TERMS AND CONDITIONS
1. SERVICES AND SUPPORT
1.1 Subject to the terms and conditions of this Agreement, Petametrics will provide Customer with access to the Services (as defined on the Order Form) through the Internet. Except for the Widgets, the software underlying the Services will be hosted on a server under control or direction of Petametrics. The Services are subject to modification from time to time at Petametrics’s sole discretion, for any purpose deemed appropriate by Petametrics. Petametrics will use reasonable efforts to give Customer prior written notice of any material modification.
1.2 Petametrics will undertake commercially reasonable efforts to make the Services available 99.5% of the time, excluding any time referred to in the next sentence. Notwithstanding the foregoing, Petametrics reserves the right to suspend Customer’s access to the Services: (i) for scheduled or emergency maintenance, or (ii) in the event Customer is in breach of this Agreement, including without limitation, failure to pay any amounts due to Petametrics.
1.3 Subject to the terms and conditions hereof, Petametrics will provide reasonable support to Customer for the Services as described at http://www.liftigniter.com/support/. Customer will designate an employee who will be responsible for all matters relating to this Agreement (“Primary Contact”). Customer may change the individual designated as Primary Contact at any time by providing written notice to Petametrics.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Access to the Services may require the Customer to download and install certain Petametrics enabling code (“Widgets”) on its website(s). Subject to Customer’s compliance with all of the terms and conditions of this Agreement, Petametrics hereby grants Customer a limited, personal, non-sublicensable, non-transferable, nonexclusive license to use the Widgets, only in accordance with any accompanying documentation, and only as required to access the Services in accordance with this Agreement.
2.2 Customer will not, and will not permit any third party to: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software (including without limitation, the Widgets), documentation or data related to the Services (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); modify, translate, or create derivative works based on the Services or software; except as expressly permitted herein, use the Services or software for timesharing or service bureau purposes; use the Services in connection with any high risk or strict liability activity (including, without limitation, air travel, space travel, firefighting, police operations, power plant operation, military operations, rescue operations, hospital and medical operations or the like); use the Services or software other than in accordance with this Agreement and in compliance with all applicable laws and regulations (including but not limited to any privacy laws, and laws and regulations concerning intellectual property, consumer and child protection, obscenity or defamation); except as expressly permitted by the functionalities of the Services, run or use any processes that “crawl,” “scrape,” or “spider” the Services; or use the Services or software in any manner that (1) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable (including without limitation, accessing any computer, computer system, network, software, or data without authorization, breaching the security of another user or system, and/or attempting to circumvent any user authentication or security process), (2) impersonates any person or entity, including without limitation any employee or representative of Petametrics, or (3) contains a virus, trojan horse, worm, time bomb, unsolicited bulk, commercial, or “spam” message, or other harmful computer code, file, or program (including without limitation, password guessing programs, decoders, password gatherers, keystroke loggers, cracking tools, packet sniffers, and/or encryption circumvention programs).
2.3 Customer will cooperate with Petametrics in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as Petametrics may reasonably request. Customer will also cooperate with Petametrics in establishing a password or other procedures for verifying that only designated employees of Customer have access to any administrative functions of the Services.
2.4 Customer hereby agrees to defend, indemnify and hold Petametrics harmless against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees), in each case paid or payable to unaffiliated third parties in connection with any claim or action that arises from Customer’s (i) infringement, violation or misappropriation of any intellectual property or proprietary right(s) of any third party (including without limitation, in connection with distribution and/or analysis of any Content (as defined below) through the Services), or (ii) violation of applicable law(s) and/or regulation(s); provided Customer is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement thereof; Customer will not be responsible for any settlement it does not approve.
2.5 Petametrics hereby agrees to defend, indemnify and hold Customer harmless against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees), in each case paid or payable to unaffiliated third parties as a result of any claim or action that arises from the infringement, violation or misappropriation of any intellectual property or proprietary right(s) of any third party through its performance of the Services, provided Petametrics is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement thereof; Petametrics will not be responsible for any settlement it does not approve. The foregoing obligations do not apply with respect to portions or components of the Services or software provided by Petametrics (i) not created by Petametrics, (ii) resulting in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Petametrics, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Services is not strictly in accordance with this Agreement and all related documentation.
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Notwithstanding the foregoing, the Content provided by Customer is not Proprietary Information.
3.2 The Receiving Party agrees: (i) except as expressly provided herein, not to divulge to any third party any such Proprietary Information, (i) to give access to such Proprietary Information solely to those employees and contractors with a need to have access thereto for purposes of this Agreement (and who are bound by written confidentiality obligations as protective of the Disclosing Party’s Proprietary Information as this Agreement), and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. Notwithstanding anything to the contrary, Petametrics may use and collect data with respect to and report on the aggregate response rate and other aggregate measures of the Services’ performance and Customer’s usage of the Services (including without limitation, the Resulting Data); provided that Petametrics will not (and will not disclose any information that could reasonably be used to) identify Customer or any individual end-user as the source of any such data without Customer’s prior written consent. “Resulting Data” means Customer-specific website audience engagement data and analytics.
3.3 Both parties will have the right to disclose the existence but not the terms and conditions of this Agreement, unless such disclosure is approved in writing by both Parties prior to such disclosure, or is included in a filing required to be made by a party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors or acquirors.
4. INTELLECTUAL PROPERTY RIGHTS
4.1 Except as expressly set forth herein, Petametrics alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Services (including without limitation, the Widgets) and related software and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any third party relating to the Services and/or the software, which are hereby assigned to Petametrics. Customer will not copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Agreement. Subject to the foregoing and Customer’s compliance with all the terms and conditions of this Agreement, Petametrics hereby assigns to Customer all its right, title and interest in and to the Resulting Data. Except as expressly set forth herein, this Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Services or software, or any intellectual property rights.
4.2 Customer and its licensors shall (and Customer hereby represents and warrants that they do) have and retain all right, title and interest (including, without limitation, sole ownership of) all content and data provided by or on behalf of Customer, its customers and/or end-users, or otherwise analyzed through the Services (“Content”) and the intellectual property rights with respect to that Content. If Petametrics receives any notice or claim that any Content, or activities hereunder with respect to any Content, may infringe or violate rights of a third party or any applicable law or regulation (a “Claim”), Petametrics may (but is not required to) suspend activity hereunder with respect to that Content. Customer, on behalf of itself and its suppliers and licensors (as applicable) hereby grants Petametrics a worldwide, non-transferable, non-sublicensable, nonexclusive license to view, copy, reformat, distribute, display and analyze the Content solely in connection with Petametrics’s performance of the Services. Petametrics may disclose that Customer is one of its customers to any third-party at its sole discretion, and may, subject to Customer’s prior written consent in each case, place Customer’s name and logo on its website and marketing materials for this purpose in compliance with all trademark usage guidelines provided in writing by Customer from time to time.
5. PAYMENT OF FEE
5.1 Customer will pay Petametrics the applicable fees as set forth in the Order Form, for features and functionalities of the Services selected and/or used by Customer (the “Fees”). To the extent applicable, Customer will pay Petametrics for additional services, such as integration fees or other consulting fees. All payments will be made in accordance with the payment schedule and the method of payment set forth in the Order Form. If not otherwise specified, payments will be due within thirty (30) days of invoice. All Fees paid hereunder (including any prepaid amounts) are non-refundable, including without limitation if this Agreement is terminated in accordance with Section 6 below.
5.2 Unpaid Fees are subject to a finance charge of one percent (1.0%) per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees. Fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Customer agrees to pay such taxes (excluding US taxes based on Petametrics’s net income) unless Customer has provided Petametrics with a valid exemption certificate. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to Petametrics on account thereof.
6.1 This Agreement shall continue until the end of the Initial Term as set forth on the Order Form, unless terminated in accordance with this Section 6 (the “Initial Term”). After the Initial Term, this Agreement will automatically renew for successive Renewal Terms as set forth on the Order Form (together with the Initial Term, the “Term”, as applicable), unless either party gives the other at least thirty (30) days’ prior written notice of its intent not to renew before the end of the then-current Term.
6.2 Customer may terminate this Agreement effective at the end of the POC Period upon written notice to Petametrics before the end of the POC Period. Petametrics may terminate this Agreement upon thirty (30) days’ prior written notice to Customer. Each party may terminate this Agreement upon thirty (30) days’ prior written notice in the event of any material breach of this Agreement by the other party that remains uncured at the end of such notice period, including without limitation, by Petametrics in the event of any breach of Section 2.2 and/or failure to pay any amounts when due hereunder.
6.3 Either party may terminate this Agreement, with written notice, (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings (provided such proceedings are not dismissed within one hundred twenty (120) days of such institution), (ii) upon the other party’s making an assignment for the benefit of creditors, or (iii) upon the other party’s dissolution or ceasing to do business without a successor.
6.4 Customer’s access to the Services, and any licenses granted hereunder to Customer, shall terminate upon any termination of this Agreement. The following Sections will survive any termination of this Agreement: 2.2, 2.4, 2.5, 3 through 6, 8 through 11, and any accrued rights to payment.
7. CLIENT SOFTWARE SECURITY
Petametrics represents and warrants that it will not knowingly include, in any Petametrics software released to the public and provided to Customer hereunder, any computer code or other computer instructions, devices or techniques, including without limitation those known as disabling devices, trojans, or time bombs, that are intentionally designed to disrupt, disable, harm, infect, defraud, damage, or otherwise impede in any manner, the operation of a network, computer program or computer system or any component thereof, including its security or user data. If, at any time, Petametrics fails to comply with the warranty in this Section, Customer may promptly notify Petametrics in writing of any such noncompliance. Petametrics will, within thirty (30) days of receipt of such written notification, either correct the noncompliance or provide Customer with a plan for correcting the noncompliance. If the noncompliance is not corrected or if a reasonably acceptable plan for correcting them is not established during such period, Customer may terminate this Agreement as its sole and exclusive remedy for such noncompliance.
8. WARRANTY DISCLAIMER
THE SERVICES, SOFTWARE AND PETAMETRICS PROPRIETARY INFORMATION AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED “AS-IS,” WITHOUT ANY WARRANTIES OF ANY KIND. PETAMETRICS AND ITS LICENSORS HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
9. LIMITATION OF LIABILITY
EXCEPT WITH RESPECT TO SECTION 3, IN NO EVENT WILL EITHER PARTY HERETO OR THEIR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, ANY DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF PETAMETRICS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
EXCEPT WITH RESPECT TO SECTIONS 2.2, 2.4, 2.5, 3 AND 4, THE TOTAL LIABILITY OF EACH PARTY AND ITS LICENSORS, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE GREATER OF (i) ONE THOUSAND DOLLARS ($1,000), OR (ii) THE FEES PAID TO PETAMETRICS HEREUNDER IN THE THREE MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
10. U.S. GOVERNMENT MATTERS
Notwithstanding anything else, Customer may not provide to any person or export or re-export or allow the export or re-export of the Services or any software or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing Customer acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Use of the Services is representation and warranty that the user is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations. As defined in FAR section 2.101, any software and documentation provided by Petametrics are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Petametrics’s prior written consent. Petametrics may transfer and/or assign this Agreement to a successor in connection with the sale of all or substantially all of its business or assets to which this Agreement relates. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed or otherwise agreed to by Petametrics, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Petametrics in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. Petametrics will not be liable for any loss resulting from a cause over which it does not have direct control. This Agreement will be governed by the laws of the State of California, U.S.A. without regard to its conflict of laws provisions. The federal and state courts sitting in San Francisco County, California, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement.