1.1. Your use of the Hosted Graphite service (the "Service") is governed by this agreement (the "Terms"). "Metricfire Ltd" means Metricfire Ltd, located at 29-31 South William St, Dublin 2, Ireland and its subsidiaries or affiliates involved in providing the Service.
1.2. In order to use the Service, you must first agree to the Terms. You can agree to the Terms by actually using the Service. You understand and agree that Metricfire Ltd will treat your use of the Service as acceptance of the Terms from that point onwards.
1.3. You may not use the Service if you are a person barred from receiving the Service under the laws of the Republic of Ireland or other countries including the country in which you are resident or from which you use the Service. You affirm that you are over the age of 13, as the Service is not intended for children under 13.
2.1. You must provide accurate and complete registration information any time you register to use the Service. You are responsible for the security of your passwords and for any use of your account. If you become aware of any unauthorized use of your password or of your account, you agree to notify Metricfire Ltd immediately.
2.2. Your use of the Service must comply with all applicable laws, regulations and ordinances, including any laws regarding the export of data or software. You agree not to use the Service in the design, development, production, or use of missiles or the design, development, production, stockpiling, or use of chemical or biological weapons.
2.3. You agree not to (a) access (or attempt to access) the administrative interface of the Service by any means other than through the interface that is provided by Metricfire Ltd in connection with the Service, unless you have been specifically allowed to do so in a separate agreement with Metricfire Ltd, or (b) engage in any activity that interferes with or disrupts the Service (or the servers and networks which are connected to the Service).
3.1. You agree to comply with the Hosted Graphite Program Policies included available at Program Policies (or such URL as Metricfire Ltd may provide) (the "Program Policies") which is incorporated herein by this reference and which may be updated from time to time.
3.3. You agree that you will protect the privacy and legal rights of the users of your application. You must provide legally adequate privacy notice and protection for those users. If the users provide you with user names, passwords, or other login information or personal information, you must make the users aware that the information will be available to your application and to Metricfire Ltd.
4.1. For the purposes of this Section:
4.1.1. “Data Protection Laws" means the European Union’s General Data Protection Regulation, and all applicable laws and regulations relating to the processing of personal data as amended, re-enacted, replaced or superseded from time to time.
4.1.2. “Personal Data“ has the meaning given in the Data Protection Laws.
4.2. Each party will comply with the Data Protection Laws, to the extent applicable.
4.3. For the purposes of these Terms, if and to the extent that Metricfire Limited processes any Personal Data on your behalf when performing your obligations, you shall be the data controller and Metricfire Limited shall be a data processor and in any such case:
4.3.1. Each party acknowledges that Metricfire Limited may process your IP addresses in providing the Service. In the case of sent metrics, these may be stored for up to 14 calendar days. In the case of IP addresses whitelisted for authentication purposes, these will be kept until the termination of your agreement with Metricfire Limited.
4.3.2. Each party acknowledges that Metricfire Limited will receive and store any information that you knowingly provide to us. For example, through the registration process for our services and/or through your account settings, we may collect Personal Data such as your name, address, and email address. In addition, we may communicate with you. For example, we may send you product announcements or contact you and about your use of the service.
4.4. Metricfire Limited shall:
4.4.1. process the Personal Data only to the extent necessary for the purposes of performing its obligations under these Terms and otherwise in accordance with your instructions;
4.4.2. ensure that all persons authorised by Metricfire Limited to process the Personal Data are committed to confidentiality obligations which cover the processing;
4.4.3. have at all times during the term of this agreement appropriate technical and organisational measures to secure the Personal Data and protect the rights of the data subject, with particular regard to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, the Personal Data;
4.4.4. not engage another processor of the Personal Data without your prior consent, save for the payment processors and service providers needed to provide the Services which are deemed to be approved by you for the purpose of these Terms and such sub-processors shall be required to comply with obligations substantially similar to those in this clause in respect of the Personal Data.
4.4.5. at your election, delete or return all Personal Data to you, and delete all existing copies at the end of this agreement, unless applicable law requires their retention;
4.4.6. make available to you all information reasonably necessary to demonstrate compliance with the obligations set out in this Section, and allow for and contribute to reasonable audits, including inspections, conducted by you or your representative;
4.4.7. provide reasonable assistance to you in respect of responding to requests from data subjects to exercise their rights, ensuring the security of processing Personal Data, notifying data breaches to the supervisory authority and communicating them to the data subject, conducting privacy impact assessments and prior consultation with the supervisory authority if needed ahead of an impact assessment, if necessary and at your expense; and
4.4.8. without undue delay after becoming aware of a Personal Data security breach, notify you and provide reasonable assistance to you in dealing with the breach.
4.5. You shall:
4.5.1. provide clear and comprehensible written instructions to Metricfire Limited for the processing of Personal Data to be carried out under these Terms.
5.1. Subject to the Terms, the Service is provided to you without charge up to certain limits. Usage over this limit requires your purchase of additional resources or services. The pricing for additional resources and services can be found here (or such URL as Metricfire Ltd may provide). At its discretion, Metricfire Ltd may allow a user's account to exceed the limits of their plan. Upon notification that their account is over the plan's metric limits, a user has 7 (seven) days to take actions that bring the account back within the limits of their current plan. If no action is taken, the user will be notified, and their account automatically upgraded. Charges for the new plan will be pro-rated for that month.
5.2. For all purchased resources and services, we will charge your credit card on a monthly basis or at the interval indicated in the Fees and Payment Policies, if different. Late payments may bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). Charges are exclusive of taxes. You are responsible for paying all taxes and government charges, and all reasonable expenses and attorneys fees Metricfire Ltd incurs collecting late amounts. To the fullest extent permitted by law, you waive all claims relating to charges unless claimed within 60 days after the charge (this does not affect your credit card issuer rights). Charges are solely based on Metricfire Ltd's measurements of your use of the Service, unless otherwise agreed to in writing. To the fullest extent permitted by law, refunds (if any) are at the discretion of Metricfire Ltd and only in the form of credit for the Service. Nothing in these Terms obligates Metricfire Ltd to extend credit to any party. You acknowledge and agree that any credit card and related billing and payment information that you provide to Metricfire Ltd may be shared by Metricfire Ltd with companies who work on Metricfire Ltd's behalf, such as payment processors and/or credit agencies, solely for the purposes of checking credit, effecting payment to Metricfire Ltd and servicing your account. Metricfire Ltd may also provide information in response to valid legal process, such as subpoenas, search warrants and court orders, or to establish or exercise its legal rights or defend against legal claims. Metricfire Ltd shall not be liable for any use or disclosure of such information by such third parties. Metricfire Ltd reserves the right to discontinue the provision of the Service to you for any late payments.
5.3. Metricfire Ltd may change its fees and payment policies for the Service by notifying you at least fifteen (15) days before the beginning of the billing cycle in which such change will take effect. Changes to the fees or payment policies will be posted in the Service FAQ or the Fees and Payment Policies (or such other URL Metricfire Ltd may provide from time to time). Any outstanding balance becomes immediately due and payable upon termination of the Terms for any reason.
5.4. You may not develop multiple Applications to simulate or act as a single Application or otherwise access the Service in a manner intended to avoid incurring fees.
6.1. You understand that all information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) to which you may have access as part of, or through your use of, the Service are the sole responsibility of the person from which such content originated. All such information is referred to below as the "Content." The term Content shall specifically exclude the application that you create using the Service and any source code written by you to be used with the Service (collectively, the "Application").
6.2. Metricfire Ltd reserves the right (but shall have no obligation) to pre-screen, review, flag, filter, modify, refuse or remove any or all Content from the Service. You agree to immediately take down any Content that violates the Program Policies, including pursuant to a take down request from Metricfire Ltd. In the event that you elect not to comply with a request from Metricfire Ltd to take down certain Content, Metricfire Ltd reserves the right to directly take down such Content or to disable the Application.
6.3. In the event that you become aware of any violation of the Program Policies by an end user of the Application, you shall immediately terminate such end user's account on your Application. Metricfire Ltd reserves the right to terminate end user Metricfire Ltd accounts or disable the Application in response to a violation or suspected violation of the Program Policies.
6.4. You agree that you are solely responsible for (and that Metricfire Ltd has no responsibility to you or to any third party for) the Application or any Content that you create, transmit or display while using the Service and for the consequences of your actions (including any loss or damage which Metricfire Ltd may suffer) by doing so.
6.5. You agree that Metricfire Ltd has no responsibility or liability for the deletion or failure to store any Content and other communications maintained or transmitted through use of the Service. You further acknowledge that you are solely responsible for securing and backing up your Application and any Content.
7.1. You acknowledge and agree that Metricfire Ltd (or Metricfire Ltd's licensors) own all legal right, title and interest in and to the Service, including any intellectual property rights which subsist in the Service (whether those rights happen to be registered or not, and wherever in the world those rights may exist).
7.2. Unless you have agreed otherwise in writing with Metricfire Ltd, nothing in the Terms gives you a right to use any of Metricfire Ltd's trade names, trade marks, service marks, logos, domain names, and other distinctive brand features.
7.3. Except as provided in Section 9, Metricfire Ltd acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under these Terms in or to any Content or the Application that you create, submit, post, transmit or display on, or through, the Service, including any intellectual property rights which subsist in that Content and the Application (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Unless you have agreed otherwise in writing with Metricfire Ltd, you agree that you are responsible for protecting and enforcing those rights and that Metricfire Ltd has no obligation to do so on your behalf.
8.1. Metricfire Ltd gives you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the software provided to you by Metricfire Ltd as part of the Service as provided to you by Metricfire Ltd (referred to as the "Hosted Graphite Software" below). This license is for the sole purpose of enabling you to use and enjoy the benefit of the Service as provided by Metricfire Ltd, in the manner permitted by the Terms.
8.2. You may not (and you may not permit anyone else to): (a) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Hosted Graphite Software or any part thereof, unless this is expressly permitted or required by law, or unless you have been specifically told that you may do so by Metricfire Ltd, in writing (e.g., through an open source software license); (b) attempt to disable or circumvent any security mechanisms used by the Service or any Application; (c) use the Service to create an Application that performs a malicious activity, including but not limited to spamming users, harvesting usernames and passwords, performing unauthorized scans of machines or ports or creating DoS attacks; or (d) upload or otherwise process any malicious content to or through the Service.
8.3. Unless Metricfire Ltd has given you specific written permission to do so (e.g., through an open source software license), you may not assign (or grant a sub-license of) your rights to use the Hosted Graphite Software, grant a security interest in or over your rights to use the Hosted Graphite Software, or otherwise transfer any part of your rights to use the Software.
8.4. Open source software licenses for components of the Service released under an open source license constitute separate written agreements. To the limited extent that the open source software licenses expressly supersede these Terms, the open source licenses govern your agreement with Metricfire Ltd for the use of the components of the Service released under an open source license.
9.2. You agree that Metricfire Ltd, in its sole discretion, may use your trade names, trademarks, service marks, logos, domain names and other distinctive brand features in presentations, marketing materials, customer lists, financial reports and Web site listings (including links to your website) for the purpose of advertising or publicizing your use of the Service.
10.1 Metricfire Ltd may, and you grant us permission to, make recommendations via the Service for products or services we think may be of interest to you based on your Application(s), Content, and/or use of the Service. We will never make recommendations directly to your End Users.
11.1 Metricfire Ltd is constantly innovating in order to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the Service which Metricfire Ltd provides may change from time to time without prior notice to you, subject to the terms in Section 5.3. Changes to the form and nature of the Service will be effective with respect to all versions of the Service; examples of changes to the form and nature of the Service include without limitation changes to fee and payment policies, security patches, added functionality, and other enhancements.
11.2 You may terminate these Terms at any time by canceling your account on the Service. You will not receive any refunds if you cancel your account.
11.3 You agree that Metricfire Ltd, in its sole discretion and for any or no reason, may terminate your account or any part thereof. You agree that any termination of your access to the Service may be without prior notice, and you agree that Metricfire Ltd will not be liable to you or any third party for such termination.
11.4 You are solely responsible for exporting your Content and Application(s) from the Service prior to termination of your account for any reason, provided that if we terminate your account, we will make reasonable efforts to permit you to retrieve your Content and Application(s) for a reasonable period of time.
11.5 Upon any termination of the Service or your account these Terms will also terminate, but Sections 7.1, 12, 13, 14, 15, and 18 shall continue to be effective after these Terms are terminated.
12.1 NOTHING IN THESE TERMS, INCLUDING SECTIONS 12 AND 13, SHALL EXCLUDE OR LIMIT Metricfire Ltd'S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW.
12.2 YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK AND THAT THE SERVICE IS PROVIDED "AS IS" AND "AS AVAILABLE."
Metricfire Ltd, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS MAKE NO EXPRESS WARRANTIES AND DISCLAIM ALL IMPLIED WARRANTIES REGARDING THE SERVICE INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, Metricfire Ltd, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE SERVICE WILL MEET YOUR REQUIREMENTS, (B) YOUR USE OF THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED THROUGH THE SERVICE WILL BE ACCURATE.
13.1. SUBJECT TO SECTION 12.1 ABOVE, YOU EXPRESSLY UNDERSTAND AND AGREE THAT Metricfire Ltd, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS.
13.2. THE LIMITATIONS ON METRICFIRE'S LIABILITY TO YOU IN PARAGRAPH 13.1 ABOVE SHALL APPLY WHETHER OR NOT METRICFIRE HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
14.1 You agree to hold harmless and indemnify Metricfire Ltd, and its subsidiaries, affiliates, officers, agents, employees, advertisers, licensors, suppliers or partners, (collectively "Metricfire Ltd and Partners") from and against any third party claim arising from or in any way related to (a) your breach of the Terms, (b) your use of the Service, (c) your violation of applicable laws, rules or regulations in connection with the Service, or (d) your Content or your Application, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys' fees, of every kind and nature. In such a case, Metricfire Ltd will provide you with written notice of such claim, suit or action.
15.1. You agree to set up a process to respond to notices of alleged infringement that comply with the United States' Digital Millennium Copyright Act ("DMCA notices"). It is Metricfire Ltd's policy to respond to DMCA notices or other applicable copyright laws and to terminate the accounts of repeat infringers. We reserve the right to take down content in your Application or, if necessary, the Application itself upon receipt of a valid DMCA notice. For more information, please go to the DMCA Notice (or such URL as Metricfire Ltd may provide).
16.1. The Services may include hyperlinks to other web sites or content or resources or email content. Metricfire Ltd may have no control over any web sites or resources which are provided by companies or persons other than Metricfire Ltd.
16.2 You acknowledge and agree that Metricfire Ltd is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other materials on or available from such web sites or resources.
16.3. You acknowledge and agree that Metricfire Ltd is not liable for any loss or damage which may be incurred by you or users of your Application as a result of the availability of those external sites or resources, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such web sites or resources.
17.1. Metricfire Ltd may make changes to the Terms from time to time. If we change the Terms in any substantive way, we will give you at least seven (7) days notice before the changes take effect, during which period of time you may reject the changes by terminating your account.
17.2 You understand and agree that if you use the Service after the date on which the Terms have changed, Metricfire Ltd will treat your use as acceptance of the updated Terms.
18.1. The Terms constitute the whole legal agreement between you and Metricfire Ltd and govern your use of the Service (but excluding any services which Metricfire Ltd may provide to you under a separate written agreement), and completely replace any prior agreements between you and Metricfire Ltd in relation to the Service.
18.2. There are no third party beneficiaries to these Terms. The parties are independent contractors, and nothing in these Terms creates an agency, partnership or joint venture.
18.3. If Metricfire Ltd provides you with a translation of the English language version of these Terms, the English language version of these Terms will control if there is any conflict.
18.4. You agree that Metricfire Ltd may provide you with notices, including those regarding changes to the Terms, by email, regular mail, or postings on the Service.
18.5. You agree that if Metricfire Ltd does not exercise or enforce any legal right or remedy which is contained in the Terms (or which Metricfire Ltd has the benefit of under any applicable law), this will not be taken to be a formal waiver of Metricfire Ltd's rights and that those rights or remedies will still be available to Metricfire Ltd.
18.6. Metricfire Ltd shall not be liable for failing or delaying performance of its obligations resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances.
18.7. The Terms, and your relationship with Metricfire Ltd under the Terms, shall be governed by the laws of the State of Delaware without regard to its conflict of laws provisions. You and Metricfire Ltd agree to submit to the exclusive jurisdiction of the courts located within the Delaware to resolve any legal matter arising from the Terms. Notwithstanding this, you agree that Metricfire Ltd shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
18.8 For any claim (excluding claims for injunctive or other equitable relief) under these Terms where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute through binding non-appearance-based arbitration. The party electing such arbitration shall initiate the arbitration through an established alternative dispute resolution ("ADR") provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, as selected by the party initiating the arbitration; b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
This document is an adaptation of the Google App Engine Terms of Service. The original work has been modified with permission under the Creative Commons Attribution 3.0 License. Google, Inc. is not connected with and does not sponsor or endorse Metricfire Ltd or its use of the work.
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