PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY USING THE SERVICE, YOU CONFIRM YOUR ACCEPTANCE OF THESE TERMS OF SERVICE. IF YOU DO NOT ACCEPT THESE TERMS OF SERVICE, THEN YOU MAY NOT USE THE SERVICE.

  1. Provision of Service. Numerify, Inc., a Delaware corporation (“Numerify”) will provide Customer with non-exclusive access to Numerify’s online, web-based data analytics and reporting services (the “Service”) on the terms and conditions of this Agreement and subject to the terms and conditions of the applicable order form pursuant to which Customer subscribes to the Service (the “Order Form”), during the term of Customer’s subscription.  In order to use the Service, Customer must follow the registration procedure on Numerify’s website.  Customer agrees to provide accurate and complete registration information and keep such information updated at all times.  Customer shall designate the employees, consultants, and agents of Customer, or those of Customer’s affiliates, who Customer authorizes to use the Service on behalf of Customer (“Users”) and assign a unique password to each User. Customer is responsible for safeguarding all passwords and deleting passwords of persons Customer no longer wishes to be included as Users.  Customer will be responsible for all activities under Customer’s account.
  1. Limitations on Use. Customer agrees to use the Service only for Customer’s internal business operations, and Customer will not license, sublicense, sell, rent, transfer, assign, distribute, time share or otherwise commercially exploit the Service or make the Service available to anyone other than its Users. Customer agrees not to (a) attempt to gain unauthorized access to the software, hardware, processes, data models, algorithms, designs, know-how, or other technology or proprietary information that is used by Numerify to provide the Service (the “Numerify Technology”), (b) attempt to probe, scan, or test the security or vulnerability of the Service, (c) access or use the Service if Customer is a direct competitor of Numerify, or for the purpose of benchmarking or creating a similar or competitive product, or (d) violate any applicable law or regulation, including, but not limited to, regulations promulgated by the Federal Trade Commission, any rules of any securities exchange, and laws regarding the export of technical data.  If Customer exceeds any limitations in Customer’s Order Form (such as with regard to a maximum number of authorized Users, maximum storage space, or limitations with regard to modules or functions), Numerify may charge Customer additional fees for such usage, at Numerify’s standard rates, for the period of such usage and for the remainder of the subscription term.  Customer acknowledges that the Service may cancel or terminate a Customer query if such query puts an unreasonable load or burden on the systems used by Numerify to provide the Service.
  1. Updates. Numerify may update the Numerify platform, the Numerify application, and/or the user interface from time to time. Customer will not be charged any additional fees for such updates that are provided to customers generally.  Numerify may charge additional fees, however, for access to new functionality or features that Numerify does not make generally available to subscribers for no extra charge.  In addition, certain updates may be incompatible with customization of the Service that has been implemented specifically for Customer and Numerify may charge a fee for any necessary re-implementation.
  1. Availability of Service. Numerify will use commercially reasonable efforts to make the Service available at all times, other than during periods of routine maintenance or updating and refreshing of Customer’s data warehouse.
  1. Support. Numerify will provide Customer with the level of support to which Customer is entitled based on Customer’s subscription.
  1. Ownership and Use of Customer Data. “Customer Data” is all data, information or material that is submitted to the Service by or on behalf of Customer in the course of using the Service, or that is extracted or retrieved by the Service from third parties who generate or store data or information for or on behalf of Customer.  As between Numerify and Customer, Customer owns all right, title and interest in and to all Customer Data.  Customer grants Numerify and its subcontractors a non-exclusive right to use, copy, and process Customer Data through the Service, solely for the purposes of providing the Service to Customer.  Numerify will maintain reasonable administrative, physical and technical safeguards for the protection, confidentiality and integrity of Customer Data. Numerify may analyze Customer Data, and data of other customers, to create aggregated statistics that do not identify Customer or any individual, and Numerify may use and disclose such statistics in its discretion.
  1. Content of Customer Data. Customer agrees not to use the Service to transmit or process (a) any material that is infringing, obscene, libelous, violates the privacy or other rights of any third party, or that is otherwise unlawful or tortious, (b) any information or data comprised of “Protected Health Information” subject to and defined by the Health Insurance Portability and Accountability Act (“HIPAA”) or that would otherwise require Numerify or the Service to be HIPAA compliant, or (c) any software viruses or other code, files or materials designed to interrupt, damage or interfere with any computer software or hardware or telecommunications equipment.  The content of Customer Data shall be Customer’s sole responsibility.
  1. Third Party Offerings. In order to function properly, the Service may require compatible Customer Data from other business applications or services used by Customer (“Third Party Offerings”), such as CRM or ERP software or services.  Customer must provide Numerify with all required account information and passwords relating to such Third Party Offerings. Third Party Offerings may be subject to their own terms of service and Customer agrees to comply with all such terms of service. Numerify makes no representations or warranties regarding Third Party Offerings or the Customer Data derived therefrom.
  1. Fees. Customer agrees to pay all fees specified in Customer’s Order Forms, in US dollars, without reduction, setoff or withholdings, so that Numerify receives the entire amount of the quoted fee.  All payments are non-refundable.  Unless the applicable Order Form provides otherwise, Numerify will invoice Customer for fees in advance and Customer agrees to pay all invoices within thirty (30) days of the invoice date.  Late payments will be subject to a finance charge of 1.5% per month, or the maximum rate permitted by law, whichever is lower. Customer agrees to pay reasonable attorneys’ fees and costs incurred by Numerify in collecting any unpaid fees.  Customer shall be solely responsible for, and shall promptly pay, all taxes, duties and similar governmental charges in connection with the Service, other than taxes assessed on Numerify’s net income.  The fees provided for in the applicable Order Form shall remain in effect for Customer’s initial subscription term, but Numerify may change the fees payable by Customer, for any renewal term, by notifying Customer of such change at least ninety (90) days prior to any increase in fees.
  1. Ownership of Service. Numerify, and/or its licensors, own all right, title and interest in and to the Service and the Numerify Technology, including all rights under patent, copyright, trademark, trade secret and other intellectual property laws.  Numerify reserves all rights not expressly granted to Customer under this Agreement.  In addition, Numerify shall exclusively own all right, title and interest in and to any and all suggestions, enhancement requests, recommendations or other feedback that may be provided by Customer or its Users from time to time relating to the Service, and all intellectual property rights thereto, and Numerify may use such information to improve the Service or for any other purpose.
  1. Confidentiality. Each party agrees that in connection with the use and provision of the Service, information that is confidential may be disclosed to the other party, including, but not limited to Numerify Technology, Customer Data, passwords for Third Party Offerings, marketing plans, budgets, financial information, technical information, methods, processes, techniques, designs, computer programs and other business information (“Confidential Information”). Numerify Confidential Information shall include the amount of fees payable by Customer pursuant to this Agreement.  Confidential Information, however, shall not include information that the receiving party can demonstrate (a) is or becomes publicly known through a source other than the receiving party, (b) was known to the receiving party as of the time of its disclosure, (c) is independently developed by the receiving party, or (d) is subsequently learned from a third party not under a confidentiality obligation to the providing party.  Except as provided for in this Agreement, each party shall not make any disclosure of the other party’s Confidential Information to anyone other than its employees, contractors or Users who have a need to know in connection with this Agreement. Each party shall notify its employees, contractors and Users of their confidentiality obligations with respect to the Confidential Information and shall require them to comply with these obligations. These confidentiality obligations shall survive three years beyond the expiration or termination of this Agreement. Numerify shall have the right to identify Customer as a customer of Numerify on Numerify’s websites and in public communications unless Customer notifies Numerify that Customer does not approve thereof.
  1. Warranties; Disclaimers. Numerify warrants to Customer that the Service will perform the functions described for the Service in the relevant documentation released by Numerify (subject to the terms of the applicable Order Form). If the Service fails to conform to this warranty, Customer may request support from Numerify in accordance with Numerify’s support policies and procedures.  In the event that Numerify is unable to cause the Service to conform to this warranty within thirty (30) days after Customer’s support request, then as Customer’s exclusive remedy, Customer may terminate its subscription to the Service and  Numerify will refund  any prepaid fees for the Service for the balance of the term remaining after the date of termination.  This warranty does not apply to failure of the Service to perform functions due to force majeure events or problems associated with Customer Data.  EXCEPT AS EXPRESSLY SET FORTH IN THIS PARAGRAPH, NUMERIFY MAKES NO WARRANTIES OF ANY KIND RELATING TO THE SERVICE.  NUMERIFY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NUMERIFY DOES NOT REPRESENT OR WARRANT THAT THE USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.
  1. Indemnification by Numerify. Numerify, at its expense, will defend and indemnify Customer against any third party claim brought against Customer to the extent based on a claim that Customer’s use of the Service infringes a third party’s United States copyright or United States patent issued as of the date this Agreement became effective, provided Customer notifies Numerify promptly in writing of the claim, provides reasonable assistance in connection with the defense and settlement thereof, and permits Numerify to control the defense and settlement thereof. If any such infringement claim arises, Numerify may, at its option (a) obtain for Customer the right to continue to use the Service, (b) substitute for, or modify the Service, so that it becomes non-infringing, or (c) terminate this Agreement and refund to Customer any prepaid fees for the Service for the balance of the term remaining after the date of termination.  The obligations of Numerify in this paragraph shall not apply to a claim of infringement that arises out of (i) Customer Data, (ii) software, hardware, networks, processes or systems not supplied by Numerify, or the combination thereof with the Service, (iii) Customer’s continued use of the Service after Numerify notifies Customer of an infringement claim, or (iv) Customer’s violation of this Agreement or applicable law. This paragraph states Numerify’s sole obligations, and Customer’s sole remedies, for infringement claims relating to the Service.
  1. Indemnification by Customer. Customer, at its expense, will defend and indemnify Numerify against any third party claim brought against Numerify to the extent based on a claim that the Customer Data infringes any intellectual property rights or other rights of a third party, or alleging facts that, if true, would constitute a breach by Customer of its representations, warranties or covenants in this Agreement.   Numerify shall notify Customer promptly in writing of any such claim, provide reasonable assistance in connection with the defense and settlement thereof, and permit Customer to control the defense and settlement thereof.
  1. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA OR PROFITS) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EITHER PARTY’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED AN AMOUNT EQUAL TO THE FEES PAYABLE BY CUSTOMER FOR THE SERVICE DURING THE SIX (6) MONTHS PRECEDING THE CLAIM.  THE FEES PAYABLE BY CUSTOMER PURSUANT TO THIS AGREEMENT REFLECT THE INCLUSION OF THE LIMITATIONS AND EXCLUSIONS OF DAMAGES IN THIS PARAGRAPH, AND SUCH LIMITATIONS AND EXCLUSIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
  1. Term and Termination. Customer’s subscription to use the Service begins on the start date specified in the Order Form and continues for the period set forth in the Order Form, subject to the terms and conditions of this Agreement.  Either party may terminate this Agreement, and Customer’s subscription to use the Service, if the other party breaches this Agreement and does not cure the breach within thirty (30) days after notice of the breach. Numerify may terminate this Agreement immediately if Customer becomes the subject of any voluntary or involuntary petition in bankruptcy or any voluntary or involuntary proceeding relating to insolvency, receivership, liquidation, or makes an assignment for the benefit of creditors.  Numerify may also terminate this Agreement if Numerify discontinues the Service as a result of the loss of necessary third-party license rights.  Numerify may suspend Customer’s access to the Service, without terminating this Agreement, if Numerify in good faith suspects Customer is engaged in any unauthorized conduct, has an overdue balance, or otherwise breaches this Agreement.  Upon termination of this Agreement, Numerify may delete all Customer Data. Sections 10 through 20 of this Agreement, and all accrued payment obligations, will survive any termination of this Agreement, as well as any other provisions that should logically survive.
  1. Professional Services. Implementation, training or other consulting services that Customer may order from Numerify from time to time will be performed by Numerify pursuant to Numerify’s standard Terms of Professional Services, located at http://www.numerify.com/services and a separate Statement of Work executed by the parties, for such fees as may be set forth in the Statement of Work.
  1. Notices. Any notice required or permitted hereunder shall be given (i) by established overnight courier, to be effective on delivery, (ii) by certified or registered mail, return receipt requested, to be effective upon verification of receipt, or (iii) by email, to be effective upon verification of receipt. Numerify may also give notice to Customer by means of a general notice through the Service interface, effective upon posting.  Either party may change its address or email address for notices by means of notice given in accordance with this paragraph.
  1. Force Majeure. Neither party shall be liable to the other party, or be deemed in breach of this Agreement, for any failure or delay in performance (other than payment of money) to the extent caused by circumstances beyond such party’s reasonable control, including without limitation an act of God, fire, flood, explosion, war, strike, government regulation, acts of vandals or hackers, unavailability or performance of Third Party Offerings, or acts or omissions of the other party or any third party. The party suffering a force majeure event shall be excused from performance for the duration of such force majeure event.
  1. General Provisions. This Agreement incorporates Numerify’s Privacy Policy, posted on Numerify’s website. Numerify and Customer are independent contractors, and this Agreement does not create a partnership, joint venture, or other relationship between the parties. This Agreement, including any documents incorporated by reference in this Agreement, constitutes the entire agreement between the parties relating to its subject matter, and supersedes all prior agreements or understandings regarding that subject matter.  This Agreement may not be amended except in a written instrument signed by both parties.  No waiver shall be effective unless in a signed writing.  If any provision of this Agreement is held to be invalid or unenforceable, that provision shall be modified and interpreted so as best to accomplish the intent of the original provision to the fullest extent possible, and the other provisions shall not be affected. This Agreement shall be governed by and construed under the laws of the State of California excluding its conflict of law rules. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. The state and federal courts located in Santa Clara County, California will have exclusive jurisdiction to adjudicate any dispute relating to this Agreement, and each party hereby irrevocably consents to the exclusive personal and subject matter jurisdiction and venue of such courts. Customer may not assign or transfer this Agreement to any third party, including in connection with a merger or otherwise by operation of law, without the prior written consent of Numerify.  Numerify may assign this Agreement to a successor to its business relating to the Service resulting from a sale of assets, merger, or similar transaction.  Numerify may subcontract the hosting of the Service, and other portions of the Service, in accordance with its business needs.