(last updated October 5, 2009)
1. License to User. Subject to the terms and conditions of this Agreement, RJMetrics grants the User during the Term (as defined below) a non-transferable, non-exclusive license, without the right to sublicense (unless RJMetrics has provided prior written consent), to access and use the Dashboard for User’s internal business purposes. This license is subject to usage limitations, if any, that may be identified in the course of the online Dashboard subscription enrollment process.
2. Restrictions on Use. User shall not (and User shall not permit any third party to): (i) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code of any software applications included in the Dashboard; (ii) copy, modify, adapt or translate the Dashboard, or otherwise make any use, resell, distribute or sublicense the Dashboard other than to the extent permitted in this Agreement; (iii) make the Dashboard available on a “service bureau” basis or allow any third parties to use the Dashboard, other than User’s employees and consultants acting on its behalf, without RJMetrics’ prior written consent; (iv) remove or modify any proprietary marking or restrictive legends placed on the Dashboard; or (v) use the Dashboard in violation of any applicable law or regulation. User acknowledges that the Dashboard may include software or information provided by RJMetrics’ suppliers, which information may be subject to additional terms and conditions. User will comply with any such third party terms and conditions of which RJMetrics’ may provide notice from time to time.
3. Dashboard Usage Data; Business Data; Aggregate Data. User acknowledges that RJMetrics may collect data regarding usage of the Dashboard by User, as well as RJMetrics’ other users (the “Dashboard Usage Data”). User also acknowledges and agrees that (i) RJMetrics’ servers may copy the business data that User stores on its servers (“User-Stored Data”), and (ii) RJMetrics’ servers may copy the business data that User stores on a third party service to which User facilitates access by RJMetrics via application programming interface (API) or other means (“Third Party-Stored Data”) and modify and transfer this data back to such third party, all subject to such third party’s terms of service governing this data, if applicable. User-Stored Data and Third Party-Stored Data shall be collectively referred to herein as “Business Data.” User owns the Business Data and all Dashboard Usage Data that is specific to User. In the event that RJMetrics generates any reports containing solely Business Data and/or Dashboard Usage Data that is specific to User, User shall be deemed the owner of such reports. User hereby agrees that RJMetrics may use all Dashboard Usage Data, including that which is specific to User, and the Business Data for the purpose of creating aggregated and anonymized statistics on the RJMetrics customer base (the “Aggregate Data“). RJMetrics shall be the sole owner of the Aggregate Data and, notwithstanding anything to the contrary, shall be free to use and disclose the Aggregate Data for purposes including, but not limited to, publicizing usage of the RJMetrics application, providing information on general industry trends, and providing benchmarking data to RJMetrics customers. Aggregate Data shall not include the User’s Business Data unless it has first been aggregated with data belonging to other RJMetrics clients, shall not identify User as the source of any specific piece of data, and shall not include any personally identifiable information or data specific to any individual identified in User’s Business Data. Examples of Aggregate Data include, but are not limited to, statistics aggregated across all RJMetrics clients on metrics such as size of data set, users of the RJMetrics application, revenue, number of transactions and growth rates.
4. Confidentiality.Each party shall protect and preserve the Confidential Information (as defined below) of the other party as confidential, using no less care than that with which it protects and preserves its own highly confidential and proprietary information (but in no event less than a reasonable degree of care), and shall not use the Confidential Information for any purpose except as necessary to perform its obligations hereunder or as otherwise permitted hereunder. The receiving party may disclose, distribute or disseminate the other party’s Confidential Information to any of its officers, directors, members, managers, partners, employees, or agents provided that the receiving party reasonably believes that those individuals have a need to know and such individuals are bound by confidentiality obligations at least as restrictive as those contained herein. Except as expressly set forth herein, the receiving party shall not disclose, distribute or disseminate the other party’s Confidential Information to any third party without the prior written consent of such other party. In the event the receiving party becomes or may become legally compelled to disclose any of the other party’s Confidential Information (whether by deposition, interrogatory, request for documents, subpoena, civil investigative demand or other process or otherwise), the receiving party shall provide the other party with prompt prior written notice of such requirement so that such other party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Section. For purposes of this Agreement, “Confidential Information” means, in the case of RJMetrics, the Dashboard and all code, components and other information and materials related thereto, and, in the case of User, any Business Data or Dashboard Usage Data that is specific to User.
5. Title to Dashboard. As between RJMetrics and User, RJMetrics retains title to and ownership of the Dashboard and any derivative works thereof, including all copyrights and other intellectualproperty rights relating thereto. User shall have no rights with respect to the Dashboard or any such derivative works other than those expressly granted under this Agreement.
6. Term and Termination. The term of this Agreement shall continue for the duration of the Dashboard subscription (including any renewals) that is purchased and paid for by User, as specified in the course of the online Dashboard subscription enrollment process (the “Term“). If User fails to pay any subscription fee when due, or otherwise commits a material breach of this Agreement, RJMetrics may terminate this Agreement, and User’s access to the Dashboard, upon ten (10) business days prior, written notice to User, unless User pays such fee or cures such breach within such ten (10) business day period. Notwithstanding the foregoing, in the event of a breach by User of Section 2 (Restrictions on Use), RJMetrics shall have the right to immediately terminate this Agreement and User’s access to the Dashboard.
7. Fees. User will pay RJMetrics the applicable Dashboard subscription fees as specified in the course of the online Dashboard subscription enrollment process. RJMetrics reserves the right to increase the subscription fees for any renewals of the Dashboard subscription.
8. Effect of Termination or Expiration; Survival. In the event of any termination or expiration of this Agreement, all rights and licenses granted hereunder to User shall immediately cease, including, but not limited to, all use of the Dashboard. The following provisions shall survive any termination or expiration of this Agreement: Section 2 (“Restrictions on Use”), Section 3 (“Aggregate Data”), Section 4 (“Confidentiality”), Section 5 (“Title”), Section 9 (“Disclaimers”), Section 10 (“Indemnification”), Section 11 (“Liability”), Section 12 (“Miscellaneous Provisions”) and this Section 8 (“Effect of Termination or Expiration; Survival”).
9. Disclaimers. User acknowledges that the operation of the Dashboard may not be uninterrupted or error-free. The Dashboard is provided “AS IS” and neither RJMetrics nor any of its suppliers makes any representation or warranty in connection with the Dashboard (or the accuracy and/or timeliness of the data contained therein) or otherwise with respect to this Agreement, and RJMetrics and its suppliers hereby disclaim any and all implied or statutory warranties, including all implied warranties of title, merchantability, noninfringement, fitness for a particular purpose, error-free or uninterrupted operation and any warranties arising from a course of dealing or usage of trade. To the extent that RJMetrics or its suppliers may not as a matter of applicable law disclaim any implied warranty, the scope and duration of such warranty will be the minimum permitted under such law.
10. Indemnification. User shall defend, indemnify and hold harmless RJMetrics and its affiliates, and each of their respective officers, directors, shareholders, employees, agents, and contractors from and against any and all liabilities, losses, damages, claims, causes of action, and expenses (including reasonable attorneys fees and disbursements) in connection with any third party claim resulting from or based upon: (i) use of the Dashboard by User, or any of its respective employees or other personnel, (ii) any Business Data provided by User to RJMetrics, provided that RJMetrics uses such Business Data in accordance with the terms of this Agreement, or (iii) any act or failure to act of User, its officers, directors, employees, agents, and independent contractors. RJMetrics reserves the right to assume the exclusive defense and control of any matter otherwise subject to defense by User, in which event User will cooperate with RJMetrics and its counsel in the conduct of such defense.
11. Liability. NEITHER RJMETRICS NOR ANY OF ITS SUPPLIERS WILL BE LIABLE TO USER (NOR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM USER’S RIGHTS) FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST REVENUES OR PROFITS, LOSS OF USE, LOSS OF COST OR OTHER SAVINGS OR LOSS OF GOODWILL OR REPUTATION) WITH RESPECT TO ANY CLAIMS BASED ON CONTRACT, TORT, BREACH OF WARRANTY, INDEMNITY OR OTHERWISE (INCLUDING NEGLIGENCE AND STRICT LIABILITY) ARISING FROM OR RELATING TO THE DASHBOARD, COMPUTER TO COMPUTER COMMUNICATION BETWEEN RJMETRICS SERVERS AND USER’S SERVER, PROVISION OF ANY BUSINESS DATA BY USER TO RJMETRICS, PROVIDED THAT RJMETRICS USES SUCH BUSINESS DATA IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT, OR OTHERWISE ARISING FROM OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER RJMETRICS WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF. IN NO EVENT SHALL RJMETRICS’ AND ITS SUPPLIERS’ MAXIMUM AGGREGATE LIABILITY TO USER (AND ANY PERSON CLAIMING RIGHTS DERIVED FROM USER’S RIGHTS) ARISING FROM OR RELATING TO THE DASHBOARD OR OTHERWISE ARISING FROM OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, INDEMNITY OR OTHERWISE), EXCEED THE FEES PAID BY USER FOR THE DASHBOARD SUBSCRIPTION DURING THE TWELVE (12) MONTHS PRECEDING THE DATE ON WHICH SUCH CLAIM ARISES. To the extent the foregoing exclusions and limitations of liability are not permitted under applicable law, RJMetrics’ liability in such case will be limited to the greatest extent permitted by law.
12. Miscellaneous. The relationship of the parties is one of independent contractors. This Agreement sets forth the entire agreement of the parties as to its subject matter and supersedes all prior agreements, negotiations, representations, and promises between them with respect to its subject matter. This Agreement is binding upon and will inure to the benefit of each of the parties and their respective successors and assigns. A waiver of rights under this Agreement will not be effective unless it is in writing and signed by an authorized representative of the party that is waiving the rights. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement will remain in full force and effect, and, if legally permitted, such offending provision will be replaced with an enforceable provision that as nearly as possible effects the parties’ intent. This Agreement, and any and all disputes directly or indirectly arising out of or relating to this Agreement, will be governed by and construed in accordance with the laws of the State of New Jersey, without reference to the choice of law rules thereof. Each of the parties hereby irrevocably consents and submits to the exclusive jurisdiction of the state and federal courts located in New Jersey for any such disputes, and hereby irrevocably waives any objections to the laying of venue in such courts. RJMetrics may, at any time, modify this Agreement. In the event of any such modification, RJMetrics will post the revised Agreement on the Site and will provide notification via a pop-up message that will be viewable by User upon log-in to the Dashboard (the “Revision Notice”). The Revision Notice will allow User to (i) accept the revised Agreement, or (ii) delay acceptance of the revised Agreement for a period of no longer than thirty (30) days from posting of the Revision Notice. If User accepts the revised Agreement, the revised Agreement will become effective immediately upon acceptance. If User chooses to delay acceptance of the revised Agreement, the revised Agreement will become effective upon the earlier of acceptance by User or expiration of the thirty (30) day period set forth above. If User does not log-in to the Dashboard or does not otherwise take any action with regard to the Revision Notice within thirty (30) days from RJMetrics’ posting of the revised Agreement on the Site, the revised Agreement shall become effective upon expiration of such thirty (30) day period. User will not be able to log-in to the Dashboard after the expiration of such thirty (30) day period without accepting the revised Agreement. Notwithstanding the foregoing, in the event that RJMetrics is required by any law, rule or regulation, or upon advice of counsel, to modify this Agreement immediately, all such modifications shall become effective immediately upon posting the revised Agreement to the Site.