End User License Agreement
forMarketer. 75 Brodway. San Francisco, 94111 (USA).
Last Update: 09/1/18.
This End User License Agreement (“Agreement”) is a binding agreement between you, either as an individual or a single entity, (“Licensee”, or “you”) and Formarketer Global, S.L. (hereinafter referred to as “Formarketer”), a Spanish company with registered address at Calle Játiva, 15. Piso 9. Puerta 18-A, 46002 Valencia (Spain), and C.I.F. (tax identification code) B98991037 and registered in the Trade Register of Valencia, page V-181508, folio 107, tome 10485.
This Agreement governs your use of the Formarketer Platform, (including all related documentation, the “Platform”). The Platform is licensed, not sold, to you.
By using the Platform, you (A) acknowledge that you have read and understood this agreement; (B) represent that you are of legal age to enter into a binding agreement; and (C) accept this agreement and agree that you are legally bound by this terms.
“Derivative Data” means all modifications, compilations, derivative works and results from processing (including analyses, usage statistics and patterns, datasets, databases, reports, recommendations and visual representations) created or developed from Customer Data or on the basis of Customer’s use of the Services by Formarketer or through the Platform in connection with the Services.
1. License Grant
Subject to the terms of this Agreement, Formarketer grants you a nonexclusive, nontransferable, limited license to access and use the Platform through the Formarketer’ website located at go.formarketer.com, strictly in accordance with this Agreement.
(a) Provision of the Services. Formarketer will make the Services available to Licensee on the terms and conditions set out in this Agreement and conditional on Licensee:
(i) making commercially reasonable efforts to cooperate with the reasonable requests of Formarketer;
(ii) providing Formarketer with access to any required systems of Licensee or third parties (and making all required third-party disclosures and obtaining all required third party consents in respect of such access) which Licensee wishes the Platform to obtain data from or provide data to in the course of providing the Services; and
(b) Provisioning of the Platform. Formarketer will:
Use commercially reasonable efforts to make the Platform reasonably available with minimal downtime; except for:
(A) downtime and scheduled upgrades; and
(B) unavailability caused by circumstances beyond Formarketer’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems, Internet service provider failures or delays, or the unavailability of any third-party provided goods or services.
(c) Platform Updates and Scheduled Downtime. Formarketer may update the functionality and user interface of the Platform from time to time in its sole discretion as part of its ongoing mission to improve the Offering and the use of the Offering by Formarketer’s other Licensees. Formarketer may from time to time schedule downtime for maintenance and upgrades without prior notice.
(d) No Responsibility for Data Storage and Backup. Formarketer cannot guarantee that the Platform will provide regular data backups of any Licensee Data stored on it. It is Licensee’s responsibility to backup onto Licensee’s own local system all Licensee Data, including all data, files and records that Licensee submits to Formarketer.
3. Your Formarketer Account
To access the Platform, you may be asked to provide registration details. It is a condition of use of the Platform that all the information you provide be correct, current and complete. If we believe the details are not correct, current, or complete, we have the right to refuse you access to the Platform and to terminate or suspend your account.
Formarketer may change, suspend or discontinue the Platform, in whole or in part, at any time, including the availability of any feature, database, or content. Formarketer may also impose limits on certain features and services or restrict Licensee’s access to parts or all of the Platform without notice or liability.
You shall be responsible for obtaining and maintaining any equipment or ancillary services needed to connect to, access the Platform, including, without limitation, modems, hardware, software, and long distance or local telephone service. You shall be responsible for ensuring that such equipment or ancillary services are compatible with the Platform.
You shall be responsible for maintaining the confidentiality of your Formarketer password and other account information, and you agree to accept responsibility for all activities that occur under your account or password. You may not assign or otherwise transfer your account to any other person or entity. You acknowledge that your account is personal to you and agree not to provide any other person with access to the Platform using your information.
You are responsible for safeguarding the password that you use to access the Platform and for any activities or actions under your password. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your account. Formarketer cannot and will not be liable for any loss or damage arising from your failure to comply with the above.
5. License Restrictions
You shall not:
(a) copy the Platform, except as expressly permitted by this license;
(b) modify, translate, adapt or otherwise create derivative works or improvements,
whether or not patentable of the Platform;
(c) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive
or gain access to the source code of the Platform or any part thereof;
(d) remove, delete, alter or obscure any trademarks or any copyright, trademark,
patent or other intellectual property or proprietary rights notices from the Platform,
including any copy thereof;
(e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Platform or any features or functionality of the Platform, to any third party for any reason, including by making the Platform available on a network where it is capable of being accessed by more than one device at any time;
(f) use the Platform in any manner that could damage, disable, overburden or impair Formarketer’ online services;
(g) use the Platform in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this EULA. You agree to abide by United States copyright law and all other applicable laws of the United States and other nations and by any applicable international treaties in connection with the Platform, and use thereof; or
(h) violate any of the restrictions set forth in the Terms of Service.
If you violate these restrictions, we reserve the right to terminate your right to use the Platform at any time and to pursue any legal remedy against you available to us. In addition, we may terminate this license at any time, with or without notice.
You acknowledge and agree that the Platform is provided under license, and not sold, to you. You do not acquire any ownership interest in the Platform under this Agreement, or any other rights thereto other than to use the Platform in accordance with the license granted, and subject to all terms, conditions and restrictions, under this Agreement. Formarketer reserves and shall retain its entire right, title and interest in and to the Platform, including all copyrights, trademarks and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.
7. Collection and Use of Your Information
You acknowledge that when you use the Platform, Formarketer may use automatic means (including, for example, cookies and web beacons) to collect information about your use of the Platform. You also may be required to provide certain information about yourself as a condition to using the Platform or certain of its features or functionality.
8. Reservation of Rights.
(a) Rights Reserved by Formarketer. Formarketer expressly reserves all rights in the Services, the Platform, all Derivative Data and all materials (other than Personal Information) provided by Formarketer hereunder and not specifically granted to Licensee (“Formarketer Property”). All right, title and interest in the Formarketer Property, as well as any update, modification, adaptation, translation, customization or derivative work thereof, and all intellectual property rights therein will remain with Formarketer (or Formarketer’s third party suppliers, as applicable). The Formarketer Property is licensed on a subscription basis on the terms and conditions of this Agreement and not “sold” to Licensee.
(b) Rights Reserved by Licensee. Licensee expressly reserves all rights in any data, information, records and files that Licensee (or any User) loads, transmits to or enters into the Platform, including data that the Platform is configured to obtain from Licensee’s servers or systems or from third parties on Licensee’s behalf, but excluding any Derivative Data (the “Licensee Data”), subject to the license that Licensee grants Formarketer in accordance with the provisions of this Agreement, and provided that Licensee does not acquire any intellectual property rights in the Services, the Platform, any Derivative Data or any elements of any of the foregoing.
(b) Internet Security Disclaimer. As between Formarketer and Licensee, Licensee is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Licensee Data. Licensee understands that the technical processing and transmission Licensee Data is fundamentally necessary to use of the Services. Therefore, Licensee expressly consents to Formarketer’s storage of Licensee Data, which will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by Formarketer. Formarketer will endeavour to provide industry-standard secure data transmission channels for use by Licensee to upload, enter or transmit Licensee Data to the Services, for example through the use of the HTTPS protocol. However, despite such efforts, Licensee acknowledges and understands that Licensee Data may be accessed by unauthorized persons when communicated across the Internet, network communications facilities, telephone or other electronic means. Formarketer is not responsible for any Licensee Data which is delayed, lost, altered, intercepted or stored during the transmission of any data whatsoever across public networks not owned or operated by Formarketer, including, the Internet, third party websites, and Licensee’s local network. Licensee agrees that Formarketer is not in any way responsible for any interference with Licensee’s use of or access to the Services or security breaches arising from or attributable to the Internet, and Licensee waives any and all claims against Formarketer in connection therewith.
(c) Limitation, Suspension or Termination of Access. In addition to any other suspension or termination rights of Formarketer pursuant to this Agreement, certain extraordinary circumstances may require Formarketer to suspend, terminate or limit (as appropriate and as determined in Formarketer’s sole discretion) Licensee’s access to or use of the Platform or the Services, or any component thereof, without notice in order to: (i) prevent any misuse or abuse of the Offering or other Formarketer Property; (ii) prevent any damage to, or degradation of the integrity of Formarketer’s systems or Formarketer Property; (iii) comply with any law, regulation, court order, or other governmental request or order; or (iv) otherwise protect Formarketer from potential legal liability or harm to its reputation or business. Formarketer also reserves the right to approve, reject, cancel or remove any Licensee Data or other content that is posted on, provided or uploaded to, or transmitted through the Platform or the Services at any time and for any reason in Formarketer’s sole discretion, and Formarketer will not be liable or responsible for exercising this right. For greater clarity, Licensee acknowledges and agrees that Formarketer does not guarantee that any Licensee Data or other content that is posted on, provided or uploaded to, or transmitted through the Platform or the Services will be available or displayed. Formarketer will use commercially reasonable efforts to notify Licensee of the reasons for such limitation, suspension or termination action as soon as reasonably practicable. In the event of a limitation or suspension, Formarketer will promptly restore Licensee’s access to the Offering as soon as the event giving rise to the limitation or suspension has been resolved, as determined in Formarketer’s sole discretion. Nothing contained in this Agreement will be construed so as to limit Formarketer’s ability to take action or invoke remedies, or act as a waiver of Formarketer’s rights in any way with respect to any of the foregoing activities.
Formarketer will not be responsible for any loss or damages incurred by Licensee as a result of any limitation, termination or suspension of access to or use of the Platform or the Services under this Section.
10. Licensee Responsibilities and Restrictions.
(a) Licensee ID. Upon Licensee’s request, but subject to any applicable limitations associated with Licensee’s subscription, Formarketer will issue user identification and password (“User ID”) to Licensee for each individual Licensee wishes to have access to and use of the Offering (each, a “User”). Licensee may only identify its partners, shareholders, employees and contractors who, in each case, are bound by confidentiality restrictions at least as restrictive as this Agreement as Users. Users may only access and use the Platform and the Services through a User ID issued to Licensee. Licensee will not allow Users to share their User ID with any other person. Licensee is responsible for any and all activity occurring under the User IDs associated with Users. Licensee is responsible for all use of the Offering by Users and for maintaining the confidentiality of their User ID and will promptly notify Formarketer of any actual or suspected unauthorized use of the Offering. Formarketer reserves the right to replace any User ID if it determines it may have been used for an unauthorized purpose.
(b) Licensee Responsibilities and Restrictions. Licensee agrees that Licensee is responsible for the compliance by the Users with this Agreement and for the Users’ use of the Offering, as well as for ensuring that the Users maintain the confidentiality of their User IDs. Licensee agrees that Licensee is responsible for all charges incurred by the Users in connection with access to or use of the Offering and generally for any activity occurring through a User ID. Without limiting the generality of any of the foregoing, Licensee agrees that Licensee will not, and will not permit any person to:
(i) use the Offering other than as permitted by this Agreement;
(ii) use the Offering to send, store, publish, post, upload or otherwise transmit any Licensee Data in violation of any warranty, representation or obligation of Licensee under this Agreement;
(iii) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Offering (in whole or in part) available to any third party, other than to the Users, or as otherwise expressly contemplated in accordance with this Agreement;
(iv) use the Offering to upload, collect, transmit, store, use or process, or ask Formarketer to obtain from third parties, any Licensee Data: (A) that Licensee does not have the lawful right to copy, transmit, distribute, and display (including any Licensee Data that would violate any confidentiality or fiduciary obligations that Licensee might have with respect to the Licensee Data); (B) for which Licensee does not have the authority, consent or permission from the individual(s) to whom the Personal Information relates in accordance with applicable privacy legislation; (C) that infringes, misappropriates or otherwise violates any intellectual property or other proprietary rights of any third party (including any copyright, trademark, patent, trade secret, or other intellectual property right, or moral right or right of publicity); (D) that is tortious, defamatory, obscene, or offensive; or (E) that violates, or encourages any conduct that would violate, any applicable law or regulation (including applicable privacy and anti-spam legislation) or would give rise to civil or criminal liability.
(v) use the Offering to send, store, publish, post, upload or otherwise transmit any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another;
(vi) continue to use the Offering in a manner that interferes with or disrupts the integrity or performance of the Offering following a notice from Formarketer of such use;
(vii) attempt to gain unauthorized access to the Offering or its related systems or networks;
(viii) use or knowingly permit the use of any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Offering;
(ix) use any data mining, robots or similar data gathering or extraction methods (including electronic address harvesting);
(x) access the Offering for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the Offering; or
(xi) copy, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Offering or any part thereof or otherwise attempt to discover any source code or modify the Offering, except as expressly provided for in this Agreement.
(c) Licensee Responsibility for Licensee Data. Licensee has sole responsibility for providing all notices, making all disclosures and otherwise obtaining all necessary consent and authority required by and in accordance with applicable laws regarding Licensee Data (including any Personal Information). Formarketer will use the Licensee Data it is provided by Licensee or third parties in performing the Services “as is”, and is not responsible for reviewing, validating or otherwise confirming the accuracy, appropriateness or completeness of Licensee Data.
(d) Removal of Licensee Data on Request by Licensee. Licensee may control the Licensee Data stored by the Services, including by deleting or requiring Formarketer to delete all or part of the Licensee Data (including Personal Information) at any time.
11. Licensee Support.
Formarketer will provide the following support to Licensee:
(a) Web and Email Support. Licensee will have access to Formarketer’s technical support part of the Website and may use the available interfaces, including any Licensee support email addresses posted thereon, to submit service requests.
(b) Incident Management. Formarketer will use commercially reasonable efforts to correct any reproducible failure of the Offering to substantially conform to its expected operation; provided that Formarketer will not have an obligation to provide a correction for all such nonconformities.
Formarketer may from time to time in its sole discretion update the Platform. Updates may modify or delete in their entirety certain features and functionality. You agree that Formarketer has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. These updates occur automatically.
13. Fees and Payment
You agree to pay Formarketer the monthly or annual subscription fees indicated for that service. Payments will be charged on the day you sign up for a premium service and will cover the use of that service for a monthly or annual period as indicated. Premium service fees are not refundable.
14. Term and Termination
This EULA is effective for the term of your subscription, whether annual or monthly, and at the end of each term automatically renews for an additional subscription term, unless terminated as described below. You may terminate this EULA at any time by contacting a Formarketer representative at firstname.lastname@example.org. Formarketer may terminate this EULA, in its sole discretion, at any time and without any notice, with or without cause, or if you breach any of the terms and conditions, for lack of use or if we believe that you have violated or acted inconsistently with the letter or spirit of this EULA. Notwithstanding the foregoing, if you have a paid account, such account can only be terminated by Formarketer if you materially breach this Agreement.
Upon termination of this EULA for any reason all rights granted to you under this Agreement will immediately terminate. All provisions of this EULA relating to disclaimers of warranties, limitation of liability, remedies, or damages, and Formarketer’ proprietary rights shall survive any such termination. You agree that Formarketer, or either of its affiliates, owners, officers, or employees, shall not be liable to you or any third-party for any termination of your access to the Platform.
15. Logo Permissions
You grant Formarketer the right to use your company name and logo in promotional material. If you need an exception to this, you must email us at email@example.com before you sign up.
Formarketer shall use commercially reasonable efforts consistent with prevailing industry standards to provide the Platform in a professional and workmanlike manner that is free of defects. Your sole remedy, and Formarketer’ exclusive liability, for defects in the service shall be for Formarketer to use commercially reasonable efforts to promptly correct such defects.
You represent and warrant that (i) your use of the Platform will be in strict accordance with this Agreement and with all applicable laws and regulations (including without limitation any local laws or regulations in your country, state, city, or other governmental area, regarding online conduct and acceptable content, and including all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside) and (ii) your use of the Platform will not infringe or misappropriate the intellectual property rights of any third party.
17. Disclaimer of Warranties
Except to the extent provided in section 11 (Warranties), the Platform is provided “as is”. Formarketer and its suppliers and licensors hereby disclaim all warranties of any kind, express or implied, including, without limitation, the warranties of merchantability, fitness for particular purpose and non-infringement. Neither Formarketer nor its suppliers and licensors make any warranty that the Platform will be error free or that access thereto will be continuous or uninterrupted. You understand that you obtain content or services through the Platform at your own discretion and risk.
18. Limitation of Liability
In no event will Formarketer, or its suppliers or licensors, be liable with respect to any subject matter of this Agreement under any contract, negligence, strict liability or other legal or equitable theory for: (i) any special, incidental or consequential damages; (ii) the cost of procurement or substitute products or services; (iii) for interruption of use or loss or corruption of data. In no event will Formarketer, or its suppliers or licensors, be liable for any amounts that exceed the fees paid by you to Formarketer under this agreement during the twelve (12) month period prior to the cause of action. Formarketer shall have no liability for any failure or delay due to matters beyond their reasonable control including services (or lack of services) provided by content professionals contacted or invited through the Platform. The foregoing shall not apply to the extent prohibited by applicable law.
You agree to indemnify and hold harmless Formarketer, its contractors, its licensors and their respective directors, officers, employees and agents from and against any and all claims and expenses, including attorneys’ fees, arising out of your misuse of the platform, including but not limited to out of your violation this agreement.
20. Government End Users
The Platform is a “commercial item”, as that term is defined in 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (Sept. 1995) and 48 C.F.R. 227.7202 (June 1995). Consistent with 48 C.F.R. 12.212, 48 C.F.R. 27.405(b)(2) (June 1998) and 48 C.F.R. 227.7202, all U.S. Government end users acquire the Software with only those rights as set forth in this EULA.
This Purchase Contract shall be governed by and construed in accordance with the laws of Spain. Each party waives any jurisdictional, venue or inconvenient forum objections to these courts. You agree that you shall pursue any claim against us in your individual capacity only, and you will not participate in any collective or so-called “class” action against Formarketer. The United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
Any dispute that may arise from or in connection to Formarketer and the users shall be settled in the Courts of Valencia, Spain. To this end, the parties expressly renounce their own jurisdiction and submit to the jurisdiction of the Courts of Valencia, Spain.
You may not assign any rights or obligations under the Agreement without Formarketer’s prior written consent. Formarketer may assign all or part of the Agreement. If you violate any of the Agreement, your authorization to use the Platform and all licenses granted herein terminate automatically. If any of the provisions of the Agreement are held unenforceable or overbroad by a court or other tribunal of competent jurisdiction, then those provisions shall be limited or eliminated to the minimum extent necessary to allow the remainder to retain its full force and effect. You agree to bring any and all claims within 12 months of the date on which such claim first arises; all claims not brought by you within such time period are waived. No waiver of any provision of this Agreement shall be deemed a further or continuing waiver of such term or condition or any other term or condition.
The Agreement constitutes the sole and entire agreement between you and Formarketer with respect to the Agreement and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the Platform. You agree to this agreement electronically. You authorize us to provide you any information and notices regarding the software (“notices”) in electronic form. We may provide notices to you (1) via email if you have provided us with a valid email address or (2) on this page or a similar page of the site; or (3) via the Platform. The delivery of any notice is effective when sent or posted, regardless of whether you read the notice or actually receive the delivery. It is your responsibility to check this agreement periodically for changes. Your continued use of or access to the Platform following the posting of any changes to this Agreement constitutes acceptance of those changes. You can withdraw your consent to receive notices electronically by discontinuing your use of the Platform.
Formarketer Global, S.L.
Calle Játiva, 15. Piso 9. Puerta 18-A.
46002 Valencia, Spain.