metacog™, inc.
SUBSCRIPTION AGREEMENT

This Subscription Agreement, including the Service Level Agreement available at www.metacog.com/terms.html (the “SLA” and, together with this Subscription Agreement, the “Agreement) is a legal agreement between you and metacog™, Inc. (“metacog”) governing the use of the metacog™ API (the “API”) and the metacog™ Service (collectively, the “Service”) that you as “Customer” may access and use when you complete this Agreement as provided below.

By clicking on the “ACCEPT” button below, Customer is agreeing that it will be bound by the Agreement. Customer is also agreeing to metacog’s Privacy Statement available at www.metacog.com/privacy.html, as the same may be amended from time to time (the “Privacy Statement”). If Customer is an entity, and an individual is entering into the Agreement on its behalf, then Customer will be bound by this Agreement when that individual clicks on the “ACCEPT” button. When the individual does so, it will constitute a representation by that person that she or he is authorized to bind Customer as a party to the Agreement. If Customer does not agree to all of the terms of the Agreement, click the “DO NOT ACCEPT” button at the end of this Agreement.

In consideration of the mutual covenants and promises contained in the Agreement, metacog™ and the Customer hereby agree as follows:

  1. SERVICE USE; CUSTOMER DATA

    1. Subject to terms and conditions of the Agreement and during the Term, defined below, metacog™ hereby provides Customer with a limited, non-exclusive, non-transferable (except as set forth in Section 12.1) and terminable license to access and use the Service solely for Customer’s internal business operations and to use the API as a bundled component in Customer’s products and services that it licenses or otherwise similarly makes available to third parties (collectively, the “Integrated Services”). The API may not be provided by Customer to third parties on a stand alone basis and may not be used by such third parties separate or apart from the Integrated Services. Customer may permit its third party contractors, subject to confidentiality and use obligations at least as restrictive as those set forth in this Agreement, to access and use the Service solely in connection with services provided by such third party contractors to Customer. The use of the Service by Customer shall be limited to (i) use by the maximum number of users, and (ii) the maximum number of transactions selected by Customer in its enrollment in the Service. The metacog™ license will provide Customer the necessary passcodes to enable the users to access and use the Service, and Customer shall be responsible for the security of such passcodes.
    2. The term of this Agreement shall also apply to any modules or features subsequently provided by metacog™ to Customer, and/or that have been purchased by Customer from metacog™ that augment, enhance or are otherwise used in conjunction with the Service.
    3. No other rights with respect to the Service or its underlying software or other technology are granted under this Agreement.
    4. The parties acknowledge that, as between them, all data entered by Customer or its representatives or licensees into, or otherwise transmitted by such parties to the Service or Metacog’s systems (“Customer Data”) is owned by Customer. Customer Data does not include Aggregated Data, as described in Section 6.3, which shall be the property of metacog™.
    5. Customer is responsible for obtaining and maintaining all computer hardware, software and communications equipment needed to access and use the Service, and for paying all third-party access charges (e.g., ISP, telecommunications) incurred while accessing and using the Service. Further, Customer is solely responsible for its actions and the actions of any user of Customer’s account while using the Service and the contents of its transmissions through the Service. Customer agrees: (i) to abide by all local, state, national, and international laws and regulations applicable to Customer's use of the Service, including without limitation all laws regarding the transmission of technical data exported from the United States through the Service; (ii) not to upload or distribute in any way files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of the Service or another's computer; (iii) not to use the Service for illegal purposes; (iv) not to interfere or disrupt networks connected to the Service; (v) not to post, promote or transmit through the Service any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene, hateful, racially, ethnically or otherwise objectionable or offensive material of any kind or nature; (vi) not to post, promote or transmit through the Service any material that encourages conduct that could constitute a criminal offense or give rise to civil liability; (vii) not to interfere with another customer's use and enjoyment of the Service or another entity's use and enjoyment of similar services; (viii) not to use the Service to engage in contests, chain letters or post or transmit “junk mail,” “spam,” “chain letters,” or unsolicited mass distribution of email; and (ix) to comply with all regulations, policies and procedures of networks connected to the Service.
  2. RESTRICTIONS AND CONFIDENTIALITY

    1. Customer agrees to take all reasonable steps to protect the Service from unauthorized access or use. The Service, including the API, represents and embodies trade secrets of metacog™ or its licensors. The underlying source code, source data, and such trade secrets are not licensed to Customer. Any attempt to discover, reverse engineer, decompile, modify or otherwise discover the source code or source data is strictly prohibited. All agreements between Customer and its users relating to the Integrated Services will contain protections and limitations on the use of the API similar to the protections and limitations set forth herein.
    2. Confidentiality.
      1. “Confidential Information” means: (a) any non-public technical or business information of a party, including without limitation any information relating to a party's techniques, algorithms, know-how, current and future products and services, research, engineering, designs, financial information, procurement requirements, manufacturing, customer lists, business forecasts, marketing plans and information; (b) any other information of a party that is disclosed in writing and is conspicuously designated as “Confidential” at the time of disclosure or that given the circumstances surrounding the disclosure would be reasonably perceived as being confidential. All Customer Data will be deemed Confidential Information of Customer.
      2. “Confidential Information” will not include any information that (a) is or becomes generally known to the public through no fault or breach of this Agreement by the receiving party; (b) the receiving party can demonstrate by written evidence was rightfully in the receiving party's possession at the time of disclosure, without an obligation of confidentiality; (c) is independently developed by the receiving party without use of or access to the disclosing party's Confidential Information; or (d) the receiving party rightfully obtains from a third party not under a duty of confidentiality and without restriction on use or disclosure.
      3. Each party will at all times maintain in confidence all Confidential Information of the other party and will not use such Confidential Information except as expressly permitted herein. Each party will take all reasonable measures to maintain the confidentiality of such Confidential Information, but not less than the measures it uses for its confidential information of similar importance. Each party will limit the disclosure of such Confidential Information to those of its employees and contractors with a bona fide need to access such Confidential Information for a party’s exercise of its rights and obligations under this Agreement; provided that all such employees and contractors are subject to binding use and disclosure restrictions at least as protective as those set forth herein.
      4. Each party acknowledges that for any breach of this Section 2 by the other, the aggrieved party will not have an adequate remedy at law and may seek (without limiting the right to any other remedy) the entry of an injunction against any threatened or continuing breach by any court of competent jurisdiction.
  3. TERM OF AGREEMENT

    The term of this Agreement is for a total of twelve (12) months from the date of Customer’s acceptance of this Agreement, or such lesser free trial or research periods selected by Customer in its enrollment in the Service (“Initial Term”), unless earlier terminated pursuant to the “Termination Section” of this Agreement. For Customers who have selected a free trial or research period, this Agreement will terminate at the end of the applicable period. For all other Customers, at the end of the Initial Term this Agreement will automatically be extended for successive renewal terms of one (1) year each (each a “Renewal Term”) (collectively the “Term”) unless either party in its discretion elects not to renew and provides the other with written notice of its intention prior to the commencement of the Renewal Term.

  4. FEES AND PAYMENT

    1. When enrolling in the Service Customer will select either a Monthly or Annual Billing option (each such period being a “Billing Period”). Customer must pay the first Monthly Subscription Fee or Annual Subscription Fee (collectively, “Subscription Fees”) upon acceptance of this Agreement. Subsequent Monthly or Annual Subscription Fees will be due prior to the commencement of the subsequent Billing Period. With metacog™, the license reserves the right to terminate Customer’s access to the Service for or during any period of non-payment of a Subscription Fee. Except as specifically set forth in this Agreement, all fees are non-refundable.
    2. The fees and other amounts required to be paid under this Agreement are exclusive of taxes. Customer will be responsible for and will reimburse metacog™ for all sales, use, excise (but not corporate excise), or other similar state or local taxes. Such provision excludes metacog’s income taxes, franchise taxes (including corporate excise taxes), and taxes on metacog’s property used to provide the Services.
    3. All fees are in U.S. dollars. All past due amounts are subject to a late charge equal to the lower of (i) one and one-half percent (1.5%) per month, or (ii) the highest amount permitted by applicable law.
  5. SERVICE LEVELS AND MAINTENANCE

    1. According to the terms of the Agreement, metacog™ will provide the Service provide in accordance with the SLA.
    2. According to the terms of the Agreement, metacog™ will maintain the Service at a hosting facility that offers commercially reasonable security precautions to prevent unauthorized access to the Service. Customer acknowledges that, notwithstanding such security precautions, use of or connection to the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the Service and the Customer Data. By using metacog™, the Agreement cannot and does not guarantee the privacy, security or authenticity of any information so transmitted over or stored in any system connected to the Internet.
  6. INTELLECTUAL PROPERTY RIGHTS, USE OF DATA, TRADE NAMES AND TRADEMARKS; PERSONAL INFORMATION

    1. Except for the limited licenses to use the Service specified in this Agreement, all rights, title and interests, including without limitation intellectual property rights, in and to the Service, including the API, and all related documentation or other materials, are retained by metacog™ or its licensors.
    2. Customer party will not at any time do, permit or cause to be done, any act or thing that would impair or dilute Metacog’s rights in the Service or any related trademarks, service marks and trade names.
    3. Customer acknowledges and agrees that metacog™ may use and distribute aggregate, anonymized data derived from Customer Data and Customer’s other use of the Service (“Aggregated Data”) for purposes of analysis, reporting and developing improvements in the Service and the products and services offered by metacog™. In addition, metacog™ may use in its marketing and advertising the total number of users, search or transaction volumes, and other aggregate statistics to attract new customers.
    4. Customer represents and warrants that no Customer Data or other materials it or its representatives, users or agents provide to metacog™ pursuant to the Agreement will include any personally identifiable information that can be used on its own or with other information to identify, contact, or locate a single person, or to identify an individual in context. Customer shall comply in all respects with the Family Educational Rights and Privacy Act of 1974, as amended (“FERPA”), the Children’s Online Privacy Protection Act of 1998, as amended (“COPPA”) in its use of the Service and performance of the Agreement, and other applicable laws, and shall not provide to metacog™ any Customer Data or other materials that would result in metacog™ being subject to compliance with FERPA or COPPA. Customer represents that the use of data by metacog™ pursuant to Section 6.3 will not (i) infringe upon any person’s or entity’s intellectual property rights or other proprietary interests or invade any person’s or entity’s privacy and that (ii) the use of such data by metacog™ will not result in any violation of applicable law (including without limitation FERPA and COPPA) or any agreement to which Customer is a party or by which Customer is bound.
    5. Customer will indemnify, defend and hold metacog™ harmless from any and all claims, damages, losses, liabilities, costs and expenses (including reasonable attorney’s fees) arising out of or in connection with any breach of Customer’s representations or obligations set forth in this Section 6. Customer will have the sole and exclusive authority to defend and/or settle any such claim or action, provided that Customer will keep metacog™ informed of, and will consult with any independent attorneys appointed by metacog™ at its expense, regarding, the progress of such litigation.
  7. TERMINATION

    1. This Agreement may be terminated as follows:
      1. By either party, upon thirty (30) days written notice to the other party, if such party materially breaches any obligation required of it under this Agreement and such failure is not cured within such thirty (30) day period; or
      2. By either party if the other party files a petition for bankruptcy or insolvency, has an involuntary petition under bankruptcy laws filed against it, commences an action providing for relief under bankruptcy laws, files for the appointment of a receiver, makes an assignment for the benefit of creditors or is adjudicated a bankrupt concern; or
      3. By metacog™ upon ten (10) days written notice to Customer if Customer fails to perform any payment requirement under this Agreement and such failure is not cured within such ten (10) days period.
    2. Without limiting the foregoing, if Customer fails to pay any Subscription Fees or other amounts due to metacog™, metacog™ may block Customer’s access to and use of the Service until such payments are made. The exercise of the foregoing right will not in any way limit Metacog’s right to thereafter terminate this Agreement if such amounts remain unpaid. No termination of this Agreement will affect any obligation to make payment of outstanding amounts owed by Customer to metacog™.
    3. Upon any termination of this Agreement (i) Customer will immediately discontinue all use of the Service and delete and destroy all copies of any Confidential Information of metacog™, and metacog™ will promptly return to Customer all Customer Data (but not Aggregated Data).
    4. All payment obligations of Customer and the rights and obligations of the parties under Sections 2, 6, 8, 9, 10 and 12 will survive the termination of this Agreement.
  8. LIMITED WARRANTY

    1. The SLA specifies Customer’s sole remedies, and metacog’s sole liabilities, should the Service be unavailable for a period of time or for Errors (as defined below). The metacog™ Service will use reasonable efforts to provide advance notice of scheduled maintenance downtime. If Customer suspects an incorrect functioning of the Service (an “Error”), it must submit such information as required to reproduce operating conditions similar to those present when the suspected Error occurred. And metacog™ will use commercially reasonable efforts to address any Errors in the Service.
    2. metacog™ represents, warrants and covenants that it has the authority and the right to enter into this Agreement and to provide the Services under this Agreement.
    3. metacog™ HEREBY DISCLAIMS ALL WARRANTIES NOT EXPRESSLY MADE IN THIS AGREEMENT, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR USE.
  9. INFRINGEMENT

    1. If Customer promptly notifies metacog™ in writing of a third party claim or action against Customer of infringement or misappropriation of any U.S. patent, copyright, trademark or trade secret by reason of the use by Customer of the Service as permitted hereunder, metacog™ will defend such action at its expense and will pay any cost or damages that are awarded against Customer resulting from such action or agreed to in a settlement by metacog™. The metacog™ Service will have the sole and exclusive authority to defend and/or settle any such claim or action, provided that metacog™ will keep Customer informed of, and will consult with any independent attorneys appointed by Customer at Customer’s own expense regarding the progress of such litigation and provided that such settlement does not impose any liability (financial or otherwise) on Customer.
    2. Upon metacog’s sole determination, or after the entry of any judgment or order not subject to further appeal, that the use of the Service by Customer infringes upon the rights of any third party and that such use of the Service must cease, metacog™ at its election will, at its own cost and expense, either (i) procure for Customer the right to continue the use of the Service “as is” (ii) modify the Service in such a way that its use does not infringe upon the rights of third parties, or if options (i) and (ii) are not commercially practicable or (iii) terminate this Agreement by notice to Customer and refund to Customer the amount of any prepaid Monthly or Annual Subscription Fees. The foregoing states metacog’s entire liability and obligation, whether statutory, contractual, express, implied or otherwise, for claims of intellectual property infringement.
    3. Except where metacog™ is obligated to indemnify Customer as set forth above, Customer will indemnify, defend and hold metacog™ harmless from any and all claims, damages, losses, liabilities, costs and expenses (including reasonable attorney’s fees) arising out of or in connection with Customer’s use of the Service, except for claims based on Metacog’s negligence or unlawful conduct. Customer of will have the sole and exclusive authority to defend and/or settle any such claim or action, provided that Customer will keep metacog™ informed of, and will consult with any independent attorneys appointed by metacog™ at its expense, regarding, the progress of such litigation. The foregoing indemnification is in addition to the indemnification obligations of Customer under Section 6.5.
  10. LIMITATION OF LIABILITY

    METACOG’S AGGREGATE LIABILITY FOR ALL CLAIMS OR RELATED CLAIMS ARISING OUT OF THIS AGREEMENT DURING THE INITIAL TERM OR ANY RENEWAL TERM WILL NOT EXCEED THE SUBSCRIPTION FEES ACTUALLY PAID TO metacog™ BY CUSTOMER WITH RESPECT TO THE APPLICABLE TERM.

    CUSTOMER EXPRESSLY UNDERSTANDS AND AGREES THAT metacog™ SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF metacog™ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF CUSTOMER DATA; (iv) OR ANY OTHER MATTER RELATING TO THE SERVICE.

  11. PUBLICITY

    1. Customer agrees that metacog™ may, during the term of this Agreement, reference Customer’s names in publically available customer lists.
  12. MISCELLANEOUS

    1. This Agreement shall inure to benefit and bind the parties hereto, their successors and permitted assigns, provided, however that Customer may not assign this Agreement without Metacog’s prior written consent. Any attempt at assignment without such consent shall be null and void and of no force and effect.
    2. This Agreement does not create any joint venture, partnership, agency, or employment relationship between the parties.
    3. This Agreement, including the SLA, and the Privacy Statement, any exhibits and/or attachments hereto and thereto, and all Service enrollment forms or instructions sets forth the entire understanding and agreement between Customer and metacog™ and supersedes all proposals or communications, oral or written, between the parties relating to the subject matter of the Agreement. No modification of the Agreement shall be binding unless it is in writing and is signed by authorized representatives of both parties.
    4. This Agreement shall be governed in accordance with the laws of the Commonwealth of Massachusetts, USA. Any disputes, actions, claims or causes of action arising out of or in connection with this Agreement (or the Service) will be subject to the exclusive jurisdiction of the state or federal courts located in Boston, Massachusetts. In the event of any litigation of any controversy or dispute arising out of or in connection with this Agreement, its interpretations, its performance, or the like, the prevailing party shall be awarded reasonable attorneys’ fees and/or costs.
    5. No waiver or any right under this Agreement shall be deemed effective unless contained in writing signed by the waiving party’s duly authorized representative, and no waiver or any past or present right arising from any breach or failure to perform shall be deemed to be a waiver of any future right arising under this Agreement.
    6. Should any provision of this Agreement be invalid, ineffective, or unenforceable under present or future laws, the remainder of the provisions shall remain in full force and effect and in no way be affected, impaired, or invalidated.
    7. If by reason of labor disputes, strikes, lockouts, riots, war, inability to obtain labor or materials, earthquake, fire or other action of the elements, accidents, governmental restrictions, appropriation or other causes beyond the control of a party, either party is unable to perform in whole or in part its obligations as set forth in this Agreement, then such party shall be relieved of those obligations to the extent it is so unable to perform and such inability to perform shall not make such party liable to the other party. Neither party shall be liable for any loss, injury, delay or damages suffered or incurred by the other party due to the above causes.