Terms of Service

Last Updated: April 01, 2024.

Meta8 Technologies Ltd., doing business as ProdMetrics (collectively, "ProdMetrics", "we", "us", or "our") provides access and use of the ProdMetrics software platform products and services (the "Services") subject to the following terms and conditions of service (the "Agreement").

BY REGISTERING FOR AND USING THE SERVICES, YOU, AND THE ENTITY OR COMPANY THAT YOU REPRESENT AND HAVE THE AUTHORITY TO BIND, ("CLIENT") ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY, AND BECOME A PARTY TO, THIS AGREEMENT. IF CLIENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLIENT WILL NOT ACCEPT THE AGREEMENT OR ACCESS OR USE THE SERVICES. PRODMETRICS'S ACCEPTANCE IS EXPRESSLY CONDITIONED UPON CLIENT'S ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, TO THE EXCLUSION OF ALL OTHER TERMS. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.

1. Services and support

1. Subject to the terms and conditions of this Agreement, ProdMetrics will make the Services available to Client through the Internet for the applicable annual or monthly term ("Subscription Term"), as specified in the pricing plan Client has selected ("Pricing Plan"). Client's authorized use of the Services is limited to the types of products and the number of users ("Users") specified on the Pricing Plan. User subscriptions are for designated Users and cannot be shared or used by more than one User, but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Services. The Services are subject to modification from time to time at ProdMetrics's sole discretion, for any purpose deemed appropriate by ProdMetrics. ProdMetrics will use reasonable efforts to give Client prior written notice of any such modification.
2. ProdMetrics reserves the right to suspend Client's access to the Services: (i) for scheduled or emergency maintenance, (ii) unavailability of services (including network and hosting services) provided by a third party service provider, or (iii) in the event Client is in breach of this Agreement, including failure to pay any amounts due to ProdMetrics.
3. Subject to the terms hereof, ProdMetrics will provide support to Client for the Services as described in Schedule I: Service Level Agreement.

2. Restrictions and responsibilities

1. Client will not, and will not permit any third party to: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to the Services ("Software") (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); modify, translate, or create derivative works based on the Services or Software; use the Services or Software for timesharing or service bureau purposes or for any purpose other than its own internal business purposes; permit any third party to access the Services except as permitted herein; or use the Services or Software other than in accordance with this Agreement and in compliance with all applicable laws and regulations (including but not limited to any European privacy laws), intellectual property, consumer and child protection, obscenity or defamation). Client shall not copy, frame or mirror any content forming part of the Services, other than on Client's own intranets or otherwise for its own internal business purposes and Client shall not access the Services in order to (i) build a competitive product or service, or (ii) copy any ideas, features, functions or graphics of the Services. Client shall not remove any title, trademark, copyright and/or restricted rights notices or labels from the Services.
2. Client will cooperate with ProdMetrics in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as ProdMetrics may reasonably request. Client will also cooperate with ProdMetrics in establishing a password or other procedures for verifying that only designated Users have access to the Services.
3. Client hereby agrees to indemnify and hold harmless ProdMetrics against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys' fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Client's use of Services. Although ProdMetrics has no obligation to monitor the content provided by Client or Client's use of the Services, ProdMetrics may do so and may remove any such content or prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
4. Client will be responsible for maintaining the security of Client account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Client account with or without Client's knowledge or consent.
5. Client shall (a) be responsible for Users' compliance with this Agreement, (b) be solely responsible for the Client Content (as defined below), and (c) use the Services only in accordance with applicable laws and government regulations. Client shall not (i) upload or otherwise transmit through the Services any material which violates or infringes in any way upon the rights of others, which is unlawful, which encourages conduct that would constitute a criminal offense, gives rise to civil or otherwise violates any law, (ii) use the Services to store or transmit viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs, (iii) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (iv) attempt to gain unauthorized access to the Services or their related systems or networks. Any conduct by Client that in ProdMetrics's discretion restricts or inhibits any other ProdMetrics customer from using or enjoying the Services is expressly prohibited. Client will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services, and notify ProdMetrics promptly of any such unauthorized access or use. Client shall be responsible for obtaining and maintaining all telephone, computer hardware and other equipment needed for access to and use of the Services and all charges related thereto.

3. Confidentiality

1. Each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose information relating to the Disclosing Party's technology or business (hereinafter referred to as "Proprietary Information" of the Disclosing Party).
2. The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (i) to give access to such Proprietary information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. In any event, ProdMetrics may collect data with respect to and report on the aggregate response rate and other aggregate measures of the Services' performance.
3. Client acknowledges that ProdMetrics does not wish to receive any Proprietary Information from Client that is not necessary for ProdMetrics to perform its obligations under this Agreement, and, unless the parties specifically agree otherwise, ProdMetrics may reasonably presume that any unrelated information received from Client is not confidential or Proprietary Information.
4. Both Parties will have the right to disclose the existence but not the terms and conditions of this Agreement, unless such disclosure is approved in writing by both Parties prior to such disclosure, or is included in a filing required to be made by a Party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors or acquirors.

4. Intellectual property rights

1. Except as expressly set forth herein, ProdMetrics alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Services or the Software or any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Client or any third party relating to the Service and/or the Software, which are hereby assigned to ProdMetrics. Client will not copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Agreement. This Agreement is not a sale and does not convey to Client any rights of ownership in or related to the Service or Software, or any intellectual property rights.
2. ProdMetrics will obtain and process content/data provided by or on behalf of Client ("Client Content") only to perform its obligations under this Agreement. Client and its licensors shall (and Client hereby represents and warrants that they do) have and retain all right, title and interest (including, without limitation, sole ownership of) all Client Content distributed through the Services and the intellectual property rights with respect to that Client Content. If ProdMetrics receives any notice or claim that any Client Content, or activities hereunder with respect to any Content, may infringe or violate rights of a third party (a "Claim"), ProdMetrics may (but is not required to) suspend activity hereunder with respect to that Client Content and Client will indemnify ProdMetrics from all liability, damages, settlements, attorney fees and other costs and expenses in connection with any such Claim, as incurred. As between ProdMetrics and Client, Client owns all right, title and interest in and to the Client Content.
3. ProdMetrics shall hold Client harmless from liability to third parties resulting from infringement by the Service of any patent or any copyright or misappropriation of any trade secret, provided ProdMetrics is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; ProdMetrics will not be responsible for any settlement it does not approve. The foregoing obligations do not apply with respect to portions or components of the Services (i) not created by ProdMetrics, (ii) resulting in whole or in part in accordance from Client specifications, (iii) that are modified after delivery by ProdMetrics, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Client continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Client's use of is not strictly in accordance with this Agreement and all related documentation. Client will indemnify ProdMetrics from all damages, costs, settlements, attorneys' fees and expenses related to any claim of infringement or misappropriation excluded from ProdMetrics's indemnity obligation by the preceding sentence.

5. Payment of fees

1. Client will pay ProdMetrics the applicable fees for Client's access and use of the Services, including the annual or monthly payments as set forth on the Pricing Plan Client selects ( "Subscription Fees"). All Subscription Fees are due in full at the commencement of the Subscription Term.
2. Client acknowledges and agrees that Subscription Fees may be processed by one or more third party transaction processors, which ProdMetrics may choose at its sole discretion ("Payment Processor"). Client hereby authorizes Payment Processor to charge Client's credit card or other payment instrument, as applicable. Client will provide complete and accurate billing and contact information to Payment Processor. This authorization continues until all fees due hereunder are paid in full.
3. Except as otherwise specified herein, Subscription Fees are based on Services purchased and not actual usage, payment obligations are non-cancelable and Subscription Fees paid are non-refundable. Any payment not received from Client by the due date may accrue, at ProdMetrics's discretion, late charges at the rate of 10% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
4. To the extent applicable, Client will pay ProdMetrics for additional services, such as professional services, integration or other consulting pursuant to a separate order form or statement of work.
5. Subscription Fees are stated as net of any applicable withholding taxes that are required by law. If ProdMetrics has the legal obligation to pay or collect taxes for which Client is responsible, including but not limited to, sales, use, transfer, privilege, excise, and all other taxes and duties that are levied or imposed by reason of performance of ProdMetrics under this Agreement, the appropriate amount shall be invoiced to and paid by Client within 30 days of its receipt of such invoice, unless Client provides ProdMetrics with a valid tax exemption certificate authorized by the appropriate taxing authority.

6. Limited warranty; disclaimer

ProdMetrics warrants during the Subscription Term that the Services will be free of material defects. ProdMetrics does not make any representations or warranties that the functions performed by the Services will meet Client's requirements, that the operation of the Services will be uninterrupted or error free, or that all defects in the Services will be corrected. To the extent permitted by applicable law, THE FOREGOING LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, AND PRODMETRICS DISCLAIMS ANY AND ALL OTHER WARRANTIES OR CONDITIONS, WHETHER EXPRESS, IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, REASONABLE CARE, AND/OR FITNESS FOR A PARTICULAR PURPOSE (WHETHER OR NOT PRODMETRICS KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE). TO THE EXTENT PERMITTED BY APPLICABLE LAW, PRODMETRICS FURTHER DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS, AND/OR REPRESENTATIONS OF TITLE AND NON-INFRINGEMENT. No action for breach of the limited warranty set forth in this Section may be commenced more than one (1) year following the expiration date of such limited warranty.

7. Termination

1. Subject to earlier termination as provided below, this Agreement is for the Subscription Term as specified in the Pricing Plan. The Subscription Term shall automatically renew for subsequent annual or monthly periods, in accordance with the Pricing Plan Client has selected, unless either party gives the other party notice of non-renewal at least forty-five (45) days prior to the end of the then-current Subscription Term.
2. In the event of any material breach of this Agreement, the non-breaching party may terminate this Agreement prior to the end of the Subscription Term by giving thirty (30) days (ten (10) days in the case of Client's non-payment) prior written notice to the breaching party; provided, however, that this Agreement will not terminate if the breaching party has cured the breach prior to the expiration of such thirty-day period. Either party may terminate this Agreement, without notice, (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings, (ii) upon the other party's making an assignment for the benefit of creditors, or (iii) upon the other party's dissolution or ceasing to do business. Notwithstanding the foregoing, ProdMetrics may immediately suspend access to the Services and/or terminate this Agreement if ProdMetrics determines that Client's actions are likely to cause legal liability for ProdMetrics, its suppliers, or other customers.
3. Upon any expiration or termination of this Agreement, and upon expiration of the Subscription Term if Client does not renew in accordance with this Agreement, the rights and licenses granted hereunder will automatically terminate, and Client may not continue to use the Services. If the Agreement is terminated based on ProdMetrics's uncured material breach, ProdMetrics shall refund to Client any prepaid fees covering the remainder of the term of all subscriptions after the effective date of such termination. If the Agreement is terminated based on Client's uncured material breach, Client shall pay any unpaid fees covering the remainder of the term of all Pricing Plans after the effective date of such termination. In no event shall any termination relieve Client of the obligation to pay any fees payable to ProdMetrics for the period prior to the effective date of termination. ProdMetrics will have no liability for any costs, losses, damages, or liabilities arising out of or related to any termination of this Agreement. Client agrees that if Client terminates this Agreement, ProdMetrics is not obligated to refund any portion of subscription fees already paid to ProdMetrics. Upon the termination of this Agreement for any reason, Client shall, at Client's sole cost and expense, immediately cease using the Services. Termination of this Agreement shall not limit ProdMetrics from pursuing any other remedies available to it, including injunctive relief.
4. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, restrictions, accrued rights to payment, confidentiality obligations, intellectual property rights, warranty disclaimers, and limitations of liability.

8. Limitation of liability

IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. EXCEPT FOR CLIENT PAYMENT OBLIGATIONS, THE TOTAL LIABILITY OF EACH PARTY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE CUMULATIVE FEES INVOICED TO CLIENT UNDER THE AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE DATE THE CLAIM AROSE. THE FOREGOING LIMITATION WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

9. Miscellaneous

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. This Agreement is not assignable, transferable or sublicensable by Client except with ProdMetrics's prior written consent. ProdMetrics may transfer and assign any of its rights and obligations under this Agreement with written notice to Client. Both parties agree that 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 of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Client does not have any authority of any kind to bind ProdMetrics in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys' fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. ProdMetrics will not be liable for any loss resulting from a cause over which it does not have direct control. This Agreement will be governed by the laws of England, without regard to its conflict of laws provisions. The courts sitting in England will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement. ProdMetrics is permitted to disclose that Client is one of its customers to any third-party at its sole discretion. Client also agrees to consider the following upon reasonable request: (i) serving as a reference or hosting onsite reference visits; (ii) collaborating on press releases announcing or promoting the relationship upon completion of the initial phase of the project with the help of the ProdMetrics marketing team; and (iii) collaborating on case studies or other marketing collateral as Client realizes a return on investment following successful deployment with specific metrics around time and cost savings along with business impact in a white paper.

Schedule I: Service Level Agreement

ProdMetrics will use commercially reasonable efforts to provide 99.9% Application Availability measured per month. "Application Availability" means that the subscription Services are available 24 hours per day, 7 days per week, excluding any scheduled and unscheduled maintenance time to implement updates, upgrades or other modifications.

ProdMetrics will use commercially reasonable efforts to notify Client at least twenty-four (24) hours prior to any scheduled maintenance to minimize the effect of such maintenance on the subscription Services and as soon as practicable for any unscheduled maintenance or any known and verified unscheduled downtime.

Client shall not be entitled to any refund or credit where the Subscription Services are unavailable.

ProdMetrics will use commercially reasonble efforts to provide a prompt response to requests for support. Support services are offered on a best effort basis. ProdMetrics does not guarantee a timely response or resolution to any support query.