Last Modified: February 22, 2022
These Terms of Service (the “Terms”) are between you (“you” or “your”) and Native Metrics (“our,” “us,” or “we”) and govern your use of our websites, products, applications, software, and services (the “Services”).
PLEASE REVIEW THESE TERMS CAREFULLY. THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES RATHER THAN A COURT OR JURY TRIAL OR CLASS ACTION.
THE SERVICES ARE NOT INTENDED FOR PERSONS UNDER THE AGE OF 18 OR TO ANY USERS PREVIOUSLY SUSPENDED OR REMOVED FROM THE SERVICE BY US. By registering for, agreeing to, accessing, or using the Service, you represent that you are at least 18 years of age and have not been previously suspended or removed from the Service by us.
2. Use of the Services. When using the Service, you will be subject to any additional posted policies, guidelines, or rules applicable to specific services and features which we may post from time to time (the “Policies”). All such Policies are hereby incorporated by reference into these Terms.
3. Modification of these Terms. We reserve the right, at our SOLE discretion, to AMEND these Terms OR ANY POLICIES at any time. Please check these Terms and any POLICIES periodically for changes. Your continued use of the Service after the posting of changes constitutes your binding acceptance of such changes.
4. Prohibited Conduct. By using the Services, you agree not to:
4.1 use the Service for any fraudulent, harassing or abusive purpose, or so as to damage or cause risk to our business, reputation, employees, subscribers, facilities, or to any person;
4.2 rent, lease, loan, sell, resell, sublicense, distribute or otherwise transfer the Service, or any Materials (as defined in Section 7, below);
4.3 delete the copyright or other proprietary rights on the Service;
4.4 use the Service for any illegal purpose, or in violation of any local, state, national, or international law, rule, or regulation;
4.5 use the Service if you are under the age of 18 years old;
4.6 remove, circumvent, disable, damage or otherwise interfere with security-related features of the Service, features that prevent or restrict use or copying of the Service, or features that enforce limitations on the use of the Service;
4.7 reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Service or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
4.8 modify, adapt, translate or create derivative works based upon the Service or any part thereof, except and only to the extent foregoing restriction is expressly prohibited by applicable law; or
4.9 intentionally interfere with or damage operation of the Service, by any means, including uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code.
5. Third-Party Transactions; Advertisements.
5.1 Some of the Services may be supported by advertising revenue and may display advertisements and promotions (“Advertisements”). These Advertisements may be targeted to the content of information stored on the Services, queries made through the Services or other information. You expressly consent to receive these Advertisements. We do not endorse any information, materials, products, or services contained in or accessible through Advertisements. Accordingly, your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Service are solely between you and such advertiser. ACCESS AND USE OF ADVERTISEMENTS, INCLUDING THE INFORMATION, MATERIALS, PRODUCTS, AND SERVICES ON OR AVAILABLE THROUGH SITES TO WHICH THE ADVERTISEMENTS DIRECT IS SOLELY AT YOUR OWN RISK.
5.2 If you choose to access the Services or Advertisements, or purchase products from third parties, including without limitation through third-party payment vendors through Advertisements, your personal information may be available to the third-party provider. If you choose to visit or use any third-party products or services, please note that our policies will not apply to your activities or any information you disclose while using third-party products or services or otherwise interacting with third parties. How third parties handle and use your personal information related to their sites and services is governed by their security, privacy and other policies, if any, and not our policies. We have no responsibility for any third party policies, or any third party’s compliance with them.
6. Termination; Terms of Service Violations.
6.1 You agree that we, in our sole discretion, for any or no reason, and without penalty, may terminate your use of the Services at any time. We may also in our sole discretion and at any time discontinue providing access to the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service may be without prior notice and you agree that we will not be liable to you or any third party for any such termination. Any suspected fraudulent, abusive or illegal activity may be referred to law enforcement authorities. These remedies are in addition to any other remedies we may have at law or in equity.
6.2 Your only remedy with respect to any dissatisfaction with (a) the Service (b) any term of these Terms, or (c) any Policies or practices in operating the Service, is to terminate these Terms and if applicable uninstall the Service(s). You may terminate these Terms at any time by discontinuing use of the Service(s).
7. Ownership; Proprietary Rights. The Service is owned and operated by us or one of our affiliated companies. The visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), products, software, services, and all other elements of the Service provided by us (the “Materials”) are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. All Materials contained on the Service (excluding any Materials on third-party websites) are the property of us or our subsidiaries or affiliated companies and/or third-party licensors. All trademarks, service marks, and trade names are proprietary to us or our affiliates and/or third-party licensors. Except as expressly authorized by us, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials. We reserve all rights not expressly granted in these Terms.
8. Indemnification and Release. You agree to indemnify, save, and hold us, our affiliated companies, contractors, employees, agents and its third-party suppliers, licensors, and partners harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use or misuse of the Service, any violation by you of these Terms, or any breach of the representations, warranties, and covenants made by you herein. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. We will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it. You, for yourself and on behalf of your heirs, estate, insurers, successors and assigns, hereby fully and forever release and discharge us and our affiliates, officers, directors, employees, agents, licensors and suppliers from any and all claims or causes of action you may have for damages relating in any way to your use of the Services. Some states or other jurisdictions do not allow certain limitations or exclusions of liabilities, so the above exclusions may not apply to you. You may also have other rights that vary from state to state and jurisdiction to jurisdiction.
9. GENERAL DISCLAIMERS; NO WARRANTIES.
9.1 TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, WE, AND OUR AFFILIATES, PARTNERS, AND SUPPLIERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. NO INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. YOU EXPRESSLY ACKNOWLEDGE THAT, AS USED IN THIS SECTION 9, “WE,” “OUR,” AND “US” INCLUDE OUR OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, LICENSORS AND SUBCONTRACTORS.
9.2 YOU EXPRESSLY AGREE THAT USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE AND ANY DATA, INFORMATION, THIRD-PARTY SOFTWARE, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SERVICE ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE,” “WITH ALL FAULTS” BASIS AND WITH NO ASSURANCES THAT THE SERVICE WILL WITHSTAND ATTEMPTS TO EVADE SECURITY MECHANISMS OR THAT THERE WILL BE NO CRACKS, BUGS, DISABLEMENTS OR OTHER CIRCUMVENTION. WE, OUR SUPPLIERS, LICENSORS, AFFILIATES, AND PARTNERS DO NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
9.3 YOU UNDERSTAND AND AGREE THAT YOUR USE AND ACCESS OF THE SERVICE IS AT YOUR OWN DISCRETION AND RISK.
10. LIMITATION OF LIABILITY AND DAMAGES.
10.1 UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WILL WE OR OUR AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS, LICENSORS, OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM ANY UNSUCCESSFUL COURT ACTION OR LEGAL DISPUTE, LOST BUSINESS, LOST REVENUES, OR LOSS OF ANTICIPATED PROFITS OR ANY OTHER PECUNIARY OR NON-PECUNIARY LOSS OR DAMAGE OF ANY NATURE WHATSOEVER) ARISING OUT OF OR RELATING TO THESE TERMS OR THAT RESULT FROM YOUR USE OF OR YOUR INABILITY TO USE THE SERVICE, OR ANY OTHER INTERACTIONS WITH US, EVEN IF WE OR AN AUTHORIZED REPRESENTATIVE OF OURS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, OUR LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
10.2. IN NO EVENT WILL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE SERVICE (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE), EXCEED THE AMOUNT PAID BY YOU TO US, IF ANY, FOR ACCESSING THE SERVICE DURING THE THREE MONTH IMMEDIATELY PRECEDING THE DATE OF THE CLAIM.
10.3 YOU ACKNOWLEDGE AND AGREE THAT WE HAVE OFFERED THE SERVICES AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND US, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND US. WE WOULD NOT BE ABLE TO PROVIDE THE SERVICE TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
10.4 SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION.
11. Dispute Resolution and Arbitration.
11.1 In the interest of resolving disputes between you and us in the most expedient and cost effective manner, you and we agree that any and all disputes arising in connection with these Terms shall be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. vArbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of these Terms. You understand and agree that by entering into these Terms you and we are waiving the right to a trial by jury or to participate in a class action.
11.2 Notwithstanding Section 11.1, we both agree that nothing herein shall be deemed to waive, preclude, or otherwise limit either of our right to (a) bring an individual action in small claims court, (b) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (c) seek injunctive relief in a court of law, or (d) to file suit in a court of law to address intellectual property infringement claims.
11.3 Any arbitration between you and us will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, the “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting us.
11.4 A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for you, by electronic mail (“Notice”). Our address for Notice is: Native Metrics Attention: Legal Department, 4600 Madison Avenue, Suite 300, Kansas City, MO 64112 USA. The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, either party may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or us shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any; provided that if our dispute is finally resolved through arbitration in your favor, we shall pay you the greater of (a) the amount awarded by the arbitrator, if any, and (b) the greatest amount offered by us in settlement of the dispute prior to the arbitrator’s award.
11.5 Fees. In the event that you commence arbitration in accordance with these Terms, we will reimburse you for your payment of the filing fee, unless your claim is for greater than $10,000, in which case the payment of any fees shall be decided by the AAA Rules. Any arbitration hearings will take place at a location to be agreed upon in New York City, New York, provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a non-appearance based telephonic hearing, or by an in-person hearing as established by the AAA Rules. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse us for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
11.6 No class actions. EITHER PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN SUCH PARTYS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both parties agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
11.7 Modifications. In the event that we make any future change to this arbitration provision (other than a change to our address for Notice), you may reject any such change by sending us written notice within thirty (30) days of the change to our address for Notice, in which case your use of the Service shall be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject shall survive.
11.8 Enforceability. If only Section 11.6 of this Section 11 or the entirety of this Section 11 is found to be unenforceable, then the entirety of this Section 11 shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 12.3 shall govern any action arising out of or related to these Terms.
12.1 Notice. We may provide you with notices, including those regarding changes to these Terms, by posting notices on this page or any successor page, or otherwise through the applicable Service.
12.2 Waiver. Any failure by us to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. Any waiver of any provision of these Terms will be effective only if in writing and signed by us.
12.3 Governing Law and Jurisdiction. These Terms shall be interpreted and enforced in all respects under the laws of the State of Missouri, USA as applicable to contracts to be performed entirely within the State of Missouri, USA. Any litigation arising out of these Terms will be brought solely and exclusively in the state or federal courts located in Kansas City, Missouri, USA, and the parties agree that jurisdiction and venue properly lie in such courts and waive any claim that a proceeding in any such court has been brought in an inconvenient forum. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms.
12.4 Severability. If any provision of these Terms is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from these Terms to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions.
12.5 Assignment. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by us without restriction. Any assignment attempted to be made in violation of these Terms shall be void.
12.6 Survival. Upon termination of these Terms, any provision which, by its nature or express terms should survive, will survive such termination or expiration.
12.7 Headings. The heading references herein are for convenience purposes only, do not constitute a part of the terms of these Terms, and will not be deemed to limit or affect any of the provisions hereof.
12.8 Entire Agreement. These Terms constitute the entire agreement between you and us relating to the subject matter herein.
12.9 Claims. YOU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THESE TERMS AND THE SERVICE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.