Numetric’s service enables users to perform data analysis. Numetric provides its services subject to the terms and conditions contained in these Terms of Service (this “Agreement”). To become eligible to use Numetric’s services under this Agreement, you must review and accept the terms of this Agreement by clicking on the “I Accept” button, signing a Numetric services order form or other mechanism provided. Please review the terms of this Agreement carefully. Once accepted, this Agreement becomes a binding legal commitment. If you have any questions, you can reach the Numetric team at firstname.lastname@example.org.
“Company” means Numetric, Inc. doing business as Numetric.
“Customer” means the individual accepting the terms of this Agreement or the entity such individual represents, as applicable.
“Customer Data” means data and other information made available to Numetric through the use of the Services under this Agreement.
“End User” means an end user of the Services. “Implementation Services” means Services related to the initial setup of the Services.
“Order Form” means the contract signed with Numetric describing the Services to be provided to Customer during the contract term.
“Services” means the services provided by Numetric to Customer under this Agreement, including all programs, features, functions and report formats, and subsequent updates or upgrades of any of the foregoing made generally available by Numetric, including without limitation the Numetric APIs and any software provided to Customer in connection with its use of the Services.
“SLA” means the service level agreement located at www.numetric.com/sla as such may be updated from time to time.
“Support Terms” means the terms of support located at www.numetric.com/support-terms as such may be updated from time to time.
“Acceptable Use Policy” means the acceptable use policy located at www.numetric.com/acceptable-use as such may be updated from time to time.
2. SaaS Services and Support
2.1 Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services in accordance with the SLA. As part of the registration process, Customer will identify an administrative user name and password for Customer’s Company account. Company reserves the right to refuse registration of or cancel passwords it deems inappropriate.ate.
2.2 Subject to the terms hereof, Company will provide Customer with reasonable technical support services in accordance with the terms set forth in the Support Terms.
3. Restrictions and Responsibilities
3.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels. With respect to any Software that is distributed or provided to Customer for use on Customer premises or devices, Company hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services.
3.2 Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof 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. As defined in FAR section 2.101, the Software and documentation 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.
3.3 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Company’s standard Acceptable Use Policy and all applicable laws and regulations. Customer agrees to indemnify and hold Company and its subsidiaries, affiliates, officers, agents, employees, partners and licensors harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of: (a) Content you submit, post, transmit or otherwise make available through the Service; (b) your use of the Service; (c) your connection to the Services; (d) your violation of the Agreement; or (e) your violation of any third party’s rights. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
3.4 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
3.5 Customer agrees to provide Company with all information, access and full good faith cooperation reasonably necessary to enable Company to provide the Services and Customer will perform the actions identified in the Order Form as Customer’s responsibilities.
3.6 Customer may not provide Company access to health, payment card or similarly sensitive personal information that imposes specific data security obligations for the processing of such data unless specified in the Order Form.
3.7 The Customer acknowledges and agrees that the Services require specific third-party web browsers in order to function (herein “Supported Browsers”). Certain web browsers or older versions of a web browser may be prevented from being used or have reduced functionality. As web browsers play an integral part of the overall security of the Services, Company continuously updates the inclusion and exclusion of Supported Browsers. Company is under no obligation to support any web browser other than the Supported Browsers. Any use by the Customer of a web browser other than a Supported Browser shall immediately release Company of any warranties or liability with such use. A list of Supported Browsers can be obtained upon request.
4. Confidentiality; Proprietary Rights
4.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public, 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 or (e) is required to be disclosed by law.
4.2 Customer shall own all right, title and interest in and to the Customer Data. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
5. Payment of Fees
5.1 Customer will pay Company the then applicable fees described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the “Fees”). Unless otherwise stated, all Fees are non-cancelable and non-refundable. If Customer’s use of the Services exceeds the limits set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer agrees to immediately report such additional usage to Numetric and to pay the additional fees due for periods when Customer exceeded the scope of its Order Form in the manner provided herein. If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer success group at email@example.com.
5.2 Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company in accordance with the terms set forth in the Order Form for the Services. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.
6. Term and Termination
6.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term. Numetric will invoice Customer for the Services at the list prices in effect at the time of renewal.
6.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided.
6.3 Upon any termination, Company will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days and thereafter Company will delete stored Customer Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
7. Limited Warranties and Exclusive Remedies and Disclaimer
7.1 Each of Company and Customer represents and warrants that: (a) it has the full right, power and authority to enter into and fully perform this Agreement; (b) the person signing this Agreement on its behalf is a duly authorized representative of such party who has in fact been authorized to execute this Agreement; (c) its entry herein does not violate any other agreements by which it is bound; and (d) it is a legal entity in good standing in the jurisdiction of its formation and shall continuously be in good standing in the jurisdiction of its formation.
7.2 Each of Company and Customer covenants that, at its sole respective costs and expense, it shall comply with all present and future national, state and local laws, ordinances and rules, regulations and directives and guidelines applicable to its performance or use, as applicable, of the Services including, without limitation, all data privacy and processing laws.
7.3 Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, Company does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
8.1 Company shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Company 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; Company will not be responsible for any settlement it does not approve in writing. Customer will be reimbursed for its reasonable out-of-pocket expenses incurred in providing any cooperation requested by Numetric.
8.2 Numetric shall not have any obligations under this Section 8 with respect to portions or components of the Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Company, (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 Service is not strictly in accordance with this Agreement.
8.3 If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.
9. Limitation of Liability
9.1 IN NO EVENT SHALL EITHER PARTY OR ITS LICENSORS (INCLUDING THEIR DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS AND SUPPLIERS) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES OR LOSS OF PROFITS, REVENUE, DATA OR DATA USE, EVEN IF NUMETRIC AND/OR ITS LICENSORS HAS/HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.2 EXCEPT FOR EACH PARTY’S INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS IN THIS AGREEMENT, THE AGGREGATE, CUMULATIVE LIABILITY OF EACH PARTY (INCLUDING ITS DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS AND SUPPLIERS) UNDER THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID OR PAYABLE BY CUSTOMER TO NUMETRIC DURING THE TWELVE-MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO ANY CLAIM.
10.1 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, whether by operation of law or otherwise, except that either party may assign this Agreement to its successor in the event of a merger, acquisition or sale of all or substantially all of the assets of such party or an applicable business unit. Any other purported assignment shall be void. Company may transfer and assign any of its rights and obligations under this Agreement without consent. 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 by both parties, except as otherwise provided herein.
10.2 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 Company 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.
10.3 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; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of Utah without regard to its conflict of laws provisions. Company may use Customer business entity name in promotional materials at any time during the Agreement. Without separate written consent, Company’s use of Customer’s business entity name shall be limited to reference as a “representative client” or words of similar import and shall not imply Customer’s endorsement of Services or of Company.
10.4 Neither party shall be liable to the other for its failure to perform its obligations under the Agreement, except for payment obligations, during any period in which such performance is delayed or rendered impracticable or impossible due to unforeseen circumstances beyond its reasonable control. Such events include, but are not limited to, fire, explosion, flood or other natural catastrophe, governmental legislation, acts of terrorism, orders, or regulation, strikes or labor difficulties, to the extent not occasioned by the fault or negligence of the delayed party.