IMPORTANT NOTICE: PLEASE READ THIS MESUR.IO TERMS OF SERVICE AGREEMENT (THIS “AGREEMENT”) CAREFULLY BEFORE USING ANY MESUR.IO SOFTWARE-AS-A-SERVICE. THIS AGREEMENT IS A LEGAL AGREEMENT BETWEEN MESUR.IO AND THE COMPANY, ORGANIZATION OR OTHER PERSON OR ENTITY THAT USES THE SOFTWARE-AS-A-SERVICE (THE “CLIENT”). THIS AGREEMENT HAS THE SAME EFFECT AS ANY NEGOTIATED WRITTEN AGREEMENT SIGNED BY CLIENT AND GOVERNS PERMITTED ACCESS TO AND USE OF THE SOFTWARE-AS-A-SERVICE BY CLIENT AND ANY USERS. BY CLICKING TO ACKNOWLEDGE AND AGREE TO THIS AGREEMENT, BY USING THE SOFTWARE-AS-A-SERVICE, OR BY EXECUTING THIS AGREEMENT, CLIENT ACCEPTS AND AGREES TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY, OR DO NOT HAVE AUTHORITY TO BIND CLIENT TO, THESE TERMS AND CONDITIONS THEN DO NOT USE THE SOFTWARE-AS-A-SERVICE.
These Terms of Service, together with any terms (including payment terms) in one or more Order Forms (“Order(s)”), and in any other documents or terms expressly incorporated by reference herein (collectively, the “Terms”), are a legal agreement between you and mesur.io, Inc., d/b/a mesur.io (hereafter “mesur.io”), a Delaware corporation, that govern all access to and use of mesur.io’s Services. “Services” means the services and other items mesur.io provides via the internet (the “Site”), including the on-line dashboard made available at the Site via login for viewing and analyzing Sensor Data. “Sensor Data” is data received from sensor devices configured to operate with the Services.
1. Your Account
1.1 Initiating Services. You will be provided initial access to the Services by mesur.io and will have the option of creating additional login accounts. You will create your own password, which you must use to access and use the Services. In conjunction with your login, you may be required to register by providing information about you or your company. If you do not provide the information you may be refused access to the Services. You agree that any information you provide in creating your login account is complete and accurate, and you agree to keep it up to date. For example, mesur.io provides some notices by email to your login account, and you agree to keep that email address current and valid as a method for providing notices under these Terms.
1.2 Administering Your Account. Each individual permitted to access the Services through a login account is referred to in these Terms as a “User.” Each User who accesses the Services through your login account must have a paid subscription and must be your employee, member, director, partner, affiliate, consultant, contractor or agent accessing the Services on your behalf. User subscriptions are for named Users only and cannot be shared or used by more than one User, but may be transferred to new Users from Users who no longer require ongoing use of the Services. You are responsible for maintaining the confidentiality of passwords and internal management or administration of the Services for your Users. You agree that mesur.io has no liability with regard to the use of such passwords by third parties unless such unauthorized use was the fault of, or a result of the negligence of, mesur.io. You agree to notify mesur.io promptly if you have any reason to believe that the security of your account has been compromised.
2. Data Privacy and Confidentiality
2.2 Confidentiality. “Confidential Information” means any and all information disclosed by either party (the “Discloser”) to the other (the “Recipient”), which is marked “confidential” or “proprietary” or which should reasonably be understood by the Recipient to be confidential or proprietary, and shall include, but not be limited to, all User Data, the terms and conditions of this agreement, and any information that relates to business plans, services, marketing, finances, ownership structure (including, without limitation, the ownership interests of each holder of an interest in Discloser), research, product plans, products, developments, inventions, processes, designs, drawings, engineering, formulae, markets, software (including source and object code), hardware configuration, computer programs, and algorithms of the Discloser. The Recipient hereby agrees that it will not use or disclose any Confidential Information received from the Discloser other than as expressly permitted under the terms of this agreement or as expressly authorized in writing by the Discloser. The Recipient will use the same degree of care to protect the Discloser’s Confidential Information as it uses to protect its own confidential information, but in no circumstances less than reasonable care. The Recipient will not disclose the Discloser’s Confidential Information to any person or entity other than its officers, principals, members, directors, partners, employees, advisors, accountants and subcontractors who need access to such Confidential Information and who are bound by confidentiality obligations no less restrictive than those in this agreement. The restrictions set forth in this paragraph will not apply to any Confidential Information that the Recipient can demonstrate (a) was known to it prior to its disclosure by the Discloser; (b) is or becomes publicly known through no act of the Recipient in violation of this agreement; (c) has been rightfully received from a third party that is permitted to make such disclosure without restriction; (d) is independently developed by the Recipient without use or reference to any Confidential Information; (e) has been approved for release by the Discloser’s prior written authorization; or (f) has been disclosed by court order or as otherwise required by law or regulation, provided that the party required to disclose the information provides prompt advance notice thereof, to the extent practicable, to enable the Discloser to seek a protective order or otherwise prevent such disclosure.
2.3 Anonymous Data. mesur.io may collect Anonymous Data with respect to the use of the Services, such as performance metrics and usage trends. “Anonymous Data” means data aggregated from use of the Services that does not identify or otherwise permit the identification of you or any Users or identify you in conjunction with any of your financial information or results of operations. mesur.io may use and disclose Anonymous Data for promotion, statistical analysis, market analysis, financial analysis, benchmarking and other purposes.
3. Accessing and Using the Site and Services
3.1 License Grant. Subject to all of the terms and conditions of this agreement, including your payment of any required fees, mesur.io grants you a nonexclusive, nontransferable, nonsublicensable, limited, license to use the Services during the term and for the scope of use specified in your Order. You and your authorized Users may use the Services solely for your internal business purposes or as otherwise specified in the Order.
3.2 Restrictions and Assurances. You will not, and will not enable or knowingly allow any third party to modify, copy, or otherwise reproduce the Services in whole or in part; reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code from or structure of the software used in the Services; attempt to gain unauthorized access to the Services, or perform any penetration testing or security scans of the Services; or, use the Services as a competitor or use the Services for competitive analysis. You will not provide, lease or lend the Services to any third party except as expressly authorized in this agreement; remove any proprietary notices or labels displayed on the Services; modify or create a derivative work of any part of the Services; or use the Services for any unlawful purpose. You will (1) be liable for any failure of your Users to comply with the applicable terms of this agreement; (2) use commercially reasonable efforts to prevent unauthorized access to or use of the Services through your login account; and (3) use the Services only in accordance with the Documentation and applicable laws and government regulations.
4. Our Provision of the Services
4.1 Emergency Suspension of Access. In the event that your use of the Services disrupts, or threatens to disrupt, use by other Users, mesur.io reserves the right to modify or temporarily restrict or suspend your use of the Services without liability.
4.2 Documentation. The main functions of the Services are described in the instructions and manuals made available via login at the Site or otherwise provided by mesur.io (our “Documentation”).
4.3 Technical Support. Should you require technical support, your initial support will be provided by mesur.io or a Partner, if you purchased access to the Services through such Partner. Should a Partner require assistance, mesur.io will provide it to them. Response times to technical support requests vary by the nature and severity of the issue.
4.4 Other Services from mesur.io. mesur.io may also provide other services, such as implementation and training services. Any such other services not expressly stated in this agreement are outside the scope of this agreement and only will be provided by mesur.io subject to the terms of a separate written agreement executed by the parties.
4.5 Beta Services. From time to time, mesur.io may invite you to try Beta Services at no charge. You may accept or decline any such trial in your sole discretion. Beta Services will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import. Beta Services are for evaluation purposes and not for production use, are not considered “Services” under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available. We may discontinue Beta Services at any time in our sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with a Beta Service.
5. Intellectual Property Rights. Except as expressly stated, this agreement does not grant either party any rights, implied or otherwise, to the other's intellectual property. mesur.io owns all IP Rights in the Site, Services, mesur.io’s trademarks and mesur.io Data. “IP Rights” means all current and future worldwide intellectual property rights under patent law, copyright law, trade secret law, trademark law, moral rights law, and other similar rights. mesur.io welcomes your suggestions and feedback on how to improve the Services. If you provide any suggestions, feedback, or improvements to the Site, and Services, mesur.io will have the right to use and have others use such suggestions, feedback, and improvements for any purpose. Each party hereby agrees that it will make any assignments necessary to accomplish the ownership provisions in this paragraph and will provide reasonable assistance to the other party for such purposes. The Site, Services, and mesur.io Data are commercial items. If they are being used by or on behalf of the U.S. Government, then the U.S. Government’s rights in them will be only those specified in this agreement, consistent with FAR 12.212 and DFARS 227.7202-1 through 227.7202-4, as applicable.
6. Term and Termination
6.1 Term. This agreement will terminate when (1) all of your User subscriptions under any Order have expired or been terminated, or (2) either party terminates this agreement for cause on 30 days written notice of a material breach to the other party if the breach remains uncured at the expiration of the notice period. Non-payment of any service or other fees when due to mesur.io is a material breach. If you materially breach this agreement, mesur.io may, without limitation of its other rights and remedies and upon ten days’ prior written notice, temporarily suspend your access to the Services or withhold further performance of obligations under this agreement.
6.2 Effect of Termination. Upon termination or expiration of this agreement or an Order for any reason, all applicable licenses and other rights granted to you will immediately terminate. Termination will not relieve you of the obligation to pay any fees due or payable to mesur.io prior to the effective date of termination, including annual fees, implementation fees, training fees, User subscription fees, or any other fees or payments that you has committed to under the agreement. Sections 3, 4, 8.2, 8.3, 9.2, 10, 11 and 12 will survive any termination or expiration of this agreement.
7.1 Limited Warranty. mesur.io will deliver the Services in a professional and workmanlike manner.
7.2 DISCLAIMER. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY PROVIDED HEREIN, MESUR.IO DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SERVICES, THIRD-PARTY SERVICES, OR MATERIALS PROVIDED BY MESUR.IO, WHETHER EXPRESS OR IMPLIED BY OPERATION OF LAW, REPRESENTATION STATEMENTS, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. YOU ACKNOWLEDGE AND AGREE THAT NEITHER MESUR.IO NOR ANY SERVICES, THIRD-PARTY SERVICES, OR MATERIALS PROVIDED BY MESUR.IO WILL BE CONSTRUED AS MESUR.IO PROVIDING ACCOUNTING, TAXATION, FINANCIAL, INVESTMENT, LEGAL OR OTHER ADVICE TO YOU, USERS, OR ANY THIRD PARTY. EACH PARTY WILL BE SOLELY AND INDIVIDUALLY RESPONSIBLE TO COMPLY WITH ALL LAWS AND REGULATIONS RELATING TO ITS RESPECTIVE BUSINESS OPERATIONS.
8. Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY ARISING IN ANY WAY OUT OF THIS AGREEMENT, EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE. EXCEPT IN CONNECTION WITH A MISAPPROPRIATION OF INTELLECTUAL PROPERTY OR YOUR VIOLATION OF THE LICENSE RIGHTS IN SECTION 3, THE AGGREGATE LIABILITY OF ONE PARTY TO THE OTHER FOR DAMAGES UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF THE ACTION (AND WHETHER IN CONTRACT OR IN TORT) WILL BE LIMITED TO THE TOTAL AMOUNT PAYABLE TO MESUR.IO UNDER THIS AGREEMENT OVER THE 12 MONTH PERIOD PRIOR TO THE DATE THE CLAIM ARISES.
9.1 Counterparts; Fax Signatures. The agreement may be accepted as set forth in the preamble above. Any amendment or Order may be executed in any number of counterparts, each of which will be deemed an original, but all of which together constitute one and the same agreement. The parties agree that facsimile or electronic signatures are valid signatures for enforcement of this agreement.
9.2 Governing Law. The validity, construction and interpretation of this agreement will be governed by the internal laws of the State of North Carolina, excluding its conflict of laws provisions.
9.3 Assignment. This agreement may not be assigned by either party by operation of law or otherwise, without the prior written consent of the other party, which consent will not be unreasonably withheld. Such consent is not required in connection with the assignment of this agreement pursuant to a merger, acquisition or sale of all or substantially all of the assigning party’s assets.
9.4 Force Majeure. Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance) that was beyond the party's reasonable control.
9.5 Independent Contractors. The parties are and will remain independent contractors. Neither party has any authority to act on behalf of the other party or to bind it, and in no event will the parties be construed to be partners, employer-employee, or agents of each other.
9.6 Interpretation. Headings in this agreement are for reference purposes only and will not affect the interpretation or meaning of this agreement. If any provision of this agreement is held by an arbitrator or a court of competent jurisdiction to be contrary to law, then the remaining provisions of this agreement will remain in full force and effect. No delay or omission by either party to exercise any right or power it has under this agreement will be construed as a waiver of such right or power. A waiver by either party of any breach by the other party will not be construed to be a waiver of any succeeding breach or any other covenant by the other party. All waivers must be in writing and signed by the party waiving its rights.
9.7 Notices. Except as otherwise specified in this agreement, all notices under this agreement will be in writing and will be delivered or sent by (1) first class U.S. mail, registered or certified, return receipt requested, postage pre-paid; or (2) U.S. express mail, or national express courier with a tracking system, to the address specified in the applicable Order. Notices will be deemed given on the day actually received by the party to whom the notice is addressed.
9.8 Press Releases. mesur.io may not use your name or logo in its marketing program including use on mesur.io’s company website, marketing literature, or in press releases, without your prior written consent.
9.9 Entire Agreement; Order of Precedence. These Terms are part of an agreement with mesur.io that may include an Order. If an Order directly agreed in writing by mesur.io conflicts with these Terms, the terms that Order will prevail, but only with respect to the subject matter of the conflicting Order. Subject to the foregoing, this agreement constitutes the entire agreement between mesur.io and you with respect to the subject matter hereof; it supersedes all prior negotiations, agreements, and undertakings between the parties with respect to such subject matter; and the parties acknowledge that they have not relied on any representations outside of this agreement in deciding to enter into this agreement.
9.10 Amendments. Except as expressly provided herein, no modification of the agreement will be effective unless contained in writing and signed by an authorized representative of each party.
9.11 Export Controls. By using the Services, you agree to comply with all export and re-export restrictions and regulations of the Department of Commerce and any other United States or foreign agencies and authorities in connection with your use of the Services. In particular, but without limitation, the Services may not, in violation of any Laws, be exported or re-exported (1) into any U.S. embargoed country or (2) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. You represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.