Actual Metrics EULA: v20150731
PLEASE READ THIS END USER LICENSE AND SUPPORT SERVICES AGREEMENT ("EULA") CAREFULLY. BY DOWNLOADING AND INSTALLING, COPYING OR OTHERWISE USING ANGELFISH SOFTWARE ("ANGELFISH"), YOU ("Company") AGREE TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU MAY NOT DOWNLOAD AND INSTALL, COPY, OR USE ANGELFISH.
Installation Date: The date Company installs Angelfish Software.
Subscription Term: The period of time during which Company may use Angelfish Software, consisting of an activation date and an expiration date.
Profiles: A set of reports for a single website or group of websites.
Company Data: any data, information or material stored by Company in a database related primarily to Angelfish Software.
License Key: An encrypted alphanumeric string that unlocks Angelfish Software for installation and use during the Subscription Term.
Actual Metrics: The developer of Angelfish.
Authorized Reseller: An entity that has executed a Reseller Agreement with Actual Metrics and remains in good standing.
Taxes: any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including VAT (subject to reverse charge), GST (subject to reverse charge), excise, sales, use or withholding taxes.
1. GRANT OF LICENSE
1.1 Subscription. During the Subscription Term, Actual Metrics shall make Angelfish Software available to Company pursuant to the terms of this EULA. Company will be granted a non-exclusive, revocable, non-transferable right to (a) install a single instance of the Software on a single Server, unless permitted by Actual Metrics to have a single instance of the Software on multiple Servers, (b) use and modify the Software, solely for Company's own internal information processing needs in connection with permitted uses of the Software. All rights not expressly granted to Company are reserved by Actual Metrics and its licensors.
1.2 License Key. Actual Metrics shall provide Company with a license key to allow the specific number of profiles for which Company has paid the applicable fees to access Angelfish Software.
1.3 Support Services. Actual Metrics shall provide Company with the level of support purchased by Company for the duration of the Subscription Term. Details regarding each of the support level options currently provided by Actual Metrics are available at the angelfishstats.com website. Actual Metrics reserves the right to modify any of the support levels offered. If Company purchases an Angelfish Software Subscription Term through an Actual Metrics Authorized Reseller, the Support Services will be provided by the Authorized Reseller, pursuant to Services offered by the Authorized Reseller.
1.4 Company Responsibilities. Company shall: (a) be responsible for all end users' compliance with the EULA, (b) be solely responsible for the accuracy, integrity, and legality of Company Data and the means by which it acquires and uses such Company Data, (c) use Angelfish Software in accordance with applicable laws, rules, regulations (INCLUDING, WITHOUT LIMITATION, EXPORT, DATA PROTECTION AND PRIVACY LAWS, RULES AND REGULATIONS) and any Angelfish Software documentation, and (d) notify Actual Metrics immediately of any unauthorized use of Angelfish Software.
1.5 Restrictions. Company shall not, directly or indirectly: (a) sublicense, resell, rent, lease, distribute, market, commercialize or otherwise transfer rights or usage to Angelfish Software or any modified version or derivative work of Angelfish Software created by or for Company, (b) remove or alter any copyright, trademark or proprietary notice in Angelfish Software, (c) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of any encrypted or encoded portion Angelfish Software, (d) copy any features, functions or graphics of Angelfish Software for any purpose other than what is expressly authorized in this EULA, (e) use or modify Angelfish Software in any way that would subject Angelfish Software to a Copyleft License, or (f) store unlawful, infringing, obscene, or libelous material, or malicious software code.
2. EVALUATION LICENSES
2.1 General. If available, Angelfish Software may be activated with no-cost Evaluation License Key(s) that expire 30 days from the Installation Date. If Company activates Angelfish Software with an Evaluation License Key, Company may use the Evaluation Product to evaluate the suitability of Angelfish Software until the License Key expires.
2.2 Evaluation Product Warranty Disclaimer. During the use of the Evaluation License Key, ANGELFISH SOFTWARE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. ACTUAL METRICS BEARS NO LIABILITY FOR ANY DAMAGES RESULTING FROM USE (OR ATTEMPTED USE) OF THE EVALUATION PRODUCT THROUGH AND AFTER THE EXPIRATION DATE.
2.3 No Support. Actual Metrics has no duty to provide support to Company during Company's use of the Evaluation License Key.
3. PROPRIETARY RIGHTS
3.1. Intellectual Property. Actual Metrics owns the Intellectual Property Rights in and to Angelfish Software and any modifications thereto, including, without limitation, any modifications created by or for Company under the EULA. This EULA does not convey or transfer any ownership rights in Angelfish Software, or any Intellectual Property Rights therein, to Company. Angelfish Software's name, logo, trade names and trademarks are owned by Actual Metrics, and no right is granted to Company to use any of the foregoing except as expressly permitted herein. Actual Metrics reserves all rights, title, and interest in and to all copies of Angelfish Software.
3.2. Ownership of Company Data; License. Company owns all Intellectual Property Rights in and to the Company Data.
3.3. Feature Requests. Actual Metrics shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use, copy, modify, or distribute, including by incorporating into any product or service owned by Actual Metrics, any suggestions, enhancement requests, recommendations or other feedback provided by Company and any of its end users, relating to any product or service owned by Actual Metrics.
4. FEES AND PAYMENT
4.1. Fees. Except as otherwise provided, fees set forth will be: (a) fixed during the Subscription Term; (b) quoted and payable in United States dollars; (c) based upon the number of Profiles purchased, even if actual usage is lower; (d) non-cancelable and non-refundable.
4.2. Renewal. Except as otherwise specified, the Subscription Term shall automatically renew for additional one year terms, unless either party gives the other written notice of non-renewal at least 30 days prior to the end of the current Subscription Term. All fees will be invoiced annually in advance approximately 30 days prior to the applicable anniversary date, and any pricing changes for the Subscription Term renewal will be reflected on such invoice. Actual Metrics reserves the right to modify the fees in connection with Subscription Term renewal at any time.
4.3. Payment. Unless Company pays by credit card (or other applicable Actual Metrics-approved automated-payment mechanism), fees are due net 30 days from the invoice date. Notwithstanding the foregoing, if Company purchases subscriptions through an Actual Metrics Authorized Reseller and the Authorized Reseller's order form or invoice includes different payment terms, the Authorized Reseller's payment terms shall prevail. Company agrees to provide Actual Metrics with complete and current billing and contact information.
4.4. Taxes. Unless otherwise provided, all fees do not include any Taxes, and Company is responsible for paying all Taxes associated with the transaction contemplated under this Agreement, excluding income taxes on the net profits of Actual Metrics.
5. TERM AND TERMINATION
This Agreement commences on the Installation Date and continues until the Subscription Term expires or terminates.
5.2. Termination for Incurable Breach.
This Agreement shall terminate immediately if Company violates Section 1.5(e).
5.3. Termination by Company or Actual Metrics. Either party may terminate this EULA prior to the end of a Subscription Term if the other party: (i) materially breaches its obligations hereunder and, where such breach is curable, such breach remains uncured for thirty (30) days following written notice of the breach or (ii) becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.
6.1. Confidentiality. The Receiving Party will not disclose or cause to be disclosed any Confidential Information of the Disclosing Party, except (a) to those employees, representatives, or contractors of the Receiving Party who require access to the Confidential Information to exercise its rights under this Agreement and who are bound by written agreement not to disclose third-party confidential or proprietary information disclosed to such party, or (b) as such disclosure may be required by law or governmental regulation, subject to the Receiving Party providing to the Disclosing Party written notice to allow the Disclosing Party to seek a protective order or otherwise prevent the disclosure. Nothing in this Agreement will prohibit or limit the Receiving Party's use of information (a) previously known to it without obligation of confidence, (b) independently developed by or for it without use of or access to the Disclosing Party's Confidential Information, (c) acquired by it from a third party that is not under an obligation of confidence with respect to such information, or (d) that is or becomes publicly available through no breach of this Agreement. The Receiving Party acknowledges the irreparable harm that improper disclosure of Confidential Information may cause; therefore, the injured party is entitled to seek equitable relief, including temporary restraining order(s) or preliminary or permanent injunction, in addition to all other remedies, for any violation or threatened violation of this Section. The terms of this EULA, Original Code and the structure, sequence and organization of Angelfish Software are Confidential Information of Actual Metrics or its licensors.
6.2. Destruction. Within five (5) days after a Disclosing Party's request, the Receiving Party shall return or destroy the Disclosing Party's Confidential Information.
6.3. Exclusion. The confidentiality obligations under Section 6.1 above shall not apply to any publicly available or independently developed information.
7. WARRANTIES, REMEDIES, & DISCLAIMERS
7.1. Warranties. Actual Metrics warrants that (i) it will provide the purchased Support Services referred to in Section 1.3 in a manner consistent with general industry standards; (ii) Angelfish Software shall perform materially in accordance with the online user guide for Angelfish Software. For any breach of either warranty, Company's sole and exclusive remedy shall be to terminate the EULA pursuant to Section 5.3 and, notwithstanding anything to the contrary in Section 4.1 of the Agreement, have Actual Metrics refund to Company the pro rata unused portion of any pre-paid fees.
7.2. Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT , Angelfish Software IS PROVIDED TO COMPANY 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. ACTUAL METRICS' SERVICES MAY BE SUBJECT TO LIMITATIONS OR ISSUES INHERENT IN THE USE OF THE INTERNET AND ACTUAL METRICS IS NOT RESPONSIBLE FOR ANY PROBLEMS OR OTHER DAMAGE RESULTING FROM SUCH LIMITATIONS OR ISSUES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES AND SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO COMPANY.
8. LIMITATION OF LIABILITY
8.1. Limitation on All Damages. EXCEPT FOR COMPANY'S BREACH OF SECTION 1.5 AND 6.1, IN NO EVENT SHALL EITHER PARTY'S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED IN THE AGGREGATE THE TOTAL AMOUNT PAID BY COMPANY TO ACTUAL METRICS UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE ACT OR OMISSION GIVING RISE TO THE LIABILITY . THE FOREGOING SHALL NOT LIMIT COMPANY'S PAYMENT OBLIGATIONS UNDER SECTION 4.
8.2. Disclaimer of Consequential Damages. EXCEPT FOR COMPANY'S BREACH OF SECTION 1.5 AND 6.1, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOST PROFITS OR REVENUE OR FOR ANY INDIRECT, SPECIAL, COVER, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING UNDER THIS AGREEMENT AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
9.1 Indemnification of Actual Metrics. Company will indemnify, defend, save and hold harmless Actual Metrics and all of its employees, officers, directors, trustees, subcontractors, and agents, their respective successors and permitted assigns, against any and all claims, demands, suits, or other forms of liability that may arise out of, or by reason of: any (a) breach by Company of any agreements, covenants, warranties, or undertakings of Licensee contained in this Agreement, (b) violation by Company of any applicable law, including privacy laws, (c) breach of the representations and warranties of Company contained in this Agreement, or (d) Company's use of the Intellectual Property or Software. Actual Metrics agrees that it will give Company notice within twenty (20) business days of any claim under this section, or as soon as reasonably practicable.
10. US GOVERNMENT CUSTOMERS
10.1. Commercial Computer Software. Angelfish Software is "Commercial Computer Software," as that term is defined in 48 C.F.R. 2.101, and as the term is used in 48 C.F.R. Part 12, and is a Commercial Item comprised of "commercial computer software" and "commercial computer software documentation".
10.2. United States Federal Civilian Government Entities. If Company is a federal civilian government entity, Actual Metrics provides Angelfish Software, for ultimate federal government end use solely in accordance with the license rights customarily provided to the public as defined in this "standard" or "customary" commercial license Agreement, as specified in 48 C.F.R. 12.212 (Computer Software) and 12.211 (Technical Data) of the Federal Acquisition Regulation ("FAR") and its successors.
10.3. United States Department of Defense Agencies. If Company is any agency within the Department of Defense ("DOD"), Actual Metrics provides Angelfish Software, for ultimate federal government end use solely in accordance with the license rights customarily provided to the public as defined in this "standard" or "customary" commercial Agreement, as specified in 48 C.F.R. 227.7202-3 and 48 C.F.R. 227.7202-4 of the DOD FAR Supplement ("DFARS") and its successors, and consistent with 48 C.F.R. 227.7202. This Government Users clause, consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202, is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses Government rights in computer software, computer software documentation or technical data related to Angelfish Software under this Agreement and in any subcontract under which this commercial computer software and commercial computer software documentation is acquired or licensed.
11.1. Export Compliance. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using Angelfish Software. Without limiting the foregoing, (i) both Actual Metrics and Company represents that it is not named on any U.S. government list of person or entities prohibited from receiving exports, and (ii) Company shall not permit use of Angelfish Software in violation of any U.S. export embargo, prohibition, or restriction.
11.2. Assignment. Company may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Actual Metrics. Any attempted assignment in breach of this section shall be void. This Agreement shall bind and inure to the benefit of the parties and their respective successors and permitted assigns.
11.3. Relationship of the Parties. Actual Metrics and Company are independent contractors, and nothing in this Agreement or any attachment hereto will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties.
11.4. No Third-Party Beneficiaries. There are no third party beneficiaries to this Agreement.
11.5. Choice of Law and Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of Arizona and the federal U.S. laws applicable therein, excluding its conflicts of law provisions. Company and Actual Metrics agree to submit to the personal and non-exclusive jurisdiction of the courts located in Maricopa County, Arizona. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
11.6. Attorneys Fees. In any action related to this Agreement, if any party is successful in obtaining some or all of the relief it is seeking or in defending against the action, the other party shall pay, on demand, the successful party's reasonable attorneys' fees and reasonable costs.
11.7. Manner of Giving Notice. Notices regarding this EULA shall be in writing and addressed to Company at the address Company provides, or, in the case of Actual Metrics, addressed to Actual Metrics 8340 E Raintree Dr. Suite C-1 Scottsdale, AZ 85260 USA. Notices regarding Angelfish Software in general may be given by electronic mail to Company's e-mail address on record with Actual Metrics and such notice shall be deemed to have been delivered twelve (12) hours after sending.
11.8. Force Majeure. Neither party shall be liable to the other for any delay or failure to perform hereunder (excluding payment obligations) due to circumstances beyond such party's reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (excluding those involving such party's employees), service disruptions involving hardware, software or power systems not within such party's reasonable control, and denial of service attacks.
11.9. Amendment and Waiver. No amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed (either manually or electronically) by an authorized representative of Company and Actual Metrics. To the extent of any conflict between these terms and conditions (as may be modified by an amendment signed by Company and Actual Metrics) and any other schedule or attachment hereto, these terms and conditions (as may be modified by an amendment signed by Company and Actual Metrics) shall prevail unless expressly stated otherwise. Notwithstanding any language to the contrary therein, and except as set forth in Section 4.3, no terms stated in a purchase order or in any other order document shall be incorporated into this EULA, and all such terms shall be void. No failure or delay in exercising any right hereunder shall constitute a waiver of such right. Except as otherwise provided, remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
11.10 Entire Agreement. This Agreement constitutes the entire agreement between Company and Actual Metrics with respect to the subject matter hereof. This Agreement supersedes any prior agreements, representations, or dealings between the parties.
11.11. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions shall remain in effect.
11.12 Survivability. Company's obligation to make a payment of any outstanding or unpaid fees, the defined terms used in this EULA and the terms of Sections 1.5, 3, 4, 5.4, 6, 7.2, 8, 9, 10 and 11 shall survive termination or expiration of this EULA.