MotiveMetrics +AI Marketing Platform
Terms of Service

Last updated October 13, 2022

Terms of Service

These Terms of Service ("Agreement") are a legally binding agreement between the user or subscriber of the Service ("User" or "you") and MotiveMetrics Inc., a Delaware corporation with its principal place of business at 77 Sleeper Street, 2nd Floor, Boston, MA 02210, USA ("MotiveMetrics", "MM", "we" or "us"). By registering for the Service or by accessing or using the Service, you acknowledge that you have read, understood, and agree to be bound by the terms of this Agreement. If you are entering into this Agreement on behalf of yourself or a business or other legal entity, you represent and warrant that (a) you have the necessary power and authority to enter into these Terms of Service (if you are agreeing to these terms on behalf of your employer or other entity, you represent and warrant that you have full legal authority to bind your employer or such entity to these Terms of Service) and (b) your use of the Site and the Services will be in strict accordance with these Terms of Service, the Privacy Policy, and all applicable laws and regulations (including, without limitation, any local laws or regulations in your country regarding online conduct and acceptable content, and the transmission of personal data to the United States from the country in which you reside), and will not infringe, violate or misappropriate the rights of any person or third party. If you do not have such authority, or if you do not agree with the terms of this Agreement, you must not accept this Agreement and may not use the Service. You acknowledge that this Agreement is a contract between you and MotiveMetrics, even though it is electronic and is not physically signed by you, and it governs your use of the Service. As used herein, “Service(s)” means the specific edition of MotiveMetrics’s online marketing services and tools, developed, operated, and maintained by MotiveMetrics, accessible via the Site or another designated website or IP address, and any ancillary online or offline products and services provided to you by MotiveMetrics, to which you are being granted access under this Agreement, including without limitation the MotiveMetrics Technology (as defined below), the MotiveMetrics Content (as defined below) and any support services agreed to by MotiveMetrics.

Registration

Subject to the terms of this Agreement, MotiveMetrics will provide you with use of the Service, including a browser interface and data encryption, transmission, access and storage. Your registration for, and/or use of, the Service will be deemed to be your acknowledgement and binding consent to abide by this Agreement including any materials available on the MotiveMetrics website (“Site”) incorporated by reference herein, including but not limited to MotiveMetrics’s privacy policy (as detailed below). This Agreement governs all products and services offered by MotiveMetrics.

Privacy & Security

MotiveMetrics’s privacy policy may be viewed online at https://www.motivemetrics.com/privacy-policy. California residents can find details on our compliance with the California Consumer Privacy Act (“CCPA”) by visiting our Privacy Policy using this link: https://www.motivemetrics.com/privacy-policy. For Users residing in a European Union member state or Switzerland you may have additional rights under the EU General Data Protection Regulation (the “GDPR”), or under the Data Protection Act of 2018 if residing in the United Kingdom. We comply with all requirements for data processors and collectors as these terms are defined in the General Data Protection regulation and require our data service providers to agree to Standard Contractual Clauses approved by the European Commission. For a full list of your rights regarding our use and process of your Personal Data please review our Privacy Policy via the link included in this section. MotiveMetrics reserves the right to modify its privacy policy in its reasonable discretion from time to time. You consent to receive communications from us electronically. MotiveMetrics customers will always receive account related emails. When we modify our privacy policy you may be notified of the changes by email and will be required to confirm your consent the next time you access the Site after any changes. If you do not consent to any change in our privacy and security policies with respect to the collection and processing of your Personal Data and the change is required to provide you the requested services or for a legal reason, you agree that your refusal to consent may impair your use our services or require you to discontinue use of our services. MotiveMetrics reserves the right to disclose who its customers are, including disclosure on the Site and in its marketing materials. You may opt out of such disclosure at any time. As used herein, “opt out” means to unsubscribe and no longer receive product or service information; and “Personal Information” has the meaning provided in the MotiveMetrics Privacy Policy.

License Grant & Restrictions

MotiveMetrics hereby grants you a non-exclusive, non-transferable, limited, revocable, worldwide right to use the Service during the License Term, solely for your own internal business purposes, subject to the terms and conditions of this Agreement (“Subscription”). As used herein, “License Term(s)” means the period(s) during which a specified number of Users are licensed to use the Service pursuant to the Subscription(s). Subscription includes signing up for the Service online through the Service or in written form, specifying, among other things, the number of Users, if applicable, and other services contracted for, the applicable fees, the billing period, the payment method, and other charges as agreed to between the parties, each such Subscription to be incorporated into and to become a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Subscription, the terms of this Agreement shall prevail). In the event that your Subscription is provided for a specific number of Users, your license to use the Service is limited to the specified number of Users. All rights not expressly granted to you are reserved by MotiveMetrics and its licensors. You may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking, reverse engineering, or other competitive purposes. You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service, MotiveMetrics Technology or the MotiveMetrics Content in any way; (ii) modify or make derivative works based upon the Service, MotiveMetrics Technology or the MotiveMetrics Content; (iii) embed the Service as a “iframe” or “frame” from within another application; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using ideas, features, functions or graphics that are similar to those related to the Service, or (c) copy any ideas, features, functions or graphics of the Service. As used herein, “MotiveMetrics Content” means any thought leadership published or otherwise made available by MotiveMetrics, including without limitation white papers, blog content, newsletters and any other publications; and “MotiveMetrics Technology” means all of MotiveMetrics’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you by MotiveMetrics in providing the Service. The Service cannot be shared or used by more than one individual unless (and solely to the extent that) the Subscription allows for sharing within your internal organization. Sharing of the Service outside your organization is never allowed. The proper assignment of username and passwords for the Service and adherence to all terms of this Agreement and Subscription are your sole responsibility. You are responsible for maintaining the confidentiality of your usernames, passwords and accounts. Usernames and passwords may not be shared by more than one individual, and may not be transferred from one individual to another unless the original User no longer requires, and is no longer permitted, access to the Service. You agree to immediately change your password and notify MotiveMetrics of any suspected or unauthorized access associated with your use of the Service or any other breach of security. You may use the Service only for your internal business purposes and shall not: (i) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (ii) interfere with or disrupt the integrity or performance of the Service or the data contained therein, or the Site, servers or networks; (iii) attempt to gain unauthorized access to the Service or its related systems or networks; or (iv) take any action that imposes an unreasonably or disproportionately large load on MotiveMetrics’s infrastructure. MotiveMetrics shall be entitled to adjust the scope of the Service and the underlying technical infrastructure to reflect the continuing development of the Service and technical advances.

Your Responsibilities

You are responsible for all activity occurring under your User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify MotiveMetrics immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to MotiveMetrics immediately and use best efforts to stop immediately any copying or distribution of MotiveMetrics Content or Customer Content that is known or suspected by you or your Users; (iii) not impersonate another MotiveMetrics user or provide false identity information to gain access to or use the Service; (iv) not use the Service to defame, abuse, harass, threaten or otherwise violate the legal right of others; (v) not publish, post, upload, email, distribute or disseminate any defamatory, misleading, infringing or unlawful content; and (vi) not collect, store or transmit Personal Data about individuals or any information that is subject to applicable privacy laws or regulations. You are solely responsible for all text, logos and images (“Customer Content”), all advertisements and any website reachable from the advertisements generated using the Service. You hereby represent, warrant and covenant to MotiveMetrics and its third party suppliers that (i) any Customer Content you provide is and shall be accurate, complete and current, (ii) you have all necessary rights and are fully authorized to publish the Customer Content and create or have created advertisements, and (iii) all Customer Content complies with the requirements set forth by Google and Microsoft on their respective websites with respect to the Google Ad and Microsoft Advertising programs, as the case may be, including the trademark policies, policies regarding minors, editorial guidelines and creative limitations posted therein. You hereby authorize MotiveMetrics to allow such Customer Content and advertisements to be published throughout the network of advertising channels operated by Google and Microsoft, and their network of participating websites and other distribution outlets. You further represent, warrant and covenant to MotiveMetrics and its suppliers that (a) at all times you shall comply with all applicable law; (b) you will not generate, or encourage others to generate, automated or fraudulent impressions or clicks of advertisements on any Google or Microsoft advertising network; (c) you are responsible for obtaining and maintaining accounts for use of the Google Ads program and Microsoft Advertising program; (d) your use of the Google Ads program or Microsoft Advertising program is not for personal, family or household purposes; (e) your advertisements do not and will not advertise illegal activity or constitute illegal or fraudulent business practices in the jurisdiction in which the advertisements are displayed; (f) you will not misrepresent yourself, your age, or your affiliation with any person or entity, impersonate any person or entity, makes false or misleading statements; and (g) forge headers or otherwise manipulates identifiers in order to disguise the origin of any information transmitted to or through the Services (either directly or indirectly through use of third party software). Further, you acknowledge and agree that Google and/or Microsoft may, in its sole discretion, (i) edit your Customer Content for size and fit purposes, (ii) label any advertisement as a “sponsored site,” “advertisement” or similar designation for clarification purposes, (iii) create advertisements based upon the Customer Content and other specifications provided by MotiveMetrics through the applicable API, and (iv) create, delete, modify and optimize your account. MotiveMetrics does not own any Customer Content or advertisements provided by you hereunder, provided that you hereby grant MotiveMetrics a worldwide, royalty-free, non-exclusive right to use, reproduce, create derivative works of, distribute, perform, transmit and publish your Customer Content and advertisements for the sole purpose of providing you with the Service. You are solely responsible for all URLs required or used by you in connection with the Service. Any URL that includes or incorporates any variation of the name MotiveMetrics (a “MotiveMetrics URL”) shall (i) be owned by MotiveMetrics, (ii) require the consent of MotiveMetrics prior to your use, and (iii) only be used by you during the Term of this Agreement. Any URL used by you in connection with the Service that does not include or incorporate the name MotiveMetrics shall be owned by you. For the avoidance of doubt, you are solely responsible for all Customer Content provided or published by you in connection with the Service under any URL (including any MotiveMetrics URL).

Account Information and Data

MotiveMetrics does not own any keyword data, information, performance data, paid search campaigns or material that you submit to the Service in the course of using the Service (collectively, “Customer Data”). You hereby grant MotiveMetrics a worldwide, royalty-free, non-exclusive right during the License Term to use, reproduce, create derivative works of, distribute, perform, transmit and publish your Customer Data for the sole purposes of (i) processing your Customer Data in connection with providing the Service to you and (ii) storing or hosting the Customer Data in a remote database for access by your Users. Your private Customer Data is accessible only to you and persons explicitly authorized by you; data is NOT shared with other customers, or with any other third party; provided that MotiveMetrics reserves the right to use your Customer Data in order to compile, analyze and disclose to third parties aggregated metrics, data and trends related to the use of its offerings as long as such metrics, data and trends do not contain uniquely identifiable Customer Data. You, not MotiveMetrics, shall have sole responsibility for the accuracy, quality, integrity, legality, appropriateness, and intellectual property ownership or right to use all Customer Data, and MotiveMetrics shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. Use of the Service is subject to existing laws and legal processes. Nothing contained in this Agreement will limit MotiveMetrics’s right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Service, which may include disclosing your Customer Data to the applicable authorities. You are and shall remain the owner of all accounts with Advertising Platforms. MotiveMetrics is not a party to the financial relationship between you and the Advertising Platforms. Any fees charged by MotiveMetrics are for its software and service offerings only.

Intellectual Property Ownership

MotiveMetrics alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the MotiveMetrics Technology, the MotiveMetrics Content and the Service and any derivatives, suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service, and any aggregated metrics, data and trends compiled by MotiveMetrics. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the MotiveMetrics Technology or the Intellectual Property Rights owned by MotiveMetrics, Inc. The MotiveMetrics name, the MotiveMetrics logo, domain name, and the product and service names associated with the Service and MotiveMetrics Content are trademarks of MotiveMetrics and no right or license is granted to use them hereunder. In addition, all content published on the Site belongs to MotiveMetrics and/or its licensors under applicable copyright law. As used herein, “Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, trade dress, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.

Subscriptions and Payment

Trial Accounts : Unpaid trial and developer accounts are made available for Subscribers to test the functionality of the Service without incurring payment obligations (“Trial Accounts”). MotiveMetrics may suspend the Trial Account unless Subscriber converts its Trial Account to a paid account with a minimum monthly commitment after the conclusion of the Trial. Additional terms and conditions presented to Subscriber in connection with the registration for a Trial Account shall be binding on Subscriber. ALL TRIAL ACCOUNTS ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTY OF ANY KIND. TRIAL ACCOUNTS MAY BE SUSPENDED, TERMINATED, OR DISCONTINUED AT ANY TIME AND FOR ANY REASON (OR NO REASON). ANY CONFIGURATIONS OR SUBSCRIBER DATA ENTERED INTO A TRIAL ACCOUNT, AND ANY CUSTOMIZATIONS MADE TO A TRIAL ACCOUNT BY OR FOR SUBSCRIBER, MAY BE PERMANENTLY LOST IF THE TRIAL ACCOUNT IS SUSPENDED, TERMINATED, OR DISCONTINUED.

Paid Accounts : Users will be charged the fees set forth in the relevant Service Order or as otherwise agreed with MotiveMetrics in a written ordering document or other writing signed by MotiveMetrics and you (the "Fees"). You agree to pay the Fees monthly or annually in advance according to your Service Order, or as otherwise agreed between you and us, by credit card or another accepted payment method. If you decide to pay for the Services according to the invoice(s), you agree to pay all undisputed invoices within fifteen (15) days, unless otherwise mutually agreed between you and us in writing.

You agree that we may charge late fees of 1% per month for past due invoices, or the highest rate permitted by law, and you are liable for reasonable attorney fees and collection costs arising from our efforts to collect on past due amounts. If you fail to pay an invoice, we reserve the right to cancel your Subscription and access to the Service, and any data associated with your Subscription or the Service. You can access the details of your Service Order, including any prepaid amounts, by contacting support@motivemetrics.com. Any bank fees and charges shall be borne solely by you. MotiveMetrics’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on MotiveMetrics’s income. Users in jurisdictions that collect value-add tax (“VAT”) must register as a business to use this Service. By registering in a jurisdiction that requires the collection of VAT, you warrant and represent that you are a business. Upon registration of your account, you must provide MotiveMetrics your VAT registration number, and the name and principal address of your business so that we may comply with all VAT invoicing regulations. If you do not provide a valid VAT registration number or otherwise meet the requirements of this provision, MotiveMetrics reserves the right to terminate your account.

Disputed Charges

When asked, you agree to provide MotiveMetrics with complete and accurate billing and contact information. This information includes your legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact and License Administrator. As used herein, “License Administrator(s)” means those Users designated by you who are authorized to purchase licenses and Subscriptions online through the Service and to create User accounts and otherwise administer your use of the Service. You agree to update this information within thirty (30) days of any change to it. If the contact information you have provided is false or fraudulent, MotiveMetrics reserves the right to terminate your access to the Service in addition to any other legal remedies. All invoices and payments to MotiveMetrics will be in US Dollars. If you dispute any charge or amount on any invoice and such dispute cannot be resolved promptly through good faith discussions between the Parties, you shall pay the amounts due under the Service Order less the disputed amount, and the Parties shall proceed in good faith to promptly resolve such disputed amount. An amount will be considered disputed in good faith if (i) you deliver a written statement to MotiveMetrics on or before the due date of the invoice, describing in detail the basis of the dispute and the amount being withheld by you, (ii) such written statement represents that the amount in dispute has been determined after due investigation of the facts and that such disputed amount has been determined in good faith, and (iii) all other amounts due from you that are not in dispute have been paid as and when required under the Service Order.

Non-Payment and Suspension

In addition to any other rights granted to MotiveMetrics herein, MotiveMetrics reserves the right to suspend or terminate this Agreement and your access to the Service if your account becomes delinquent (falls into arrears). You agree and acknowledge that MotiveMetrics has no obligation to retain Customer Data or Customer Content and that such Customer Data and Customer Content may be irretrievably deleted if your account is thirty (30) days or more delinquent.

Term

This Agreement commences on the Start Date which is the day you sign up on the Site. Upon the expiration of the Initial Term, this Agreement will automatically renew for successive renewal terms equal in duration to the Initial Term (or one year, if the Initial Term is greater than one year) (each, a “Renewal Term”) at MotiveMetrics’s then current fees, unless either party gives Sufficient Written Notice. “Sufficient Written Notice” will be ninety (90) days prior to the expiration of the Initial Term or applicable Renewal Term, unless otherwise agreed upon. In the event this Agreement expires or is terminated for any reason, you agree to extract your Customer Data and Customer Content from the MotiveMetrics platform prior to the effective date of such expiration or termination. You agree and acknowledge that MotiveMetrics has no obligation to retain the Customer Data or Customer Content, and may delete such Customer Data and Customer Content 30 days after expiration or termination. Upon any expiration or termination of this Agreement, your rights to use any MotiveMetrics URLs shall immediately terminate. Upon any termination of this Agreement for any reason, all provisions regarding indemnification, warranty, liability and limits thereon, and any provisions which expressly or by their nature are required to survive such termination in order to achieve their purpose, shall so survive until it shall no longer be necessary for them to survive in order to achieve their purpose.

De-Registration

You may delete your User account at any time by sending a request to support@motivemetrics.com. If you delete your User account, MotiveMetrics may delete all your data and information stored on MotiveMetrics servers and MotiveMetrics will bear no responsibility for the deletion or loss of such data or information. Even if you delete your User account, you agree to pay all Fees incurred prior to de-registration until paid in full.

Termination for Cause

Any breach of your payment obligations or unauthorized use of the MotiveMetrics Technology or Service will be deemed a material breach of this Agreement. Without limiting its ability to pursue other remedies, MotiveMetrics, in its sole discretion, may terminate your password, account or use of the Service if you breach or otherwise fail to comply with this Agreement.

Copyright Policy

MotiveMetrics takes the intellectual property rights of others seriously and expects you to do the same on our website. We will respond to notices of copyright infringement that comply with the requirements of the Digital Millennium Copyright Act (“DMCA”) (17 U.S.C. § 512), or applicable law if contended infringement occurs outside the United States. If you believe in good faith that User Content available through our Services infringes one or more of your copyrights, you may provide us written notice (“Take Down Notice”) and include the following information: A physical or electronic signature of the owner or a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; Identification of the copyrighted work claimed to have been infringed (including a hyperlink to said work(s), if available), or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that website; Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material (including a hyperlink to said work(s)); Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an email; A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, his/her/its agent, or the law; and A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send MotiveMetrics a counter-notice. Any Take-Down Notice or counter-notice must meet the then-current statutory requirements imposed by the DMCA; see https://www.copyright.gov/title17/92appb.html for details. Any Take-Down Notice or counter-notice must be sent to: MotiveMetrics Inc., 77 Sleeper St, Second Floor, Boston, Massachusetts, 02210; or by email at support@motivemetrics.com. Consult your legal advisor before filing a notice or counter-notice as there are penalties for false claims under the DMCA.

Representations & Warranties

Each party represents and warrants that it has the legal power and authority to enter into this Agreement. MotiveMetrics represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online MotiveMetrics help documentation (as may be updated from time to time) under normal use and circumstances. In the event the Service fails to perform substantially in accordance with such help documentation, and you promptly notify MotiveMetrics, MotiveMetrics will use all commercially reasonable efforts to modify the Service and/or the documentation so that it materially conforms. The foregoing is your sole and exclusive remedy for MotiveMetrics’s failure to satisfy the foregoing representation. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct.

Mutual Indemnification

You shall indemnify and hold MotiveMetrics, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data or the Customer Content infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by you of your representations and warranties; (iii) a claim arising from the breach by you or your Users of this Agreement; or (iv) any use or alleged use of your accounts or your passwords by any person, whether or not authorized by you, provided in any such case that MotiveMetrics (a) gives written notice of the claim promptly to you; (b) gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release MotiveMetrics of all liability and such settlement does not affect MotiveMetrics’s business or Service); (c) provides to you all reasonably available information and assistance; and (d) has not compromised or settled such claim. MotiveMetrics shall indemnify and hold you and your parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with a third party claim alleging that the Service directly and knowingly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; provided that you (a) promptly give written notice of the claim to MotiveMetrics; (b) give MotiveMetrics sole control of the defense and settlement of the claim (provided that MotiveMetrics may not settle or defend any claim unless it unconditionally releases you of all liability); (c) provide to MotiveMetrics all reasonably available information and assistance; and (d) have not compromised or settled such claim. MotiveMetrics shall have no indemnification obligation, and you shall indemnify MotiveMetrics pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of your products, services, hardware or business process(es). If as a result of any infringement by the Service (other than as described in the preceding sentence) your use of the Service is enjoined by a court of law, MotiveMetrics will either modify the Service to make it non-infringing, acquire a license for you to continue using the Service, or if neither option is possible, refund to you the applicable fees paid by you in advance. The foregoing is your sole and exclusive remedy for any intellectual property infringement claim related to the Service.

Disclaimer of Warranties

MotiveMetrics and its licensors make no representation, warranty, or guaranty as to the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness of the Service or any MotiveMetrics content. MotiveMetrics and its managers, officers, directors, employees, contributor(s), licensors, licensees, service providers, and other affiliates (collectively “associated parties”) do not represent or warrant that (a) the use of the service will be secure, timely, uninterrupted or error-free or operate in combination with any other hardware, software, system or data, (b) the service will meet your requirements or expectations, (c) any stored data will be accurate or reliable, (d) the quality of any products, services, information, leads or other material purchased or obtained by you through the service will meet your requirements or expectations, (e) errors or defects will be corrected, or (f) the service or the server(s) that make the service available are free of viruses or other harmful components. Except as expressly set forth herein, the service and all content is provided to you strictly on an “as is” and “as available” 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 MotiveMetrics and associated parties. No opinion, advice, or statement of MotiveMetrics or any associated party, whether made on the service, or otherwise, shall create any warranty not otherwise expressly stated herein. It is your responsibility to evaluate the accuracy and completeness of any opinion, advice, information or statement available on MotiveMetrics service.

Limitation of Liability

In no event shall MotiveMetrics’ aggregate liability exceed the amounts actually paid by and/or due from you in the twelve (12) month period immediately preceding the event giving rise to any claim in question. 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 this Service, including but not limited to the use or inability to use the Service, or for any content obtained from or through the Service, any interruption, inaccuracy, error or omission, regardless of cause in the content, 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.

Internet Delays

MotiveMetrics’ services may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. MotiveMetrics is not responsible for any delays, delivery failures, or other damage resulting from such problems.

Additional Rights

Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.

Local Laws and Export Control

The Service provides services and uses software and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies and the export control regulations of other applicable countries. You acknowledge and agree that the Service shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States or any other applicable country maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Service, you represent and warrant that you are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. You agree to comply strictly with all U.S. and other applicable export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. The Service may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. MotiveMetrics and its licensors make no representation that the Service is appropriate or available for use in other locations. If you use the Service from outside the United States of America, you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the MotiveMetrics Content or Customer Content contrary to United States or other applicable law is prohibited. None of the MotiveMetrics Content or Customer Content, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical or biological weapons, or missile projects, unless specifically authorized by the United States government and other applicable governmental bodies for such purposes.

Communications and Notices

MotiveMetrics customers may receive account related emails, such as administrative notices and service announcements or changes regarding policies governing use of our Services.

Notice

MotiveMetrics may give notice by means of a general notice on the Service, electronic mail to your e-mail address on record in MotiveMetrics’s account information, or by written communication to your address on record in MotiveMetrics’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to MotiveMetrics (such notice shall be deemed given when received by MotiveMetrics) at any time by any of the following: letter to MotiveMetrics delivered by nationally recognized overnight delivery service or first class postage prepaid mail to MotiveMetrics, in either case, addressed to the attention of: MotiveMetrics.

Modification to Terms

MotiveMetrics reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on the Service. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute your consent to such changes.

Assignment; Change in Control

You may not assign or transfer this Agreement, or rights or obligations under it, without our prior written consent. We may assign this Agreement, in whole or in part, without restriction. Any assignment or transfer in violation of the foregoing shall be deemed void and of no effect. Subject to the foregoing, the provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.

Governing Law and Jurisdiction

All matters relating to the Service and this Agreement, and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the Commonwealth of Massachusetts without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of, or related to, this Agreement or the Service shall be instituted exclusively in the federal courts of the United States located in Massachusetts or the courts of the Commonwealth of Massachusetts located in Suffolk County, Massachusetts although we retain the right to bring any suit, action, or proceeding against you for breach of this Agreement in your country of residence or any other relevant country if you reside outside the United States. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts, including all forum non conveniens defenses.

Arbitration

Disputes in the United States and Non-European Member States : Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by confidential, binding arbitration in Suffolk County, Massachusetts, before one (1) arbitrator. The arbitration shall be initiated and conducted according to JAMS Arbitration Rules and Procedures, and where consistent, Massachusetts law, without regard to or application of conflict of law principles of your state or country of residence, at the Boston, Massachusetts office of JAMS including the Optional Appeals Procedure. If you reside out the Commonwealth of Massachusetts or the United State you understand and agree to submit to the jurisdiction and venue of Suffolk County, Massachusetts and hereby waive all forum non conveniens defenses. The arbitrator shall be a disinterested attorney or retired judge experienced in e-commerce and/or intellectual property matters. The arbitration will be conducted in the English language, but any witness whose native language is not English may give testimony in the witness’ native language, with simultaneous translation into English at the expense of the party presenting the witness. Judgment on any award may be entered in any court of competent jurisdiction. The Parties hereto consent to the jurisdiction of the Superior Court of the Commonwealth of Massachusetts, and the United States District for the District of Massachusetts, for purposes of enforcing this arbitration agreement and proceedings and entry of judgment on any award and further consent that any process or notice of motion or other application to the Court or the judge thereof may be served by certified or registered mail, return receipt requested. The prevailing party shall be awarded costs and reasonable attorneys’ fees associated with the arbitration. You understand that by using the Service or Site you GIVE UP YOUR RIGHT TO GO TO COURT, to assert or defend any claims between you and MotiveMetrics (except for matters brought in small claims court) BEFORE A JUDGE OR JURY. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction over the parties. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with this Agreement.

Attorney Fees : In any arbitration or court action between the parties to enforce this Agreement or the rights of the parties hereunder, the prevailing party in such action (as determined by the arbitral panel or court) will be entitled to receive a reasonable sum for its attorney’s fees and all other reasonable costs and expenses incurred in such action or suit.

Small Claims Action : If your claim meets the requirements to file a small claims action, you agree to the sole jurisdiction and venue of any small claims court located in Suffolk County, Massachusetts. To the extent state law applies, Massachusetts law shall govern without regard to or application of the conflict of law provisions of your state or country of residence.

No Class Action : You agree to give up your right to participate in a class action or class proceeding, including class arbitration, limited attorney general action, or other representative action or proceeding.

Disputes in European Member States and Switzerland : this Agreement is governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, USA, and the application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. MotiveMetrics both agrees to submit to the non-exclusive jurisdiction of the courts of the federal and state courts located in Suffolk County, in the Commonwealth of Massachusetts, USA, which means that you may bring a claim to enforce your consumer protection rights in connection with this Agreement in Massachusetts or in the EU country in which you live or Switzerland. If you are a resident of any European Union country or Norway, Iceland and Liechtenstein, the European Commission provides for an online dispute resolution platform, which you can access here: https://ec.europa.eu/consumers/odr. If you would like to bring a matter to our attention, please contact us at support@motivemetrics.com.

Limitation on Time to File Claims

ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE WEBSITE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

Force Majeure

We shall not be liable for failure or delay of performance of our obligations resulting from any condition beyond our reasonable control, including but not limited to, third party equipment or services, communications failure, governmental action, war, acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances.

Questions or Additional Information

If you have questions regarding this Agreement or wish to obtain additional information, please send an e-mail to support@motivemetrics.com.