTER INTO A SERVICE, AND ANY CONFIGURATIONS OR CUSTOMIZATIONS MADE TO A SERVICE BY OR FOR YOU, DURING THE FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICE AS COVERED BY THE TRIAL, OR EXPORT SUCH DATA BEFORE THE END OF THE TRIAL PERIOD.
- Beta Services. From time to time, Company may make services or functionality, which are clearly designated as beta, pilot, limited release, developer review, non-production, evaluation, or similar description (in each case, “Beta Services”) available. You may choose to try such Beta Services in your sole discretion and with Company’s approval. Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to supplemental terms that will be presented to you. Beta Services are not considered a “Service” under these Terms; however, all restrictions, Company's reservation of rights and your obligations concerning the Service, and use of any third-party services shall apply equally to your use of Beta Services. Unless otherwise stated or communicated, any Beta Services trial period will expire upon the date that a version of the Beta Services becomes generally available without the applicable Beta Services designation. Company may discontinue Beta Services at any time in their sole discretion and may never make them generally available. Company will have no liability for any harm or damage arising out of or in connection with a Beta Service.
- Ownership and Data.
- Ownership. You acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Service and its content, including the Documentation, as well as the data described in Section 3(B) - Data Processed by Company are owned by Company or Company’s suppliers. Neither these Terms (nor your access to or use of the Service) transfers to you or any third party any rights, title, or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in Sections 2(A) - Access and Use and 2(B) - Software Agent License. Company and its suppliers reserve all rights not granted in these Terms. There are no implied licenses granted by Company under these Terms. Notwithstanding anything to the contrary herein, you acknowledge and agree that any suggestions, enhancement requests, recommendations or other feedback provided by you relating to the Service may be used or exploited by Company without restriction in perpetuity. Company may periodically request that you provide feedback related to the Service, and you agree to provide such requested feedback to Company.
- Data Processed by Company. “Submitted Data” means (other than data required by Company for the administration of your account on the Service, Usage Statistics and Resultant Data), any information, data, and other content, including Confidential Information, in any form or medium, that is submitted, posted, or otherwise transmitted by you or on your behalf through the Service to be processed by Company at your request and for your benefit. The Submitted Data processed by Company as part of the Service, and all worldwide intellectual property rights therein, is and shall remain your exclusive property. You hereby grant to Company a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and use and display the Submitted Data and perform all acts with respect to the Submitted Data as may be necessary for Company to provide the Service to you. You represent and warrant that any Submitted Data hosted by Company as part of the Service shall not (a) infringe, misappropriate or violate any intellectual property rights, publicity/data protection/privacy rights, law or regulation; (b) be deceptive, defamatory, obscene, pornographic or unlawful; (c) contain any viruses, worms or other malicious computer programming codes intended to damage, surreptitiously intercept or expropriate any system, data or personal or personally identifiable information; or (d) otherwise violate the rights of a third party. Company will retain Submitted Data for the Order Term, and is not obligated to retain any Submitted Data beyond that time period. Company may, but is not obligated to back up any Submitted Data; you are solely responsible for creating backup copies of any Submitted Data at your sole cost and expense. You agree that any use of the Service contrary to or in violation of your representations and warranties in this section constitutes unauthorized and improper use of the Service.
- Data Controlled by Company. As between you and Company, all right, title, and interest in data required by Company for the administration of your account on the Service, Usage Statistics and Resultant Data, and all intellectual property rights therein, belong to and are retained solely by Company. “Resultant Data” means data such as, by way of example and not limitation, Company’s opinions or predictions regarding correlations between certain data points, including data points indirectly derived from Submitted Data or the commingling of Submitted Data with other data, but which are sufficiently different than Submitted Data.
- Company Access to Submitted Data. As part of your onboarding and setup, Company will create a support account in association with your Account. Company will utilize this support account for two purposes:
- primarily, to provide product support to you when appropriate; and
- as an output of supporting you, to gather and incorporate learnings into optimizing the Service.
- Fees and Payment
- Fees. You agree to pay all fees charged by Company for your use of Service in accordance with these Terms and an applicable Order Form(s) (collectively, “Fees”). The criteria for calculating usage may vary by Service type and features as specified in the applicable Order Form. You agree to pay Company the Fees without offset or deduction in United States dollars. If your use of the Service exceeds the service capacity set forth in the applicable Order Form or otherwise requires the payment of additional fees (per these Terms), you shall be billed for such usage and agree to pay the additional Fees in the manner provided herein. If you believe that Company has billed you incorrectly, you must contact Company no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department. If you fail to make any payment when due, without limiting Company’’s other rights and remedies: (i) Company may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) you shall reimburse Company for all costs incurred by Company in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for thirty (30) days or more, Company may suspend your access to any portion or all of the Service until such amounts are paid in full.
- Taxes. All Fees and other amounts payable under these Terms are exclusive of taxes and similar assessments. You are responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable hereunder, other than any taxes imposed on Company’s income.
- Confidential Information. To the extent the parties have entered into a separate confidentiality or non-disclosure agreement, information disclosed by one party to the other under this Agreement shall be governed by that separate agreement, and the Service and any information about the function or performance of the Service shall be considered Company’s Confidential Information thereunder. If the parties have not entered into such an agreements, Each party agrees to exercise no less than reasonable care to maintain the confidentiality of information disclosed by the other party that should reasonably be treated as confidential based on the nature of the information or circumstances surrounding its disclosure (“Confidential Information”) and to only use such Confidential Information in connection with exercising its rights or performing its obligations hereunder. Notwithstanding anything to the contrary herein, the Service and any information about the function or performance of the Service constitutes information disclosed by Company to you and shall be treated as Confidential Information by you.
- Third-Parties; Other Users.
- Third-Party Links. The Service may contain links to third-party websites and services (“Third-Party Links”). Such Third-Party Links are not under the control of Company, and Company is not responsible for any Third-Party Links. Company provides access to these Third-Party Links only as a convenience to you, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Links. You use all Third-Party Links at your own risk, and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third-Party Links, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third-Party Links.
- Third-Party Integrations. The Service may contain features or designs to inter-operate with features or services provided by a third-party (a “Third-Party Integration”). If you acquire a third-party application and use the Service to exchange data with that third-party provider or application, the relationship created with respect to that data exchange is solely between you and the applicable third-party provider. Company does not warrant or support third-party applications or other third-party products or services, unless expressly provided otherwise in an Order Form. Company is not responsible for any disclosure, modification or deletion of Submitted Data resulting from access by such third-party application or its provider. Company cannot guarantee the continued availability of a Third-Party Integration, and may cease providing a Third-Party Integration without entitling you to any refund, credit, or other compensation, if for example and without limitation, the provider of a third-party application ceases to make the third-party application available for a Third-Party Integration in a manner acceptable to Company. You grant Company, and its applicable contractors, a worldwide, limited-term license to host, copy, use, transmit, and display any third-party applications and program code created by or for your use of the Company Service or for your use with the Service, each as appropriate, for Company to provide and ensure proper operation of the Service in accordance with this Agreement. If you choose to use a third-party application with the Service, you grant Company permission to allow the third-party application and its provider to access Submitted Data and information about your usage of the third-party application as appropriate for the Third-Party Integration.
- Release. You hereby release and forever discharge the Company (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to any interactions with, or act or omission of, other Service users or any Third-Party Links or Third-Party Integrations.
- DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to internet service providers (17 U.S.C. §512, as amended). If you have any complaints with respect to material posted on the Service, you may contact our Designated Agent at the following address the address:
ATTN: DMCA Notification
1999 Bryant Street
San Francisco, California 94110
Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:
an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
- a description of the copyrighted work or other intellectual property that you claim has been infringed;
- a description of the material that you claim is infringing and where it is located on the Service;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright owner, its agent, or the law; and
- a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
- Indemnification. You agree to indemnify and hold Company (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of: (i) your use of the Service; (ii) your violation of these Terms; (iii) your violation of applicable laws or regulations; (iv) Company’s use of any data, content, information, or feedback, including Submitted Data, that you provide, disclose, or submit to Company or submit or upload to the Service in accordance with these Terms; (v) use of the Service or any Integrated Product without the requisite level of training; (vi) communications network failure, including but not limited to, (A) communication latency, (B) jitter, (C) packet delays and out-of-order arrivals, (D) packet losses, (E) hardware and/or device failures and (F) your storage devices such as memory or hard drives; or (vii) any Integrated Products, Third-Party Integrations, or third-party component; provided however, that such claim or demand does not arise solely out of or relate solely to the Service. Company reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any matter for which you may have an indemnification obligation hereunder without the prior written consent of Company. Company will use reasonable efforts to notify you of any claim, action, or proceeding for which you may have an indemnification obligation hereunder upon becoming aware of it.
- Limited Warranty and Disclaimers
- Limited Warranty. Company warrants that for a period of thirty (30) days from the effective date of an Order Form, the Service will substantially conform in all material respects in accordance with the Documentation when accessed and used in accordance with these Terms. Provided that you notify us in writing of any breach of the foregoing warranty during such thirty (30) day warranty period, Company shall (A) MODIFY, OR PROVIDE AN ENHANCEMENT FOR SERVICE SO THAT IT CONFORMS TO THE FOREGOING WARRANTY, (B) REPLACE YOUR COPY OF THE SOFTWARE AGENT OR ACCESS TO THE SERVICE WITH ACCESS THAT CONFORMS TO THE FOREGOING WARRANTY, OR (C) TERMINATE THE LICENSE WITH RESPECT TO THE NON-CONFORMING ASPECT OF THE SERVICE. Your sole remedies and our sole liability under the limited warranty set forth in this Section 9(A) are those described in the Section 12(B) - Termination for Cause below. This warranty gives you specific legal rights, and you may also have other rights which vary from jurisdiction to jurisdiction. Company does not make any representations or guarantees regarding uptime or availability of the Service.
- General Disclaimer. THE SERVICE IS PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, AND COMPANY (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SERVICE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE.
- Training Disclaimer. Company only trains on the use of Platform and Software Agent. The information provided during training is not intended, and shall not be construed, as a substitute for formal training or certification of any kind, such as, but not limited to, training with respect to the use of any Integrated Product, warehouse training, forklift or machine operation training, physical safety training of any kind, or any other form of training that may exist beyond the limits of operating the Platform and Software Agent itself. Company is in no way responsible for any form of credentialing or certification, nor are the training programs provided by Company a replacement for any such requirements. All curricula described are subject to change depending on available resources, as well as on the needs of the course participants.
- Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL COMPANY (OR COMPANY’S SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THESE TERMS OR YOUR USE OF, OR INABILITY TO USE, THE SERVICE OR ANY PORTION THEREOF, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SERVICE IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICES OR COMPUTER SYSTEMS, OR LOSS OF DATA RESULTING THEREFROM. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO A MAXIMUM OF THE FEES ACTUALLY RECEIVED BY COMPANY FOR YOUR RECEIPT OF THE SERVICE IN THE SIX (6) MONTHS PRIOR TO THE INCIDENT GIVING RISE TO SUCH CLAIM. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT.
You agree that your obligations as set forth herein are necessary and reasonable in order to protect Company and its business. You expressly agree that monetary damages may be inadequate to compensate Company for any breach by you of your representations, warranties, and covenants herein. Accordingly, you agree and acknowledge that any such breach or any threatened breach may cause irreparable injury to Company and that, in addition to any other remedies that may be available in law, equity or otherwise, Company shall be entitled to seek injunctive relief against the breach or threatened breach of this Agreement or the continuation of any breach by you without the necessity of proving actual damages.
- Term and Termination
- Term. Subject to this Section, these Terms will remain in full force and effect while you use the Service (the “Term”). The initial service term begins on the date set forth in your Order Form and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect for the amount of time set forth in the Order Form (the “Initial Service Term”). An Order Form will automatically renew for additional successive periods equal in length to the Initial Service Term (each a “Renewal Term” and together with the Initial Term, the “Order Term”), unless earlier terminated pursuant to this Agreement’s express provisions or either Party.
- Termination for Cause. Either Party may terminate the Order Form immediately upon notice to the other Party if the other Party materially breaches these Terms, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach.
- Termination for Convenience. Either Party may terminate an Order Form upon thirty (30) days notice to the other party.
- Effect of Expiration or Termination.
If an Order Form is terminated:
For convenience under Section 12(C)
You will pay any unpaid Fees covering the remainder of the Order Term to the extent permitted by applicable law
For convenience under Section 12(C)
Company shall return any pre-paid fees to you for Services you didn’t actually receive
For cause under Section 12(B)
Company shall return any pre-paid fees to you for Services you didn’t actually receive
For cause under Section 12(B)
You will pay any unpaid Fees covering the remainder of the Order Term to the extent permitted by applicable law
Upon termination or expiration of these Terms for any reason: (i) all rights and obligations of both Parties, including all licenses granted hereunder, shall immediately terminate, (ii) you shall cease all use of any Integrated Products, and permanently uninstall the Software Agent from its Integrated Products, and (iii) Company shall, at its option, either return the Submitted Data to you or make the Submitted Data available for you to export from the Service for the thirty (30) day period following such termination or expiration. Within seven (7) days after such expiration or termination, you agree to certify to Company in a written instrument signed by you or your duly authorized executive officer that you have complied with the requirements set forth herein. The Sections and subsections titled Certain Restrictions, Ownership, Data Controller by Company, Fees and Payments (to the extent any Fees remain outstanding), Confidential Information, Ownership, Third Parties; Other Users, Indemnification, Limited Warranty and Disclaimers, Limitation of Liability, Remedies, Effect of Expiration or Termination, DIspute Resolution, and General will survive expiration or termination of these Terms for any reason.
- Dispute Resolution
Please read this Section (the “Arbitration Agreement”) carefully. It is part of your contract with Company and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
- Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by the Company that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and the Company, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
- Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to the Company should be sent to: 1999 Bryant Street, San Francisco, California 94110. After the Notice is received, you and the Company may attempt to resolve the claim or dispute informally. If you and the Company do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
- Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The AAA Consumer Arbitration Rules (“Arbitration Rules”) governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. A single, neutral arbitrator shall conduct the arbitration. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the Arbitration Rules will determine the right to a hearing. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time, and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
- Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
- Time Limits. If you or the Company pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
- Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and the Company, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and the Company.
- Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and the Company in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND THE COMPANY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that a judge resolve the dispute.
- Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
- Confidentiality. All aspects of the arbitration proceeding, including, but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
- Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of these Terms shall continue in full force and effect.
- Right to Waive. The party against whom the claim is asserted may waive any or all of the rights and limitations set forth in this Arbitration Agreement. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
- Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Company.
- Small Claims Court. Notwithstanding the foregoing, either you or the Company may bring an individual action in small claims court.
- Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
- Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
- Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within San Francisco County, California, for such purpose.
- Changes. These Terms are subject to occasional revision, and we reserve the right to charge Fees for accessing and using the Service. If we make any substantial changes, we may require you to accept the changes, notify you by sending you an e-mail to the last e-mail address you provided to us (if any), and/or by prominently posting notice of the changes on the Service. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Any changes to these Terms will be effective upon your next Renewal Term, or in the event no such Renewal Term is applicable then, the earliest of when you provide your acceptance of the changes, thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable), and thirty (30) calendar days following our posting of notice of the changes on the Service. The changes will be effective immediately for new users of the Service. Continued use of our Service following notice of such changes shall indicate your acknowledgement and acceptance of such changes and agreement to be bound by the terms and conditions of such changes.
- Export. The Service may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Company, or any products utilizing such data, in violation of the United States export laws or regulations.
- Publicity. You hereby agree that Company may use your name and logo on its website and in its marketing materials in connection with identifying you as a user of the Service.
- Disclosures. Company is located at the address in Section 14(H) - Contact. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
- Electronic Communications. The communications between you and Company use electronic means, whether you use the Service or send us emails, or whether Company posts notices on the Service or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Company in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to you electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect your non-waivable rights.
- Entire Agreement. These Terms constitute the entire agreement between you and us regarding the use of the Service. Our failure to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation”. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to Company is that of an independent contractor, and neither party is an agent or partner of the other. These Terms, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Company may freely assign these Terms. The terms and conditions set forth in these Terms shall be binding upon assignees.
- Copyright/Trademark Information. Copyright © 2020 Formant, Inc. All rights reserved. All trademarks, logos, and service marks (“Marks”) displayed on the Service are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party that may own the Marks.
- Contact Information:
1999 Bryant Street
San Francisco, California 94110