Free Service Agreement

Metricly, Inc.
FREE SERVICE AGREEMENT
(HOSTED ARRANGEMENT)

THIS SERVICE SUMMARY AND ACCOMPANYING TERMS OF USE ARE PROVIDED FOR INFORMATION PURPOSES ONLY.
PRIOR TO BEING GRANTED ACCESS TO THE SERVICE, CUSTOMER WILL BE REQUIRED TO ACCEPT AND AGREE TO THE TERMS OF THIS FREE SERVICE AGREEMENT, INCLUSIVE OF THIS SERVICE SUMMARY AND THE TERMS OF USE.

SERVICE SUMMARY

1. Terms of Use. This Service Summary outlines the services to be provided under this free services agreement (the “Free Service Agreement”). Customer agrees that Customer’s access to and use of the Service (as defined in Section 3 below) shall at all times be subject to the Metricly, Inc. (“Metricly”) Free Service Agreement Terms of Use (“Terms of Use”), which can be found in Exhibit A. This Service Summary and the Metricly Terms of Use are referred to collectively as the “Free Service Agreement.” Capitalized terms that are not defined in this Service Summary are defined in the Terms of Use. By agreeing to the Terms of Use, Customer agrees to the terms and conditions of the Free Service Agreement. Use of the Service by Customer is subject to agreement to the Terms of Use prior to first use of the Service and Customer’s ongoing compliance with the Terms of Use. To the extent of any conflict between this Service Summary and the Terms of Use, the Terms of Use will prevail.

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: Metricly will provide Customer with online access via a standard web browser to the “Metricly Site”, which will host the Metricly’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 Metricly 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 (https://www.metricly.com/signup), which may be modified at Metricly’s sole discretion permitted in Metricly’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: Metricly may, at Metricly’s sole discretion, provide Customer with a license to one copy of Metricly’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: Metricly 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 (https://www.metricly.com/signup), which may be modified at Metricly’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 Metricly’s discretion, be purged and deleted from Analytics Database.

3.5 Third-party Hosting: Metricly 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 Metricly Site.

3.6 Tools: Metricly may, at its discretion, provide Customer with access to Metricly’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.

4. Free Service Term. The Effective Date of the Free Service Free Service Agreement will be the date on which Customer signs up at https://www.metricly.com/signup in order to gain access to the Service. The Termination Date of the Free Service Free Service Agreement will be the date on which Metricly disables Customer’s access to the Service in accordance with the Terms of Use. The period from the Effective Date through the Termination Date, inclusive, shall be referred to as the “Term”. Please read the Terms of Use carefully regarding access to Analytical Data once the Data Retention Period or the Free Service Free Service Agreement terminates.

5. Fees. The Service shall be provided at no charge.

6. No Warranty. Customer acknowledges and agrees that as the Service is being provided at no charge, Metricly is not providing and has no obligation to provide any warranty whatsoever on the provision of the Services. See Section 4.5 of the Terms of Use for the full warranty disclaimer.

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EXHIBIT A

METRICLY, INC.
FREE SERVICE AGREEMENT
TERMS OF USE
(HOSTED ARRANGEMENT)

This Free Service Agreement is made between the “Customer” whose authorized representative electronically accepted the Service Summary and these Terms of Use prior to be granted access to use the Service, and Metricly, Inc. (formerly Netuitive, Inc.), having a principal place of business at 12700 Sunrise Valley Drive, Suite 250, Reston, VA 20191. Capitalized terms that are not defined in this Terms of Use are defined in Service Summary.

1. SERVICE

1.1 Provision of Services. Metricly 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 Metricly Site, (b) to store Analytical Data on Metricly’s third party hosted site for the duration of the applicable Data Retention Period, (c) to access the Metricly Site for Support Services, and (d) to run Reports. If Metricly elects, at its sole discretion, to provide Customer with a copy of the Remote Collector, then Metricly 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 Metricly 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. Metricly 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 Metricly in this Free Service Agreement. Customer bears sole responsibility for protecting the Login Accounts, and will be liable for any unauthorized use thereof.

1.3 Restrictions. Use by Customer of the Metricly Site, Services, Remote Collector, Tools, and Reports must be in accordance with the applicable user manual and documentation. Use of the Metricly Site and submission of data to Metricly through the Service will be subject to this Free Service Agreement and Metricly’s privacy policy, as currently located at www.metricly.com/legal/privacy-policy. Customer may use the Metricly Site, Services, Remote Collector, Tools, and Reports solely in accordance with all applicable laws, rules, and regulations and Section 1.1. Customer will not (and will not have the right to), and will not permit any third party to: (a) translate, modify, adapt, enhance, decompile, disassemble or reverse engineer the Services and Tools or otherwise determine or attempt to determine source code or protocols from the executable code of the Service, Remote Collector, or Tools or create any derivative works based upon the Service, Remote Collector, or Tools; or (b) extract ideas, algorithms, procedures, workflows or hierarchies from the Service, Remote Collector, or Tools or otherwise use the Service, Remote Collector, or Tools for the purpose of creating another product or service. Customer will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Metricly Site, Services, Remote Collector, Tools, and Reports. Customer will not transmit through the Analytics Service or the Metricly Site any program, routine or device which is designed to delete, disable, deactivate, interfere with or otherwise harm any software, program, data, device, system or service, including without limitation, any ‘time bomb’, virus, drop dead device, malicious logic, worm, Trojan horse or trap or back door.

1.4 Metricly Obligations. Metricly 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 Metricly, 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 Metricly. 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 Metricly as this Free Service Agreement, including without limitation, disclaimers of warranties and limitations of liability for the benefit of Metricly that are no less protective of Metricly than those set forth in the Free Service Agreement. Where necessary for performance of the Service, Customer is responsible for authorizing and enabling Metricly 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 Metricly is accessing and retrieving Analytical Data from third parties, Metricly 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 Metricly 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 Metricly (including Secure Socket Layer (SSL) protocol or other protocols accepted by Metricly). Metricly 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 Metricly. Customer will be responsible for paying all third-party access charges (e.g., Internet service provider fees).

2. OWNERSHIP

2.1 Metricly Ownership. Metricly has and will own all right, title and interest, including all intellectual property rights, in and to Metricly Site, the Services, the Remote Collector, the Tools, the structure and format of any Reports, Metricly’s trademarks, and the Confidential Information of Metricly.

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, Metricly 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 Metricly from utilizing the Aggregated Data for purposes of operating Metricly’s business, provided that Metricly’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 Metricly. Customer agrees that, so long as no Customer Confidential Information is publicly disclosed, Metricly may: (i) access and use the Analytical Data to refine, supplement or test Metricly’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 Metricly personnel.

2.4 Feedback. Metricly welcomes Customer’s suggestions and feedback on how to improve the Service. If Customer provides any suggestions, feedback, or improvements to Metricly Site, Service, Remote Collector, Tools, or Reports, Metricly will have the right to use and have others use such suggestions, feedback, and improvements for any purpose.

2.5 Third Party Content. Metricly may make software and other materials available through the Service or at the Metricly Site, including, but not limited to, agents, libraries, and application program interfaces (APIs) to support Customer’s use of and access to the Service (collectively, “Agents”). To the extent that Agents do not contain Third Party Technology, as defined herein, Metricly provides access to such Agents solely for use with the Service, and has no liability for uses of such the Agents which are not in conjunction with the Service. In addition, Metricly may provide access or links to Agents which may contain third party content governed by other license terms, including open source licenses that may expand or limit Customers’ rights to use such content (“Third Party Technology”). Customer is not required to use such Third Party Technology to use the Service, but in the event Customer elects to use such Third Party Technology for its purposes in conjunction with the Service, Customer agrees to comply with such third-party terms, as applicable, and Metricly has no liability with respect to third-party content under this Agreement. If there are provisions in third-party terms that expressly conflict with these Terms of Use, the applicable third-party terms will apply. Please review our license page for the licenses governing our Agents and third party technology at: https://help.app.netuitive.com/Content/Misc/licenses.htm. ANY THIRD PARTY TECHNOLOGY DOWNLOADED OR OTHERWISE OBTAINED BY CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE SERVICE IS DONE SO AT CUSTOMER’S DISCRETION AND RISK, AND CUSTOMER WILL BE SOLELY RESPONSIBLE FOR AND HEREBY WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO ANY DAMAGES RESULTING FROM SUCH USE, INCLUDING DAMAGE TO CUSTOMER’S INTERNAL NETWORK, COMPUTER SYSTEMS, INTERNET ACCESS, OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH THIRD PARTY TECHNOLOGY.

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 Metricly, legal(operator)metricly.com.

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 Metricly has provided Customer with a copy of the Remote Collector for licensed use hereunder, Customer will promptly, upon request by Metricly, 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, Metricly 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 Metricly 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 Metricly that (a) Customer has the right to provide to Metricly the Analytical Data and Metricly 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. Metricly 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, Metricly 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 Metricly cannot ensure the security of data transmitted to it or that it stores.

4.3 Availability. Metricly uses a third party service provider to host the Analytics Service and Storage components of the Service. As of the Effective Date, Metricly uses Amazon S3, which offers robust durability and availability. Metricly retains the right to substitute an alternate qualified Hosting Provider at any time. Metricly 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 Metricly will have no responsibility (or related liability) for backing up any information that Customer provides to Metricly.

4.5 DISCLAIMER. METRICLY 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 METRICLY 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 METRICLY 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 METRICLY ASSUMES NO RESPONSIBILITY AND WILL HAVE NO LIABILITY OF ANY KIND FOR) THE DECISIONS MADE BASED ON USE OF METRICLY SITE, SERVICE, REMOTE COLLECTOR, TOOLS, REPORTS, OR RELATED DOCUMENTATION AND SERVICES, OR ANY EFFECTS ON BUSINESS THAT MAY RESULT FROM SUCH USE. METRICLY MAKES NO WARRANTIES TO ANY THIRD PARTY.

5. CONFIDENTIALITY

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, Metricly’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; (c) 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 (c) will be deemed Metricly’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 (c) 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 (c) 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 METRICLY 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 Metricly’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 Metricly’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.

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 Commonwealth of Virginia, 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. The parties agree that the county of Fairfax, Virginia shall be the exclusive venue for any and all claims arising out of or in connection with this Free Service Agreement. 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 Application 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 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.

7.6 Terms Modification. Metricly may revise this Service Agreement from time to time and the most current version will always be posted on the Metricly website. If a revision, in Metricly’s sole discretion, is material, Metricly will notify Customer (by, for example, sending an email to the email address associated with the applicable account). Other revisions may be posted to Metricly’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.

7.7 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.