TERMS OF SERVICE

These Terms of Service create a legal agreement (the “Agreement”) between all ThoughtMetric, Inc. (“ThoughtMetric”) and the user of the Service entering into this Agreement (“Customer”).  This Agreement governs Customer’s use of the ThoughtMetric Service (as defined below). By using or otherwise accessing the Service, Customer agrees to be bound by the following terms and agrees to comply with the Data Processing Addendum, available at https://thoughtmetric.io/data-processing-addendum.html (as amended from time to time in accordance with its terms, the “DPA”), which is incorporated into this Agreement in its entirety.

1. DEFINITIONS.

1.  “Affiliate” means any entity or affiliated group, which directly or indirectly (a) controls a party, (b) is controlled by a party or (c) is under common control with a party, for as long as such relationship remains in effect, including any subsidiary thereof.
2. “Content” means all works of authorship contained within the Service; including, but not limited to, ThoughtMetric’s proprietary analyses, models, or reports derived from Customer Data.
3. “Customer Data” means information submitted to the Service by Customer or a Customer End User, or collected from Customer or a Customer End User by the Service.
4. “Customer End User” means an employee, independent contractor, subcontractor, or vendor of Customer who is authorized to access the Service on Customer’s behalf.
5. “Order Form” means the document on which the details of the access to the Service are set forth, and to which the terms of this Agreement are incorporated by reference.
6. “Pageviews” means pages and/or app screens a user sees on Customer’s website or app, as reported by the Service.
7. “Service” means the ThoughtMetric marketing intelligence platform.
8. “Subscription Term” means the subscription term specified in the Order Form, as it may be extended pursuant to Section 8.2 and/or earlier terminated pursuant to Section 8.3.

2. THOUGHTMETRIC RESPONSIBILITIES.

1. Access to Service. Subject to the terms and conditions of this Agreement, ThoughtMetric hereby grants to Customer a limited, nonexclusive, non-transferable right to access and use the Service, during the Subscription Term, solely for the purposes set forth in the applicable Order Form. Customer will be solely responsible for ensuring that its authorized Customer End Users use the Service only as authorized hereunder and in compliance with all applicable laws and regulations.
2. Protection of Customer Data. The Service is hosted on, and the Customer Data is processed in, third party cloud servers. ThoughtMetric does not control the security of the cloud itself. Notwithstanding the foregoing, during the Term, ThoughtMetric will take reasonable administrative and technical steps to ensure adequate controls are in place to protect the servers by appropriate means, including but not limited to administrator access controls, antivirus applications, virtual firewalls, software updates/patching and routine cloud backups.

3. USE OF SERVICE.

1. Subscription. Access to the Service is purchased as a subscription upon the terms set forth in an Order Form.
2. Customer Responsibilities. Customer will (a) be responsible for Customer End Users’ compliance with this Agreement, (b) notify ThoughtMetric within two (2) business days of any known or suspected unauthorized access or use of the Service or any other known or suspected breach of security relating to the data, information or services provided therein, and (c) use the Service only in accordance with this Agreement and applicable laws and government regulations.
3. Usage Restrictions. Customer will not (a) make the Service available to, or use the Service for the benefit of, anyone other than Customer, (b) sell, resell, license, sublicense, distribute, rent or lease the Service, or include the Service in a service bureau or outsourcing offering, (c) use the Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) interfere with or disrupt the integrity or performance of the Service or data contained therein, (e) attempt to gain unauthorized access to the Service or its related systems or networks, (f) permit direct or indirect access to or use of the Service in a way that circumvents a contractual usage limit, (g) copy the Service or any part, feature, function or user interface thereof, (h) frame or mirror any part of the Service, (i) access the Service in order to build a competitive product or service, (j) reverse engineer the Service (to the extent such restriction is permitted by law); or (h) copy or distribute the Content.
4. Reports. During the Term and for 30 days thereafter, Customer will have the ability to download certain Customer Data analytics generated by the Service (“Reports”). Thereafter ThoughtMetric will have no obligation to maintain or provide any Customer Data or Reports, and may in its sole discretion thereafter delete or destroy all copies of Customer Data and Reports in its systems or otherwise in its possession or control, unless legally prohibited. ThoughtMetric hereby grants Customer a perpetual, limited license to host, copy, transmit and display the Reports solely for its internal business purposes.

4. FEES AND PAYMENT.

1. Fees and Payment. Customer will pay all fees specified in the Order Form in accordance with the payment terms specified in the Order Form. Except as otherwise specified in this Agreement, payment obligations are non-cancelable and fees paid are non-refundable. Any changes to services ordered under an Order Form must be mutually agreed to in writing by the parties, and may result in an increase of fees.  
2. Overdue Charges. If any invoiced amount is not received by ThoughtMetric by the due date, then without limiting ThoughtMetric’s rights or remedies, those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.
3. Suspension of Service. If any charge owing by Customer is overdue, ThoughtMetric may, without limiting its other rights and remedies, suspend Customer’s access to the Service until such amounts are paid in full, provided ThoughtMetric has given Customer at least ten (10) days’ prior notice that its account is overdue in accordance with the “Notices” section below.
4. Taxes. ThoughtMetric's fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its orders hereunder. If ThoughtMetric has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, ThoughtMetric will invoice Customer and Customer will pay that amount unless Customer provides ThoughtMetric with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, ThoughtMetric is solely responsible for taxes assessable against it based on its income, property and employees.

5. PROPRIETARY RIGHTS AND LICENSES.

1. Reservation of Rights. ThoughtMetric reserves all of its right, title and interest in and to the Service, including (a) its programming architecture, (b) any improvements, enhancements, modifications or features for the Service developed during the term of this Agreement, and (c) all intellectual property rights in the foregoing. No rights are granted to Customer hereunder other than as expressly set forth herein.
2. License by Customer to Host and Use Customer Data. Customer grants ThoughtMetric and its Affiliates a worldwide, limited-term license to host, copy, transmit and display Customer Data, as necessary for ThoughtMetric to provide the Service in accordance with this Agreement. In addition, ThoughtMetric shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Service (collectively, “Derived Data”), and ThoughtMetric will be permitted (during and after the term hereof) to (i) use the Derived Data to improve and enhance the Service and for other modeling, development, and diagnostic purposes in connection with the Service, and (ii) disclose the Derived Data solely in aggregate or other de-identified form in connection with its business. Subject to the limited licenses granted herein, ThoughtMetric acquires no right, title or interest from Customer or its licensors under this Agreement in or to any Customer Data. Customer represents and warrants that it has the right to grant this license to the Customer Data to ThoughtMetric, and that Customer’s and ThoughtMetric’s use of the Customer Data as contemplated herein does not violate any rights of any third parties.
3. License by Customer to Use Feedback. Customer grants to ThoughtMetric and its Affiliates a worldwide, perpetual, irrevocable, royalty-free, fully paid-up license to use and incorporate into the Service any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Customer End Users relating to the operation of the Service.
4. Third-Party Platforms.        If Customer connects the Service to any third-party platform, via API or otherwise, in order to upload information from such third-party platform to the Service, Customer represents and warrants that it has the right from such third-party platform to so export such information, and in so exporting such information Customer will not be breaching the terms of any agreement with such third-party platform. Customer acknowledges and agrees that, as between ThoughtMetric and Customer, any such information will be deemed Customer Data.

6. CONFIDENTIALITY.

1. Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Customer includes Customer Data; Confidential Information of ThoughtMetric includes the Service and the terms and conditions of this Agreement (including pricing and other terms described on the Order Form); and Confidential Information of each party includes business and marketing plans, software and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party.
2. Protection of Confidential Information. The Receiving Party will (a) use the same degree of care to protect the Disclosing Party’s Confidential Information that it uses to protect the confidentiality of its own Confidential Information (but not less than reasonable care), (b) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (c) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and using protections no less stringent than those herein.
3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.

7. DISCLAIMERS; LIMITATION OF LIABILITY; INDEMNIFICATION

1. Disclaimers. 

1. THE SERVICE AND CONTENT IS PROVIDED “AS IS,” AND NEITHER THOUGHTMETRIC NOR ITS AFFILIATES, OR ANY OF THEIR DIRECTORS, EMPLOYEES, AGENTS, THIRD-PARTY CONTENT PROVIDERS, LICENSEES, OR LICENSORS (COLLECTIVELY, "THOUGHTMETRIC PARTIES"), MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW; NOR DO THE THOUGHTMETRIC PARTIES WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ACCURATE, RELIABLE, COMPLETE, OR ERROR-FREE.  
2. THE SERVICE IS DESIGNED FOR INFORMATIONAL PURPOSES ONLY. ANY ACTION BY CUSTOMER/CUSTOMER END USER IN RESPONSE TO THE INFORMATION PROVIDED THROUGH THE SERVICE IS AT CUSTOMER’S/CUSTOMER END USER’S SOLE DISCRETION AND RISK.  THOUGHTMETRIC HAS NO RESPONSIBILITY FOR, OR INVOLVEMENT WITH, ANY TRANSACTIONS OR ANY INTERACTIONS THAT MAY RESULT FROM CUSTOMER’S USE OF THE SERVICE.

2. Limitation of Liability. THOUGHTMETRIC'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT PAID BY CUSTOMER UNDER THE ORDER FORM GIVING RISE TO LIABILITY. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
3. Exclusion of Consequential and Related Damages. EXCEPT FOR CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREIN, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR LOST REVENUES OR FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 
4. Indemnification by Customer. Customer will indemnify and hold harmless, and in ThoughtMetric’s discretion, defend, ThoughtMetric against all damages, attorneys fees, costs, and settlements, arising from any demand, suit or proceeding made or brought against ThoughtMetric by a third party (a) alleging that the Customer Data, or Customer's use of the Service in breach of this Agreement, infringes or misappropriates a third party’s intellectual property rights or violates applicable law, or (b) arising from a breach of any term of this Agreement by Customer.

8. TERM AND TERMINATION

1. Term. This Agreement will commence as of the Effective Date and will expire upon expiration or earlier termination of the last Order Form hereunder.
2. Renewal. Except as otherwise specified in the Order Form, the Subscription Term will automatically renew for additional periods equal to the expiring Subscription Term, unless either party gives the other notice of non-renewal at least 5 business days prior to the expiration of the then-current Subscription Term. The pricing during any automatic renewal term will be the same as that during the immediately prior term unless ThoughtMetric has given Customer written notice of a pricing increase at least 30 days before the end of that prior term, in which case the pricing increase will be effective upon renewal.
3. Termination. A party may terminate this Agreement for cause (a) upon written notice to the other party of a material breach if such breach, if curable, remains uncured after 10 days from notice, or (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
4. Payment upon Termination. If this Agreement is terminated by ThoughtMetric in accordance with Section 8.3, Customer will pay all fees that Customer would otherwise have had to pay for the remainder of the Subscription Term had it not been terminated.

9. GENERAL PROVISIONS

1. Export Compliance. The Service may be subject to export laws and regulations of the United States and other jurisdictions. ThoughtMetric and Customer each represents that it is not named on any U.S. government denied-party list. Customer will not permit any Customer End User to access or use the Service in or by a national of a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.
2. Entire Agreement and Order of Precedence. This Agreement (including all Order Forms, which are hereby incorporated into this Agreement by reference), is the entire agreement between ThoughtMetric and Customer regarding Customer’s use of Service and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except with respect to the DPA, which may be amended in accordance with its terms, no modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in a Customer purchase order or in any other Customer order documentation is void. In the event of any conflict or inconsistency among the following documents, the order of precedence will be: (1) the Order Form, and (2) the Terms of Service.
3. Relationship of the Parties. The parties to this Agreement are independent contractors. Nothing in this Agreement shall be deemed as creating a partnership, joint venture, partnership, agency, fiduciary or employment relationship, franchise, fiduciary, employment relationship or business opportunity between them. Neither party, by virtue of this Agreement, will have any right, power, or authority to act or create an obligation, express or implied, on behalf of the other party.  
4. Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
5. Notices. Except as otherwise specified in this Agreement, all legal notices related to this Agreement will be in writing and may be sent via overnight courier, certified mail, or email with confirmation copy by one of the previous two methods. Notices will be deemed given upon delivery to the recipient’s address indicated at the beginning of this Agreement or such other address as the recipient may from time to time specify.
6. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
7. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
8. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld) and any attempted assignment without such consent will be void and of no effect. Notwithstanding the foregoing, ThoughtMetric may assign this Agreement in its entirety without Customer’s consent to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets or outstanding capital stock. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
9. Force Majeure.        Neither party will be liable for any failure or delay in its performance under this Agreement (or the performance of or access to the Service), other than payment obligations, due to causes that are beyond its reasonable control, including, but not limited to, an act of god, act of civil or military authority, fire, epidemic, flood, earthquake, riot, war, terrorism, sabotage, and governmental action; provided that the delayed party: (a) gives the other party written notice of such cause promptly; and (b) uses its reasonable efforts to correct such failure or delay.
10. Governing Law. This Agreement, and any disputes arising out of or related hereto, will be governed exclusively by the internal laws of the State of Delaware.
11. Venue. Any controversy or claim arising out of or relating to this contract, or the breach thereof, which cannot be settled through good faith negotiations between the parties in thirty (30) days, shall be settled by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The arbitration shall be heard by one arbitrator, selected by the AAA, in Wilmington, Delaware. Any party or witness residing outside of Delaware may testify via video conference.  The prevailing party shall be entitled to an award of its attorney’s fees. The award rendered by the arbitrator shall be non-appealable, and judgment on the award may be entered in any court having jurisdiction thereof.