TERMS OF USE

To use any information, materials or services offered via the InstallMetrix.com and any successor website(s) (“Website”), including, without limitation, the InstallMetrix Dashboard reporting tool (“DashBoard”) and the InstallMetrix download manager software which manages the download and installation of certain software (“Installer Software”), you must agree to be bound by these Terms of Use (“Terms of Use”) of InstallMetrix, LLC (“InstallMetrix”, “Us” or “Our”) and its affiliated companies (“Affiliated Companies”).  All information, materials and services offered via the Website, including, without limitation the Dashboard and the Installer Software, may sometimes be collectively referred to as the “Services.” 

By using the Services, you are indicating that you have read, understand, and agree to these Terms of Use and the InstallMetrix Privacy Policy (“Privacy Policy”). 

Installer Software

The Installer Software is offered free-of-charge to certain of InstallMetrix and its Affiliated Companies’ advertiser and publisher affiliates and other partners (“Partners”).  The Installer Software permits Partners to bundle software distribution packages with an offer to download other software package(s) via the install process.  To the extent that InstallMetrix has authorized and provided access to a particular Partner to use the Installer Software for the purpose of a specific software bundling and distribution as set forth in a separate written agreement, InstallMetrix grants to such Partner a non-exclusive, non-transferable, non-sublicensable, royalty-free, fully paid up, world-wide, personal license, in object code format only, to use the Installer Software for the purpose of such bundling and distribution of the offered software. InstallMetrix grants to users a non-exclusive, non-transferable, non-sublicensable, royalty-free, fully paid up, world-wide, personal license, in object code format only, to use the Installer Software for the purpose of installing Partner’s carrier software product and for accepting the offer of an offered software.  This license to the Installer Software is revocable at any time for any reason.  Upon termination of the license granted herein for any reason, you agree to immediately cease use of the Installer Software and destroy all copies of the Installer Software supplied by the Installer Software. You are being granted a right and license to use the Software- InstallMetrix does not transfer title of the Installer Software to you.  You are only entitled to the limited use of the intellectual property rights granted to you under this foregoing license. The assignment, sublicense, networking, sale, or distribution of copies of the Installer Software is strictly forbidden without the prior written consent of InstallMetrix. It is a violation of these Terms of Use to assign, sell, share, loan, rent, lease, borrow, network or transfer the use of the Installer Software. You shall not allow others to use or make copies of the Installer Software.  Each licensed copy of the Installer Software may be used on one single computer location or workstation, unless otherwise authorized herein. “Use” means that you have loaded, installed, or run the Installer Software on a computer or similar device. If you install the Installer Software onto a multi-user platform, server or network, each and every individual user of the Installer Software must be licensed separately or included by a multi-site license in order to access all the features and functionality of the Installer Software.

Dashboard

The Dashboard is a free-of-charge service offered to select Partners.  It permits Partners to view certain information with respect to installations of bundled software distribution package relating to such Partner.  Note that the data and other information accessed via use of the Dashboard is automatically generated and thus should not be relied upon for any purposes other than a general guide or for estimation purposes only unless and until verified and confirmed by InstallMetrix.  InstallMetrix reserves the right to refuse registration or access to or use of the Dashboard for any reason whatsoever and at any time.

Account Obligations; Change in Circumstances

Upon properly completing the registration process, you will promptly receive an InstallMetrix account (“Account”) identification (“ID”) and temporary password for access to Dashboard. You are responsible for maintaining the confidentiality and security of your ID and password, and are fully responsible for all activities that occur under your Account. You agree to immediately notify us of any unauthorized use of the Account, your ID or password or any other breach of security, and to ensure that you log out from your Account at the end of each Dashboard session. We cannot and will not be liable for any loss or damage arising from your failure to comply with these security obligations and any other unauthorized use of your Account.

You understand that you are responsible for any service and equipment costs associated with obtaining access to the World Wide Web to use the Services.

In consideration of your use of Dashboard, you agree: (a) that all information, and any updates, modifications or revisions thereto, that you provide (“Data”) about any individuals and their employer as prompted by the registration form (“Profile Data”) or otherwise during or in connection with your use of the Services (“Service Data”) is true, accurate, current and complete, and (b) to maintain and promptly update the Profile Data to keep it true, accurate, current, and complete. If you provide any Data or other information that is untrue, inaccurate, misleading, incomplete or not current, or we have reasonable grounds to suspect that such information is untrue, inaccurate, misleading, incomplete or not current, we reserve the right to immediately suspend or terminate your account and refuse any and all current or future use of Services by you and/or your employer.

In particular, if any individual under your Account changes employers or employment, performs work for another company, change titles, duties or responsibilities, or moves into another business group, unit or divisions with their current employer, and any such change in circumstances causes that individual to no longer be authorized to view, provide, receive or access any of the Data, you agree to immediately notify us of such change, re-register to open a new account and not to access or attempt to access your prior account or the Data for such account.  If that individual remains authorized to view, provide, receive, and access any of the Data despite one or more of the changes in circumstances described above, you agree that we may ask that you specify the change in circumstances and may (but have no obligation to do so) undertake to verify that such individual remains so authorized.  In any event, you agree not to provide to InstallMetrix any confidential or proprietary information, trade secrets, or other protected or protectable information or data that you do not have the authority or right to disclose. You represent and warrant that you are authorized to provide, and view, receive and access the Data in each instance that you do so.

Modifications, Suspensions and Terminations of Accounts

You acknowledge and agree that InstallMetrix reserves the right to (a) suspend, terminate, or deactivate any accounts that are inactive for an extended period of time, (b) terminate, block, or prevent access to the Services by any users or groups of users that are not legitimate users of Services, (c) InstallMetrix may rely on the truth, accuracy, and completeness of your Profile Data, and any revisions, modifications, or updates thereof, and (d) subject to the terms of the Privacy Policy independently verify and confirm the truth, accuracy, and completeness of your Profile Data and/or Service Data, and any revisions, modifications, or updates thereof, by contacting you and any third parties.

You agree that InstallMetrix, in its sole discretion and at any time, may modify, terminate or suspend your password, account ID, Account, or access to or use of the Services (or any part thereof) for any reason whatsoever, including, without limitation, if InstallMetrix believes that you have violated or acted inconsistently with the letter or spirit of this Terms of Use or acted to the detriment of InstallMetrix or its customers or Partners or any other holders of an Account.   InstallMetrix reserves the right to (a) suspend, terminate, or deactivate any accounts that are inactive for an extended period of time, (b) terminate, block, or prevent access to the Services by any users or groups of users that are not legitimate users of Services, (c) InstallMetrix may rely on the truth, accuracy, and completeness of your Profile Data, and any revisions, modifications, or updates thereof, and (d) subject to the terms of the Privacy Policy independently verify and confirm the truth, accuracy, and completeness of your Profile Data and/or Service Data, and any revisions, modifications, or updates thereof, by contacting you and any third parties.  You agree that any termination or suspension of your access to the Services under any provision of this Terms of Use or otherwise may be effected without prior notice, and you acknowledge and agree that InstallMetrix may immediately deactivate or delete your Account and all related Data in your Account and/or bar any further access to such Data or the Services without prior notice. Further, you agree that InstallMetrix shall not be liable to you or any third party for any termination or suspension of your Account or use of or access to the Services.

Your Right To Review And Modify Profile Data

As discussed above, you have certain obligations to maintain the Profile Data such that it remains true, accurate, current, and complete. At any time, you may request to review your Profile Data. You may seek to modify the Profile Data by sending an email request to contact@installmetrix.com specifying the modification. However, to modify your name, any information regarding your employer, your billing address, or your email address, we may request that you specify the reason for your requested modification and seek your confirmation that you remain authorized to view, provide, receive, or access all of the Data (as described above in the Section entitled “Account Obligations; Change In Circumstances”). You may receive an email or telephone response to your requested modification.

Privacy; Security

Except as provided above and with respect to submissions (as described below), your Profile Data, the Service Data and any other Data that you provide during your use of the Services, and InstallMetrix’s collection and maintenance thereof, will be subject to and governed by InstallMetrix’s Privacy Policy, currently located at http://installmetrix.com/privacy.html.

EUROPEAN AND OTHER FOREIGN USERS OF THE SERVICES: Please note that certain portions of the Services (such as registration for use of the Dashboard) collect and maintain certain personally identifiable information about you and certain individuals. By agreeing to this Terms of Use and using the Services, you hereby provide your consent for InstallMetrix to use, disclose, and transfer this information both within and outside of the European Union and your particular jurisdiction in accordance with the Privacy Policy and this Terms of Use.

Submissions

All comments, inputs, suggestions, and feedback (“Submissions”) regarding or relating to any of InstallMetrix's products or the Services submitted by or through Services shall be considered non-confidential and InstallMetrix's property. By providing such Submissions, you agree to assign to InstallMetrix, at no charge, all world-wide rights, title and interest in copyrights and other intellectual property rights in and to the Submissions. InstallMetrix shall be free to use and disseminate such Submissions on an unrestricted basis for any purpose in connection with its products and services.

Intellectual Property Rights

The information, data, services, documentation, and materials available from or through the Services are owned by InstallMetrix and its Affiliated Companies, Partners, licensors or suppliers and are protected by copyright and other intellectual property laws and treaties. InstallMetrix and such third parties reserve all rights therein. You may use such information, data, services, documentation and materials for your purposes only in connection with your permitted and licensed use of InstallMetrix’s and its Affiliated Companies’, Partners’, licensors’ or suppliers’ goods and services, including without limitation, the Installer Software and the Dashboard. Except as specifically provided, you may not reproduce, publish, post, transmit, distribute, or transfer any such information, data, services, documentation, and materials. Nothing in your use of your Account or otherwise relating to the Services shall be deemed or construed to confer any license under any of InstallMetrix’s or its Affiliated Companies’, Partners’, licensors’ or suppliers’ intellectual property rights, whether by estoppel, implication or otherwise.

Representations, Warranties and Covenants

You represent, warrant and covenant that (a) your usage of the Services, including, without limitation, the Installer Software, will only be for lawful purposes and will be in accordance with these Terms of Use and all applicable laws, (b) you will not use the Services to violate any law, regulation or ordinance or any right of InstallMetrix or any third party, including, without limitation, any rights of privacy or publicity, copyrights, or patent or trademark or other intellectual property right, and (c) you have the adequate legal capacity to enter into these Terms of Use. 

You agree not to, and to not assist any third party to, (1) reverse engineer, disassemble, alter, decompile, duplicate, create derivative works from, make copies of, extract information from, provide or distribute other works with the Installer Software, or any information available on, extracted or derived from the Services, or any part thereof; (2) unless you are an InstallMetrix Partner, connect, use, attempt to connect or use in any way the Services, for purposes other than your private, personal use; or, (3) interfere, block, disable or otherwise affect any advertising, advertising element, advertisement banner window, links to other sites and services, or other features that constitute an integral part of the Services.

Disclaimers; Limited Representations and Warranties; Limited Liability

ANY SERVICES PROVIDED BY INSTALLMETRIX, AND ITS AFFILIATED COMPANIES AND PARTNERS ON BEHALF OF INSTALLMETRIX, THROUGH THEIR WEBSITES ARE PROVIDED “AS IS” WITHOUT ANY EXPRESS OR IMPLIED REPRESENTATION, GUARANTY, OR WARRANTY OF ANY KIND INCLUDING REPRESENTATIONS OR WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OF ANY RESULTS OR OF QUALITY, SUITABILITY, ADEQUACY, GENUINENESS, ACCURACY, OR COMPLETENESS OF THE SERVICES OR ANY PORTION THEREOF.  You understand and agree that InstallMetrix assumes no responsibility for the timeliness, deletion or misdelivery of or failure to continually provide any Services.

WITHOUT LIMITING THE ABOVE, YOU EXPRESSLY UNDERSTAND AND AGREE THAT:

(I)        YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. INSTALLMETRIX EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, GUARANTIES, OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED.

(II)            INSTALLMETRIX MAKES NO REPRESENTATION, GUARANTY, OR WARRANTY THAT (a) THE SERVICES WILL MEET YOUR REQUIREMENTS, (b) THE SERVICES WILL BE UNINTERRUPTED, CONTINUOUS, TIMELY, SECURE, OR ERROR-FREE, (c) THE RESULTS FROM THE USE OF THE SERVICES WILL BE COMPLETE, ACCURATE OR RELIABLE, (d) THE QUALITY OF SERVICES, AND THE INFORMATION AND OTHER MATERIAL OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS, (e) ALL INSTALLMETRIX SOFTWARE VERSIONS WILL HAVE SIMILAR GRADES AND LEVELS OF SERVICE, FEATURES, FUNCTIONALITY AND THE ABILITY TO USE THE SERVICES, AND (f) THAT THE SERVICES, INCLUDING WITHOUT LIMITATION, THE INSTALLER SOFTWARE, WILL BE FREE OF INFECTION BY VIRUSES, WORMS, TROJAN HORSES OR ANYTHING ELSE THAT COULD RESULT IN THE PROLIFERATION OF MENACING OR DESTRUCTIVE CODE OR PROPERTIES.

(III)      ANY SERVICES OR INFORMATION OR OTHER MATERIAL OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR SOFTWARE, FILES, COMPUTER HARDWARE, TECHNICAL AND OTHER SYSTEMS OR LOSS OF OR DAMAGE TO DATA, SOFTWARE, OR GOODS THAT RESULTS FROM THE USE OF ANY SUCH SERVICES, INFORMATION AND MATERIAL.

(IV)     NO ADVICE, TRAINING OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM INSTALLMETRIX THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS TERMS OF SALE.

For purposes of this section, “InstallMetrix” shall include InstallMetrix and its Affiliated Companies and Partners, and their respective divisions, business units, subsidiaries, successors, licensors, suppliers, and their employees, directors, shareholders, partners, principals, agents, representatives, and any third-party suppliers of information, data and materials furnished by or through the Services.

TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL INSTALLMETRIX BE LIABLE FOR, AND YOU AGREE NOT TO MAKE A CLAIM AGAINST INSTALLMETRIX FOR, ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, GENERAL, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES OR DAMAGES FOR LOSS OF PROFITS OR REVENUE OR OTHER ECONOMIC ADVANTAGE, BUSINESS INTERRUPTION, GOODWILL, LOSS OF INFORMATION OR DATA OR OTHER TANGIBLE OR INTANGIBLE LOSSES), WHETHER AN ACTION OF CONTRACT, NEGLIGENCE, OR OTHER TORTIOUS ACTION, EVEN IF INSTALLMETRIX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF (a) YOUR USE OF OR INABILITY TO USE THE SERVICES, (b) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES REQUIRED AS A RESULT OF THE USE OF ANY DATA, INFORMATION, OR MATERIALS PROVIDED THROUGH OR BY THE SERVICES, (c) YOUR RELIANCE UPON THE INFORMATION, DATA OR MATERIALS FURNISHED BY OR THROUGH THE SERVICES, OR (e) ANY OTHER MATTER RELATING TO YOUR THE SERVICES.

Because some jurisdictions prohibit the exclusion of certain warranties or limitation of liability for consequential or incidental damages, some of the above limitations may not apply to you.

Third Party Services

The Services, including, without limitation, the Installer Software, may contain features and functionality that link to or are provided by a third party, including without limitation third party websites, databases, applications, software, programs, services, directories, servers, networks, and systems (collectively, “Third Party Services”).  InstallMetrix provides these Third Party Services to you as a convenience only and InstallMetrix does not, in any way, control or manage such Third Party Services. InstallMetrix therefore is not responsible for the content, functionality, accuracy, truthfulness, or availability of such Third Party Services or any link contained therein. InstallMetrix does not endorse or warrant such Third Party Services in any way, or any product or service that may be offered on or through such Third Party Services or through advertising delivered on or through the Services, as a result of by making such Third Party Services available. Under no circumstances shall the access to or availability of such Third Party Services through the Services give rise to any liability to you by InstallMetrix or its Affiliated Companies for any damage of whatever nature whatsoever. The Services are provided to you free of charge, unless expressly stated otherwise by InstallMetrix. If any payments were made by you for any software, goods, products or services that are bundled or offered through the Services, you acknowledge that such payments were made for the software, goods, products or services so offered, and not for the actual Services offered by InstallMetrix.

Indemnity

To the extent permitted by applicable law, you agree to indemnify, defend and hold InstallMetrix, and its Affiliated Companies, and their respective directors, members, shareholders, officers, agents, representatives and employees, harmless from any liability, action, suit, damages, claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your use of or connection to the Services or your violation of these Terms of Use or the rights of any third parties, except to the extent arising out of the sole active gross negligence or willful misconduct of InstallMetrix or its Affiliated Companies or their respective agents.

Compliance With Laws

You agree to comply with all applicable laws, rules and regulations with respect to your use of the Services. Unless otherwise explicitly stated, all information, data, and materials obtained from or through the Services are solely directed to individuals, companies, or entities legally permitted to receive such information, data, and materials. You agree that all such information, data and materials are subject to the US Export Administration Regulations and other applicable export laws and regulations. You agree that such information, data and materials, or the direct product therefrom, is not and will not be acquired for, shipped, transferred or re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals. You certify that you are not on the US Department of Commerce's Denied Persons List or affiliated with or on the US Department of Treasury's Specially Designated Nationals List. If you use the Services from any non-US location, you agree to comply with all local rules regarding your use thereof.

No Support

InstallMetrix may provide assistance to its users, in its sole and absolute discretion, but is not obligated to do so and may terminate any assistance at any time without notice to you. InstallMetrix does not undertake nor is it obligated to provide you with any updates, upgrades, bug fixes, error corrections and/or enhancements to all or any portion of the Services, including without limitation, the Installer Software.

Changes to the Services

InstallMetrix reserve the right at any time to change, modify, add to, delete suspend or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice, including, without limitation, the Dashboard and Installer Software. InstallMetrix makes no commitment to continue the Services in their existing or any future form. You agree that InstallMetrix shall not be liable to you or to any third party for any change, modification, suspension or discontinuance of the Services. Unless explicitly stated otherwise, any new features or services that augment, supplement, complement or enhance the current Services shall be subject to this Terms of Use.

Notices

You consent to receive any and all legally required communications, including notices, agreements, disclosures or other information in connection with any of the Services electronically from InstallMetrix. InstallMetrix may provide notices to you regarding your use of the Services, including without limitation any notices with respect to violations of the Terms of Use, any updates to the Services or the Terms of Use, or any portions thereof, and promotional information, via (i) e-mail to an e-mail address provided by you, and/or (ii) by “pop up” notice, “System” notice, or any other form of notice, on any of the Services, and/or by (iii) posting the notices on a main page or other page of the relevant Service.

Changes to Terms of Use

Due to changing technological and marketing demands and legal requirements, and changes to the Services, we must reserve the right to change this Terms of Use in the future. If that happens, we will endeavor to promptly update this Terms of Use and may also attempt to provide notice to holders of Accounts including by a message to users for whom we have email addresses, in conformity with our Privacy Policy and this Terms of Service, advising of any such change(s). Your continued use of the Services following changes to this Terms of Use will indicate that you accept the changes. For ease of your review of any changes, the following is a list of the date of all revisions to this Terms of Use:

Version          Date Promulgated

Version 2.0    August 19, 2014

Assignment

InstallMetrix reserves the right, in its sole and absolute discretion, to transfer, assign, sublicense or pledge in any manner whatsoever, any of its rights and obligations under these Terms of Use to an Affiliated Company, successor thereof or to any third party whatsoever, without notifying you or receiving your consent. You shall not transfer, assign, delegate, sublicense nor pledge in any manner whatsoever, any of your rights or obligations under these Terms of Use.

General Legal Provisions

This Terms of Use, and the InstallMetrix Privacy Policy, constitutes the entire contract between InstallMetrix and you regarding, and governing, your use of, the Services and your Account, superseding any prior or contemporaneous understandings, commitments, agreements, oral or written, between you and InstallMetrix and its Affiliated Companies regarding the subject matter hereof. Except for any generally applicable modifications posted by InstallMetrix, any modifications of these Terms of Use must be in writing and signed by both parties. Neither party shall be responsible for any failure to perform due to unforeseen circumstances or causes beyond its reasonable control. These Terms of Use and the relationship between you and InstallMetrix with respect to the Services shall be governed by the internal laws of the State of California, and the United States of America, without regard to its conflict of law provisions, and specifically excluding the United Nations Convention on Contracts for the International Sale of Goods. You and InstallMetrix agree to submit to the exclusive personal jurisdiction and venue of the courts located within the City and County of San Francisco, California. The failure of InstallMetrix to exercise or enforce any right or provision of these Terms of Use shall not constitute a waiver of such right or provision or other right or provision. If any provision of these Terms of Use, or any portion thereof, is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of these Terms of Use remain in full force and effect.  If you have any questions, concerns or problems, we encourage you to contact us at contact@installmetrix.com.  You may also contact us to receive a paper copy of Terms of Use.  We greatly appreciate your suggestions on how we can improve our Terms of Use or any aspects of our Services.