Introduction
These terms of service set forth the expectations and requirements of an ‘organization’, ‘person’ acquiring Metrix services. By using our services, ‘You’, ‘Your organization’ or ‘Your representative(s)’ acknowledge and agree to the following terms and conditions.
Payment Term
When you purchase a service, you acknowledge and agree that:
a) the payment has been agreed upon based on the initial agreement.
b) If payment is a fixed amount, it is not refundable or avoidable due to a ‘change of mind’ (including where you choose to halt the project)
c) In the event of “Discovery” and preliminary work requests, you agree to pay the standard hourly rate, or the fixed discovery rate (Currently $189.00AUD per hour).
d) If a payment schedule is in place, you agree to pay at the milestone or completion stages set forth.
You agree to provide us with a valid credit card or another payment method acceptable to us for payment of the Subscription Fee and the On-Boarding Fee. By providing us with your payment details, You expressly authorize us to charge You for all Fees incurred in connection with your purchase of service.
Metrix will not increase the payment amount during the development phase, except where You add or update the initial requirements.
Changes to this Agreement or The Services
You acknowledge and agree that:
a) Metrix is required to continually update and change its software and related services offering in order to maintain currency with industry standards and third-party IT infrastructure, and otherwise meet it’s business and other requirements:
b) The payment for the Service has been determined and agreed on the basis that Metrix will have the flexibility to change the Services and these Terms as set out in this Agreement.
Metrix may from time to time update, change, or amend these Terms and/or the Service (a Service Change). However, Metrix will not make a Service Change that deprives you of a substantial or, material benefit of the Services or these Terms.
Metrix Service Requirements
You are responsible for ensuring that you comply with the System Requirements throughout Your project deliverables.
In order to maintain currency with industry standards and third-party IT systems, the Metrix System requirements are subject to change from time to time. Metrix will notify you of the Service Change by email sent to Your nominated contact, and the updated Terms will be located on the website. The Services Change will take effect thirty days after the date the email is sent to You or at such a later time specified by Metrix.
You agreed that:
a) The payment has been agreed upon on the basis of the initial requirements stated by you, Metrix may update the payment amount once you change your requirements during the development: and
b) You will not have any right to a refund of any Fees, or other remedies if you no longer require the project or services which have been developed at your request by Metrix.
Access to the Services may require the Customer to install certain software applications. The customer agrees to be bound by any End-User Software Agreements that govern the installation and use of such client software applications. Suppose Metrix authorizes the Customer to distribute any such application to its end-user content customers (“End Users”). In that case, the Customer may do so only after effectively binding such End Users to the applicable End-User Software Agreements provided by Metrix.
Customer 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 not allowed 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 any purpose other than its use for the benefit of End Users; or use the Services or Software other than following 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).
The customer will cooperate with Metrix 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 Metrix may reasonably request. The Customer will also cooperate with Metrix in establishing a password or other procedures for verifying that only designated employees of the Customer have access to any administrative functions of the Services.
The customer will designate an employee responsible for all matters relating to this Agreement (“Primary Contact”). The customer may change the individual designated as Primary Contact at any time by providing written notice to Metrix.
A customer at this moment agrees to indemnify and hold harmless Metrix 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 preceding or otherwise from Customer’s use of Services. Although Metrix has no obligation to monitor the content provided by Customer or Customer’s use of the Services, Metrix 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 preceding.
The customer will be responsible for maintaining customer account security, passwords (including but not limited to administrative and user passwords), and files, and for all Customer account uses with or without the Customer’s knowledge or consent.
The customer acknowledges and agrees that the Services operate on or with or using application programming interfaces (APIs) and other services operated or provided by third parties (“Third Party Services”). Metrix is not responsible for the operation of any Third Party Services or the Services’ availability or operation to the extent such availability and operation are dependent upon
Third-Party Services
The Customer is solely responsible for procuring any rights necessary to access Third Party Services and comply with any applicable terms or conditions thereof. Metrix does not make any representations or warranties concerning Third Party Services or any third party providers. Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third-party provider and is governable by such third party’s terms and conditions
Users
You may access and use the services developed for you with respect to the final authentic user credentials. You are responsible for additional user access if you authorize any other personnel on your premises.
You are responsible for all activities occurring under Your device accounts, including Your User’s compliance with these Terms. You indemnify Metrix for any loss, damage, cost or expense it suffers or incurs as a result of an act or omission of any of Your Users, or any other person using an account allocated to one of your Users.
Intellectual Property Rights
Except as expressly set forth herein, Metrix alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Service or the Software or any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by the customer or any third party relating to the Service and the Software, which are now assigned to Metrix. Customer will not copy, distribute, reproduce or use any preceding except as expressly permitted under this Agreement. The customer is granted a non-exclusive, non-transferable, revocable right to only use the Resulting Data for internal analysis purposes. This Agreement is not a sale and does not convey to customers any ownership rights in or related to the Service or Software or any intellectual property rights.
Metrix will obtain and process documentation content/data provided by or on behalf of the customer (“Content”) only to perform its obligations under this Agreement. Customer and its licensors shall (and the customer now represents and warrants that they do) have and retain all right title and interest (including, without limitation, sole ownership of) all Content distributed through the Services and the intellectual property rights concerning that Content. Suppose Metrix receives any notice or claim that any Content, or activities hereunder concerning any Content, may infringe or violate the rights of a third party (a “Claim”). In that case, Metrix may (but is not required to) suspend activity hereunder concerning that Content and Customer will indemnify Metrix from all liability, damages, settlements, attorney fees, and other costs and expenses in connection with any such Claim, as incurred.
Metrix shall hold the customer harmless from liability to unaffiliated third parties resulting from infringement by the Service of any copyright or misappropriation of any trade secret, provided Metrix is promptly notified of any threats, claims, and proceedings related to it and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Metrix will not be responsible for any settlement it does not approve. The previous obligations do not apply for portions or components of the Services:
a) Not created by Metrix.
b) Resulting in whole or in part per Customer specifications.
c) Those are modified after delivery by Metrix.
d) Combined with other products, processes, or materials where the alleged infringement relates to such combination.
e) The customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement.
f) Where the customer’s use is not strictly under this Agreement and all related documentation.
The customer will indemnify Metrix from damages, costs, settlements, attorneys’ fees, and expenses related to any claim of infringement or misappropriation excluded from Metrix’s indemnity obligation by the preceding sentence.
Support & Maintenance
Metrix shall provide support during the purchase of service as described on the website; support offerings may change from time to time in accordance with clause 2 of this Agreement.
Failure to maintain the System Requirements may preclude the Client from receiving technical support.
Metrix support will be unavailable at times for routine maintenance, and unless notified and otherwise will be unavailable outside of Metrix’s standard support hours.
Additional support will be charged at the additional payment.
Training
If You need to cancel a scheduled training with Metrix, You must notify Metrix as soon as possible. If You cancel training within a business day of the scheduled time, and/or if You cancel multiple scheduled training, You may be charged a cancellation fee. [If You schedule more than one training at a time, without the express approval of Metrix, then Metrix reserves the right to cancel the additional scheduled training]
Taxes & GST
You shall be responsible for any and all taxes or any change imposed by government entities (other than the taxes on Metrix’x income).
[Except where the Fees are expressly stated as being ‘GST inclusive’, all Fees are exclusive of any applicable GST.
If one of the parties is entitled to be reimbursed for an expense or outgoing incurred in connection with this agreement, the amount of the reimbursement will be net of any input tax credit which may be claimed by the party being reimbursed in relation to the expense or outgoing.
If payment is calculated by reference to or as a specified percentage of another amount or revenue stream, that payment will be calculated by reference to or as a specified percentage of the amount of revenue stream exclusive of GST]
Confidential information
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 (from now on referred to as “Proprietary Information” of the Disclosing Party).
The Receiving Party agrees:
a) not to divulge to any third person any such Proprietary Information,
b) to give access to such Proprietary information solely to those employees with a need to have access to it for purposes of this Agreement, and
c) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary information that the party takes with its 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 preceding will not apply concerning any information that the Receiving Party can document:
i) is or generally becomes available to the public without any action by, or involvement of, the Receiving Party, or
ii) was in its possession or known by it before receipt from the Disclosing Party, or
iii) was rightfully disclosed to it by a third party, or
iv) was independently developed without the use of any Proprietary Information of the Disclosing Party.
Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information according 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, Metrix may collect data for and report on the aggregate response rate and other aggregate measures of the Services’ performance.
Customer acknowledges that Metrix does not wish to receive any Proprietary Information from Customer that is not necessary for Metrix to perform its obligations under this Agreement, and, unless the parties specifically agree otherwise, Metrix may reasonably presume that any unrelated information received from Customer is not confidential or Proprietary Information.
Both Parties will have the right to disclose the existence but not the terms and conditions of this Agreement unless such disclosure is approvable in writing by both Parties before such disclosure or includes in a filing required by a Party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or protective order) or on a confidential basis as reasonably necessary to potential investors or acquirers.
Client Data
You retain all ownership of all data that You (or any of Your Users) upload or import to, or generate from, the Services (Client Data). This includes (but is not limited to) documents, contacts, and other entries. You acknowledge and agree that Metrix may need to access and view Client data to assist with Your queries, technical support requests, training, or other issues. Metrix will not access Your Client data without first advising You( or advising the request or issue), and will only access Client Data that is reasonably necessary to address or complete Your request or issues.
To the extent that You give Metrix access to Client Data, Metrix shall treat Your data as confidential and will use and disclose it only in accordance with its Privacy Policy.
Metrix reserves the right to provide Client Data to the third parties if required or compelled by law (including court orders or subpoenas) or direction of government authority or to comply with a request of law enforcement authorities in an investigation of a criminal or civil matter. Metrix shall provide You with notice of the legal process, to the extent allowed by law.
You are responsible for ensuring that You have all necessary rights or consents, including third-party privacy consents, to enable You to provide Client Data to Metrix and to permit Metrix to access and use the Client Data for the purpose of delivering the Services and otherwise in accordance with the Agreement (Client Consents). You indemnify Metrix for any loss, damages, costs, and expenses. Metrix suffers or incurs as a result of Your failure to obtain (and maintain) Client Consent.
Data Security
Metrix takes a number of organizational, technical, and physical measures designed to protect Your Data, both during transmission and once we receive it. Those measures are described in our Security Policy which is available on the website.
Usage Data
Usage Data means data related to the use or operations of the Services, such as anonymous usage-related data, and technical data collected in connection with the use of Services. It does not include any of Your User data or Your Personal Information. Metrix reserves the right to collect, aggregate, monitor, and use Usage Data to improve the functionality and performance and aid in the further development of Services.
Also, any feedback, comments, recommendations, feature requests, ideas, and suggestions for improvements to Metrix (“Feedback”) will be considered non-confidential and non-proprietary to You. All feedback shall be exclusively owned by Metrix.
Liability
You acknowledge and agree that:
a)We provide the Service to You subject only to the terms, conditions, and warranties expressly contained within these Terms, and those imposed by Law which cannot be excluded;
b) The Services have not been specifically designed or tailored for You, and You are responsible for ensuring that the Services will meet Your Requirements and will achieve the results that You wish to achieve from the Use of the Services;
c) You are responsible for ensuring that You have the software, hardware or other systems or infrastructure required to access and use the Service, including by complying with the Metrix System requirements.
You should be aware that certain guarantees may be conferred on You under the Australian Consumer Law. Nothing in this Agreement limits excludes or modifies any terms, warranties, and guarantees that are conferred on You under the Australian Consumer Law and which it is unlawful under the Australian Consumer Law to exclude (Non- Excludable Terms).
If it is legally permitted to do so, where Metrix is liable for breach of any such Non-Excludable Term, then Metrix limits its liability to the following:
a) In the case of good, one or more of the following at Metrix’s discretion:
i) The replacement of the services of equivalent services;
ii) The support and maintenance of the service;
iii) The payment of the cost of renewal of the services or of acquiring equivalent services; or
iv) The payment of having the services updated; and
b) In the case of services:
i) The supplying of the services again; or
ii) The payment of the cost of having the Services supplied again.
Except to the extent of Metrix’s liability under a Non-Excludable term, and without limiting and excluding your obligation to pay the fees under this Agreement:
a) Neither Metrix nor You should be liable to the other for any indirect, incidental, consequential, special, exemplary, or punitive damages (including, without limitations, damage for the loss of the business profits, loss of revenue, loss of goodwill, loss of business opportunity, loss of data, work stoppage, computer failure, and malfunction,) whether under a theory of contract, warranty, tort or otherwise, even if the other party has been notified of possible damages; and
b) In no event shall either party’s total aggregate and cumulative for any and all claims of any kind arising as result or of related to the Service provided, exceed the sum of the Fees actually paid by You for a period of one year immediately preceding the date the cause of action arose.
Force Majeure
Neither party shall be responsible for any interruption, delay, or other failures to perform any obligation under these terms (other than an obligation to pay the fees or other money) that cost by Force Majeure Event. Force Majeure Event shall mean Act of God, natural disasters (e.g. lightning, earthquake, storms, and floods), wars, riots, explosions, terrorism, vandalism, civil unrest, government acts, pandemics (whether declared or undeclared and including restrictions imposed as a result of pandemics). Injunctions., failure of a telecommunication provider or Internet Service Provider; and any other cause beyond the reasonable control of a party.
Severability
If any provision of these Terms is held to be invalid or unenforceable, the provisions shall be modified and interpreted so as to best accomplish the objectives of the original provision as permitted by law, and the remaining provisions shall remain in full force and effect.
Choice of Law
These Terms and any dispute arising out of or in connection with these terms shall be governed by and construed under the laws of Queensland.
No Relationship
Nothing in these Terms shall be construed as creating a joint venture, partnership agency, employment, franchise or other relationship between You and Metrix. Neither party to these Terms shall have the right, power, or authority to create any obligation or duty, express or implied, on behalf of the other party.
Notices
You agree that we may provide You with any or all notices, statements and other communication to you through email, regular post, or by recognized commercial carrier addressed to the address listed on the Agreement.
You are responsible for providing Metrix with any changes or updates to Your contact information.
We will email Your nominated address for important Service announcements, including any Service changes. Operational emails are not for marketing purposes and cannot be opted out of.
All notices of Metrix shall be made via email to Your nominated account manager, or other addresses notified by Metrix from time to time.
Privacy & GDPR
Metrix may collect personal information in connection with the Services, That personal information will be treated in accordance with our Privacy Policy, which is available on the Metrix website.
From time to time Metrix may call and contact You about Your account, and receive calls from You. Metrix may record those calls and contacts, and store those records, in accordance with its Privacy Policy and subject to applicable laws.
[Metrix does not offer any products or services to individuals located in the European Union (EU). However, where applicable, Metrix complies with relevant requirements of the EU’s General Data Protection Regulator (GDPR) as a ‘data processor’].
Useful Resources
Metrix Terms of Service are subject to change and can be accessed on our website.
- Security Policy
- Privacy Policy