End User License Agreement
This End User License Agreement (Agreement) constitutes a legal agreement between Metis Machine, LLC with a place of business at 103 W Main St, Charlottesville, VA 22902 (“Metis Machine”), and you as customer regarding your use of Metis Machine’s software-as-a-service (the “Platform”). “You” or “your” includes yourself and the company you represent or on behalf of which you use the Platform. Please read this EULA carefully before logging into, or uploading content to, the Platform. You may only use the Platform pursuant to this EULA. By accessing, uploading to, or otherwise using this Platform, you acknowledge that you have read, understood, and agree to be bound by this EULA. If you do not accept the terms and conditions of this EULA and do not wish to be bound by the EULA, you are not permitted to use the Platform. Metis Machine provides the Platform to You for the purpose of data analytics.
TERMS AND CONDITIONS
1. SAAS SERVICES AND SUPPORT
1.1 Subject to the terms of this Agreement, Metis Machine will use commercially reasonable efforts to provide You with access to the Platform. Any use of the Portal not expressly permitted by this EULA is prohibited. As part of the registration process, You will identify a unique user name and password for Your use of the Platform. Metis Machine reserves the right to refuse registration of, or cancel passwords it deems inappropriate.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 You 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 Platform or any software, documentation or data related to the Platform; modify, translate, or create derivative works based on the Platform (except to the extent expressly permitted by Metis Machine or expressly authorized within the Platform); use the Platform for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels; intentionally upload, transmit, post, email or otherwise make available on the Platform, any credit card numbers, any personally identifiable information, or any other content or material that (A) is false, inaccurate, unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, discriminatory, invasive of another’s privacy, libelous and/or otherwise objectionable; (B) infringes any third party’s intellectual property; or (C) contains viruses, worms, Trojan horses, back doors or trap doors, corrupted files, or any other similar software or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.
2.2 Further, You may not remove or export from the United States or allow the export or re-export of the Platform, software data, 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 Platform 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.
2.3 You represent, covenant, and warrant that You will use the Platform only in compliance with Metis Machine’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. You hereby agree to indemnify and hold harmless Metis Machine against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Your use of Platform. Although Metis Machine has no obligation to monitor Your use of the Platform, Metis Machine may do so and may prohibit any use of the Platform it believes may be (or alleged to be) in violation of the foregoing.
2.4 You shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Platform, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). You shall also be responsible for maintaining the security of the Equipment, Your account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Your account or the Equipment with or without Your knowledge or consent. You agree to keep your login and password confidential, and not to share them with any organization or individual. In the event you have knowledge of or suspect that the security of a login or password has been compromised, you agree to notify Metis Machine immediately.
2.5 Metis Machine may, without notice and at any time during reasonable business hours, but not more than once every twelve months, either on its own or through a duly authorized representative, conduct an audit of Your use of the Portal to ensure that You are complying with the terms of this Agreement.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 You (the “Receiving Party”) understands that Metis Machine (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 Metis Machine includes non-public information regarding features, functionality and performance of the Platform. The Receiving Party agrees: (i)to take reasonable precautions to protect such Proprietary Information, and (ii)not to use except as permitted 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 rightfully disclosed to it without restriction by a third party, or (c)was independently developed without use of any Proprietary Information of the Disclosing Party or (d)is required to be disclosed by law.
3.2 You shall own all right, title and interest in and to the Your Data. Metis Machine shall own and retain all right, title and interest in and to (a) the Platform, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Platform or support, (c) any de-identified, anonymized, or aggregate data that is based on or derived from the Your Data whether or not provided to You as part of the Platform or any output, and (d) all intellectual property rights related to any of the foregoing.
3.3 Notwithstanding anything to the contrary, Metis Machine shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Your Data and data derived therefrom), and Metis Machine will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Metis Machine offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. For the avoidance of doubt, Metis Machine will not disclose Your Data in a manner that identifies You, except as permitted under this Agreement.
3.4 Metis Machine shall own all right, title, and interest in and to the Services and the Software, including without limitation, all inventions, know-how, methodologies, algorithms, and other intellectual property rights contained in or derived from the Platform (the “Metis Machine IP”) and You will have no right or license to the Metis Machine IP except the right of access to the Platform expressly granted in Section 1 of this Agreement.
4. PAYMENT OF FEES
4.1 You will pay Metis Machine the applicable fees described in Your registration to access the Platform in accordance with the terms of this Agreement (the “Fees”). If Your use of the Platform exceeds the Service Capacity set forth in your registration or otherwise requires the payment of additional fees (per the terms of this Agreement), You will be billed for such usage and You agree to pay the additional fees in the manner described in this Agreement. Metis Machine reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or thencurrent renewal term, upon notice to You (which may be sent by email or through the Platform). If You believe that Metis Machine has billed You incorrectly, You must contact Metis Machine 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.
4.2 Metis Machine may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Metis Machine thirty(30) days after the mailing date of the invoice. 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. You shall be responsible for all taxes associated with Services other than U.S. taxes based on Metis Machine’s net income.
5. TERM AND TERMINATION
5.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the registration, 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.
5.2 In addition to any other remedies it may have, Metis Machine may also suspend access to the Platform or terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if You materially breach any of the terms or conditions of this Agreement. You will pay in full for access to the Platform up to and including the last day on which You have access to the Platform. Upon any termination for breach of this Agreement, You will not be entitled to repayment of any prepaid Fees. Metis Machine will make Your Data available to You for electronic retrieval for a period of thirty (30) days, but thereafter Metis Machine may, but is not obligated to, delete Your 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.
6. WARRANTY AND DISCLAIMER
Metis Machine shall use reasonable efforts consistent with prevailing industry standards to maintain the Platform in a manner which minimizes errors and interruptions. The Platform may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Metis Machine or by third-party providers, or because of other causes beyond Metis Machine’s reasonable control, but Metis Machine shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, METIS MACHINE 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 PLATFORM. METIS MACHINE PROVIDES NO WARRANTIES WITH RESPECT TO THE EQUIPMENT. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE PLATFORM IS PROVIDED “AS IS” AND METIS MACHINE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Metis Machine shall hold You 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 Metis Machine 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; Metis Machine will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Platform (i) not supplied by Metis Machine, (ii) made in whole or in part in accordance with Your specifications, (iii) that are modified after delivery by Metis Machine, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where You continue allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Your use of the Platform is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Platform is held by a court of competent jurisdiction to be or is believed by Metis Machine to be infringing, Metis Machine may, at its option and expense (a) replace or modify the Platform to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, or (b) if the foregoing is not commercially practicable, terminate this Agreement and Your rights hereunder and provide You a refund of any prepaid, unused fees for the access to the Platform.
8. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, METIS MACHINE AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A)FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B)FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C)FOR ANY MATTER BEYOND METIS MACHINE’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY YOU TO METIS MACHINE FOR USE OF THE PLATFORM UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT METIS MACHINE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
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 You except with Metis Machine’s prior written consent. Metis Machine 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. No agency, partnership, joint venture, or employment is created as a result of this Agreement and You does not have any authority of any kind to bind Metis Machine 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. 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 Commonwealth of Virginia without regard to its conflict of laws provisions.