Welcome to FMYI's online collaboration solution website (the "Site") provided by FMYI, Inc., an Oregon corporation with offices at 4080 N Williams, Suite 200, Portland, OR 97227 ("FMYI"). Any person who wishes to access the Site to maintain or use a shared workspace, encryption services or electronic storage or to otherwise use any services or offerings made available through the Site (collectively, the "Services") must accept the terms and conditions of these Terms of Service (this "Agreement") without change.
FMYI reserves the right to change any of the terms and conditions contained in this Agreement, including the Fees (as defined below) and Services, or any policies or guidelines governing the Site or Services, at any time and in its sole discretion. While we will endeavor to provide direct notice to you of any changes, you are responsible for periodically checking the Site to determine if any changes have been made and we are not liable for your failure to do so or our failure to provide such direct notice to you. Your continued use of the Site and the Services following any revision to this Agreement will constitute your acceptance of the changes or modifications to the Agreement. If you do not agree to any changes to this Agreement, do not continue to use the Services or this Site.
Section 1 - Definitions. Capitalized terms shall have the meanings set forth below unless defined elsewhere in this Agreement:
1.1 "Additional Functionality" means the additional Services made available on the Site upon the applicable Administrator's request, as more specifically described on the Site or otherwise agreed upon by the applicable Administrator and FMYI. Unless otherwise expressly provided herein, the Services shall include the Additional Functionality which is effectively requested by the applicable Administrator in accordance with provisions in this Agreement.
1.2 "Administrator" means a User that has created an account for purposes of maintaining and managing a Network and is authorized to access and use the restricted administrative interface portion of such Network.
1.3 "Content" means all materials displayed or performed on the Site, including, but not limited to text, graphics, news articles, photographs, images, illustrations, audio clips and video clips.
1.4 "Fee" means the periodic fee Administrators agree to pay for access to and use of a Network and related Services, including additional fees for any requested Additional Functionality, as such may from time to time be adjusted by FMYI, in its sole discretion, and posted on the Site or described in a direct notice to such Administrators.
1.5 "Network" means a social networking community within the Site that is made available to Users designated by the applicable Administrator for purposes of sharing Content among such Users.
1.6 "Proprietary Rights" means all patents, patent applications, mask works, copyrights, moral rights, trade secrets, know-how and other proprietary rights.
1.7 "Submitted Content" means any Content that you submit to the Site in the course of using the Services.
1.8 "Term" means the term of this Agreement.
1.9 "User" means any person authorized to use the Services or the Site under the terms of this Agreement, including your Network Administrator, if any, as designated by you; provided that you must promptly inform FMYI of any change to such designation.
Section 2 - Description of Services. Subject to the terms and conditions of this Agreement, FMYI will use commercially reasonable efforts to make the Services, as more specifically described on the Site, available to you during the Term. The Services are available for your own personal or business use only, and not for the use or benefit of any third party. You understand and agree that the Services and Additional Functionality are provided "AS IS" and "AS AVAILABLE" and that FMYI assumes no responsibility for the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness of the Services, Additional Functionality or any Content or personalization settings. You are responsible for obtaining and maintaining any equipment or ancillary services needed to access the Site or otherwise use the Services and Additional Functionality, including, without limitation, all network or internet connectivity and any fees associated therewith. You are also responsible for ensuring that such equipment or ancillary services are compatible with the Services and Additional Functionality. Administrators may cancel or downgrade any Additional Functionality at any time by providing written notice to FMYI and, if applicable, deleting files from the applicable account to the lower applicable file storage limit or otherwise complying with the reduced functionality limitations of the Site and Services.
Section 3 - Subscription Types. This Agreement commences on the date this Agreement is accepted by selecting the "I Agree" option presented on the screen after this Agreement is displayed (the "Effective Date"). You may elect to continue your use of the Services for so long as (i) FMYI, in its sole discretion, elects to provide you with free access to the Site and Services as either an Administrator or basic User or (ii) you, if you elect to become an Administrator, make timely payments to FMYI of all Fees owed pursuant to Section 11 below, each subject to early termination under Section 13 (the "Term").
Section 4 - Eligibility & Registration; Publicity. Use of the Site and the Services is limited to Users that lawfully can enter into and form contracts under applicable law. Without limiting the generality of the foregoing, minors may not use the Services. Every person who uses the Services hereby represents to FMYI that he or she is not a minor, is at least over the age of eighteen (18) and may otherwise enter into and form binding contracts under applicable law.
You also agree to: (a) provide true, accurate, current and complete information about yourself and your FMYI account as prompted by the Site's registration form, which may include, name, home, business and/or email address, telephone number, additional billing and credit card information and any Additional Functionality if desired (such information being the "Registration Data") and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or FMYI has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, FMYI has the right to suspend or terminate your account and refuse you any and all current or future use of the Services (or any portion thereof). If you elect to become an Administrator, you agree to comply with all Administrator obligations described in this Agreement.
During the Term, you hereby agree that if you become an Administrator FMYI shall have the right, but not the obligation, to include your name and logo, if applicable, as a customer who uses the Services on the FMYI website and in other materials promoting the Services. FMYI will remove your name and logo from any such list within thirty (30) days after any termination of this Agreement.
Section 5 - License Grant and Restrictions. During the Term, FMYI hereby grants you a limited, non-exclusive, non-transferable, worldwide right to access and use for your own benefit only the Services, including Networks, for which you are authorized, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by FMYI. You may not access the Services if you are a competitor of FMYI or for purposes of monitoring the availability, performance or functionality of the Services, or for any other benchmarking or competitive purpose. You also agree not to: (a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Site or the Services in any way, including, without limitation, providing your User ID (as defined below) and password to any third party to allow such party to access and use the Services; (b) modify or make derivative works based upon the Site or the Services; (c) access or use the restricted administrative interface portion of a Network unless you are the applicable Administrator or such Administrator's designee; or (d) reverse engineer or access the Site or the Services in order to (i) build a competitive product or service, (ii) build a product using similar ideas, features, functions or graphics of the Site or Services. The Services includes software that is a "commercial item," as that term is defined at 48 C.F.R. 2.101 (OCT 1995), and more specifically is "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (SEPT 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995), the software utilized in connection with the Services is provided to U.S. Government End Users (i) only as a commercial end item and (ii) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
Section 6 - Account, User ID, Password and Security; Network Access. You will establish a password and user name (a "User ID") designation upon completing the registration process. Your User ID is for your personal use only and you may not allow any other party to use your User ID. You are responsible for maintaining the confidentiality of your password, and are fully responsible for all activities that occur under your User ID. You agree to immediately notify FMYI of any unauthorized use of your password or User ID or any other breach of security of which you are aware. FMYI is not liable for any loss or damage arising from your failure to comply with this Section 6. All Users expressly acknowledge and agree that Administrators alone (and not FMYI), through the restricted administrative interface portion of the applicable Network, set access rights for Content made available within such Network. You agree that your Submitted Content may be made available to all authorized Users of such Network, including, in the event that the applicable Administrator has elected to utilize such Network for public purposes, any public User that may access such Network.
Section 8 - Proprietary Rights; Submitted Content. FMYI shall own all right, title and interest, including all related Proprietary Rights, in and to all of FMYI's proprietary technology (including software, hardware, products processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you by FMYI in providing the Site and Services, and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Site or Services. The trademarks and service marks and other FMYI logos and product and service names are trademarks of FMYI (the "FMYI Marks"). Without FMYI's prior written permission, you agree not to display or use in any manner, the FMYI Marks.
FMYI does not claim ownership of any Submitted Content. You, and not FMYI, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and Proprietary Rights or right to use all Submitted Content, and FMYI shall not be responsible for the deletion, correction, destruction, damage, loss or failure to store any Submitted Content. However, with respect to any Submitted Content, all Users grant FMYI a worldwide, royalty-free, non-exclusive, perpetual, irrevocable and fully sublicensable license to use, distribute, reproduce, modify, adapt, publish, translate, publicly perform and publicly display such Submitted Content (in whole or in part) solely for the purposes of providing the Services to you. In addition, you acknowledge and agree that upon the request of any Administrator, FMYI may assist such Administrator in the retrieval of any Submitted Content to which such Administrator was granted access within Site.
In addition, you acknowledge and agree that Submitted Content may not include any of the following: (a) information protected under the privacy or security regulations issued pursuant to the Health Insurance Portability and Accountability Act of 1996 (HIPAA), and (b) personally identifiable information including, but not limited to, (i) drivers license numbers, (ii) passport numbers, (iii) social security, tax ID or similar numbers, (v) passwords and other credentials or (vi) bank, checking, credit card, debit card, or other financial account numbers (collectively, "Prohibited Content ").
In the event this Agreement is terminated (other than by reason of breach), upon an Administrator's written request within thirty (30) days following such termination, FMYI will cooperate with such Administrator to return any requested Content, including your Submitted Content, in a format mutually agreed upon by the parties. FMYI shall be entitled to remove or discard any files after the expiration of this thirty (30) day term. FMYI reserves the right to withhold, remove or discard Submitted Content without notice for any breach, including, without limitation, non-payment of any Fees. Upon a termination of this Agreement or an Administrator's Network account by FMYI for cause, your right to access or use related Submitted Content immediately ceases, and FMYI shall have no obligation to maintain or forward any Submitted Content. FMYI shall not be liable or responsible for any losses or damages caused by removal or deletion of files.
Section 9 - User Conduct. You understand that all Content, whether publicly posted or privately transmitted, is the sole responsibility of the person from whom such Content originated. This means that you, and not FMYI, are entirely responsible for all Content that you upload, post, transmit, or otherwise make available via the Site or Services. FMYI does not control the Content posted via the Services and, as such, does not guarantee the accuracy, integrity, or quality of such Content. You understand that by using the Services, you may be exposed to Content that is offensive, indecent, or objectionable. Under no circumstances will FMYI be liable in any way for any Content, including, but not limited to, for 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, transmitted or otherwise made available via the Site or the Services.
You agree to not use the Services to:
You acknowledge and agree that FMYI and its designees shall have the right (but not the obligation) in their sole discretion to refuse or remove any Content that is available via the Service. You acknowledge, consent and agree that FMYI may access, preserve and disclose your account information and Content if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce the terms of this Agreement; (c) respond to claims that any Content violates the rights of third parties; (d) respond to your requests for customer service; or (e) protect the rights, property or personal safety of FMYI, its users and the public.
Section 10 - Third Party Interactions. During your use of the Services, you may enter into correspondence or agreements with, purchase goods and/or services from, or participate in promotions of other third parties. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third party. FMYI shall not be liable or responsible for any losses or damages caused by such activity.
Section 11 - Fees and Billings. During the Term, Administrators agree to pay all Fees (unless FMYI, in its sole discretion, has authorized free access and use of the Site and Services) associated with the applicable Network Services on a periodic basis, as selected by such Administrator during the registration process. Administrators will generally be billed periodically (as applicable), in advance, for all Fees, however, the first bill may include pro-rated charges from the Effective Date. Administrators must provide FMYI with valid credit card and/or other information required during the registration process and FMYI will, in its sole discretion (unless otherwise agreed upon by such Administrator and FMYI in writing) either (i) invoice Administrators for such period or (ii) charge Administrators' credit card for all Fees accordingly. All fees set forth in any invoice shall be paid within thirty (30) days following the date of such invoice. Unless Administrators terminate an account in accordance with Section 13 below, Administrators are responsible for all Fees and FMYI will continue to bill such Administrator (and may charge the applicable credit card) in advance periodically (as applicable) for such Fees. All Fees are nonrefundable.
FMYI reserves the right at any time to charge additional Fees for access to the Services. FMYI reserves the right to change the amount of, or basis for determining, any Fees for the Services, and to institute new Fees effective upon at least thirty (30) days prior notice to Administrators. FMYI reserves the right to offer special offers of the Services and to provide the Services at no charge for promotional reasons or otherwise (such as a free trial).
Section 12 - Non-Payment and Suspension. Your right to use the Site and Services is subject to any limits established by FMYI. If payment from your Network Administrator is not received by FMYI for any reason, including chargeback, FMYI reserves the right to either suspend or terminate your access to such Network and account, thereby terminating this Agreement and all obligations of FMYI hereunder. If an Administrator has a balance due on its FMYI account, such Administrator agrees that FMYI can charge these unpaid Fees to such Administrators' credit card. In cases where Administrators fail payment under this Agreement, Administrators shall bear default interest after the due date at the rate of 18% per year or the highest amount permitted by applicable law (whichever is less), which shall be calculated on a per diem basis of a year of 365 days.
Section 13 - Termination; Survival. Either Administrators or FMYI may terminate this Agreement at any time by notifying the other party in writing at least five (5) business days prior to the end of the then-current subscription period (as applicable), such termination to be effective as of the end of such period. FMYI shall be entitled to terminate this Agreement, and also terminate or suspend any and all Services and your access to the Site immediately in FMYI's reasonable discretion, without prior notice or liability, if you fall under any of the following items:
All Fees paid hereunder are non-refundable. Upon termination of your account, your right to access the Site and use the Services will immediately cease. Sections 7, 8, 11, 12, 15, 17 through 20 and 23 shall survive termination of this Agreement for any reason; provided, however, that Section 11 and 12 shall survive if and to the extent that any Fee or default interest remains unpaid.
Section 14 - Technical Support Services. Technical support services may be available during the Term, in FMYI's sole discretion, and the terms and conditions of any such services shall become effective upon posting of the applicable revision to this Agreement and a notice on the Site.
Section 15 - Links. The Site may provide, or third parties may provide, links to or portions of other World Wide Web sites or resources. Because FMYI has no control over such sites and resources, you acknowledge and agree that FMYI is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that FMYI shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource.
Section 16 - FMYI Networks. FMYI may, in its sole discretion, make Networks available from time to time for specific purposes, including, without limitation, providing promotions on behalf of third parties. You agree to comply with any terms and conditions made available to you in connection with such promotions (i.e., contest official rules). FMYI may terminate access to any such Networks at any time without prior notice.
Section 17 - Indemnity. You agree to indemnify and hold FMYI, and its subsidiaries, affiliates, shareholders, officers, agents, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of Submitted Content you submit, post, transmit or make available through the Services, your use of the Services, your access to the Site, your violation of this Agreement, including, without limitation, the restrictions in Section 9 above, or your violation of any applicable law or infringement of any intellectual property or other right of any other person or entity.
Section 18 - Disclaimer of Warranties. YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
(a) YOUR USE OF THE SITE AND THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. FMYI EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
(b) FMYI MAKES NO WARRANTY THAT (I) THE SERVICES WILL MEET YOUR REQUIREMENTS, (II) THE SERVICES WILL BE UNINTERRUPTED, AVAILABLE, TIMELY, SECURE, OR ERROR-FREE, OR (III) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS.
(c) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH YOUR USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
(d) FMYI MAKES NO WARRANTY THAT ANY OF YOUR SUBMITTED CONTENT WILL NOT BE LOST OR BECOME IRRETRIEVABLE. FOR THIS AND OTHER REASONS, YOU ACKNOWLEDGE AND UNDERSTAND THE IMPORTANCE OF BACKING UP ALL SUBMITTED CONTENT AND FILES TO ANOTHER STORAGE MECHANISM PRIOR TO USE OF THE SERVICES. YOU UNDERSTAND AND ACCEPT THE RISKS IF YOU DECIDE NOT TO BACK UP SUBMITTED CONTENT AND FILES. NEITHER FMYI NOR ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS OR CONTRACTORS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY DAMAGE TO OR LOSS OF ANY SUBMITTED CONTENT, FILES OR DATA.
Section 19 - Internet Delays. The Services may be subject to limitations, delays and other problems inherent in the use of the Internet and electronic communications. FMYI is not responsible for any delays, delivery failures, or other damages resulting from such problems, including, without limitation, problems in the transmission of data between the Site and your web browser.
Section 20 - Limitation of Liability. YOU EXPRESSLY UNDERSTAND AND AGREE THAT FMYI SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF FMYI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICES; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICES; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SITE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Section 21 - No Third Party Beneficiaries. You agree that, except as otherwise expressly provided in this Agreement, there shall be no third-party beneficiaries to this Agreement.
Section 22 - Notice and Procedure For Making Infringement Claims. FMYI respects the intellectual property of others, and we ask our Users to do the same. FMYI may, in appropriate circumstances and at its discretion, disable and/or terminate the accounts of Users who may be infringers. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide FMYI's Copyright Agent the following information:
an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest; a description of the copyrighted work or other intellectual property that you claim has been infringed; a description of where the material that you claim is infringing is located on the Site; your address, telephone number, and email address; 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; and a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
FMYI's Copyright Agent for Notice of claims of copyright or other intellectual property infringement can be reached as follows:
Copyright Agent, FMYI, Inc. 4080 N Williams, Suite 200 Portland, OR 97227
Section 23 - General Information.
23.2 Choice of Law and Forum. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Oregon, without giving effect to any conflicts of laws principles that require the application of the law of a different state. Venue in any suit or action between the parties arising out of or relating to the Agreement shall be in either the Circuit or District Court for Multnomah County, Oregon or the United States District Court for the District of Oregon in Portland, Oregon.
23.3 Waiver and Severability of Terms. The failure of FMYI to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
23.4 Assignment. This Agreement is not assignable, transferable or sublicensable by you except with FMYI's prior written consent. Any attempt to assign or transfer in violation of the foregoing shall be null and void. FMYI shall be entitled to transfer this Agreement and/or any rights and obligations under this Agreement for any reason including, without limitation, in connection with the acquisition of all or substantially of its capital stock or assets, whether by merger, operation of law or otherwise.
23.5 Force Majeure. FMYI shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond FMYI's reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including "line-noise" interference), fire, power cut, hacking, attack of computer virus, earthquake, flood, war, embargo, strike, riot, inability to secure materials and transportation facilities, or the intervention of any governmental authority.
23.6 Confidentiality. "Confidential Information" referred to in this Section includes any and all information relating to technologies, business, operation, finance, organization or others provided or disclosed by FMYI to you in writing, orally, through recording media or in any manner in the transactions under this Agreement. Confidential Information shall not include information which (i) is already publicly known or known to you prior to the provision or disclosure; (ii) is or becomes publicly known through no wrongful act of you; (iii) is rightfully received by you from an authorized third party without any obligation of confidentiality; or (iv) is approved by written authorization of FMYI. You shall not use Confidential Information beyond the purposes of this Agreement, and shall not, without prior written consent of FMYI, disclose or divulge Confidential Information to any third party. You shall promptly return to the FMYI, destroy or otherwise dispose of Confidential Information, documents and recording media containing Confidential Information, and copies thereof in accordance with FMYI's instruction, upon the termination of this Agreement or FMYI's request at any time.