This Terms and Conditions agreement (“Agreement”) consists of terms and conditions which govern the use of and access to our Website at www.botmetric.com (the “Website”), Services (as defined below) and other products and services we may offer from time to time. This is an agreement between Botmetric, LLC. (“Botmetric,” “we,” “our,” or “us”) and you or the entity you represent (“Customer,” “you,” or “your”).
By accessing this website, by browsing, by downloading any of our products, or by using any of our Services, you acknowledge and agree that:
- You have read, understood, and agreed to be bound by the terms of this Agreement.
- You are of legal age to enter into this binding agreement.
- You have the authority to enter into this Agreement personally or on behalf of your entity and bind that entity to this Agreement.
Please review these terms and conditions carefully before using our Services.
Pursuant to this Agreement, Botmetric will provide an integrated operational platform for public cloud services ( “Services”). Services include, but are not limited to, those advertised on our Website and provided as part of the product including any backend services, such as web services, enabling you to run comprehensive audits to get insights on disaster recovery, cloud security, performance and log search available on this website.
Our Services also include three levels of troubleshooting (or “Solver”). When we detect a problem with the cloud service that you use, you have the option of implementing one of the following Solvers:
- The first which allows Botmetric to fix the problem directly and a notification to you when the problem is fixed.
- The second which is a pop-up notification that contains step-by-step instructions you can follow to fix the problem.
- A link to a page or a knowledge-base where the information relating to fixing your problem will be available to you.
You agree that Botmetric may modify, delete, add new features, update any portion of the Services or Solvers at any time. We may interrupt or suspend any portion of the Services with or without prior notice to you.
Please visit our Pricing page for the most current information regarding our Services and fees.
FEES & PAYMENT
Payments are for the use of any Services, products, and/or documents furnished by Botmetric at the rates agreed upon and specified on our Pricing page (the “Rates”), including late charges.You agree to those rates by using our Services. Your payment will include a base price and a surge price, as indicated on our Pricing page. You shall have fifteen (15) days from the date of the invoice to pay the amount, due thereon without any deductions or offsets of any kind. Payment must be made in US dollars. Our fees are exclusive of all applicable taxes or duties and you are responsible for payment of all such taxes or duties, excluding only taxes based on Botmetric’s income.
A late charge of $100 per month shall be accrued from the date and that amount will be due until we receive the payment. At the third month of non-payment, Botmetric will have the right to cancel your access and subscription to the Services. Botmetric shall be entitled to claim and pursue all available legal and equitable remedies against you to recover the invoiced amounts, and shall be entitled to all invoiced amounts, plus Botmetric’s collection and litigation costs (including attorney fees), plus interest on all amounts owed at the highest rate allowed by law. If we do not receive prompt payments from you, we may temporarily suspend or permanently terminate the Services at our discretion.
All payments are non-cancellable and non-refundable. However, should you cancel the use of the Services, we will make a pro-rata refund for the amount of Base price and Surge price, if applicable, that you do not use, as more fully detailed on our Pricing page.
We may increase and/or introduce new fees and charges for the products and services offered at any time, by giving you at least fifteen (15) days advance notice. The updated fees and charges will be effective at the next renewal term or when payment is due, whichever is earlier.
Third party product & services
Botmetric Services may contain links to third party products, technology, advertisements or websites. Botmetric makes no such representations or warranties whatsoever with respect to such third party sites, contents, products or its merchantability, fitness, etc., and is not responsible or liable for the products, contents or services provided by such third parties. You are solely responsible for any access and or use of any third party products and services and is done at your own risk and discretion and your use of such third party products shall not entitle you to have any claim against Botmetric. You at your sole expense shall obtain necessary consents and approvals from the third party for access and or use of any third party products and services. YOU WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO ANY DAMAGES CAUSED TO YOUR COMPUTER OR ANY DEVICE OR LOSS OF DATA FROM ACCESS AND OR USE OF SUCH THIRD PARTY PRODUCTS AND OR SERVICES.
You promise and agree not to use the Services for unlawful purposes, like accessing login information that does not belong to you, post or upload any virus that can interfere with proper working of the Services, or access the Website to monitor and with an intention to compete. You will not copy, reproduce, duplicate, sell resell or exploit any portion of the Service without our written consent which may be granted or withheld at our sole discretion. You will not violate any intellectual property right of any third party and/or market or advertise through our Services and or misrepresent yourself in any manner.
YOU AGREE AND UNDERSTAND THAT IT IS SOLELY YOUR RESPONSIBILITY TO TAKE APPROPRIATE MEASURES TO ISOLATE AND BACK UP YOUR COMPUTER SYSTEM, INCLUDING YOUR COMPUTER PROGRAMS, DATA AND FILES, AND TO TAKE OTHER ACTIONS NECESSARY TO PROTECT YOUR SYSTEM AND DATA. YOU ACKNOWLEDGE THAT YOUR DATA MAY BE ALTERED OR DAMAGED IN THE COURSE OF PROVIDING SERVICES SPECIFIED IN THIS AGREEMENT AND OR IN THE WEBSITE, WHETHER ON-SITE OR VIA REMOTE CONNECTION OR OTHERWISE.
COMPLIANCE WITH LAWS
You agree to comply with all laws, rules, and regulations applicable to this Agreement. If we pay any fine or penalty resulting from your violation of such laws, rules or regulations, you shall immediately reimburse us for any such payment.
You agree to comply with any international and national laws that apply to the products/technologies licensed under this Agreement, including the U.S. Export Administration Regulations, as well as any end-user and country-destination restrictions issued by the U.S. and other governments.
You represent and warrant that:
- You are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country.
- You are not listed on any U.S. Government list of prohibited or restricted parties.
You acknowledge that the Services are designed with capabilities to access the websites without regard to geographic location and to transfer or otherwise move Customer content and applications between the websites and other locations. You are solely responsible for the authorization and management of user accounts, as well as export control and geographic transfer of Botmetric content and applications.
Botmetric retains all intellectual property rights and you acquire no right or interest in any such intellectual property, by virtue of this Agreement or the services performed and or accessed under this Agreement.
Botmetric gives you a personal, worldwide, royalty-free, cancellable, non-assignable and non-exclusive license solely to use the software provided to you (by Botmetric) as part of the Services. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Services as provided by Botmetric, in the manner permitted by these terms. You may not copy, modify, distribute, sell, or lease any part of our Services or included software, nor may you reverse engineer or attempt to extract the source code of that software, unless laws prohibit those restrictions or you have our written permission.
“Intellectual Property Rights” shall mean copyright rights (including, without limitation, the exclusive right to use, make recordings of, reproduce, modify, adapt, edit, enhance, maintain, support, market, sell, rent, sell for rental, sublicense, distribute copies, publicly and privately display and publicly and privately perform, exploit, exhibit, the copyrighted work and to prepare derivative works), copyright registrations and applications, trademark rights that are pending registration, registered and unregistered (including, without limitation, trade names, trademarks, service marks and trade dress that are registered, unregistered and or pending registration) trademark and service mark registrations and applications, patent rights (including without limitation the exclusive right to make, use and sell), patent registrations and applications, mask-work rights, trade secrets, moral rights, author’s rights, right of publicity, contract and licensing rights, rights in packaging, goodwill and other intellectual property rights, as may exist now and/or hereafter come into existence, and all renewals and extensions thereof, regardless of whether any of such rights arise under the laws of any state, country or jurisdiction.
When you upload, submit, store, send or receive content to or through our Services, you give Botmetric (and those we work with) a worldwide license to use, host, store, reproduce, modify, create derivative works (such as those resulting from translations, adaptations or other changes we make so that your content works better with our Services), communicate, publish, publicly perform, publicly display and distribute such content. The rights you grant in this license are for the limited purpose of operating, promoting, and improving our Services, and to develop new ones.
CHANGES OR UPDATES
You understand, acknowledge and agree that we may update or change this Agreement at anytime with or without prior notice. We will replace this page with an updated version. It is therefore in your own interest to check the “Terms and Conditions” page any time you access our Website so as to be aware of any updates or changes, which may occur from time to time.
WARRANTIES AND DISCLAIMERS
DISCLAIMER: THE PRODUCTS AND SERVICES ARE AVAILABLE “AS IS” AND “AS AVAILABLE” BASIS. THE FOREGOING EXPRESS LIMITED WARRANTY IS IN LIEU OF ANY AND ALL OTHER WARRANTIES AND CONDITIONS EXPRESSED OR IMPLIED, ORAL OR WRITTEN, CONTRACTUAL OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF GOOD TITLE, WARRANTIES AGAINST INFRINGEMENT, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. BOTMETRIC DOES NOT WARRANT THAT ANY SERVICES, SOFTWARE OR OTHER DELIVERABLES PROVIDED WILL SATISFY YOUR REQUIREMENTS OR ARE WITHOUT DEFECT OR ERROR OR THAT THE OPERATION OF ANY SOFTWARE PROVIDED UNDER THIS AGREEMENT WILL BE UNINTERRUPTED. BOTMETRIC DOES NOT ASSUME ANY LIABILITY WHATSOEVER WITH RESPECT TO ANY THIRD PARTY HARDWARE, FIRMWARE, SOFTWARE OR SERVICES. WE MAY OFFER NEW “BETA” SERVICES, FEATURES OR TOOLS FOR YOU TO EXPERIMENT AND WITHOUT ANY WARRANTY AND MAY BE MODIFIED OR DISCONTINUED AT ANY TIME AT OUR DISCRETION. THE PROVISIONS OF THIS SECTION SHALL APPLY IN FULL FORCE FOR ANY SUCH SERVICES.
You represent and warrant the information that you provide to use our Services will :
- Not contain any virus, Trojan horse, worm, trapdoor, backdoor or malicious code the purpose of which is
- To disrupt, damage, destroy, alter or interfere with the use or operation of any of the Platform or Company System
- To perform functions which are not an appropriate part of the functionality of such information and whose result is to disrupt the use or operation of the Platform or Company System
- Not contain the following, unless expressly authorized in writing by us
- Any mechanism which electronically notifies you of any fact or event, or
- Any key, node lock, drop dead device, time bomb, time out, logic bomb or other function, implemented by any means, which may restrict the use of, or access to, any of you information provided by you in conjunction with your use of our Services.
LIMITATION OF LIABILITY
IN NO EVENT SHALL BOTMETRIC BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF BUSINESS, OR GOODWILL, LOSS OF REVENUE, PROFITS, DATA, OR DATA USE. NO ACTION ARISING OUT OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, MAY BE BROUGHT BY YOU MORE THAN ONE YEAR AFTER THE ACTION ACCRUED. IN NO EVENT WILL OUR LIABILITY FOR ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT WHETHER IN CONTRACT OR TORT OR BREACH OF WARRANTIES OR STRICT LIABILITY OR FAILURE OF ESSENTIAL PURPOSE OR OTHERWISE EXCEED THE AMOUNT OF TOTAL FEES ACTUALLY PAID BY YOU FOR THE SERVICES UNDER THIS AGREEMENT IN THE ONE (1) MONTH IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM OR EQUIVALENT AMOUNT, AS CALCULATED ON AN AMORTIZED BASIS.
You agree to indemnify, defend and hold harmless Botmetric, its directors, employees, principals (partners, shareholders or holders of an ownership interest, as the case may be) and agents, from and against any and all claims, demands, loss, damage or expense relating to but not limited to damage to, or loss of files, data, or other electronic information, caused by you/your personnel or agents due to negligence or willful conduct, and/or violate any of the terms under this Agreement, laws or regulation and or infringe third party intellectual property rights, including breach of any representations and warranties made herein by you.
We may offer free trial of our Services from time to time as part of our services evaluation process. We may terminate or extend it for any reason without notice to you. Before the end of the trial period, you must purchase the necessary Services or discontinue the use of Services.
We reserve the right to disable, terminate or suspend use of any portion of the Services at any time, with or without cause and with or without notice. We will not be liable to you or to any third party for the deletion of data, suspension or termination of your use of the Service.
You may terminate this Agreement at any time for any reason by giving us 30 days notice in writing and also by closing your account. Upon termination by you, the Services and or your account will no longer be available and accessible.
The termination of this Agreement shall not release you from the obligation to make payment of all amounts then or thereafter due and payable and all provisions of this Agreement including without limitation, intellectual property, payment, warranty, confidentiality, indemnity, governing law and limitation of liability which by their sense and context are intended to survive suspension or termination.
As used in this Agreement, a “Force Majeure Event” shall mean: any act of God, act of nature or the elements, terrorism, insurrection, revolution or civil strife, piracy, civil war or hostile action, labor strikes, acts of public enemies, federal or state laws, rules and regulations of any governmental authorities having jurisdiction over the premises, inability to procure material, equipment, or necessary labor in the open market, acute and unusual labor, material, or equipment shortages, or any other causes (except financial) beyond our control. Delays due to any of the above causes shall not be deemed to be a breach of or failure to perform under this Agreement.
You are responsible for providing the correct email address. When email is sent to you, such notice constitutes effective notice. Unless otherwise specified in this Agreement notice required under this Agreement shall be in writing and addressed to:
4701 Patrick Henry Drive,
Bldg 16 Suite 14
Santa Clara, CA 95054
Botmetric may have given you access to certain confidential, proprietary information and/or trade secrets of Botmetric or other third party licensors or contractors (collectively, “Confidential Information”). Unless otherwise excluded in this Agreement, Confidential Information shall mean any and all such information provided to you in whatever form, verbal or otherwise, including, but not limited to, business plans, marketing plans, financial records and analysis, research, technical specifications, marketing-sales-pricing data, designs, Agreements, trade secrets, software or other intellectual property, whether or not identified as “Confidential Information”, in whatever media, electronic or otherwise, and any other materials identified in writing as “.Confidential Information.” You shall not disclose Confidential Information to third parties. Information designated as Confidential Information shall remain confidential until we designate it as non-confidential.
Exceptions: The terms “Confidential Information” shall not apply to information that:
- Has been legally in your possession prior to disclosure and is not subject to any non-disclosure obligations.
- Has become part of the public domain through no fault of yours.
- Has been developed subsequent to, and independent of, disclosure to you; or
- Has been released in writing by us so that you may make public disclosure, or is otherwise deemed by us, in writing, to be no longer confidential.
Required disclosure: Notwithstanding anything to the contrary in this section, if you learn that it is or may be required by applicable court order, law or regulation to disclose any confidential information, then you shall:
- As promptly as possible after learning of a possible disclosure requirement, and in any case prior to making disclosure, notify us of the disclosure requirement so that we or the appropriate party may seek a protective order or other appropriate relief,
- Provide such co-operation and assistance as we may reasonably request in any effort by us or the appropriate party to obtain such relief, and
- Take reasonable steps to limit the amount of Confidential Information so disclosed and to protect its confidentiality.
Injunctive relief: You agree and acknowledge that breach of this section or disclosure of other information which, at law or in good conscience or equity, ought to remain confidential, will give rise to irreparable injury to Botmetric. Accordingly, we may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies, which may be available.
Return of confidential information:
You will return confidential information at the earliest:
- Upon receiving a request from us,or
- Upon the expiration or termination of this Agreement
You will return all confidential information, in whatever form or media, retaining no copies of the same in any form whatsoever, or destroy such Confidential Information and certify in writing to us such destruction has been effected. Your obligations hereunder regarding Confidential Information shall survive the return or destruction of such Confidential Information or termination of this Agreement or completion of the services.
MODIFICATIONS & FEATURE REQUESTS
You hereby agree and consent that any feature requests, suggestions or modifications submitted by you or other end users of Botmetric will become the sole property of Botmetric.
You hereby agree and consent that Botmetric will have to right use any feature requests, suggestions, modifications or support tickets resulting from your use and the use of other end users to enhance or otherwise affect the Services or product utility and any subsequent inventions created out of them will be solely the property of Botmetric.
We respect your intellectual property and expect you to do the same. If you believe in good faith that your work has been infringed, you may send us a notice as per Section 15.
Botmetric’s failure to enforce any of the terms, provisions or conditions of this Agreement is not a waiver of its present or future rights. All waivers by us must be in writing.
You may not assign this Agreement, either in whole or in part, and any such attempted assignment shall be void, but we may assign its rights to any of its affiliates or subsidiaries or to any successor of the business.
In the event any provision of this Agreement is inconsistent with or contrary to any applicable law, rule, or regulation, the provision shall be deemed to be modified to the extent required to comply with the law, rule, or regulation, and this Agreement, as so modified, shall continue in full force and effect.
GOVERNING LAW AND JURISDICTION
The laws of Delaware, U.S.A., excluding Delaware’s conflict of laws rules, will apply to any disputes arising out of or relating to this Agreement, and the use of our Website and/or our Services. All claims arising out of or relating to this Agreement, our Website, or our Services, will be litigated exclusively in the federal or state courts of Delaware, U.S.A., and you consent to the personal jurisdiction in those courts.
This Agreement constitutes the entire Agreement and supersedes any and all prior to contemporaneous Agreement, understanding, negotiation or warranty or representation in connection with the subject-matter of this Agreement.
We and you are independent contractors and nothing in this agreement creates or implies to create a partnership, association, joint venture or employer-employee relationship.