FORMBIRD PLATFORM LICENSE AGREEMENT
PLEASE READ CAREFULLY THIS FORMBIRD LICENSE AGREEMENT (THIS “AGREEMENT”), WHICH CONSTITUTES A LEGALLY BINDING AGREEMENT AND GOVERNS ALL OF YOUR USE OF ALL FORMBIRD SOFTWARE WITH WHICH THIS AGREEMENT IS INCLUDED (“FORMBIRD SOFTWARE”) THAT IS PROVIDED IN OBJECT CODE FORMAT, AND, IN ACCORDANCE WITH SECTION 2 BELOW, CERTAIN OF THE FORMBIRD SOFTWARE THAT IS PROVIDED IN SOURCE CODE FORMAT. BY INSTALLING OR USING ANY OF THE FORMBIRD SOFTWARE GOVERNED BY THIS AGREEMENT, YOU ARE ASSENTING TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH SUCH TERMS AND CONDITIONS, YOU MAY NOT INSTALL OR USE THE FORMBIRD SOFTWARE GOVERNED BY THIS AGREEMENT. IF YOU ARE INSTALLING OR USING THE SOFTWARE ON BEHALF OF A LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE ACTUAL AUTHORITY TO AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT ON BEHALF OF SUCH ENTITY.
Posted Date: November 25, 2018
This Agreement is entered into by and between Formbird Pty Ltd (“Formbird”) and You, or the legal entity on behalf of whom You are acting (as applicable,”You”).
1. OBJECT CODE END USER LICENSES, RESTRICTIONS AND THIRD PARTY OPEN SOURCE SOFTWARE
1.1. Object Code End User License. Subject to the terms and conditions of Section 1.2 of this Agreement, Formbird hereby grants to You, AT NO CHARGE and for so long as you are not in breach of any provision of this Agreement, a License to the Basic Features and Functions of the Formbird Software.
1.2. Reservation of Rights; Restrictions. As between Formbird and You, Formbird and its licensors own all right, title and interest in and to the Formbird Software, and except as expressly set forth in Sections 1.1, and 2.1 of this Agreement, no other license to the Formbird Software is granted to You under this Agreement, by implication, estoppel or otherwise. You agree not to: (i) reverse engineer or decompile, decrypt, disassemble or otherwise reduce any Formbird Software provided to You in Object Code, or any portion thereof, to Source Code, except and only to the extent any such restriction is prohibited by applicable law, (ii) except as expressly permitted in this Agreement, prepare derivative works from, modify, copy or use the Formbird Software Object Code or the Commercial Software Source Code in any manner; (iii) except as expressly permitted in Section 1.1 above, transfer, sell, rent, lease, distribute, sublicense, loan or otherwise transfer, Formbird Software Object Code, in whole or in part, to any third party; (iv) use Formbird Software Object Code for providing time-sharing services, any software-as-a-service, service bureau services or as part of an application services provider or other service offering (collectively, “SaaS Offering”) where obtaining access to the Formbird Software or the features and functions of the Formbird Software is a primary reason or substantial motivation for users of the SaaS Offering to access and/or use the SaaS Offering (“Prohibited SaaS Offering”); (v) circumvent the limitations on use of Formbird Software provided to You in Object Code format that are imposed or preserved by any License Key, or (vi) alter or remove any Marks and Notices in the Formbird Software. If You have any question as to whether a specific SaaS Offering constitutes a Prohibited SaaS Offering, or are interested in obtaining Formbird’s permission to engage in commercial or non-commercial distribution of the Formbird Software, please contact Sales@formbird.com.
1.3. Third Party Open Source Software. The Commercial Software may contain or be provided with third party open source libraries, components, utilities and other open source software (collectively, “Open Source Software”), which Open Source Software may have applicable license terms as identified on a website designated by Formbird. Notwithstanding anything to the contrary herein, use of the Open Source Software shall be subject to the license terms and conditions applicable to such Open Source Software, to the extent required by the applicable licensor (which terms shall not restrict the license rights granted to You hereunder, but may contain additional rights). To the extent any condition of this Agreement conflicts with any license to the Open Source Software, the Open Source Software license will govern with respect to such Open Source Software only. Formbird may also separately provide you with certain open source software that is licensed by Formbird. Your use of such Formbird open source software will not be governed by this Agreement, but by the applicable open source license terms.
2. COMMERCIAL SOFTWARE SOURCE CODE
2.1. Limited License. Subject to the terms and conditions of Section 2.2 of this Agreement, Formbird hereby grants to You, AT NO CHARGE and for so long as you are not in breach of any provision of this Agreement, a limited, non-exclusive, non-transferable, fully paid up royalty free right and license to the Commercial Software in Source Code format, without the right to grant or authorize sublicenses, to prepare Derivative Works of the Commercial Software, provided You (i) do not hack any licensing mechanism, or otherwise circumvent the intended limitations on the use of Formbird Software to enable features other than Basic Features and Functions or those features You are entitled to as part of a Subscription, and (ii) use the resulting object code only for reasonable testing purposes.
2.2. Restrictions. Nothing in Section 2.1 grants You the right to (i) use the Commercial Software Source Code other than in accordance with Section 2.1 above, (ii) use a Derivative Work of the Commercial Software outside of a Non-production Environment, in any production capacity, on a temporary or permanent basis, or (iii) transfer, sell, rent, lease, distribute, sublicense, loan or otherwise make available the Commercial Software Source Code, in whole or in part, to any third party.
3.1. Termination. This Agreement will automatically terminate, whether or not You receive notice of such Termination from Formbird, if You breach any of its provisions.
3.2. Post Termination. Upon any termination of this Agreement, for any reason, You shall promptly cease the use of the Formbird Software in Object Code format and cease use of the Commercial Software in Source Code format.
3.3. Survival. Sections 1.2, 2.2. 3.3, 4 and 5 shall survive any termination or expiration of this Agreement.
4. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
4.1. Disclaimer of Warranties. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE FORMBIRD SOFTWARE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND FORMBIRD AND ITS LICENSORS MAKE NO WARRANTIES WHETHER EXPRESSED, IMPLIED OR STATUTORY REGARDING OR RELATING TO THE FORMBIRD SOFTWARE. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, FORMBIRD AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT WITH RESPECT TO THE FORMBIRD SOFTWARE, AND WITH RESPECT TO THE USE OF THE FOREGOING. FURTHER, FORMBIRD DOES NOT WARRANT RESULTS OF USE OR THAT THE FORMBIRD SOFTWARE WILL BE ERROR FREE OR THAT THE USE OF THE FORMBIRD SOFTWARE WILL BE UNINTERRUPTED.
4.2. Limitation of Liability. IN NO EVENT SHALL FORMBIRD OR ITS LICENSORS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT OR INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, IN CONNECTION WITH OR ARISING OUT OF THE USE OR INABILITY TO USE THE FORMBIRD SOFTWARE, OR THE PERFORMANCE OF OR FAILURE TO PERFORM THIS AGREEMENT, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF FORMBIRD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
This Agreement completely and exclusively states the entire agreement of the parties regarding the subject matter herein, and it supersedes, and its terms govern, all prior proposals, agreements, or other communications between the parties, oral or written, regarding such subject matter. This Agreement may be modified by Formbird from time to time, and any such modifications will be effective upon the “Posted Date” set forth at the top of the modified Agreement. If any provision hereof is held unenforceable, this Agreement will continue without said provision and be interpreted to reflect the original intent of the parties. This Agreement and any non-contractual obligation arising out of or in connection with it, is governed exclusively by Australian law. This Agreement shall not be governed by the 1980 UN Convention on Contracts for the International Sale of Goods. All disputes arising out of or in connection with this Agreement, including its existence and validity, shall be resolved by the courts with jurisdiction in Victoria, Australia, except where mandatory law provides for the courts at another location in Australia to have jurisdiction. The parties hereby irrevocably waive any and all claims and defenses either might otherwise have in any such action or proceeding in any of such courts based upon any alleged lack of personal jurisdiction, improper venue, forum non conveniens or any similar claim or defense. A breach or threatened breach, by You of Section 2 may cause irreparable harm for which damages at law may not provide adequate relief, and therefore Formbird shall be entitled to seek injunctive relief without being required to post a bond. You may not assign this Agreement (including by operation of law in connection with a merger or acquisition), in whole or in part to any third party without the prior written consent of Formbird, which may be withheld or granted by Formbird in its sole and absolute discretion. Any assignment in violation of the preceding sentence is void. Notices to Formbird may also be sent to Sales@formbird.com.
The following terms have the meanings ascribed:
6.1 “Affiliate” means, with respect to a party, any entity that controls, is controlled by, or which is under common control with, such party, where “control” means ownership of at least fifty percent (50%) of the outstanding voting shares of the entity, or the contractual right to establish policy for, and manage the operations of, the entity.
6.2 “Basic Features and Functions” means those features and functions of the Formbird Software that are eligible for use under license, as set forth at as may be modified by Formbird from time to time.
6.3 “Commercial Software” means the Formbird Software Source Code in any file.
6.4 “Derivative Work of the Commercial Software” means, for purposes of this Agreement, any modification(s) or enhancement(s) to the Commercial Software, which represent, as a whole, an original work of authorship.
6.5 “License” means a limited, non-exclusive, non-transferable, fully paid up, royalty free, right and license, without the right to grant or authorize sublicenses, solely for Your internal business operations to (i) install and use the applicable Features and Functions of the Formbird Software in Object Code, and (ii) permit Contractors and Your Affiliates to use the Formbird software as set forth in (i) above, provided that such use by Contractors must be solely for Your benefit and/or the benefit of Your Affiliates, and You shall be responsible for all acts and omissions of such Contractors and Affiliates in connection with their use of the Formbird software that are contrary to the terms and conditions of this Agreement.
6.6 “License Key” means a sequence of bytes, including but not limited to a JSON blob, that is used to enable certain features and functions of the Formbird Software.
6.7 “Marks and Notices” means all Formbird trademarks, trade names, logos and notices present on the Documentation as originally provided by Formbird.
6.8 “Non-production Environment” means an environment for development, testing or quality assurance, where software is not used for production purposes.
6.9 “Object Code” means any form resulting from mechanical transformation or translation of Source Code form, including but not limited to compiled object code, generated documentation, and conversions to other media types.
6.10 “Source Code” means the preferred form of computer software for making modifications, including but not limited to software source code, documentation source, and configuration files.
6.11 “Subscription” means the right to receive Support Services and a License to the Commercial Software.