LICENSE AGREEMENT FOR SMARTPHONE/TABLET APP
Effective: February 28, 2020
This License Agreement, together with all updates, additional terms, and all of Forward Move, LLC’s rules and policies (“Agreement”) governs your (“you”, “You”, “your”, or “Your”) use of the “YOU Get it First App”, the Services and the Site (collectively, the “Technology”) provided by Forward Move, LLC its subsidiaries and contractors (“Forward Move,” “we,” “us” or “our”) designed to operate on your Smartphone and/or tablet (your “Computing Device”).
The Technology is licensed, not sold.
You acknowledge that the Agreement is entered into by and between Forward Move and you. Your use of the Technology constitutes your acceptance of the terms of this Agreement, which may be amended from time to time by Forward Move. Forward Move reserves the right to change or modify this Agreement or any other Forward Move policies related to use of the Technology at any time, and at its sole discretion, by posting revisions on an update to the Technology or on the Internet at yougetitfirst.com. Continued use of the Technology following the posting of these changes or modifications will constitute acceptance of such changes or modifications.
Term and Termination.
This Agreement is entered into as of your first access or use of the Services or a Site (the “Effective Date”). This Agreement will be effective upon the Effective Date. If You have ordered a trial subscription for the Services or a subscription to any free Services (a “Trial/Free Subscription”), then the term of this Agreement will continue for the period of the Trial/Free Subscription indicated on the order form and will thereafter expire unless You place an order for a non-trial subscription to the Services prior to the completion thereof. If You have ordered a non-trial subscription to the Services, then the term of this Agreement will continue for the initial period stated in the applicable order and will thereafter automatically renew for successive additional periods of equal duration. If no initial period is stated in the applicable order, this Agreement will continue for an initial period of 1 month and will thereafter automatically renew for successive additional 1-month periods. Unless terminated as set forth herein, the term of this Agreement will continue to renew until You notify Forward Move that You do not wish to renew the Agreement at least 10 days prior to the end of the then-current period. In all other cases, the term of this Agreement will continue until terminated as set forth herein. Notwithstanding the foregoing, Your rights under this license will terminate automatically without notice from Forward Move if you fail to comply with any term(s) of this Agreement. In addition, Forward Move may also immediately and indefinitely suspend Your access to the Sites or Services, with or without notice to You, upon any actual, threatened or suspected breach of this Agreement or of applicable law or upon any other conduct deemed inappropriate or detrimental to the Services by Forward Move (including, but not limited to, rogue script, bad send and unauthorized takeover or other malicious activity on Your Account). Upon termination or expiration of this Agreement for any reason: (a) all rights and subscriptions granted to You under this Agreement will terminate; (b) You will immediately cease all use of and access to the Sites and Services; (c) all Fees then owed by You will become immediately due and payable; (d) You will immediately either return to Forward Move or, at Forward Move’s discretion, destroy the Forward Move Content, Account IDs, and other information related to this Agreement in Your possession or control; and (e) Forward Move may delete any of Your Content held by Forward Move within 10 days after the date of termination.
Payment
You you agree to pay Forward Move or a Forward Move Authorized resellers all fees set forth in each order and any fees otherwise specified on the Site or through the Services (“Fees”). All Fees will be billed as indicated in each order. If the applicable order does not specify any applicable billing terms, the initial payment of Fees specified under that order for each period in Your subscription will be due and payable by You in advance on or before the Effective Date and again on or before the completion of each subsequent period under this Agreement. If You have specified credit card or direct withdrawal from a bank account as an applicable payment mechanism under this Agreement, You grant Forward Move the right to charge the credit card or debit the bank account provided to Forward Move for all Fees incurred under this Agreement. All Fees will be non-refundable once paid to Forward Move (including upon any termination or suspension of this Agreement). Until paid in full, all past due amounts will bear an additional charge of the lesser of 1½% per month or the maximum amount permitted under applicable law. Forward Move may change any portion of the Fees by posting the changes to the Sites or otherwise notifying You through the Services of the change, such changes to take effect at the beginning of the next period of this Agreement. If Forward Move requires use of collection agencies, attorneys, or courts of law for collection on Your account, You will be responsible for those expenses. You will be responsible for all use, sales, and other taxes imposed on the Services provided under this Agreement.
License
The license granted to you by Forward Move for the Technology is limited to a non-transferable license to use the Technology on any Computing Device that you own or control. This license does not allow you to use the Technology on any Computing Device that you do not own or control. You may not rent, lease, lend, sell, redistribute or sublicense the Technology. You may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Technology, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the Technology). Any attempt to do so is a violation of the rights of Forward Move and its licensors. If you breach this restriction, you may be subject to prosecution and damages. You agree to comply with applicable third party terms of agreement when using the Technology. If You desire to integrate the Service into any of the services offered by You and/or provide the Service to Your customers and potential customers (“OEM Users”) as an integrated part of Your business (the “OEM Service”), You will also be subject to the OEM terms and conditions set forth in Section 25 below.
Account
The rights granted to You under this Agreement entitle You to access the Services through accounts (each, an “Account”). You will be provided with a user identification and password applicable to each Account You have purchased (each such user identification and password, an “Account ID”). Each Account ID is personal in nature and may be used only by You or, if You are an organization, by designated employees within Your organization or contractors who are contractually required to comply with the terms of this Agreement (such individual, as applicable, the “User” of the Account). You are solely responsible for all use of the Services by each User and for compliance by each User with the applicable terms of this Agreement. You will ensure the security and confidentiality of each Account ID and will notify Forward Move immediately if any Account ID is lost, stolen or otherwise compromised. You acknowledge that You are fully responsible for all costs, fees, liabilities or damages incurred through use of each Account ID (whether lawful or unlawful) and that any Services ordered or transactions completed through any Account or under any Account ID will be deemed to have been lawfully completed by You. In no event will Forward Move be liable for the foregoing obligations or the failure by You to fulfill such obligations. You will be solely responsible, at Your own expense, for acquiring, installing and maintaining all hardware, software and other equipment as may be necessary for You and each User to connect to, access, and use the Services and the Sites.
Services; Third-Party Materials
Forward Move provides certain services relating to the development, transmission, analysis, and management of email messages (“Services”) through the web site located at www.yougetitfirst.com and such other sites as may be designated by Forward Move (each, the “Site” or collectively, the “Sites”). Use of the Services may require Internet access and you accept additional terms of service by making use of these Internet-accessible Services. All access to and use of the Services available through the Site is subject to the terms of this Agreement. If You wish to access and use the publicly available portions of the Services and the Site, You may do so only in compliance with the terms of this Agreement.
You understand that by using any of the Services, you may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that the third parties’ results of any search or entering of a particular URL may automatically and unintentionally generate links or references to objectionable material. You agree to use the Services at your sole risk and that Forward Move shall not have any liability to you for content that may be found to be offensive, indecent, or objectionable. You acknowledge that the content you encounter does not necessarily reflect the opinions or policies of Forward Move.
Certain Services may display, include or make available content, data, information, applications or materials from third parties (“Third-Party Materials”) or provide links to certain third-party web sites. By using the Services, you acknowledge and agree that Forward Move is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third-Party Materials or web sites. Forward Move does not warrant or endorse and does not assume and will not have any liability or responsibility to you or any other person for any third-party services, Third-Party Materials or web sites, or for any other materials, products, or services of third parties. Third-Party Materials and links to other web sites are provided solely as a convenience to you.
You further agree not to use the Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that Forward Move is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive or illegal messages or transmissions that you may receive as a result of using any of the Services.
Forward Move reserves the right to change, suspend, remove, terminate, or disable access to any Services for any or no reason at any time without notice. In no event will Forward Move be liable for the removal of, termination, or disabling of access to any such Services. Forward Move may also impose limits on the use of or access to certain Services, in any case, and without notice or liability.
Forward Move Content and Your Content
Forward Move Content. Forward Move provides You with access to certain data, information and other content through the Site and Services (“Forward Move Content”). Unless otherwise noted on the Site, as between You and Forward Move, all Forward Move Content is owned by Forward Move. Subject to this Agreement, each User and OEM User (as applicable) may: (a) access the Forward Move Content (without modification) solely for Your own personal or business purposes in connection with the use of the Services; and (b) distribute the Forward Move Content (without modification) as incorporated into emails generated and sent by You or any OEM User (as applicable) through the Services. Except as expressly provided in this Agreement, You will not, and will not permit any User or OEM User (as applicable) to: (i) alter, modify, reproduce, or create derivative works of the Forward Move Content; (ii) distribute, sell, resell, lend, loan, lease, license, sublicense or transfer the Forward Move Content, including, without limitation, providing outsourcing, service bureau, commercial hosting, application service provider or on-line services to third parties; or (iii) alter, obscure or remove any copyright, trademark or any other notices that are provided on or in connection with the Forward Move Content. Certain of the Forward Move Content includes or is based on data, information and content from independent third party providers (“Third Party Content”). Forward Move uses commercially reasonable measures to ensure that the Third Party Content is reliable, but Forward Move has no independent basis to verify or contradict the accuracy or completeness of the Third Party Content and will not be responsible for any erroneous Third Party Content provided through the Services.
Your Content. You will be solely responsible for all data, information and other content provided by, or collected or obtained from, You or any of Your Users or OEM Users (as applicable) through the Services, including, without limitation, all personally identifiable information relating to You or any of Your Users, customers, OEM Users, service providers, employees, contractors or agents (“Your Content”). Forward Move does not claim ownership of any content you upload. However, Forward Move does need certain rights from you, with respect to your content, in order to operate certain features under this Agreement. Therefore, with respect to your photographs, video and literature, you grant Forward Move a worldwide, royalty-free, non-exclusive, fully sub-licensable license to use, distribute, reproduce, modify and publicly display said content (in whole or in part). You agree that Forward Move may place such advertisements and promotions on, about, or in conjunction with your content. The manner, mode and extent of such advertising and promotion are subject to change without specific notice to you. You represent and warrant that none of Your Content violates this Agreement or the Privacy Policy. You will maintain an adequate back-up of all Your Content and Forward Move will not be responsible or liable for any deletion, correction, destruction, damage, loss or failure to store or back-up any of Your Content. Forward Move may take remedial action if any of Your Content violates this Agreement, provided that Forward Move is under no obligation to review any of Your Content for accuracy or potential liability. You represent and warrant to Forward Move that You have all necessary right, title, interest and consent necessary to allow Forward Move to use Your Content for the purposes for which You or any OEM User (as applicable) provides Your Content to Forward Move, including, without limitation, the delivery of any and all emails and other communications. You will defend, indemnify and hold harmless Forward Move from any and all losses, costs, damages, liabilities or expenses (including without limitation reasonable attorney’s fees) incurred or arising from any claim by a third party arising out of or relating to Your Content or the use thereof by Forward Move in providing the Services. For the purpose of clarity, Sensitive Data (as defined below) will not be provided to Forward Move at any time. For purposes of this Agreement, “Sensitive Data” means (a) social security number, passport number, driver’s license number, or similar identifier (or any portion thereof), (b) employment, financial or health information, (c) ethnic or religious affiliation or sexual orientation, (d) criminal history, (h) mother’s maiden name or (i) any other information or combinations of information that is deemed sensitive under the legal framework of any applicable jurisdiction.
You agree that Forward Move shall have the right to archive copies of any content you upload to the Technology, and to use a copy of that content to promote Services and Technology now and in the future.
Copyrights And Trademarks
You acknowledge that no title to the intellectual property in the Technology is transferred to you. You further acknowledge that title and full ownership rights to the Technology will remain the exclusive property of Forward Move and you will not acquire any rights to therein. Forward Move retains all right, title and interest, including, without limitation, all IPR (as defined below), in and to the Technology, Forward Move content and any additions, improvements, updates, and modifications thereto. You acknowledge that You are not receiving any ownership interest in or to any of the foregoing, and no right or license is granted to You to use them apart from Your right to access the Services under this Agreement. The Forward Move name, logo and the product and service names associated with the Technology are trademarks of Forward Move (or its third party providers), and no right or license is granted to You to use them. For purposes of this Agreement, “IPR” means any and all intellectual property rights, proprietary rights, rights of publicity, rights of privacy, and any and all other legal rights protecting data, information or intangible property throughout the world, including, without limitation, any and all copyrights, trademarks, service marks, trade secrets, patent rights, moral rights, sui generis rights in databases, and contract rights.
This Technology is protected by copyright laws, international copyright treaties, other intellectual property laws and treaties.
Updates Or Upgrades To The Technology
Forward Move is not obligated to provide any updates or upgrades to the Technology.
Disclaimer
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE TECHNOLOGY IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TECHNOLOGY IS PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND FORWARD MOVE HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE TECHNOLOGY, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
Forward Move does not warrant against interference with your enjoyment of the Technology, that the functions contained in, or Services performed or provided by, the Technology will meet your requirements, that the operation of the Technology will be uninterrupted or error-free, or that defects in the Technology will be corrected. Forward Move assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, any communication. Forward Move is not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, or failure of any email due to technical problems or traffic congestion on the internet or on any of the Technology or combination thereof, including any injury or damage to users or to any person’s smartphone and/or table related to or resulting from participation in connection with the Services.
No oral or written information or advice given by Forward Move or its authorized representative shall create a warranty.
Forward Move cannot guarantee and does not promise any specific results from use of the Forward Move Services.
Some jurisdictions do not allow the exclusion of implied warranties or limitations on applicable statutory rights of a consumer, so the above exclusion and limitations may not apply to you.
Limitation Of Liability; Intellectual Property Rights
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL FORWARD MOVE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING IN ANY WAY IN CONNECTION WITH OR OUT OF THE USE OF THE TECHNOLOGY (OR ANY FORWARD MOVE CONTENT PROVIDED THROUGH THE TECHNOLOGY), EVEN IF FORWARD MOVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA, OPPORTUNITY, REVENUES OR PROFITS, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. FORWARD MOVE’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND ALL SERVICES PROVIDED UNDER THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE FEES PAID TO FORWARD MOVE HEREUNDER IN THE 1 MONTH PRECEDING ANY SUCH INITIAL OCCURRENCE OF LIABILITY (OR, IF NO SUCH FEES HAVE BEEN PAID, $10.00). YOU AGREE THAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND ACKNOWLEDGE THAT FORWARD MOVE WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, FORWARD MOVE’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. FOR THE PURPOSE OF CLARITY, FORWARD MOVE WILL NOT BE LIABLE, AND WILL HAVE NO OBLIGATION TO INDEMNIFY YOU, FOR (A) SENSITIVE DATA SENT TO FORWARD MOVE; (B) VIOLATION OF ANY LAW BY FORWARD MOVE WHEN ACTING AT YOUR OR ANY OEM USER’S (AS APPLICABLE) DIRECTION; (C) THE SENDING BY FORWARD MOVE OF YOUR OR ANY OEM USER’S (AS APPLICABLE) EMAILS, INCLUDING ANY CLAIMS AGAINST FORWARD MOVE DUE TO YOUR OR ANY OEM USER’S (AS APPLICABLE) SENDING OR DATA COLLECTION PRACTICES OR YOUR CONTENT.
THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Forward Move’s Obligation to Defend
We will at our expense and option, defend or settle any claim brought against you alleging that the Technology or your possession and use of the Technology breaches any third-party intellectual property rights. We will be solely responsible for the investigation, defense, settlement and discharge of this third-party intellectual property infringement claim.
We will have no obligation with respect to any claim under this section unless: (a) you promptly notify us about the claim; (b) you allow us to have sole control of the defense and settlement of such claim; and (c) you provide us with reasonable assistance in connection with our defense and settlement of such claim.
If the Technology infringes or misappropriates, or in our reasonable determination is likely to infringe or misappropriate any third party’s intellectual property rights, then we may, at our sole option and expense: (a) obtain from the third party the right to continue to use the Technology consistent with the rights granted hereunder; or (b) modify the Technology to avoid and eliminate such infringement or misappropriation.
We will not be liable for any infringement based on: (a) modification of the Technology by anyone other than us; or (b) the combination of the Technology with other software, items or processes not furnished by us if such infringement would have been avoided by the use of the Technology alone.
Restrictions and Indemnification By You
You acknowledge that the Technology and their structure, organization, and underlying data, information and source code constitute valuable trade secrets of Forward Move. You will not, and will not permit any third party (including any OEM User, as applicable) to: (1) access or use the Services or the Sites, in whole or in part, except as expressly provided in this Agreement; (2) use the Technology to harvest or collect e-mail addresses or other contact information of third parties by any means for the purposes of sending unsolicited e-mails or other unsolicited communications; (3) use the Technology in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Site or Services; (4) use automated scripts to collect information from or otherwise interact with the Technology; (5) use the Technology to intimidate or harass any other people or entities; alter, modify, reproduce, create derivative works of the Technology; (6) distribute, sell, resell, lend, loan, lease, license, sublicense or transfer any of Your rights to access or use the Technology, including, without limitation, providing outsourcing, service bureau, hosting, application service provider or on-line services to third parties, or otherwise make the Technology, or access thereto, available to any third party; (7) reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code or method of operation of or any trade secrets embodied in the Technology; (8) attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the Sites or Services; (9) interfere in any manner with the operation or hosting of the Technology, or attempt to gain unauthorized access to the Technology; or (10) use the Service for any high risk activities including, but not limited to, the operation of nuclear facilities, air traffic control, life support systems, emergency services or where the use or failure of the Service could lead to death, personal injury or environmental damage (collectively, “High Risk Activities”). Forward Move does not intend uses of the Service to create obligations under The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), the Gramm-Leach-Bliley Act (“GLBA”) or similar laws and makes no representations that the Service satisfies the requirements of such laws. If You are (or become) a Covered Entity or Business Associate (as defined in HIPAA) or a Financial Institution (as defined in GLBA), You agree not to use the Service for any purpose or in any manner involving Protected Health Information (as defined in HIPAA) or Nonpublic Personal Information (as defined in GLBA). You will not allow any access to or use of the Services by anyone other than Your authorized Users or OEM Users (as applicable), and any such use will be consistent with the terms, conditions and restrictions set forth in this Agreement.
You agree to indemnify and hold Forward Move, its subsidiaries, and affiliates, and their respective officers, agents, partners and employees, harmless from any loss, liability, claim or demand, including reasonable attorney’s fees, made by any third party due to or arising out of your use of the Technology in violation of this Agreement, arising from a breach of this Agreement, any breach in your representations or warranties, or if any content you upload to the Services causes Forward Move to be liable to another.
Export Control
You may not use or otherwise export or re-export the Technology except as authorized by United States law and the laws of the jurisdiction in which the Technology was obtained. In particular, but without limitation, you may not export or re-export the Technology: (a) into any United States embargoed countries; or (b) to anyone on the United States Treasury Department’s list of Specially Designated Nationals or the United States Department of Commerce Denied Person’s List or Entity List. By using the Technology, you represent and warrant that: (i) you will not use these products for any purpose prohibited by United States law, including without limitation, the development, design, manufacture or production of nuclear missiles or chemical or biological weapons; (ii) you are not located in a country that is subject to a United States government embargo or has been designated by the United States government as a “terrorist supporting” country; and (iii) you are not listed on any United States government list of prohibited or restricted parties.
Injunctive Relief
Forward Move has the right to seek injunctive relief to enforce this Agreement or to stop or prevent an infringement of proprietary or other third-party rights.
Choice Of Law, Jurisdiction And Venue
You agree that any disputes between Forward Move and you shall be resolved under the substantive law of the state of Wisconsin (exclusive of its choice of law provisions). You and Forward Move agree to submit all disputes to the exclusive jurisdiction of the state and federal courts located in Green Bay, Wisconsin. You irrevocably submit to the personal jurisdiction and venue of any such court in any such action or proceeding or in any action or proceeding brought in such courts by Forward Move.
Section Titles
The section titles in this Agreement are for convenience only and have no legal or contractual effect.
Non-Waiver
Forward Move’s failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision.
Severability
The parties agree that each provision of this Agreement is intended to be construed to be enforceable to the fullest extent possible. If any provision or part of a provision of this Agreement is held to be unlawful, void, or unenforceable, that provision or part of the provision shall be deemed severable from this Agreement and not affect the validity and enforceability of any remaining provisions.
Assignment
You may not assign your rights under this Agreement to any third party; Forward Move may assign your rights under this Agreement without condition.
Product Questions, Comments, Claims And Contact Information
We are responsible for addressing any questions, comments or claims relating to the Technology, including but not limited to: (a) product liability claims; (b) any claim that the Technology fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation. If you have any comments or questions, please contact Forward Move at:
Forward Move, LLC 828 Cherry Street
Green Bay, WI 54301
Telephone: 920-461-4188
Email: info@yougetitfirst.com
Dispute Resolution
The parties agree that any disputes or questions arising under this Agreement, including the construction or application of this Agreement, shall first be submitted to mediation. Any mediation settlement by the parties shall be put in writing, signed by both parties, and added to this Agreement as an attachment, amendment, or modification hereof. If mediation between the parties does not result in a mutual settlement within thirty (30) days after submission to mediation, then each party shall have the right to seek enforcement of the obligations of this Agreement through circuit court action or, if the parties mutually agree in writing, through binding arbitration pursuant to the provisions of Chapter 788 of the Wisconsin Statutes. In the event the parties mutually agree in writing to submit to binding arbitration, the parties shall mutually select a single independent arbitrator within ten (10) days of their agreement to arbitrate. If the parties cannot agree on an arbitrator, the arbitrator shall be chosen by a Circuit Court judge from Brown County, Wisconsin. Unless the parties otherwise agree, the arbitration shall take place and the arbitrator’s decision shall be made not more than sixty (60) days after the date of either party’s demand for arbitration. The cost and expense of the arbitrator and location costs shall be borne equally by the parties to the dispute. All other costs and expenses, including reasonable attorney’s fees and expert’s fees, of all parties incurred in any dispute which is determined and/or settled by arbitration pursuant to this section shall be borne by the party incurring such cost and expense, except that the arbitrator in its discretion shall have the authority to award attorneys fees and costs to the prevailing party. The decision of the arbitrator shall be final and judgment upon the arbitration award may be entered in the circuit court having jurisdiction thereof upon the request of any party. In the event the parties do not mutually agree in writing to submit to binding arbitration and, in the alternative, seek enforcement hereunder through circuit court action, all costs and expenses relating thereto, including reasonable attorney’s fees and expert’s fees, of either party incurred in litigating any dispute shall be borne by the party incurring such cost and expense.
Promotional Consent
Forward Move may reference You as a user of the Services and use Your name and logo, as applicable, in listings of users of the Services appearing on the Forward Move web site and for other marketing and promotional purposes relating to the Services.
Requesting a Refund
If you paid for the Technology, and if the Technology fails to conform to any applicable warranty (if any), please notify us and we will refund to you the price you paid for the Technology. In addition, if you are not satisfied for any reason (in the first 45 days from the Effective Date) with the Technology provided to you by Forward Move, we will refund your administrative fee and any fees for messages you have sent. There is a catch, we will ask you WHY. And that’s it.
Privacy Policy
Forward Move’s most current Privacy Policy, available at yougetitfirst.com applies to use of the Technology, and its terms are made a part of this Agreement by this reference.
In respect of Your or the OEM Users’ (as applicable) use of the Site and Services and in relation to any personally identifiable and other data and information You or any OEM User (as applicable) provides to Forward Move through the Site and Services, You expressly consent to the use and disclosure of that data and information as described in Forward Move’s then-current privacy policy displayed on the Site (“Privacy Policy”). Notwithstanding anything in the Privacy Policy, Forward Move will have the right to collect, extract, compile, synthesize, and analyze non-personally identifiable data or information (data or information that does not identify an entity or natural person as the source thereof) resulting from Your or any OEM User’s (as applicable) access to the Site and Your or any OEM User’s (as applicable) use and operation of the Services (including, by way of example and not limitation, information relating to volumes, frequencies, recipients, bounce rates, or any other information regarding the email and other communications You and any OEM User (as applicable) generates and sends using the Services). To the extent any such non-personally identifiable data or information is collected or generated by Forward Move, the data and information will be solely owned by Forward Move and may be used by Forward Move for any lawful business purpose without a duty of accounting to You or any OEM User, provided that the data and information is used only in an aggregated form, without directly identifying You, any User, OEM User or customer, or any other entity or natural person as the source thereof. You acknowledge that email is an insecure medium that is generally not encrypted in transit, and security of information transmitted through the Internet can never be guaranteed. Forward Move is not responsible for any interception or interruption of any communications through the Internet or for changes to or loss of Your Content.
Additional Terms for OEM Services
The terms set forth in this Section shall be in addition to, and not in lieu of, the terms set forth elsewhere in this Agreement.
- Integration and Use of the Forward Move Interface. Forward Move will provide You with the right to integrate the Service into the OEM Service through one or more interfaces for the Service designated by Forward Move during the term of this Agreement (each, a “Forward Move Interface”) and to offer the Service to OEM Users as an integrated part of the OEM Service. You will access the Service only through the Forward Move Interfaces designated by Forward Move, for purposes of integrating the Service into the OEM Service.
- OEM Account. You will be provided with an administrative account to manage access to and use of the Service (the “OEM Account”). The OEM Account may be accessed and used only by You for purposes of (a) establishing and administering OEM User access to the Services and (b) utilizing the Service to send email messages to OEM Users in connection with Your business. You will be solely responsible for all use of the OEM Account. You will ensure the security and confidentiality of all usernames and passwords associated with the OEM Account and will notify Forward Move immediately if any such information is lost, stolen or otherwise compromised. You will be fully responsible for all liabilities and damages incurred through use of the OEM Account (whether lawful or unlawful). Any transactions completed through any OEM Account will be deemed to have been completed by You. In no event will Forward Move be liable for the foregoing obligations or the failure by You to fulfill such obligations.
- Use of the Service by OEM Users. Prior to allowing any OEM User to access or use any OEM Service, including any portion of the Service, You will require that the OEM User become legally bound by this Agreement. You assume all responsibility and liability for the actions of all OEM Users, including all use of or access to the Service by each OEM User or by You on behalf of any OEM User and will be responsible for each OEM User’s compliance or failure to comply with this Agreement. You will promptly notify Forward Move upon becoming aware of any breach of any OEM User.
Acceptance
This Agreement constitutes the entire agreement between you and Forward Move regarding the use of the Technology and supersedes any prior or contemporaneous understandings and agreements between you and Forward Move related to its subject matter.
You hereby represent, warrant, and covenant for the benefit of Forward Move that: (a) You have the legal right and authority to enter into this Agreement, and, if You are accepting this Agreement on behalf of a company or other entity, to bind the company or other entity to the terms of this Agreement; (b) You have the legal right and authority to perform Your obligations under this Agreement and to grant the rights and licenses described in this Agreement and in any applicable additional agreement You enter into in connection with any of the Services; (c) Your Content, and any other data, information or content You or any OEM User (as applicable) provides to Forward Move in connection with this Agreement and Your and each OEM User’s (as applicable) access to the Site and use of the Services, is correct and current.
