Terms of Service
This agreement is between MetaCX, Inc., a Delaware corporation (MetaCX), and the Customer agreeing to these terms (Customer), effective as of the date of the last signature below.
This agreement provides Customer access to and usage of an Internet-based software service, including, without limitation, its features, functions, and user interface, as specified on an order (Service).
USE OF SERVICE
Customer Owned Data. All input data and content uploaded by Customer to the Service, and the generated output data and metrics, remains the property of Customer, as between MetaCX and Customer (Customer Data). Customer grants MetaCX the right to use the Customer Data solely for purposes of performing under this agreement.
Customer: (i) must keep its passwords secure and confidential; (ii) is solely responsible for Customer Data and all activity in its account in the Service; (iii) must use commercially reasonable efforts to prevent unauthorized access to its account, and notify MetaCX promptly of any such unauthorized access; and (iv) may use the Service only in accordance with the Service's Implementation Guide/Knowledge Base and other MetaCX technical documentation, and applicable law.
Third Party Integrations
The Service interoperates with one or more third party services (e.g. Salesforce, QuickBooks, and others) and depends on the continuing availability and access to such third-party service and any data or information interfaces (Third Party Integration). Customer must provide commercially reasonable cooperation with MetaCX to assist MetaCX in such integration
If for any reason MetaCX cannot access or use the applicable Third-Party Integration (including without limitation, change in terms or increase in fees charged by a third-party service provider, etc.), MetaCX will not be able to provide that integration and MetaCX not liable for the lack of such access.
Customer may, through the Service, invite certain third-party collaborators (Collaborator) with limited rights to view certain output data sets and metrics, as controlled by Customer.
Contractor and Affiliate Access and Usage Rights
Customer may allow its contractors and majority owned affiliates (Affiliates) to access the Service in compliance with the terms of this agreement, which access must be for the sole benefit of Customer. Customer is responsible for the compliance with this agreement by its contractors and Affiliates.
MetaCX will provide general break-fix technical support for the Service, and all enhancements, modifications, and upgrades that it provides for all other customers for no additional fee.
METACX DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. WHILE METACX TAKES REASONABLE PHYSICAL, TECHNICAL, AND ADMINISTRATIVE MEASURES TO SECURE THE SERVICE, METACX DOES NOT GUARANTEE THAT THE SERVICE CANNOT BE COMPROMISED. CUSTOMER UNDERSTANDS THAT THE SERVICE MAY NOT BE ERROR FREE, USE MAY BE INTERRUPTED AND THAT THE SERVICE WILL CHANGE OVER TIME.
Definition of Confidential Information
Confidential Information means all non-public information disclosed by a party (Discloser) to the other party (Recipient), whether orally, visually, or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). MetaCX's Confidential Information includes, without limitation, the Service, its user interface design and layout, and pricing information. Customer's Confidential Information includes, without limitation, the Customer Data.
Protection of Confidential Information
The Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care), and it may not disclose or use any Confidential Information of the Discloser for any purpose outside the scope of this agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this agreement.
Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser; (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser; (iii) is received from a third party without breach of any obligation owed to Discloser; or (iv) was independently developed by the Recipient without use or access to the Confidential Information. The Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice to seek a protective order.
Data Security Measures
- Security Measures. In order to protect Customer's Confidential Information, MetaCX: (i) implements and maintains all reasonable security measures appropriate to the nature of the Confidential Information including, without limitation, technical, physical, administrative, and organizational controls, and will maintain the confidentiality, security, and integrity of such Confidential Information; (ii) implements and maintains industry standard systems and procedures for detecting, preventing, and responding to attacks, intrusions, or other systems failures and regularly tests, or otherwise monitors the effectiveness of the safeguards’ key controls, systems, and procedures; (iii) designates an employee or employees to coordinate implementation and maintenance of its Security Measures (as defined below); and (iv) identifies reasonably foreseeable internal and external risks to the security, confidentiality, and integrity of Customer's Confidential Information that could result in the unauthorized disclosure, misuse, alteration, destruction, or other compromise of such information, and assesses the sufficiency of any safeguards in place to control these risks (collectively, Security Measures).
- Notice of Data Breach. If MetaCX knows that Customer Confidential Information has been accessed, disclosed, or acquired without proper authorization and contrary to the terms of this agreement, MetaCX will promptly alert Customer of any such data breach, and immediately take such actions as may be necessary to preserve forensic evidence and eliminate the cause of the data breach. MetaCX will give highest priority to immediately correcting any data breach, and will devote such resources as may be required to accomplish that goal. MetaCX will provide Customer with all available information reasonably necessary to enable Customer to fully understand the nature and scope of the data breach. To the extent that Customer, in its sole reasonable discretion, deems warranted, Customer may provide notice to any or all parties affected by any data breach. In such case, MetaCX will consult with Customer in a timely fashion regarding appropriate steps required to notify third parties. MetaCX will provide Customer with information about what MetaCX has done or plans to do to minimize any harmful effect of the unauthorized use or disclosure of, or access to, Confidential Information.
- CCPA. To the extent that MetaCX receives from Customer any “personal information” of any “consumer” (each as defined by the California Consumer Privacy Act of 2018 (the CCPA)), MetaCX: (i) is a “service provider” to Company under the CCPA; (ii) may not retain, use or disclose the personal information for any purpose other than for the specific purpose set forth in this Agreement; and (iii) may not “sell” the personal information (as defined in the CCPA).
Reservation of Rights
The Service are the proprietary property of MetaCX and its licensors, and all right, title, and interest in and to the Service, including all associated intellectual property rights, remain only with MetaCX. Customer may not remove or modify any proprietary marking or restrictive legends in the Service. MetaCX reserves all rights unless expressly granted in this agreement.
Customer may not: (i) resell, rent, or lease the Service or use it in a service-provider capacity, other than with Collaborators; (ii) use the Service to store or transmit infringing, unsolicited marketing emails, libelous, or unlawful, or tortious material, or to store or transmit material in violation of third-party rights; (iii) interfere with or disrupt the integrity or performance of the Service; (iv) attempt to gain unauthorized access to the Service or its related systems or networks; (v) reverse engineer the Service; or (vi) access the Service to build a competitive service or product, or copy any feature, function, or graphic for competitive purposes.
Aggregated Deidentified Network Metadata
MetaCX may compile aggregated and deidentified ‘network metadata’ generated by the Service and may make such information publicly available, provided that such information does not (i) include any Customer Data, and (ii) identify Customer or Collaborator, and there is no means to re-identify any of them. MetaCX retains all intellectual property rights in such data.
TERM AND TERMINATION
This agreement continues until all orders have expired or are terminated for material breach under Customer Indemnity.
Mutual Termination for Material Breach
If either party is in material breach of this agreement, the other party may terminate this agreement at the end of a written 15-day notice/cure period, if the breach has not been cured.
Return MetaCX Property Upon Termination
Upon termination of this agreement for any reason, Customer must destroy or return all property of MetaCX. Upon MetaCX's request, Customer will confirm in writing its compliance with this destruction or return requirement.
Suspension for Violations of Law
MetaCX may temporarily suspend the Service and/or remove the applicable Customer Data if it in good faith believes that, as part of using the Service, Customer has violated a law or the terms of this agreement. MetaCX will attempt to contact Customer in advance.
Exclusion of Indirect Damages
To the maximum amount allowed by law, MetaCX is not liable for any indirect, special, incidental, or consequential damages arising out of or related to this agreement (including, without limitation, costs of delay; loss of or unauthorized access to data or information; and lost profits, revenue, or anticipated cost savings), even if it knows of the possibility or foreseeability of such damage or loss.
Total Limit on Liability
To the maximum amount allowed by law and except for Infringement, MetaCX's total liability arising out of or related to this agreement (whether in contract, tort, or otherwise) does not exceed the greater of $50,000 and the amount paid by Customer within the 12-month period prior to the event which gave rise to the claim (except that to the extent of any breach of Mutual Confidentiality by MetaCX, MetaCX’s total liability is limited to the greater of $500,000 and 3 times the amount paid by Customer within the 12 month period prior to the event which gives rise to the claim).
GOVERNING LAW AND FORUM
This agreement is governed by the laws of the State of Indiana (without regard to conflicts of law principles) for any dispute between the parties or relating in any way to the subject matter of this agreement. Any suit or legal proceeding must be exclusively brought in the federal or state courts for Marion County, Indiana, and Customer submits to this personal jurisdiction and venue. Nothing in this agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any litigation is entitled to recover its attorneys' fees and costs from the other party.
By MetaCX for Infringement
MetaCX will defend or settle any third-party claim against Customer to the extent that such claim alleges that MetaCX technology used to provide the Service violates a copyright, patent, trademark, or other intellectual property right, if Customer promptly notifies MetaCX of the claim in writing, cooperates with MetaCX in the defense, and allows MetaCX to solely control the defense or settlement of the claim. Costs. MetaCX will pay infringement claim defense costs it incurs in defending Customer, MetaCX-negotiated settlement amounts, and court-awarded damages. Process. If such a claim appears likely, then MetaCX may modify the Service, procure the necessary rights, or replace it with the functional equivalent. If MetaCX determines that none of these are reasonably available, then MetaCX may terminate the Service and refund any prepaid and unused fees. Exclusions. MetaCX has no obligation for any claim arising from: MetaCX's compliance with Customer's specifications; a combination of the Service with other technology or aspects where the infringement would not occur but for the combination; use of Customer Data; or technology or aspects not provided by MetaCX. THIS SECTION CONTAINS CUSTOMER'S EXCLUSIVE REMEDIES AND METACX'S SOLE LIABILITY FOR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS.
If a third party claims against MetaCX that any part of the Customer Data infringes or violates that party's patent, copyright, or other right, Customer will defend MetaCX against that claim at Customer's expense and pay all costs, damages, and attorneys’ fees that a court finally awards or that are included in a settlement approved by Customer, provided that MetaCX promptly notifies Customer of the claim in writing, cooperates with Customer in the defense, and allows Customer to solely control the defense or settlement of the claim.
Entire Agreement and Changes
This agreement and the order constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Customer is not relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation, promise, or inducement not included in this agreement is binding. No modification or waiver of any term of this agreement is effective unless both parties sign it.
Neither party may assign or transfer this agreement to a third party, nor delegate any duty, except that the agreement and all orders may be assigned, without the consent of the other party, as part of a merger or sale of all or substantially all the businesses or assets of a party.
The parties are independent contractors with respect to each other.
Enforceability and Force Majeure
If any term of this agreement is invalid or unenforceable, the other terms remain in effect. Except for the payment of monies, neither party is liable for events beyond its reasonable control, including, without limitation, force majeure events.
Money Damages Insufficient
Any breach by a party of this agreement or violation of the other party's intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach of this agreement.
No Additional Terms. MetaCX rejects additional or conflicting terms of a Customer's form-purchasing document.
Order of Precedence
If there is an inconsistency between this agreement and an order, the order prevails.
Survival of Terms
Any terms, that by their nature survive termination of this agreement for a party to assert its rights and receive the protections of this agreement, will survive (including, without limitation, the confidentiality terms). The UN Convention on Contracts for the International Sale of Goods does not apply.
If Customer provides feedback or suggestions about the Service, then MetaCX (and those it allows to use its technology) may use such information without obligation to Customer.