ENCOMPASS TERMS OF SERVICE
These Encompass Terms of Service (this "Agreement") are entered into by EKM Metering Inc. (“EKM") and the entity executing this Agreement ("You"). This Agreement governs Your use of the standard Encompass (the "Service"). BY CLICKING THE "I ACCEPT" BUTTON, COMPLETING THE REGISTRATION PROCESS, OR USING THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE REVIEWED AND ACCEPT THIS AGREEMENT AND ARE AUTHORIZED TO ACT ON BEHALF OF, AND BIND TO THIS AGREEMENT, THE OWNER OF THIS ACCOUNT. In consideration of the foregoing, the parties agree as follows:
"Account" refers to the billing account for the Service. All Profiles linked to a single Property will have their Hits aggregated before determining the charge for the Service for that Property.
"Confidential Information" includes any proprietary data and any other information disclosed by one party to the other in writing and marked "confidential" or disclosed orally and, within five business days, reduced to writing and marked "confidential". However, Confidential Information will not include any information that is or becomes known to the general public, which is already in the receiving party's possession prior to disclosure by a party or which is independently developed by the receiving party without the use of Confidential Information.
"Customer Data" means the data concerning the characteristics and activities of Visitors that is collected through use of Encompass and then forwarded to the Servers and analyzed by the Processing Software.
"Documentation" means any accompanying documentation made available to You by EKM for use with the Processing Software, including any documentation available online.
"Processing Software" means the EKM server-side software and any upgrades, which analyzes the Customer Data and generates the Reports.
"Profile" means the collection of settings that together determine the information to be included in, or excluded from, a particular Report. For example, a Profile could be established to view a small portion of a web site as a unique Report. There can be multiple Profiles established under a single Property.
"Property" means a group of web pages or apps that are linked to a Customer Account. Each Property includes a default Profile that measures all pages within the Property.
"Report" means the resulting analysis shown at http:///www.encompass.io for a Profile.
"Servers" means the servers controlled by EKM (or its wholly owned subsidiaries) on which the Processing Software and Customer Data are stored.
"Third Party" means any third party (i) to which You provide access to Your Account or (i) for which You use the Service to collect information on the third party's behalf.
"Visitors" means visitors to Your Properties.
The words "include" and "including" mean "including but not limited to."
2. Fees and Service.
Subject to Section 15, the Service is provided without charge to You. Encompass may change its fees and payment policies for the Service from time to time including the addition of costs for geographic data, the importing of cost data from third party APIs, or other fees charged to EKM or its wholly-owned subsidiaries by third party vendors for the inclusion of data in the Service reports. The changes to the fees or payment policies are effective upon Your acceptance of those changes which will be posted at http:///www.encompass.io. Unless otherwise stated, all fees are quoted in U.S. Dollars. Any outstanding balance becomes immediately due and payable upon termination of this Agreement and any collection expenses (including attorneys' fees) incurred by EKM will be included in the amount owed, and may be charged to the credit card or other billing mechanism associated with Your Encompass account.
3. Member Account, Password, and Security.
To register for the Service, You must complete the registration process by providing EKM with current, complete and accurate information as prompted by the registration form, including Your e-mail address (username) and password. You will protect Your passwords and take full responsibility for Your own, and third party, use of Your accounts. You are solely responsible for any and all activities that occur under Your Account. You will notify EKM immediately upon learning of any unauthorized use of Your Account or any other breach of security. EKM's (or its wholly-owned subsidiaries') support staff may, from time to time, log in to the Service under Your customer password in order to maintain or improve service, including to provide You assistance with technical or billing issues.
4. Nonexclusive License.
Subject to the terms and conditions of this Agreement, You may remotely access, view and download Your Reports stored at http:///www.encompass.io. You will not (and You will not allow any third party to) (i) copy, modify, adapt, translate or otherwise create derivative works of the Software or the Documentation; (ii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software, except as expressly permitted by the law in effect in the jurisdiction in which You are located; (iii) rent, lease, sell, assign or otherwise transfer rights in or to the Software, the Documentation or the Service; (iv) remove any proprietary notices or labels on the Software or placed by the Service; (v) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Service or the Software; or (vi) use data labeled as belonging to a third party in the Service for purposes other than generating, viewing, and downloading Reports. You will comply with all applicable laws and regulations in Your use of and access to the Documentation, Software, Service and Reports.
Neither party will use or disclose the other party's Confidential Information without the other's
prior written consent except for the purpose of performing its obligations under this Agreement or if required by law, regulation or court order; in which case, the party being compelled to disclose Confidential Information will give the other party as much notice as is reasonably practicable prior to disclosing the Confidential Information. Upon termination of this Agreement, the parties will promptly either return or destroy all Confidential Information and, upon request, provide written certification of such.
6. Information Rights and Publicity.
To the extent permitted by applicable law, You will indemnify, hold harmless and defend EKM and its wholly owned subsidiaries, at Your expense, from any and all third-party claims, actions, proceedings, and suits brought against Encompass or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, reasonable attorneys' fees and other litigation expenses) incurred by EKM or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (i) Your breach of any term or condition of this Agreement, (ii) Your use of the Service, (iii) Your violations of applicable laws, rules or regulations in connection with the Service, (iv) any representations and warranties made by You concerning any aspect of the Service, the Software or Reports to any Third Party; (v) any claims made by or on behalf of any Third Party pertaining directly or indirectly to Your use of the Service, the Software or Reports; (vi) violations of Your obligations of privacy to any Third Party; and (vii) any claims with respect to acts or omissions of any Third Party in connection with the Service, the Software or Reports. EKM will provide You with written notice of any claim, suit or action from which You must indemnify Encompass. You will cooperate as fully as reasonably required in the defense of any claim. EKM reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by You.
9. Third Parties.
If You use the Service on behalf of the Third Party or a Third Party otherwise uses the Service through Your Account, whether or not You are authorized by EKM to do so, then You represent and warrant that (a) You are authorized to act on behalf of, and bind to this Agreement, the Third Party to all obligations that You have under this Agreement, (b) EKM may share with the Third Party any Customer Data that is specific to the Third Party's Properties, and (c) You will not disclose Third Party's Customer Data to any other party without the Third Party's consent.
10. DISCLAIMER OF WARRANTIES.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, EKM MAKES NO OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NONINFRINGEMENT.
11. LIMITATION OF LIABILITY.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, EKM WILL NOT BE LIABLE FOR YOUR LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THE EKM OR ITS SUBSIDIARIES AND AFFILIATES HAVE BEEN ADVISED OF, KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY. EKM'S (AND ITS WHOLLY OWNED SUBSIDIARIES' TOTAL CUMULATIVE LIABILITY TO YOU OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES RESULTING FROM CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL NOT EXCEED $500 (USD).
12. Proprietary Rights Notice.
The Service, which includes the Software and all Intellectual Property Rights therein are, and will remain, the property of EKM (and its wholly owned subsidiaries). All rights in and to the Software not expressly granted to You in this Agreement are reserved and retained by EKM and its licensors without restriction, including, EKM's (and its wholly owned subsidiaries') right to sole ownership of the Software and Documentation. Without limiting the generality of the foregoing, You agree not to (and not to allow any third party to): (a) sublicense, distribute, or use the Service or Software outside of the scope of the license granted in this Agreement; (b) copy, modify, adapt, translate, prepare derivative works from, reverse engineer, disassemble, or decompile the Software or otherwise attempt to discover any source code or trade secrets related to the Service; (c) rent, lease, sell, assign or otherwise transfer rights in or to the Software or the Service; (d) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Service or the Software; (e) use the trademarks, trade names, service marks, logos, domain names and other distinctive brand features or any copyright or other proprietary rights associated with the Service for any purpose without the express written consent of EKM; (f) register, attempt to register, or assist anyone else to register any trademark, trade name, serve marks, logos, domain names and other distinctive brand features, copyright or other proprietary rights associated with EKM (or its wholly owned subsidiaries) other than in the name of EKM (or its wholly owned subsidiaries, as the case may be); or (g) remove, obscure, or alter any notice of copyright, trademark, or other proprietary right appearing in or on any item included with the Service.
13. U.S. Government Rights.
If the use of the Service is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), in accordance with 48 C.F.R. 227.7202-4 (for Department of Defense (DOD) acquisitions) and 48 C.F.R. 2.101 and 12.212 (for non-DOD acquisitions), the Government's rights in the Software, including its rights to use, modify, reproduce, release, perform, display or disclose the Software or Documentation, will be subject in all respects to the commercial license rights and restrictions provided in this Agreement.
14. Term and Termination.
Either party may terminate this Agreement at any time with notice. Upon any termination of this Agreement, EKM will stop providing, and You will stop accessing the Service. In the event of any termination (a) You will not be entitled to any refunds of any usage fees or any other fees, and (b) any (i) outstanding balance for Service rendered through the date of termination, and (ii) other unpaid payment obligations during the remainder of the Initial Term will be immediately due and payable in full and (c) all of Your historical Report data will no longer be available to Y ou.
15. Modifications to Terms of Service and Other Policies.
EKM may modify these terms or any additional terms that apply to the Service to, for example, reflect changes to the law or changes to the Service. You should look at the terms regularly. EKM will post notice of modifications to these terms at http:///www.encompass.io or policies referenced in these terms at the applicable URL for such policies. Changes will not apply retroactively and will become effective no sooner than 14 days after they are posted. If You do not agree to the modified terms for the Service, You should discontinue Your use of Encompass. No amendment to or modification of this Agreement will be binding unless (i) in writing and signed by a duly authorized representative of EKM, (ii) You accept updated terms online, or (iii) You continue to use the Service after EKM has posted updates to the Agreement or to any policy governing the Service.
16. Miscellaneous, Applicable Law and Venue.
EKM will be excused from performance in this Agreement to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control. This Agreement (including any amendment agreed upon by the parties in writing) represents the complete agreement between You and EKM concerning its subject matter, and supersedes all prior agreements and representations between the parties. If any provision of this Agreement is held to be unenforceable for any reason, such provision will be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect. This Agreement will be governed by and construed under the laws of the state of California without reference to its conflict of law principles. In the event of any conflicts between foreign law, rules, and regulations, and California law, rules, and regulations, California law, rules and regulations will prevail and govern. Each party agrees to submit to the exclusive and personal jurisdiction of the courts located in Santa Cruz County, California. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act do not apply to this Agreement. The Software is controlled by U.S. Export Regulations, and it may be not be exported to or used by embargoed countries or individuals. Any notices to EKM must be sent to: EKM Metering Inc., 363 Berkeley Way, Santa Cruz, CA 95062, USA, with a copy to Legal Department, via first class or air mail or overnight courier, and are deemed given upon
receipt. A waiver of any default is not a waiver of any subsequent default. You may not assign or otherwise transfer any of Your rights in this Agreement without EKM's prior written consent, and any such attempt is void. The relationship between EKM and You is not one of a legal partnership relationship, but is one of independent contractors. This Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto. The following sections of this Agreement will survive any termination thereof: 1, 4, 5, 6 (except the last two sentences), 7, 8, 9, 10, 11, 12, 14, and 16.