This METABOB User Terms of Service Agreement (this “Agreement”) describes rights and responsibilities when User use the METABOB software and service provided by NEC X. Please review this agreement governing your access and use of our services. This is an agreement between NEC X, Inc. (“we”, ‘us” or “our”) and you or the entity you represent (“you” or “your”). This Agreement takes effect when you click an “Install” button or check an “Agree” box presented with these terms (the “Effective Date”). You represent to us that you, as an authorized agent of a User or Customer, are lawfully able to enter into this Agreement on behalf of the User or Customer.
Customer shall mean the individual or corporation (including its Users) that subscribes to a paid plan available at the Website.
User shall mean the individual that are part of the Service Plans and allowed to access and benefit from our services.
Customer Code shall mean customer’s or user’s proprietary computer code.
Customer or User Data shall mean any data, except for personal data, or information related and necessary for the provision of the services by METABOB.
Intellectual Property Rights shall mean all patents, copyright, moral rights, registered designs, registered and unregistered trademarks, trade secrets, know-how and confidential information.
Service shall mean the specific internet-accessible service available at the Website that provides use of METABOB software hosted by NEC X and made available to User and Customer over a network.
Software shall mean the object code version of any software to which Customer or User is provided access as part of the Services, including any updates or new versions.
Website shall mean the website at https://metabob.com/
Publicly Available Software shall mean any software which (i) is meeting the criteria listed at http://opensource.org/docs/definition.php, or (ii) is subject to the license terms currently listed at http://opensource.org/licenses or any similar open source license terms.
NEC X grants to the User and Customer a limited, non-transferable, non-exclusive, non-assignable, non-sublicensable right to access and use the Service solely for its business operations subject to the terms of this Agreement. User shall input Customer Code or Publicly Available Code into the METABOB services. METABOB services only providing recommendations. Despite our best efforts to provide as accurate recommendations of code dependencies, reviews and corrections as we can, NEC X does not warrant, guarantee or take any responsibility for the quality, accuracy, performance, or applicability of those recommendations.
As a part of the registration, subscription or termination process, User shall use an independent third-party application, such like GitHub, for the METABOB account. NEC X reserves the right at its sole discretion to refuse registration of User or cancel the NEC X accounts it deems inappropriate.
User will use the METABOB services only in compliance with NEC X’s authorized scope here under, standard published policies and all applicable laws and regulations. NEC X reserves the right to monitor User’s use of the services and prohibits any use of the services it believes may be in violation of this Agreement.
Customer or User shall not, and shall not permit anyone to:
Customer will own all Customer Code. User and Customer acknowledge and agree that this Service may contain the Intellectual Property Rights owned or controlled by us or an applicable third party service developer, and that we or the developer, respectively, shall continue to be the sole owner of all Intellectual Property Rights in the Service.
NEC XMETABOB shall have the right to collect and analyze Customer or User Data and NEC XMETABOB will be free, during and after the term hereof, to the extent and manner permitted under applicable law, to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other METABOB offerings, and (ii) disclose such data solely in aggregate or other anonymized form in connection with its business. No rights or licenses are granted except as expressly set forth in this Agreement.
3.1 Trial Services. Trial Services are provided to you free of charge. We may limit, suspend, or terminate your access to any portion of the Trial Service for any reason, to enforce Trial Service limitations or to protect our Services or system. The Service may not have been tested or verified to meet your security requirements. The Service may become unavailable or be terminated at any time without notice and any data may be deleted at any time including at the end of service. We are not responsible for any performance of calculation, any loss or compromise of data, or any breach of data security arising from your use of the services.
3.2 Evaluation Reports. User agrees to generate evaluation reports evaluating the Trial Service while using the services. All information and reports shall be our property and deemed our confidential information.
3.3 Service Plans. We may share information about our current Plans. If you decide to purchase our Service, that decision should be based on the functionality or the features we have made available today, and not on the delivery of any past or future functionality or features. Any Customers are informed and required to agree to fees for the Services with bank account or credit account information.
3.4 Renewal. The Agreement remains effective until all subscriptions have been terminated. All subscriptions will be automatically renewed for Customer for following period of 30 days. Any or all subscriptions may be terminated anytime by Customer.
3.5 Price Change. We may change price of Plans and additional fees for optional functionalities and services according to our business situation and market competition. Notification of price changes will be provided to Customers payment at least 30 days before auto renewal.
4. Our Obligations
4.1 Providing the Services. We will make the Service available to Customers. Be assured that the Service will provide functionality and value materially in accordance with our then-current Service, we will not materially decrease the functionalities and the features of the Service during a subscription term.
4.2 Keeping the Service available. For Customers on a paid service plan, we offer specific uptime commitment paired with Service Plans, if we fall short. In those case, the Services will be Customers sole remedy for the downtime and related inconvenience. The compensation for unserved service will not exceed the fees paid. For all Service Plans, we will use commercially reasonable efforts to make the service available 24 hours a day, 7 days a week, excluding planned downtime. We expect to provide Customer with advance notice, if we expect that the downtime may exceed 1 hour.
4.3 Protecting Customer Data. The protection of Customer Data is a top priority for us. We will maintain administrative, physical and technical safeguards at a level not materially less protective than is commercially reasonable. These safeguards will include measures for preventing unauthorized access, use, modification, deletion and disclosure of Customer Data and information by our personnel.
4.4 Processing Personal data. Customer determines the purposes and means of the data processing for analysis and, as such, is the controller of data which might include personal data or personal information (“Personal Data” which is information relating to an identifiable person and may be a defined term under data protection and privacy laws applicable in the Customer’s region). We will not act as a controller of data including Personal Data. Customer and Users shall upload Personal Data at their own risk.
4.5 Data Portability and Deletion. Customer acknowledges and agrees that the ability to export or share Customer Code may be limited or unavailable depending on the type of service plan. Following termination or expiration of subscriptions, we will have no obligation to maintain Customer Code, and unless legally prohibited, we may delete all Customer Code in our system.
4.6 Confidentiality. Each party shall be bound to the terms set forth in the Confidentiality Agreement between the parties, date.
4.7 Ownership and Proprietary Rights. User will own all Customer Code and information. Customer represents and warrants that it has secured all rights in and to Customer Code from its authorized Users. User acknowledges and agrees that this Service may contain, embody or be based on, patented or patentable inventions, trade secrets, copyrights and other intellectual property rights (collectively, “Intellectual Property Rights”) owned or controlled by us or the Service manufacturer, and that we or the manufacturer, respectively, shall continue to be the sole owner of all Intellectual Property Rights in the Service or products. We own and will continue to own our Services. Customer acknowledges and agrees they shall not transfer possession of the Service to third parties unless we consent. Customer agrees that it will not copy, reverse engineer, disassemble, alter, add to, delete from or otherwise modify the Service, software, or products offered under this Agreement. We use third party software such as, R, Python and others to offer our services. All external copies are owned by each external party. We are granted the right to provide the software by each license agreement.
4.8 Any Failure or Delay. Neither we nor Customer will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, a failure by a third-party software component hosting provider or utility provider.
We may change or discontinue any of our services or functions or features of our service from time to time but will use commercially reasonable efforts to continue supporting the previous version of any changed, discontinued, or deprecated for 12 months after the change, discontinuation, or deprecation (except if supporting the previous version (a) would pose a security or intellectual property issue, (b) is economically or technically burdensome, or (c) is rendered impossible or impractical as a result of a requirement of law or requests of government entities). We will notify Users any material change. Please, review the Service page or relevant page of the service for more information about these change and support service.
Customer does not grant us the right to use Customer’s company name and logo as a reference for marketing or promotional purpose on our website and in other public or private communications with our existing or potential customers. We will not list Customers who notify us that they want not to be listed by sending an email to support@METABOB.com stating that it does not wish to be used as a reference.
We will not access or use your Dashboard or Projects except as necessary to maintain, provide or improve the service, or as necessary to comply with the law or an order of a governmental body. We will not disclose your data to any government or third party except as necessary to comply with the law or a binding order of a governmental body. We will make every effort to give you notice of any legal requirement or order referred to in this section.
You shall defend, indemnify, and hold harmless us, our affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third party claim concerning: (a) your or any Users’ use of the services (including any activities under your account and use by your employees and personnel or Users); (b) violation of applicable law by you or any User; (c) Your Content or the combination of Your Content with other applications, content, or processes, including any claim involving alleged infringement or misappropriation of third-party rights by Your Content or by the use, development, design, production, advertising, or marketing of Your Content; or (d) a dispute between you and any User. If we or our affiliates are obligated to respond to a third party subpoena or other compulsory legal order or process described above, you will also reimburse us for reasonable attorneys’ fees, as well as our employees’ and contractors’ time and materials spent responding to the third party subpoena or other compulsory legal order or process at our then-current hourly rates. We will promptly notify you of any claim subject to Section 6.2, but our failure to promptly notify you will only affect your obligations under Section 6.2 to the extent that our failure prejudices your ability to defend the claim. You may: (a) use counsel of your own choosing (subject to our written consent) to defend against any claim; and (b) settle the claim as you deem appropriate, provided that you obtain our prior written consent before entering into any settlement. We may also assume control of the defense and settlement of the claim at any time.
YOUR USE OF THE SERVICE OFFERINGS IS AT YOUR SOLE RISK AND THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” EXCEPT TO THE EXTENT PROHIBITED BY LAW, OR TO THE EXTENT ANY STATUTORY RIGHTS APPLY THAT CANNOT BE EXCLUDED, LIMITED OR WAIVED, WE AND OUR AFFILIATES AND LICENSORS (A) MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SERVICE OFFERINGS OR THE THIRD-PARTY CONTENT, AND (B) DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES (I) OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, (II) ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE, (III) THAT THE SERVICE OFFERINGS OR THIRD-PARTY CONTENT WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, AND (IV) THAT ANY CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR ALTERED.
BOTH PARTIES AND THEIR RESPECTIVE AFFILIATES AND LICENSORS WILL NOT BE LIABLE TO THE OTHER PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, REVENUES, CUSTOMERS, OPPORTUNITIES, GOODWILL, USE, OR DATA), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NEITHER PARTY NOR ANY OF ITS RESPECTIVE AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) YOUR INABILITY TO USE THE SERVICES, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE OFFERINGS, (II) OUR DISCONTINUATION OF ANY OR ALL OF THE SERVICE OFFERINGS, OR, (III) ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICES FOR ANY REASON; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE OFFERINGS; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF YOUR CONTENT OR OTHER DATA.
We may modify this Agreement (including any Policies) at any time by posting a revised version on this site and notifying you.. The modified terms will become effective upon posting or, if we notify you by email, as stated in the email message. By continuing to use the Service Offerings after the effective date of any modifications to this Agreement, you agree to be bound by the modified terms. It is your responsibility to check this site regularly for modifications to this Agreement. We last modified this Agreement on the date listed at the end of this Agreement.
11.1 Assignment. You will transfer or not assign this Agreement, or delegate or sublicense any of your rights under this Agreement, without our prior written consent. We may assign this Agreement to any affiliate or successor-in-interest. Any assignment or transfer in violation of this Section 10.1 will be void. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.
11.2 Force Majeure. Neither party nor its respective affiliates will be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond its reasonable control, including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
11.3 Independent Contractors; Non-Exclusive Rights. A are independent contractors, and neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other.
11.4 Import and Export Compliance. In connection with this Agreement, each party will comply with all applicable import, re-import, export, and re-export control laws and regulations, including the Export Administration Regulations, the International Traffic in Arms Regulations, and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control. For clarity, you are solely responsible for compliance related to the manner in which you choose to use the Service, including your transfer and processing of Your Content, the provision of Your Content to Users, and the region in which any of the foregoing occur.
11.5 Governing Law. The laws of California, without reference to conflict of law rules, govern this Agreement and any dispute of any sort that might arise between you and us.
11.6 Settlement of Disputes.
A. You and we agree to use best efforts to settle amicably any disputes, differences or controversies which may arise between you and us out of or in relation to or in connection with this Agreement. If any disputes, differences or controversies cannot be settled amicably within sixty (60) days of written notice to the other party, such disputes, differences or controversies shall be exclusively and finally settled by arbitration in California in accordance with the Rules of Arbitration of the International Chamber of Commerce as in effect on the date of signing of this Agreement.
B. The arbitration tribunal shall consist of three (3) arbitrators with us and the Contractor each appointing one (1) arbitrator and the two (2) arbitrators thus appointed choosing the third arbitrator who will act the presiding arbitrator of the arbitration tribunal.
C. The arbitration award shall be final and binding on the parties, and the parties agree to be bound thereby and to act accordingly.
11.7 Electronic Communications. When you visit this Site and when you communicate with Us electronically, you consent to receive communications from us electronically. You agree that all notices, disclosures, and other communications that We provide to you electronically satisfy any legal requirement that such communications be in writing. You agree that you have the ability to store such electronic communications such that they remain accessible to you in an unchanged form.
A. To You. We may provide any notice to you under this Agreement by sending a message to the email address associated with your account. Notices we provide by posting on this site will be effective upon posting and notices we provide by email will be effective when we send the email. It is your responsibility to keep your email address current. You will be deemed to have received any email sent to the email address then associated with your account when we send the email, whether or not you actually receive the email.
B. To Us. Any notice or other communication provided for this Agreement shall be in writing and shall be delivered personally, sent by certified or registered airmail or transmitted by facsimile (in such case followed by confirmation delivered by certified or registered airmail) as follows:
To: NEC X, Inc. Address: 3101 Park Boulevard, Palo Alto, California USA for the attention of: METABOB team or to such other person, address or facsimile number as either party may specify by notice in writing to the other. In the absence of evidence of earlier receipt, any notice or other communication shall be deemed to have been duly given:
(a) if delivered in person at the address referred to above; (b) if mailed, ten (10) days after being deposited in the mail; (c) if sent by facsimile, when clearly received in full.
11.10 No Third-Party Beneficiaries. This Agreement does not create any third-party beneficiary rights in any individual or entity that is not a party to this Agreement.
11.11 No Waivers. The failure by us to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit our right to enforce such provision at a later time. All waivers by us must be in writing to be effective.
11.12 Severability. If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to affect the intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement, but the rest of the Agreement will remain in full force and effect.