MetricWorks Terms Of Service

These Terms of Service (the “Agreement”) constitute a binding contract between you and us.  Throughout this Agreement, we will refer to you as “you,” we will refer to us, our affiliates and subsidiaries as “we” or “us”.  This Agreement governs your use of the Services (as defined below). BY ACCESSING OR USING ANY PART OF THE SERVICE, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE, THEN YOU MAY NOT USE ANY PART OF THE SERVICE.  

1. Summary of Material Terms.  

As provided in greater detail in this Agreement (and without limiting the express language of this Agreement), you acknowledge the following:

1. the Service is licensed on limited terms, and not sold to you, and you may use the Service only as set forth in this Agreement;
2. the use of the Service may be subject to separate third-party terms and conditions (other than fees), which are your sole responsibility; and
3. the Service is provided “as is” without warranties of any kind and our liability to you is limited. 

Terms of Use

The Terms set forth in this Agreement (the “Terms”) apply to and govern your use of the Platform and serve as the agreement between MetricWorks AS with business identification number 920827632 having its registered office at Hvamsvingen 4, 2013 Skjetten, Norway (“MetricWorks”, “we”, “us” or “our”) and You (“Client”, “you” or “your”). The above named shall individually be referred to as a “Party” and collectively as the “Parties”. In consideration of the mutual covenants set forth herein, the Parties hereby agree as follows:

1. Definitions

“Account” refers to your account on the Platform.

“Campaign” refers to a planned series of advertisements that runs on Channels in particular places at particular times in order to advertise your Product.

“Channel” refers to any person or legal entity that supplies traffic to you.

“Event Ingestion” refers to the Platform features associated with, but not limited to, collecting events generated through use of a Product for the purpose of enabling other Platform features.

“Product Frequency” refers to the cadence on which input data is imported into the Platform, and outputs of the Incrementality Measurement features are refreshed and surfaced via the Interfaces.

“Product Granularity” refers to the dimensional granularity of the Product Metrics as output by the Incrementality Measurement features. Dimensions include, but are not limited to, channel, campaign, country, and site. The country dimension is always included in all supported Product Granularities.

“Incrementality Measurement” refers to the Platform features associated with, but not limited to, training models, predicting incremental value metrics, and designing and calculating results for incrementality experiments.

“Interface” refers to the online element that enables you to interact with the Platform graphically or programmatically including, but not limited to, web-based dashboards and application programming interfaces (APIs).

“Marketing Data Aggregation” refers to the Platform features associated with, but not limited to, querying, transforming, and storing Campaign data from integrated Channels including media spend, impressions, and clicks, and presenting it to you via a supported Interface.

“Product Metric” refers to a performance indicator in addition to a cohort day when the metric is cohorted by install date including, but not limited to, installs, retained users day 1, retained users day 7, sessions day 0, sessions day 7, revenue amount day 0, and revenue amount day 7.

“Platform” refers to the systems and software including, but not limited to, our proprietary suite of SaaS technology that enables us to provide the Services to you.

“Product” refers to any product, app, or service that is advertised in a Campaign. If the Product is an app, each mobile operating system on which it is released is considered a separate Product.

“Services” collectively refers to all services including, but not limited to, Event Ingestion, Incrementality Measurement, Marketing Data Aggregation, and User Acquisition Automation, and licenses provided to you by us.

“Released Parties” means us, our officers, directors, managers, Affiliates, employees, independent contractors and other related parties.  

“User Acquisition Automation” refers to the Platform features associated with, but not limited to, predicting lifetime value and other Product performance and marketing behavior, optimizing Campaigns, and automatically performing other Channel and Campaign management tasks as configured by you.

“Websites” collectively refers to all websites and domains owned by us.

2. Account

2.1 To enter into the Terms, you must be a corporate entity or an individual of at least eighteen (18) years of age.

2.2  If the signer signs the Terms on behalf of her/his employer or another entity, s/he represents and warrants that s/he has the full legal authority to bind her/his employer or such other entity to the Terms. 

2.3 You accept the Terms by registering on our Websites as a user on our Platform and verifying the email address you used for your registration and/or by e-signing and/or signing the Terms directly or as part of another document. 

2.4 The Terms shall commence and become binding on the Parties on the date on which both Parties have duly executed them (the “Effective Date”).

3. License

3.1 Subject to the Terms, we, in consideration for the applicable fees, hereby grant you a limited, non-transferable, non-exclusive, non-sublicensable, and revocable license to access, view, and use the Platform and any related information provided to you by us (the “License”).

3.2 The License does not include or authorize: (a) any reproduction, duplication, copying, sale, trading, resale, modification or any other commercial use of any portion of the Platform or any information contained therein other than as permitted by the Terms; (b) downloading (other than the page caching) of any portion of the Platform or any information contained therein, except as expressly permitted on the Platform; (c) decompiling or reverse engineering any part of the Platform; (d) using any meta-tags or any other “hidden text” utilizing Our trademarks without prior written consent; or (e) any use of the Platform or any information contained therein other than for their intended purpose. Any unauthorized use of the License is strictly prohibited and results in an immediate termination of the Terms.

3.3 Your data may be included in anonymous data sets to analyze trends, create indexes, and provide market, industry, and performance insights. For the avoidance of doubt, the Parties understand and agree that such data shall not include any personally identifiable information.

3.4 You agree that you shall not, in connection with your use of the Platform, violate any applicable law, ordinance, rule, regulation, or treaty.

4. Fixed Fee Period

The Products Subscription Fees as set forth in the online pricing calculator provided to you by us whether in the form of a billing page or other form (the “Online Price Calculator”) apply as of the Effective Date. For purposes of this Agreement, there is no “Fixed Fee Period”.

5. Subscriptions

5.1 Our Services are provided on a subscription basis per Product for the term selected by you. You may select your Services, subscription plan options, and payment method by email or in our Interface. Your selected subscription shall become effective immediately upon our written confirmation by email. That date is the first day of the Product Subscription Term (each a “Product Subscription Effective Date”).  The costs for such Services after the Fixed Fee Period (if any) will be as set forth in the Online Pricing Calculator whose output you agree to.  

5.2 In consideration for the provision of the Services (except during the Fixed Fee Period, if any), you shall pay us the applicable fees per the purchased Product Subscription (the “Product Subscription Fees”). Unless expressly set forth herein, the Product Subscription Fees are non-cancellable and non-refundable. We reserve the right to change the Product Subscription Fees at any time, upon notice to you if such change may affect your existing Product Subscriptions upon renewal.  The Product Subscription Fees are those fees set forth in the Online Price Calculator.  

5.3 You may change your Product Subscription, and/or payment method by email or in your Interface at any time with effective date upon response by us to you.

5.4 In the result your product subscription change set forth in this Section 5 results in higher fees, you shall be billed for the applicable increased amount of Product Subscription Fees, at our then-current rates (unless indicated otherwise in the Agreement), prorated for the remainder of the then-current Product Subscription Term, and the difference shall be due and payable by you upon the date on which the Product change was made.

5.5 Any Product change resulting in lower than then-current Product Subscription Fees during the then-current Product Subscription Term will not  result in the full or partial refund of your Product Subscription Fees for that term. Such pricing change will only take effect at the end of your current term. 

6. Invoicing and Payment

6.1 Our Product Subscription Fees are invoiced in US dollars (USD) unless otherwise agreed upon in writing. Our Product Subscription Fees are exclusive of VAT and any other government taxes and levies. You shall be solely responsible for VAT and other taxes and levies imposed on you by applicable laws and authorities concerning the Product Subscription Fees.

6.2 Our data and records shall be determinative for purposes of calculating the Product Subscription Fees due hereunder and shall be based on the output from the Online Price Calculator.

6.3 The fees set forth herein (the Product Subscription Fees) are prepaid and invoiced on the Product Subscription Effective Date via credit card and/or invoice, depending on the payment method(s) and option(s) offered by us at the time. You hereby authorize us, either directly or through our payment processing service, to charge such Product Subscription Fees via your selected payment method, upon the due date. Invoices are due and payable within 30 days of receipt. All payment fees, including but not limited to fixed and variable transaction fees and currency conversion fees, are borne by you and added to your invoices.

6.4 Unless otherwise agreed in writing, the fees that are part of the Product Subscription Fees for full and partial months are invoiced monthly in arrears via credit card and/or invoice, depending on the payment method(s) and option(s) offered by us at the time. You hereby authorize us, either directly or through our payment processing service, to charge such Product Subscription Fees via your selected payment method, upon the due date. Invoices are due and payable on receipt. All payment fees, including but not limited to fixed and variable transaction fees and currency conversion fees, are borne by you and added to your invoices.

6.5 In the event of failure to collect the Product Subscription Fees owed by you, we may, at our sole discretion (but shall not be obligated to) retry to collect at a later time, and/or suspend or cancel the Account, without notice. Partial or non-payment is considered a material breach of the Agreement. Interest on delayed payments accrues at one and a half percent (1.5%) per month, compounded monthly, or, if different, the maximum legal interest rate for late payment. We reserve the right to send your Account to debt collection in the event of partial or non-payment within the payment term and to use your Account information for debt collection purposes. You shall bear all direct and indirect debt collection costs.

7. Intellectual Property Rights

7.1 Unless otherwise indicated, the Platform and all related content, including without limitation the Websites, press releases, presentations, videos, tutorials, case studies, white papers, infographics, help center articles, help texts, and trademarks and the selection and arrangement thereof (jointly the “IP”) are our proprietary property or are licensed to us and are protected by Norwegian law and international intellectual property laws. Any use, copying, redistribution, or publication of the IP or any part thereof, other than as authorized by the Terms or expressly authorized in writing by us, is strictly prohibited. In addition to that, the look and feel of the IP, including but not limited to page headers, custom graphics, button icons, and scripts, is part of the IP and may not be copied, imitated, or used, in whole or in part, without our prior written permission. You do not acquire any ownership rights to the IP, and we reserve all rights not expressly granted in the Terms.

7.2 Nothing in the Terms shall be deemed to grant or assign to us any intellectual property rights, ownership rights, license rights, or interests of any kind in your trademarks, trade secrets, patents, copyrights, products, services, technology, or other proprietary content of yours which at all times remain your sole and exclusive property.

8. Confidentiality

8.1 “Confidential Information” means information that by its nature is confidential, is designated by the disclosing Party as confidential, that the receiving Party knows or ought to know is confidential and that is disclosed by or on behalf of the disclosing Party to the receiving Party, or otherwise is in the possession of the receiving Party, in connection with the Terms and whether disclosed before, on or after the Effective Date including information that is disclosed orally, in writing, or by any other means including but not limited to print, other graphical or documentary form, contained in the software, on computer disks or tapes (whether machine or user-readable), visually by way of model or demonstration and, in each case, any copy thereof.

8.2 Notwithstanding 8.1 above, Confidential Information shall not include information that

(a) entered or subsequently enters the public domain without breach of the Terms or any other obligation of confidentiality by the receiving Party;

(b) the receiving Party can demonstrate was already in its possession or known to it by being in its use or being recorded in its files or computers or other recording media before its receipt from the disclosing Party and was not previously acquired from or on behalf of the disclosing Party under any obligation of confidentiality;

(c) is disclosed to the receiving Party by a third-party without breach by the receiving Party or such third-party of any obligation of confidentiality owed to the disclosing Party;

(d) the receiving Party can demonstrate was independently developed for or discovered by the receiving Party, not as a result of any activities relating to the Terms;

(e) is hereafter disclosed by the disclosing Party to a third-party without restriction on disclosure or use, including without limitation by way of the registration of a patent specification; or

(f)  is disclosed by the receiving Party with the prior written permission of the disclosing Party.

8.3 The receiving Party shall not use the Confidential Information, except as necessary for the performance of the Terms, and shall not disclose such Confidential Information to any third-party, except to its employees and subcontractors who need to know such Confidential Information for the performance of the Terms and who are subject to a confidentiality agreement similar in substance to this section 8. The receiving Party shall protect the Confidential Information from unauthorized access, use, or disclosure with at least the same degree of care that the receiving Party uses to protect its confidential information of like nature, but in any event no less than reasonable care. The preceding obligations shall not restrict the receiving Party from disclosing the Confidential Information if required by the valid order of a court, administrative agency, or other governmental body or another valid legal process, provided that the receiving Party gives reasonable prior written notice to the disclosing Party that allows the disclosing Party to contest such an order or requirement.

9. Disclaimers

Except as expressly set forth herein, to the fullest extent of all applicable laws, the Websites (including all information thereon) and Platform are provided by us as a neutral host and on an “as is” basis, and we disclaim (a) all representations and warranties, expressed or implied, regarding the Websites and Platform, or otherwise relating to the Terms, including any implied warranties of merchantability, fitness for a particular purpose or arising from course of dealing or course of performance; (b) any warranty that the Websites and Platform or any information thereon shall operate uninterrupted, error-free, or that the servers are free of viruses, spyware, malware, or other harmful components; and (c) liability for any third-party security methods and protection procedures. Further, we make no representation or warranty for any results obtainable from the Platform or associated products. You shall use industry-recognized software to detect and disinfect viruses from any download. No advice or information, whether verbal or written, we give on the Websites, Platform, or otherwise shall create any warranty, representation, or guarantee not expressly stated herein. During and after the validity of the Terms any claim that is not made within the statutory limitation period shall be forfeited.

10. Limitation of Liability

10.1 Nothing in the Terms excludes or limits either Party’s liability to the other for (a) fraud or fraudulent misrepresentation; (b) voluntary or grossly negligent acts or omissions; (c) loss of life or personal injury; or (d) anything that cannot be excluded or limited by law.

10.2 Neither Party shall have any liability to the other (whether in contract, tort, or otherwise) under or in connection with the Terms for any special or indirect damages, including without limitation consequential damages, loss of profits, loss of savings, and damages resulting from the interruption of business regardless whether foreseeable, known, or otherwise.

10.3 The Platform may be incorporated into and may incorporate technology, software, and services owned or controlled by third parties. The use of such third-party software or services is subject to the terms and conditions of the applicable third-party (license) agreement(s) including without limitation terms of use and privacy policies, and you agree to look solely to the applicable third party and not to us to enforce any of your rights in relation thereto.

10.4 Each Party’s aggregate liability (whether in contract, tort, or otherwise) under or in connection with the Terms shall not exceed the net amount payable by you to us in any rolling 3-month period ending on the date that such liability arises.

11. Indemnification

11.1 The indemnifying Party (being either Party (as applicable)), at its own expense, shall defend, indemnify, and hold harmless the indemnified Party (being either Party (as applicable)) against any losses, damages, liabilities, penalties, costs, and expenses, including without limitation reasonable attorneys’ fees, and pay any settlement amounts or awarded damages arising out of any third-party claim, suit, or action to the extent that such claim, suit, or action is based upon an allegation that (a) the indemnifying Party’s performance of any of its obligations contemplated under the Terms infringes on any rights of any third party (including without limitation any intellectual property rights, privacy rights, or publicity rights); or (b) the indemnifying Party has breached any of its obligations, representations, or warranties hereunder. The preceding obligations are conditioned on the indemnified Party promptly notifying the indemnifying Party in writing of such claim.

11.2 The indemnified Party shall promptly notify the indemnifying Party of all claims that it becomes aware of, provided that a failure or delay in providing such notice shall not relieve the indemnifying Party of its obligations except to the extent that such Party is prejudiced by such failure or delay, and shall (a) provide reasonable cooperation to the indemnifying Party at the indemnifying Party’s expense in connection with the defense or settlement of all claims, and (b) be entitled to participate at its own expense in defense of all claims. The indemnified Party agrees that the indemnifying Party shall have sole and exclusive control over the defense and settlement of all claims. The indemnifying Party shall not acquiesce to any judgment or enter into any settlement, either of which imposes any obligation or liability on the indemnified Party, without the indemnified Party’s prior written consent.

11.3 In no event will any indemnification due to you or your Affiliate or your related party as a result of this Agreement exceed the cumulative fees paid by you under this Agreement.  

11.4 No Warranty.  

YOU UNDERSTAND AND AGREE THAT: (A) YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK, AND THE SERVICE, INCLUDING THE PLATFORM, IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND THE RELEASED PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES AS TO PRODUCTS OR SERVICES OFFERED BY BUSINESSES LISTED ON THE SERVICE, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT AND (B) THE RELEASED PARTIES MAKE NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS OR ACHIEVE ANY SPECIFIC RESULT, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) ANY DATA THAT MAY BE ACCESSED OR OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE,  OR (iv) ANY ERRORS IN THE SERVICE WILL BE CORRECTED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS IN THIS PARAGRAPH MAY NOT APPLY TO YOU.

YOU HEREBY REPRESENT THAT YOU HAVE FULLY OBSERVED, AND WILL FULLY OBSERVE, THE LAWS OF YOUR JURISDICTION IN CONNECTION WITH YOUR USE OF THE SERVICE AND THE RELEASED PARTIES WILL HAVE NO LIABILITY RESULTING FROM OR RELATED TO YOUR FAILURE TO OBSERVE SUCH LAWS.

11.5  Limitation of Liability.  

YOU UNDERSTAND AND AGREE THAT THE RELEASED PARTIES WILL NOT BE LIABLE TO YOU 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 THE RELEASED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) ANY COSTS OR DAMAGES SUFFERED BY YOU AS A RESULT OF THE SERVICE NOT WORKING AS INTENDED IN ANY MANNER; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) YOUR RELIANCE ON CONTENT OR DATA MADE AVAILABLE BY US; OR (vi) ANY OTHER MATTER RELATING TO THE SERVICE. 

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT OR LOSS OF DATA OR CONTENT OR THE PLATFORM; (II) PROPERTY DAMAGE OF ANY NATURE WHATSOEVER RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICE INCLUDING ANY PROBLEMS WITH THE PLATFORM; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE OR US; OR (V) ANY BUGS, VIRUSES, TROJAN HORSES, MALWARE OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVICE OR PLATFORM BY ANY THIRD PARTY.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE RELEASED PARTIES’ MAXIMUM LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE SERVICE OR YOUR USE OF PLATFORM OR SERVICES, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, OR OTHERWISE), WILL NOT EXCEED THE GREATER OF THE FEES YOU HAVE PAID TO US UNDER THIS AGREEMENT.

THE LIMITATIONS OF LIABILITY DESCRIBED ABOVE SHALL APPLY FULLY TO RESIDENTS OF NEW JERSEY.

11.6 Indemnification of Us

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD US AND THE RELEASED PARTIES HARMLESS FROM AND AGAINST ANY CLAIM OR DEMAND, INCLUDING WITHOUT LIMITATION, REASONABLE LAWYERS’ FEES, COSTS AND DISBURSEMENTS, MADE BY ANY THIRD PARTY IN CONNECTION WITH OR ARISING OUT OF YOUR USE OF THE SERVICE INCLUDING THE PLATFORM, YOUR CONNECTION TO THE SERVICE INCLUDING THE PLATFORM, YOUR USE OR RELIANCE ON THE PLATFORM, YOUR VIOLATION OF THIS AGREEMENT OR THE PRIVACY POLICY, YOUR VIOLATION OF APPLICABLE LAW, ANY REPRESENTATION BY YOU REGARDING THE ACCURACY OR RELIABILITY OF ANY OF YOUR DATA, YOUR VIOLATION OF ANY RIGHTS OF ANOTHER, ANY CLAIM RELATED TO YOUR DATA INCLUDING CLAIMS THAT YOUR DATA VIOLATES THE INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY IN ANY WAY. WE RESERVE THE RIGHT, AT OUR OWN EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF SUCH DISPUTES, AS APPROPRIATE, AND IN ANY EVENT YOU WILL COOPERATE WITH US IN ASSERTING ANY AVAILABLE DEFENSES.  

If you are a California resident, you hereby waive California Civil Code §1542, which says: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.” This release includes the criminal acts of others. If you are not a California resident but are a resident of the United States, you waive your rights under any statute or common law principle similar to Section 1542 that governs your rights in the jurisdiction of your residence.

12. Term and Termination

12.1 In order to ensure that you will not experience any interruption or loss of the Product Services, your Product Subscription includes an automatic renewal option by default, according to which, unless you cancel your Product Subscription prior to its expiration, the Product Subscription will automatically renew upon the end of the then-applicable Product Subscription Term, for a renewal period equal in time to the original Product Subscription Term (excluding extended periods) and, unless otherwise notified to you, at the same price (subject to applicable tax changes and excluding any discount or other promotional offer provided for the first Product Subscription Term unless indicated otherwise in the Agreement), thereby establishing a new Product Subscription Effective Date. Accordingly, unless either you or we cancel the Product Subscription prior to its expiration, we will attempt to charge you the applicable Product Subscription Fees upon or immediately prior to the expiration of the then-applicable Product Subscription Term. If you wish to avoid such auto-renewal, you shall cancel your Product Subscription, prior to its expiration, at any time through the Account settings or by contacting your MetricWorks’ customer success manager by email (the “Termination”). Except as expressly set forth in the Terms, in case you cancel your Product Subscription, during a Product Subscription Term, the Product Subscription will not renew for an additional period, but you will not be refunded or credited for any unused period within the Product Subscription Term.

12.2 Either Party may terminate the Agreement with immediate effect by written notice (with email being sufficient) to the other Party if (a) the other Party commits a material breach of the Terms and fails to remedy the breach (if remediable) within fourteen (14) days of receiving written notice to that effect specifying the breach and requiring it to be remedied. For the sake of clarity, any overdue invoice constitutes a material breach of the Agreement; (b) the other Party ceases to conduct its business operations; or (c) the other Party enters into a composition with its creditors, or goes into liquidation, or is dissolved, or adjudged insolvent, or is otherwise rendered incapable of performing its obligations under the Agreement without the consent of a third party.  

12.3 We may suspend the License and any other licenses and rights granted to you in connection with the Terms (the “Suspension”) at any time upon prior written notice (with email being sufficient) where we reasonably determine that (a) you are in material breach of the Terms; (b) any Campaign contains or links to content that is of an adult or explicit nature, offensive, indecent, harmful, threatening, defamatory, obscene, harassing, or otherwise unlawful; or (c) you, at any time, are conducting commercial activities that do not fully comply with all applicable local, state, federal, and foreign laws, rules, and regulations.

12.4 Any obligation that, by its nature, would survive the Termination including but not limited to sections 6 to 12 shall survive the Termination.

12.5 Client can request at any time during or after the contract period to have their data and/or their API keys removed from MetricWorks Platform.  MetricWorks will have 30 days to remove the data and confirm data has been removed.  

13. Representations and Warranties

Each Party represents and warrants that (a) it shall make no false or misleading representations, warranties, or guarantees concerning the other Party or any material aspects of the other Party’s business; (b) it has the authority and capacity to enter into the Terms, and it is not subject to any restrictive covenants or other legal obligations; (c) it shall perform its obligations under the Terms in a timely, competent, and professional manner and with all reasonable care and skill; and (d) it shall comply with any applicable law, ordinance, rule, regulation, and treaty and shall maintain any permits, licenses, and approvals required to perform its obligations hereunder.

14. Independent Parties

The relationship between the Parties is that of independent contracting parties. Nothing in the Terms shall constitute or be deemed to constitute a relationship of a joint venture, partnership, franchise, or similar arrangement between the Parties.

15. Governing Law

The Terms, and your relationship with us under the Terms, shall be governed by and construed in accordance with the laws of England and Wales, subject to applicable laws. Any claim, dispute, or matter arising under or in connection with the Terms shall be mutually resolved through negotiation to the extent possible. If the Parties fail to resolve any dispute arising hereunder through negotiation, each Party shall irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.

16. Entire Agreement

16.1 The Terms together with the Agreement, Schedule A, and Our Data Processing Terms (the “DPT”) constitute the entire and exclusive agreement between the Parties concerning the subject matter hereof, superseding any prior agreements, negotiations, and discussions (both written and oral) between the Parties relating thereto.

16.2 The Terms may be executed in two counterparts, each of which shall be deemed an original but all of which taken together shall constitute the same instrument.

17. Electronic Communication

Under any applicable statutes, regulations, rules, ordinances, or other laws including without limitation the Norwegian Act No 28/2001 on Electronic Signatures (the “E-Signature Law”) and other similar statutes, You hereby agree to the use of electronic signatures, contracts, orders, and other records, and the electronic delivery of invoices, credit notes, notices, policies, and other communication initiated or completed through the Platform. Further, you hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction that require a handwritten signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.

18. Force Majeure

Neither Party shall be liable, or be considered to be in breach of the Terms, on account of either Party’s failure or delay in the performance of its obligations under the Terms for any cause beyond the reasonable control of such Party, including but not limited to electrical outages, failure of Internet service providers, default due to internet disruption caused by denial of service attacks, riots, insurrection, war (or similar), fires, floods, earthquakes, and explosions.

19. Assignment

Neither Party may assign or otherwise transfer the Agreement or any rights and obligations hereunder, in whole or in part, to any person or entity without the other Party’s prior written consent, except in connection with a change of control transaction, provided that prompt written notice of such assignment has been provided to the other Party and that the acquirer has agreed in writing to comply with and be bound by all such Party’s obligations hereunder. Any purported assignment of rights in violation of this section shall be null and void.

20. Severability

The unenforceability of any provision of the Terms shall not affect any other provision hereof. Where such a provision is held to be unenforceable, the Parties shall use their best endeavours to negotiate and agree upon an enforceable provision which achieves to the greatest extent possible the economic, legal, and commercial objectives of the unenforceable provision.