Bridge Metrics Service Agreement
By clicking the "I Accept" below, or by accessing the Bridge Metrics Applications (defined below), whether you represent an entity, or are an employee or representative of that entity, you agree to the terms of this Agreement, pursuant to which Bridge Metrics, with its principal place of business at 1701 Legacy Drive, Suite 1250, Frisco, TX 75034, provides you access to the Bridge Metrics Applications, including all collateral, content, information, designs, graphics, and other information provided directly and indirectly through the Bridge Metrics Applications.
If you do not agree to these terms, do not download or access any part of the Bridge Metrics Applications. 1. Access to Bridge Metrics Applications. a. Applications. Subject to the terms of this Agreement, Bridge Metrics hereby grants you the right to use the Bridge Metrics products and services made available to you from time to time (individually and collectively, the "Bridge Metrics Applications"). The Bridge Metrics Applications may include, by way of example only, the ability to customize collateral materials, provide syndicated web content through Channel Avenue or other web-based or mobile applications and order promotional products related to Manufacturer Products (defined in subsection b below). b. Use. You may use the Bridge Metrics Applications solely for your own promotion, use or sale of Manufacturer products and services (individually and collectively, the "Products"), including but not limited to marketing and training activities. "Manufacturer" shall mean the specific manufacturers and/or other suppliers of products and services made available to you, as a channel partner, which may include acting as reseller for the Products, via the Bridge Metrics Applications. c. Restrictions. You may not: (1) use the Bridge Metrics Applications for any use other than your own; you may not rent, lease, transfer, distribute or share, directly or indirectly, all or any part of the Bridge Metrics Applications, (2) use the Bridge Metrics Applications in any manner that Bridge Metrics believes is or may be (a) unlawful, (b) contrary to this Agreement or any other terms or conditions provided to you by Bridge Metrics, (c) contrary to the policies or instructions of the applicable Manufacturer, (d) fraudulent, vulgar or obscene, (e) disparaging, harassing, defamatory, threatening, harmful or libelous to Bridge Metrics, any Manufacturer, or any third party, (f) a violation of the rights of any third party, (g) likely to give rise to software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment, (3) reverse engineer, decompile, or disassemble the Bridge Metrics Applications, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation, (4) work around any technical limitations contained in the Bridge Metrics Applications. d. Hosted Sites. In connection with access to and use of the Bridge Metrics Applications, you may obtain access to websites hosted by Bridge Metrics on behalf of Manufacturers (each, a "Hosted Site"). You agree that you will not take any action that imposes an unreasonable or disproportionately large load on the infrastructure of a Hosted Site, or interferes with the proper functioning of a Hosted Site. You may not use a Hosted Site for any purpose that is unlawful or prohibited by these terms.
2. Manufacturer Materials; other Content. a. Content. Subject to the terms of this Agreement and all Manufacturer rules and policies, you have a limited right to use, during the terms of this Agreement, the Manufacturer content, graphics, logos, trademarks, product descriptions, collateral, software programs and other Manufacturer information and materials made available to you via the Bridge Metrics Applications (individually and collectively, the "Manufacturer Materials"), and any other content, information and materials Bridge Metrics provides to you (the "Bridge Metrics Content") solely for the purpose of promoting and selling the Products. Your right to access and use all or any portion of the Manufacturer Materials and/or Bridge Metrics Content may be terminated at any time, with or without notice to you, upon the Manufacturer's request for any reason, or in the event that Bridge Metrics deems your use to be inappropriate, unlawful or in breach of this Agreement. You agree to immediately cease all use of and destroy (and upon Bridge Metrics' request, provide written certification of such destruction) the Manufacturer Materials and/or Bridge Metrics Content upon the earlier of Bridge Metrics' request or termination of this Agreement. b. Manufacturer Responsibility. Notwithstanding anything set forth herein, you acknowledge and agree that, as between Bridge Metrics and the Manufacturer, the Manufacturer is solely responsible for the Manufacturer Materials, and Bridge Metrics shall not be liable to you in any manner for any issues deriving from the Manufacturer Materials, including but not limited to issues related to the Manufacturer's Materials' compliance with law, infringement of third party rights, form, substance, accuracy, content and usefulness. c. Changes. You agree that Bridge Metrics and/or the Manufacturer shall have the right to change, alter the form of, and/or withdraw the Manufacturer Materials and/or Bridge Metrics Content, at any time and for any reason, and may automatically effect such action without notice to you, by, for example, propagating such changes directly to websites operated by you.
3. Your Responsibilities. Without limitation of your other responsibilities hereunder, you agree that you are solely responsible for the following, none of which shall be deemed Bridge Metrics' responsibility, directly or indirectly, in any manner: a. Relationship with Manufacturer. You agree that your right to, and the manner by which you, promote and sell the Products is subject to your agreement with and any rules and instructions of the Manufacturer of those Products. Except for providing you access to and use of the Bridge Metrics Applications in accordance with this Agreement, Bridge Metrics will not be responsible in any way for your right or ability to promote and sell the Products, or for any issues arising from the sale of the Products, including but not limited to costs, expenses, liabilities, or demands arising from the Products' sale or use. b. System Access. You are responsible to maintain the software, hardware, Internet connection, and other systems necessary for you to be able to access and use the Bridge Metrics Applications.
4. Intellectual Property Rights. Except for the limited right to access and use the Bridge Metrics Applications in accordance with Section 1 of this Agreement and the Manufacturer Materials in accordance with Section 2 of this Agreement, nothing herein shall be construed to grant you any rights therein and each of Bridge Metrics and each Manufacturer retain all right, title and interest therein, including all modifications and derivatives of the Bridge Metrics Applications and the Manufacturer Materials, whether made by you or any third party. You agree not to remove or modify any proprietary rights notices in or on the Manufacturer Materials or the output of the Bridge Metrics Applications. Bridge Metrics and its agents and partners shall have the right, with advance written notice to you, to audit your books and records pertaining to your use of the Bridge Metrics Applications, the Manufacturer Materials and/or the Bridge Metrics Content to confirm your compliance with the terms of this Agreement.
5. Passwords. Where required to access the Bridge Metrics Applications, a Hosted Site, and/or the Manufacturer Materials, you must complete any and all registration processes by providing us and/or the Manufacturer with current, complete and accurate information, as prompted by the applicable registration form. You may then be required to choose a login and password. You are entirely and solely responsible for maintaining the confidentiality of your password and account. Furthermore, you are entirely and solely responsible for any and all activities that occur under your account. You agree to notify Bridge Metrics and the applicable Manufacturer immediately of any unauthorized use of your account or any other breach of security. Bridge Metrics will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. However, you could be held liable for losses incurred by Bridge Metrics, Manufacturers, or any other party, due to someone else using your account or password. You may not use anyone else's account at any time, without the permission of the account holder. If you have not been authorized by a Manufacturer to use a Hosted Site, such as if you obtained a password from an authorized user in violation of this Agreement, you do not have the right to use the Hosted Site.
6. Confidentiality. a. You agree to treat information provided by Bridge Metrics in the performance of this Agreement that is identified as confidential or proprietary or reasonably appears based on the information disclosed and the circumstances surrounding disclosure to be confidential or proprietary to Bridge Metrics ("Confidential Information") with the same care as you use with your own confidential information, but with no less than a commercially reasonable standard of care, and you agree to restrict access to such information to those employees who need specific Confidential Information to carry out your rights and responsibilities under this Agreement. For the avoidance of doubt, Bridge Metrics' Confidential Information shall include, but not be limited to, Bridge Metrics' system architecture, assessment methodology and best practices, personally identifiable information related to Manufacturers or other Bridge Metrics customers, all information related to Bridge Metrics' products, services, pricing, business plans, product plans, the results of the Applications, business methods, tools and standards used in connection with implementation of the Applications, and content requirements. In addition, the terms of this Agreement shall be Confidential Information. You acknowledge that damages will be an inadequate remedy if you violate this section. Accordingly, Bridge Metrics shall have the right, in addition to any other rights it have, to obtain in any court of competent jurisdiction, temporary, preliminary and permanent injunctive relief to restrain any breach, threatened breach, or otherwise to specifically enforce this section. b. Duty to Safeguard Proprietary Information. The receiving party will hold the disclosing party's Proprietary Information in strict confidence; use the same degree of care in safeguarding the Proprietary Information as it uses for its own confidential or like information; and shall restrict disclosure of the disclosing party's Proprietary Information to those of its employees who have a bona fide need to know the same in furtherance of the purposes of this Agreement and who have executed a written agreement that explicitly or implicitly requires them to comply with the terms of this Agreement. The receiving party shall not (i) distribute or otherwise commercially exploit or make available to any third party the Proprietary Information in any way; (ii) modify or make derivative works based upon the Proprietary Information; or (iii) reverse engineer or access the Proprietary Information in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Proprietary Information, or (c) copy any ideas, features, functions or graphics of the Proprietary Information.
8. Disclaimer of Warranties. To the maximum extent permitted by applicable law, Bridge Metrics and its suppliers and partners (including but not limited to the Manufacturers) provide the Bridge Metrics Applications and the Manufacturer Materials AS IS AND WITH ALL FAULTS, AND ON AN AS-AVAILABLE BASIS, and hereby disclaim all warranties and conditions, either express, implied or statutory, including, but not limited to, any (if any) implied warranties or conditions of merchantability, of fitness for a particular purpose, of lack of viruses, of accuracy or completeness of responses, of results, and of lack of negligence or lack of workmanlike effort. THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON INFRINGEMENT, WITH REGARD TO THE BRIDGE METRICS APPLICATIONS, THE SERVICES OR THE MANUFACTURER MATERIALS. THE ENTIRE RISK AS TO THE QUALITY OF OR ARISING OUT OF USE OR PERFORMANCE OF THE BRIDGE METRICS APPLICATIONS, THE SERVICES, AND THE MANUFACTURER MATERIALS, IF ANY, REMAINS WITH YOU.
9. EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES; Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL BRIDGE METRICS, ITS SUPPLIERS OR PARTNERS (INCLUDING BUT NOT LIMITED TO THE MANUFACTURERS) BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, LOSS OF DATA, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE BRIDGE METRICS APPLICATIONS OR THE MANUFACTURER MATERIALS, THE PROVISION OF OR FAILURE TO PROVIDE THE BRIDGE METRICS APPLICATIONS OR THE SERVICES, OR OTHERWISE, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY, AND EVEN IF BRIDGE METRICS OR ANY SUPPLIER OR PARTNER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. To the extent permitted under applicable law, you can recover from Bridge Metrics only direct damages up to the amount you actually paid for access to the Bridge Metrics Applications, if anything.
10. Term; Termination. This Agreement will commence on the date that you first click "I accept" or first access the Bridge Metrics Applications and/or the Services and will continue until terminated by either party. Without limitation of any other rights of termination provided herein, Bridge Metrics shall have the right to terminate this Agreement or your access to and/or use of all or any portion of the Bridge Metrics Applications, the Hosted Sites, and/or Manufacturer Materials, automatically, with or without notice to you, if (1) you breach any provision of this Agreement, or if your employer breaches its agreement with Bridge Metrics, or (2) Bridge Metrics has reason to believe that your access to or use of any or all of the Bridge Metrics Applications, the Manufacturer Materials, the Hosted Sites, or the Products is likely to violate any applicable law, Bridge Metrics or Manufacturer rule, or any third party rights. Bridge Metrics' failure to insist upon strict adherence to provisions of this Agreement shall in no way constitute a waiver of the relevant or any subsequent breach. Following termination of this Agreement, unless otherwise agreed to in writing between Bridge Metrics and you, you agree to immediately cease use of and destroy (and upon Bridge Metrics or any Manufacturer's written request, certify in writing such destruction) all Manufacturer Materials. Sections 1c, 2b, 4, 6, 7b, 8-15 shall survive termination of this Agreement for any reason.
11. Indemnity. You agree, for yourself and your employer (if applicable), to defend, indemnify and hold harmless Bridge Metrics, including its affiliates, licensors, service providers, suppliers, and partners from and against any and all claims, liability, losses, damages and expenses, including attorneys' fees, whether in tort, contract, or otherwise, relating to or arising out of your breach of any term of this Agreement or applicable law.
12. Applicable Law. This Agreement shall be interpreted, construed and governed by the laws of the State of Texas, USA, without reference to its laws relating to conflicts of law and not including the provisions. Venue for all disputes arising under this Agreement shall lie exclusively in the Superior Courts of the State of Texas in Collin County. You waive any objection to such venue and jurisdiction.
13. Entire Agreement. This Agreement constitutes the entire agreement as between you and Bridge Metrics regarding the Bridge Metrics Applications and the Services (if any). This Agreement supersedes all prior or contemporaneous agreements, whether oral or written, of the parties with respect to the subject matter of this Agreement. This Agreement may not be modified unless expressly agreed to in writing by both parties.
14. Modifications. Bridge Metrics may modify or assign this Agreement at any time. Your continued use of the Bridge Metrics Applications or the Services after the posting of any amendment to the Agreement shall constitute your agreement to be bound thereby.
15. Severability. If any provision of this Agreement is determined to be invalid, all other provisions shall remain in full force and effect. If any provision of this Agreement is so broad as to be held unenforceable, such provision shall be interpreted to be only so broad as is enforceable.