- The ProcessMetric Service is a hosted set of software that allows for customizable electronic forms, work flows, and related reporting solutions.
This Agreement governs Your use of the ProcessMetric online software solutions identified during the ordering process, collectively the “Service.” You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by ProcessMetric regarding future functionality or features. ProcessMetric reserves the right to change, add, and remove features and functionality to the Service.
1. License Grant & Restrictions
1.1 Subscription to the Service. Subject to the terms of this Agreement, ProcessMetric hereby grants to You a non-sublicensable, non-transferable, non-exclusive subscription for Your use of the Service by the number of Users as specified in an associated quote or invoice, in accordance with the Documentation and solely for Your internal business purposes. User subscriptions are for designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former users who no longer require ongoing use of the Service. ProcessMetric and its licensors reserve all rights not expressly granted to You in this Agreement. You may allow Your Affiliates access and use of the Service. You are solely liable and responsible for Your Affiliates’ access and use of the Service and compliance with the terms and conditions of this Agreement.
1.2 Additional Use. If You wish to add additional Users (“Additional Use”), You should contact ProcessMetric and ProcessMetric shall make the Service available for the Additional Use on the terms and conditions set forth in this Agreement. With respect to Additional Use: (i) the term of any additional Users’ access to the Service will be coterminous with the preexisting subscription term (either initial term or renewal term), and (ii) You will be responsible for any additional fees for any Additional Use exceeding the authorized number of Users.
1.3 Restrictions. You shall not (i) license, sublicense, sell, resell, use as a service bureau, or otherwise use the Service for a third party’s benefit unless such use has been authorized by ProcessMetric; (ii) transfer, assign, distribute or otherwise commercially exploit or make the Service, ProcessMetric’s System or Content available to any third party not authorized by ProcessMetric; (iii) modify or make derivative works based upon the Service or the Content; (iv) create Internet “links” to the Service or “frame” or “mirror” any Content on any other server or wireless or Internet-based device; (v) reverse engineer or decompile the Service or ProcessMetric System; (vi) interfere with or make use of the Service in any manner not consistent with the Documentation, or (vii) access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes. Do not access or use the Service if you are a competitor of ProcessMetric.
2. Your Responsibilities
You are responsible for all activity occurring under Your accounts, and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with Your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You will not attempt to or use Your access to the Service to knowingly interfere with or disrupt the integrity or performance of the Service or the data contained therein. You are responsible for disabling or enabling Service features using the Service’s settings page that grants and/or removes features and functionality either globally or or on a per User basis. You are responsible for configuring the Service to your use case, and for understanding the Service’s features that are granted or disabled either globally or on a per User basis.
3. Customer Data
You are solely responsible for Customer Data including without limitation the accuracy, quality, integrity, legality, reliability, appropriateness of the foregoing, and obtaining any Intellectual Property Rights ownership or right to use the foregoing. You are solely liable and responsible for the results and outcomes of your use of the Service. You have the ability to choose with whom you share Customer Data, both internally and externally. You are solely responsible and liable for the choices made
4. Support, Third Party Apps, Free Apps
4.1 Support. Currently, no support or maintenance is offered for the Service. You may contact ProcessMetric to inquire about professional services, including services to assist with the exportation of Customer Data.
4.2 Configuration, Third Party Technology or Services. You acknowledge that the Service and its features and functionality are dependent on Your proper configuration of ProcessMetric solutions, the availability of and proper performance third party apps and services, and that ProcessMetric is not liable for performance issues or downtime of the Service to the extent caused by such factors.
5. Intellectual Property Ownership
5.1 ProcessMetric. ProcessMetric and its licensors own all rights, title and interest, including all related Intellectual Property Rights, in and to the ProcessMetric System, the Content and the Service, and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by You or any other party relating to the Service. The ProcessMetric name, the ProcessMetric logo, and the product names associated with the Service are trademarks of ProcessMetric or third parties.
5.2 Customer. You retain all right, title and interest in and to the Customer Data. You grant to ProcessMetric all necessary licenses and rights in and to Customer Data solely as necessary for ProcessMetric to: (a) provide the Service to You, (b) aggregate and de-identify Customer Data for ProcessMetric’s business purposes, or (c) to comply with applicable law.
6. Fees, Billing, Renewal
6.1 Fees. Fees for the initial term of the Service are described on ProcessMetric’s website or in in an associated ProcessMetric quote or invoice. Any renewal charge will be based on the then-current fees. ProcessMetric can modify the prices by providing You at least 30 days prior notice before the next renewal term of the Agreement. All fees due are payable in U.S. Dollars. ProcessMetric’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on ProcessMetric’s income.
6.2 Billing; Payment. ProcessMetric may issue an invoice to You on or about the Effective Date and before the subsequent anniversary of the Effective Date for renewal terms as specified in the associated ProcessMetric quote or invoice. ProcessMetric may require You to pay for the Service with a valid credit card and You hereby authorize ProcessMetric to charge such credit card for all Services for the initial subscription term and any renewal subscription term(s). Such fees shall be paid either monthly or annually in advance. ProcessMetric will automatically charge your credit card on or about the anniversary of the Effective Date unless You terminate the Agreement pursuant to this Agreement. If a quote or invoice specifies that payment will be by a method other than a credit card, ProcessMetric will invoice You in advance or otherwise in accordance with the quote or invoice. Unless otherwise stated, fees are due upon receipt of invoice. You are responsible for providing complete and accurate billing and contact information and notifying ProcessMetric of any changes to such information. All payment obligations are non-cancelable and all amounts paid are nonrefundable, except as expressly set forth in the Agreement to the contrary. If You add Additional Users to the Service, allow use of the Service by more than the paid-for number of Users in excess of the allowance associated with Your subscription, ProcessMetric will invoice You for the additional applicable fees.
6.3 Non-Payment. In addition to any other rights granted to ProcessMetric herein, ProcessMetric reserves the right to suspend Your access to and use of the Service if You fail to pay any undisputed amount owed on or before its due date. Overdue amounts are subject to a late charge of 1.0% per month, or the maximum permitted by law, whichever is less, plus all expenses of collection. If You or ProcessMetric initiates termination of this Agreement, You will be obligated to pay the balance due on Your account.
This Agreement commences on the Effective Date and will continue for the period of time chosen by Yyou in the order process (“Initial Term”) from the Effective Date unless terminated earlier as allowed in this Agreement. Upon the expiration of the Initial Term, the term of this Agreement will automatically extend for successive terms of 1 year at ProcessMetric’s then-current fee for the chosen service program provided that either party may terminate this Agreement or reduce the number of seats, effective upon the expiration of the Initial Term or the then-current extension period, by notifying the other party in writing at least 30 business days prior to the expiration of the Initial Term or then-current extension term, as applicable. In the case of free trials, notifications provided through the Service indicating the remaining number of days in the free trial shall constitute notice of termination. ProcessMetric reserves the right to terminate any trial period, at any time without notice.
8. Suspension; Termination for Cause
If You are in breach of this Agreement, ProcessMetric may suspend Your access to and use of the Service until You have cured the breach. Additionally, either party may terminate this Agreement upon written notice if the other party materially breaches the Agreement and does not cure such breach within 30 days after written notice of such breach. Upon the termination of this Agreement for any reason: (a) any amounts owed to ProcessMetric by You under this Agreement before such termination will become immediately due and payable, and (b) ProcessMetric will terminate Your access to or use of the Service. The rights and duties of the parties under Sections 2, 3, 5-13, 15, 16, and 17 will survive the termination or expiration of this Agreement. In no event will termination relieve You of Your obligation to pay any fees payable to ProcessMetric for the period prior to the effective date of termination.
9. Representations & Warranties
9.1 Service Warranty. ProcessMetric represents that the Service will operate in conformance with the Documentation in all material respects. In the event of any breach of the representation, as ProcessMetric’s sole obligation and your sole and exclusive remedy, ProcessMetric will use commercially reasonable efforts to fix the non-conformance.
9.2 Mutual Warranty. Each party represents and warrants that it has the legal power and authority to enter into this Agreement.
9.3 Data Warranty. You represent and warrant that You own or have obtained all rights, consents, permissions, or licenses necessary to allow the Service access to, or possession, manipulation, processing, or use of the Customer Data.Disclaimer of
EXCEPT AS SET FORTH IN SECTION 9.1, PROCESSMETRIC AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT, AND THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN “AS IS, AS-AVAILABLE” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY PROCESSMETRIC AND ITS LICENSORS.
11.1 Your Indemnity. You shall indemnify and hold ProcessMetric, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of, or in connection with (a) Customer Data, or (b) a claim arising from or related to your use of the Service in breach of this Agreement.
11.2 Procedure. A party seeking indemnification under this Section 11 will (a) give written notice of the claim promptly to the other party; (b) give the other party sole control of the defense and settlement of the claim; and (c) provide to the other party all available information and assistance.
12. Limitation of Liability
EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, OR BREACH OF ITS OBLIGATIONS IN SECTION 13, NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY YOU HEREUNDER IN THE MOST RECENT SUBSCRIPTION TERM PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER IN THE 24 MONTHS PRECEDING THE FIRST INCIDENT. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 6.
EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, OR BREACH OF ITS OBLIGATIONS IN SECTION 13, IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE, OR THIS AGREEMENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13.1 Confidential Information. Each party (the “Disclosing Party”) may from time to time disclose to the other party (the “Receiving Party”) certain information regarding the business, products, or services of the Disclosing Party and its suppliers, including technical, marketing, financial, employee, planning, and other confidential or proprietary information, including information that the Receiving Party knew or should have known, under the circumstances, was considered confidential or proprietary by the Disclosing Party (“Confidential Information”).
13.2 Protection of Confidential Information. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose other than exercising its rights or exercising its obligations under this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of the Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty under this Section 13.2. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
13.3 Exceptions. The Receiving Party’s obligations under Section 13.2 with respect to any Confidential Information of the Disclosing Party will not apply if such information: (a) was already known to the Receiving Party without restriction at the time of disclosure by the Disclosing Party; (b) was disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) was independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under the Agreement in connection with a legal proceeding; or (iii) required by law or by the order of a court of similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s request and expense, in any lawful action to contest or limit the scope of such required disclosure. Disclosure pursuant to Section 13.3(iii) shall not render Confidential Information as non-confidential or remove such Confidential Information from the obligations of the confidentiality obligations set forth in this Section 13.
13.4 Return of Confidential Information. The Receiving Party will return to the Disclosing Party or use reasonable efforts to destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control promptly upon the written request of the Disclosing Party upon the expiration or termination of the Agreement. The Receiving Party will certify in writing signed by an officer of the Receiving Party that it has fully complied with its obligations under this Section 13.4.
14. Assignment; Change in Control
This Agreement may not be assigned by either party without the prior written approval of the other party, (such approval not to be unreasonably withheld) except in connection with (i) a merger, consolidation, or similar transaction involving (directly or indirectly) a party, (ii) a sale or other disposition of all substantially all of the assets of a party, or (iii) any other form of combination or reorganization involving (directly or indirectly) such party. Any purported assignment in violation of this section shall be void.
15. Export & Anti-Corruption
The Services, Content, other technology ProcessMetric makes available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit Users to access or use any Service or Content in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation. You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of ProcessMetric’s employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify ProcessMetric’s legal department at [email protected]
This Agreement shall be governed by Colorado law without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Denver, Colorado USA. No text or information set forth on any other purchase order, preprinted form or document (other than an associated ProcessMetric quote or invoice, if applicable) shall modify the terms and conditions of this Agreement. In the event of a conflict between the terms in the main body of this Agreement and the terms in any ProcessMetric quote or invoice, the quote or invoice will prevail and control. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. The parties are independent contractors and this Agreement does not create any joint venture, partnership, employment, or agency relationship between You and ProcessMetric. The failure of ProcessMetric to enforce any right or provision in this Agreement shall not constitute a waiver of that or any future right or provision unless acknowledged and agreed to by ProcessMetric in writing. This Agreement, together with any associated ProcessMetric quote or invoice, comprises the entire agreement between You and ProcessMetric and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein, including any previously executed electronic version of a ProcessMetric subscription agreement, commonly known as a clickthrough or EULA (“Clickthrough”). All notices, required or permitted under this Agreement must be delivered in writing by courier, facsimile, or by certified or registered mail (postage prepaid and return receipt requested) to the other party at its address set forth in this Agreement. Notice hereunder will be effective (a) upon receipt or 3 days after being deposited in the mail as required above with the postal authority of the receiving party’s country, whichever occurs sooner, or (b) if delivered by email, upon receipt of email if delivered by email with a fax confirmation sent on the same day. Any notice to ProcessMetric will be delivered to ProcessMetric at the email addres “[email protected]”. Any delay in or failure of performance by either party under this Agreement will not be considered a breach of this Agreement and will be excused to the extent caused by any Force Majeure.
As used in this Agreement the following terms have these meanings:
“Affiliate” means any entity (now existing or hereafter formed or acquired), which, directly or through one or more intermediaries, controls, is controlled by, or is under common control with, another entity. Ownership of fifty percent (50%) or more of the voting stock, membership interests, partnership interests, or other equity of an entity shall be deemed to be in control over such entity.
“Business Hours” shall mean the hours between 7 a.m. and 6 p.m., Mountain Time, Monday through Friday in North America, and between 9 a.m. and 5 p.m. MT, excepting recognized national holidays.
“ProcessMetric System” means the hardware, software, network equipment, and other technology used by ProcessMetric to deliver the Service, and any other of ProcessMetric’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to You by ProcessMetric in providing the Service.
“Content” means the visual information, documents, software, products and services contained or made available to You in the course of using the Service, other than Customer Data.
“Customer Data” means any information (including without limitation personally identifiable information) provided, made available, or submitted by You to the Service.
“Documentation” means ProcessMetric’s published documentation, knowledge base articles and other content, and technotes that are generally made available by ProcessMetric to all customers.
“Force Majeure” means events or circumstances beyond a party’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving ProcessMetric’s employees), telecommunications or network failures or delays, service or computer failures involving services, hardware, or software not within ProcessMetric’s possession or reasonable control, and acts of vandalism (including network intrusions and denial of service attacks).
“Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
“Support Services” means technical assistance provided by ProcessMetric personnel only to Your named administrator(s) relating to Support Incidents.
“User(s)” means Your named employees, representatives, consultants, contractors, partners, or agents who are authorized to use the Service by You through the user management facility of the Service.