This agreement (“Agreement”) sets forth the terms and conditions of your use of Newforma® LeanPlanner powered by LeanKit® (the “Service”).
THIS IS A BINDING AGREEMENT BETWEEN NEWFORMA, INC. (“NEWFORMA”) AND YOU (TOGETHER WITH ANY LEGAL ENTITY BY WHICH YOU ARE EMPLOYED OR WHICH YOU OTHERWISE REPRESENT, “YOU”). DO NOT USE THE SERVICE UNTIL YOU HAVE CAREFULLY READ THIS AGREEMENT. BY USING THE SERVICE, YOU ARE AGREEING TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING THE LIMITATIONS ON LIABILITY SET FORTH HEREIN.
IF YOU HAVE ANY QUESTIONS ABOUT THIS AGREEMENT, PLEASE CONTACT: NEWFORMA, INC., 1750 ELM STREET, 10TH FLOOR, MANCHESTER, NH 03104 USA.
1. DEFINITIONS. As used in this Agreement, the following terms have the following meanings:
“Authorized User” means an employee, consultant, subcontractor, client or other person designated by Subscriber as a person who is permitted to use the Service in connection with a specific Project.
“Content” means any data or information that You display, transmit or store via the Service.
“Documentation” means the online or other documentation provided by Newforma describing the Service and its use.
“Order” means an order for the Service placed by a Subscriber, which identifies the Project and sets forth, among other things, the Subscription Term, fees and payment terms.
“Project(s)” means the specific project(s) for which the Service may be used, as set forth in an Order.
“Project Content” means any data or information relating to a Project displayed, transmitted or stored via the Service by Authorized Users.
“Software” means any online software applications provided as part of the Service.
“Subscriber” means the person or entity that placed an Order for, and has agreed to pay the fees for, the Service.
“Subscription Term” means the period during which the Service may be used, as specified in the Order, and as may be renewed pursuant to Section 7.1.
2. RIGHT TO USE SERVICE.
2.1 Grant of User Rights. Subject to Your compliance with the terms of this Agreement, Newforma hereby grants to You a non-exclusive, non-transferable right to use the Service during the Subscription Term solely in connection with the Project or Projects for which you are an authorized user. Unless otherwise expressly permitted by the owner(s) of any Project Content, You may use Project Content only in connection with each Project and for no other purpose.
2.2 Ownership. You acknowledge that (i) all right, title and interest in and to the Service, the Software and the Documentation, and all patents, copyrights, trade secret rights, trademarks, trade names and other proprietary rights embodied therein or associated therewith, are and shall remain with Newforma and/or its third party licensors; (ii) this Agreement conveys no right or interest in the Service, the Software or Documentation other than a limited right to use the Service in accordance herewith; (iii) the Service, Software and Documentation are protected by the copyright laws of the United States and international treaties; and (iv) Newforma asserts that the Service, Software and Documentation embody valuable confidential and secret information of Newforma, the development of which required the expenditure of considerable time and money.
2.4 Certain Obligations. You are responsible, at Your expense, for obtaining and maintaining all of the hardware, software, internet and other services that You may need to use the Service. You are responsible for protecting and safeguarding any keys, certificates, passwords, access codes, user ID’s or other login information (collectively, “Passwords”) that are provided to You or that are generated in connection with Your use of the Service. You (i) shall not attempt to copy, alter, modify, adapt, translate or create derivative works of the Software or Documentation; (ii) shall not attempt to reverse engineer, disassemble, decompile or otherwise attempt to discover the source code of, the Software; (iii) shall not disclose or make any Password(s) available to any other person; and (iv) shall use all commercially reasonable efforts to prevent unauthorized access to, or use of, the Service. You are fully responsible for all activities that occur on the Service under Your Password(s).
2.5 Prohibited Activities – Illegal, Harmful or Offensive Use or Content. You may not make any illegal, harmful or offensive use of the Service or transmit, display, store or otherwise make available any content that is illegal, harmful or offensive. Without limiting the foregoing, You may not use the Service to transmit, display or store any content (i) that infringes or misappropriates the intellectual property or proprietary rights of any third party or violate any third party’s rights of publicity or privacy; (ii) that violates any law, statute, ordinance or regulation (including without limitation laws and regulations governing export/import control, unfair competition, anti-discrimination, false advertising, gambling, drugs, arms trafficking or child pornography); (iii) that is defamatory or trade libelous; (iv) that is obscene, pornographic or indecent; (v) that is excessively violent, incites violence, threatens violence or contains harassing content or hate speech; (vi) that creates a risk to a person’s safety or health, creates a risk to public safety or health, compromises either the privacy or security of any individual or national security or interferes with an investigation by law enforcement; (vii) that is intended to assist others in defeating technical copyright protections; (viii) that may damage, interfere with, or intercept other content (including without limitation any malware, viruses, worms, Trojan horses, spyware, time bombs or other malicious or harmful code), or (ix) that is otherwise malicious, fraudulent or may result in retaliation by offended viewers.
2.6 Prohibited Activities – Security Violations. You may not interfere with or attempt to interfere with or disrupt the integrity, security, functionality or proper operation of the Service. You may not attempt to discover or use any license keys, access codes, passwords or similar information made available to Newforma or others from time to time in connection with the Service. You may not attempt to discover, access, read, alter, destroy, or damage any data or other information stored via the Service by any other party.
2.7 Prohibited Activities – Network Abuse. You may not (i) monitor or crawl a system in such a way as to impair or disrupt the operation of the system; (ii) inundate a target with communications request so the target cannot respond to legitimate traffic or responds so slowly that it becomes ineffective; (iii) interfere with the proper functioning of any system; or (iv) use manual or electronic means to avoid any use limitations placed on any system.
2.8 Suspension, Limitation or Termination. Newforma shall be entitled, without liability to You, to suspend, terminate or limit Your access to the Service at any time if You breach any term of this Agreement. In addition, Newforma shall have the right, without liability to You, to suspend, terminate or limit Your access to the Service if such access is suspended, terminated or limited by Newforma’s service providers for any reason, including, without limitation in the event (i) that a service provider determines that the Service is being used in violation of applicable federal, state or local law or ordinance; (ii) that a service provider determines that the Service is being used in an unauthorized or fraudulent manner; (iii) that a service provider determines that Your use of the Service violates such service provider’s acceptable use policy, (iv) that a service provider determines that the use of the Service adversely affects such service provider’s equipment or service to others; (v) that a service provider is prohibited by an order of a court or other governmental agency from providing the Service; (vi) of a denial of service attack or any other event which a service provider determines, in its sole discretion, may create a risk to its service or to any other customers if the Service were not suspended; or (vi) of a security incident or other disaster that impacts the Service or the security of any content stored via the Service. Your access to and use of the Service may also be suspended for the duration of any scheduled maintenance or unscheduled downtime or unavailability of any portion or all of the Service for any reason, including as a result of power outages, system or internet failures or other interruptions, or any other acts, omissions or failures on the part of Newforma’s service providers.
2.9 Third Party Software. The Service may utilize Third Party Software. As used herein, “Third Party Software” means third party computer programs to which you are provided electronic access in connection with the Service. Your use of Third Party Software in connection with the Service shall be subject to the terms and conditions set forth herein and any other terms and conditions placed on the use of the Third Party Software by its owner.
3. SUPPORT. Newforma will, as part of the Service, provide support during Newforma’s normal business hours and in accordance with Newforma’s standard support services policy in effect from time to time. Newforma may amend its support services policy in its sole and absolute discretion from time to time.
4. LIMITED WARRANTY.
4.1 Limited Warranty to Subscriber. Newforma warrants solely to Subscriber that, during the Subscription Term, the Service will conform in all material respect to the description of the Service set forth in the Documentation. Without limiting the foregoing, Newforma does not warrant that (i) the Service will meet the requirements of Subscriber or any Authorized User; (ii) the Service will operate without interruption or be error free; or (iii) any Project Content will be accurate or reliable. Furthermore, Newforma is not responsible for delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet. It is acknowledged that the Service may be subject to limitations, delays and other problems inherent in the use of the internet, servers that are hosted by third party providers and such related network and communications infrastructure. THE SERVICE IS PROVIDED TO AUTHORIZED USERS STRICTLY ON AN “AS IS” BASIS AND WITHOUT WARRANTY OF ANY KIND.
4.2 Exclusive Remedy for Breach of Warranty. If the Service does not conform in all material respects to the description thereof set forth in the Documentation, Newforma shall, at its option and expense, either: (i) use reasonable efforts to correct any such non-conformities in the Service or provide Subscriber with a workaround; (ii) correct any errors or discrepancies in the Documentation; or (iii) refund the fee paid by Subscriber for the Service for the unused portion of the Subscription Term. Newforma shall have no liability for any claim based upon (a) improper use of the Service or use of the Service not in accordance with instructions provided by Newforma; (b) any modification of the Software or Service that is not done by Newforma; or (c) errors caused by the infrastructure, network, communications facilities, including the internet, other software or hardware used to access the Service. The foregoing states Subscriber’s sole remedy and the exclusive obligation of Newforma with respect to claims of breach of warranty.
4.3 Disclaimer of Other Warranties. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, RELATING TO THE SERVICE OR ANY ADDITIONAL SERVICES FURNISHED HEREUNDER. NEWFORMA SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING BUT NOT LIMITED TO STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF SERVICE, WHETHER MADE BY NEWFORMA EMPLOYEES OR OTHERWISE, WHICH IS NOT CONTAINED IN THIS AGREEMENT, SHALL BE DEEMED TO BE A WARRANTY BY NEWFORMA FOR ANY PURPOSE OR GIVE RISE TO ANY LIABILITY OF NEWFORMA WHATSOEVER.
5. LIMITATION OF LIABILITY. Regardless of the form of action (whether in contract, tort, breach of warranty or otherwise), IN NO EVENT (i) SHALL NEWFORMA’S MAXIMUM LIABILITY FOR ALL DAMAGES EXCEED ACTUAL DIRECT DAMAGES CAUSED BY THE SERVICE, (ii) SHALL NEWFORMA’S MAXIMUM LIABILITY TO SUBSCRIBER FOR ALL DAMAGES EXCEED THE TOTAL AMOUNT OF FEES PAID FOR THE SERVICE FOR THE IMMEDIATELY PRECEDING SIX MONTHS, (iii) SHALL NEWFORMA’S MAXIMUM LIABILITY FOR ALL DAMAGES TO ANY OTHER AUTHORIZED USER EXCEED $100, OR (iv) SHALL NEWFORMA BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL OR INDIRECT DAMAGES (INCLUDING BUT NOT LIMITED TO LOST BUSINESS PROFITS AND LOSS, DAMAGE OR DESTRUCTION OF DATA) EVEN IF NEWFORMA HAS BEEN ADVISED OF THE POSSIBILITY OF THE SAME. THESE LIMITATIONS SHALL APPLY EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
6. INDEMNIFICATION. You agree to indemnify Newforma with respect to any losses, damages and expenses incurred by Newforma resulting from any breach by You of any representation, warranty or obligation under this Agreement.
7. TERM AND TERMINATION.
7.1 Term. This Agreement will remain in effect until the end of the Subscription Term. Unless otherwise provided in the Order, the initial Subscription Term set forth in the Order may be renewed by Subscriber by paying the applicable Service fee.
7.2 Termination by Newforma. This Agreement shall automatically terminate upon the expiration, without renewal, of the Subscription Term. Newforma may terminate this Agreement upon notice to any Authorized User if the Authorized User (i) breaches any of its obligations set forth in Sections 2.4 through 2.8 or attempts to assign this Agreement in violation of the provisions of Section 8.3, or (ii) breaches any other obligation under this Agreement and fails to cure such breach within 30 days after notice thereof. Newforma may terminate the Subscription Term upon notice to Subscriber if Subscriber (i) breaches any of its obligations set forth in Sections 2.4 through 2.8 or attempts to assign this Agreement in violation of the provisions of Section 8.3, or (ii) breaches any other obligation to Newforma, including any payment obligation, and fails to cure such breach within 30 days after notice thereof.
7.3 Termination by You. An Authorized User may terminate this Agreement at any time by ceasing use of the Service. Subscriber may terminate the Subscription Term at any time by providing 30 days notice to Newforma, provided, however, that Subscriber shall not in any event be entitled to any refund of any fees previously paid.
7.4 Effect of Termination. Upon termination of this Agreement, You shall make no further use of the Service . Termination of this Agreement shall not affect any obligations accrued prior thereto. Sections 2.2, 2.4, 4.2, 4.3, 5, 6, 7 and 8 shall survive termination of this Agreement.
8.1 Compliance with Laws. You agree to comply with all laws and regulations relating to Your use of the Service, including without limitation those relating to export and import, privacy and personal data protection, and shall indemnify Newforma for any losses it may incur in the event of a breach of any of the foregoing.
8.2 Injunctive Relief. You acknowledge that in the event of a breach or threatened breach by You of any of the provisions of Sections 2.4 through 2.7 of this Agreement, Newforma may suffer irreparable harm and will therefore be entitled to injunctive relief to enforce those provisions.
8.3 Assignment. This Agreement is binding upon and inures to the benefit of the parties and their respective successors and permitted assigns. You may not assign or otherwise transfer this Agreement or any of Your rights or obligations hereunder without the prior written consent of Newforma.
8.4 Governing Law. This Agreement shall be governed by, and construed in accordance with, the substantive laws of the State of New Hampshire (U.S.A.) without regard to its conflict of laws principles. The parties expressly exclude the provisions of the United Nations Convention on Contracts for the International Sale of Goods. To the extent that any provision of this Agreement is found by a court of competent jurisdiction to be void or unenforceable, such provision shall be without effect and the remainder of the Agreement shall be enforced to the full extent of the law.
8.5 Relationship of the Parties. Nothing in this Agreement shall be construed as making the parties partners or as creating the relationships of employer and employee, master and servant, or principal and agent between them, for any purpose whatsoever. Neither party shall make any contracts, warranties or representations or assume or create any other obligations, express or implied, in the other party’s name or on its behalf.
8.6 Notices. Notices under this Agreement shall be in writing and shall be delivered by hand, sent by facsimile, sent by email, mailed via certified mail, or delivered by commercial courier service. Notices shall be deemed effective when received or upon attempted delivery, in the event that delivery is refused.
8.7 Force Majeure. In no event shall Newforma be liable for any delay or failure to perform any of its obligations if such delay or failure is due to causes beyond its reasonable control.
8.8 Entire Agreement. This Agreement (together, for Subscriber, with the Order) constitutes the complete agreement between the parties relating to the Service and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement (including any agreements with any predecessor to Newforma relating to the Service).
8.9 Amendment. Newforma shall have the right to change the terms and conditions of this Agreement at any time, by posting an updated version of this Agreement on its website. You are responsible for regularly checking the Newforma website to inform Yourself of such changes. Changes will be effective upon Your first login to the Service after such changes are posted on the Newforma website. Continued use of the Service after such changes are posted shall constitute Your consent to such changes.