Virtual Instruments, Corporation d/b/a Virtana
FREE SERVICE AGREEMENT
THIS SERVICE SUMMARY
2. Purpose. Customer acknowledges and agrees that the Service provided under this Free Service Agreement is to be used in support of Customer’s internal business purposes only as expressly permitted hereunder (the “Purpose”). Use for any reason other than the Purpose is expressly prohibited.
3. Service. The “Service” will include the following:
3.1 Analytics Service: Virtana will provide Customer with online access to the domain metricly.com or the successor domain established by Virtana via a standard web browser to the “Virtana Site”, which will host the Virtana’s analytics software product (the “Analytics Service”) on behalf of Customer. The Analytics Service may be used by Customer for direct uploading of IT performance, usage, cost, and other related numerical data (“Analytical Data”) from Customer’s location(s) to Virtana third party hosted cloud environment, and subsequent analysis of and reporting on such Analytical Data. Analytical Data may only be analyzed for the specific quantities of elements (“Elements”) stated on the sign-up web page (), which may be modified at Virtana’s sole discretion permitted in Virtana’s sole discretion.
3.2 Analysis and Reporting: Customer may use the Analytics Service to perform analysis and run reports based on the Analytical Data. The output of analysis and reporting by the Analytics Service shall be referred to herein as “Reports”.
3.3 On-site Data Collection: Virtana may, at Virtana’s sole discretion, provide Customer with a license to one copy of Virtana’s on-site data collection tool (the “Remote Collector”), licensed solely for use during the Term, which Customer will be required to install at Customer’s location(s) to collect certain Analytical Data from certain of Customer’s on-site data sources monitoring the Elements, and, using Customer’s Internet access, transmit the Analytical Data to the Analytics Service.
3.4 Storage: Virtana will store the Analytical Data collected in a database (the “Analytics Database”). The Analytical Data will be processed by the Analytics Service for a limited number of days from the date such data is transmitted to the Analytics Service (the “Data Retention Period”), which shall be as state on the sign-up web page (), which may be modified at Virtana’s sole discretion. Such stored Analytical Data will be available for use by the Analytics Service only during the Data Retention Period. At the end of the Data Retention Period the Analytical Data may, at Virtana’s discretion, be purged and deleted from Analytics Database.
3.5 Third-party Hosting: Virtana will engage a reputable, secure, third-party hosting service to provide the physical computing resources to install and host the Analytics Service and Storage on the Virtana Site.
3.6 Tools: Virtana may, at its discretion, provide Customer with access to Virtana’s proprietary tools and other documentation (“Tools”) to further assist with the optimization of data collection, importing or exporting of data or results, or other matters related to the Analytics Service.
5. Fees. The Service shall be provided at no charge.
VIRTUAL INSTRUMENTS, CORP.
FREE SERVICE AGREEMENT
1.1 Provision of Services. Virtana grants Customer a non-exclusive, non-transferable, non-sublicensable, limited right, during the Term (a) to use the Analytics Service (and related user documentation) to upload Analytical Data to Virtana Site, (b) to store Analytical Data on Virtana’s third party hosted site for the duration of the applicable Data Retention Period, © to access the Virtana Site for Support Services, and (d) to run Reports. If Virtana elects, at its sole discretion, to provide Customer with a copy of the Remote Collector, then Virtana grants Customer a non-exclusive, non-transferable, non-sublicensable, limited right, during the Term to use the Remote Collector and applicable Tools to facilitate the uploading of Analytical Data. All use of the Service by Customer shall be permitted solely for the Purpose identified in the Service Summary. The rights of Customer under this Section 1.1 to use the Virtana Site and the Service, is subject to and conditioned on Customer’s compliance with the terms and conditions of the Free Service Agreement.
1.2 Login Accounts. Virtana will provide Customer with valid login accounts and individual passwords (“Login Accounts”), which Customer must use in order to access and use the Service in accordance with the rights granted by Virtana in this Free Service Agreement. Customer bears sole responsibility for protecting the Login Accounts, and will be liable for any unauthorized use thereof.
1.4 Virtana Obligations. Virtana shall not use Analytical Data except to provide the Service (or to prevent or address service or technical problems) in accordance with this Free Service Agreement and the user documentation made available by Virtana, as expressly permitted by this Free Service Agreement or in accordance with Customer’s instructions.
1.5 Customer Obligations. Customer is responsible for its employees’ and authorized third parties’ use of the Service and compliance with this Free Service Agreement. Customer shall not attempt to gain access to the Service or its related systems or networks in a manner not set forth in the user documentation made available by Virtana. Customer may not allow a third party to use the nonpublic portions of the Service unless such third party has agreed, in writing, to terms at least as protective of Virtana as this Free Service Agreement, including without limitation, disclaimers of warranties and limitations of liability for the benefit of Virtana that are no less protective of Virtana than those set forth in the Free Service Agreement. Where necessary for performance of the Service, Customer is responsible for authorizing and enabling Virtana to submit Customer’s authentication information to any third party services, websites or APIs, that Customer designates, for the purposes of retrieving Analytical Data. Customer acknowledges and agrees that when Virtana is accessing and retrieving Analytical Data from third parties, Virtana is doing so at Customer’s request in order to provide the Service. Pursuant to the foregoing, Customer represents and warrants that it has the legal right to provide Virtana with access to all Analytical Data for the purpose of providing the Service.
1.6 Customer Internet Access. Customer will be responsible for procuring and maintaining all hardware, software and telecommunications facilities that connect Customer’s network to the Service, including without limitation browser software that supports the protocol used by Virtana (including Secure Socket Layer (SSL) protocol or other protocols accepted by Virtana). Virtana is not responsible for notifying Customer of any upgrades, fixes or enhancements to any such hardware, software or telecommunications facilities (including but not limited to the Internet) that are not owned by Virtana. Customer will be responsible for paying all third-party access charges (e.g., Internet service provider fees).
2.1 Virtana Ownership. Virtana has and will own all right, title and interest, including all intellectual property rights, in and to Virtana Site, the Services, the Remote Collector, the Tools, the structure and format of any Reports, Virtana’s trademarks, and the Confidential Information of Virtana.
2.2 Customer Ownership. Customer will retain ownership, right, title and interest, including all intellectual property rights in and to the raw Analytical Data uploaded by Customer to the Service, the Reports related to such Analytical Data generated by the Tools, the Customer’s trademarks, and the Confidential Information of Customer. Notwithstanding the foregoing, Virtana owns the aggregated and statistical data derived from the operation of the Service, including, without limitation, the number of records in the Service, the number and types of transactions, configurations, and reports processed in the Service and the performance results for the Service (the “Aggregated Data”). Nothing herein shall be construed as prohibiting Virtana from utilizing the Aggregated Data for purposes of operating Virtana’s business, provided that Virtana’s use of Aggregated Data will not reveal the identity, whether directly or indirectly, of Customer or specific data entered by Customer into the Service.
2.3 Rights Granted to Virtana. Customer agrees that, so long as no Customer Confidential Information is publicly disclosed, Virtana may: (i) access and use the Analytical Data to refine, supplement or test Virtana’s product and service offerings; (ii) include anonymized Analytical Data in any publicly available reports, analyses and promotional materials; and (iii) retain anonymized, non-attributable Analytical Data following any termination of this Service Agreement for use in connection with the foregoing. Logs will be generated for audit purposes in order to document such access by Virtana personnel.
2.4 Feedback. Virtana welcomes Customer’s suggestions and feedback on how to improve the Service. If Customer provides any suggestions, feedback, or improvements to Virtana Site, Service, Remote Collector, Tools, or Reports, Virtana will have the right to use and have others use such suggestions, feedback, and improvements for any purpose, provided that Virtana’s use of the foregoing will never identify Customer or its users as the source of the suggestion, feedback or improvement..
3. TERM AND TERMINATION
3.1 Term. Unless earlier terminated in accordance with this Free Service Agreement, and unless otherwise set forth in the applicable Service Summary, the term of this Free Service Agreement will commence on the Effective Date and continue until the Termination Date.
3.2 Termination. Either party may terminate this Free Service Agreement at any time with immediate effect upon written notice to the other party, which shall include email notification to (i) with respect to Customer, the authorized representative who initially accepted the terms of this Agreement, and (ii) with respect to Virtana, [email protected].
3.3 Effect of Termination. Upon termination or expiration of the Free Service Agreement for any reason:
(a) All licenses and other rights granted to Customer hereunder will immediately terminate. If Virtana has provided Customer with a copy of the Remote Collector for licensed use hereunder, Customer will promptly, upon request by Virtana, but in no event within more than thirty (30) calendar days from the receipt of such request, deliver a written certification that all copies of the Remote Collector and any Tools provided have been completely deleted off of all Customer systems such that they cannot be reinstalled or copied for future use.
(b) Upon expiration or termination of the Free Service Agreement and each Data Retention Period, Virtana will have no obligation to maintain any, and will have the right to delete all Analytical Data related to the expired or terminated Free Service Agreement or Data Retention Period and Virtana will have no further obligation to make such Analytical Data available to Customer.
3.4 Survival. The provisions of 1.3 (Restrictions), 2 (Ownership), 3.3 (Effect of Termination), 3.4 (Survival), 4 (Limited Warranties; Disclaimers), 5 (Confidentiality), 6 (Limitation of Liability), and 7 (General Terms) will survive the expiration or termination of this Free Service Agreement.
4. LIMITED WARRANTIES; DISCLAIMERS
4.1 Use of Analytical Data. Customer warrants to Virtana that (a) Customer has the right to provide to Virtana the Analytical Data and Virtana has the right to use such Analytical Data in the manner described in this Free Service Agreement, and (b) Customer has provided all necessary notices to, and obtained all necessary permissions from the owners of such Analytical Data (if Customer is not the owner) related to the use of such Analytical Data in the manner described in this Free Service Agreement, including without limitation in compliance with all applicable privacy and other laws.
4.2 Security. Virtana uses Secure Socket Layer (SSL) encryption on all its web pages where Analytical Data is collected to protect its transmission over the Internet. As of the Effective Date, Virtana uses Amazon Web Services as its platform hosting provider (“Hosting Provider”). For information on the security provided by Amazon Web Services, please see the Amazon Web Services Security Center page (https://aws.amazon.com/security/). Customer acknowledges, however, that no data transmission over the Internet or data storage system can be guaranteed to be 100% secure and Virtana cannot ensure the security of data transmitted to it or that it stores.
4.3 Availability. Virtana uses a third party service provider to host the Analytics Service and Storage components of the Service. As of the Effective Date, Virtana uses Amazon S3, which offers robust durability and availability. Virtana retains the right to substitute an alternate qualified Hosting Provider at any time. Virtana makes no representations or warranties regarding the Amazon S3 service, its durability, or availability. For more information on the Amazon S3 service and its performance standards, please see the Amazon site (https://aws.amazon.com/s3/).
4.4 Backups. Customer acknowledges and agrees that Virtana will have no responsibility (or related liability) for backing up any information that Customer provides to Virtana.
4.5 DISCLAIMER. VIRTANA MAKES NO, AND HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, AND ALL WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE WITH RESPECT TO VIRTANA SITE, SERVICE, REMOTE COLLECTOR, TOOLS, REPORTS, OR RELATED DOCUMENTATION AND SERVICES, INCLUDING WITHOUT LIMITATION, THAT ANY OF THE FOREGOING WILL BE ERROR-FREE, RELIABLE, COMPLETE OR SECURE. WITHOUT LIMITATION OF THE GENERALITY OF THE FOREGOING, CUSTOMER ACKNOWLEDGES AND AGREES THAT VIRTANA IS PROVIDING A SERVICE THAT IS INTENDED ONLY TO ASSIST CUSTOMER IN OPERATING CUSTOMER’S OWN BUSINESS AND THAT CUSTOMER IS SOLELY RESPONSIBLE FOR (AND VIRTANA ASSUMES NO RESPONSIBILITY AND WILL HAVE NO LIABILITY OF ANY KIND FOR) THE DECISIONS MADE BASED ON USE OF VIRTANA SITE, SERVICE, REMOTE COLLECTOR, TOOLS, REPORTS, OR RELATED DOCUMENTATION AND SERVICES, OR ANY EFFECTS ON BUSINESS THAT MAY RESULT FROM SUCH USE. VIRTANA MAKES NO WARRANTIES TO ANY THIRD PARTY.
5.1 Confidential Information. Each party (“Receiving Party”) may have access to Confidential Information of the other party (“Disclosing Party”), its licensors, or customers (“Confidential Information”). Confidential Information includes all nonpublic information of a party that is disclosed in connection with this Free Service Agreement that is marked or otherwise identified as confidential or proprietary or that a reasonably prudent business person would understand to be confidential in light of nature of the information and the circumstances of its disclosure. For further clarity, Virtana’s Confidential Information will include, without limitation (a) the Analytics Service, the Remote Collector, the Tools, and all related documentation, applications and tools made available to Customer; (b) nonpublic know-how, inventions (whether or not patentable), techniques, methods, algorithms, product and software design and architecture, computer code, documentation, design and functional specifications, product requirements, problem reports, performance information, interfaces, and other technical or business information relating to the Service; © information pertaining to Login Accounts issued pursuant to this Free Service Agreement; and (d) all terms and conditions of this Free Service Agreement, including, but not limited to pricing information which may be provided. Notwithstanding the foregoing, the Analytical Data, resulting metrics and visualization and results of analyses will be deemed Customer’s Confidential Information and the materials and information in (a) and © will be deemed Virtana’s Confidential Information, in each case, with no requirement of marking or identification.
5.2 Use and Disclosure Restrictions. Except as otherwise permitted herein each party (as Receiving Party) agrees: (a) the same care and discretion to avoid disclosure, publication or dissemination of the Confidential Information of the Disclosing Party as it uses with its own similar information that it does not wish to disclose, publish or disseminate, but in no event less than reasonable care; (b) to use such Confidential Information only for the performance of its obligations and exercise of its rights hereunder; and © disclose Confidential Information of the Disclosing Party only to those of the Receiving Party’s employees, consultants or contractors who have a need to know such information and are bound by obligations of confidentiality at least as stringent as those contained herein with respect to such Confidential Information. Further, Customer agrees not to design or develop, or authorize the design or development of, any other product, software, materials or services using any of the algorithms, methods, or techniques contained in the Service.
5.3 Exclusions. The foregoing restrictions pertaining to the Confidential Information will not apply to the extent any information: (a) was or becomes publicly known through no act or omission of the Receiving Party; (b) was known by the Receiving Party before receipt from the Disclosing Party; or © becomes known to the Receiving Party without confidential or proprietary restriction from a source other than the Disclosing Party. In addition, the Receiving Party may use or disclose Confidential Information to the extent it is legally compelled to disclose such Confidential Information, provided, however, that, prior to any such compelled disclosure it will cooperate fully with the Disclosing Party in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information.
6. LIMITATION OF LIABILITY
6.1 TO THE EXTENT ALLOWED BY APPLICABLE LAW AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OR LIMITATION OF LIABILITY, EXCEPT WITH RESPECT TO MISUSE OF THE SERVICE, REMOTE COLLECTOR, OR TOOLS BY CUSTOMER (A) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE OR DATA, OR INTERRUPTION OF BUSINESS, OR FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY KIND ARISING FROM OR RELATING TO THIS FREE SERVICE AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, HOWEVER CAUSED; AND (B) LIABILITY FOR DAMAGES ARISING FROM OR RELATING TO THIS FREE SERVICE AGREEMENT, UNDER ANY LEGAL THEORY (WHETHER IN CONTRACT, TORT, INDEMNITY OR OTHERWISE), WILL NOT EXCEED THE GREATER OF (I) AMOUNTS ACTUALLY RECEIVED BY OR PAYABLE TO VIRTANA UNDER THIS FREE SERVICE AGREEMENT DURING THE APPLICABLE TERM, OR (II) ONE HUNDRED DOLLARS.
6.2 Nothing in this Free Service Agreement shall exclude or in any way limit Virtana’s liability for fraud, or for death and personal injury caused by its negligence, or any other liability to the extent that it cannot be excluded or limited as a matter of law.
6.3 Virtana’s liability for infringement of third party intellectual property rights shall be limited to breaches of rights subsisting in the United States or European Union. Virtana shall have no liability under this Section to the extent that the alleged infringement arises out of or relates to: (1) the use or combination of the Service with third party products or services not supplied by Virtana, (2) use for a purpose or in a manner for which the Service was not designed, supplied, or licensed, (3) any modification to the Service made by anyone other than Virtana or its authorized representatives, (4) any modifications to the Service made by Virtana pursuant to Customer’s specific instructions, (5) any evaluation products. THIS SECTION STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND VIRTANA’S ENTIRE LIABILITY FOR THIRD PARTY INFRINGEMENT CLAIMS.
7. GENERAL TERMS
7.1 Governing Law. This Free Service Agreement is to be construed in accordance with and governed by the internal laws of the State of California, without regard to its conflict of laws principles, and will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is hereby expressly excluded. Nothing in this Free Service Agreement will prevent either party from seeking injunctive relief (or any other provisional remedy or equitable relief) from any court having jurisdiction in order to protect any and all of such party’s respective rights.
7.2 Assignment. Neither party may, without the prior written consent of the other party (which shall not be unreasonably withheld), assign this Free Service Agreement, in whole or in part, either voluntarily or by operation of law, and any attempt to do so shall be a material default of this Free Service Agreement and shall be void. Notwithstanding the foregoing, a party may assign its rights and benefits and delegate its duties and obligations under this Free Service Agreement without the consent of the other party (1) if necessary to satisfy the rules, regulations and/or orders of any federal, state or local governmental agency or body, (2) in connection with a merger, reorganization or sale of all or substantially all relevant assets of the assigning party, or (3) in the case of Customer, to an affiliate; in each case provided that such successor assumes the assigning party’s obligations under this Free Service Agreement.
7.3 Force Majeure. Neither party will be liable under this Free Service Agreement because of any failure or delay in the performance of its obligations on account of riots, fire, flood, storm, earth quake, acts of God, hostilities, Internet or other network delays or failures, power failures, unanticipated product development problems, or any other cause directly affecting such failure or delay and beyond such party’s reasonable control.
7.4 Government Rights. If Customer is, or is entering into this Free Service Agreement on behalf of, any agency or instrumentality of the United States Government, the Service is “commercial computer software” and “commercial computer software documentation,” and pursuant to FAR 12.212 or DFARS 227.7202, and their successors, as applicable, use, reproduction, and disclosure of the Application are governed by the terms of this Free Service Agreement.
7.5 Notice. Notices to Virtana or Metricly must be sent via email to [email protected], or in writing to Virtual Instruments Corporation d/b/a Virtana., 2331 Zanker Road, San Jose, CA 95131, Attn: Legal Department, via certified mail, or reputable overnight courier. Notices to Customer may be sent to the applicable account email address. Notices sent via any of the permissible methods are deemed given when sent.
7.6 Severability and Waiver. In the event that any provision of this Free Service Agreement (or any portion hereof) is determined by a court of competent jurisdiction to be illegal, invalid or otherwise unenforceable, such provision (or portion thereof) will be enforced to the extent possible consistent with the stated intention of the parties, or, if incapable of such enforcement, will be deemed to be severed and deleted from this Free Service Agreement, while the remainder of this Free Service Agreement will continue in full force. The waiver by either party of any default or breach of this Free Service Agreement will not constitute a waiver of any other or subsequent default or breach.
7.7 Terms Modification. Virtana may revise this Service Agreement from time to time and the most current version will always be posted on the Virtana website. If a revision, in Virtana’s sole discretion, is material, Virtana will notify Customer (by, for example, sending an email to the email address associated with the applicable account). Other revisions may be posted to Virtana’s blog or terms page, and Customer is responsible for checking such postings regularly. By continuing to access or use the Services after revisions become effective, Customer agrees to be bound by the revised Service Agreement. If Customer does not agree to the revised Service Agreement terms, Customer may terminate the Service within 30 days of receiving notice of the change.
7.8 Entire Agreement. Except as agreed to otherwise in writing by the parties that references this Free Service Agreement, this Free Service Agreement constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Free Service Agreement. No cancellation, amendment, or modification of this Free Service Agreement or any provision of this Free Service Agreement will be effective unless in writing and signed by a duly authorized signatory of both parties. This Free Service Agreement will not be construed as creating an agency, partnership, joint venture or any other form of association, for tax purposes or otherwise, between the parties; the parties will at all times be and remain independent contractors.