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General Terms & Conditions

THESE GENERAL TERMS AND CONDITIONS CONSTITUTE A BINDING AGREEMENT BETWEEN SUBSCRIBER AND METRICS GYM – NORTH CAROLINA LLC ("PROVIDER").

1. Subscriber Access to Software.

  1. MetricsGym agrees to grant Subscriber access to and use of MetricsGym's software applications ("Software") available at metricsgym.com or other URLs as designated by MetricsGym in its sole discretion ("Website"). The Software may be used by Subscriber only in the United States and only to meet the internal business requirements of Subscriber. Subscriber may allow majority-owned subsidiaries engaged in the same business enterprise as Subscriber, and Subscriber operations managed by third-party contractors, to participate in using the Software, provided that the terms and conditions of this Agreement are at all times met by such entities, and Subscriber will be responsible for such entities' compliance with the terms and conditions of this Agreement.
  2. Subscriber may print and distribute output and reports produced using the Software in connection with Subscriber's normal use of the Software.
  3. If third-party services or data are provided or made accessible by MetricsGym as part of the Software, Subscriber may use such information only as permitted by the terms of this Agreement applicable to such Software. Such information may also be subject to restrictions imposed by the original provider of such services or data if shown with the services or data.
  4. The Service may include hyperlinks to external websites which are not under the control of MetricsGym. MetricsGym assumes no responsibility for the views, content, or accuracy of information contained in such websites and the appearance of such hyperlinks does not constitute endorsement or sponsorship of, nor affiliation with, the owners of such websites or the information, products, services, and trademarks contained therein.

2. Subscriber Responsibilities.

Subscriber has sole responsibility for the following actions:

  1. Supervising the use of the Software in its organization;
  2. Determining whether the Software will achieve the results Subscriber desires;
  3. Compliance with all laws applicable to Subscriber's business and its use of the Software; and
  4. Supervising Subscriber's Authorized Personnel (as provided in Section 3 below) to ensure that, in connection with their use of the Software, they abide by and comply with the terms and conditions of this Agreement and all applicable provisions of federal and state laws, rules, and regulations.

3. Authorized Personnel.

  1. Subscriber agrees to maintain a list of all Subscriber's personnel who are authorized to access the Software (the "Authorized Personnel"). Subscriber agrees to make such list available to MetricsGym promptly upon MetricsGym's request.
  2. Subscriber agrees to familiarize all Authorized Personnel with Subscriber's obligations under this Agreement, including, but not limited to, the confidentiality obligations of Subscriber, as the obligations affect such Authorized Personnel. For purposes of this Agreement, any actions or omissions by Authorized Personnel shall be considered actions and omissions of Subscriber, and references to Subscriber include to that extent all Authorized Personnel (whether or not such persons are or continue to be Subscriber employees).
  3. Subscriber agrees to keep confidential all identification codes or passwords required for access to the Software, and Subscriber agrees to restrict access to such identification codes and passwords to Authorized Personnel. Subscriber agrees to notify MetricsGym immediately if Subscriber has reason to believe that unauthorized persons have obtained access to such identification codes or passwords.
  4. Subscriber agrees not to permit any persons other than Subscriber's currently listed Authorized Personnel to access the Software or to enter, transmit, or process transactions directly or indirectly by means of the Software. Subscriber agrees to bear full financial responsibility for all transactions entered, transmitted or processed by Subscriber personnel, whether or not they are listed as Authorized Personnel, as well as by any other person or entity gaining access to MetricsGym's service network via Subscriber's business operations, connections, or premises.

4. Restrictions.

  1. Except as expressly permitted above, Subscriber agrees not to copy, reproduce, alter, modify, transmit, perform, create derivative works of, publish, sublicense, license, rent, sell, loan, give, or otherwise distribute all or any part of the Software to any third-party.
  2. Subscriber agrees not to reverse engineer, disassemble, decompile, modify, or alter the Software or any copy thereof, in whole or in part.
  3. Subscriber will reproduce such notices of MetricsGym's rights on any copies of user documentation created by Subscriber. Subscriber shall not alter, remove, or conceal any copyright, trade secret or other proprietary rights notices that may appear on or within the Software or related documentation.
  4. Subscriber will not take or many actions, whether intentional or unintentional, that may circumvent, disable, damage, or impair the Software or the Software' control or security systems, or allow or assist a third party to do so.

5. Use of Internet.

MetricsGym does not guarantee the security of any information transmitted to or from the parties over the Internet, including through the use of e-mail. Access to the Internet, if employed, is Subscriber's sole responsibility and the responsibility of Internet providers Subscriber selects. MetricsGym shall not be responsible for failure of service due to Internet facilities, including related telecommunications or equipment. Subscriber agrees to employ appropriate methods, including encryption and secure communication lines, to minimize the risk of unauthorized persons accessing Subscriber's information through the Internet or communications lines. In the event of a security breach, MetricsGym's responsibility is limited to investigating the breach and taking reasonable steps to halt it.

6. Fees Payable by Subscriber.

Subscriber agrees to pay all fees and other sums of money ("Fees") that shall become due from and payable by Subscriber to MetricsGym under the Agreement at the times and in the manner provided at Subscriber's registration on the Website, without abatement, demand, set-off, or counterclaim. Subscriber's obligation to pay Fees shall not be reduced because Subscriber fails to use the Service. Subscriber is responsible for any applicable taxes. Failure to pay may result in suspension of Subscriber's account until payment is made or termination of this Agreement. You certify that you are expressly authorized by the cardholder to subscribe to the Software. Your credit card will be charged on the first day of each calendar month. If you enroll on any day other than the first day of the month, you will be charged for the remaining days of the month of enrollment as well as for the following month. All fees and other amounts due must be paid in United States Currency.

7. Warranty, Limitations and Exclusions.

  1. The Software shall be provided in a good and workmanlike manner in accordance with industry standards. Subscriber's exclusive remedy and MetricsGym's sole liability for any interruption or deficiency in the Software shall be a pro rata credit for the daily portion of the Fee for each day of interruption.
  2. MetricsGym does not warrant that the Software or the operation of the Software will be uninterrupted or error free or that it shall meet Subscriber's needs. Subscriber is solely responsible for the accuracy and integrity of its own data, reports, documentation, and security.
  3. MetricsGym will hold Subscriber harmless from any damages or liabilities resulting from third-party claims that its Software infringes U.S. patents, copyrights or similar intangible rights, provided that (i) Subscriber will promptly notify MetricsGym of the matter, cooperate with MetricsGym as requested, and permit MetricsGym to control the investigation, defense and disposition of the same, and (ii) MetricsGym is not responsible for any infringement resulting from the use or combination of the Software with any process, software or equipment of Subscriber or Subscriber's other licensors, suppliers or contractors. This Section 12(c) constitutes Subscriber's exclusive remedy and MetricsGym's sole liability for any claim or allegation that the Software infringes or violates U.S. patent, copyright, or other intellectual property rights.
  4. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, NO WARRANTY OR ASSURANCE, EXPRESS, IMPLIED, OR STATUTORY, IS GIVEN BY PROVIDER WITH RESPECT TO SOFTWARE OR ANY OTHER MATTER, INCLUDING, WITHOUT LIMITATION (AND PROVIDER SPECIFICALLY DISCLAIMS) ALL WARRANTIES OF TITLE, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.

8. Limitation of Liability.

  1. IN NO EVENT WILL PROVIDER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING LOST PROFITS OR ANY DAMAGES ARISING FROM ANY INABILITY TO ACCESS THE SOFTWARE OR ANY DATA LOSS OR CORRUPTION OF ANY KIND, ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION SUBSCRIBER'S USE OF THE SOFTWARE, EVEN IF SUBSCRIBER'S DAMAGE OR LOSS IS CAUSED IN WHOLE OR IN PART BY PROVIDER'S NEGLIGENCE.
  2. PROVIDER'S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, THE SOFTWARE, OR SUBSCRIBER'S USE OF THE SOFTWARE, WHETHER THE LIABILITY ARISES OUT OF CONTRACT OR TORT OR OTHERWISE, OR IS CAUSED IN WHOLE OR IN PART BY PROVIDER'S OWN NEGLIGENCE, SHALL NOT EXCEED THE AGGREGATE AMOUNT OF FEES PAID BY SUBSCRIBER TO PROVIDER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. SUBSCRIBER ACKNOWLEDGES THAT THE FEE REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT PROVIDER WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.

9. Indemnification by Subscriber.

SUBSCRIBER AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS PROVIDER AND ITS AFFILIATES, AND ITS AND THEIR EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, SUCCESSORS AND ASSIGNS, AND THIRD-PARTY PROVIDERS, (COLLECTIVELY, THE "PROVIDER INDEMNIFIED PARTIES"), FROM AND AGAINST ANY AND ALL LIABILITIES, OBLIGATIONS, CLAIMS, DAMAGES, DEFICIENCIES, LOSSES, COSTS AND EXPENSES, WHETHER DIRECT, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR SPECIAL IN NATURE, INCLUDING REASONABLE ATTORNEYS' FEES AND OTHER EXPENSES INCURRED IN THE INVESTIGATION AND DEFENSE OF ANY CLAIM (DEFINED BELOW), BASED ON ANY CLAIM, DEMAND, PROCEEDING, SUIT OR ACTION (COLLECTIVELY, A "CLAIM") TO WHICH ANY PROVIDER INDEMNIFIED PARTY MAY BECOME SUBJECT RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH SUBSCRIBER'S USE OF THE SOFTWARE, OR ANY ACTS OR OMISSIONS, BY SUBSCRIBER, SUBSCRIBER'S AFFILIATES, SUBSCRIBER'S AUTHORIZED PERSONNEL, OR ANY THIRD PARTY THAT OBTAINED ACCESS TO THE SOFTWARE BECAUSE OF SUBSCRIBER'S FAILURE TO CONTROL ACCESS IN COMPLIANCE WITH THIS AGREEMENT.

10. Subscriber Data.

  1. Subscriber agrees to provide MetricsGym for use in connection with the Software all data, information, documents, and other records necessary for MetricsGym to provide the Software. MetricsGym may accept and rely upon as correct, complete, and current, without verification, all information, data, documents, and other records delivered, supplied, or made available to MetricsGym by Subscriber, its Authorized Personnel, or any other persons accessing MetricsGym's service network using Subscriber's connections. MetricsGym shall have no responsibility or liability for any error, inadequacy, delay, omission, or other failure which results from inaccurate or incomplete information, data, documents, or other records provided to MetricsGym by Subscriber or other subscribers to the Software.
  2. Subscriber shall provide MetricsGym with such information or records as may be reasonably necessary for MetricsGym to perform the Software. Except as otherwise agreed by Subscriber, all data provided by Subscriber pertaining to its business, personnel, clients, or accounts processed by or stored in MetricsGym's systems shall be kept confidential by MetricsGym, shall be used only to carry out this Agreement, and, except as otherwise provided in this Agreement, may not be disclosed to anyone except employees, agents, and contractors of MetricsGym who have a "need to know" the same for the administration or performance of the Software. Notwithstanding the foregoing, or any other provision of this Agreement, Subscriber acknowledges that the purpose of MetricsGym is to provide subscribers the ability, among other uses, to obtain and analyze business and financial data on other companies in its industry and to compare such data to Subscriber's business and business performance. Accordingly, Subscriber grants to MetricsGym the right to disclose Subscriber's data to other subscribers in an anonymous, de-identified, and filtered form. Likewise, Subscriber shall have access to other subscriber's data in an anonymous, de-identified, and filtered form. Subscriber agrees not to attempt to determine the identity of any other subscriber to the software.
  3. MetricsGym shall exercise reasonable care for the protection of such data and shall maintain reasonable data integrity safeguards against the deletion or alteration of such data. MetricsGym shall report to Subscriber in a prompt and timely fashion any breaches of security in its systems that create a possibility of unauthorized access to Subscriber's information and will comply with laws applicable to MetricsGym regarding data breach notification.
  4. MetricsGym retains sole ownership of the data, models, model specifications, and internal methodology that MetricsGym has or creates to perform the Software, whether or not disclosed to Subscriber. MetricsGym shall own any output or analysis produced by MetricsGym using the Subscriber data or third-party data obtained by MetricsGym to perform the Software ("Derived Information"). Subject to the payment by Subscriber of the fees and expenses due MetricsGym for the Software, Subscriber shall have an irrevocable, paid-up license to use the Derived Information for its internal business purposes in connection with the requirements that Subscriber meets using the Software. MetricsGym reserves the right to use anonymous, de-identified, and filtered information in the aggregate for general research and analysis.
  5. After termination of this Agreement, MetricsGym shall have the right to retain Subscriber's data and to continue to disclose it to other subscribers in an anonymous, de-identified, and filtered form and to use Subscriber's data in an anonymous, de-identified, and filtered form in the aggregate for general research and analysis unless and until Subscriber notifies MetricsGym in writing to hello@metricsgym.com.

11. Termination.

  1. MetricsGym, at its option, may suspend the Software and access privileges of Subscriber and any Authorized Personnel if Subscriber breaches this Agreement (including failing to pay any Fees when due) or upon any actual or reasonably suspected misuse, irregularity, or non-compliance by Subscriber or its Authorized Personnel, provided that MetricsGym will promptly notify Subscriber if MetricsGym does so. MetricsGym may terminate the Software and Subscriber's access if Subscriber commits a breach of this Agreement (including failing to pay any Fees when due).
  2. Subscriber may terminate this Agreement by giving notice through the Website. Subscriber will not receive a refund for any days in the calendar month that remain after notice of termination is given.
  3. Upon termination of this Agreement, regardless of the reason, Subscriber shall immediately cease use of the Software and follow MetricsGym's instructions for the return or destruction of all information and documentation of MetricsGym (including all copies thereof, whether partial or complete). Subscriber agrees to certify its compliance with the foregoing requirement upon MetricsGym's request.

12. Intellectual Property.

  1. "Intellectual Property Rights" means all worldwide copyrights, trademarks, service marks, trade secrets, patents, inventions (patentable or not), know how, moral rights, contract rights, and other proprietary rights. Subscriber has no ownership rights in the Software, subscriber data (other than Subscriber's data) or related documentation. The Software and all related documentation, and all Intellectual Property Rights associated therewith, are and shall remain at all times the sole and exclusive property of MetricsGym. Subscriber has no right, title, or interest in or to the Software or related documentation, or any Intellectual Property Rights associated therewith, except as expressly set forth in this Agreement. Any feedback, comments, ideas, improvements, or suggestions provided by Subscriber with respect to the Software or related documentation shall be and remain the sole and exclusive property of MetricsGym, which shall be free to use, copy, modify, publish, or redistribute the feedback, comments, ideas, improvements, or suggestions for any purpose and in any way without any credit or compensation to Subscriber. Upon MetricsGym's request, Subscriber agrees, at MetricsGym's expense, to take such actions as MetricsGym may reasonably request to perfect MetricsGym's ownership in the Software or related documentation.
  2. Subscriber acknowledges that MetricsGym's confidential information is of significant importance to MetricsGym and that, in the event of the unauthorized use or disclosure of such confidential information, MetricsGym may not be adequately or reasonably compensated for the loss through damages available in an action at law. Subscriber therefore agrees that in the event of any such unauthorized use or disclosure, MetricsGym shall be entitled to obtain injunctive and other equitable relief to enforce these requirements and prevent further violation, and Subscriber agrees to waive any obligation that bond be posted by MetricsGym in connection with such relief. Resort to such equitable relief shall not be construed, however, to be a waiver of any other rights or remedies that MetricsGym may have for the same or any other violation of its intellectual property rights.
  3. This Agreement does not grant Subscriber any rights in the trademarks or service marks of MetricsGym, all of which remain the exclusive property of MetricsGym. Subscriber may not use the "MetricsGym" mark or logo, or any other mark or brand of MetricsGym, in publicity, advertising, or external broadcasts or distributions, without the prior consent of MetricsGym, which consent may be withheld in the sole discretion of MetricsGym. Subscriber may not alter or remove trademarks, service marks, or other markings from the Software or any related documentation, or their associated packaging.
  4. The Software and related documentation contain material that is protected by patent laws, copyright laws, and international treaty provisions. Accordingly, Subscriber may not make copies of the same, except as expressly allowed under this Agreement. Subscriber shall maintain at all times all patent and copyright notices provided on the Software and any related documentation.

13. Electronic Orders and Communications.

For purposes of this Agreement, Subscriber may provide MetricsGym with orders, communications, and contract-related documentation in written or electronic form as signed or otherwise authenticated by Subscriber (signed, electronically-validated, or submitted through a secure electronic network). For this purpose, a photocopy, electronic image, or print-out of the written or electronic document will be considered equivalent to an original writing, and compliance with submission requirements of the applicable Software, or any other intentional identification, will qualify as a signature. To that extent, and subject to the requirements of the applicable Software, any such document may be delivered in person or by mail, courier, email, Internet communications, EDI, electronic transmission, or other intermediary as selected by the initiating party or as mutually agreed upon by the parties.

14. Force Majeure.

Neither party shall be liable for any delays or failures in performance due to circumstances beyond its control. Circumstances beyond a party's reasonable control include, but are not limited to, acts of God or public enemy, failure of suppliers to perform, fire, floods, storms, earthquakes, riots, strikes, war, terrorism, insurrections, cyber and electronic hacking or attacks, interruptions of power supply, interruptions of internet access, changes in laws or regulations, epidemics, pandemics and other public health emergencies, and restraints of government (including, but not limited to, restrictions imposed by governmental authorities in response to a pandemic or other health emergencies). The suspension of performance shall be of no greater scope and no longer duration than is reasonably required, and the performing party shall use reasonable efforts to remedy its inability to perform. Notwithstanding the foregoing, no adjustment is allowed to Subscriber's payment obligations for Software.

15. General.

  1. Announcements and Advertising. MetricsGym shall be allowed to use Subscriber's name on its customer lists and may disclose the same to its present customers and the general public as part of MetricsGym's marketing efforts. For any other use of Subscriber's name, MetricsGym shall obtain written permission from Subscriber.
  2. Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
  3. Severability. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted in a manner that causes it to be enforceable and to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. Without limiting the generality of the foregoing, Subscriber agrees that Section 8 (Limitation of Liability) and Section 9 (Indemnification by Subscriber) will remain in effect notwithstanding the un-enforceability of any provision in Section 7 (Warranty, Limitations and Exclusions).
  4. Entire Agreement. This Agreement constitutes the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. Invoices, purchase orders, acknowledgments, confirmations, and other communications submitted by Subscriber shall not be considered part of this Agreement unless signed and approved by an authorized representative of MetricsGym clearly indicating the Subscriber Order in which it is incorporated.
  5. Amendments. MetricsGym may amend these Terms and Conditions at any time by posting the amended Terms and Conditions on the Website. Amended Terms and Conditions shall automatically be effective 15 days after they are initially posted on the Website. Your continued use of the Website or the Software after the effective date of the amended Terms and Conditions will constitute your acceptance of the amended Terms and Conditions. These Terms and Conditions may not be otherwise amended except in writing and signed by both parties. Notwithstanding any other provision of this Agreement, for purposes of this provision, a "writing" does not include an e-mail, and a signature does not include an electronic signature.
  6. Headings, and Construction. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting the Agreement. As used in this Agreement the word "including" means "including but not limited to."
  7. Assignments. Subscriber may not assign or transfer, by operation of law or otherwise, any of Subscriber's rights under this Agreement to any third party without MetricsGym's prior written consent, which consent may be withheld in the sole discretion of MetricsGym. Any attempted assignment or transfer in violation of the foregoing will be void. MetricsGym may, in its sole discretion, and without notice to or consent of Subscriber, assign or transfer its rights and obligations under this Agreement. This Agreement is intended for the sole benefit of the named parties; no other person or entity, including the parties' respective affiliates, shall be entitled to claim the benefit of this Agreement, enforce the terms of this Agreement, or claim damage as a result of the performance or non-performance of this Agreement. Nothing in this Agreement shall render or be construed to constitute either party, its officers, directors, representatives, or affiliates, as the employee, partner or agent acting for or on behalf of the other party.
  8. Applicable Laws, Exclusive Jurisdiction and Venue, Limitations, and Attorneys' Fees. The validity, interpretation and enforcement of this Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina, United States of America, without giving effect to the conflicts of laws provisions thereof. If the Uniform Computer Information Transactions Act (UCITA) or any similar federal or state laws or regulations are enacted, it will not apply to this Agreement, and the governing law will remain as if such law or regulation had not been enacted. The exclusive venue and jurisdiction for any dispute arising between MetricsGym and Subscriber shall solely be in the federal and state courts situated in or having jurisdiction over Union County, North Carolina. Subscriber irrevocably consents to the exclusive jurisdiction of such courts for any dispute that may arise between the parties. No actions arising out of or relating to this Agreement may be brought by either party more than two (2) years after the cause of action accrues. If MetricsGym brings any legal action to enforce this Agreement, and prevails as determined by a final, non-appealable judgment or order, MetricsGym will be entitled to receive its attorneys' fees and expenses, court costs, and expert fees and expenses, in addition to any other relief it may receive.
  9. Export. Subscriber agrees not to use or export the Software outside the United States without MetricsGym's prior written consent, which consent may be withheld in the sole discretion of MetricsGym. Subscriber further agrees to comply in all respects with the applicable export laws and regulations of the United States and not distribute or transfer the Software in contravention of those laws and regulations, including, but not limited to, exporting or re-exporting into or to a nation or a resident of any U.S. embargoed countries or to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person's List or Entity List. Subscriber will defend, indemnify, and hold harmless MetricsGym from and against any violation of such laws or regulations by Subscriber or any of Subscriber's agents, officers, directors, or employees.
  10. Survival. Section 3 (Authorized Personnel), Section 4 (Restrictions), Section 5 (Use of Internet) (only as to limitation of MetricsGym's responsibility), Section 6 (Fees), Section 7 (Warranty, Limitations and Exclusions), Section 8 (Limitation of Liability), Section 9 (Indemnification by Subscriber), Section 10 (Subscriber Data), Section 12 (Intellectual Property), and Section 15 (General) will survive termination of this Agreement for any reason.