In accordance with the Prior Agreement, we have provided you notification of this Agreement via a pop-up message viewable upon your login to your dashboard on the Platform (the “Revision Notice”). The Revision Notice allows you to (i) accept this Agreement; or (ii) delay acceptance of this Agreement for a period of no longer than thirty (30) days from posting of the Revision Notice. If you accept this Agreement, it will become effective immediately upon acceptance. If you choose to delay acceptance of this Agreement, it will become effective upon the earlier of acceptance by you or expiration of the thirty (30) day period set forth above. If you do not login to the dashboard or do not otherwise take any action with regard to the Revision Notice within thirty (30) days from our posting of the revised Agreement on your dashboard, this Agreement shall become effective upon expiration of such thirty (30) day period. You will not be able to login to your dashboard after the expiration of such thirty (30) day period without accepting this Agreement.
The definitions for some of the defined terms used in this Agreement are set forth below. The definitions for other defined terms are set forth elsewhere in this Agreement.
“Affiliate” means, with respect to any entity, any other entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such entity. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.
“Authorized User” means any of your current employees, consultants, or agents whom you authorize to access and use the Platform pursuant to the terms and conditions of this Agreement; provided, however, that any consultants’ or agents’ access and use of the Platform shall be limited to their provision of services to you. You are responsible for the acts and omissions of your Authorized Users and any other person who accesses and uses the Platform using any of your or your Authorized Users’ access credentials.
“Beta Features” means pre-release features, functionalities, or modules of the Platform that are made available to you to use and evaluate.
“Billing Information” means any of your or your customers’ billing information, including, without limitation, credit card numbers, account details, banking information, and similar data.
“Confidential Information” means: (i) with respect to RJMetrics, the Platform, the Website, and any and all source code relating thereto and any other non-public information or material regarding our legal or business affairs, financing, customers, properties, pricing, or data; (ii) with respect to you, your Data and any other non-public information or material regarding your legal or business affairs, financing, customers, properties, or data; and (iii) with respect to each Party, the terms and conditions of this Agreement. Notwithstanding any of the foregoing, Confidential Information does not include information which: (a) is or becomes public knowledge without any action by, or involvement of, the party to which the Confidential Information is disclosed (the “Receiving Party”); (b) is documented as being known to the Receiving Party prior to its disclosure by the other party (the “Disclosing Party”); (c) is independently developed by the Receiving Party without reference or access to the Confidential Information of the Disclosing Party and is so documented; or (d) is obtained by the Receiving Party without restrictions on use or disclosure from a third party.
“Data” means any data that you or your Authorized Users submit to the Platform.
“Destructive Elements” means computer code, programs, or programming devices that are intentionally designed to disrupt, modify, access, delete, damage, deactivate, disable, harm, or otherwise impede in any manner, including aesthetic disruptions or distortions, the operation of the Platform or any other associated software, firmware, hardware, computer system, or network (including, without limitation, “Trojan horses,” “viruses,” “worms,” “time bombs,” “time locks,” “devices,” “traps,” “access codes,” or “drop dead” or “trap door” devices) or any other harmful, malicious, or hidden procedures, routines or mechanisms that would cause the Platform to cease functioning or to damage or corrupt data, storage media, programs, equipment, or communications, or otherwise interfere with operations.
“Effective Date” means the sooner of: (i) the date that you accept this Agreement; or (ii) thirty (30) days from our posting of this Agreement to your dashboard.
“Initial Subscription Term” means the initial period when we will provide you the Service.
“Personally Identifiable Information” means all personally identifiable information, data, and records relating to a natural person, including names, postal address, e-mail addresses, and telephone numbers.
“Platform” means our proprietary, cloud-based platform that helps Authorized Users consolidate and optimize your Data.
“Prohibited Content” means content that: (i) is illegal under applicable law; (ii) contains Personally Identifiable Information; (iii) violates any third party’s intellectual property rights, including, without limitation, copyrights, trademarks, patents, and trade secrets; (iv) contains indecent or obscene material; (v) contains libelous, slanderous, or defamatory material, or material constituting an invasion of privacy or misappropriation of publicity rights; (vi) promotes unlawful or illegal goods, services, or activities; (vii) contains false, misleading, or deceptive statements, depictions, or sales practices; (viii) contains Destructive Elements; or (ix) is otherwise objectionable to us in our sole, but reasonable, discretion.
“Renewal Subscription Terms” means any renewal periods after the Initial Subscription Term during which we will provide you the Service.
“Service” means our provision to you of access to and usage of the Platform based on the account parameters you have selected.
“Subscription Fees” means the fees for the Service.
“Subscription Term” means the Trial Period, if any, the Initial Subscription Term, and any Renewal Subscription Terms, collectively.
“Trial Period” means any period during which we provide you the Service on a trial basis.
“Website” means any website through which we provide access to the Platform.
2.1 Trial Period.
During the Subscription Term, we will provide you the Service subject to the terms and conditions of this Agreement.
At any time, you may subscribe to additional features of the Service and/or upgrade your account parameters by notifying RJMetrics in writing (including via e-mail) and paying the additional fees.
We modify the Platform and our Website from time to time by adding or deleting features to improve the user experience. We will not make modifications that will materially degrade the performance of the Platform or Website.
Phone support is available from 9:00 AM to 5:00 PM Eastern Standard Time Monday through Friday, excluding US national holidays. We accept support questions twenty-four (24) hours per day, seven (7) days per week at https://rjmetrics.zendesk.com. Responses to support questions submitted through our website are provided during phone support hours only. We attempt to respond to support questions within one (1) business day, although we do not promise or guarantee any specific response time.
From time to time, we may invite you to try Beta Features at no charge. You may accept or decline any such trial in your sole discretion. Beta Features are for evaluation purposes only and not for production use, are not considered part of the Service under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise stated, any Beta Feature trial period will expire upon the date that a version of the Beta Feature becomes generally available or we elect to discontinue such Beta Feature. We may discontinue Beta Features at any time in our sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with a Beta Feature, and you use any Beta Feature at your own risk.
The Subscription Fees and any applicable sales taxes are due and payable as set forth below. We may increase the Subscription Fee for any Renewal Subscription Term by providing you written notice of such increase at least sixty (60) days prior to the commencement of such Renewal Subscription Term.
You hereby authorize us to charge your credit card or other payment instrument as follows: (i) for Subscription Fees, we may automatically charge them in advance at the beginning of the Initial Subscription Term and at the beginning of any Renewal Subscription Term; and (ii) for any upgrades to the Service that you order pursuant to Section 2.3, we may automatically charge them at the time of the order. You further authorize us to use a third party to process payments and hereby consent to the disclosure of your Billing Information to such third party. You may receive a receipt upon our receipt of payment or you may obtain a receipt from the Service to track your subscription status.
If you are paying any fees by invoice, we will invoice you as follows: (i) for Subscription Fees, we will invoice you in advance at the beginning of the Initial Subscription Term and at the beginning of any Renewal Subscription Term; and (ii) for any upgrades to the Service that you order pursuant to Section 2.3, we will invoice you at the time of the order. All amounts invoiced are due and payable within thirty (30) days from the date of the invoice.
You will keep your contact information, Billing Information, and credit card information (where applicable) up to date. Changes may be made on your billing page on the Website.
Except as expressly stated in Section 4.4 and Section 11.3, all fees payable under this Agreement are non-cancelable and all payments made are non-refundable.
The term of this Agreement (the “Term”) commences on the Effective Date and continues for the Subscription Term. The Initial Subscription Term commences on the first day after completion of the Trial Period (unless the Service is terminated in accordance with Section 2.1 or Section 4.2 of the Terms and Conditions) and shall continue in effect for twelve (12) months, after which time the Subscription Term shall automatically renew for successive twelve (12) month Renewal Subscription Terms unless either Party provides written notice to the other Party of its desire for the Subscription Term not to renew at least thirty (30) days prior to the commencement of the applicable Renewal Subscription Term.
Either Party may terminate this Agreement: (i) during the Trial Period; (ii) upon thirty (30) days’ notice to the other Party if the other Party breaches a material term of this Agreement, and the breach remains uncured at the expiration of such period; or (iii) immediately, if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation, or assignment for the benefit of creditors. We may terminate this Agreement upon written notice to you under the limited circumstances set forth in Section 11.3 below. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
We may suspend the Service upon ten (10) days’ notice to you if any undisputed payment due to us is over thirty (30) days past due, and such failure to pay will be considered a material breach of this Agreement. We will not suspend the Service while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. If the Service is suspended for non-payment, we may charge a re-activation fee to reinstate the Service. You will promptly reimburse us for any reasonable expenses of collection, including costs, disbursements, and reasonable outside legal fees we incur, to the extent necessitated by your refusal to pay amounts that you are not disputing in good faith.
Upon termination or expiration of this Agreement, we will stop providing the Service, and you will stop all access to and use of the Website and Platform. If you terminate this Agreement pursuant to Section 4.2, we will promptly refund any prepaid but unused Subscription Fees. If we terminate this Agreement pursuant to Section 4.2, you will promptly pay, or we may automatically charge your credit card or other payment instrument, all unpaid fees due through the end of the Subscription Term. Upon written request and subject to Section 6.4, each Party shall either return to the other Party (or, at such other Party’s instruction, destroy and provide such other Party with written certification of the destruction of) all documents, computer files, and other materials containing any of such other Party’s Confidential Information that are in its possession or control.
The following provisions will survive expiration or termination of this Agreement: Section 1 (“Definitions”), Section 3 (“Fees and Payment”) until you have paid all fees and applicable taxes, Section 4.4 (“Effect of Expiration or Termination”), Section 5 (“Confidentiality; Feedback”), Section 6.4 (“Aggregated Data”), Section 7 (“Intellectual Property”), Section 9.3 (“Disclaimer”), Section 10 (“Limitation of Liability”), Section 11 (“Indemnification”), Section 12 (“General Provisions”), and this Section 4.5 (“Survival”).
The Receiving Party will: (i) protect the confidentiality of the Disclosing Party’s Confidential Information using the same degree of care that it uses with its own confidential information of similar nature, but with no less than reasonable care; (ii) not use any of the Disclosing Party’s Confidential Information for any purpose outside the scope of this Agreement; and (iii) not disclose the Disclosing Party’s Confidential Information to any party other than its employees, contractors, advisors, and agents, who are bound by obligations of confidentiality as restrictive as those set forth in this Agreement. If the Receiving Party is legally compelled to disclose any of the disclosing Party’s Confidential Information, the Receiving Party will provide the Disclosing Party prompt prior written notice of such requirement so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Section. If such protective order or other remedy is not obtained or the Disclosing Party waives compliance with the provisions of this Section, the Receiving Party may furnish only that portion of the Confidential Information which it is advised by counsel is legally required to be disclosed, and will use its best efforts to insure that confidential treatment shall be afforded such disclosed portion of the Confidential Information.
You agree to remove or anonymize all sensitive information before transferring the Data to us, including, but not limited to, Billing Information, Personally Identifiable Information, and other sensitive information that you collect from your customers, agents, employees, and other parties. We will not have any liability that may result from your disclosure of such information to us.
We shall employ commercially reasonable physical, administrative, and technical safeguards to secure your Data on the Platform from unauthorized use or disclosure.
We may monitor the performance and use of the Website and the Platform by all of our customers, combine this data (the “Usage Data”) with other data (including your Data), and use such combined data in an aggregate and anonymous manner. You hereby agree that we may collect, use, and publish such aggregate data for the purpose of creating aggregated and anonymized statistics regarding our customer base. Examples of our use of such aggregate data include, but are not limited to, statistics aggregated across all of our clients on metrics such as size of data sets, the number of users of the Website and Platform, revenue, number of transactions, and growth rates.
All right, title, and interest in and to the Platform, the Website, and the Usage Data, including all modifications, improvements, adaptations, enhancements, or translations made thereto, and all proprietary rights therein, shall be and remain our sole and exclusive property. Subject to Section 6.1 and Section 6.4, all right, title, and interest in and to your Data, including all modifications, improvements, adaptations, enhancements, or translations made thereto, and all proprietary rights therein, shall be and remain your sole and exclusive property.
You will not (and will not authorize, permit, or encourage any third party to): (i) allow anyone other than Authorized Users to access and use the Platform or the Website; (ii) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Platform or the Website; (iii) modify, adapt, or translate the Platform or the Website; (iv) make any copies of the Platform or the Website; (v) resell, distribute, or sublicense the Platform or the Website; (vi) remove or modify any proprietary marking or restrictive legends placed on the Platform or the Website; (vii) use the Platform or Website in violation of any Applicable Law or for any purpose not specifically permitted in this Agreement; or (viii) introduce, post, or upload to the Platform or the Website any Prohibited Content.
We have the right to monitor your compliance with the terms of this Agreement. If any such monitoring reveals that you have exceeded any usage limitations or otherwise are not using the Website or the Platform in compliance with this Agreement, then you will remedy any such non-compliance within five (5) business days of receiving notice from us, including, if applicable, through the payment of additional Subscription Fees.
Authorized Users must log into the Website. During the initial registration, Authorized User will be prompted to create an account, which includes a sign-in name (“Sign-In Name”), a password (“Password”), and perhaps certain additional information that will assist in authenticating the Authorized User’s identity when he or she logs-in in the future (“Unique Identifiers”). When creating the account, Authorized Users must provide true, accurate, current, and complete information. You are solely responsible for the confidentiality and use of Authorized Users’ Sign-In Names, Passwords, and Unique Identifiers, as well as for any use, misuse, or communications entered through the Website or the Platform. You will promptly inform us of any need to deactivate a Password or Sign-In Name or change any Unique Identifier. We reserve the right to delete or change Authorized Users’ Passwords, Sign-In Names, or Unique Identifiers at any time and for any reason. We will not be liable for any loss or damage caused by any unauthorized use of an Authorized User’s account.
Each Party represents and warrants to the other Party that: (i) it is duly organized, validly existing, and in good standing under its jurisdiction of organization and has the right to enter into this Agreement; (ii) the execution, delivery, and performance of this Agreement and the consummation of the transactions contemplated hereby are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party; and (iii) it has the full power, authority, and right to perform its obligations and grant the rights it grants hereunder.
In addition to the representations and warranties set forth in Section 9.1, we represent and warrant to you that the support services shall be performed in a professional and workmanlike manner.
In addition to the representations and warranties set forth in Section 9.1, you represent and warrant to us that your Data contains no Prohibited Content.
EXCEPT AS EXPRESSLY SET FORTH IN SECTION 9.1 AND SECTION 9.2, THE SERVICE, THE PLATFORM, THE WEBSITE, THEIR COMPONENTS, THE DOCUMENTATION, THE SUPPORT SERVICES, AND ANY OTHER MATERIALS PROVIDED HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND NEITHER PARTY MAKES ANY WARRANTIES WITH RESPECT TO THE SAME OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. TO THE EXTENT THAT EITHER PARTY 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.
EXCEPT IN CONNECTION WITH YOUR BREACH OF SECTION 8 OR YOUR FAILURE TO PAY ANY AMOUNTS DUE AND OWING: (I) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOST REVENUES OR PROFITS) ARISING FROM OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF; AND (II) EACH PARTY’S AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT WILL NOT EXCEED THE SUBSCRIPTION FEES PAID BY YOU HEREUNDER DURING THE PERIOD SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.
Subject to Section 11.2, we will defend, indemnify, and hold harmless you and your officers, directors, managers, and employees from any and all liabilities, costs, and expenses (including reasonable attorneys’ fees) in connection with any third-party action, claim, or proceeding that the use of the Platform and/or the Website in accordance with this Agreement infringes or misappropriates any third-party copyrights or trade secrets; provided, however, that the foregoing obligations shall be subject to your: (i) promptly notifying us of the claim; (ii) providing us, at our expense, with reasonable cooperation in the defense of the claim; and (iii) providing us with sole control over the defense and negotiations for a settlement or compromise.
We are not obligated to indemnify, defend, or hold you or any third party harmless hereunder to the extent: (i) the claim arises from or is based upon your or your Authorized Users’ use of: (a) the Platform and/or the Website not in accordance with the documentation or this Agreement; or (b) any unauthorized modifications, alterations, or implementations of the Platform and/or the Website made by you or at your request (other than by us); (ii) the claim arises from use of the Platform and/or the Website in combination with unauthorized modules, apparatus, hardware, software, or services not supplied or specified in writing by us; or (iii) the claim arises from any use of the Platform and/or the Website for which they were not designed.
In the event that we reasonably determine that the Platform and/or the Website is likely to be the subject of a claim of infringement or misappropriation of third-party rights, we shall have the right (but not the obligation), at our own expense and option, to: (i) procure for you the right to continue to use the Platform and/or the Website as set forth hereunder; (ii) replace the infringing components of the Platform and/or the Website with other components with the equivalent functionality; or (iii) suitably modify the Platform and/or the Website so that it is non-infringing and functionally equivalent. If none of the foregoing options are available to us on commercially reasonable terms, we may terminate this Agreement without further liability to you, and we shall refund to you an amount equal to a pro rata portion of any Subscription Fees prepaid by you for the Service. This Section 11.3, together with the indemnity provided under Section 11.1, states your sole and exclusive remedy, and our sole and exclusive liability, regarding infringement or misappropriation of any intellectual property rights of a third party.
You will defend, indemnify, and hold harmless us and our officers, directors, managers, and employees from any and all liabilities, costs, and expenses (including reasonable attorneys’ fees) in connection with any third-party action, claim, or proceeding arising from your or any of your Authorized Users’ breach or violation of this Agreement; provided, however, that the foregoing obligations shall be subject to our: (i) promptly notifying you of the claim; (ii) providing you, at your expense, with reasonable cooperation in the defense of the claim; and (iii) providing you with sole control over the defense and negotiations for a settlement or compromise.
No failure or delay by either Party in exercising any right or remedy under this Agreement shall operate or be deemed as a waiver of any such right or remedy.
This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, without regard for choice of law provisions thereof.
The Parties hereby consent and agree to the exclusive jurisdiction of the state and federal courts located in Philadelphia, Pennsylvania for all suits, actions, or proceedings directly or indirectly arising out of or relating to this Agreement, and waive any and all objections to such courts, including but not limited to, objections based on improper venue or inconvenient forum, and each Party hereby irrevocably submits to the exclusive jurisdiction of such courts in any suits, actions, or proceedings arising out of or relating to this Agreement.
All notices required under this Agreement (other than routine operational communications) must be in writing in one of the following forms. Notices shall be effective upon: (i) actual delivery to the other Party, if delivered in person, or by facsimile, or by e-mail (other than notices under Section 4.2, which may not be made via e-mail), or by national overnight courier; or (ii) five (5) business days after being mailed via U.S. postal service, postage prepaid.
The Parties are independent contractors. Neither Party shall be deemed to be an employee, agent, partner, joint venturer, or legal representative of the other for any purpose, and neither shall have any right, power, or authority to create any obligation or responsibility on behalf of the other.
If any provision of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, that provision shall be amended to achieve as nearly as possible the same economic effect as the original provision, and the remainder of this Agreement shall remain in full force and effect. Any provision of this Agreement, which is unenforceable in any jurisdiction, shall be ineffective only as to that jurisdiction, and only to the extent of such unenforceability, without invalidating the remaining provisions hereof.
Except for your obligations to pay any sums due hereunder, neither Party shall be deemed to be in breach of this Agreement for any failure or delay in performance to the extent caused by reasons beyond its reasonable control, including, but not limited to, acts of God, earthquakes, strikes, or shortages of materials or resources.
Except as set forth in Section 11.1 and Section 11.4, there are no other third-party beneficiaries under this Agreement.
We may, at any time, modify this Agreement. In the event of any such modification, we will provide you notification via a Revision Notice. The Revision Notice will allow you 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 you accept the revised Agreement, the revised Agreement will become effective immediately upon acceptance. If you choose to delay acceptance of the revised Agreement, the revised Agreement will become effective upon the earlier of acceptance by you or expiration of the thirty (30) day period set forth above. If you do not login to your dashboard or do not otherwise take any action with regard to the Revision Notice within thirty (30) days from our posting of the revised Agreement on your dashboard, the revised Agreement shall become effective upon expiration of such thirty (30) day period. You will not be able to login to your dashboard after the expiration of such thirty (30) day period without accepting the revised Agreement. Notwithstanding the foregoing, in the event that we are required by any Applicable Law, or are advised by counsel, to modify this Agreement immediately, all such modifications shall become effective immediately upon posting the revised Agreement to your dashboard.