This Terms & Conditions Agreement (the “Agreement”) is made between Calcmetric LLC, a North Carolina limited liability company (“Calcmetric”) and each party (a “Customer”) that executes the App. Calcmetric is a service company that provides Businesses with the opportunity to analyze their transactions.

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING A SERVICE ORDER THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT.

IF YOU ARE ENTERING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE CAREFULLY READ THE CONTENTS OF THIS AGREEMENT AND THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND YOUR AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT USE THE SERVICES.

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1. Description of Services. Initially, Calcmetric agrees to provide Customer with analysis reports directly via the App. Calcmetric reserves the right to at a later date provide Customer with access to its analysis reports in accordance with the terms and conditions of this Agreement, and the specific service offering set forth on the Order Form executed by the parties in connection with this Agreement (the “analysis report”). In order to use the analysis report, Customer is responsible at Customer’s own expense for (a) providing Calcmetric with access to all the data collected by Customer; and (b) for providing its own access to the Internet, either directly or through devices, and for paying the fees associated with such access.

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2. Calcmetric Technology. In connection with the delivery of the analysis report, Calcmetric may at a later date operate and support a hosted environment to deliver the data analysis report, including, without limitation, the Calcmetric Technology (as hereinafter defined), the server hardware, disk storage, firewall protection, server operating systems, management programs, web server programs, documentation and all other information developed or provided by Calcmetric or its suppliers under this Agreement. “Calcmetric Technology” means all of Calcmetric’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, techniques, designs, and other tangible or intangible technical material or information) made available to Customer by Calcmetric in providing the data analysis report.

3. License. Subject to the terms and conditions of this Agreement, and in consideration for the payment of fees set forth on the Order Form, Calcmetric hereby grants to Customer a non-exclusive, non-transferable license for Customer to access and use the data analysis reports solely for Customer’s internal business purposes. Customer shall include all authorized individuals of the Customer, including their employees. The license is restricted to use by Customer and does not include the right to use Calcmetric’s Technology on behalf of any third party. Customer also agrees to be bound by any further restrictions set forth on the Order Form. All rights not expressly granted to Customer are reserved by Calcmetric and its licensors. There are no implied rights.

4. Restrictions. Unauthorized use (including any resale or commercial exploitation) of the data analysis report or any Calmetric Technology in any way is expressly prohibited. Customer shall not (and shall not allow any third party to): reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form or structure of any Calcmetric Technology, or access the data analysis report in order to build a competitive product or service or copy any ideas, features or functions of the data analysis report. Customer shall not copy, license, sell, transfer, make available, lease, distribute, or assign the data analysis report or any Calcmetric Technology to any third-party. Customer shall take all measures necessary to ensure compliance with all terms and conditions of this Agreement. Customer shall keep all passwords safe and secure, and shall be responsible for all use of the data analysis report. In addition to Calcmetric’s other remedies hereunder, Calcmetric reserves the right upon thirty (30) days prior written notice to Customer to terminate Customer’s right to access the analysis report if Calcmetric can reasonably demonstrate to Customer that Customer has materially violated the restrictions contained in this Agreement or has otherwise violated the terms and conditions contained in this Agreement.

5. Calcmetric Ownership. Customer acknowledges and agrees that (i) as between Calcmetric and Customer, all right, title and interest in and to the data analysis report and all derivatives thereof (including any and all patents, copyrights, trade secret rights, trademarks, trade names and other intellectual property and proprietary rights embodied therein or associated therewith) are and shall remain Calcmetric’s or its licensors’, and this Agreement in no way conveys any right or interest in Calcmetric or the data analysis report other than a limited license to the use the data analysis report in accordance herewith, and (ii) Calcmetric and the data analysis report are works protected by registered or unregistered copyright, trade secret, and other proprietary rights and laws.

6. Customer Data. All data and content which the Customer makes available to Calcmetric in connection with this Agreement is stored in a private and secure fashion, and will not be used by Calcmetric except as necessary to provide the data analysis report. As between Calcmetric and Customer, Customer retains ownership of all Customer Data, including all right, title, and interest therein. Customer hereby grants to Calcmetric a limited, non-exclusive, non-transferable right to use, display, transmit and distribute the Customer Data solely in connection with providing the data analysis report to Customer. In addition, Calcmetric may use Customer Data to create aggregated data (e.g. with other customers) and statistics, and Calcmetric may during and after the term hereof, use and disclose such data and statistics in its discretion so long as any disclosed data does not identify Customer or any individual. Calcmetric agrees to not disclose, share, or reveal Customer Data to any third parties without Customer’s written consent.

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7. Customer Responsibilities. The content of the Customer Data shall be Customer’s sole responsibility. Customer shall be solely responsible for providing, updating, uploading and maintaining all Customer Data. Calcmetric shall operate in a manner that provides reasonable information security for Customer Data, using commercially reasonable data backup, security, and recovery protections. Customer shall not upload or otherwise make available to Calcmetric any Customer Data that is unlawful or that violates the rights of any third parties. You are responsible for maintaining the confidentiality of your account and password, including but not limited to the restriction of access to your computer and/or account. You agree to accept responsibility for any and all activities or actions that occur under your account and/or password, whether your password is with our Service or a third-party service. You must notify us immediately upon becoming aware of any breach of security or unauthorized use of your account. We reserve the right to refuse service, terminate accounts, remove or edit content, or cancel orders in our sole discretion.

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8. Service Availability, Errors and Inaccuracies. The information found on the Service may contain errors or inaccuracies and may not be complete or current. Products or Services may be mispriced, described inaccurately, or unavailable and Calcmetric cannot guarantee the accuracy or completeness of any information found on the Service. Calcmetric therefore reserves the right to change or update information and to correct errors, inaccuracies, or omissions at any time without prior notice.

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9. Links To Other Web Sites. Our Service may contain links to third party web sites or services that are not owned or controlled by Calcmetric. Calcmetric has no control over, and assumes no responsibility for the content, privacy policies, or practices of any third party web sites or services. We do not warrant the offerings of any of these entities/individuals or their websites. You acknowledge and agree that Calcmetric shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such third party web sites or services. We strongly advise you to read the terms and conditions and privacy policies of any third party web sites or services that you visit.

10. Disclaimer of Warranties. CALCMETRIC AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR COMPLETENESS OF THE DATA ANALYSIS REPORT. CALCMETRIC AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT THE USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED, OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA. YOU UNDERSTAND AND ACKNOWLEDGE THAT THE DATA ANALYSIS REPORT IS A PROBABILITY BASED ANALYSIS BASED ON THE COMPILATION AND ANALYSIS OF DATA PROVIDED BY YOU. THE DATA ANALYSIS REPORT IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. 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 OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY CALCMETRIC AND ITS LICENSORS. CALCMETRIC’S DATA ANALYSIS REPORT MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. CALCMETRIC IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

11. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU FOR THE DATA ANALYSIS REPORT WHICH GIVES RISE TO SUCH A CLAIM. 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 DATA ANALYSIS REPORT, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE DATA ANALYSIS REPORT, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, 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. THE PARTIES AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION ARE A FUNDAMENTAL BASIS OF THE BARGAIN, THAT CALCMETRIC HAS SET ITS FEES IN RELIANCE ON THE ENFORCEABILITY OF THESE PROVISIONS, AND THAT THEY SHALL APPLY NOTWITHSTANDING THAT ANY LIMITED REMEDY OR THIS AGREEMENT SHALL FAIL ITS ESSENTIAL PURPOSE.

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12. Indemnification. Customer shall defend, indemnify, and hold harmless Calcmetric, its affiliates, officers, employees, and agents, from and against any liabilities, losses, damages, costs, damages, or expenses, to the extent resulting from any claim based on any allegation that the Customer Data infringes, violates, or misappropriates such third party’s intellectual property or proprietary rights. Similarly, Calcmetric shall defend, indemnify and hold harmless Customer, its affiliates, officers, employees and agents from and against any liabilities, losses, damages, costs or expenses to the extent it results from any third party claim, demand, suit, or proceeding based on any allegation that the data analysis report, as provided by Calcmetric, infringes or misappropriates any copyright or trade secret of such third party. If a claim of infringement or misappropriation occurs, or if Calcmetric determines that a claim is likely to occur, Calcmetric shall have the right, in its sole discretion, to either procure for Customer the right to license to continue to use the data analysis report free of the infringement claim, or replace or modify the data analysis report to make it non-infringing. If these remedies are not reasonably available to Calcmetric, Calcmetric, may, at its option, terminate this Agreement and return to Customer any pre-paid unused fees for the data analysis report. The indemnified party shall promptly notify the indemnifying party in writing of any claim for which indemnity is claimed.

13. Applicable Law. You agree that the laws of the state of North Carolina shall apply to interpret and enforce this Agreement and these Terms and Conditions without regard to conflicts of laws provisions, and any dispute that may arise between you and Calcmetric or its affiliates shall be resolved via arbitration in Charlotte, North Carolina.

14. Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect.

15. Waiver. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. Any waiver of this Agreement by us must be in writing and signed by an authorized representative of Calcmetric.

16. Termination. Either we or you may terminate this Agreement upon providing the other party at least thirty (30) days written notice with or without any reason. 

17. Relationship of the Parties. Nothing contained in this Agreement or your use of the Site shall be construed to constitute either party as a partner, joint venturer, employee or agent of the other party, nor shall either party hold itself out as such. Neither party has any right or authority to incur, assume or create, in writing or otherwise, any warranty, liability or other obligation of any kind, express or implied, in the name of or on behalf of the other party, it being intended by both parties that each shall remain independent contractors responsible for its own actions.

18. Entire Agreement. This Agreement, inclusive of Order Forms, and any written amendments or additions thereto, constitutes the entire agreement and sets forth the entire understanding between Calcmetric and Customer and supersedes all prior agreements and discussions with respect thereto.

19. Notice. Calcmetric may give notice by means of a general notice sent via electronic mail to your e-mail address on record, or by written communication sent by first class mail to your address on record. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing (if sent by first class mail) or posting or 12 hours after sending (if sent by email). Customer may give notice to Calcmetric (such notice shall be deemed given when received by Calcmetric) at any time by any of the following: letter sent by confirmed e-mail to the following e-mail address: contact@calcmetric.com. 

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