THESE CUSTOMER TERMS AND CONDITIONS OF USE (THIS “AGREEMENT”) CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU (“CUSTOMER”) AND SPRING METRICS, INC. (“Spring Metrics”) AND GOVERN CUSTOMER’S USE AND ACCESS OF THE SERVICES (AS DEFINED BELOW). BY USING THE SERVICES, CUSTOMER AGREES TO CONTINUE TO BE BOUND BY EACH OF THE TERMS AND CONDITIONS SET FORTH HEREIN.
The “Services” are those web-based products and services described at www.springmetrics.com or http://springmetrics.com (the “Site”), as may be modified by Spring Metrics from time to time. Subject to the terms and conditions set forth herein and in any rules, policies and procedures posted on the Site (the “Rules”), Spring Metrics will use commercially reasonable efforts to provide Customer with the Services. This Agreement and the Rules may be modified by Spring Metrics from time to time, which modifications shall become effective once posted on the Site. In the event of a conflict between any term or condition set forth herein and in any Rule, the former shall prevail.
2. Pricing and Payment Terms
Pricing for the Services is based on the account type to which Customer subscribes as described on the Site, on the landing page through which Customer subscribes to the use the Services, or in a sales order or invoice executed by an authorized representative of Spring Metrics (in any event, the “Sales Order”). As consideration for the Services, Customer agrees to pay the subscription fees, if applicable, set forth in the Sales Order (the “Fees”). The Fees shall not include any applicable foreign, federal, state and local taxes payable with respect to the Services. Paid Fees are non-refundable. Payments for Fees will be billed in advance of the service period. Each such payment will be due and payable per the terms of the invoice, except as otherwise provided in the Sales Order, and will be made by the credit card provided by Customer, in the sign up process or otherwise, for monthly paid accounts. Payments may be made by check or wire for annual accounts. Customer hereby authorizes Spring Metrics to charge such credit card in accordance with the payment terms and conditions set forth herein. In the event Customer fails to make timely payments or a credit card is rejected when payment is due, Spring Metrics may discontinue, terminate or suspend the Services, without incurring any liability to Customer. Despite any such discontinuation or suspension, Customer acknowledges and agrees that it will be required to pay the Fees until this Agreement is terminated in accordance with the termination provisions set forth herein. Plans are based on certain limits as displayed on the Site or as negotiated by an authorized sales representative; once a customer reaches the limits of its plan in a certain month, no new data analytics or Smart Conversions actions will be provided until the next month.
3. Proprietary Rights
This is an agreement for services and Customer is not granted any license hereunder. All software embedded in the Services, including, without limitation, in applications or tools provided to Customer by Spring Metrics (the “Software”), and the Services, are and shall remain the sole and exclusive property of Spring Metrics. Customer agrees that Customer will not directly or indirectly: (i) assign, distribute, license, sublicense, transfer, sell, rent, lease, time share, grant a security interest in, or otherwise transfer any rights in or to the Software, or make the Software available to third parties except as authorized by this Agreement; (ii) modify, translate, reverse engineer, decompile or disassemble the Software for any purpose, including, without limitation, the creation of derivative works or similar products; (iii) upload, link to or post any portion of the Software on a bulletin board, intranet, extranet or web site; or (iv) possess or use the Software in any format other than machine-readable format.
4. Subject Data
In connection with its provision of the Services, Spring Metrics will collect, consolidate and analyze information and data about Customer and third parties that interact electronically with Customer on its website (the “Subject Data”). Customer’s access to the Subject Data will depend upon the subscriber level limits associated with the type of account to which Customer subscribed. Once Customer’s use of the Services reaches the visit limit established for such account, Customer’s access to new Subject Data will be suspended until the beginning of the next billing cycle at which time such limit will reset. Spring Metrics shall solely and exclusively own all Subject Data. Upon receipt of Customer’s written request at any time during the term of this Agreement, Spring Metrics will provide Customer with an electronic file of the Subject Data at its then current prices therefor. Upon Spring Metrics’ receipt of payment therefor, Customer automatically shall be granted a perpetual, non-exclusive worldwide license to such Subject Data for any and all internal business purposes. Spring Metrics has no obligation to retain the Subject Data and may, in its sole discretion, destroy or retain the Subject Data without providing Customer with notice of such deletion or retention. Spring Metrics shall not sell or otherwise distribute Subject Data to, or share Subject Data with, anyone other than Customer and shall only use such data: (i) in connection with its performance of the Services; and (ii) in anonymized, blinded formats that do not identify, reference or imply an association with, Customer or such third parties, for the purposes of creating benchmarking, statistical, research and marketing analyses, surveys, reports and studies. Notwithstanding the foregoing, Subject Data may be used to access extended data from third-party services for the purpose of delivering add-on Services to the Customer. Spring Metrics reserves the right to not display some Smart Conversions impressions for the express purpose of monitoring and optimizing performance.
5. Customer Information
Spring Metrics collects certain personal and business-related information about its Customers, which generally includes, but is not limited to, contact information (the “Customer Information”). Customer consents to Spring Metrics’ use and disclosure of such information solely in connection with its provision of the Services. Subject to the foregoing, Customer Information will be considered Customer’s Confidential Information (as defined below). All billing and credit card information will be submitted to, and stored by, a third party payment processor. Customer understands Spring Metrics will not have access to any such information and agrees Spring Metrics will not be liable for any losses or damages arising from such third party payment processor’s acts or omissions. Such information will not be considered Customer Information.
6. Protection of Passwords
In connection with Customer’s access to the Services, Customer will create unique user-ids and passwords (the “Unique Passwords”). Customer agrees to maintain the Unique Passwords in strict confidence and not to provide the Unique Passwords to any third party without first obtaining Spring Metrics’ prior written consent. In the event any Unique Password is lost or compromised, Customer will be responsible solely for all actions and fees incurred as a result of such loss or compromise, except to the extent arising from Spring Metrics’ gross negligence or willful misconduct.
7. Confidential Information
Each Receiving Party (as defined below), will hold in strict confidence, not use except as otherwise authorized herein, and protect from disclosure to unauthorized third parties the Confidential Information of the Disclosing Party (as defined below). For purposes hereof, “Confidential Information” means any information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) that relates to such Disclosing Party and that reasonably should be known by the Receiving Party to be confidential or proprietary to the Disclosing Party under the circumstances of disclosure or in light of the nature of the information disclosed. Confidential Information will not include information that: (i) is publicly available, or that subsequently becomes publicly available, through no act or omission of the Receiving Party; (ii) was in the Receiving Party’s possession prior to receipt of the same hereunder, as evidenced by the Receiving Party’s prior written records; or (iii) was received from a third party who was not known by the Receiving Party to be under any obligation of confidentiality with respect to such information or to have violated any applicable law. Nothing set forth herein shall be construed to prohibit Spring Metrics from disclosing Customer’s Confidential Information to any third party that has a need to know such information in connection with the Services or with the enforcement of its rights hereunder. From time to time, Spring Metrics may be required to disclose Customer’s Confidential Information by order or other requirement of a court (e.g. subpoena), administrative agency, or other governmental body or applicable law, as determined by Spring Metrics or its legal counsel. In such event, Customer hereby permits Spring Metrics to disclose such information to the extent necessary to comply with such order or legal requirement, which disclosure shall not be construed as a breach of this Section 8.
8. Third Party Products and Services
Spring Metrics does not make any representations, warranties or guarantees with respect to any third party products or services. While Spring Metrics may rely on data or information provided or generated by such third party products and services in the course of providing the Services, Customer hereby acknowledges that Spring Metrics specifically does not warrant the accuracy, reliability or completeness of any such data and information; and agrees that Spring Metrics shall not be liable for any acts or omissions based on its reliance thereon.
9. Representations and Warranties
Customer represents and warrants to Spring Metrics that: (i) if an individual, Customer is at least eighteen (18) years old; (ii) if an entity, it is a company duly organized and validly existing in good standing under the laws of the state in which it was organized; (iii) it has full power and authority to enter into this Agreement, which constitutes a legal, valid and binding obligation enforceable against it in accordance with the terms hereof; (iv) all information provided by it in the Sales Order and that will be provided it during the term of this Agreement, is and will be truthful and accurate; (v) it is not directly or indirectly (as an owner, strategic partner or otherwise) engaged in any business relationship or activity that competes with the Services; (vi) it has the right to provide to Spring Metrics the Subject Data; (vii) its use of the Services is and will at all times be: (a) in accordance with the terms and conditions set forth in this Agreement and all applicable laws, rules and regulations; and (b) without infringement, violation or misappropriation of any intellectual property right, privacy right or other right of a third party; and (viii) neither Customer nor any of its officers, directors or personnel is located in a United States embargoed country, or is, or has been, named on the United States Treasury Department’s listing of specially designated nationals and blocked persons or is, or has been, otherwise blacklisted by any instrumentality of the United States.
10. Open Source
Customer acknowledges and understands that certain open source code may be incorporated into the Service (the “Source Code”). Except as otherwise set forth in the applicable Source Code license therefor, the Source Code is provided “as is,” and without representation or warranty of any kind. Customer hereby releases and holds harmless Spring Metrics from and against any and all claims, losses, liability, damages, expenses, costs (including, but not limited to, reasonable attorneys’ fees) and/or actions arising therefrom.
Customer agrees to indemnify, defend and hold harmless Spring Metrics and its affiliates, subsidiaries, officers, directors, stockholders, employees, consultants, representatives, agents, successors and assigns from and against any and all claims, losses, liabilities, sums of money, damages, expenses, costs (including, but not limited to, reasonable attorneys’ fees) and/or actions arising from: (i) Customer’s violation of any applicable law; (ii) Customer’s breach of any term, condition, representation or warranty set forth in this Agreement; (iii) Customer’s negligence or intentional misconduct; and/or (iv) Spring Metrics use of the Subject Data in accordance with the terms and conditions set forth herein.
12. Disclaimer of Warranties
THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SPRING METRICS DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING (WITHOUT LIMITATION) ANY WARRANTY AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, TITLE, OR NON-INFRINGEMENT. SPRING METRICS DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS NOR DOES IT GIVE ANY WARRANTY ABOUT THE RESULTS THAT MAY BE OBTAINED BY USING THE SERVICES.
13. Limitation of Liability
IN NO EVENT WILL SPRING METRICS BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATED TO THE SERVICES, OR TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, LOSS OF USE, OR LOSS OF PROFITS, EVEN IF SPRING METRICS HAS BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. FURTHER, IN NO EVENT WILL SPRING METRIC’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER OR ANY OTHER PARTY FOR CLAIMS, LOSSES, OR DAMAGES OF ANY KIND, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, INDEMNITY OR OTHERWISE, ARISING OUT OF OR RELATED IN ANY WAY TO THIS AGREEMENT OR THE SERVICES EXCEED THE FEES PAID HEREUNDER DURING THE TWELVE (12)-MONTH PERIOD ENDING ON THE DATE OF THE CAUSE OF ACTION UNDERLYING SUCH CLAIM, LOSS OR DAMAGE. No claim may be asserted by Customer against Spring Metrics more than twelve (12) months after the date of the cause of action underlying such claim. In the event of any failure, or Spring Metric’s non-provision, of the Services, Customer’s sole and exclusive remedy shall be for Spring Metrics to use commercially reasonable efforts to repair or provide the Services.
14. Term and Termination
The term of this Agreement commences on the date of Customer’s first acceptance of this Agreement and shall continue unless and until terminated in accordance with the terms and conditions set forth herein (the “Term”). At any time during the Term, if Customer desires to terminate this Agreement, Customer may request termination by emailing Spring Metrics notice of its intention to terminate this Agreement at: email@example.com. Spring Metrics may terminate this Agreement immediately effective upon delivery to Customer of notice thereof. Notwithstanding any termination or expiration of this Agreement, Customer will remain obligated to pay Spring Metrics Fees and any Share which were incurred prior to (and on) the effective date of such termination.
15. Governing Law
This Agreement will be governed by the laws of the State of North Carolina as applied to agreements entered into and performed entirely within the State of North Carolina, except for those conflicts of law rules thereof that would require or permit the application of the laws of another jurisdiction. Both parties hereto irrevocably consent to the jurisdiction of the state and federal courts located in Durham County, North Carolina. The rights and obligations of the parties under this Agreement shall not be governed by the provisions of the United Nations Convention on Contracts for the International Sale of Goods.
Spring Metrics may provide Customer with general notice by electronic mail to Customer’s e-mail address of record. Customer must give notice to Spring Metrics (such notice shall be deemed given when received by Spring Metrics) by emailing Spring Metrics at firstname.lastname@example.org.
This Agreement and the Rules constitute the entire agreement and understanding between Spring Metrics and Customer and supersede all prior and contemporaneous agreements, documents, and proposals, oral or written, between the Spring Metrics and Customer. Customer may not transfer, assign, sublicense, or delegate any right or duty under this Agreement to another entity or person without the express written consent of Spring Metrics. Spring Metrics’ failure to exercise any of its rights under this Agreement will not constitute or be deemed to constitute a waiver or forfeiture of such rights or of any preceding or subsequent breach or default. The provisions of this Agreement that by their nature and context are intended to survive the performance and termination of this Agreement, will survive the completion of performance and termination of this Agreement. Customer agrees Spring Metrics will not be liable for delays or failures of performance resulting from causes beyond its reasonable control.