This Terms of Service Agreement (“Agreement”) is a binding legal contract between you and formito LLC (“formito,” “we,” “us,” or “our”), regarding your use of formito’s website located at www.formito.com on all platforms (the “Website”).
You affirm that you are either more than 18 years of age, or an emancipated minor, or possess the consent of your legal parent or guardian, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and to abide by and comply with this Agreement.
The Website is controlled and offered by formito from its facilities in the United States of America. formito makes no representations that the Website is appropriate for use in other locations. Those who access or use the Website from other jurisdictions do so at their own volition and are responsible for compliance with their local law.
Nothing in this Agreement shall be deemed to confer any third-party rights or benefits. You and formito are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
1. General Use of the Website — Permissions and Restrictions
formito hereby grants you a revocable, non-transferable, and non-exclusive permission to access and use the Website as set forth in this Agreement, provided that:
a. You agree not to distribute in any medium any part of the Website, including but not limited to Content and User Submissions (each as defined below), without formito’s prior written authorization.
b. You agree not to alter or modify any part of the Website, including but not limited to, formito’s technologies.
c. You agree not to access User Submissions (defined below) or Content (defined below) through any technology or means other than any as authorized by this Agreement or a written agreement between you and formito.
d. You agree not to use the Website for any commercial use without the prior written authorization of formito. Prohibited commercial uses include, but are not limited to, any of the following actions taken without formito’s express approval:
i. Sale of access to the Website, Content or services via another website or medium (such as a mobile application);
ii. Use of the Website, Content or services for the purpose of gaining advertising or subscription revenue;
iii. The sale of advertising, on the Website or any third-party website, targeted to the content of specific User Submissions or the Content;
iv. Any use of the Website, Content, User Submissions or services that formito finds, in its sole discretion, has the effect of competing with or displacing the market for the Website, Content or User Submissions.
e. You agree not to use or launch any automated system, including without limitation, “robots,” “spiders,” or “offline readers,” that accesses the Website in a manner that sends more request messages to the formito servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser. Notwithstanding the foregoing, formito grants the operators of public search engines permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials. formito reserves the right to revoke these exceptions either generally or in specific cases. You agree not to collect or harvest any personally identifiable information from the Website, nor to use the communication systems provided by the Website for any commercial solicitation purposes. You agree not to solicit, for commercial purposes, any users of the Website with respect to their User Submissions.
f. You will otherwise comply with the terms and conditions of this Agreement, and all applicable local, national, and international laws and regulations.
g. You agree not to impersonate any person or organization.
h. You agree not to harass any other user.
i. formito reserves the right to discontinue any aspect of the Website or services at any time.
2. Your Use of Content on the Website
In addition to the general restrictions above, the following restrictions and conditions apply specifically to your use of Content on the Website.
a. The content on the Website, except all User Submissions, including without limitation, the text, software, scripts, graphics, files, documents, images, photos, sounds, music, pictures, messages, interactive features, the design of and “look and feel,” and the like (“Content”) and the trademarks, service marks and logos contained therein (“Marks”), are owned by or licensed to formito, subject to copyright and other intellectual property rights under the law. Content on the Website is provided to you AS IS for your information and personal use only and may not be downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners. formito reserves all rights not expressly granted in and to the Website and the Content.
b. You may access User Submissions solely:
i. For your information and personal use in accordance with this Agreement; and
ii. As intended through the normal functionality of the Website.
c. User comments are made available to you for your information and personal use solely as intended through the normal functionality of the Website. User comments are made available “as is,” and may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, downloaded, or otherwise exploited in any manner not intended by the normal functionality of the Website or otherwise as expressly authorized under this Agreement.
d. You may access Content, User Submissions, and other content only as permitted under this Agreement. formito reserves all rights not expressly granted in and to the Content and the Website.
e. You agree to not use, copy, reproduce, transmit, broadcast, sell, license, download, or otherwise exploit any of the Content other than as expressly permitted herein.
f. You agree not to circumvent, disable, or otherwise interfere with security-related features of the Website or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Website or the Content therein.
g. You understand that when using the Website, you will be exposed to User Submissions from a variety of sources, and that formito is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User Submissions. You further understand and acknowledge that you may be exposed to User Submissions that are inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against formito with respect thereto, and agree to indemnify and hold formito, its owners, operators, affiliates, and/or licensors, harmless to the fullest extent allowed by law regarding all matters related to your use of the Website.
3. Your User Submissions and Conduct
a. You may submit comments, information, text, link, graphics, photos, videos, or other materials or arrangements of materials posted, uploaded, downloaded, or appearing on formito (collectively referred to as “User Submissions”) to formito. You understand that whether or not such User Submissions are published, formito does not guarantee any confidentiality with respect to any User Submissions.
b. You shall be solely responsible for your own User Submissions and the consequences of posting or publishing them. In connection with User Submissions, you affirm, represent, and/or warrant that: you own or have all the necessary licenses, rights, consents, and permissions to use and authorize formito to use all patent, trademark, trade secret, copyright or other intellectual property or proprietary rights in and to any and all User Submissions to enable inclusion and use of the User Submissions in the manner contemplated by the Website and this Agreement.
c. You retain ownership of all copyrights you may have in your User Submissions. However, you grant formito a perpetual, non-exclusive, fully paid and royalty-free, worldwide license to formito to use, remove, copy, reproduce, process, transmit, excerpt, publish, distribute, publicly display, publicly perform, create derivative works of, host, index, cache, tag, encode, modify, and adapt in any form or media now known or hereinafter developed, any User Submissions posted by you to formito.
d. In connection with User Submissions, you further agree that you will not submit material that is copyrighted, trademarked, protected by trade secret or confidentiality, or otherwise subject to third-party proprietary rights, including privacy, personality and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant formito all of the license rights granted herein.
e. You agree that your conduct on the Website will comport with the terms of this Agreement.
f. formito does not endorse any User Submission or any opinion, recommendation, or advice expressed therein, and formito expressly disclaims any and all liability in connection with User Submissions. formito does not permit copyright infringing activities and infringement of intellectual property rights on its Website, and formito will remove all Content and User Submissions if properly notified in a manner consistent with law and formito’s Copyright Infringement Notification policy that such Content or User Submission infringes on another’s intellectual property rights. formito reserves the right to remove Content and User Submissions without prior notice.
g. If you provide feedback to us regarding the Website, Content, or User Submissions (“Feedback”), you authorize us to use that Feedback without restriction and without payment to you. Accordingly, you hereby grant to us perpetual and irrevocable license to use the Feedback for any purpose.
4. Copyright Infringement
a. If you are a copyright owner or an agent thereof and believe that any User Submission or other content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
i. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
ii. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
iii. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;
iv. Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;
v. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
vi. A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. formito’s designated Copyright Agent to receive notifications of claimed infringement can be contacted at: email@example.com.
You acknowledge that if you fail to comply with all of the requirements of this Section 4(a), your DMCA notice may not be valid.
b. Counter-Notice. If you believe that your User Submission that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the content in your User Submission, you may send a counter-notice containing the following information to the Copyright Agent:
i. Your physical or electronic signature;
ii. Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
iii. A statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
iv. Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in Boise, Idaho and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, formito may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at formito’s sole discretion.
c. Repeat Infringers. formito will terminate the access privileges of any user whom it deems, in its sole authority, has repeatedly infringed the copyright rights of others.
5. WARRANTY DISCLAIMER
YOU AGREE THAT YOUR USE OF THE WEBSITE OR THE PRODUCTS AND SERVICES AVAILABLE THEREIN SHALL BE AT YOUR SOLE RISK. THE WEBSITE, CONTENT, USER SUBMISSIONS, AND ANY PRODUCTS OR SERVICES AVAILABLE ON THE WEBSITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY LAW, AND CONVERTKIT, ITS MANAGERS, MEMBERS, EMPLOYEES, LICENSORS, SUPPLIERS, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE WEBSITE AND YOUR USE THEREOF, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CONVERTKIT MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE WEBSITE’S CONTENT OR THE CONTENT OF ANY SITES LINKED TO THIS WEBSITE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE WEBSITE AND THE PRODUCTS AND SERVICES AVAILABLE THEREIN, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE WEBSITE, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR WEBSITE BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE WEBSITE. CONVERTKIT DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND CONVERTKIT WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
6. LIMITATION OF LIABILITY
IN NO EVENT SHALL CONVERTKIT, ITS MANAGERS, MEMBERS, EMPLOYEES, LICENSORS, SUPPLIERS, OR AGENTS, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM YOUR ACCESS TO OR USE OF THE WEBSITE, CONTENT, USER SUBMISSIONS OR THE PRODUCTS AND SERVICES AVAILABLE ON THE WEBSITE. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
YOU AGREE THAT THE MAXIMUM TOTAL LIABILITY OF CONVERTKIT, ITS MANAGERS, MEMBERS, EMPLOYEES, LICENSORS, SUPPLIERS, OR AGENTS TO YOU FOR ANY CLAIM UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED THE ACTUAL TOTAL AMOUNT RECEIVED BY CONVERTKIT FROM YOU TO ACCESS THE WEBSITE AND/OR USE THE SERVICES. IF YOUR USE OF THE WEBSITE, SERVICES, AND/OR GOODS RESULTS IN THE NEED FOR SERVICING, REPAIR, OR CORRECTION OF EQUIPMENT OR DATA, YOU ASSUME ALL COSTS THEREOF. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
You agree to defend, indemnify and hold harmless formito, its managers, members, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Website; (ii) your violation of any term of this Agreement; (iii) your violation of any third-party rights, including without limitation any copyright, property, or privacy right; or (iv) any claim that one of your User Submissions caused damage to a third party or to formito. This defense and indemnification obligation will survive this Agreement and your termination of use of the Website.
8. Termination Policy
a. You may terminate your use of the Website at any time. formito may terminate this Agreement, or suspend or terminate your access to the Website, at any time, for any reason. If formito suspects that you have violated any provision of this Agreement, formito may also seek any other available legal remedy. Your rights under this Agreement will terminate automatically if you breach any part of this Agreement. You remain solely liable for all obligations related to use of the Website, even after you have stopped using the Website.
b. formito reserves the right to decide whether Content or a User Submission is appropriate and complies with this Agreement for violations other than copyright infringement and violations of intellectual property law, such as, but not limited to, laws regulating obscene or defamatory material. formito may remove such User Submissions and/or terminate a User’s access for uploading such material in violation of this Agreement at any time, without prior notice and at its sole discretion.
9. Third-Party Sites
The Website may contain links to third-party websites that are not owned or controlled by formito. formito has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third-party websites. In addition, formito will not and cannot censor or edit the content of any third-party site. By using the Website, you expressly relieve formito from any and all liability arising from your use of any third-party website.
10. Notice Regarding Electronic Payment Vendors
Users should be aware some payments may be processed through Stripe or other electronic payment vendors. formito may also provide applications and other services to merchants related to payment processing. Payments may not be processed for certain activities, such as for illegal or other prohibited activities. If you have a question as to whether a payment will be accepted, then we encourage you to check the policies of the applicable vendor.
You relationship with the electronic payment vendors is separate from your relationship with formito and is governed by the terms and conditions contained in such vendor’s agreement. Such terms and conditions are available at the respective vendor’s website. formito is not responsible for the actions or omissions of any third party payment processor.
11. Submissions and Privacy
In the event that you submit or post any ideas, creative suggestions, designs, photographs, information, advertisements, data or proposals, including ideas for new or improved products, services, features, technologies or promotions, you expressly agree that such submissions will automatically be treated as non-confidential and non-proprietary and will become the sole property of formito without any compensation or credit to you whatsoever. formito and its affiliates shall have no obligations with respect to such submissions or posts and may use the ideas contained in such submissions or posts for any purposes in any medium in perpetuity, including, but not limited to, developing, manufacturing, and marketing products and services using such ideas.
formito may, from time to time, include contests, promotions, sweepstakes, or other activities (“Promotions”) that require you to submit material or information concerning yourself. Please note that all Promotions may be governed by separate rules that may contain certain eligibility requirements, such as restrictions as to age and geographic location. You are responsible to read all Promotions rules to determine whether or not you are eligible to participate. If you enter any Promotion, you agree to abide by and to comply with all Promotions Rules.
Additional terms and conditions may apply to purchases of goods or services on or through the Website, which terms and conditions are made a part of this Agreement by this reference.
13. Typographical Errors
In the event a product and/or service is listed at an incorrect price or with incorrect information due to typographical error, we shall have the right to refuse or cancel any orders placed for the product and/or service listed at the incorrect price. We shall have the right to refuse or cancel any such order whether or not the order has been confirmed and your credit card charged. If your credit card has already been charged for the purchase and your order is canceled, we shall immediately issue a credit to your credit card account or other payment account in the amount of the charge.
14. Users Under 13 Years of Age
Our Website is not directed to persons under the age of 13. If you become aware that your child has provided us with personal information without your consent, please contact us at firstname.lastname@example.org. We do not knowingly collect personal information from children under the age of 13. If we become aware that a child under the age of 13 has provided us with personal information, we take steps to remove such information. By using this Website, you are representing to us that you are not under the age of 13. If you are under 13 years of age, you are not authorized to install and use this Website and must immediately delete it from your devices.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by formito without restriction.
By using the Website, you consent to receiving electronic communications from formito. These communications will include notices about your account and information concerning or related to the Website and/or formito’s products and services. You agree that any notice, agreement, disclosure or other communication that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.
17. Applicable Law
This Agreement shall be governed by the internal substantive laws of the State of Idaho, without respect to its conflict of laws principles. By accessing the Website, the parties consent to the jurisdiction of the State of Idaho.
PLEASE READ THE FOLLOWING SECTION CAREFULLY. IT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS WE AND YOU HAVE AGAINST EACH OTHER ARE RESOLVED. SECTION 18 CONTAINS A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER THAT REQUIRES YOU TO SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION AND LIMITS YOUR RIGHT TO SEEK RELIEF BY JURY TRIAL OR CLASS ACTION.
18. AGREEMENT TO ARBITRATE
This section applies to any dispute EXCEPT IT DOESN’T INCLUDE A DISPUTE RELATING TO CLAIMS FOR INJUNCTIVE OR EQUITABLE RELIEF REGARDING THE ENFORCEMENT OR VALIDITY OF YOUR OR CONVERTKIT’S INTELLECTUAL PROPERTY RIGHTS. The term “dispute” means any dispute, action, or other controversy between you and formito concerning the Website or this agreement, whether in contract, warranty, tort, statute, regulation, ordinance, or any other legal or equitable basis. “Dispute” will be given the broadest possible meaning allowable under law.
18.1 Notice of Dispute
In the event of a dispute, you or formito must give the other a Notice of Dispute, which is a written statement that sets forth the name, address, and contact information of the party giving it, the facts giving rise to the dispute, and the relief requested. You must send any Notice of Dispute via email to: email@example.com. formito will send any Notice of Dispute to you by U.S. Mail to your address if we have it, or otherwise to your email address. You and formito will attempt to resolve any dispute through informal negotiation within sixty (60) days from the date the Notice of Dispute is sent. After sixty (60) days, you or formito may commence arbitration.
18.2 Binding Arbitration
If you and formito don’t resolve any dispute by informal negotiation, any other effort to resolve the dispute will be conducted exclusively by binding arbitration as described in this section. You are giving up the right to litigate (or participate in as a party or class member) all disputes in court before a judge or jury. The dispute shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. The arbitration will be conducted in Boise, Idaho, and judgment on the arbitration award may be entered into any court of competent jurisdiction. The award of the arbitrator will be final and binding upon the parties without appeal or review except as permitted by Idaho law. Either party may seek any interim or preliminary injunctive relief from any court of competent jurisdiction, as necessary to protect the party’s rights or property pending the completion of arbitration. Any and all legal, accounting, and other costs, fees, and expenses incurred by the prevailing party shall be borne by the non-prevailing party.
18.3 Prohibition of Class and Representative Actions and Non-Individual Actions
You and formito agree that either may bring claims against the other only on an individual basis and not as part of any purported class or representative action or proceeding unless both you and formito agree otherwise. The arbitrator may not consolidate or join more than one person’s or party’s claims and may not preside over any form of a consolidated, representative or class proceeding. Also the arbitrator may award relief (including monetary, injunctive and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party’s claim(s). Any relief awarded cannot affect other formito’s users.
20. Notice Regarding Customer Use of formito P.O. Box
formito makes a P.O. Box address available for customers to use for purposes of email marketing. By using the P.O. Box address, you agree:
a. You are a formito customer;
b. You will use the P.O. Box address only for email marketing using formito’s services;
c. You give formito permission to open all mail to this address in order to pass it on to the correct recipient;
d. You will not use this address for fraud or any other unlawful activity;
e. formito will not forward physical mail or packages. It will only scan mail and email you a PDF;
f. formito may refuse anyone the right to use the P.O. Box address for any reason; and
g. formito reserves the right to discontinue use of the P.O. Box address at any time for any reason.
21. Contact Us
If you have questions or comments about this Agreement, or to report any violations or abuse of the Website, please contact us at firstname.lastname@example.org.