Terms & Conditions

Last Updated: June 2, 2025

TERMS AND CONDITIONS

These Terms and Conditions (“Terms”) are between Twic, Inc., DBA Forma (“Forma”) and the entity identified in the Order Form (“Customer”). These Terms govern the rights and obligations between Customer and Forma with respect to Customer’s access to and use of the Forma Platform and Services, including for any beta services.  Forma and Customer may be referred to herein individually as a “Party” or collectively as “Parties”.

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1. Definitions.
   1. “Access Credentials” means any login information, passwords, security protocols, policies and procedures through which Authorized Users access the Forma Platform and Services.
   2. “Affiliate” means an entity that controls, is controlled by, or is under common control with Customer. “Control” means possession of, directly or indirectly, the power to direct management through the ownership of fifty percent (50%) or more of its voting equity securities, or by contract, coting trust or otherwise. 
   3. “Agreement” means, collectively, these Terms, all applicable Order Forms, Statements of Work, exhibits, addenda, schedules, or appendices hereto. 
   4. “Authorized User” means any employee, consultant, or independent contractor of Customer authorized by Customer to access the Forma Platform pursuant to the Agreement, and subject to any limitations or restrictions set forth on the applicable Order Form. The number of Authorized Users who may be provided Access Credentials is set forth in the applicable Order Form (cumulatively, the “Baseline Employee Count”). 
   5. “Claims Funding Method” means an electronic funds transfer debit method under which Forma automatically withdraws funds from the Customer’s bank account, in which the claims funding method for HSAs and FSAs is payroll deductions and member funding, using a method agreed upon by the Customer and Forma.
   6. “COBRA” means the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended from time to time, and the rules and regulations thereunder.  Reference to any provision of COBRA or rule or regulation thereunder will be deemed to include any amended or successor provision, rule, or regulation.
   7. “Code” means the Internal Revenue Code of 1986, as amended from time to time, and the rules and regulations thereunder. Reference to any Code provision or rule or regulation thereunder will be deemed to include any amended or successor provision, rule, or regulation.
   8. “Confidential Information” means all information, whether in oral, written, graphic, non-tangible, or electronic form disclosed by one Party (the “Disclosing Party”) to the other (the “Recipient”), related to the business, products, services or operations of either Party that has been identified as confidential, or that by the nature of the information or the circumstances surrounding disclosure ought reasonably to be treated as confidential, including, but not limited to: (a) trade secrets, inventions, ideas, processes, computer source and object code, algorithms, programs, other works of authorship, know-how, improvements, discoveries, developments, designs and techniques; (b) information regarding products, plans for research and development, marketing and business plans, budgets, financial statements, contracts, prices, suppliers and agents;  (c) all intellectual property, whether or not applied for or granted, including but not limited to, patents, copyrights, trademarks, and trade dress; and (d) the existence of any business discussions, negotiations, or agreements between the Disclosing Party and the Recipient or any third party.
   9. “Covered Benefits” means benefits provided by the Customer to its Authorized Users under applicable plans, and as applicable, COBRA.
   10. “Customer Data” means (i) any data or information provided or submitted by Customer or its Authorized Users to or through the Forma Platform or Services, and (ii) the data, information, and reports generated by Customer or its Authorized Users in using the Forma Platform and Services. Customer Data does not include any component of the Services, or Documentation.
   11. “Documentation” means the documentation, user manuals, instructions, help files, videos or other materials that describe the features, functions and operation of the Forma Platform and Services.
   12. “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the rules and regulations thereunder.  Reference to any provision of ERISA or rule or regulation thereunder will be deemed to include any amended or successor provision, rule, or regulation.
   13. “Error” means a reproducible failure of the Services to substantially or materially conform to the Documentation.
   14. “Forma Platform” means Forma’s cloud-based proprietary platform environment identified in an Order Form that allows Authorized Users to access certain features and functions through a web interface. 
   15. “Plans” means the spending plan(s) maintained and sponsored by the Customer. The Plan(s) may include Health Reimbursement Arrangement (“HRA”), Health Spending Account (“HSA”), Flexible Spending Account (“FSA”), Commuter, Employer-Subsidized Account, or Lifestyle Spending Account.
   16. “Order Form” means an order form, executed by both Parties, that sets forth the Service(s) to be provided, the Term of the Agreement, the Fees and schedule of payments, and any additional terms.  
   17. “Services” means services provided by Forma to Customer as described in an Order Form (and as further described in any Statement of Work agreed to by the Parties) including the Forma Platform, implementation, support, maintenance, and professional services.
   18. “Statement of Work” means a written description of additional Services provided by Forma.
   19. “Updates” means all updates (including verification of such updates), improvements,  enhancements, error corrections, bug fixes, prevention of or addressing service or technical problems, release notes, upgrades and changes to the Forma Platform, Services, and Documentation, as developed by Forma and made generally available for use without a separate charge to Customers. 
   20. “Usage Data” means any diagnostic and usage-related information and data from the use, performance and operation of the Forma Platform and Services that may include, but is not limited to, usage patterns, traffic logs, and User engagement with the Forma Platform and Services.
2. Services.
   1. Sole Responsibility for the Covered Benefits, Benefits Purchases, and Legal Compliance. The Customer has sole responsibility for the establishment and operation of the Covered Benefits. Customer will have sole discretionary authority and responsibility for construing and interpreting the provisions of the Covered Benefits and Benefit Purchases and deciding all questions of fact arising from or in connection with the use of the Covered Benefits and Benefit Purchases made by Customer’s Authorized Users, including but not limited to establishing standards governing the eligibility of individuals to receive or participate in the Covered Benefits or to make Benefit Purchases, determining whether an individual is eligible to receive or participate in any Covered Benefits, and resolving all disputes relating to eligibility and compliance. Forma is not responsible for any damages or costs arising from transactions made by an ineligible individual using the Forma Platform or Forma Card prior to being notified of such use. Each Benefit Purchase must be made by an Authorized User in accordance with the terms of the Covered Benefits (if applicable), and Customer’s eligibility standards for Benefit Purchases. Forma has no responsibility to monitor the Covered Benefits or Benefits Purchases for fraudulent activity but may deactivate an Authorized User or Forma Card if the Forma Platform is used other than in accordance with this Section 2. Forma will make best efforts to collect repayment of claims paid through the Forma Platform for ineligible or fraudulent charges but shall not have any liability to reimburse Customer or the Authorized User(s) for ineligible charges, fraudulent charges, or system failures (other than Errors) that cause fund losses in the Forma Platform.  It is Customer’s sole responsibility and duty to ensure compliance with all applicable laws and regulations, including but not limited to ERISA, COBRA, HIPAA, Sections 105, 106, 125 (including, without limitation, compliance with applicable nondiscrimination requirements), 132, and 223 of the Code, and PPACA. Customer agrees and acknowledges that it is solely responsible for determining whether or not it is a component member of a controlled group, common control group, or affiliated service group, under Sections 414(b), (c), or (m) of the Code and for the consequences, under ERISA and the Code, of such status.  Customer acknowledges that Forma is not an accounting or law firm and no Services provided in accordance with the Agreement will be construed as tax or legal advice as a result of providing such Services. Forma’s provision of the Services under the Agreement does not relieve the Customer of its obligation to ensure compliance with applicable laws. It is the Customer’s responsibility to pay any tax, fee or penalty arising from the Covered Benefits that is assessed by the Internal Revenue Service, the Department of Labor, and other federal or state governmental agencies.
   2. Reporting.  Customer assumes all responsibility for tax reporting relating to the payment to or reimbursement of any benefit for an Authorized User, and for operation of the Covered Benefits, including but not limited to income withholding, Customer-based reporting, and filing of Form(s) 5500, to the extent required.
   3. Nature of Services.  The Parties agree that, to the fullest extent permitted by applicable law, the duties to be performed by Forma under the Agreement, as amended from time to time, are nondiscretionary duties. To the fullest extent permitted under applicable law, Forma is not the “named fiduciary,” “plan sponsor,” or “plan administrator” (as such terms are described in ERISA, other applicable law, or the Customer’s Covered Benefits documentation) nor does it assume any of the obligations or responsibilities corresponding to those designations. Customer will not represent to an Authorized User or to any third party that Forma is a “named fiduciary,” “plan sponsor,” or “plan administrator” (as such terms are described in ERISA or other applicable law (whether or not ERISA applies).
   4. HSA Not an ERISA Plan. If Customer offers an HSA to its employees, Customer will do so in such a manner that the HSA will not constitute an “employee benefit plan” within the meaning of Section 3(3) of ERISA. Customer acknowledges that any Services provided by Forma with respect to the HSA need not comply with ERISA requirements.
   5. Compliance. Customer represents and warrants that (a) it will comply with all privacy and data protection laws and regulations applicable to Customer Data, as well as Customers’ and Authorized Users’ use of the Forma Platform and Services and (b) it has, and will maintain, all rights, consents, and authorizations to grant the rights to set forth in the Agreement.Sole Responsibility for the Covered Benefits and Legal Compliance. The Customer has
3. Customer Rights and Obligations.
   1. License Grant to Forma Platform. Subject to Customer’s compliance with the terms and conditions contained in the Agreement, Forma grants to Customer and its Affiliates a non-exclusive, non-transferable, non-sublicensable, revocable license to allow Authorized Users to access and use the Forma Platform during the Term (the “License”). Customer will remain fully liable for its Affiliates’ compliance with the Agreement and any breach thereof. 
   2. Access Credentials. Customer will safeguard and ensure that all its Authorized Users safeguard the Access Credentials. Customer shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Forma Platform, and notify Forma promptly of any such unauthorized use known to Customer. Customer will be responsible for all acts and omissions of Authorized Users. 
   3. Customer Data. Customer is solely responsible for any and all obligations with respect to the accuracy, quality, and legality of the Customer Data that is provided to Forma. Customer will obtain all licenses, consents, and permissions necessary to permit Forma to use the Customer Data to provide the Forma Platform and Services to Customer and its Authorized Users and to perform any Services. 
   4. License in Customer Data. Customer grants to Forma, on behalf of itself, its employees, consultants, independent contractors, and its Authorized Users, a limited, non-exclusive, perpetual license to use the Customer Data solely to (a) provide the Forma Platform (including Improvements) and Services; (b) improve, personalize and support features of the Forma Platform; (c) create, collect, use, store, transmit and otherwise process Usage Data generated or derived from Customer Data or use of the Services for Forma’s business purposes, including to improve its products and services; (d) create anonymized or aggregated data for analytics, benchmarking, or other lawful purposes, provided that it does not identify any individual Customer; (e) perform its rights and obligations under the Agreement. Except for the limited license granted in the preceding sentence, as between Customer and Forma, Customer reserves all right, title, and interest in and to the Customer Data.   
   5. Customer Restrictions. Customer will not knowingly, and will not knowingly authorize or permit any Authorized User or third party to: (a) interfere with or disrupt the integrity or performance of the Forma Platform or the data contained therein; (b) adapt, alter, modify, improve, translate or create derivative works of the Services; (c) reverse engineer, decompile, disassemble or otherwise attempt to reconstruct or obtain the source code to all or any portion of the Services; (d) use the Services to build a similar or competitive product or service; (e) act as a reseller or distributor of, or a service bureau for, the Forma Platform or Services or otherwise use, exploit, make available, or encumber the Forma Platform or Services to or for the benefit of any third party other than Customer’s employees, contractors, or consultants; or (f) otherwise use the Services in any manner that exceeds the License permitted under the Documentation, the Agreement or applicable law.
   6. No Trust. Except as stated otherwise in the Agreement, the Parties acknowledge and agree that any funds contributed to Customer’s bank account to effect the Claims Funding Method: (a) are and shall remain the Customer’s general assets; (b) are not “plan assets” within the meaning of ERISA, without regard to whether ERISA applies to the accounts at issue; (c) were never held in an account, fund or trust bearing the name of a Customer component reimbursement account, plan, program or any participants or beneficiaries thereof; and (d) shall always remain subject to the claims of the Customer’s creditors. The Customer further understands that Forma is not responsible for satisfying any applicable trust requirements solely because funds are transmitted in accordance with the Agreement.
4. Forma Rights and Obligations. ‍
   1. Forma Intellectual Property. Except for the license granted to Customer under the Agreement, Forma reserves all right, title and interest in and to its intellectual property, including the Forma Platform, Services, Documentation, and Forma’s Confidential Information. Unless otherwise expressly set forth in an Order Form, and except for any Customer Data, all services provided under the Agreement (including any modifications or Updates to the Forma Platform or Services pursuant to subsection 4.2 or any intellectual property developed pursuant to subsection 4.3, and all intellectual property and other proprietary rights derived therefrom), will be the sole and exclusive property of Forma. 
   2.  Continuous Development. Customer acknowledges that Forma may continually develop, deliver and provide to Customer ongoing innovation to the Forma Platform, in the form of new features, functionality, and efficiencies. Accordingly, Forma reserves the right to modify the Forma Platform and Services, from time to time. Some modifications will be provided to Customer at no additional charge. In the event Forma adds additional functionality to the Forma Platform, Forma may condition the implementation of such new functionality on Customer’s payment of additional fees, provided that Customer may continue to use the version of the Forma Platform and Services specified in each applicable Order Form without paying additional fees for the remainder of the then-current Term.
   3. Customer Input. Customer hereby grants Forma a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Forma Platform and Services any comments and suggestions, whether written or oral, furnished by Customer, including Authorized Users, to Forma in connection with its access to and use of the Forma Platform and Services (collectively, the “Customer Input”). Customer will have no obligation to provide Customer Input. 
   4. Technical Support. Forma will provide Customer with technical support in accordance with Forma’s Service Level Agreement available at https://www.joinforma.com/legal/sla. 
   5. Security. Forma has implemented and will maintain a comprehensive information security program as described in the Security Addendum available at https://www.joinforma.com/legal/security-addendum, which shall be consistent with industry standards that contain appropriate administrative, technical and physical safeguards reasonably designed to protect Customer Data form unauthorized disclosure. Forma may update such security policies and safeguards from time to time, provide that any such update does not materially reduce the overall level of security or commitments as described in the Security Addendum.
5. Confidential Information.
   1. Use and Disclosure. During the Agreement, each Party will have access to the other Party’s Confidential Information. Except as otherwise expressly permitted, and without limiting each Party’s obligations, under the Agreement, each Recipient agrees as follows: (a) it will not use, disclose or reproduce the Confidential Information of the Disclosing Party for any purpose other than exercising its rights and performing its obligations as described herein; (b) to protect the Disclosing Party’s Confidential Information using the same degree of care that it uses with respect to its own Confidential Information, but in no event less than a reasonable standard of care; and (c) to limit access to the Disclosing Party’s Confidential Information to such of its employees, contractors and advisors, who have a need to know and who are bound by written confidentiality obligations no less restrictive than those contained in the Agreement (each a “Representative”). The Recipient will be liable for the acts and omissions of its Representatives with respect to the Disclosing Party’s Confidential Information.
   2. Exceptions. The provisions of Section 5.1 will not apply to Confidential Information that: (a) is or becomes publicly available or enters the public domain through no fault of the Recipient; (b) is already known by the Recipient without obligation of confidentiality; (c) Recipient can prove was independently developed by the Recipient without use of or reference to the Disclosing Party’s Confidential Information; or (d) is lawfully received from a third party without obligation of confidentiality. Each Party may disclose Confidential Information to the limited extent required: (i) by regulatory requirements, (ii) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to such order or applicable law will first have given written notice (to the extent legally permitted) to the other Party and made a reasonable effort to obtain a protective order; or (iii) to establish a Party’s rights under the Agreement, including to make such court filings as may be required.
   3. Return; Remedies. Upon termination or expiration of the Agreement, the Recipient will return to the Disclosing Party or destroy all copies of the Disclosing Party’s Confidential Information, other than copies of any computer records and files containing information which have been created pursuant to a Party’s automatic electronic archiving and back-up procedures, which will continue to be subject to the confidentiality terms of the Agreement.
6. Payment Terms.
   1. Fees. Customer will pay to Forma the fees specified in the Order Form (or Statement of Work, if applicable) for the Forma Platform and any Services in accordance with the Agreement (the “Fees”) along with any applicable sales and use taxes. All Fees are listed and will be paid in U.S. dollars.
   2. Invoicing. Except as set forth in an Order Form, all subscription Fees are billed on an annual basis and are due and payable to Forma within thirty (30) days after the invoice date, except for Overages, which are billed on a monthly basis, in arrears, subject to the payment terms in the Agreement. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection, and may result in suspension of access to the Forma Platform and Services if payment is more than thirty (30) days late. All Fees owed by Customer in connection with the Agreement are exclusive of, and Customer will pay, all sales, use, excise and other taxes and applicable export and import fees, customs duties and similar charges that may be levied upon Customer in connection with the Agreement, except for employment taxes and taxes based on Forma’s net income.
   3. Disputes. If Customer believes that Forma has billed Customer incorrectly, the Customer must contact Forma no later than thirty (30) days after the invoice date in which the error or problem appeared, in order to receive an adjustment or credit (if applicable). 
   4. Overages. Forma may audit Customer’s compliance with Baseline Employee Count and usage limitations set forth in the Order Form. Should the number of Authorized Users exceed the Baseline Employee Count in any applicable Order Form (an “Overage”), Forma will invoice the Customer for such Overage at Customer’s contracted-for PEPM/PPMM rate on a monthly basis, in arrears. No refund or credit will be given to Customer for any month in which the number of Authorized Users falls below the Baseline Employee Count in any applicable Order Form.
7. Benefit Funding; Minimum Balance.
   
   1. Funding of Benefit Purchases. Customer may offer pre-tax benefits such as HSA, FSA, or HRA accounts, as well as post-tax funds to its Authorized Users for the purchase of approved health, wellness, fertility, tuition and/or lifestyle products and services using third party partners through the Forma Platform (“Benefit Purchases”). Should Customer elect to offer to its Authorized Users Forma store, Forma Card, reimbursements, rewards and recognition, or other prefund-required benefits, Forma will create and maintain an account on behalf of Customer (the “Funding Account”) with a third party bank partner (each, a “Bank Partner”). The Customer hereby authorizes and consents to Forma acting as a custodian of the Funding Account, which maintains the Customer funds necessary to cover the funding of Benefit Purchases by Customer’s Authorized Users.  
   2. Minimum Balance. The Funding Account will at all times hold a minimum balance to cover no less than ten percent (10%) of the total estimated monthly Benefit Purchases for Customer’s Baseline Employee Count for the year, or such other amount as agreed upon in writing by the parties (“Minimum Funding Account Balance”). The initial Minimum Balance is due on the Effective Date (as defined in the applicable Order Form). The Minimum Balance will be continuously maintained in the Funding Account through the periodic transfer of additional funds from Customer’s designated bank account (“Customer’s Bank Account”) to the Funding Account. The Minimum Funding Account Balance obligation is an ongoing requirement and does not relieve Customer of its obligation to fully fund all Benefit Purchases made by its Authorized Users.
   3. ACH Authorization. Customer hereby authorizes Forma, Forma’s third party Bank Partner, and any other payment processor designated by Forma to transfer additional funds by ACH debit from Customer’s Bank Account to the Funding Account to maintain the Minimum Balance required to provide Benefit Purchases to Authorized Users, to recoup the amounts due for Benefit Purchases, and to credit Customer’s Bank Account to correct any error. Customer agrees to execute all forms necessary for Forma to process debits via ACH.  This authorization will remain in full force and effect up to four (4) business days after Forma, Forma’s third party Bank Partner, or the payment processor designated by Forma receives Customer’s written notification that Customer revokes this authorization. Forma shall not be held liable for any overdraft or banking fees which are the sole responsibility of Customer. Forma may suspend access to the Forma Platform or Services if sufficient funds are not available, if an ACH debit is rejected, or if Customer revokes its ACH debit authorization under this Agreement. Forma may substitute other financial institutions for such ACH debit with at least thirty (30) days’ notice. Subject to Customer’s payment in full of all invoices under the Agreement, any unused funds remaining in the Funding Account at expiration or termination of the Agreement or an applicable Order Form will be remitted back to Customer or Customer’s Bank Account within thirty (30) days following such expiration or termination. Forma will not be liable, nor advance its own funds, for the payment of any Covered Benefits claims.  Forma does not insure, underwrite, or guarantee Customer's liability to provide benefits or the payment of any benefits due under any Covered Benefit. The Customer shall have full responsibility and liability for payment of claims in accordance with the provisions of the applicable Covered Benefit. 
   4. Forma Card. If Customer elects to issue debit cards to its Authorized Users to make Benefit Purchases (“Forma Card”), each Benefit Purchase is reimbursed from the designated Funding Account created by Forma. Customer’s Funding Account must maintain the Minimum Balance to clear and fund all Benefit Purchases made using a Forma Card. 
   5. Reimbursements. If Customer elects to reimburse Authorized Users for Benefit Purchases via direct deposit, such reimbursements will be funded by the designated Funding Account created by Forma. Customer’s Funding Account must maintain the Minimum Balance to clear and fund all reimbursements provided by Customer for Benefit Purchases. 
   6. Pre-Tax Accounts. Customer is solely responsible for the administration of the applicable pre-tax deductions used for the Claims Funding Method for Authorized Users who participate in HSA, FSA, and other pre-tax benefits and any related compliance obligations. If Customer elects to provide pre-tax benefits to Authorized Users, all Covered Benefits by Authorized Users will be drawn from a Funding Account. Customer’s Funding Account must maintain the Minimum Balance to clear and fund all Covered Benefits.
8. Warranties; Disclaimers; Limitation of Liability.
   1. General Warranties.  Each Party hereby represents and warrants: (a) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (b) that the execution and performance of the Agreement will not conflict with or violate any provision of any law having applicability to such Party; and (c) that the Agreement, when executed and delivered, will constitute a valid and binding obligation of such Party and will be enforceable against such Party in accordance with its terms. 
   2. Forma Warranties. Forma represents and warrants that the Forma Platform will materially comply to the service description. Forma’s entire liability and Customer’s exclusive remedy under this warranty will be, in Forma’s sole discretion and subject to applicable law, to provide conforming services or to terminate the non-conforming services, provide a prorated refund of any unused prepaid fees from any subsequent payment from the period of non-conformance, and provide relief from any subsequent payments due with respect to such non-conforming services. The Forma Platform and Services may be temporarily unavailable for scheduled maintenance, either by Forma or by third party providers, or because of other causes beyond Forma’s reasonable control, but Forma will use reasonable efforts to provide advance notice by e-mail of any scheduled service disruption.
   3. Exclusions. The foregoing limited warranty does not cover, and Forma will have no responsibility or liability of any kind, whether for breach of warranty or otherwise, arising or resulting from: (a) Customer’s or its Authorized Users’ use of any version of the Forma Platform other than the then-current unmodified version provided to Customer; (b) any problems which are not Errors; (c) problems caused by failed Internet connections or other hardware, software or equipment which is not owned, controlled or operated by Forma; (d) nonconformities resulting from abuse, negligence, or use of all or any part of the Forma Platform or Documentation in noncompliance with the Agreement or applicable law; (e) problems or Errors caused by Customer’s, Authorized Users’, or other third party’s products, services or equipment, except if the causal action was carried out upon the written recommendation of Forma; (f) modification, amendment, revision, or change to the Forma Platform by any party other than Forma or an authorized representative of Forma, except if the modification, amendment, revision, or change was carried out upon the written recommendation of Forma; or (g) any use of or reliance on data or data output contained in the Forma Platform, which shall be Customer’s or Authorized User’s responsibility.
   4. Customer Content. The Customer represents and warrants: (i) it has all rights necessary to provide any data, documentation, and other materials that it or its Authorized Users may make available to Forma under the Agreement, and that Forma’s use of such data, documentation and other materials in accordance with the Agreement will not infringe, misappropriate, or otherwise violate any proprietary rights of a third party; (ii) Customer’s and its Authorized Users’ use of the Services will comply with all applicable laws, rules and regulations. 
   5. Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT OR FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE.  FORMA DOES NOT WARRANT, AND SPECIFICALLY DISCLAIMS, THAT THE FORMA PLATFORM WILL BE ACCURATE, WITHOUT INTERRUPTION, SECURE OR ERROR-FREE.
   6. Exclusion of Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER OR THE OTHER’S AFFILIATES OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SHAREHOLDERS, SUCCESSORS OR ASIGNS FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUE, LOSS OF DATA, INTERRUPTION OF SERVICE, OR LOSS OF BUSINESS OR BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF, WHETHER IN ACTION IN CONTRACT, TORT, PRODUCT LIABILITY, STATUTE, EQUITY OR OTHERWISE.  IN NO EVENT WILL FORMA BE LIABLE FOR THE PROCUREMENT OF SUBSTITUTE SERVICES.
   7. Limitation of Liability. EXCEPT WITH RESPECT TO (A) DAMAGES CAUSED BY GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD, (B) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9 (INDEMNIFICATION), AND (C) CUSTOMER’S PAYMENT OBLIGATIONS, EACH PARTY’S MAXIMUM AGGREGATE LIABILITY UNDER ANY ORDER FORM WILL NOT EXCEED THE TOTAL AMOUNT OF FEES RECEIVED BY OR PAYABLE TO FORMA UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT WHICH GAVE RISE TO THE CLAIM.
9. Indemnification.
   1. Customer Indemnity. Customer will defend, hold harmless and indemnify Forma, its affiliates and their respective directors, officers, employees, agents, representatives, and assigns (each a “Forma Indemnified Party”) from and against any and all losses, damages, liability, costs and expenses awarded by a court or agreed upon in settlement, as well as all reasonable and related attorneys’ fees and court costs, (collectively “Losses”) arising out of any third party claim against a Forma Indemnified Party arising from: (a) Customer Data infringes, misappropriates, or otherwise violates any third party’s intellectual property rights, privacy rights, or other rights; (b) access or use of the Forma Platform by Customer or its Authorized Users in a manner that is not in accordance with the Agreement; or (c) gross negligence or intentional misconduct by Customer, its officers, directors, employees, agents, or Authorized Users.  
   2. Forma Indemnity. Forma will defend, hold harmless and indemnify Customer, its affiliates and their respective directors, officers, employees, agents, representatives, and assigns (each a “Customer Indemnified Party”) from and against any and Losses arising out of any third party claim against a Customer Indemnified Party (a) alleging that the Forma Platform infringes, misappropriates or violates any copyright, trademark or trade secret; (b) arising from gross negligence or intentional misconduct by Forma, its officers, directors, employees, agents.
   3. Exclusions. Section 9.2(a) will not apply if the alleged claim arises, in whole or in part, from: (a) any use of the Forma Platform by Customer or any Authorized User not in accordance with the Agreement or as specified in the Documentation; (b) any modification of the Forma Platform by any person other than Forma or its authorized agents; (c) the Customer Data; (d) any use of the Forma Platform in combination with other third party services, products, equipment, software or data not supplied by Forma; (e) any use of the Forma Platform that does not conform with applicable law.
   4. Indemnification Process. The foregoing indemnification obligations are conditioned on the indemnified Party: (a) notifying the indemnifying Party promptly in writing of such action; (b) reasonably cooperating and assisting in such defense; and (c) giving sole control of the defense and any related settlement negotiations to the indemnifying Party with the understanding that the indemnifying Party may not settle any claim in a manner that admits guilt or otherwise prejudices the indemnified Party, without the indemnified Party’s consent.
   5. Infringement Remedy.  If the Forma Platform is, or in Forma’s opinion, is likely to become the subject of any infringement-related claim, then Forma may, at its expense and in its discretion: (a) procure for Customer the right to continue using the Service; (b) replace or modify the infringing or non-compliant technology or material so that the Service becomes non-infringing and remains materially functionally equivalent; or (c) terminate the Order Form(s) pursuant to which the Forma Platform is provided and give Customer a refund for any pre-paid but unused fees. THE PROVISIONS OF THIS SECTION 9.5 STATE FORMA’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDIES FOR ANY CLAIM THAT THE SERVICES INFRINGE A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHT OR VIOLATES OR IS OTHERWISE NOT IN COMPLIANCE WITH APPLICABLE LAWS, RULES, AND REGULATIONS.
10. Term and Termination.
    1. Term. The Agreement will begin on the Effective Date (as indicated in the applicable Order Form) and shall remain in effect until all Order Forms or Statements of Work have expired or otherwise been terminated. The initial subscription term shall be set forth on the Order Form (the “Initial Term”).  Thereafter, the Agreement will automatically renew for successive one-year terms (each, a “Renewal Term”), unless and until either Party provides notice to the other Party of its intent not to renew at least thirty (30) days prior to the end of the then-current term. The Initial Term, together with each Renewal Term, shall constitute the “Term” of the Agreement. 
    2. Termination.  Either Party may terminate the Agreement or any Order Form at its discretion, effective immediately upon written notice to the other if the other Party (a) materially breaches any provision of the Agreement and does not substantially cure the breach within thirty (30) days after receiving written notice; (b) voluntarily or involuntarily becomes the subject of a petition in bankruptcy or of any proceeding relating to insolvency, receivership, liquidation or composition for the benefit of its creditors that is not dismissed or discharged within sixty (60) days after being commenced; (c) makes an assignment for the benefit of its creditors; or (d) ceases to do business as a going concern. Further, Forma may terminate the Agreement or any Order Form immediately upon notice to Customer in the event of a change in laws, rules, or regulations that would interfere with Forma’s provision of any Service, or if Customer revokes or otherwise interferes with the payment authorization that Customer grants to Forma, Forma’s third party Bank Partner, or any other payment processor designated by Forma, or if Customer fails to pay any undisputed fees due under this Agreement within thirty (30) days after receiving written notice of non-payment.
    3. Suspension of Access. At any time during the Term, Forma may, immediately upon notice to Customer, suspend access to the Forma Platform or any Service for the following reasons: (a) a threat to the technical security or technical integrity of the Forma Platform or Services; (b) an uncured material breach of the Agreement; (c) breach or violation by Customer of any laws or regulations applicable to Customer’s use of the Forma Platform or Services, or (d) Customer’s payment of an undisputed invoice is more than thirty (30) days late. 
    4. Effects of Termination.  In case of termination of the Agreement for any reason, Customer shall be obligated to pay (by the effective termination date) all applicable Fees and other charges for the entire subscription Term for all applicable Order Forms or Statements of Work. Upon any expiration or termination of an Order Form, Customer’s license to access the Forma Platform and Services covered by such Order Form shall be revoked as of the effective date of such termination. Forma reserves the right to permanently delete any Customer Data thirty (30) days following the termination or expiration of the Agreement. Any data deleted may remain in immutable electronic backups maintained by Forma and used purely for backup, disaster recovery and data protection purposes for up to an additional ninety (90) days beyond any such deletion or certification. Customer may additionally request a copy of its Customer Data up to thirty (30) days after termination.
11. General.
    
    1. Assignment. Neither Party may assign the Agreement without the other Party’s prior written consent; provided, that, either Party may assign the Agreement without such consent in the event of a merger, sale, or acquisition of all or substantially all of the assigning Party’s assets.  Any assignment or attempted assignment by either Party in violation of the foregoing will be null and void.  Subject to the foregoing, the Agreement will be binding on the Parties and their successors and assigns. 
    2. Beta Services. The Forma Platform and Services as defined in the Agreement do not include or preview (“Beta”) features or services. Customer acknowledges that any Beta or preview features or services are offered AS IS, WITH ALL FAULTS, AS AVAILABLE, FOR DEMONSTRATION, TEST, OR EVALUATION PURPOSES ONLY AND WITHOUT WARRANTY. Such services may contain bugs, errors, and other defects. Forma does not make any representations, promises, or guarantees that such services will be publicly announces or made generally available. Forma has no obligation to provide technical support or continued availability, and such services may be suspended or terminated at any time by Forma, in its sole discretion, with or without notice to Customer. Forma’s maximum aggregate liability for any Beta or preview features offered to Customer will not exceed one hundred U.S. dollars ($100).   
    3. Publicity. Except as otherwise agreed to in an Order Form, (a) Forma may publicly refer to Customer, including on Forma’s website and in sales presentations, as a Forma customer and may use Customer’s logo for such purposes; (b) Customer may publicly refer to itself as a customer of the Forma Platform, including on Customer’s website and in sales presentations; and (c) each Party hereby grants the other a limited, worldwide, license to use the other’s logo in conformance with such Party’s trademark usage guidelines and solely for the purpose set forth in this Section or the applicable Order Form. 
    4. Relationship. No agency, partnership, joint venture, or employment is created as a result of the Agreement and a Party does not have any authority of any kind to bind the other Party in any respect whatsoever.
    5. Notices. All notices, consents, and approvals under the Agreement must be delivered in writing by courier, by a reputable overnight delivery service to the other Party at the address set forth in the Order Form and will be effective upon receipt. If to Forma, notice must also be sent to legal@joinforma.com to constitute valid notice. Either Party may change its address by giving notice of the new address to the other Party. 
    6. Governing Law; Disputes. The Agreement will be governed by the laws of the State of California without reference to its conflicts of law principles. The United Nations Convention for the International Sale of Goods will not apply to the Agreement. Any dispute, controversy or claim arising out of or relating to the Agreement will be made exclusively in the state or federal courts located in Santa Clara County, California and both Parties submit to the jurisdiction and venue of such courts. 
    7. Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed as a waiver of any other provision or of such provision on any other occasion. 
    8. Severability. If any provision of the Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. 
    9. No Third Party Beneficiaries. The Parties acknowledge that the covenants set forth in the Agreement are intended solely for the benefit of the Parties, their successors and permitted assigns. Nothing herein, whether express or implied, will confer upon any person or entity (including any User or any employee) other than the Parties, their successors and permitted assigns, ay legal or equitable right whatsoever to enforce any provision of the Agreement. 
    10. Construction. The headings of the Sections of the Agreement are for convenience and are not to be used in interpreting the Agreement. As used in the Agreement, the word “including” means “including but not limited to.”
    11. Force Majeure. Any delay in the performance of any duties or obligations of either Party (except the payment of money owed) will not be considered a breach of the Agreement if such delay is caused by a natural disaster, war, act of terror, or any other event beyond the reasonable control of such Party, but shall not include the COVID-19 pandemic. The affected Party will use reasonable efforts, under the circumstances, to notify the other Party of the circumstances causing the delay and to resume performance as soon as possible.  
    12. Remedies; Injunctive Relief. Except as otherwise provided, remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity. Either Party may seek interim or temporary injunctive relief in any court of appropriate jurisdiction with respect to any alleged breach of such Party's intellectual property, confidentiality, or proprietary rights under the Agreement, as such a breach may cause the non-breaching Party irreparable damage with no adequate remedy at law. 
    13. Counterparts. The Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original but all of which, taken together, constitute one instrument and will be enforceable against the Parties. A signed copy of the Agreement, or any portion of the Agreement, delivered by facsimile, e-mail, as a PDF (portable document file), or other means of electronic transmission shall be deemed to have the same legal effect as a delivery of an original signed copy of the Agreement. 
    14. Entire Agreement; Order of Precedence; Modifications. The Agreement constitutes the entire agreement between the Parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. For any conflict between these terms and any Order Form prepared by Forma, referencing the Agreement as governing terms, and signed by the Parties, such Order Form shall control. Forma may update or make changes to the terms of the Agreement from time to time for valid reasons, such as adding new functions or features to the Forma Platform or Services, technical adjustments, corrections of typographical or other errors, for legal or regulatory reasons or for any other reasons as Forma deems necessary, in its sole discretion, without notice (but the modified Agreement may be reviewed at https://www.joinforma.com/legal/terms and will be identified by the last updated date). Customer’s continued access to and use of the Forma Platform and Services after the changes have been implements shall constitute acceptance of the changes and the then-current terms.