Terms of Service
Last Updated: April 5, 2019
Thank you for using the Macrometa Platform (as defined below), a cloud-based platform for creating global applications and web services powered by real-time data. To be eligible to register for a Macrometa account and use the Macrometa Platform, you must review and accept these Terms of Service (this “Agreement” or these “Terms”) by signing up for a Macrometa account through the mechanism provided. PLEASE REVIEW THESE TERMS CAREFULLY. BY ACCEPTING THESE TERMS OR USING THE MACROMETA PLATFORM, YOU AGREE TO THESE TERMS AND CONDITIONS WITH MACROMETA CORPORATION (“MACROMETA”). IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU SHOULD NOT CLICK THE “I ACCEPT” BUTTON AND YOU SHOULD NOT USE THE MACROMETA PLATFORM.
In this Agreement, “you,” “your” and “Customer” will refer to you. If you are registering for a Macrometa account or using the Macrometa Platform on behalf of an entity or other organization, you are agreeing to these Terms for that entity or organization and representing to Macrometa that you have the authority to bind that entity or organization to these Terms (and, in which case, the terms “you”, “your” and “Customer” will refer to that entity or organization).
• MACROMETA DOES NOT PROVIDE WARRANTIES OR INDEMNITIES FOR THE MACROMETA PLATFORM, AND THESE TERMS LIMIT MACROMETA’S LIABILITY TO YOU.
• DISPUTES RELATING TO THIS AGREEMENT, YOUR ACCOUNT OR THE MACROMETA PLATFORM MUST BE RESOLVED BY BINDING ARBITRATION AND ON AN INDIVIDUAL BASIS ONLY.
1. Certain Definitions
1.1 The following terms, when used in this Agreement will have the following meanings:
“Confidential Information” means any information or data disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure. However, “Confidential Information” will not include any information which (a) is in the public domain through no fault of receiving party; (b) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
“Customer Affiliate” means any entity controlling, controlled by or under common control with Customer, where control (including “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such person or entity, whether through the ownership of voting securities or other ownership interests, by contract or otherwise.
“Customer Data” means the data, content and other material transmitted by you (including that of your end users) through the use of or access to the Macrometa Platform.
“Order Form” means an order form or other similar document (including any online form) specifying the components of the Macrometa Platform to be provided hereunder and fees to be paid by Customer therefor. If there is a conflict between this Agreement and the Order Form, then the Order Form shall govern.
“Macrometa Platform” means the cloud-based data platform provided by Macrometa to you (including any corresponding SDKs, APIs, documentation or software that may be made available by Macrometa to you in connection with such platform (“Software”)), as more fully described on the Order Form, and subsequent enhancements, updates and bug fixes to the foregoing made generally available by Macrometa for no additional fee.
“Subscription Term” means, for each Order Form, the initial subscription term set forth in such and each renewal term, if applicable.
2.1 These Terms. Macrometa may revise these Terms from time to time. If Macrometa does revise these Terms, the revised Terms will supersede prior versions. Unless Macrometa says otherwise, revisions will be effective upon the effective date indicated at the top of these Terms. Macrometa will use reasonable efforts to provide you advance notice of any material revisions. This notice will be provided via the account portal and/or via an email to the email address Macrometa has on file. For other revisions, Macrometa will update the effective date of these Terms at the top of the page. Macrometa encourages you to check the effective date of these Terms whenever you visit Macrometa’s website or account portal. Your continued access or use of the Macrometa Platform constitutes your acceptance of any revisions. If you don’t agree to the revisions, you should stop using the Macrometa Platform and Macrometa is not obligated to provide you with the Macrometa Platform. If you have a subscription to any Macrometa Platform, any change to these Terms will be effective with respect to such Macrometa Platform upon the renewal of your subscription. Subject to the foregoing, no amendment or modification to this Agreement will be effective unless assented to in writing by both parties.
2.2 Macrometa Platform. You acknowledge that Macrometa may change or deprecate features of the Macrometa Platform (including Macrometa SDKs and/or APIs) from time to time. Although Macrometa endeavors to avoid changes to the Macrometa Platform that are not backwards compatible, if any such changes become necessary Macrometa will endeavor to notify you at least thirty (30) days prior to Macrometa’s implementation of any such incompatible changes to the Macrometa Platform of which it becomes aware.
3. Macrometa Platform
3.1 Provision of the Macrometa Platform. Subject to the conditions set forth in this Agreement and the applicable Order Form (including the usage restrictions therein), Macrometa will use reasonable commercial efforts to provide Customer the Macrometa Platform pursuant to the applicable Order Form(s), and Macrometa hereby grants to Customer, for the applicable Subscription Term, a non-exclusive, non-sublicensable, non-transferable, non-assignable, right to access and use the Macrometa Platform, and use the Software, in each case for Customer’s development and operation of software applications or web services (“Customer Applications”) that interface with the Macrometa Platform.
3.2 Affiliates. The rights granted under this Agreement apply on an Order Form-by-Order Form basis only to the Customer entity that enters into such Order Form. Customer may not extend its rights to its Customer Affiliates under any Order Form. However, Customer Affiliates shall be entitled to enter into one or more Order Forms with Macrometa pursuant to this Agreement and, in such circumstances, all references in this Agreement to Customer shall be deemed to be applicable to the Customer Affiliate with respect to that particular Order Form unless otherwise explicitly set forth in writing. With respect to each such Order Form, such Customer Affiliate becomes a party to this Agreement and references to Customer in this Agreement are deemed to be references to such Customer Affiliate. Each Order Form is a separate obligation of the Customer entity that enters into such Order Form, and the rights granted in connection with such Order Form are solely for the benefit of such Customer entity that enters into such Order Form, and no other Customer entity has any liability, obligation or rights under such Order Form.
3.3 Free Trial. If Customer registers for a free trial to the Macrometa Platform, Macrometa will make the Macrometa Platform available to Customer on a trial basis free of charge until the earlier of (a) the end of the free trial period for which Customer registered to use the Macrometa Platform, or (b) the start date of any purchased subscription for the Macrometa Platform. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. Each party may terminate any free trial at any time without notice to the other party. NOTWITHSTANDING ANYTHING CONTAINED HEREIN, FOR PURPOSES OF THE FREE TRIAL, THE MACROMETA PLATFORM IS PROVIDED “AS-IS” WITHOUT ANY REPRESENTATIONS, WARRANTIES OR INDEMNITIES.
3.4 Feedback. Customer may from time to time provide Macrometa suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the Macrometa Platform. Macrometa will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality. Macrometa will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.
3.5 Proprietary Rights. Notwithstanding anything herein, Macrometa retains all right, title, interest (including, but not limited, to intellectual property rights) in and to the Software and Macrometa Platform and anything developed and delivered under this Agreement, including all System Data. “System Data” means anonymized and aggregated user and other data collected by Macrometa regarding the Macrometa Platform or any Software that may be used to generate logs, statistics and reports regarding performance, availability, integrity and security of the Macrometa Platform or Software.
3.6 Data Protection Addendum. With respect to any personal data subject to the GDPR (as defined in the DPA) that Customer is permitted to transmit in connection with the Macrometa Platform, the terms of the data processing addendum at https://www.macrometa.co/dpa/ ("DPA"), which are hereby incorporated by reference, shall apply and the parties agree to comply with such terms. Customer’s execution of an Order Form or otherwise agreeing to these Terms shall be treated as execution of the DPA, including, without limitation, the Standard Contractual Clauses and their Appendices.
4. Account Registration; Customer Responsibilities and Restrictions.
4.1 Account Registration. As part of the registration process, Customer will identify an administrative user name and password for Customer’s account (the “Account”). Customer may use the administrative user name and password to create standard users (each with a user password) up to the maximum number permitted in the applicable Order Form. Customer shall be responsible for the acts or omissions of any person who accesses the Macrometa Platform using passwords or access procedures provided to or created by Customer. When registering an Account, you must provide true, accurate, current and complete information about yourself as requested during the Account creation process. You must also keep that information true, accurate, current and complete after you create your Account.
4.2 Restrictions. Customer will not (and will not allow any third party to) directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Software or Macrometa Platform (or any underlying software, documentation or data related to the Macrometa Platform); modify, translate, or create derivative works based on the Software or Macrometa Platform or any underlying software; copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Software or Macrometa Platform or any underlying software; use the Macrometa Platform or any underlying software for timesharing or service bureau purposes or otherwise for the benefit of a third party, or in violation of any applicable laws or regulations or outside the scope expressly permitted hereunder (including in violation of the usage restrictions set forth in the applicable Order Form); collect, process, store or transmit any Customer Data in violation of any applicable laws or regulations or privacy policies, agreements or other obligations Customer may maintain or enter into with its end users; collect, transmit or provide to Macrometa hereunder any financial or medical information of any nature, or any other sensitive personal data (such as social security numbers, personal bank account numbers, passport, government-issued ID or visa numbers and credit card numbers); attempt to probe, scan or test the vulnerability of the Macrometa Platform, breach the security or authentication measures of the Macrometa Platform without proper authorization or willfully render any part of the Macrometa Platform unusable; use or access the Macrometa Platforms to develop a product or service that is similar to or competitive with the Macrometa Platform (or any component thereof) or engage in or publish any competitive analysis or benchmarking; or remove any proprietary notices or labels; or use the Macrometa Platform in connection with any Customer Applications that violate applicable law, are designed to infringe, misappropriate or violate third party rights or are malicious or harmful to any person or entity (all of the foregoing, collectively, the “License Restrictions”).
4.3 Customer Responsibility; Customer Data.
(a) Customer shall be responsible for all activities that occur under Customer’s Account. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Macrometa Platform, including, without limitation, modems, hardware, server, software, operating system, networking, web servers, long distance and local telephone service (collectively, “Equipment”). Customer shall be responsible for compliance with any and all applicable third party terms of service and privacy policies for platforms, networks and/or websites on which Customer runs its Customer Applications.
(b) Customer shall be responsible for ensuring that such Equipment is compatible with the Macrometa Platform. Customer shall also be responsible for maintaining the security of the Equipment, the Account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of the Account or the Equipment with or without Customer’s knowledge or consent. Customer will be solely responsible for your failure to maintain such equipment, software and services, or to use the current version of the APIs and SDKs made available by Macrometa, and Macrometa will have no liability for such failure.
(c) All Customer Data is, or shall be, and shall remain the property of Customer. Customer hereby grants Macrometa a non-exclusive, non-transferable, non-sublicensable, worldwide, royalty-free license to use, collect, transfer and process the Customer Data for the purpose of Macrometa providing the Macrometa Platform to Customer under the terms of the applicable Order Form and this Agreement.
Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose, or permit to be disclosed, the same directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. However, either party may disclose Confidential Information (a) to its employees, officers, directors, attorneys, auditors, financial advisors and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and (b) as required by law (in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law. Neither party will disclose the terms of this Agreement to any third party, except that either party may confidentially disclose such terms to actual or potential lenders, investors or acquirers. Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section or the License Restrictions, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.
6.1 Payment. Customer will pay Macrometa the Fees for the Macrometa Platform as listed on the applicable Order Form. The fees for each renewal term shall automatically be updated to Macrometa’s standard schedule of fees (as it may be updated from time to time), except as set forth in the applicable Order Form or otherwise mutually agreed upon by the parties in writing. All Fees paid under this Agreement are denominated in US dollars and Customer shall pay Macrometa in US dollars. Unless otherwise provided in the Agreement, all payment obligations are non-cancelable and fees paid under this Agreement are nonrefundable.
6.2 Disputes. If Customer believes that Macrometa has billed Customer incorrectly, Customer must contact Macrometa no later than fifteen (15) days after receipt of invoice in order to receive an adjustment or credit. Inquiries should be directed to Macrometa’s accounting department, email@example.com.
6.3 Payment Terms; Late Payment; Taxes. Payment for all invoices is due within thirty (30) days of receipt of the invoice, or the Macrometa Platform may be terminated. Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. Customer shall be responsible for all taxes, duties and other governmental charges associated with the Software or Macrometa Platform other than U.S. taxes based on Macrometa’s net income. If Customer is required by law to withhold any taxes, Customer must provide Macrometa with an official tax receipt or other appropriate documentation, and all Fees are payable hereunder without any deduction for such withheld taxes or otherwise.
6.4 Suspension. If your use of the Macrometa Platform exceeds the amounts prepaid by you or if you fail to pay any amounts due by you, Macrometa may suspend your account without prior notice to you. Macrometa will have no liability in connection with any suspension of your account pursuant to this section.
7. Term and Termination
7.1 Subscription Term. Subject to earlier termination as provided below, the initial Subscription Term is as specified in the applicable Order Form and shall be automatically renewed for additional successive twelve (12)-month renewal terms, unless either party provides written notice of non-renewal at least thirty (30) days prior to the end of the then current Subscription Term.
(a) In addition to any other remedies it may have, either party may terminate this Agreement upon written notice if (a) the other party materially breaches any of the terms or conditions of this Agreement, and if the breach is capable of remedy, fails to promptly remedy that breach within thirty (30) calendar days of notice or (b) subject to applicable law, upon the other party’s liquidation, commencement of dissolution proceedings or assignment of substantially all its assets for the benefit of creditors, or if the other party become the subject of bankruptcy or similar proceeding that is not dismissed within sixty (60) days.
(b) If this Agreement is terminated as a result of a material breach by Customer, then Customer shall pay in full all remaining fees payable through the remainder of the Subscription Term of each outstanding Order Form or, if Customer has prepaid any fees, then those fees are nonrefundable.
(c) Either party may terminate this Agreement upon written notice to the other party if there are no Order Forms then outstanding.
7.3 Consequences. Upon expiration or termination of this Agreement, all rights and obligations will immediately terminate except that any accrued payment obligations and other terms or conditions that by their nature should survive such termination will survive, including the License Restrictions and terms and conditions relating to confidentiality, disclaimers, indemnification, limitations of liability and termination and the general provisions below. Macrometa shall make available to Customer any Customer Data stored within the Macrometa Platform thirty (30) days after the expiration or termination, after which Macrometa shall have no further obligation to Customer with respect to the storage of Customer Data and may, in its sole discretion, permanently delete Customer Data.
8. Warranties and Disclaimers
8.1 Warranties. Each party represents and warrants to the other that: (a) it is duly organized and a validly existing entity, in good standing under the laws of the jurisdiction in which it was formed, and that it has the right and capacity to enter into this Agreement; (b) it has full power and authority to grant the rights granted by it under this Agreement and that there are no outstanding obligations or agreements that conflict with this Agreement; and (c) this Agreement, when signed by its duly authorized representative, constitutes a valid and legally binding obligation on that party that is enforceable in accordance with the terms of this Agreement.
8.2 BETA SERVICES. FROM TIME TO TIME, CUSTOMER MAY HAVE THE OPTION TO USE ALPHA OR BETA SERVICES, PRODUCTS, FEATURES OR DOCUMENTATION (COLLECTIVELY, “BETA PRODUCTS”) OFFERED BY MACROMETA. THESE BETA SERVICES ARE NOT GENERALLY AVAILABLE AND MAY CONTAIN BUGS, ERRORS, DEFECTS OR HARMFUL COMPONENTS. CUSTOMER OR MACROMETA MAY TERMINATE CUSTOMER’S ACCESS TO THE BETA PRODUCTS AT ANY TIME.
8.3 DISCLAIMERS. MACROMETA DOES NOT WARRANT THAT THE MACROMETA PLATFORM OR ANY BETA PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE OR MEET CUSTOMER’S REQUIREMENTS; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE MACROMETA PLATFORM OR ANY BETA PRODUCTS. THE MACROMETA PLATFORM OR ANY BETA PRODUCTS ARE PROVIDED “AS IS” AND MACROMETA EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, QUALITY AND ACCURACY. MACROMETA DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE MACROMETA PLATFORM OR ANY BETA PRODUCTS. IN ADDITION, CUSTOMER ACKNOWLEDGES THAT MACROMETA DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE MACROMETA PLATFORM AND BETA PRODUCTS MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. MACROMETA IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
9. Limitation of Liability
NOTWITHSTANDING ANYTHING TO THE CONTRARY, MACROMETA SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THE AGREEMENT (INCLUDING ANY ORDER FORM) UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, MACROMETA PLATFORMS OR TECHNOLOGY OR ANY LOSS OF BUSINESS, ANY LOSS OF REVENUE OR PROFITS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL; OR (D) FOR ANY AGGREGATE AMOUNTS THAT EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO MACROMETA FOR THE APPLICABLE PRODUCT OR SERVICE THAT GAVE RISE TO THE APPLICABLE CLAIM IN THE 12 MONTHS PRECEDING THE CLAIM, IN EACH CASE EVEN IF MACROMETA HAS BEEN ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING TYPES OF LOSSES OR DAMAGES. IN ADDITION, WITHOUT LIMITING THE FOREGOING, CUSTOMER’S SOLE LIABILITY IN THE EVENT OF ANY LOSS OR UNAVAILABILITY OF DATA IN CONNECTION WITH THE MACROMETA PLATFORM WILL BE TO SEEK A PRO RATA REFUND OF THE THEN-CURRENT SUBSCRIPTION FEE CORRESPONDING TO THE AMOUNT OF DATA THAT IS LOST OR UNAVAILABLE. If applicable law limits the application of the provisions of this Section, a party’s liability will be limited to the maximum extent permissible. The parties agree that the limitations and exclusions set out in this Section are reasonable, having regard to all the relevant circumstances and the levels of risk associated with each party’s obligations under this Agreement.
10.1 Export Controls. The Software may be subject to applicable export control laws and economic sanctions regulations. In receiving this Software, you agree to comply strictly with all domestic and international export laws and economic sanctions regulations as they apply to this Software, and to the extent consistent with these Terms, to obtain any necessary license or other authorization to export, re-export, or transfer such Software. You represent that you are not on a U.S. government exclusion list or under the control of or an agent for any entity on such a list, and you further warrant that you will immediately discontinue use of the Software and the Macrometa Platform if you become placed on any such list or under the control of or an agent for any entity placed on such a list.
10.2 Publicity. You agree that Macrometa may refer to your name and trademarks in Macrometa’s marketing materials and website; however, Macrometa will not use your name or trademarks in any other publicity (e.g., press releases, customer references and case studies) without your prior written consent (which may be by email).
10.3 Assignment. Neither party hereto may assign or otherwise transfer this Agreement, in whole or in part, without the other party’s prior written consent, except that either party may assign this Agreement without consent to a successor to all or substantially all of its assets or business related to this Agreement. Any attempted assignment, delegation, or transfer by either party in violation hereof will be null and void. Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns.
10.4 Waiver. No waiver of any rights hereunder will be effective unless assented to in writing by both parties. Any such waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
10.5 Relationship. Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.
10.6 Unenforceability. If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms.
10.7 Governing Law. The enforceability and interpretation of the arbitration provisions below will be determined by the Federal Arbitration Act (including its procedural provisions). Apart from such arbitration provisions, this Agreement will be governed by the laws of the State of California, USA, exclusive of its rules governing choice of law and conflict of laws, and all disputes arising out of the Agreement will be subject to the exclusive jurisdiction and venue of the state and federal courts of San Francisco, California, USA, and the parties hereby consent to the personal jurisdiction of these courts. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
10.8 Notices. Any notice required or permitted to be given hereunder will be given in writing by personal delivery, certified mail, return receipt requested, or by overnight delivery. Notices to you must be sent to your email or other address as set forth in your account information. Notices to Macrometa must be sent to the following address: Macrometa Corporation, [_______________________], Attn: Legal.
10.9 Entire Agreement. This Agreement (including the Order Forms) comprise the entire agreement between you and Macrometa with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written). No oral or written information or advice given by Macrometa, its agents or employees will create a warranty.
10.10 Force Majeure. Neither party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control (“Force Majeure Event”), including earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.
10.11 Government Terms. Macrometa provides the Macrometa Platform, including related Software, for ultimate federal government end use solely in accordance with the terms of this Agreement. If you (or any of your customers) is an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Macrometa Platform or any Software, or any related documentation of any kind, including technical data and manuals, is restricted by the terms of this Agreement. All other use is prohibited and no rights than those provided in this Agreement are conferred. The Macrometa Platform was developed fully at private expense.
10.12 Interpretation. For purposes hereof, “including” means “including without limitation”.
11. Agreement to Arbitrate
11.1 First Try Customer Support. If you have any issues with the Macrometa Platform or Macrometa, you must try to resolve the issue first through Macrometa customer support
11.2 Agreement to Arbitrate. If the parties are not able to the dispute through Macrometa customer support, Customer and Macrometa agree to resolve any dispute arising under these Terms or in relation to the Macrometa Platform by binding arbitration in San Francisco, California, or in another location that both parties agree to. This applies to all claims under any legal theory, unless the claim fits in one the exceptions below. It also applies even after you have stopped using your Macrometa account or have deleted it. If the parties have a dispute about whether this agreement to arbitrate can be enforced or applies to such dispute, the parties agree that the arbitrator will decide that too.
11.3 Exceptions to Agreement to Arbitrate. You and Macrometa agree that the parties will go to court to resolve disputes relating to (a) your or Macrometa’s intellectual property or (b) your violation of the License Restrictions. Also, either party can bring a claim in small claims court either in San Francisco, California, or the county where you live, or some other place both parties agree on, if it qualifies to be brought in that court. In addition, if either party brings a claim in court that should be arbitrated or either party refuses to arbitrate a claim that should be arbitrated, the other party can ask a court to force the parties to go to arbitration to resolve the claim (i.e., compel arbitration). Either party may also ask a court to halt a court proceeding while an arbitration proceeding is ongoing.
11.4 Details of Arbitration Procedure.
(a) Prior to filing any arbitration, both parties jointly agree to seek to resolve any dispute between the parties by mediation conducted by the American Arbitration Association (“AAA”), with all mediator fees and expenses paid equally by the parties. If mediation is not successful, either party may initiate an arbitration proceeding with AAA. You can look at AAA’s rules and procedures on their website http://www.adr.org or you can call them at 1-800-778-7879. The arbitration will be governed by the then-current version of AAA’s Commercial Arbitration Rules (the "Rules") and will be held with a single arbitrator appointed in accordance with the Rules. To the extent anything described in this agreement to arbitrate conflicts with the Rules, the language of this agreement to arbitrate applies.
(b) Each party will be entitled to get a copy of non-privileged relevant documents in the possession or control of the other party and to take a reasonable number of depositions. All such discovery will be in accordance with procedures approved by the arbitrator. This agreement to arbitrate does not alter in any way the statute of limitations that would apply to any claims or counterclaims asserted by either party.
(c) The arbitrator’s award will be based on the evidence admitted and the substantive law of the State of California and the United States, as applicable, and will contain an award for each issue and counterclaim. The award will provide in writing the factual findings and legal reasoning for such award. The arbitrator will not be entitled to modify these Terms.
(d) Except as provided in the Federal Arbitration Act, the arbitration award will be final and binding on the parties. Judgment may be entered in any court of competent jurisdiction.
11.5 Class Action Waiver. Both you and Macrometa agree that any claims or controversies between the parties must be brought against each other on an individual basis only. That means neither you nor Macrometa can bring a claim as a plaintiff or class member in a class action, consolidated action, or representative action. The arbitrator cannot combine more than one person’s or entity’s claims into a single case, and cannot preside over any consolidated, class or representative proceeding (unless both parties agree otherwise). And, the arbitrator’s decision or award in one person’s or entity’s case can only impact the person or entity that brought the claim, not other Macrometa customers, and cannot be used to decide other disputes with other customers. If a court decides that this class action waiver is not enforceable or valid, then the entire agreement to arbitrate will be null and void, but the rest of the Terms will still apply.