Updated January 23, 2017
These Terms of Service are an agreement between you and EZFORMS Inc., a Texas Corporation. EZFORMS offers certain services for mobile data collection, storage and analysis (the "Service"). By using EZFORMS.com orapp.ezforms.com(the “SaaS Portal") and/or any services accessible from it, you agree to be bound by the following terms and conditions ("Terms of Service”).
You own all rights, title and interest in and to all of your data. You shall have sole responsibility for the legality, reliability, accuracy, integrity and quality of your data.
1.2Handling of Your Data In The Event Of Termination.
You agree that following termination of your account and/or your cancellation of your subscription to the Service, EZFORMS may immediately deactivate your account and that, following a reasonable period of not less than 90 days, shall be entitled to delete your account, including your Data. During this 90 day period and upon your request, EZFORMS will grant you limited access to the Service for the sole purpose of permitting you to retrieve your data, provided that you have paid in full all good faith undisputed amounts owed to EZFORMS. You further agree that EZFORMS shall not be liable to you nor to any third party for any termination of your access to the Service or deletion of your Data, provided that EZFORMS is in compliance with the terms of this Paragraph 1.2.
1.3Reasonable Data Storage.
EZFORMS intends to provide subscribers the ability to store data collected through the Service on EZFORMS servers. If EZFORMS determines, in its sole discretion, that you are storing an unreasonably large amount of data (for example, an unreasonable amount of video recordings), EZFORMS may impose additional charges or take other steps to mitigate this burden. EZFORMS will provide notice to you before doing so.
You are solely responsible for all Content created using the Service. To the extent EZFORMS assists you with the creation of data collection forms, you are solely responsible for verifying and testing those forms to ensure they have been created consistent with your specifications. Content means: (1) the creation of all your data collection forms (including field selection, field names, field placement and option-selection within each field); and, (2) all data submitted from mobile devices using EZFORMS data collection forms.
You agree that you will use the Service only for lawful purposes. You will comply with all applicable laws and regulations when using the Service including, without limitation, compliance with applicable privacy laws. You represent that you are not collecting any data that subjects EZFORMS or you to heightened data storage or protection standards (for example, the Health Insurance Portability and Accountability Act) and you will inform EZFORMS if you collect data subject to such standards.
2.3Responsibility for App Users.
You are solely responsible for the following with respect to App Users (App Users are defined as all persons or entities that use the Mobile App to collect data under your subscription or account):
If you have been issued an account by EZFORMS in connection with your use of the Services, you are responsible for safeguarding your password and any other credentials used to access that account. You, and not EZFORMS, are responsible for any activity occurring in your account (other than activity that EZFORMS is directly responsible for which is not performed in accordance with your instructions), whether or not you authorized that activity. If you become aware of any unauthorized access to your account, you should notify EZFORMS immediately. Accounts may not be shared and may only be used by one individual per account.
2.5 Contact Information.
EZFORMS occasionally sends notices to the email address registered with your account. You must keep your email address and, where applicable, your contact details and payment details associated with your account current and accurate. Accounts are controlled by the entity whose email address is registered with the account.
EZFORMS may terminate your account and delete any content contained in it if there is no account activity (such as a log in event or payment) for over 12 months. However, we will attempt to warn you by email before terminating your account to provide you with an opportunity to log in to your account so that it remains active.
If you use the EZFORMS Services to accept payment card transactions, you must comply with the Payment Card Industry Data Security Standards (PCI-DSS) to the extent it is applicable to your business (the “PCI Standards”). EZFORMS provides tools to simplify your compliance with the PCI Standards, but you must ensure that your business is compliant and the specific steps you will need to take to comply with the PCI Standards will depend on your implementation of the EZFORMS Services. EZFORMS is responsible for the security of Cardholder Data that is collected, transmitted, stored, or processed by us on your behalf. “Cardholder Data” is defined as a cardholder’s primary account number, and where a full unmasked card number is present, any of the cardholder name, expiration date, and/or service code. EZFORMS has developed strict security features to protect Cardholder Data, and as such it is required that this data only be used in anticipated ways and stored in appropriate places. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE PROHIBITED FROM COLLECTING OR ENTERING CARDHOLDER DATA INTO ANY FORM OR DATA ENTRY FIELDS IN THE WUFOO SERVICES, EXCEPT INTO THOSE FIELDS INTENDED SOLELY FOR THAT PURPOSE (i.e. where EZFORMS explicitly enables such data to be entered into such fields). Appropriate fields are clearly marked with labels such as ‘Card number’ or by having a credit card icon precede them. Similarly, excluding payment forms, you must never collect or enter any “Sensitive Authentication Data”, as defined by the PCI Standards (including CVC or CVV2) into any fields in the EZFORMS Services. You assume all responsibility for any Cardholder Data entered into the EZFORMS Services in violation of these terms.
4.1Fees for the Service.
EZFORMS publishes on its website the fees its charges for its services. EZFORMS may change the fees charged for the Services at any time, provided that, for Services billed on a subscription basis, the change will become effective only at the end of the then-current billing cycle of your Subscription. EZFORMS will provide you with reasonable prior written notice of any change in fees to give you an opportunity to cancel your Subscription before the change becomes effective.
You are solely responsible for ensuring EZFORMS has your up-to-date credit card details.
4.3Credit Card Details.
If you have elected to pay the fees for the EZFORMS Subscription by credit card, you warrant that the credit card information you provide is correct and you shall promptly notify EZFORMS of any changes to such credit card information. You agree that if your credit card payment cannot be processed for any reason, EZFORMS may suspend or cancel your EZFORMS Subscription.
4.4Delinquent Payment and Termination of Service.
EZFORMS may suspend or terminate any or all services provided for accounts that are delinquent by sixty (60) calendar days or more from the date payment is due for the Services. EZFORMS will provide written notice of delinquent payments after fifteen (15) and thirty (30) days, and will provide written notice of intent to suspend or terminate services (15) days before doing so. You acknowledge that suspension or termination of service will directly affect your access to EZFORMS Services. EZFORMS's handling of your Data upon termination is described in Paragraph 3.2.
Downgrading your EZFORMS account plan may cause the loss of content, features, or capacity of your account. To the extent permitted by applicable law, EZFORMS does not accept any liability for such losses.
Unless otherwise stated, you are responsible for any taxes (other than EZFORMS income tax) or duties associated with the sale of the Services, including any related penalties or interest (collectively, “Taxes”). You will pay EZFORMS for the Services without any reduction for Taxes. If EZFORMS is obliged to collect or pay Taxes, the Taxes will be invoiced to you, unless you provide EZFORMS with a valid tax exemption certificate authorized by the appropriate taxing authority or other documentation providing evidence that no tax should be charged. EZFORMS will not charge you VAT if you provide us with a VAT number issued by a taxing authority in the European Union. If you are required by law to withhold any Taxes from your payments to EZFORMS, you must provide EZFORMS with an official tax receipt or other appropriate documentation to support such payments.
EZFORMS offers some of its Services through native mobile device applications that enable you to collect data (the "Mobile App"). You understand that not all smartphones and tablets - and not all device operating systems versions - are supported. Please contact EZFORMS for more details.
By using the Mobile App, you understand and agree that certain information about the App Users (defined in Paragraph 2.3), including, but not limited to, the App Users' device, mobile carrier, internet access provider and physical location may be communicated to EZFORMS. You also acknowledge that App Users may incur data charges by transmitting data from their mobile devices, depending on App Users' wireless data/Internet usage plans. EZFORMS is not responsible for any such charges. You are responsible for removing an App User's access to the Services when that App User no longer is entitled to use the Service (for example, when an employee leaves your employment). EZFORMS will provide online tools to enable removal/replacement/addition of users.
EZFORMS grants you, and your App Users, a limited, nonexclusive, nontransferable, revocable license to use the Mobile App, solely to access the Service. The terms of this license are contained in the end user license agreement associated with the Mobile App provided at the time of download or installation. The license to use the Mobile App is automatically revoked when your account is terminated or deactivated, or if you otherwise cancel use of the Service. You shall not (and shall not allow its personnel or any third party to): (1) modify or create derivative works of any aspect of the Mobile App without the express written consent of EZFORMS; (2) reverse engineer, decompile, decrypt or attempt to discover any source code or underlying ideas or algorithms of the Mobile App (except to the extent that applicable law prohibits reverse engineering restrictions, in which case advance notice to EZFORMS of such action shall be given); or, (3) otherwise use or allow the use of the Mobile App for the benefit of any third party (including by way of multiplexing or pooling) other than as permitted by EZFORMS in writing. You shall be solely responsible for the compliance of each of your employees, contractors, agents and all other App Users with these terms and all applicable laws.
All right, title, and interest, including all intellectual property rights in the Services and any associated software of EZFORMS or its licensors, and any updates, upgrades or modifications thereof, or in any ideas, know-how, and programs developed during the course of performance of this Agreement will remain the property of EZFORMS or its licensors.
6.2Trademarks and Logos.
If you become a paying EZFORMS subscriber, EZFORMS may use your logos for EZFORMS's marketing purposes. You may revoke this authorization at any time.
If you terminate a Subscription in the middle of a billing cycle, you will not receive a refund for any period of time you did not use in that billing cycle unless you are terminating these Terms for any of the following reasons: (a) we have materially breached these Terms and failed to cure that breach within 30 days after you have so notified us in writing; or (b) a refund is required by law.
7.2 By EZFORMS.
EZFORMS may terminate your Subscription at the end of a billing cycle by providing at least 30 days’ prior written notice to you. EZFORMS may terminate your Subscription for any reason by providing at least 90 days’ written notice to you and will provide a pro rata refund for any period of time you did not use in that billing cycle. EZFORMS may suspend performance or terminate your Subscription for any of the following reasons: (a) you have materially breached these Terms and failed to cure that breach within 30 days after EZFORMS has so notified you in writing; (b) you cease your business operations or become subject to insolvency proceedings and the proceedings are not dismissed within 90 days; or (c) you fail to pay fees for 30 days past the due date. Additionally, EZFORMS may limit or suspend the Services to you if you fail to comply with these Terms, or if you use the Services in a way that causes legal liability to us or disrupts others’ use of the Services. EZFORMS may also suspend providing the Services to you if we are investigating suspected misconduct by you. If we limit, suspend, or terminate the Services you receive, we will endeavor to give you advance notice and an opportunity to export a copy of your Content from that Service. However, there may be time sensitive situations where EZFORMS may decide that we need to take immediate action without notice. EZFORMS will use commercially reasonable efforts to narrow the scope and duration of any limitation or suspension under this Section as is needed to resolve the issue that prompted such action. EZFORMS has no obligation to retain your Content upon termination of the applicable Service.
8.1Use of API.
You may access your EZFORMS account data via EZFORMS application programming interface (“API”) and EZFORMS hereby grants you a non-exclusive, non-transferable license (without the right to sublicense) to use the API solely as necessary to develop, test, operate and support your software application or website using certain data and content from the EZFORMS website ( “Application”), and to distribute or allow access to your integration of the API within your Application to end users of your Application. Any use of the API, including use of the API through a third party product or service that accesses EZFORMS, is bound by these EZFORMS Terms, plus the following specific items:
(b)Abuse of the API or excessively frequent requests to EZFORMS via the API may result in the temporary or permanent suspension of your access to the API. EZFORMS, in its sole discretion, will determine if your usage constitutes abuse or excessive usage of the API. EZFORMS will endeavor to warn the account owner via email prior to suspension. While EZFORMS strives to have the API available without interruption, EZFORMS cannot guarantee any uptime for the API.
(c)You agree not to use the API in any way that is unlawful or harms EZFORMS, its service providers, your end users, or any other person.
(d)EZFORMS may modify, restrict or discontinue, at any time, temporarily or permanently, your access to the API (or any part thereof) with or without notice.
(e)You agree to assist EZFORMS, at its request, to verify compliance with these EZFORMS Terms by providing us with information about your Application, including providing us with access to it and/or other materials related to your use of the API.
The API is currently provided for free, but EZFORMS reserves the right to charge for use of the API in the future. If EZFORMS charges a fee for use of the API, you do not have any obligation to continue using it.
9.1Disclaimer of Warranties.
In addition to the limitations of EZFORMS's liability expressly contained in this Agreement, you assume all the responsibility and risk for your use of the EZFORMS Site and Service and the results and performance thereof, and your use of any data collection forms created or developed (in whole or in part) by parties other than EZFORMS. THE EZFORMS SITE AND SERVICE ARE PROVIDED TO YOU ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT WARRANTY OF ANY KIND. EZFORMS DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY WARRANTIES AND CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM EZFORMS OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT. EZFORMS DOES NOT REPRESENT OR WARRANT THAT: (I) THE EZFORMS SITE OR SERVICE WILL MEET YOUR REQUIREMENTS OR WILL BE ERROR FREE OR THAT ANY ERRORS WILL BE CORRECTED; (II) THE OPERATION OF THE EZFORMS SERVICE WILL BE UNINTERRUPTED; OR (III) THE ACCURACY, TIMELINESS, COMPLETENESS, OR ADEQUACY OF THE EZFORMS SITE OR SERVICE AND ANY DATA ACCESSED THEREFROM. INFORMATION PROVIDED THROUGH THE EZFORMS SITE OR SERVICE MAY BE DELAYED, INACCURATE, OR CONTAIN ERRORS OR OMISSIONS. THE EZFORMS GROUP (DEFINED BELOW) AND EZFORMS'S THIRD PARTY LICENSORS WILL HAVE NO LIABILITY WITH RESPECT THERETO. EZFORMS MAY CHANGE OR DISCONTINUE ANY ASPECT OR FEATURE OF THE EZFORMS SITE OR SERVICE OR THE USE OF ALL OR ANY FEATURES OR TECHNOLOGY IN THE EZFORMS SITE OR SERVICE AT ANY TIME WITHOUT PRIOR NOTICE TO YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
9.2Limitation of Liability.
IN NO EVENT WILL EZFORMS, ITS AFFILIATED ENTITIES OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AUTHORIZED AGENTS AND EZFORMS'S THIRD PARTY LICENSORS BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST DATA, LOST PROFITS, LOSS OF GOODWILL, LOST REVENUE, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE EZFORMS SITE OR SERVICE UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO CONTRACT OR TORT (INCLUDING PRODUCTS LIABILITY, STRICT LIABILITY AND NEGLIGENCE), AND WHETHER OR NOT THE EZFORMS GROUP OR ITS THIRD PARTY LICENSORS WERE OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL EZFORMS'S AGGREGATE LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICE, TO THE FULLEST EXTENT POSSIBLE UNDER APPLICABLE LAW, EXCEED THE AMOUNT PAID, IF ANY, BY YOU FOR THE EZFORMS SERVICE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY, SUCH AS FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
To the maximum extent permitted by law, You agree to defend, indemnify and hold the EZFORMS Group harmless from and against any and all claims, suites, losses, liability, costs or expenses (including but not limited to reasonable attorneys fees) arising from or incurred as a result of your use of the EZFORMS Site or Service, or your violation of these Terms of Service.
YOU AND EZFORMS AGREE THAT ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING IN ANY WAY TO THESE TERMS OR EZFORMS'S SITE OR SERVICE, SHALL BE DETERMINED BY BINDING ARBITRATION INSTEAD OF IN COURTS OF GENERAL JURISDICTION. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND EZFORMS ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. This arbitration provision shall survive termination of this Agreement.
The arbitration will be governed by the Commercial Arbitration Rules and, if appropriate, the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"). YOU AND EZFORMS AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and EZFORMS agree otherwise, the arbitrator may not consolidate more than one person's claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void. The arbitrator shall decide any issues relating to the enforceability and/or applicability of the arbitration provisions of this Agreement to the dispute. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim..
11.2Choice of Law and Venue.
These Terms of Service shall be governed by and interpreted under the laws of the State of Texas, without regard to its conflicts of laws provisions. You agree that any legal proceedings must be brought and resolved in Dallas, Texas.
Neither party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond such party's reasonable control (including, but not limited to: fire, explosion, earthquake, storm, flood, wind, drought and act of God or the elements; court order; act, delay or failure to act by civil, military or other governmental authority; strike, lockout, labor dispute, riot, insurrection, sabotage, acts of terrorism, declared or undeclared war; unavailability of required parts, materials or other items; and act, delay or failure to act by the other party or any third party); provided that such party uses its best efforts to promptly overcome or mitigate the delay or failure to perform. This Section will not apply to any monetary obligation of either party
The section and sub-section titles in these Terms of Service are provided solely for convenience and have no legal or contractual significance.
The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
If for any reason a tribunal of competent jurisdiction finds any provision of these Terms of Service or portion thereof, to be unenforceable, that provision of these Terms of Service shall be enforced to the fullest extent permissible, and the remainder of these Terms of Service shall continue in full force and effect.
You may not assign your rights under these Terms of Service to any party without EZFORMS's consent, and any such assignment is void.
Nothing in these Terms of Service will be construed as creating a joint venture, partnership, employment or agency relationship between you and EZFORMS, and you do not have any authority to create any obligation or make any representation on EZFORMS's behalf.
These Terms of Service and all the policies referenced herein constitute the entire agreement between EZFORMS and you concerning the subject matter hereof, and it may only be modified by written agreement by a EZFORMS official with authority to legally bind EZFORMS.