THIS IS A LEGAL AGREEMENT BETWEEN CUSTOMER AND METAPRISE, INC. (“METAPRISE”). BY ACCESSING AND/OR USING THE SERVICE, CUSTOMER IS AGREEING, ON BEHALF OF AN INDIVIDUAL AND/OR A LEGAL ENTITY, TO BE BOUND BY THE TERMS OF THIS END USER SERVICE AGREEMENT. THE ORDER (AS DEFINED BELOW), IF ANY, AND THIS END USER SERVICE AGREEMENT COMPRISE THE “AGREEMENT” HEREUNDER.
1.1 “Customer” means the legal entity or individual that accesses the Service or enters into an Order.
1.2 “Customer Account” means an account for Customer that is required to access and utilize the Service.
1.3 “Customer Content” means any data, materials or information uploaded to Customer’s account for storage in Customer’s Account.
1.4 “Fees” means all fees charged by Metaprise for access to and use of the Service.
1.7 “Service” means the generally available Metaprise software-as-a-service offerings, including any components provided with them and Updates thereto. Metaprise may update the Service at any time in its sole discretion.
1.8 “Taxes” means all applicable transactional taxes on Service (including, but not limited to, withholding tax, sales tax, Service tax, value-added tax (VAT), goods and Service tax (GST) and tariffs and/or duties) imposed by any government or collecting agency based on the Service. Taxes shall not include those taxes based on Metaprise’ net income and/or those taxes for which Customer has provided a valid tax-exemption certificate.
1.9 “Updates” means any corrections, bug fixes, new features or functions added to or removed from the Service, but not any new Service version(s) that Metaprise markets and sells separately.
1.10 “User” means any authorized user of Customer.
2.1 Right to Access and Use the Service. Subject to the terms of this Agreement, Metaprise grants to Customer a limited, personal, non-exclusive, non-transferable, non-sublicensable right to access and use the Service during the term specified in an Order. Customer may use the Service only for its business and professional purposes as expressly set forth herein. Customer shall, at all times, use the then-current version of the Service, including any Updates, as made available by Metaprise. Metaprise (or its licensors) reserve all rights not expressly granted to Customer herein. For any technical issues that arise with use of the Service, Customer may contact email@example.com.
2.2 Limitations on Use. Except to the extent permitted by applicable law, Customer agrees, on behalf of itself and its Users, not to (i) modify, distribute, prepare derivative works of, reverse engineer, reverse assemble, disassemble, decompile or attempt to decipher any code relating to the Service and/or Metaprise IP (defined below), (ii) access or use the Service in a manner that abuses or disrupts the Metaprise networks, security systems, User accounts or the Service or attempt to gain unauthorized access to any of the above through unauthorized means, (iii) transmit through or post on the Service any material that is deemed abusive, harassing, obscene, slanderous, fraudulent, libelous or otherwise unlawful, (iv) market, offer to sell and/or resell the Service, except pursuant to a Metaprise resale program, (v) transmit through or post on the Service any material that may infringe the intellectual property rights or other rights of third parties, including, without limitation, trademarks, copyrights, data privacy rights or rights of publicity, (vi) transmit or post on the Service any material that contains software viruses or other harmful or deleterious computer code, files or programs, (vii) use the Service directly or indirectly for competitive benchmarking or other competitive analysis, unless permitted under applicable law, (viii) use or access the Service or permit a User to use or access the Service in a manner that violates the terms of this Agreement, or (ix) make any representations with respect to Metaprise or this Agreement.
2.3 Violations of Limitations on Use. If Customer becomes aware of or receives a notice from Metaprise that any Customer Content or any User’s access to or use of Customer Content or the Service violates Section 2.2, Customer will take immediate action to remove the applicable part of the Customer Content or to suspend the User’s access to the Service, as applicable. Metaprise may ask Customer to remediate the violation, and if Customer fails to comply with such request, Metaprise may suspend the Service pursuant to Section 2.8.
2.4 Proprietary Rights. Metaprise, or its licensors, have and retain all right, title and interest in and to any Metaprise pre-existing intellectual property (“Metaprise IP”), including, without limitation, the Service, and any intellectual property rights related thereto.
2.5 Feedback. At times, Metaprise and its service providers may collect and analyze usage patterns, User feedback and other information to improve and enhance the Service (collectively, “Feedback”). Customer hereby grants Metaprise a non-exclusive, perpetual, irrevocable, royalty-free, transferable, worldwide right and license, with the right to sublicense, to use, reproduce, perform, display, disclose, distribute, modify, prepare derivative works of, and otherwise exploit any Feedback without restriction in any manner, and to make, use, sell, offer to sell, import and export any product or service that incorporates the Feedback. No other rights with respect to the Service, any related Metaprise product or any related intellectual property rights are implied.
2.6 Open Source Software. Customer may receive Open Source Software when Customer uses the Service. Any such Open Source Software is made available under the applicable open source licenses.
2.7 Third Party Services. The Service may be linked to, integrate with or provide the ability for Customer or Users to access third party sites or applications (“Third Party Services”). Customer or Users’ use of or reliance on any Third Party Services is at Customer’s or its Users’ own risk. Metaprise is not responsible for the legality, quality, accuracy, reliability or availability of and does not make any representations or warranties regarding such Third Party Services. Customer’s use of any Third Party Service is governed solely by the terms relating thereto and Customer is responsible for accepting and complying with any such terms. Metaprise reserves the right to suspend or terminate any Third Party Service at any time. Metaprise will use commercially reasonable efforts, to the extent practical, to provide reasonable notice of that suspension or termination.
2.8 Suspension of Service. Metaprise may temporarily suspend the Service if Metaprise determines, in its sole discretion, that (i) Fees are not received within thirty (30) days from their due date, (ii) Customer or its Users use of the Service is in breach of this Agreement, (iii) Customer failed to timely address Metaprise’ request to take action pursuant to Section 2.3, (iv) Customer’s use of the Service poses a security risk to the Service or to other users of the Service, or (v) suspension is required pursuant to a subpoena, court order or other legal process. Metaprise will notify Customer of any such suspension, if permitted by applicable law or unless Metaprise reasonably determines that providing such notice presents a risk of harm to the Service, or to any person or property. Customer will remain responsible for all Fees incurred before or during any suspension. Metaprise’ right to suspend Customer’s or its Users’ right to access or use the Service is in addition to Metaprise’ right to terminate this Agreement pursuant to Sections 4.3 and 5.
CUSTOMER CONTENT AND CUSTOMER ACCOUNTS.
3.2 Ownership of Customer Content. Customer retains all rights to any and all of its Customer Content, subject to a non- exclusive, worldwide, royalty-free, license which Customer grants to Metaprise to use and access the same as necessary to provide the Service. Customer shall at all times retain a current copy of Customer Content outside the Service for backup and archival purposes. If Metaprise reasonably believes a problem with the Service may be attributable to Customer Content or Customer or its Users’ use of the Service, Customer shall cooperate with Metaprise to identify the source of and to resolve the problem. Customer shall comply with all intellectual property laws and obligations related to the Customer Content, as well as all legal duties applicable to Customer by virtue of using the Service, including providing all required information and notices and obtaining all required consents to use the Customer Content in connection with the Service.
3.4 Customer Accounts. Customer is solely responsible for (i) the configuration of Customer’s Account, (ii) the operation, performance and security of Customer’s equipment, networks and other computing resources used to connect to the Service, (iii) ensuring all Users exit or log off from the Service at the end of each session, (iv) maintaining the confidentiality of Customer’s Account(s), User IDs, conference codes, passwords and/or personal identification numbers used in conjunction with the Service, and (v) all uses of the Service that occur using Customer’s password or account. Metaprise reserves the right to suspend the Service or terminate this Agreement if Customer misuses or otherwise shares login information among Users. Customer will notify Metaprise immediately of any unauthorized use of its Customer Account or any other breach of security. Ownership of Customer’s Account is directly linked to the individual or entity that completes the registration process for the account. Customer acknowledges that Metaprise will rely on the information provided for issues arising with the Customer Account. Metaprise reserves the right to review Customer’s Account to the extent necessary to confirm compliance with this Agreement and to terminate or suspend Customer’s access for overuse and/or misuse.
3.5 Customer Account Access/Instructions. Customer and its Users will have access to their own Customer Content. Metaprise will not disclose a customer’s content to any other customer at any time. Customer agrees that Metaprise may rely on instructions given by Customer either through the account dashboard or via email from the address on file for the Customer Account holder. Metaprise has no responsibility for any spoofed or otherwise fraudulent email instructions relating to Customer’s Account. Customer agrees that the Customer Account owner user name and/or other alias of a sender contained in an email is legally sufficient to verify the sender’s identity and the authenticity of the communication to Metaprise and establishes the account owner as its originator without further investigation or verification by Metaprise.
ORDERS, FEES AND PAYMENT
4.1 Orders. Customer’s initial subscription to the Service shall automatically renew for periods of one year each, unless Customer provides Metaprise with a written notice of non-renewal at least thirty (30) days prior to the end of the then-current subscription term. All Orders, including auto renewals, are subject to acceptance by Metaprise in its discretion. All Customer Account information provided by or on behalf of Customer must be current, complete and accurate, and Customer is responsible for keeping such information updated. Order information is subject to automatic processing by Metaprise for the purposes of managing Customer’s Account.
4.2 Fees, Taxes and Payment. Customer is responsible for all Fees and Taxes. Customer agrees to pay for any overage in excess of permitted use levels set forth in an Order. Fees may increase upon Service renewals, but shall be quoted upon request, and invoiced sufficiently in advance, such that Customer may choose to let the Service expire. If Customer fails to pay Taxes, Customer agrees to reimburse Metaprise for any such Taxes assessed against Metaprise and to indemnify and hold Metaprise harmless against any other claim, liability and/or penalties resulting therefrom. All purchases are non-cancelable, with no right to a refund, except as expressly provided in this Agreement. All Fees shall be payable thirty (30) days from receipt of invoice.
4.3 Late Payments. Metaprise reserves the right, in its discretion, to (i) suspend or terminate the Service or any portion thereof for non-payment of Fees, and (ii) impose a charge to restore archived data from delinquent accounts.
TERM AND TERMINATION.
5.1 Term. The terms of this Agreement shall apply for the period of set forth under accepted Orders, including auto renewals.
5.2 Termination for Cause. Either party may terminate an Order and/or this Agreement if the other party materially breaches any of its obligations thereunder (and/or hereunder), and, if the breach is capable of cure, fails to cure the breach within thirty (30) days of receipt of written notice from the non-breaching party. Either party may also immediately terminate this Agreement if the other party becomes insolvent or bankrupt, is liquidated or dissolved or ceases substantially all of its business.
5.3 Effect of Termination. Upon termination of this Agreement or applicable Order, Customer will immediately discontinue all access to and use of the Service. Customer shall have thirty (30) days to download Customer Content after termination and must contact Metaprise technical support for download access and instructions. All terms that by their nature extend beyond expiration or termination shall survive.
COMPLIANCE WITH LAWS. In connection with access to and use and performance of the Service under this Agreement, each party agrees to comply with all applicable laws, rules and regulations including, but not limited to, U.S., foreign and international import and export controls and economic sanctions laws and regulations and data protection and privacy laws and regulations. Without limiting the generality of the foregoing, Customer shall provide the relevant persons and/or participants with all information or notices Customer is required by applicable privacy and data protection laws and regulations to provide and, if necessary, obtain the consent of or provide choices to such persons and/or participants as required.
DISCLAIMER. METAPRISE AND ITS LICENSORS DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, STATUTORY OR IMPLIED THAT ARE NOT EXPLICITLY STATED HEREIN. EXCEPT AS EXPLICITLY STATED HEREIN, THE SERVICE IS MADE AVAILABLE “AS IS” AND “AS AVAILABLE” AND METAPRISE DOES NOT REPRESENT OR WARRANT THAT (I) THE SERVICE OR METAPRISE IP OR TECHNOLOGY (OR ANY PORTION THEREOF) OR THE USE THEREOF WILL BE SECURE, TIMELY, ACCURATE, COMPLETE, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (II) THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, (III) ANY CUSTOMER CONTENT WILL BE ACCURATE, RELIABLE OR FREE FROM LOSS, OR (IV) THE SERVICE OR THE INFRASTRUCTURE THAT MAKES IT AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. METAPRISE AND ITS LICENSORS HEREBY DISCLAIM TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. METAPRISE SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE CONTROL OF METAPRISE.
8.1 Indemnification by Metaprise. Metaprise shall defend at its sole expense, indemnify and hold harmless (collectively, “Indemnify”) Customer and its and their parents, subsidiaries, affiliates, officers, directors, employees and agents (“Related Parties”) from and against any and all claims, costs, damages, losses, liabilities, penalties, fines and expenses (“Liabilities”) arising out of or in connection with an unaffiliated third party’s claims or government action (“Claims”) alleging that Customer’s use of the Service in accordance with this Agreement infringes the intellectual property rights of a third party; provided that, such indemnification does not apply to the extent that Claims arise from (i) the infringement or misappropriation by any Customer intellectual property, Customer Content or other materials or information provided by Customer to Metaprise, (ii) the combination, operation or use of the Service with any product or service not provided or authorized in writing by Metaprise, or (iii) any third party systems, technology, materials or information (“Infringement Claim”).If Customer’s use of the Service is, or in Metaprise’ opinion, is likely to be, enjoined as a result of an Infringement Claim, Metaprise shall, at its sole option and expense, (a) procure for Customer the right to continue to use the Service as contemplated herein, or (b) replace or modify the Service to make its use non-infringing without material degradation in performance or a material reduction in functionality and notify Customer to discontinue use of the prior version, which Customer shall do immediately. If options (a) and (b) above are not reasonably available, Metaprise may, in its sole discretion and upon written notice to Customer, terminate this Agreement, cancel access to the Service and refund to Customer any prepaid,unused Fees.
THE FOREGOING STATES METAPRISE SOLE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY WITH RESPECT TO ANY INFRINGEMENT CLAIM HEREUNDER.
8.2 Indemnification by Customer. Except for Infringement Claims, Customer agrees to indemnify Metaprise and its Related Parties against any Liabilities arising out of or in connection with any Claims resulting from (i) Customer’s or its Users’ use of the Service, and/or (ii) Customer intellectual property and/or Customer Content.
LIMITATION ON LIABILITY. IN NO EVENT SHALL METAPRISE BE LIABLE HEREUNDER FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, BUSINESS INTERRUPTION, COSTS OF DELAY OR FOR ANY OTHER SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR FOR LOST PROFITS REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. METAPRISE’S MAXIMUM LIABILITY FOR DIRECT DAMAGES SHALL, IN THE AGGREGATE, BE LIMITED TO THE FEES PAID OR PAYABLE TO METAPRISE HEREUNDER DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH THE CLAIM AROSE.
10.1 Confidentiality. Each party will use reasonable care to protect any Confidential Information of the other party. Each party will use Confidential Information only to perform its obligations or exercise its rights under this Agreement or an Order. Neither party will disclose any Confidential Information of the other party to any third party, except to its representatives who need-to-know and are bound by confidentiality obligations as protective as those herein. “Confidential Information” means any information of a party that should reasonably be understood to be confidential given the circumstances surrounding its disclosure. The Service shall be deemed Confidential Information of Metaprise.
10.2 Assignment. Neither party may assign its rights or delegate its duties under this Agreement either in whole or in part without the other party’s prior written consent, except that each party may assign this Agreement as part of a corporate reorganization, consolidation, merger, or sale of all or substantially all of its assets, provided that the assignee agrees to assume the assigning party’s obligations hereunder. Any attempted assignment in violation of the foregoing shall be void. This Agreement will bind and inure to the benefit of each party’s successors or permitted assigns.
10.3 Audit. Not more frequently than annually and at Metaprise’ expense, Metaprise may audit Customer’s use of the Service. If an audit reveals that Customer has underpaid fees for the Service, in addition to other remedies provided for herein, Customer shall be invoiced for such underpaid fees. If the underpaid fees exceed ten percent (10%) of the Fees paid, Customer shall also pay Metaprise’ reasonable costs of conducting the audit.
10.4 Notices. Notices under this Agreement shall be sufficient only if in writing and personally delivered, delivered by a major commercial rapid delivery courier service or delivered by email (with confirmation of receipt). For Customer, notices shall be sent to the person and contact information designated on the Order or on Customer’s Account as the Customer Account holder. For Metaprise, only email notices shall be accepted and such are to be sent to firstname.lastname@example.org with a reference stating “LEGAL NOTICE”.
10.5 Entire Agreement; Waiver. This Agreement supersedes all proposals, oral or written, all negotiations, conversations or discussions between or among Metaprise and Customer relating to the subject matter of this Agreement. Except as otherwise expressly provided herein, the observance of any provision of this Agreement may be waived only with the written consent of the waiving party. However, it is the intention of the parties that this Agreement be controlling over additional or different terms of any confirmation, invoice, or similar document, even if accepted in writing by both parties.
10.6 Heading; Severability. Headings and captions are for convenience only and are not to be used in the interpretation of this Agreement. If any provision of this Agreement is held to be illegal or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary to effectuate the intent of the parties and so that this Agreement shall otherwise remain in full force and effect and enforceable.
10.7 Choice of Law; Jurisdiction. This Agreement will be governed and interpreted in accordance with the laws of the State of New York, USA, without reference to conflicts of laws principles. The parties agree that any dispute under this Agreement shall be brought in the federal or state courts located in New York County, New York, USA and agree to submit to the exclusive jurisdiction of the federal and state courts located in New York County, New York, USA, unless applicable law requires otherwise.
10.8 Relationship of the Parties. The parties are independent contractors, and nothing in this Agreement shall be deemed to create a joint venture or partnership.
10.9 Subcontractors. Customer acknowledges that Metaprise may use third parties to operate the Service and fulfill Metaprise’s obligations hereunder. Nonetheless, Metaprise shall continue to be responsible for the performance of its obligations hereunder by any such subcontractor.
10.10 Force Majeure. Neither party will be liable for failure or delay in performing its obligations because of causes beyond its reasonable control, including without limitation acts of God, terrorism, war, riots, fire, earthquake, flood or degradation or failure of third party networks or communications infrastructure.
10.11 Modifications. From time to time, Metaprise may make changes to this Agreement and make the updated version available through the Service. If Customer does not accept the updates, neither Customer nor its Users will be able to access or use the Service and Customer will be required to deactivate its Customer Account and stop accessing and using the Service. If the updates to this Agreement are, in Metaprise’s discretion, material, Metaprise will notify Customer of such updates via email to the email address associated with the Customer Account. By continuing to access and use the Service after the posted effective date of any updated version, Customer is representing that it agrees to the updates. Continued access and use includes continued access and use of the Service by Users.
10.12 Basis of Bargain. EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THIS AGREEMENT ARE MATERIAL, BARGAINED FOR BASES OF THIS AGREEMENT, AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.
Last Revised: November 21, 2018