END USER LICENSE AGREEMENT
01 MAY, 2017
THE TERMS AND CONDITIONS (THE “TERMS”) SET FORTH IN THIS END USER LICENSE AGREEMENT GOVERN YOUR USE OF THE METRIXX SERVICES OFFERED BY METRIXX COMMUNICATION SERVICES, LLC, A DELAWARE LIMITED LIABILITY COMPANY (“METRIXX”).
The Metrixx Services are available for your use only on the condition that you agree to the terms and conditions set forth below, all with the intention to form a legally binding agreement. By clicking “Accept”, accessing or using the Metrixx Services, you have indicated that you are at least 18 years of age or older, understand and accept these Terms. If you are an employee, consultant or contractor using the Metrixx Services on behalf of or as part of your work for a company or other entity (the “Company”), you represent that you have the authority to bind that Company to these Terms and that you are an “Authorized User” authorized by your Company to use the Metrixx Services.
- METRIXX SERVICES
1.1. Authorized User Access Information. To access the Metrixx Services, you will be required to create an account with Metrixx or, if applicable, the Company will create an account for you. You will receive a login ID and password via email from Metrixx or from the Company, or the Company may opt in for a single sign-on feature, enabling you to access the Metrixx Services by signing on through your work credentials (the “Authorized User Access Information”). You agree to keep confidential your login IDs or passwords. If a login ID or password is disclosed to any third party or otherwise compromised, you agree to notify Metrixx or the appropriate Metrixx representative at your Company promptly upon becoming aware of the foregoing. METRIXX SHALL NOT BE RESPONSIBLE FOR ANY USE OR MISUSE OF YOUR AUTHORIZED USER ACCESS INFORMATION RESULTING FROM YOUR OR THE COMPANY’S FAILURE TO SECURE YOUR LOGIN ID OR PASSWORD.
1.2. Grant of License. Subject to your compliance with the terms and conditions of these Terms, Metrixx grants you a non-exclusive, worldwide, revocable, non-transferable and non-sublicensable license to access and use the Metrixx Services.
1.3. Consent. By accepting these Terms, you acknowledge and consent to the following:(a) The collection and use by Metrixx, its agents or affiliates, of your personally identifiable information (“PII”), whether provided directly by you or by the Company on your behalf (if applicable), as required to create an Account and provide the Metrixx Services as described in these Terms; and (b) To the monitoring, storage and access to messages which you post, send or receive (including voice or video chat messages) or any other information or text, audio or video communication exchange (“Posted Data”) created by you or sent to your Account, by the Company (if applicable), and where such Posted Data is sent to an Account of an Authorized User of a third party, to the monitoring, storage and access to such Posted Data by that third party.
1.4. Acceptable Use Policy. You will be solely responsible for the accuracy, propriety, quality, integrity and legality of all your Posted Data. By accessing or using the Metrixx Services, you agree to: * subject to any conditions, restrictions or constraints imposed on you by the Company (if applicable), use commercially reasonable efforts to prevent unauthorized access to or use of the Metrixx Services and notify Metrixx of any such unauthorized access or use promptly upon becoming aware of such access or use; * not use the Metrixx Services to engage in illegal, fraudulent or other wrongful conduct, including, but not limited to, (a) distributing defamatory, obscene or unlawful Posted Data or content or Posted Data or content that promotes bigotry, racism, misogyny or religious or ethnic hatred, (b) transmitting any information or data that infringes any intellectual property rights of any third party or that is otherwise libelous, unlawful, or tortious, (c) stalking, harassment, or threatening others with violence or abuse, or (d) violation of any applicable law; * not use the Metrixx Services to send abusive commercial solicitation, such as “junk” messages, spam and pyramid schemes to other users of the Metrixx Services without their consents. * not make the Metrixx Services available to anyone other than you; * not transfer, distribute, sell, resell, lease, sublease, license, or sub-license access to the Metrixx Services; * not create, modify, distribute, transmit, display, or perform derivative works based on the Metrixx Services; * not copy, frame or mirror any part or content of the Metrixx Services; * not disassemble, decompile or otherwise reverse engineer the Metrixx Services; * not use the Metrixx Services to store or transmit viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs; * not intentionally interfere with or disrupt the integrity or performance of the Metrixx Services or third party data or services contained therein; * not attempt to gain unauthorized access to the Metrixx Services or their related systems or networks; * not enable others to violate any of these Terms; and * not make the functionality of the Metrixx Services available to multiple users through any means, including, without limitation, through any hosting, application services provider, service bureau, outsourced or value-added basis or any other type of services; As Metrixx continues to develop and improve the Metrixx Services, Metrixx reserves the right to modify the Metrixx Services at any time. In addition, unless otherwise specifically permitted by Metrixx in writing, you may not access the Metrixx Services for the purposes of monitoring their availability, performance or functionality, or for any benchmarking against third-party services or competitive purposes.
1.6. DMCA/Copyright Policy. Metrixx respects the intellectual property of others and asks that you do too. Metrixx policy is to terminate in appropriate circumstances users who repeatedly infringe the rights of copyright holders. Please see the Metrixx Copyright Policy located at www.Metrixx.com for further information.
1.7. Links to Third Party Websites or Resources. The Metrixx Services may contain links to third-party websites or resources. Metrixx provides these links only as a convenience and, to the extent permitted by applicable law, is not responsible for the content, products or services on or available from those websites or resources or links displayed on such websites. You acknowledge your responsibility for and assume all risk arising from, your use of any third-party websites or resources.
2.1. Ownership of Metrixx Services. Subject to the limited rights expressly granted hereunder, Metrixx reserves all rights, title and interest in and to the Metrixx Services including all related intellectual property rights. No rights are granted to you hereunder other than as expressly set forth herein.
2.2. Ownership of your Posted Data. As between Metrixx and you, you exclusively own all rights, title and interest in and to all of your Posted Data and Metrixx acknowledges it will not acquire any rights in Posted Data other than with respect to your approved use of your Profile Data in accordance with Section 1.5 above. By making your Posted Data available through the Metrixx Services you hereby grant to Metrixx a non-exclusive, transferable, sublicensable, worldwide, perpetual, royalty-free license to use and distribute your Posted Data in connection with operating and providing the Metrixx Services to the Company (if applicable) and for use by you.
2.3. Feedback. You may, at your option, provide Metrixx with feedback, comments, and suggestions for improvements to the Metrixx Services (collectively, “Feedback”). You hereby grant to Metrixx a non-exclusive, worldwide, perpetual, irrevocable, fully paid-up, royalty-free, sublicensable and transferable license to any Feedback under any and all intellectual property rights that you own or control.
- NO WARRANTY
THE METRIXX SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. METRIXX DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM METRIXX OR ELSEWHERE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
- LIMITATION OF LIABILITY
(i) UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY WILL METRIXX BE LIABLE TO YOU FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE USE OR OPERATION OF THE METRIXX SERVICES, DAMAGES ARISING FROM ANY LOSS OF DATA, LOSS OF PROFITS, LOST SALES OR BUSINESS INTERRUPTION OF ANY CHARACTER, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF METRIXX HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL METRIXX BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY DAMAGES IN EXCESS OF THE FEES PAID BY YOU TO METRIXX FOR USE OF THE METRIXX SERVICES IN THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO ANY LIABILITY.
- CONFIDENTIAL INFORMATION
5.1. Definition. “Confidential Information” means information or data supplied in confidence by or on behalf of one party (“Disclosing Party”) to the other party (“Receiving Party”), or acquired by the Receiving Party pursuant to these Terms. A Disclosing Party and a Receiving Party may be referred to individually or collectively in these Terms as a “Party.” Confidential Information includes all information that is marked as confidential or that a reasonable person should consider confidential in the context of its disclosure or due to the nature of the information itself, and may include technical and non-technical information, intellectual property rights, know-how, designs, techniques, plans, forecasts, projects, analyses, financial information and fee structures, or any other information relating to any research project, work in process, future development, marketing or business plans or financial or personnel matters relating to either party.
5.2. Exclusions. The obligations and restrictions set forth in this Section 5 will not apply to any information that: (i) is or has become publicly available other than through an act or omission of the Receiving Party in breach of these Terms; (ii) was provided to the Receiving Party by a third party who was not under an obligation of confidentiality to the Disclosing Party; (iii) was in the possession of the Receiving Party at the time of the disclosure; or (iv) was independently developed by the Receiving Party.
5.3. Use and Disclosure Restrictions. The Receiving Party will maintain all Confidential Information of the Disclosing Party in confidence and will safeguard such Confidential Information with the same care as (i) in your case, with which you protect the comparable Confidential Information of the Company (if applicable, and if not so applicable, your Confidential Information) and (ii) in the case of Metrixx, with which Metrixx protects the comparable Metrixx Confidential Information, but in no case with less than a reasonable degree of care. The Receiving Party will: (a) to the extent the Receiving Party is an employee, consultant or contractor using the Metrixx Services on behalf of or as part of the Receiving Party’s work for the Company, only disclose the Disclosing Party’s Confidential Information to (where applicable) those of Company’s employees, directors, officers or agents (or those of its respective affiliates) on a need-to-know basis to perform obligations and exercise such Receiving Party’s rights under these Terms, and (b) only use the Disclosing Party’s Confidential Information to perform such Receiving Party’s obligations or exercise such Receiving Party’s rights under these Terms. The provisions of this Section 5.3 shall remain in effect for a period of three (3) years after the expiration or termination of these Terms.
5.4. Permitted Disclosures. The provisions of this Section 5 will not restrict either Party from disclosing Confidential Information pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, that the Party required to make such a disclosure give reasonable notice to the other Party to enable it to contest such order or requirement or limit the scope of such request. The Party responding to such an order will only disclose that information that is expressly required.
- TERM AND TERMINATION
6.1. Term. These Terms commence on the date that you first access or use the Metrixx Services and will continue in effect until otherwise terminated by you, the Company (if applicable) or Metrixx. Upon termination of these Terms for any reason, you will cease your use of the Metrixx Services.
6.3. Surviving Provisions. Sections 2, 3, 4, 5, 6.1, 6.3, and 7 will survive the termination or expiration of these Terms for any reason whatsoever.
7.1. Relationship of the Parties. Nothing in these Terms will be construed to create a partnership, joint venture or agency relationship between the parties.
7.2. Miscellaneous. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent. These Terms will be governed by and construed in accordance with the laws of the State of New York applicable to contracts to be performed wholly within such state. The United Nations Convention on Contracts for the International Sale of Goods will not apply. Neither party may assign or transfer these Terms or any rights granted hereunder, by operation of law or otherwise, without the other party’s prior written consent, except that Metrixx may transfer these Terms without consent (a) to a successor of all or substantially all assets of its business and (b) to an acquirer pursuant to any direct or indirect change in control of Metrixx, including without limitation, pursuant to any merger, acquisition, consolidation, or other corporate restructuring in which Metrixx participates. Any attempted assignment, delegation or transfer by any party in violation of the previous sentence will be null and void. Except as expressly set forth in these Terms, the exercise by either party of any of such party’s remedies under these Terms will be without prejudice to such party’s other remedies under these Terms or otherwise. Failure or delay by either party to enforce any provision of these Terms will not be deemed a waiver of future enforcement of that or any other provision. No amendment or modification to these Terms, nor any waiver of any rights hereunder, will be effective unless narrowly specified and assented to in writing by both parties. Any such waiver will not apply with respect to any repeated or continued violation of the same provision or any other provision. If a court of competent jurisdiction determines that any provision, covenant or condition of these Terms, or the application hereof to any person, entity or circumstance is deemed invalid or to any extent unenforceable, that wording insofar as it relates to that person, entity or circumstance will be deemed not to be included in these Terms, and the balance of these Terms will remain in full force and effect and continue to be binding upon the parties. These Terms constitute the entire and exclusive agreement between the parties with respect to the subject matter hereof and supersedes all prior communications, proposals, representations, agreements and understandings, whether written or oral, relating to its subject matter. Metrixx may need to amend and update these Terms from time to time and when Metrixx does so, Metrixx will communicate such amendments in or updates to you in advance so that you can review and agree to the amendments and updates within a reasonable period. If you do not agree to such amendments and updates, you will not be able to continue to use the Metrixx Services.
7.3. Contact Information. If you have any questions about these Terms or the Metrixx Services, please contact Metrixx at sales@Metrixx.com.