1. PLEASE READ THESE TERMS & CONDITIONS (“TERMS”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY METAPHOR DATA, INC. (“Metaphor”). BY MUTUALLY EXECUTING ONE OR MORE ORDER FORMS WITH METAPHOR WHICH REFERENCE THESE TERMS (EACH, AN “ORDER FORM”), YOU (“CUSTOMER”) AGREE TO BE BOUND BY THESE TERMS (TOGETHER WITH ALL ORDER FORMS, THE “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS. IN ADDITION, ANY ONLINE ORDER FORM WHICH YOU SUBMIT VIA METAPHOR’S STANDARD ONLINE PROCESS AND WHICH IS ACCEPTED BY METAPHOR SHALL BE DEEMED TO BE MUTUALLY EXECUTED. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.
2. Order Forms; Access to the Services.
Upon mutual execution, each Order Form shall be incorporated into and form a part of the Agreement. For each Order Form, subject to Customer’s compliance with the terms and conditions of this Agreement (including any limitations and restrictions set forth on the applicable Order Form) Metaphor grants Customer a nonexclusive, limited, personal, non sublicensable, non transferable right and license to internally access and use the Metaphor product(s) and/or service(s) specified in such Order Form (collectively, the “Services”) during the applicable Order Form Term (as defined below) for the internal business purposes of Customer, only as provided herein and only in accordance with Metaphor’s applicable official user documentation for such Services (the “Documentation”).
Upon payment of any applicable fees set forth in each Order Form, Metaphor agrees to use reasonable commercial efforts to provide standard implementation assistance for the Services only if and to the extent such assistance is set forth on such Order Form (“Implementation Assistance”). If Metaphor provides Implementation Assistance in excess of any agreed-upon hours estimate, or if Metaphor otherwise provides additional services beyond those agreed in an Order Form, Customer will pay Metaphor at its then-current hourly rates for consultation.
4. Support & Maintenance.
Subject to Customer’s payment of all applicable fees, Metaphor will provide support, maintenance service, and uptime for the Services in a professional and workmanlike manner.
5. Ownership; Feedback.
As between the parties, Metaphor retains all right, title, and interest in and to the Services, and all software, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by Metaphor for the purposes of this Agreement, including any copies and derivative works of the foregoing. Any software which is distributed or otherwise provided to Customer hereunder (including without limitation any software identified on an Order Form) shall be deemed a part of the “Services” and subject to all of the terms and conditions of this Agreement. No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement. Customer may (but is not obligated to) provide suggestions, comments or other feedback to Metaphor with respect to the Services (“Feedback”). Feedback, even if designated as confidential by Customer, shall not create any confidentiality obligation for Metaphor notwithstanding anything else. Metaphor acknowledges and agrees that all Feedback is provided “AS IS” and without warranty of any kind. Customer shall, and hereby does, grant to Metaphor a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose. Nothing in this Agreement will impair Metaphor’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with any products, software or technologies that Customer may develop, produce, market, or distribute.
6. Fees; Payment.
Customer shall pay Metaphor fees for the Services as set forth in each Order Form (“Fees”). Unless otherwise specified in an Order Form, all Fees shall be invoiced annually in advance and all invoices issued under this Agreement are payable in U.S. dollars within thirty (30) days from date of invoice. Past due invoices are subject to interest on any outstanding balance of the lesser of 1.5% per month or the maximum amount permitted by law. Customer shall be responsible for all taxes associated with Services (excluding taxes based on Metaphor’s net income). All Fees paid are non-refundable and are not subject to set-off. If Customer exceeds any user or usage limitations set forth on an Order Form, then (i) Metaphor shall invoice Customer for such additional users or usage at the overage rates set forth on the Order Form (or if no overage rates are set forth on the Order Form, at Metaphor’s then-current standard overage rates for such usage), in each case on a pro-rata basis from the first date of such excess usage through the end of the Order Form Initial Term or then-current Order Form Renewal Term (as applicable), and (ii) if such Order Form Term renews (in accordance with the section entitled “Term; Termination”, below, such renewal shall include the additional fees for such excess users and usage.
Except as expressly set forth in this Agreement, Customer shall not (and shall not permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Services (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Services; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services; (iv) use the Services for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from the Services or any portion thereof; (vi) use the Services to build an application or product that is competitive with any Metaphor product or service; (vii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; (viii) bypass any measures Metaphor may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services); or (ix) “crawl,” “scrape,” or “spider” any page, data, or portion of or relating to the Services (or any information, data or content made available through the Services), whether through use of manual or automated means. Customer is responsible for all of Customer’s activity in connection with the Services, including but not limited to uploading Customer Data (as defined below) onto the Services. Customer (a) shall use the Services in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Services (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), and (b) shall not use the Services in a manner that violates any third party intellectual property, contractual or other proprietary rights.
8. Customer Data.
For purposes of this Agreement, “Customer Data” shall mean any data, information or other material provided, uploaded, or submitted by Customer to the Services in the course of using the Services. Customer shall retain all right, title and interest in and to the Customer Data, including all intellectual property rights therein. Customer, not Metaphor, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. Metaphor shall use commercially reasonable efforts to maintain the security and integrity of the Services and the Customer Data. Metaphor is not responsible to Customer for unauthorized access to Customer Data or the unauthorized use of the Services unless such access is due to Metaphor’s gross negligence or willful misconduct. Customer is responsible for the use of the Services by any person to whom Customer has given access to the Services, even if Customer did not authorize such use. Customer agrees and acknowledges that Customer Data may be irretrievably deleted if Customer’s account is ninety (90) days or more delinquent. Notwithstanding anything to the contrary, Customer acknowledges and agrees that Metaphor may (i) internally use and modify (but not disclose) Customer Data for the purposes of (A) providing the Services to Customer and (B) generating Aggregated Anonymous Data (as defined below), and (ii) freely use and make available Aggregated Anonymous Data for Metaphor’s business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing Metaphor’s products and services). “Aggregated Anonymous Data” means data submitted to, collected by, or generated by Metaphor in connection with Customer’s use of the Services, but only in aggregate, anonymized form which can in no way be linked specifically to Customer.
9. Third Party Services.
Customer acknowledges and agrees that the Services may operate on, with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (“Third Party Services”), including without limitation through integrations or connectors to such Third Party Services that are provided by Metaphor. Metaphor is not responsible for the operation of any Third Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third Party Services. Customer is solely responsible for procuring any and all rights necessary for it to access Third Party Services (including any Customer Data or other information relating thereto) and for complying with any applicable terms or conditions thereof. Metaphor does not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider and is governed by such third party’s terms and conditions.
10. Term; Termination.
This Agreement shall commence upon the date of the first Order Form, and, unless earlier terminated in accordance herewith, shall last until the expiration of all Order Form Terms. For each Order Form, unless otherwise specified therein, the “Order Form Term” shall begin as of the effective date set forth on such Order Form, and unless earlier terminated as set forth herein, (x) shall continue for the initial term specified on such Order Form (the “Order Form Initial Term”), and (y) following the Order Form Initial Term, shall automatically renew for additional successive periods of equal duration to the Order Form Initial Term (each, a “Order Form Renewal Term”) unless either party notifies the other party of such party’s intention not to renew no later than thirty (30) days prior to the expiration of the Order Form Initial Term or then-current Order Form Renewal Term, as applicable. In the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by providing written notice to the breaching party, provided that the breaching party does not materially cure such breach within thirty (30) days of receipt of such notice. Without limiting the foregoing, Metaphor may suspend or limit Customer’s access to or use of the Services if (i) Customer’s account is more than sixty (60) days past due, or (ii) Customer’s use of the Services results in (or is reasonably likely to result in) damage to or material degradation of the Services which interferes with Metaphor’s ability to provide access to the Services to other customers; provided that in the case of subsection (ii): (a) Metaphor shall use reasonable good faith efforts to work with Customer to resolve or mitigate the damage or degradation in order to resolve the issue without resorting to suspension or limitation; (b) prior to any such suspension or limitation, Metaphor shall use commercially reasonable efforts to provide notice to Customer describing the nature of the damage or degradation; and (c) Metaphor shall reinstate Customer’s use of or access to the Services, as applicable, if Customer remediates the issue within thirty (30) days of receipt of such notice. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, indemnity and limitations of liability. In the case of expiration or termination of this Agreement, upon request by Customer made before, or within [thirty (30)] days after, the effective date of expiration or termination, Metaphor shall make available to Customer a complete download of all Customer Data in a file or database format in Metaphor’s discretion. For clarity, any services provided by Metaphor to Customer, including the data export set out above, and any assistance in exporting the Customer Data, shall be billable at Metaphor’s standard rates then in effect.
Each party (“Indemnitor”) shall defend, indemnify, and hold harmless the other party, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives (collectively, the “Indemnitee”) from all liabilities, claims, and expenses paid or payable to an unaffiliated third party (including reasonable attorneys’ fees) (“Losses”), that arise from or relate to any claim that (i) in the case of Customer as Indemnitor, the Customer Data or Customer’s use of the Services infringes, violates, or misappropriates any third party intellectual property or proprietary right or violates any applicable law, or (ii) in the case of Metaphor as Indemnitor, the Services infringes, violates, or misappropriates any third party intellectual property or proprietary right. Each Indemnitor’s indemnification obligations hereunder shall be conditioned upon the Indemnitee providing the Indemnitor with: (i) prompt written notice of any claim (provided that a failure to provide such notice shall only relieve the Indemnitor of its indemnity obligations if the Indemnitor is materially prejudiced by such failure); (ii) the option to assume sole control over the defense and settlement of any claim (provided that the Indemnitee may participate in such defense and settlement at its own expense); and (iii) reasonable information and assistance in connection with such defense and settlement (at the Indemnitor’s expense). The foregoing obligations of Metaphor do not apply with respect to the Services or any information, technology, materials or data (or any portions or components of the foregoing) to the extent (i) not created or provided by Metaphor (including without limitation any Customer Data), (ii) made in whole or in part in accordance to Customer specifications, (iii) modified after delivery by Metaphor, (iv) combined with other products, processes or materials not provided by Metaphor (where the alleged Losses arise from or relate 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) Customer’s use of the Services is not strictly in accordance herewith.
EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 12, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
(i) NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY, FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL, OR INDIRECT DAMAGES, ANY LOSS OF REVENUES OR PROFITS, LOSS OF DATA OR ANY COST OF COVER ARISING OUT OF THIS AGREEMENT, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(ii) EXCEPT FOR ANY UNDISPUTED FEES DUE FROM CUSTOMER, CUSTOMER’S BREACH OF SECTION 7 (RESTRICTIONS), OR A PARTY’S INDEMNIFICATION OBLIGATIONS, NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, REGARDLESS OF THE FORM OR CAUSE OF ACTION, WHETHER IN CONTRACT OR TORT, OR THE NUMBER OF CLAIMS AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY’S LIABILITY FOR ANY CLAIM ARISING OUT OF THIS AGREEMENT WILL BE LIMITED TO THE FEES ACTUALLY PAID OR PAYABLE BY CUSTOMER FOR THE PERFORMANCE THAT IS THE SUBJECT OF SUCH CLAIM WITHIN TWELVE (12) MONTHS PRECEDING THE INITIAL INCIDENT GIVING RISE TO THE LIABILITY. THE PARTIES AGREE THAT THIS SECTION REFLECTS A REASONABLE ALLOCATION OF RISK BETWEEN THE PARTIES IN LIGHT OF THE TERMS OF THIS AGREEMENT. THIS LIMITATION OF LIABILITY WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREUNDER
(“GENERAL LIABILITY CAP”).
(iii) IN THE CASE OF DATA BREACH CLAIMS, METAPHOR’S TOTAL LIABILITY TO CUSTOMER AND ITS AFFILIATES FOR ALL CLAIMS IN THE AGGREGATE (FOR DAMAGES OR LIABILITY OF ANY TYPE) SHALL NOT EXCEED TWO TIMES (2X) THE FEES ACTUALLY PAID OR PAYABLE BY CUSTOMER FOR THE PERFORMANCE THAT IS THE SUBJECT OF SUCH CLAIM WITHIN TWELVE (12) MONTHS PRECEDING THE INITIAL INCIDENT GIVING RISE TO THE LIABILITY (“DATA BREACH CLAIMS CAP”). IN NO EVENT SHALL METAPHOR BE LIABLE FOR THE SAME EVENT UNDER BOTH THE GENERAL LIABILITY CAP AND THE DATA BREACH CLAIMS CAP. SIMILARLY, THOSE CAPS SHALL NOT BE CUMULATIVE; IF CUSTOMER (AND/OR ITS AFFILIATES) HAS ONE OR MORE CLAIMS SUBJECT TO EACH OF THOSE CAPS, THE MAXIMUM TOTAL LIABILITY FOR ALL CLAIMS IN THE AGGREGATE SHALL NOT EXCEED THE DATA BREACH CLAIMS CAP.
This Agreement represents the entire agreement between Customer and Metaphor with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and Metaphor with respect thereto. The Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law rules, and the parties consent to exclusive jurisdiction and venue in the state and federal courts located in San Francisco, California. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notices must be sent to the contacts for each party set forth on the Order Form. Either party may update its address set forth above by giving notice in accordance with this section. Except as otherwise provided herein, no modification or amendment of any provision of this Agreement shall be effective unless agreed by both parties in writing, and no waiver of any provision of this Agreement shall be effective unless in writing and signed by the waiving party. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; pandemics; epidemics; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. Neither party may assign any of its rights or obligations hereunder without the other party’s consent; provided that (i) either party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such party’s business relating to this Agreement, and (ii) Metaphor may utilize subcontractors in the performance of its obligations hereunder. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. Customer agrees to allow Metaphor to use and display Customer’s name and logo on Metaphor’s website and in Metaphor’s promotional materials to identify Customer as a customer. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees. If any provision of this Agreement is held to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches.