Terms of Service
Thank you for your interest in MeasureOne, Inc. ("MeasureOne," "We," “Our” or "Us")!
These Terms of Service (this “Agreement”) represent a legally binding agreement between You and Us governing Your access to and use of Our Services. "You" ( or “Your,” and similar phrases, as the context requires) in the case of an individual accepting this Agreement on his or her own behalf, means that individual, and in the case of an individual accepting this Agreement on behalf of a company or other legal entity, means the company or other legal entity for which that individual is accepting this Agreement, and affiliates of that company or entity (for so long as they remain affiliates).
If You use Our Services, You are agreeing to the Terms of Service set forth in this Agreement. If You do not agree to the Terms of Service set forth in this Agreement, You must not access or use Our Services.
This Agreement begins on the date on which You first access or use the Services. We call that date the "Effective Date" of this Agreement, and Your rights and obligations begin on that specific date.
Please note that We may decide to modify this Agreement from time to time. We have the right to make modifications under this Agreement and You should take a look at Section 8.4 to further understand Our ability to implement modifications.
Here are the specific legal rights and obligations that You and We have under this Agreement:
- ACCESS AND USE RIGHTS; CONSENTS AND PERMISSIONS; RESTRICTION
- Access. Subject to Your compliance with this Agreement, You have the non-exclusive right during the applicable term to: (i) internally use the package of application programming interface materials that We provide, or make available, to You (including associated software, software keys, documentation in all forms and related proprietary platform services being collectively referred to as the “API Package”) for the sole purpose of making Your applications work and interoperate with Our Services (those services, together with the API Package, and the deliverables (including future services that We may offer) related thereto, being collectively referred to in this Agreement as the “Services”) and (ii) use the Services for the benefit of Yourself and, through our API Package, the end users or consumers of Your applications with which You have a contractual relationship under which You may determine to provide them with Your products or services (within the context of this Agreement, the end users and consumers of Your applications are collectively referred to as “Consumers”) and not for any other purpose (subject, in all cases, to Your compliance with all applicable laws, including privacy and data protection laws, regulations and obligations).
- Consents and Permissions. To use Our Services, Consumers need to provide, or make available, to Us, personal account data that may include personally identifiable information about the consenting Consumer, such as the Consumer’s full name, date of birth, social security number, employment, income or other financial information, academic transcripts and student status, educational information, address, telephone numbers and other data that the Consumer gives Us consent, in connection with the delivery of Services to You, to access, obtain, use and extract (including information derived, taken, based on or made available therefrom). As Our customer, You may not receive all of the Consumer’s personal account data that We access, obtain, use and extract with the Consumer’s consent; rather, You will receive only that limited and expressly permissioned and designated data that the Consumer has authorized and permissioned Us to deliver to You in connection with the Services (we call that permissioned and designated data derived, taken, based on or made available from the Consumer’s personal account data, the “Permissioned Data”), as more fully described in Section 1.7.
- Accuracy of Data. We assume no responsibility or liability for Services delivered, or output that We may provide, to You on the basis of improperly authorized, inaccurate, outdated, incomplete or misleading personal account data provided, or made available, by the Consumer or Permissioned Data derived, taken or otherwise made available therefrom or based thereon that is delivered to You.
- Service Conditions. Your access to our Services is further conditioned on, and subject to, Your representation, which will be deemed to have been made each time You use Our Services, that You have complied, and are in compliance, with all laws and regulations (including those related to data and privacy) applicable to the applications used or accessed by Your Consumers, Your use of the Services, the provision of personal account data to Us by Your Consumers and the sharing of Permissioned Data with You. If We determine that You have made misrepresentations to Us, breached Your obligations to Us, or there are improprieties involved with Your access to, or use of, Our Services, We may, in addition to other rights or remedies We have, immediately suspend, revoke or terminate Your access to, and use of, the Services, without notice or liability.
- Restrictions on Use. Unless We otherwise expressly permit You in writing to do otherwise, You will not: (i) attempt to reverse engineer , decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas or algorithms of the Services; (ii) modify, translate, or create derivative works based on the Services, except as otherwise expressly permitted and contemplated by this Agreement; (iii) make the Services available to, or use the Services for the benefit of, anyone other than Yourself for Your business purposes and Your Consumers in connection with the products or services that they may obtain from You and for which You have directed them to Us; (iv) sell, resell, license, sublicense, distribute, rent or lease any Services to any third-party, or include any Services in a service bureau, time-sharing or equivalent offering; (v) publicly disseminate information from any source regarding the performance of the Services; or (vi) attempt to create a substitute or similar service through use of, or access to, the Services. You will also use the Services in strict compliance with Our developer policies , which may change from time to time. You will not assist, enable or encourage any other person to undertake actions that would violate any of the foregoing restrictions to which You have agreed.
- Ownership and Improvements. Except for the rights expressly granted under this Section 1, We reserve and retain all right, title, and interest in and to the Services (other than personal account data, which belongs to the Consumer), including, without limitation, the API Package and all deliverables and other intellectual property created, used or provided by Us, and any derivatives, enhancements, improvements, modifications or extensions of any of the foregoing. We have the right, and an irrevocable, royalty-free license, to use (i) personal account data and related Permissioned Data during the term of this Agreement as necessary to provide You with the Services and (ii) anonymized, masked and aggregated personal account and related Permissioned Data, and quantitative meta-data that We derive from delivery of the Service , to improve, maintain and enhance the Service, for industry analysis, for benchmarking purposes and for other business purposes incidental thereto. We will own all right, title and interest in and to any feedback, including suggestions and related commentary, You provide to Us related to Our Services, and You hereby make all assignments necessary to perfect that ownership in Us.
- Permitted Users. You are authorized to provide Your employees, authorized agents, authorized contractors and designated third-party service providers with access to the Services on Your behalf if consistent with the express business purposes of this Agreement, provided that, in any such case, You will remain entirely responsible and liable for compliance with this Agreement by any of those permitted users and understand that access to, or use by, a permitted user does not modify the express business purpose for which You are provided the Services or any of the restrictions contained in this Agreement. You are fully responsible and liable under Section 2 (Payments) of this Agreement for any fees or charges incurred by any of the persons permitted to Use the Services under this Section 1.8. We do not assume responsibility to provide support or technical assistance to any of those permitted users nor do We have any liability, and You expressly agree to indemnify and hold Us harmless, for use of the Services by anyone permitted to use Our Services under this Section 1.8.
- Development Accounts. We offer free development (or evaluation) accounts for You to evaluate Our Services. You may use development accounts solely for internal evaluation of Our Services to determine whether to submit a paid Service order form; these development accounts may not be used for commercial deployments. If You use a development account, You must comply with all documentation, policies, restrictions and instructions, which may differ from account to account and from Our actual Services (and may also have limited functionality, availability, support and other access or usage restrictions). We may modify or disable any development accounts (and delete all data therein), without prior notice and without liability. Subject to the foregoing provisions of this Section 1.9, development accounts remain subject to all other applicable terms of this Agreement, including Sections 1.2 (Consents and Restrictions) through 1.8 (Permitted Users), 4 (Confidentiality); 5 (Indemnity); 6 (Warranty; Disclaimer), 7 (Limitation of Liability) and 8 (Miscellaneous).
- Payments for any charges or fees must be made within fifteen (15) days from the date of invoice. Unpaid invoices are subject to a finance charge of 1.5% per month or the maximum rate permitted by law, whichever is higher, plus all expenses, including attorneys' and filing fees and court costs, incurred in connection with any collection or enforcement efforts undertaken by Us. You are fully responsible for all taxes associated with the Services, other than taxes based on Our income. All payments are non-refundable, non-cancellable, not subject to rights of set-off and must be paid even during any suspension of Service. Unless otherwise specified in an applicable Service order form, all payments must be made in United States Dollars.
- TERM; TERMINATION
- Term of Agreement. This Agreement will commence on the Effective Date and will continue in effect unless terminated in accordance with its terms or any applicable service order issued hereunder. When termination or expiration of this Agreement becomes effective, We will terminate all further access to, and use of, Our Services and You will immediately terminate Your ongoing use of Our Services.
- Termination. Both We and You have the right to terminate this Agreement for the following reasons:
- For Cause. Either We or You may terminate this Agreement in the event the other party materially breaches this Agreement and that breach (if susceptible of cure) is not cured, to the reasonable satisfaction of the non-breaching party, within ten (10) days after receipt of a written notice detailing the breach. In addition, We may immediately suspend the Services if We believe that (a) there is unauthorized access to, or use of, the Services through Your account or that of any permitted users under Section 1.8, (b) continued provision of the Services by Us may materially harm Our business or reputation or otherwise subject Us to liability for any reason or (c) You materially breach any of Sections 1, 2 or 4 of this Agreement; and
- For Convenience. If We are not actively providing Services. We or You may terminate this Agreement for any reason, and without cause, upon at least thirty (30) days’ prior written notice to the other party.
- Effect of Termination or Expiration. Upon termination or expiration of this Agreement, all rights granted to You hereunder terminate and You will make no further use of the terminated Services or the applicable API Package (copies of which will be immediately returned to Us or destroyed).
- During the term of this Agreement, We or You may disclose to the other party confidential and/or non-public, proprietary materials and information. All materials and information disclosed by a disclosing party to the receiving party under this Agreement and identified at the time of disclosure as “Confidential” or bearing a similar legend, and all such other information that the receiving party reasonably should have known was the confidential information of the disclosing party, will be considered confidential information; for the avoidance of doubt, pricing information, feedback, Our API Packages and the terms of this Agreement constitute Our confidential information. Except for any rights otherwise granted under this Agreement to use confidential information of the disclosing party as contemplated by this Agreement, the receiving party will maintain the confidentiality of the confidential information and will not disclose such confidential information to any third-party without the prior written consent of the disclosing party. The receiving party will only use the confidential information for the express purposes permitted by this Agreement. Confidential information will not include any information that: (i) is made generally available to the public without breach of this Agreement; (ii) is developed by the receiving party independently from, and without use of, the disclosing party’s confidential information; (iii) is disclosed to the receiving party by a third-party without any restriction or other obligation of confidentiality; or (iv) was in the receiving party’s lawful possession prior to the disclosure to the receiving party and was not obtained by the receiving party either directly or indirectly from the disclosing party. The receiving party may disclose confidential information if legally compelled by law or court order upon advice of external legal counsel; provided that the receiving party delivers prior written notice of its obligation to make that disclosure to the disclosing party and reasonably cooperates with the disclosing party, at the disclosing party's expense, if the disclosing party desires to prevent or limit that disclosure. At any time, upon disclosing party’s request, receiving party will return to the disclosing party all disclosing party’s confidential information in its possession, including, without limitation, all copies and extracts thereof wherever stored or maintained, including cloud services, software platforms and network or electronic systems (subject to the further provisions of Section 3.3(iii). Notwithstanding the foregoing, the receiving party may disclose confidential information to any third-party to the limited extent necessary to exercise its rights, or perform its obligations, under this Agreement; provided such third parties are bound in writing by obligations of confidentiality and non-use at least as protective of the disclosing party’s confidential information as this Agreement and that the receiving party shall remain liable and responsible for any breach of this Agreement by any of those third parties.
- You will defend, indemnify and hold Us fully harmless from and against all claims, actions, proceedings, regulatory investigations, damages, losses, judgments, settlements, costs and expenses (including attorneys’ fees), arising out of or in connection with: (i) Your breach of this Agreement, including Your interference with Our efforts to obtain the consents, confirmations, licenses and appointments referred to in Section 1.7, or Your violation of any laws or regulations (including data and privacy laws and regulations) or agreements, contracts or policies to which You are party or otherwise subject that affect or otherwise implicate Your access to, and use of, Our Services; (ii) Your breach of any contract between You and the Consumer that adversely affects Us in any way (including any misuse by You of Permissioned Data or any breach or violation of Your own privacy policies to the extent it affects Us in any manner); (iii) Your unauthorized or inappropriate use of Our Services; and (iv) the determinations or decisions You may make, or not make, that involve Your use of Permissioned Data and the effect of those determinations or decisions You make, or not make, on any Consumer, whether based, in whole or in part, on access to, or the use of, Our Services, including claims, actions or proceedings under any theory of contract, tort (including negligence), strict liability, or otherwise that are initiated or prosecuted by any Consumer or other third persons or parties, including any government or agencies thereof, that name, implead or involve Us in any manner.
- We will defend, indemnify and hold You fully harmless from and against all claims, actions, proceedings, damages, losses, judgments, settlements, costs and expenses (including attorneys’ fees) arising from a claim by a third party against You alleging that Our Services infringe or misappropriate that third party’s intellectual property rights.
- WARRANTY; DISCLAIMER
- WE PROVIDE OUR SERVICES “AS IS” AND “AS AVAILABLE.” TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER WE NOR OF ANY OF OUR OFFICERS, DIRECTORS, AFFILIATES, SUPPLIERS, AGENTS, LICENSORS OR DISTRIBUTORS MAKE ANY WARRANTY OF ANY KIND, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR ANY WARRANTY THAT THE SERVICES ARE FREE FROM DEFECTS. WE DO NOT MAKE ANY WARRANTY AS TO ACCURACY, COMPLETENESS, DEPENDABILITY OR RELIABILITY OF INFORMATION OR OUTPUT THAT MAY BE DELIVERED OR PROVIDED IN CONNECTION WITH THE SERVICES OR THAT SERVICE WILL BE UNINTERRUPTED. TO THE FULLEST EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
- LIMITATION OF LIABILITY
- TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER WE NOR ANY OF OUR OFFICERS, DIRECTORS, AFFILIATES, SUPPLIERS, AGENTS, LICENSORS OR DISTRIBUTORS WILL BE LIABLE UNDER THIS AGREEMENT FOR ANY: (A) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES; (B) LOSS, ERROR, OR INTERRUPTION OF USE OR DATA OR OTHER INFORMATION OR OUTPUT (IN EACH CASE, WHETHER DIRECT OR INDIRECT); OR (C) COST OF COVER OR LOSS OF BUSINESS, REVENUES, OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), EVEN, IN THE CASE OF ANY OF CLAUSES (A), (B) OR (C), IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE OR FORESEEABLE. TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF US AND ALL OTHER PERSONS REFERRED TO IN THIS SECTION 7 IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED THE AMOUNT PAID OR PAYABLE BY YOU TO US DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO LIABILITY (PROVIDED THAT, IF NO FEES ARE PAID OR PAYABLE, SUCH AMOUNTS WILL BE LIMITED TO ONE HUNDRED DOLLARS (US$100.00)). THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT INCREASE OR ENLARGE THE FOREGOING PAYMENT LIMITATION. THE PARTIES AGREE THAT THE WAIVERS AND LIMITATIONS SPECIFIED IN THIS SECTION 7 APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE AND WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
- Severability. 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.
- Titles; Survival; Third-Party Beneficiaries. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement. Sections 1.2, 1.3, 1.4, 1.5, 1.6, 2, 3.3, 4, 5, 6, 7, 8.1, 8.2, 8.4, 8.5, 8.6, 8.7, 8.8, 8.9 and 8.11of this Agreement will survive any termination of this Agreement. Except for Section 5 (Indemnity), there are no intended third-party beneficiaries of this Agreement.
- Assignment. This Agreement is not assignable or transferable by You without Our prior written consent; provided, however, that You may (x) upon prior written notice to Us, and subject to clause (y) hereafter, transfer and assign Your rights and obligations under this Agreement to a wholly-owned affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of Your assets to which this Agreement relates and (y) not transfer or assignment this Agreement to one of Our direct competitors. We may freely assign this Agreement.
- Entire Agreement; Waivers and Delay. 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 hereof. The terms of this Agreement apply to the exclusion of any other terms that You may seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. You acknowledge that You have not relied on any statement, promise or representation made or given by or on behalf of Us that is not set forth in this Agreement. Your orders are not contingent, and You have not relied, on the delivery of any future functionality regardless of any verbal or written communication about Our future plans. This Agreement may be executed in counterparts, each of which shall be deemed to be an original. All waivers and modifications of this Agreement must be in a writing signed by both parties, except that We may modify this Agreement at any time upon not less than ten (10) days prior written notice to You (provided that for development accounts referred to in Section 1.9. You must accept the modifications to continue accessing or using Your development accounts and if You object to the modifications, Your exclusive remedy is to cease any and all access and use of those development accounts. You may be required to click to accept or otherwise agree to the modified Agreement in order to continue accessing or using the Services, and in any event continued access or use of the Services after the modified version of this Agreement goes into effect will constitute Your acceptance of the modified version. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) this Agreement; and (2) the applicable documentation, if any.
- Relationship of Parties. The parties are independent contractors. No agency, partnership, joint venture or employment is created as a result of this Agreement.
- Notices. Except as otherwise provided herein, all notices shall be in writing and deemed given upon: (i) personal delivery; (ii) when received by the addressee if sent by a recognized overnight courier (receipt requested); (iii) the second business day after mailing; or (iv) the first business day after sending by email with confirmation of receipt (except that email shall not be sufficient for notices regarding a legal claim). You consent to receive any notices from Us to which this Agreement refers in an electronic form, including by email or by posting notices on Our website. You agree that any notices we provide to You electronically satisfy any legal requirements that those communications be in writing.
- Force Majeure. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (excluding Your failure to pay amounts owed when due), when and to the extent such failure or delay is caused by or results from acts beyond the affected party’s reasonable control, including without limitation: strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), trespassing, sabotage, theft or other criminal acts, failure of energy sources or transport network, acts of God, export bans, sanctions and other government actions, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, explosions, collapse of building structures, fires, floods, storms, earthquakes, epidemics or similar events (including the implementation of Covid measures, or measures of a substantially similar nature related to any future pandemics, adopted generally by companies in the software industry), natural disasters or extreme adverse weather conditions (each a “Force Majeure Event”). The party suffering a Force Majeure Event shall use reasonable efforts to mitigate against the effects of such Force Majeure Event.
- Export Controls. Each party shall comply with applicable export control laws, including the U.S. Export Administration Act and its associated regulations. You shall not export, re-export or provide access to the Services in violation of any export or import laws or regulations. In addition to the foregoing, You shall not export or re-export the Services into (or to a national or resident of) Cuba, North Korea, Iran, Sudan, Syria, or any other country to which the U.S. has prohibited exports, or to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Denied Persons List.
- Mutual Representations and Warranties. We and You each represents to the other that (i) this Agreement has been duly executed and delivered and constitutes a legal, valid and binding agreement enforceable against the executing party in accordance with its terms; (ii) no authorization or approval from any third party is required in connection with the execution, delivery, or performance of this Agreement by the executing party; and (iii) the execution, delivery, and performance of this Agreement by the executing party do not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
- Marketing. In further consideration of Your access to the Services (a) We may disclose that You are a customer of Ours and make reference to Your corporate names and use Your logos and trademarks consistent with that limited purpose and (b) We may include in Our website, case studies, marketing materials, and conference presentations and other speaking opportunities that, subject to Our confidentiality obligations to You, make use of Your access to Our Services.
- GOVERNING LAW; JURISDICTION AND VENUE. This Agreement shall be governed by the internal laws of the state of California, without regard to its conflict of laws principles. The parties hereby irrevocably consent to the exclusive jurisdiction of, and venue in, any federal or state court of competent jurisdiction located in San Francisco County, California, for the purposes of adjudicating any dispute arising out of this Agreement. Each party hereto expressly consents to service of process by registered mail. To the extent permitted by law, choice of law rules and the United Nations Convention on Contracts for the International Sale of Goods shall not apply. Notwithstanding the foregoing, either party may at any time seek and obtain appropriate legal or equitable relief in any court of competent jurisdiction for claims regarding such party’s intellectual property rights.