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FORMAT DYNAMICS TERMS OF SERVICE

Last Updated: June 11, 2012

Welcome to http://www.formatdynamics.com (the “Site”).  These Terms of Service (these “Terms”) are between Format Dynamics, Inc. (“Format Dynamics”) and you (“Customer”) and govern Customer’s right to access and use the solution provided by Format Dynamics that permits optimization of online content for saving, e-mailing and printing (the “Service”)  The Service includes, individually and collectively, the Site, any software or plug-in that allows end users to use certain functionality in connection with certain features of the Service (the “Format Dynamics Software”) and any written or electronic documentation specifying the functionality of the Service provided or made available by Format Dynamics (the “Documentation”).  Format Dynamics and Customer will each be known as a “Party” and collectively as the “Parties.”

CUSTOMER’S RIGHT TO USE THE SERVICE IS SUBJECT TO CUSTOMER’S ACCEPTANCE OF AND CONTINUING COMPLIANCE WITH THESE TERMS.  Customer accepts these Terms by either: (a) clicking an option to “accept” or “agree” to these Terms, where such option is made available by Format Dynamics; or (b) by actually using the Service, in which event Customer hereby agrees that such use constitutes acceptance of these Terms from that time onwards.  If the individual accepting these Terms is doing so on behalf of an employer or other entity, such individual represents and warrants that such individual has full legal authority to bind such employer or other entity to these Terms; and, if the individual does not have the requisite authority, the individual may not accept these Terms or use the Service on behalf of such employer or other entity.  IF CUSTOMER DOES NOT AGREE TO BE BOUND BY THESE TERMS, CUSTOMER MUST NOT USE THE SERVICE.

1.  ACCESS, REGISTRATION AND SOFTWARE

Subject to Customer’s continued compliance with these Terms, Format Dynamics hereby grants Customer the non-exclusive right during the Term to harvest and reformat content using the Service.  An individual Customer may access the Service by downloading the Format Dynamics Software for such Customer’s browser.  Format Dynamics hereby grants to Customer a limited, revocable, non-transferable, non-exclusive license to download, install and run the Format Dynamics Software on Customer’s browser.

If Customer is the owner or operator of a website (“Publisher”) and would like to use the Format Dynamics Software on Publisher’s website, Publisher may be required to register with Format Dynamics to obtain an account with Format Dynamics (become a “Registered User”) following the registration instructions on the Site.  Until Publisher applies for and is approved by Format Dynamics to become a Registered User, in Format Dynamics’ sole discretion, Publisher’s access to the Service will be limited to the areas of Service, if any, that Format Dynamics makes available to the general public.  In connection with Publisher’s application to become a Registered User, Publisher will be asked to submit certain information (“Registration Information”).  Publisher warrants and covenants that: (a) all Registration Information Publisher has provided to Format Dynamics is true, accurate, current, and complete; and, (b) Publisher will maintain and promptly update the Registration Information to keep it true, accurate, and complete at all times.

Format Dynamics hereby grants to Publisher a limited, revocable, non-transferable, non-exclusive license to download, install and run the Format Dynamics Software on Publisher’s site.  Publisher may allow users of Publisher’s site to run the Format Dynamics Software on Publisher’s site and access the Service, as long as Publisher ensures that its end users use the Service in accordance with these Terms.

If Customer or Publisher is presented with separate terms governing the use of the Format Dynamics Software, then those terms apply and take precedence over the terms in this Section governing the use of the Format Dynamics Software.  Format Dynamics Software is licensed, not sold.  Unless Format Dynamics notifies Customer otherwise, the Format Dynamics Software license ends when the Service ends.  When the Service ends, Customer must promptly uninstall the Format Dynamics Software.

2.  PROPRIETARY RIGHTS

The Format Dynamics Software is protected by intellectual property rights, including, as applicable and without limitation, copyrights, trademarks, patents, patent applications, trade secrets and other proprietary and intellectual property rights (“Intellectual Property Rights”).  As between Format Dynamics and Customer, Format Dynamics or its licensors own and reserve all right, title and interest in and to the Service and all hardware, software and other items used to provide the Service, other than the rights explicitly granted to Customer above to use the Service.  No title to or ownership of any proprietary rights related to the Service is transferred to Customer pursuant to these Terms or any transaction contemplated by these Terms.  All rights not explicitly granted to Customer are reserved by Format Dynamics.  In the event that Customer provides comments, suggestions and recommendations to Format Dynamics with respect to the Service (including, without limitation, comments, suggestions and recommendations with respect to modifications, enhancements, improvements and other changes to the Service) (collectively, “Feedback”), Customer hereby grants Format Dynamics a world-wide, royalty free, irrevocable, perpetual license to use and otherwise incorporate any Feedback in connection with the Service.

3.  RESTRICTIONS

Customer will not and will not encourage or assist any third party to: (a) modify, alter, tamper with, repair or otherwise create derivative works of any Format Dynamics Software; (b) reverse engineer, disassemble or decompile the Service or the Format Dynamics Software, or attempt to discover or recreate the source code for any Format Dynamics Software; (c) use the Service in any manner or for any purpose other than as expressly permitted by these Terms or any Documentation; (d) sell, lend, rent, resell, lease, sublicense or otherwise transfer any of the rights granted to Customer in these Terms to any third party; (e) remove, obscure or alter any proprietary rights notice pertaining to the Format Dynamics Software or the Service; (f) access or use the Format Dynamics Software or the Service in a way intended to improperly avoid incurring fees or exceeding usage limits or quotas; (h) use the Format Dynamics Software or Service to: (i) engage in any unlawful or fraudulent activity or perpetrate a hoax or engage in phishing schemes or forgery or other similar falsification or manipulation of data; or (ii) send unsolicited or unauthorized junk mail, spam, chain letters, pyramid schemes or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (h) interfere with or disrupt servers or networks used by Format Dynamics to provide the Service or used by other users’ to access the Service, or violate any third party regulations, policies or procedures of such servers or networks or harass or interfere with another user’s full use and enjoyment of any Format Dynamics Software or the Service; (i) cause, in Format Dynamics’ sole discretion, inordinate burden on the Service or Format Dynamics’ system resources or capacity; or (l) share passwords or other access information or devices or otherwise authorize any third party to access or use the Format Dynamics Software or the Service.

4.  SUSPENSION OF SERVICE

Customer may stop using the Services at any time.  Format Dynamics reserves the right, at any time and in Format Dynamics’ discretion, to temporarily suspend or terminate Customer’s access to the Service for any reason without incurring liability of any kind.  Causes for such suspension or disablement may include but are not limited to (a) scheduled downtime and recurring downtime; (b) unplanned technical problems and outages; (c) excess capacity or usage of the Service by Customer; (d) the suspicion or detection of any malicious code, virus or other harmful code or device in Customer’s use of the Service; and (e) the actual or suspected violation of the Privacy Policy or other obligation by Customer under these Terms.  If, in Format Dynamics’ determination, the suspension might be indefinite and/or Format Dynamics has elected to terminate Customer’s access to the Service, Format Dynamics will use commercially reasonable efforts to notify Customer through the Service.  Sections 2, 4, 5, 6, 8 through 11, 15, and 16 will survive termination of these Terms or the Service.

5.  CONTENT AND THIRD PARTY SERVICES

The text, files, images, graphics, illustrations, information, data, audio, video, photographs, advertising, and other content (collectively, “Content”) available on the Site (“Site Content”) is protected by the Intellectual Property Rights of Format Dynamics.  Unless otherwise noted on the Site, as between Customer and Format Dynamics, all Site Content is owned by Format Dynamics.  

Customer may use the Service with its own Content (collectively, “Customer Content”).  Format Dynamics is not responsible for any Customer Content.  Customer represents and warrants that none of the Customer Content: (a) infringes, misappropriates or violates any Intellectual Property Rights; (b) contains any viruses or programming routines intended to damage, surreptitiously intercept or expropriate any system, data or personal information; or (c) is false, misleading or inaccurate.  Customer hereby grants Format Dynamics and its contractors the right to use, modify, adapt, reproduce, distribute, display and disclose Customer Content provided in connection with the Service solely to the extent necessary to provide the Service or as otherwise permitted by these Terms.  Customer represents that it has all the rights in the Customer Content necessary for Customer to use the Service and to grant the rights in this Section; and, the harvesting and reformatting of the Customer Content does not violate any laws or these Terms.

All transactions using Service are between the transacting parties only. The Service may contain features and functionalities linking Customer or providing Customer with certain functionality and access to third party Content, including Web sites, directories, servers, networks, systems, information and databases, applications, software, programs, products or services, and the Internet as a whole; Customer acknowledges that Format Dynamics is not responsible for such third-party Content or services.  Similarly, Format Dynamics is not responsible for any third-party Content Customer accesses with the Services, and Customer irrevocably waives any claim against Format Dynamics with respect to such third-party Content.

Customer will defend, indemnify and hold harmless Format Dynamics from any and all losses, costs, damages, liabilities or expenses (including without limitation reasonable attorneys’ fees) incurred or arising from any claim by a third party arising out of the Customer Content, the third-party Content or the use thereof by Format Dynamics in providing the Service.   

6.  CLAIMS OF COPYRIGHT INFRINGEMENT

Format Dynamics prohibits the use of its Service for the illegal use of copyrighted material, and will respond if notified by content owners to stop copyrighted material from being used or transmitted via its Service.  If you believe that your work has been copied in a way that constitutes copyright infringement, please provide Format Dynamics’ agent for notice of claims of copyright or other intellectual property infringement (“Agent”) the written information specified below: (1) A description of the copyrighted work that you claim has been infringed upon; (2) A description of where the material that you claim is infringing is located, with enough detail so that we can locate it; (3) Your address, telephone number, and e-mail address; (4) A statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (5) A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and (6) An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest.

Format Dynamics’ Copyright Agent for Notice of Claims of Copyright Infringement can be reached as follows:

Attn: DMCA Copyright Agent
Format Dynamics
1700 Broadway, Suite 400
Denver, CO  80290

If you have any questions about this policy, please contact Format Dynamics at legal@formatdynamics.com.

7.  PRIVACY

Format Dynamics has established a privacy policy located at www.formatdynamics.com/privacy-policy (“Privacy Policy”) to explain to users of the Service how their information is collected and used.  Customer’s use of the Service signifies acknowledgment of and agreement to the Privacy Policy.  Customer further acknowledges and agrees that Format Dynamics may disclose Customer’s personal information if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to comply with legal process, to enforce these Terms, or, in its sole discretion, to protect the rights, property, or personal safety of Format Dynamics, its employees, users and third parties, and the public, or as otherwise described in the Privacy Policy.

8.  NO WARRANTY

FORMAT DYNAMICS PROVIDES ITS SITE AND SERVICE “AS IS,” “WITH ALL FAULTS” AND “AS AVAILABLE.”  CUSTOMER UNDERSTANDS THAT THE SERVICE MAY NOT BE ABLE TO PROPERLY DISPLAY ALL ONLINE CONTENT.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FORMAT DYNAMICS MAKES NO (AND FORMAT DYNAMICS SPECIFICALLY DISCLAIMS ALL) REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION,  ANY WARRANTY THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF HARMFUL COMPONENTS, OR ANY IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ANY WARRANTY ARISING OUT OF ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE.  SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES.  IN SUCH AN EVENT THE ABOVE EXCLUSION WILL NOT APPLY SOLELY TO THE EXTENT PROHIBITED BY LAW.

9.  INDEMNIFICATION

Customer agrees to indemnify, defend and hold harmless, Format Dynamics, its affiliates, and their respective officers, directors, employees, agents, licensors, representatives, and third party providers, to and from and against all losses, expenses, damages and costs, including reasonable attorneys’ fees, resulting from any violation of these Terms by Customer. Format Dynamics reserves the right to assume, at its sole expense, the exclusive defense and control of any matter subject to indemnification by Customer, in which event Customer will fully cooperate with Format Dynamics in asserting any available defenses.  Format Dynamics will provide Customer with notice of any such claim or allegation subject to Customer’s indemnification obligation in this paragraph.

10.  LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL FORMAT DYNAMICS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, GOODWILL, USE OR DATA) HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, WARRANTY, NEGLIGENCE OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES.  SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES. IN SUCH AN EVENT THIS LIMITATION WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.  To the MAXIMUM extent permitted by Applicable Law, the aggregate liability of FORMAT DYNAMICS and ITS respective Affiliates, contractors and Agents, arising under thESE TERMS WILL be limited in the aggregate to direct damages up to the amount of ONE DOLLAR ($1.00) Or the Minimum amount ALLOWED BY LAW, WHICHEVER IS GREATER.

11.  NOTICE

Except as expressly stated otherwise, any notices required or allowed under these Terms will be given to Format Dynamics by postal mail to the address for Format Dynamics listed on the Site or by emailing Format Dynamics at legal@formatdynamics.com.  With respect to Format Dynamics’ notices to Customer, Format Dynamics may provide notices by posting them on the Site.  In addition, or in lieu thereof, Format Dynamics may give notice by sending an email to the email address Customer provided to Format Dynamics.  Notice shall be deemed given 24 hours after it is posted or an email is sent.

12.  CHANGES TO THESE TERMS

Format Dynamics reserves the right to modify or replace these Terms at any time and in Format Dynamics’ sole discretion.  Format Dynamics will indicate at the top of these Terms the date these Terms were last updated.  Any changes will be effective immediately upon posting the revised version of these Terms on the Site (or such later effective date as may be indicated at the top of the revised Terms).  Customer’s continued use of the Service will constitute Customer’s acceptance of such changes.  If Customer rejects such changes, Customer must immediately stop using the Service and promptly notify Format Dynamics in writing of such rejection.  In addition, Format Dynamics may provide other methods by which Customer may accept these Terms or changes to these Terms.  If Customer does not agree to any of the changes to the Terms, Format Dynamics is not obligated to keep providing the Service, and Customer must cancel and stop using the Service.

13. CONSENT TO ELECTRONIC COMMUNICATIONS AND SOLICITATION.

By using the Service, Customer understands that Format Dynamics may send Customer communications or data regarding the Service, including but not limited to (a) notices about Customer’s use of the Service, including any notices concerning violations of use, (b) updates, and (c) promotional information and materials regarding Format Dynamics’ products and services, via electronic mail.  Format Dynamics gives Customer the opportunity to opt-out of receiving electronic mail from Format Dynamics by following the opt-out instructions provided in the message.

14.  CONTENT STORED IN THE UNITED STATES

The Service is provided from the United States.  By using and accessing the Service, Customer understands and consents to the processing of the Content and any other personal information in the United States.  Format Dynamics reserves the right to store and process personal information outside of the United States, and will use commercially reasonable efforts to provide Customer with prior notice of any such changes in the processing location.

15.  RESTRICTIONS ON SOFTWARE

The Format Dynamics Software is subject to applicable U.S. export laws and regulations. Customer must comply with all domestic and international export laws and regulations that apply to the Format Dynamics Software. These laws include restrictions on destinations, end users, and end use. Without limitation, Customer may not transfer the Format Dynamics Software or Service without U.S. government permission to anyone on U.S. government exclusion lists (see the Commerce Department’s Lists to Check). Customer represents and warrants that Customer is not on any of those lists or under the control of or an agent for anyone on those lists or the entities listed above.

16.  GENERAL

The failure of Format Dynamics to insist upon or enforce strict performance of any of the provisions of these Terms or to exercise any rights or remedies under these Terms will not be construed as a waiver or relinquishment to any extent of Format Dynamics’ right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same will remain in full force and effect.  Customer will not, directly, indirectly, by operation of law or otherwise, assign all or any part of these Terms or its rights hereunder or delegate performance of any of its duties hereunder without the prior written consent of Format Dynamics.  Format Dynamics may assign these Terms without obtaining Customer’s consent: (a) to an affiliate of Format Dynamics; or (b) in connection with a merger, reorganization or a sale of substantially all of the assets of Format Dynamics.  Subject to the foregoing restrictions, these Terms will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.  These Terms, together with any other agreement Customer may have entered into (or may enter into) in writing with Format Dynamics relating to the Service, constitutes the entire agreement, and supersedes any and all prior agreements, between Customer and Format Dynamics with regard to the subject matter hereof.  In the event that any provision of these Terms, or the application thereof, becomes or is declared by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder of these Terms will continue in full force and effect and the application of such provision will be interpreted so as reasonably to effect the intent of the Parties. The Parties will promptly replace such void or unenforceable provision with a valid and enforceable provision that will achieve, to the extent possible, the economic, business and other purposes of such void or unenforceable provision.  These Terms will be construed and enforced in all respects in accordance with the laws of the State of Colorado, U.S.A., without reference to its choice of law rules. The parties specifically exclude from application to these Terms the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act.  Customer hereby irrevocably and unconditionally consents to the jurisdiction and venue in the state and federal courts sitting in Denver, Colorado.  If Customer is a U.S. government entity, Customer acknowledges that elements of the Service constitute software and documentation and are provided as “Commercial Items” as defined at 48 C.F.R. 2.101, and are being licensed to U.S. government end users as commercial computer software subject to the restricted rights described in 48 C.F.R. 2.101 and 12.212.  In the event that either Party is prevented from performing, or is unable to perform, any of its obligations under these Terms due to any cause beyond the reasonable control of the Party invoking this provision (including, without limitation, for causes due to war, fire, earthquake, flood, hurricane, riots, acts of God or other similar causes), the affected Party’s performance will be excused and the time for performance will be extended for the period of delay or inability to perform due to such occurrence.