Terms of ServiceEffective date: October 22, 2018
These General Terms, the Acceptable Use Rules, the Payment Terms, (collectively, the “ Kmetric Terms”) govern access to and use of any websites, products or services (collectively “Services“) offered by Kmetric Inc. (“ Kmetric” or “we“).
OUR SERVICES ARE NOT FOR CONSUMERS OR PRIVATE OR HOUSEHOLD PURPOSES, ONLY FOR BUSINESSES AND PROFESSIONAL USERS. YOU MUST NOT ACCESS OR USE OUR SERVICES, UNLESS (A) YOU ARE ACTING IN A BUSINESS OR PROFESSIONAL CAPACITY, (B) YOU ACCEPT THE KMETRIC TERMS ON BEHALF OF YOURSELF AND, IF APPLICABLE, YOUR ORGANIZATION, AND (C) IF YOU ARE ACTING ON BEHALF OF YOUR ORGANIZATION, YOU ARE AUTHORIZED TO DO SO. IF YOU ACCESS OR USE ANY OF OUR SERVICES, THE KMETRIC TERMS FORM A LEGALLY BINDING CONTRACT BETWEEN YOU AND, IF APPLICABLE, YOUR ORGANIZATION (COLLECTIVELY REFERRED TO AS “YOU” HEREINAFTER) AND KMETRIC.
ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN SECTION 12 BELOW OR WHERE PROHIBITED BY APPLICABLE LAW, YOU AGREE THAT DISPUTES BETWEEN YOU AND KMETRIC WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION
1. General and Service-Specific Terms, Changes
1.1 Kmetric Terms. These General Terms, the Acceptable Use Rules, the Payment Terms apply to all Services.
1.2 Changes. We reserve the right to change our Services, Pricing, any Kmetric Terms, notices (such as our Privacy Statement, Copyright Notice and any other terms and conditions, at our sole discretion, with or without prior notice. If the change has a material adverse impact on you, and you have contracted and prepaid for a certain term, you may notify us within 30 days after being informed of that change that you do not agree with the change. If you do so, we will delay applying the change to you until your prepaid term ends, or, at our sole and absolute discretion, allow you to cancel your account, and we will refund any prepaid amount pro rata to you. If you use our Services after your prepaid term ends, all changes to our Services, pricing, Kmetric Terms, notices, and any other terms and conditions will apply to you.
2. Your Rights and Obligations
2.1 Access to Services. We grant you a non-exclusive, non-transferable, revocable, limited, personal right to access our Services. We do not authorize other use or access, including, without limitation, by robots, spiders, crawlers and scraping technologies. You are responsible for setting your own username and password (“Login Information”) and should not allow any third party to access or use your Login Information. You are responsible for all individuals that access the Services through your Login Information (“Authorized Users”). You and your Authorized Users may use the Services only for your own business, not to access the Services in order to build a similar or competitive product or service or copy any ideas, features, functions, or graphics of the Services.
2.2 Facebook or Instagram Account. We provide you with a technical application which allows you to publish and manage ads on www.facebook.com (“Facebook”) and www.instagram.com (“Instagram”). Therefore, in order to use our Services, you must be a registered Facebook or Instagram user and have an advertising account with Facebook or Instagram.
2.3 Ads Content. You are solely responsible for all Ads Content that you or your Authorized Users upload, publish, display, link to, or otherwise make available via the Services. We have the right but no obligation to review, filter, block, or remove any Ads Content that you publish or make available via our Services. UNDER NO CIRCUMSTANCES WILL WE BE LIABLE IN ANY WAY FOR ADS CONTENT POSTED ON OR MADE AVAILABLE THROUGH OUR SERVICES BY YOU OR ANY OTHER THIRD PARTY. “Ads Content” includes all information, text, images, photos, videos, audio, documents and other content in any media and format which is provided or made available to us in connection with your use of the Services.
3. Third Party Content and Services
3.1 We are not responsible for any services provided by Facebook, Instagram (the “Social Platforms”), or for any other services, information or content accessed or purchased through Kmetric, which you may be able to access, use or connect to with our Services (together, the “Third-Party Services“). If you access a Third-Party Service through us, you do so at your own risk. When accessing Facebook or Instagram services, you are responsible to comply with all of their terms, conditions, policies and guidelines which they may impose on their users including those published at www.facebook.com/terms, and www.facebook.com/policies/ads (the “Third-Party Terms”). You remain responsible for the payment of the ads purchased through our Services directly to the Social Platforms.
3.2 You understand that we have the right but no obligation to preview, verify, flag, modify Ads Content and that you must bear all risks associated with the publishing of ads on the Social Platforms. You also agree that Services interoperate with Social Platforms, and that our Services are highly dependent on the availability of the Social Platforms. If at any time the Social Platforms cease to make their features or programs available to us on reasonable terms, we may cease to provide access to such features or programs to you. We assume no responsibility or liability related to Ad Content or to any Ad Content not being transferred to or published on the Social Platforms as a result of a malfunction in our Services.
4. Confidentiality and Data Protection
4.1 Confidentiality. If we share non-public information about our Services, you must keep it confidential and use reasonable security measures to prevent disclosure or access by unauthorized persons.
4.2 Personal Data. We will not use or control any of the personal data that you process with our Services, we merely offer you tools with which you can process data. You must comply with all applicable data privacy and data protection laws. As per our Acceptable Use Rules, our Services shall not be used to process any sensitive personal information as defined in the Data Protection Directive 95/46.
5. Intellectual Property
5.1 Ads Content. You retain all right, title and interest to your Ads Content which you may upload to or with our Services. We will not use your Ads Content except for purposes of providing, supporting and improving our Services and in full compliance with all Kmetric Terms.
5.2 Feedback. You may from time to time provide suggestions, comments or other feedback to Kmetric with respect to the Services (“Feedback”). Feedback, even if designated as confidential by you, shall not create any confidentiality obligation for us. Notwithstanding the foregoing, we will not disclose to any third party that you are the source of any Feedback. You shall, and hereby do, grant to us a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use and exploit the Feedback for any purpose.
5.3 Services. We retain all right, title, and interest in and to the Services.
6. Free Trials, Charges and Payment Terms
You must timely pay all applicable fees based on our Payment Terms, except with respect to Services that we expressly offer free of charge. If you sign up for a free trial period for a Service that is subject to charges, we may require you to provide us with a valid credit card or other payment method and start charging you automatically on the first day after the free trial is over, unless you cancel your account before the end of the free trial period. You remain responsible at all times for the direct payment of the ads purchased through our Services to Facebook or Instagram.
The Kmetric Terms shall remain in effect until either of us terminate them in accordance with this Section 7.
7.1 Cancellation of Services. You can cancel your Services at any time. If you cancel paid Services, you must pay throughout any agreed term and you are not entitled to any refunds.
7.2 Cancellation by Kmetric. We may also cancel your Services, at our sole discretion, for any reason, without notice at any time. If you prepaid for Services for a specified term, and we terminate your Services under this section, we shall offer a pro rata refund of the prepaid fees.
7.3 Termination for Cause. We may both terminate the Kmetric Terms, effective immediately, if the other party commits a material breach of the Kmetric Terms and fails to remedy such breach within thirty (30) days of receiving a written request to cure. Additionally, we may suspend or terminate your access to the Services if you violate any Acceptable Use Rules or use the Services in a way that creates risk or possible legal exposure to us, other customers or others. If you terminate the Kmetric Terms for cause, we will refund any prepaid fees as of the termination date.
7.4 Effects of Termination. Upon cancellation or termination of the Services by either party for any reason: (i) we will cease providing you Services and you will no longer be able to access your account; (ii) unless otherwise provided in these Kmetric Terms, you will not be entitled to any refunds, and you shall pay us all unpaid amounts owing. All provisions of the Kmetric Terms that by their nature are intended to survive, including but not limited to any disclaimer of warranty and limitation of liability provisions, shall survive the termination or expiry of the Kmetric Terms.
8. Warranty Disclaimer
8.1 NO EXPRESS WARRANTIES WE OFFER THE SERVICES “AS IS,” WITHOUT ANY EXPRESS WARRANTIES, REPRESENTATIONS, GUARANTEES OR CONDITIONS, UNLESS WE EXPRESSLY AGREE TO A LIMITED WARRANTY WITH A SPECIFIC REFERENCE TO THIS SECTION 8.1.
8.2 DISCLAIMERS. YOU USE ALL SERVICES AT YOUR OWN RISK. TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ANY WARRANTIES, REPRESENTATIONS, GUARANTEES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE SPECIFICALLY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUALITY, AND NONINFRINGEMENT, THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT OUR SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ERROR-FREE. IN ADDITION, WE DISCLAIM ANY RESPONSIBILITY FOR ANY THIRD-PARTY SERVICES (INCLUDING FACEBOOK OR INSTAGRAM) OR ACTIVITIES, ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET, OR SOCIAL PLATFORMS, ANY HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN (INCLUDING ADS CONTENT). NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM US OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THESE Kmetric TERMS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
9. Sole Remedy
IF YOU ARE DISSATISFIED WITH OUR SERVICES OR HARMED BY US OR BY ANYTHING RELATED TO OUR SERVICES, YOU MAY TERMINATE THE Kmetric TERMS IN ACCORDANCE WITH SECTION 7.3, AS APPLICABLE. SUCH TERMINATION SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY (AND OUR SOLE AND EXCLUSIVE LIABILITY) FOR ANY BREACH OF CONTRACT.
You shall defend, indemnify, and hold harmless Kmetric, and our affiliates, directors, officers, employees, and agents from and against all claims, losses, damages, penalties, liability, and costs, including reasonable attorneys’ fees, of any kind or nature that are in connection with or arising out of a claim (a) alleging that your Ads Content infringes or violates the intellectual property rights, privacy rights, or other rights of a third party or violates any applicable law; (b) relating to, or arising from, Ads Content or your breach of any Kmetric Terms or (c) relating to, or arising from, your use of any Third-Party Services (including your breach of the Third-Party Terms).
11. Limitation of Liability
11.1 CAP. OUR AGGREGATE LIABILITY TO YOU FOR ANY AND ALL CLAIMS OF ANY KIND SHALL NOT EXCEED THE GREATER OF (A) THE FEES WE RECEIVED FROM YOU FOR THE SERVICES SUBJECT TO THE CLAIM DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE AND (B) USD $500.
11.2 EXCLUSION. WE SHALL NOT BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL USE, OR DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE SERVICES OR ANY OTHER ASPECT OF THE Kmetric TERMS. UNDER NO CIRCUMSTANCES WILL WE BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
11.3 SCOPE. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 11 SHALL (A) ALSO BENEFIT OUR AFFILIATED COMPANIES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, LICENSORS AND SERVICE PROVIDERS, (B) APPLY TO ANY CLAIMS BROUGHT BASED ON ANY CAUSE OF ACTION, INCLUDING BREACH OF CONTRACT, TORT, STATUTE OR OTHER LEGAL THEORY, AND (C) NOT APPLY IF YOU CAN PROVE THAT: (I) OUR NEGLIGENCE CAUSED DEATH OR PHYSICAL INJURY; (II) WE CAUSED DAMAGES INTENTIONALLY OR WITH WILLFUL MISCONDUCT; OR (III) APPLICABLE LAW DOES NOT ALLOW A LIMITATION AS CONTEMPLATED IN THE Kmetric TERMS (IN WHICH CASE THE LIMITATIONS OF LIABILITY IN THE Kmetric TERMS SHALL BE REDUCED TO THE MAXIMUM LIMITATION THAT IS VALID AND ENFORCEABLE UNDER APPLICABLE LAW).
11.4 BASIS OF BARGAIN. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 11 IS TO ALLOCATE THE RISKS UNDER THESE Kmetric TERMS BETWEEN THE PARTIES AND LIMIT Kmetric’S POTENTIAL LIABILITY IN APPROPRIATE RELATION TO THE FEES CHARGED UNDER THE Kmetric TERMS, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF WE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE Kmetric TERMS.
12.1 Assignment. You may not assign or otherwise transfer any of your rights or obligations hereunder, whether by merger, sale of assets, change of control, operation of law, or otherwise, without our prior written consent. Any attempted assignment or transfer without such consent will be void. We may freely assign or delegate all rights and obligations under these Kmetric Terms, fully or partially, without notice to you. We may also substitute by way of unilateral novation, effective upon notice to you, any third party that assumes our rights and obligations under these Kmetric Terms.
12.2 Severability. Each provision of these Kmetric Terms is severable. If any provision of these Kmetric Terms is or becomes illegal, invalid, or unenforceable in any jurisdiction, the illegality, invalidity, or unenforceability of that provision will not affect the legality, validity, or enforceability of the remaining provisions of these Kmetric Terms or of that provision in any other jurisdiction.
12.3 Force Majeure. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where and such failure results from any cause beyond such party’s reasonable control, including without limitation: if one or several third parties change their offerings or terms or no longer offer their services to you or Kmetric at reasonable terms; denial of service attacks; acts of God; acts of war; acts of terrorism; labor disruptions; and any laws, orders, rules, regulations, acts, or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts.
12.4 Entire Agreement. These Kmetric Terms constitute the entire agreement between the parties with respect to the use of the Services and supersede any prior or inconsistent agreements, negotiations, representations, and promises, written or oral, with respect to the subject matter and is binding upon the parties and their permitted successors and assigns. We do not accept and we hereby expressly reject any additional terms that you may present, including, without limitation, terms in a unilateral notice from you to us or preprinted on a purchase order form or any other form generated by you; any such terms shall be null and void.