Hol dir jetzt unser limitiertes Lifetime-Angebot bis zum 31.01 🎉 Mehr erfahren

Hol dir jetzt unser limitiertes Lifetime-Angebot bis zum 31.01 🎉 Mehr erfahren

Hol dir jetzt unser limitiertes Lifetime-Angebot bis zum 31.01 🎉 Mehr erfahren

Hol dir jetzt unser limitiertes Lifetime-Angebot bis zum 31.01 🎉 Mehr erfahren

Terms of use

Updated: 01.12.2020

 
 

Terms of use

These Terms of Use (the “Agreement”) are a legal agreement between you, the user, and Impekoven und Lips GbR, a civil law partnership registered under German law with its registered address at Rheinstraße 307, 50389 Wesseling, Germany. Furthermore, Impekoven und Lips GbR is primarily mentioned under the brand name MetriFire. MetriFire (“MetriFire” or “We” “Our” or “Us”), governs the services defined herein and your limited, non-exclusive and terminable right to use the MetriFire website. By clicking on the “Try MetriFire”, “Try Now”, “Register” button or otherwise using the Services, you agree to be bound by the terms of this Agreement.

If you do not agree to this Agreement, you may not register for an account or use any of the Services or the Website. By agreeing to this Agreement, you acknowledge that you have read and understand this Agreement and agree to be bound by its terms.

We may modify this Agreement from time to time. We will notify you in advance of any changes by email to the email associated with your account and by posting a written notice on our website, and you hereby agree that this constitutes reasonable notice in this regard. Any amended Terms will automatically become effective on the earlier of the date you use the Site and/or the Services or 30 calendar days after they are first posted on the Site. Your use of the Site and/or the Services after the effective date of any amendment to this Agreement will be deemed acceptance of the Agreement as amended.

1. Definitions

“Account” means an account with MetriFire to use the Services;

“Agreement” means these Terms of Service, including any attachments, which form an integral part and which collectively govern your relationship with MetriFire;

“Applicable Law” means the laws to which MetriFire is subject, including without limitation the laws of Germany, where MetriFire is based, Regulation (EU) 2016/679, the General Data Protection Regulation (GDPR), and any other laws, such as the California Consumer Privacy Act (CCPA), that may apply from time to time;

“Confidential Information” means any information that you or we (the “Disclosing Party”) provide orally or in writing to the other party (the “Receiving Party”) that is marked as confidential. Provided that, for all intents and purposes, no information shall be deemed confidential that (a) is publicly known at the time of disclosure or later becomes publicly known through no fault of the Receiving Party; (b) was discovered or created by the Receiving Party prior to disclosure by the Disclosing Party; (c) became known to the Receiving Party through legitimate means other than by the Disclosing Party or its agents; or (d) is disclosed by the Receiving Party with the prior written consent of the Disclosing Party;

“Data” means content, personal data, information, know-how and confidential information relating to your business, some of which may not be publicly available, including, but not limited to, technical and commercial information about your business, systems, processes, software and services or those of your parent or subsidiaries;

“Intellectual Property Rights” means copyright, including moral and neighboring rights, rights of use, musical works, literary works, designs, databases or other copyrighted works, trade names, proprietary business names, patents, utility models and trademarks, and all other industrial and intellectual property rights, in each case whether registered or unregistered, now existing or hereafter to exist in any part of the world;

“Know-How” means unpatented information, knowledge, experience, formulas, research, processes, studies, reports, data and designs developed and/or owned by You;

“Personal Data” means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person; Personal Data also includes any equivalent definition in applicable law;

“Service/s” means the software as a service (SaaS) offered by MetriFire with a variety of resources, including but not limited to heat maps, visitor records, funnel and form analytics, feedback surveys and other functionality as developed and introduced by MetriFire from time to time and as further described on the Website in our Product Tour;

“Site(s)” means the metrifire.com website, in addition to any sub-sites incorporated into such website;

“Subscription Plan” means any of the various subscription packages that allow you to use the Services, as further described in our Product Tour;

“Subscription Term” means the period of time for which MetriFire’s subscription to the Services is provided to You, subject to Your compliance with Your obligations under this Agreement;

“Third Party(ies)” means any entity or person that is neither You nor MetriFire;

“Trial Period” means the complimentary access to the Services granted to You by MetriFire for a limited and specified period of time, granted at MetriFire’s sole discretion and revocable by MetriFire at any time without prior notice;

“You” / “Your” means a person or entity acting in the course of a trade or business who agrees to be bound by the terms of this Agreement.

2. Account registration, Access and Disclosure

2.1 In order to use the Website and benefit from our services, you must create an account by filling out a registration form, providing us with all required information, checking the “I accept the Terms of Use” box and clicking the “Use MetriFire” button. You agree to provide us with complete and accurate information upon registration and to keep this information accurate and up-to-date throughout your use of our service. We recommend that you keep your registration information strictly confidential and do not disclose it to any third party. We are not responsible for any unauthorized access to your account that results from your failure to keep your login information secure.

2.2 If you are using the Site or Services for and on behalf of a legal entity, you may do so by creating a separate account with MetriFire or adding a new organization page to your existing account. Such separate account or new organization page to your existing account is subject to the terms and conditions set forth in this Agreement and as further described in Clause 2.6. If you are using the Site or Service for and on behalf of an entity, you are authorized by and/or duly authorized for and on behalf of that entity, and you and the entity are jointly and severally subject to this Agreement. If you are no longer a duly authorized representative of the legal entity, you shall promptly notify MetriFire, and the legal entity shall continue to be subject to the Agreement, and the legal entity shall simultaneously notify MetriFire of the new authorized representative. Until MetriFire is notified of a new authorized representative, you will remain liable as described above. MetriFire shall not be liable if a person without the required power of attorney/not properly authorized enters into this Agreement for and on behalf of a legal entity.

2.3 We reserve the right for us, our contractors or our employees to access your account and information provided by you for support, maintenance, servicing or security, technical or billing reasons after obtaining your prior consent.

2.4 It is your responsibility to protect your personal information and maintain the confidentiality of your user information and passwords. You are also responsible for immediately notifying MetriFire of any unauthorized use of your account or breach of your account information or password. Unless such loss is caused by MetriFire’s gross negligence, willful misconduct, fraud or bad faith, MetriFire will not be liable for any loss you incur as a result of someone else using your username or password with or without your knowledge. To the extent permitted by applicable law, you will be liable for all costs, including user fees and fines, fees, civil judgments and reasonable attorneys’ fees, incurred as a result of your willful or negligent failure to protect your user and password information and/or to promptly notify MetriFire of any unauthorized use of your account or any breach of your account information or password.

2.5 If you are:

a parent company that owns a controlling interest (51% or more) in a subsidiary or other legal entity; or

a subsidiary or other legal entity owned by a parent company that owns a controlling interest (51% or greater); and

wish to extend this Agreement to your parent company or subsidiaries, you may do so by creating a separate account with MetriFire or adding a new organization page to your existing account. Such separate account or new organization page to your existing account is subject to the terms and conditions set forth in this Agreement.

2.6 Your parent company or subsidiary(ies) shall be deemed to be a third party beneficiary of this Agreement with the same rights and obligations assigned to you and MetriFire under this Agreement and shall assume all responsibilities and obligations as if such parent company or subsidiary were you.

3. Scope of services

3.1 The scope of the Services to which You have access depends on the respective subscription plan, the subscription term and the respective and timely payment of the Service Fees to MetriFire.

4. Subscription

4.1 We offer several different subscription plans for our Services. The applicable subscription plan depends on your choice. Your subscription plan is selected during the registration of Your Account and You may change Your plan at any time. Information about Our standard plans can be found on Our Pricing Page. All fees shown on Our site are exclusive of sales tax or other taxes that may apply in Your jurisdiction. For additional information about Our subscription plans, please contact Us. You may upgrade or downgrade Your subscription at any time during Your subscription term, whereupon We will apply the applicable fees on a pro-rata basis.

4.2 Following Your current Subscription Term, We reserve the right to change the Subscription Plans and/or the Subscription Term at any time or to introduce new fees and/or subscription levels or charges. We will provide you with thirty (30) calendar days’ advance written notice, during which you will have the right to cancel your current subscription or change your current subscription plan, should you disagree with such changes.

5. Subscription term and renewal

5.1. Trial. The duration of the trial period is set during account creation. At the end of the trial period, you will be prompted to enter your payment information if you have not already done so. If you have already updated your payment information, your credit card or PayPal account will be automatically charged on the billing date shown in the billing section associated with your account on our website.

5.2 Renewal Period. Unless you notify MetriFire in writing at least three business days (3) prior to the expiration of your current subscription term (or any subsequent renewal term) that you do not intend to renew your subscription, you will be enrolled in an automatic renewal cycle for the same term at the end of the subscription term (the “Renewal Term”). This applies to all paid subscription plans and works for both monthly and annual renewals. Any written notice of your intent not to renew the Subscription Term must be sent to the following email address: support@metrifire.com. The email must be from the registered MetriFire account holder.

6. Termination

6.1 Either you or we may terminate this Agreement for cause if the other party has committed a material breach of the terms of this Agreement and the defaulting party fails to cure such material breach within fifteen (15) calendar days after receipt of written notice of the breach from the non-defaulting party. In addition, we may terminate this Agreement immediately if you: (i) cease to do business or become insolvent; (ii) admit in writing that you are unable to pay your debts as they become due; (iii) make an assignment for the benefit of creditors; (iv) come under the direct control of a trustee, receiver or similar authority; or (v) fail to pay the fees when due in accordance with your subscription plan. In the event this Agreement is terminated for cause due to an uncured material breach by you, you agree, without limiting our other rights or remedies, to pay all remaining fees payable for the remainder of your term.

6.2 If this Agreement is terminated for cause due to a material breach by you for which we are not responsible, you will be entitled to a pro rata refund of all fees paid by you to us from the date of termination through the end of the Subscription Term.

6.3 You may terminate this Agreement by requesting the deactivation and deletion of your account while you are logged into the Service. MetriFire may also terminate your right to use the Site and/or the Services with or without cause at any time. MetriFire will notify you by email to your registered email account when we terminate your account. Your obligation to pay any fees and charges accrued up to the date of termination will survive any termination of this Agreement. In the event of termination of this Agreement, the restrictions on your use of the Services under Clause 7 and our warranties under Clause 10 will survive such termination.

6.4 Upon expiration of the Subscription Term or termination, however occurring, Your Subscription Plan will terminate immediately and You will consequently be able to use the Free Version of the Service.

7. Restricted licenses

7.1 Subject to this Agreement, MetriFire grants you a limited, revocable, non-exclusive, non-transferable and non-assignable license to use the Website and/or access the Services as an enterprise software-as-a-service (SaaS) solution and for commercial use subject to the other terms of this Agreement. You hereby agree not to resell any portion of the Services. You may not transfer, rent, sublicense, modify, reverse engineer, decompile or disassemble the Website and/or any portion of the Services. You may not copy, adapt, alter, modify, translate or create derivative works from the Site and/or the Services without MetriFire’s prior written permission. You represent and warrant that you will not use the Services for any unlawful purpose or to transmit any information that could be construed as unlawful, defamatory, abusive, obscene, or infringing the rights, including intellectual property rights, of others.

7.2 You shall not permit any third party to use the Services, except as provided in clauses 2.5 and 2.6, including but not limited to sharing over a network connection, except under the terms of this Agreement.

7.3 To protect the intellectual property rights in the Services, you may not circumvent or disable any technical features or measures in the Services. You may not use the Services, including in connection with any device, program or service designed to circumvent any technological measures employed to control access to or rights in any content file or other work protected by intellectual property laws.

7.4 Any such prohibited use, as described above, is a material breach of this Agreement and will cause us, in our sole discretion, to immediately terminate your right to access the Service. Any violation of this clause will make you liable for damages suffered by MetriFire.

8. Property rights

8.1 Except as otherwise stated herein, all right, title and interest in and to the Site and/or the Services and all content therein is the exclusive property of MetriFire. Unless otherwise stated, the Services are for your limited use only, and if you copy or download any information from the Site and/or the Services, you agree that you will not remove or obscure any copyright or other notices or legends contained in such information.

8.2 You may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, frame, create derivative works from, transfer or otherwise use any information, software, products or services obtained from the Site and/or Services, in whole or in part, for any commercial or public purpose, except for the purposes expressly set forth herein, without MetriFire’s prior written permission.

8.3 Except for those intellectual property rights already owned, registered or in your name, or those intellectual property rights created by or for you during the term of this Agreement, all trademarks, trade names, service marks, logos and other intellectual property rights in the Site and Services are owned by MetriFire. You are strictly prohibited from using any Trademarks on the Site and Services in any manner other than as permitted in this Agreement or as authorized in writing by MetriFire.

8.4 All of Your trademarks, trade names, service marks and logos are owned by You. MetriFire is strictly prohibited from using Your trademarks in any manner other than as permitted in this Agreement or as authorized by You in writing.

8.5 In the course of providing the Services, MetriFire will have access to some of your information. All right, title and interest in and to the Data is your exclusive property, except as otherwise provided in this Agreement.

8.6 MetriFire is not permitted to modify, copy, distribute, transmit, display, perform, reproduce, publish, license, frame, create derivative works from, transfer or otherwise use for any commercial or public purpose any of Your Data that belongs to You, in whole or in part, except for the purpose of providing the Services expressly contemplated by this Agreement, without further prior authorization or consent from You.

8.7 For the avoidance of doubt, MetriFire will keep Your data confidential and will keep Your confidential information strictly confidential. In this regard, MetriFire will not disclose or permit the disclosure of your information to any unauthorized person and will use it only to the extent strictly necessary for MetriFire to provide the Services. For the avoidance of doubt, all such rights to use Your Data by MetriFire are granted solely for the duration of this Agreement and in accordance with our Privacy Policy.

8.8 You acknowledge and agree that MetriFire may disclose information if required to do so by law or in the good faith belief that such retention or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce this Agreement; (c) respond to claims that Your Content and/or Data infringe the rights of third parties; or (d) protect the rights, property, or personal safety of MetriFire, the Site, the Services, its users, and the public.

8.9 In the event that you provide MetriFire with any feedback, suggestions, comments or enhancements relating to the Site and/or the Services, you hereby grant MetriFire an irrevocable, sublicensable and royalty-free right and license to use, reproduce, disclose, license and distribute such feedback, suggestions, comments or enhancements in any manner whatsoever without any obligation of any kind to you. Nothing in this Agreement shall be construed as limiting MetriFire from using, developing and marketing any Services that incorporate the Feedback, suggestions, comments or enhancements provided by You.

8.10. For the avoidance of doubt, all such rights to use Your Data are granted by MetriFire solely for the duration of this Agreement.

9. Confidential information

9.1 The person receiving Confidential Information (the “Receiving Party”) shall keep and maintain the Confidential Information in strict confidence for the sole and exclusive benefit of the other party (for purposes of this Section, the “Disclosing Party”). The Receiving Party shall ensure that access to Confidential Information is limited to its employees, contractors and third parties as commercially and reasonably necessary and shall require such persons to sign and comply with confidentiality obligations at least as protective as those contained in this Agreement. The Receiving Party shall not use, publish, copy or otherwise disclose to others, or permit the use by others for their benefit or to the detriment of the Disclosing Party, any Confidential Information for its own benefit without the prior written consent of the Disclosing Party. The Receiving Party shall promptly return to the Disclosing Party all Confidential Information and all records, notes and other written, printed or tangible materials in its possession relating to Confidential Information if requested in writing by the Disclosing Party.

10. Confidential information

10.1 MetriFire warrants and represents to You that:

To the best of MetriFire’s knowledge, the intellectual property rights (including but not limited to all copyrights, trademarks, design rights, service marks, whether registered or not) in the materials provided by MetriFire as part of the Site and/or Services do not infringe the intellectual property rights of any third party when used in accordance with this Agreement;

MetriFire will only use your information in accordance with this Agreement, including its attachments; and

MetriFire represents and warrants to You that it has all necessary rights and authority to enter into the Main Agreement and any Attachments and to perform the Services.

10.2 You represent and warrant that you will comply with all laws and regulations applicable to you when using our Service. You agree to provide and maintain a legally adequate privacy policy that accurately discloses your practices regarding the collection, use, and disclosure of personal information, including personal information collected through your use of Our Service. You are responsible for determining whether you are subject to any sector-specific privacy laws or regulations, including, but not limited to, the Health Insurance Portability and Accountability Act (HIPAA), the Gramm-Leach Bliley Act (GLBA), the Children’s Online Privacy Protection Act (COPPA), the Family Education Rights and Privacy Act (FERPA), or other laws that relate to the protection of personal information collected, as well as any other laws that may apply to you, and for determining whether you may use Our Service in light of the application or potential application of such laws or regulations. If you are subject to certain laws or regulations, you represent and warrant that your use of our Service will be in compliance with such laws or regulations. MetriFire will not be liable if you fail to provide a legally adequate privacy policy or if our Service does not comply with the requirements imposed by the privacy laws or regulations to which you are subject.

10.3 If you are located in a jurisdiction with data protection laws (e.g., the European Economic Area (EEA) or California) or have visitors from such jurisdictions, you represent and warrant that you will use the Service in accordance with the GDPR, including that you:

You clearly describe in writing how you intend to use the Processed Data, including for your use of our Service. We have developed some sample wording that you can use for this (please consult your own attorney before using these!);

have complied and will comply with all applicable data protection, electronic communications and privacy laws;

Have processed all data relating to an individual in accordance with all data protection laws and regulations; and

You agree to indemnify and hold us harmless from any losses, including attorneys’ fees, resulting from your breach of any part of these warranties;

You further agree that, if applicable to you, you have signed our Data Processing Agreement.

10.4 You agree to comply with all applicable export and re-export control laws and regulations in connection with your use of the Service. You warrant that you are not located in a country sanctioned by the United Nations Security Council and are not on a list of sanctioned persons. You also warrant that you are not purchasing the Service with funds from a sanctioned country.

11. Limitations

11.1. In no event will MetriFire, its owners, suppliers or their respective owners, directors, employees, contractors and/or agents be liable to you or any third party for any direct, indirect, special, exemplary, punitive or other consequential or incidental damages (including, without limitation, lost profits or revenue, interruption, loss of programs or other information, or other pecuniary loss) arising directly or indirectly from (i) your use of or access to the Site and/or the Services or any content, products or services distributed or made available through the Site and/or the Services, (ii) any failure or interruption of the Site and/or the Services; whether arising from errors, omissions, loss of data, defects, viruses, interruptions or delays in operation or transmission, or otherwise, whether based on warranty, contract, tort (including negligence) or any other legal theory, even if MetriFire or its suppliers have been expressly advised of the possibility of such damages.

11.2 In any event, and without prejudice to the foregoing, MetriFire’s maximum aggregate liability under this Agreement, including any Attachments, or with respect to the use or exploitation of any part or all of the Site or Services, Content or User Material shall in no way exceed your monthly subscription fee.

12. Data retention

12.1 MetriFire is committed to securely storing data on behalf of our customers in accordance with the relevant subscription plan and timeframe. Any data exceeding the specified time frame will be routinely and automatically deleted from our systems.

12.2 You expressly acknowledge and agree that MetriFire does not provide archiving or backup services and may delete data that is no longer in use and exceeds the timeframe specified in the applicable subscription plan. MetriFire expressly disclaims any and all obligations with respect to archiving, storage and backup of data.

13. Assumption of risk

13.1 Your use of the Internet is solely at your own risk and subject to all applicable local, state, national and international laws and regulations. Although MetriFire has endeavored to provide a secure and reliable website and services, MetriFire is not responsible for the security of any information outside of its control. MetriFire assumes no liability for any interruptions or omissions in Internet, network or hosting services. You assume the sole and entire risk of use of the Site and Services.

13.2 You hereby acknowledge that due to the global nature of the Internet and the World Wide Web, the Site and/or the Services are available online and may generally be accessed from anywhere in the world at any time. Access to the Site and/or the Services may not be legal for certain persons or in certain jurisdictions. Access to and use of the Site and/or Services is at your own risk, and you are responsible for compliance with the laws of your jurisdiction and any jurisdiction in which you use the Site and/or Services. You agree to comply with all local rules regarding online conduct and acceptable content in generated content.

14. Links

14.1 The Website and/or the Services may contain links to certain websites, materials or content developed by third parties. MetriFire has not reviewed all of the sites linked to the Site and/or the Services and does not endorse or accept any responsibility for the content of such linked materials. The inclusion of any link does not imply endorsement by MetriFire of the material thereon, and MetriFire shall have no liability for the links contained. Your use of any linked material is at your own risk. MetriFire reserves the right, in its sole and absolute discretion, to discontinue links to other material at any time and for any reason.

15. Ads

15.1 Unless you expressly revoke your consent to this clause by emailing support@metrifire.com, you hereby acknowledge and agree that MetriFire may use your trademarks, logos and trade names to identify you as a user/customer of MetriFire on MetriFire’s website and/or services and in other marketing materials.

16. Safety enforcement

16.1 Actual or attempted unauthorized use of the Site and/or Services may subject us to criminal and/or civil action. For your protection, we reserve the right to inspect, monitor and record activity on the Site and/or Services without prior notice or further permission from you, to the fullest extent permitted by applicable law and only in accordance with this Agreement. This right extends to our review of tracking activities and details relating to alleged violations by you. Any information obtained through monitoring, review or recording is subject to review by law enforcement authorities in connection with the investigation or prosecution of possible criminal activity on the Site and/or Services.

17. Severability clause

17.1 If any provision of this Agreement is found by a court of competent jurisdiction to be unenforceable, such provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in fullest force and effect.

18. Compensation

18.1 Our Indemnification Obligations: We agree to indemnify and hold you harmless from any third party claim arising out of or related to our infringement of a third party’s intellectual property rights directly resulting from your use of the Services in accordance with the terms of this Agreement. Notwithstanding the foregoing, we shall not be obligated to indemnify you for any claims (i) arising out of or related to your data; (ii) resulting from your violation of any applicable law; (iii) resulting from your alleged or actual violation of any third party rights, including, but not limited to, privacy and personal rights.

18.2 Your Indemnification Obligations: You will indemnify, defend and hold harmless MetriFire, including its subsidiaries, officers, owners, partners, directors, employees, contractors, agents, affiliates, shareholders, licensors, suppliers and other partners (“Indemnified MetriFire Parties”) to the fullest extent possible, in full and in perpetuity, and at your own expense, from and against any and all third party liability, claims, costs, expenses, liabilities, losses or damages, other than indirect and consequential damages, arising out of (i) your unauthorized use of any material obtained through the Site and Services; (ii) your use of and access to the Site and Services not in accordance with this Agreement; and (iv) your alleged or actual infringement of any rights of any third party.

18.3 Indemnification Procedures: The parties’ respective indemnification obligations above are subject to the following conditions: (a) the Indemnified Parties promptly notify the Indemnifying Party in writing of the Claim, except that failure to promptly notify the Indemnifying Party shall limit the indemnification obligations only to the extent the Indemnifying Party is damaged by the delay or failure; (b) the Indemnifying Party has full and complete control over the defense and settlement of the Claim; (c) the respective Indemnified Parties provide such assistance in the defense and settlement of the Claim (so long as the settlement does not involve any payment of amounts or admission of civil or criminal liability by any of the Indemnified Parties) as the Indemnifying Party may reasonably request; and (d) the Indemnified Parties comply with any settlement or court order relating to the Claim. The Indemnifying Party shall indemnify and hold the Indemnified Parties harmless from: (i) all damages, costs and attorneys’ fees finally awarded against any of them with respect to any Claim; (ii) all expenses (including reasonable attorneys’ fees) reasonably incurred by any of them in connection with the defense of the Claim (other than attorneys’ fees and costs incurred without the consent of the Indemnifying Party after the Indemnifying Party has assumed the defense of the Claim); and (iii) any amounts that the Indemnifying Party has agreed to pay to any third party in settlement of any Claim arising under this Clause and settled by or with the consent of the Indemnifying Party.

18.4 Remedies for Infringement: If You are prohibited from using the Services or any part thereof due to a third party claim of intellectual property infringement covered by Our indemnification obligations under this clause above, We will, at Our sole cost and expense and at Our option, either: (a) obtain for you the right to use the allegedly infringing portions of the Services; (b) modify the allegedly infringing portions of the Services so that they are no longer infringing without substantially diminishing or impairing their functionality; or (c) replace the allegedly infringing portions of the Services with non-infringing items having substantially similar functionality. If we determine that the foregoing remedies are not commercially reasonable, we will promptly provide you with a pro rata refund for any prepaid fees received by us under this Agreement corresponding to the unused portion of the Term. The remedy set forth in this clause shall be your sole and exclusive remedy for any actual or alleged infringement by us of any third party intellectual property rights in the event that you are prohibited from using the Services or any portion thereof based on a claim covered by our indemnification obligations under this clause.

18.5 You shall be solely responsible for defending any such claim and for paying any losses, costs, damages or expenses incurred by both a third party and MetriFire in connection therewith. You shall not, without MetriFire’s prior express written consent, attempt to enter into, dispose of or enter into any settlement or compromise of any claim made against you (whether or not such claim has been finally adjudicated) if such settlement or compromise results in any obligation or liability to MetriFire. Provided, however, that this clause shall survive the termination of this Agreement, however formed, and the termination of your access to and/or use of the Site or Services.

19. Applicable law and participation in disputes

19.1 This Agreement shall be governed by and construed in accordance with the laws of Germany. The parties agree that any dispute or claim arising out of or relating to this Agreement or its subject matter shall be subject to the exclusive jurisdiction of the Federal Republic of Germany and the arbitration rules of the Federal Republic of Germany in effect at the time of the dispute. MetriFire reserves the right, in its sole discretion and for its exclusive benefit, to bring any proceeding relating to your use of the Site and Services in the courts of the country in which you reside.

20. Waiver of jury trial

20.1 You and MetriFire waive your rights (if any) to a trial by jury with respect to all claims and causes of action (including counterclaims) related to or arising out of this Agreement. This waiver shall also apply to any subsequent amendments or modifications to this Agreement.

21. No class actions

21.1 All claims between the parties, including the parent and affiliates referred to in Sections 2.5 and 2.6, relating to this Agreement will be litigated individually, and you will not bring any class action for claims relating to the Services.

22. Waiver of compliance with this agreement

22.1 Our failure at any time to enforce any of the terms, conditions or requirements of the Agreement, or our failure at any time to require you to perform any of the terms of the Agreement, shall not in any way relieve you of your obligation to comply with any of the terms of the Agreement or our ability to enforce each such term as written.

22.2 Any waiver by either party of any term, condition or requirement of the Agreement shall be effective against the other party only if in writing and signed by an authorized representative of such party, and such written waiver shall not constitute a waiver of any future obligation to comply with such term, condition or requirement.

23. Resignation and Delegation

23.1 Neither Party may assign or delegate any rights or obligations under the Agreement without the prior written consent of the other Party. Notwithstanding the foregoing, either Party may assign its rights and obligations under the Agreement in connection with a consolidation, merger, acquisition or sale of substantially all of its assets, interests or activities without the prior written consent of the other Party.

24. Relationship between the parties

24.1 Except as otherwise provided herein, nothing in these Terms shall be construed to create any partnership, agency, single employer, joint employer or other type of employment relationship between the Parties or to impose any liability on either Party arising out of any such relationship. Neither party has the right, power or authority to enter into any agreement on behalf of the other party, to incur any obligation or liability of the other party, or to otherwise bind the other party.

25. Constancy

25.1 Rights and obligations under this Agreement which by their nature are intended to survive termination, including without limitation the indemnification and limitation of liability provisions set forth in this Agreement, shall remain in full force and effect upon termination or expiration of this Agreement.

26. Privacy and data protection 

26.1 Please refer to Our Privacy Policy for details regarding Our privacy practices with respect to the MetriFire Service. You acknowledge that by using Our Services, You may process information that is considered personal data and/or sensitive data under the laws applicable to You. You acknowledge that you are solely and exclusively responsible for taking all necessary measures on your website/app and obtaining all consents that you are legally required to obtain from your users/customers.

26.2 By accepting the terms and conditions contained in this Agreement, including its attachments, you acknowledge and warrant that you will comply with all applicable laws, including but not limited to privacy and confidentiality laws, and that you will indemnify and hold MetriFire harmless from any and all third party claims relating to the violation of such applicable laws in your use of the Service.

26.3 Privacy Policy on Your Website/App: We are not responsible or liable for Your failure to provide a legally adequate privacy policy disclosing Your use of Our Services. Failure to implement a privacy policy on your website/app that complies with applicable privacy laws may result in termination of your account.

DISCLAIMER

THE MATERIALS ON THE METRIFIRE SITE AND THE SERVICES ARE PROVIDED “AS IS”. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 10 HEREOF, METRIFIRE MAKES NO OTHER WARRANTIES, EXPRESSED OR IMPLIED, AND HEREBY DISCLAIMS AND NEGATES ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. FURTHER, METRIFIRE DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS CONCERNING THE ACCURACY, LIKELY RESULTS, OR RELIABILITY OF THE USE OF THE MATERIALS ON ITS WEB SITE OR SERVICES, OR OTHERWISE RELATING TO SUCH MATERIALS OR ON ANY THIRD-PARTY WEB SITES OR SERVICES LINKED TO THE SITE OR SERVICES, OR THAT THE SERVICES WILL BE ERROR-FREE OR PRODUCE SPECIFIC RESULTS.

YOU HEREBY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND AGREE TO BE BOUND BY ITS TERMS.