Sitemetric Website Terms of Use

Last updated: April 9, 2025

The website located at sitemetric.com (the “Site”)is a copyrighted work belonging to Sitemetric, LLC  (“Sitemetric”,“us”, “our”, and “we”).

These website Terms of Use (these “Terms”) set forth the legally binding terms and conditions that govern your use of theSite. By accessing or using the Site, you are accepting these Terms (on behalf of yourself or the entity that you represent), and you represent and warrant that you have the right, authority, and capacity to enter into these Terms (on behalf of yourself or the entity that you represent).  you may not accessor use the Site or accept the Terms if you are not at least 18 years old.  If you do not agree with all of the provisions of these Terms, do not access and/or use the Site.

If you enter into a terms of use, end user license agreement, or other agreement(including any beta terms of use or beta agreement) with Sitemetric with respect to Sitemetric’s data, hardware, software, and technology-enabled services that are designed to control critical construction operations (the “Sitemetric offerings” and any such agreement(s), “commercial agreement”), the commercial agreement (and not these terms) will control and govern your access to and use of the Sitemetric offerings. For the avoidance of doubt, any restricted portions of the site that require you to login or register an account will be governed by a separate commercial agreement and not these terms.

Please be aware that Section 8.2 contains provisions governing how to resolve disputes between you and Sitemetric. Among other things, Section 8.2 includes an agreement to arbitrate which requires, with limited exceptions, that all disputes between you and us shall be resolved by binding and final arbitration.  Section 8.2 also contains a class action and jury trial waiver.  Please read Section 8.2. carefully.

Unless you opt out of the agreement to arbitrate within 30 days: (1) you will only be permitted topursue disputes or claims and seek relief against us on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding and you waive your right to participate in a class action lawsuit or class-wide arbitration; and (2) you are waiving your right to pursue disputes or claims and seek relief in a court of law and to have a jury trial.

1. Access to the Site

• License. Subject to these Terms, Sitemetric grants you a non-transferable, non-exclusive, revocable, limited license to use and access the Site solely for your internal business use.
• Certain Restrictions. The rights granted to you in these Terms aresubject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Site, whether in whole or in part, or any content displayed on the Site;(b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Site; (c) you shall not access theSite in order to build a similar or competitive website, product, or service; and(d) except as expressly stated herein, no part of the Site may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Unless otherwise indicated, any future release, update, or other addition to functionality of the Site shall be subject to these Terms.  All copyright and other proprietary notices on the Site (or on any content displayed on the Site) must be retained on all copies thereof.
• Modification. Sitemetric reserves the right, at any time, to modify, suspend, or discontinue the Site (in whole or in part) with or without notice to you.  You agree that Sitemetric will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Site or any part thereof.
• No Support or Maintenance. You acknowledge and agree that Sitemetric will have no obligation to provide you with any support or maintenance in connection with the Site.
• Ownership. You acknowledge that all the intellectual property rights, including copyrights, patents,trademarks, and trade secrets, in the Site and its content are owned by Sitemetric or Sitemetric’s suppliers or licensors. Neither these Terms (nor your access to the Site) transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth inSection 1.1. Sitemetric and its suppliers reserve all rights not granted in these Terms. There are no implied licenses granted under these Terms.
• Feedback. If you provide Sitemetric with any feedback or suggestions regarding the Site (“Feedback”), you hereby assign to Sitemetric all rights in such Feedback and agree that Sitemetric shall have the right to use and fully exploit such Feedback and related information in any manner it deems appropriate. Sitemetric will treat any Feedback you provide to Sitemetric as non-confidential and non-proprietary. You agree that you will not submit to Sitemetric any information or ideas that you consider to be confidential or proprietary.

2. User Content

1. User Content. “User Content” means any and all information and content that a user submits to, or uses with, the Site (e.g., information provided when a user requests a demo on the Site, which may include, without limitation, name, phone number, employer name, and email address). You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that personally identifies you or any third party. You hereby represent and warrant that your User Content does not violate our Acceptable Use Policy (defined in Section 2.3). Because you alone are responsible for your User Content, you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy. Sitemetric is not obligated to backup any User Content, and your User Content may be deleted at any time without prior notice.
2. License. You hereby grant (and you represent and warrant that you have the right to grant) to Sitemetric an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use and exploit your User Content, and to grant sub licenses of the foregoing rights, for Sitemetric’s internal business purposes. You hereby irrevocably waive (and agree to cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.
3. Acceptable Use Policy. The following terms constitute our “Acceptable Use Policy”: You agree not to: (a) upload, transmit, or distribute to or through the Site any computer viruses, worms, or any software intended to damage or alter a computer system or data; (b) send through the Site unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (c)use the Site to harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (d)interfere with, disrupt, or create an undue burden on servers or networks connected to the Site, or violate the regulations, policies or procedures of such networks; (e) attempt to gain unauthorized access to the Site (or to other computer systems or networks connected to or used together with the Site), whether through password mining or any other means; (f) interfere with any other user’s use and enjoyment of the Site; or(g) use software or automated agents or scripts to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Site(provided, however, that we conditionally grant to the operators of public search engines revocable permission to use spiders to copy materials from theSite for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials, subject to the parameters set forth in our robots.txt file).
4. Enforcement. We reserve the right (but have no obligation) to review any User Content, and to investigate and/or take appropriate action against you in our sole discretion if you violate theAcceptable Use Policy or any other provision of these Terms or otherwise create liability for us or any other person. Such action may include removing or modifying your User Content and/or reporting you to law enforcement authorities.

3. Indemnification

You agree to indemnify and hold Sitemetric (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (a) your use of the Site, (b)your violation of these Terms or (c) your violation of applicable laws or regulations. Sitemetric reserves 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. You agree not to settle any matter without the prior written consent of Sitemetric. Sitemetric will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.

4. Third-Party Links & Ads; Other Users

1. Third-Party Links & Ads. The Site may contain links to third-party websites and services, and/or display logos of or advertisements for third parties(collectively, “Third-Party Links & Ads”).  Such Third-Party Links & Ads are not under the control of Sitemetric, and Sitemetric is not responsible for anyThird-Party Links & Ads. Sitemetric provides access to these Third-Party Links & Ads only as a convenience to you, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Links & Ads.  You use all Third-Party Links & Ads at your own risk, and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third-Party Links & Ads, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices.  You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third-Party Links & Ads.
2. Other Users. Your interactions with other Site users are solely between you and such users. You agree that Sitemetric will not be responsible for any loss or damage incurred as the result of any such interactions.  If there is a dispute between you and any Site user, we are under no obligation to become involved.
3. Release. You hereby release and forever discharge Sitemetric (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Site(including any interactions with, or act or omission of, other Site users or any Third-Party Links & Ads).  IF YOUARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”

5. Disclaimers

THE SITE IS PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, AND SITEMETRIC(AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OFANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SITE WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SITE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SOTHE ABOVE EXCLUSION MAY NOT APPLY TO YOU. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIEDWARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

6. Limitation on Liability

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL SITEMETRIC (OR OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA,COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL,EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THESE TERMS OR YOUR USE OF, OR INABILITY TO USE, THE SITE, EVEN IF SITEMETRIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  ACCESS TO, AND USE OF, THE SITE IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TOYOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THESE TERMS (FORANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO A MAXIMUM OF FIFTY US DOLLARS. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THESE TERMS.

SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAYNOT APPLY TO YOU.

7. Term and Termination

Subject to this Section, these Terms will remain in full force and effect while you use the Site. We may suspend or terminate your rights to use the Site at any time for any reason at our sole discretion, including for any use of the Site in violation of these Terms. Upon suspension or termination of your rights under these Terms and right to access and use the Site will terminate immediately. Sitemetric will not have any liability whatsoever to you for any termination of your rights under these Terms. Even after your rights under these Terms are terminated, the following provisions of these Terms will remain in effect: Sections 1.2 through 1.6 and Sections 2 through 8.

8. General

1. Changes. These Terms are subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any), and/or by prominently posting notice of the changes on our Site. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, orfor any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice.  Continued use of our Site following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
2. Governing Law and DisputeResolution. These Terms are governed by the laws of the State of Texas, without regard to its conflicts of laws rules therein. Please read the following arbitration agreement in this Section (the “Arbitration Agreement”)carefully. It requires you to arbitrate disputes with Sitemetric, its parent companies, subsidiaries, affiliates, successors and assigns and all of their respective officers, directors, employees, agents, and representatives(collectively, the “Sitemetric Parties”) and limits the manner in which you can seek relief from the Sitemetric Parties.
   
   • Applicability of Arbitration Agreement. You agree that any dispute between you and any of the Sitemetric Parties relating in any way to the Site, the services offered on the Site (the “Services”)or these Terms will be resolved by binding arbitration, rather than in court, except that (1) you and the Sitemetric Parties may assert individualized claims in small claims court if the claims qualify, remain in such court and advance solely on an individual, non-class basis; and (2) you or the Sitemetric Parties may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall survive the expiration or termination of these Terms and shall apply, without limitation, to all claims that arose or were asserted before you agreed to these Terms (in accordance with the preamble) or any prior version of these Terms. This Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state or local agencies.  Such agencies can, if the law allows, seek relief against the Sitemetric Parties on your behalf. For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of the Terms as well as claims that may arise after the termination of these Terms.
   •  Informal Dispute Resolution. There might be instances when a Dispute arises between you and Sitemetric. If that occurs, Sitemetric is committed to working with you to reach a reasonable resolution. You and Sitemetric agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome. You and Sitemetric therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this ArbitrationAgreement (“Informal Dispute ResolutionConference”). If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference.
     
     1. The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within 45 days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to Sitemetric that you intend to initiate anInformal Dispute Resolution Conference should be sent by email to: info@sitemetric.com. The Notice must include: (1) your name, telephone number, mailing address, e‐mail address; (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of your Dispute.
     2. The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute ResolutionConference unless all parties agree. In the time between a party receiving theNotice and the Informal Dispute Resolution Conference, nothing in thisArbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in theInformal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.
   • Arbitration Rules and Forum. These Terms evidence a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the FederalArbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution Conference process described above does not resolve satisfactorily within 60 days after receipt of your Notice, you and Sitemetric agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims with an amount in controversy under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’ most current version of the Streamlined ArbitrationRules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/ (as applicable, the “JAMSRules”). JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at800-352-5267. A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”).The Request must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.
     
     • If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a non frivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.
     • Unless you and Sitemetric otherwise agree, or the Batch Arbitration process discussed in Subsection 8.2(h) is triggered, the arbitration will be conducted in the county where you reside. Subject to the JAMS Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. If the JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any JAMS fees and costs will be solely as set forth in the applicable JAMS Rules.
     • You and Sitemetric agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
   • Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve all disputes subject to arbitration hereunder including, without limitation, any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to the subsection entitled “Waiver of Class or Other Non-Individualized Relief,” including any claim that all or part of the subsection entitled “Waiver of Class or Other Non-Individualized Relief” is unenforceable, illegal, void or voidable, or that such subsection entitled “Waiver of Class or Other Non-Individualized Relief” has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in the subsection entitled “Batch Arbitration,” all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator.  The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in the subsection entitled “Batch Arbitration.” The arbitrator shall have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual party under applicable law, the arbitral forum’s rules, and these Terms (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator shall follow the applicable law. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
   • Waiver of Jury Trial. EXCEPT AS SPECIFIED IN SECTION 8.2(A) YOU AND THE SITEMETRIC PARTIES HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and the Sitemetric Parties are instead electing that all covered claims and disputes shall be resolved exclusively by arbitration under this Arbitration Agreement, except as specified in Section 8.2(a) above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow these Terms as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
   • Waiver of Class or Other Non-Individualized Relief.  YOU AND SITEMETRIC AGREE THAT, EXCEPT AS SPECIFIED IN SUBSECTION 8.2(h) EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under the Subsection 8.2(h) entitled “Batch Arbitration.” Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this subsection, “Waiver of Class or Other Non-Individualized Relief,” are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Sitemetric agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in Houston, Texas. All other Disputes shall be arbitrated or litigated in small claims court. This subsection does not prevent you or Sitemetric from participating in a class-wide settlement of claims.
   • Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or Sitemetric need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution Conference process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
   • Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and Sitemetric agree that in the event that there are 100 or more individual Requests of a substantially similar nature filed against Sitemetric by or with the assistance of the same law firm, group of law firms, or organizations, within a 30 day period (or as soon as possible thereafter), the JAMS shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).
     
     • All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the JAMS, and the JAMS shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Sitemetric.
     • You and Sitemetric agree to cooperate in good faith with the JAMS to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings.
     • This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
   • 30-Day Right to Opt Out.  You have the right to opt out of the provisions of this Arbitration Agreement by sending a timely written notice of your decision to opt out to the following address:, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address and a clear statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of these Terms will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have with us, or may enter into in the future with us.
   • Invalidity, Expiration. Except as provided in the subsection entitled “Waiver of Class or Other Non-Individualized Relief”, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with Sitemetric as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
   • Modification. Notwithstanding any provision in these Terms to the contrary, we agree that if Sitemetric makes any future material change to this Arbitration Agreement, you may reject that change within 30 days of such change becoming effective by writing Sitemetric at the following address: 4265 San Felipe Street, Suite 1100, Houston, Texas 77027.  Unless you reject the change within 30 days of such change becoming effective by writing to Sitemetric in accordance with the foregoing, your continued use of the Site and/or Services, including the acceptance of products and services offered on the Site following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of these Terms and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Services or of the Site, any communications you receive, any products sold or distributed through the Site, the Services, or these Terms, the provisions of this Arbitration Agreement as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms) remain in full force and effect. Sitemetric will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of these Terms.
3. Export. The Site may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Sitemetric, or any products utilizing such data, in violation of the United States export laws or regulations.
4. Electronic Communications.
   
   1. You may have the opportunity to provide us with your e-mail address. By providing your email address to us, you consent to receiving email communications from Sitemetric. Communications from us and our affiliated companies may include communications about your use of the Site, updates concerning new and existing features on the Site, including Sitemetric products and services available via the Site, and news concerning Sitemetric and industry developments. If you subscribe to our mailing list or otherwise opt-in to receive marketing or promotional communications from us, you will have the ability to opt out of receiving such communications by following the unsubscribe instructions in the communication itself. YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE PROMOTIONAL EMAILS AS A CONDITION OF USING THE SITE. CONSENT TO THESE PROMOTIONAL MESSAGES IS NOT REQUIRED TO ACCESS THE SITE.
   2. The communications between you and Sitemetric use electronic means, whether you use the Site or send us emails, or whether Sitemetric posts notices on the Site or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Sitemetric in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Sitemetric provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in a hardcopy writing. The foregoing does not affect your non-waivable rights.
5. Entire Terms. These Terms constitute the entire agreement between you and us regarding the use of the Site. Our failure to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation”.  If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.  You agree that neither you nor Sitemetric is an agent or partner of the other.  These Terms, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Sitemetric’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.  Sitemetric may freely assign these Terms.  The terms and conditions set forth in these Terms shall be binding upon assignees.
6. Copyright/Trademark Information.  Copyright © 2025 Sitemetric, LLC All rights reserved.  All trademarks, logos, and service marks (“Marks”) displayed on the Site are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.
7. Contact Information:
8. Sitemetric, LLC
9. 4265 San Felipe Street
10. Suite 1100
11. Houston, Texas 77027
12. info@sitemetric.com

‍

Terms & Conditions

Last updated: Dec 29, 2023

1. Definitions

Definitions are provided when first introduced in these Terms and Conditions.

2. Services and Right to Use

• In consideration of the fees paid by Customer under this Agreement, Company agrees to provide Customer access to the Services in accordance with Appendix 1 (Delivery and Support Obligations).
• Subject to the terms and conditions of these terms, Sitemetric, LLC (“Company”) will provide Customer the Services during the applicable term for use of theServices (the “Term”), and hereby grants Customer a non-exclusive, non-sub-licensable, non-transferable right to access and use the Services solely for Customer’s and its affiliates’ own internal business operations (provided that such internal business operations shall not include commercial time-sharing, rental, outsourcing, service bureau or similar usages) during theTerm. The rights granted herein are expressly limited to use byAuthorized Users to: (i) access the features and functions of the Services via the Internet ordered solely for Customer’s internal business purposes and the integration with a third-party cloud service for purposes of offeringCustomer’s end users a web interface; and (ii) view and use the Services content made available to Customer through the Services solely for Customer’s internal business purposes. “Authorized Users” means Customer’s and its affiliates’ employees and contractors who are authorized by Customer and its affiliates to use the Services.

3. Restrictions and Responsibilities

• Customer will not, and will not permit any third party to: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services (except to the extent such restrictions are contrary to applicable law); (b) modify, translate, or create derivative works based on the Services; (c) use theServices for timesharing or service bureau purposes or otherwise for the benefit of a third party; (d) enable any device for use with the Services which is not properly covered under an applicable recurring per device fee; (e)remove any proprietary notices or labels; (f) use the Services to build a similar or competitive product or service; (g) without Company’s express written permission, introduce software or automated agents or scripts to theServices so as to produce multiple accounts, generate automated searches, requests and queries, or to strip, scrape, or mine data from the Services; (h)perform or publish any performance or benchmark tests or analyses relating to the Services or the use thereof or (i) otherwise use the Services in a manner inconsistent with this Agreement.
• Customer represents, covenants, and warrants that Customer will use the Services only in compliance withCompany’s standard published policies and documentation then in effect and all applicable laws and regulations (including export laws).  Although Company has no obligation to monitorCustomer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be in violation of this Agreement.  
• Customer will be responsible for maintaining the security of the Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of accounts linked to Customer’s login credentials.
• Company reserves the right to modify software, firmware and Services functionality, at any time as long as such modification is made across Company’s customer base and will have no liability for any such modification.  Company shall provide Customer with sixty (60) days’ notice of any proposed changes to an API that impacts the functionality of the Services.  In the event that Company adds additional functionality to the Services that it generally does not make available to similar users of the Service (e.g., with similar restrictions and subscription levels), Company may condition the implementation of such modifications onCustomer’s payment of additional fees, and Customer will not be entitled to such new functionality unless Customer pays such fees, provided Customer may continue to use the version of the Services that Company makes generally available (without such features) without paying additional fees.
• Customer agrees to comply with all applicable local, state, national and foreign laws, treaties, regulations and conventions in connection with its use of theServices, including without limitation those related to data privacy, international communications, and the exportation of technical or personal data. Customer will ensure that any use of the Service by the AuthorizedUsers is in accordance with the terms of this Agreement. Customer agrees to notify Company immediately of any unauthorized use of any password or account or any other known or suspected breach of security. Customer acknowledges and agrees that the Services may be subject to the U.S. ExportAdministration Laws and Regulations. Customer agrees that no part of theServices or information obtained through use of the Services, is being or will be acquired for, shipped, transferred, or re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals, nor be used for nuclear activities, chemical biological weapons, or missile projects unless authorized by the U.S. Government. Proscribed countries are set forth in the U.S. Export Administration Regulations and are subject to change without notice, and Customer must comply with the list as it exists in fact. Any unauthorized use of the Service may violate copyright laws, trademark laws, the laws of privacy and publicity, and communications regulations and statutes.

4. Confidentiality; Proprietary Rights

• As used herein, “ConfidentialInformation” means, subject to the exceptions set forth in the following sentence, any information or data, regardless of whether it is in tangible form, disclosed by either party (the “Disclosing Party”) that theDisclosing Party has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary within thirty (30) days of disclosure to the other party (the “Receiving Party”); provided, however, that a Disclosing Party’s business plans, strategies, technology, research and development, current and prospective customers, billing records, and products or services will be deemed Confidential Information of the Disclosing Party even if not so marked or identified. Company’s Confidential Information includes, without limitation, the Services and the terms of thisAgreement.  Information will not be deemed Confidential Information if such information: (a) is known to the Receiving Party prior to receipt from theDisclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) becomes known(independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; or (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of thisAgreement by the Receiving Party.  Each party agrees that it will use theConfidential Information of the other party solely to perform its obligations or exercise its rights under this Agreement.  Neither party will disclose, or permit to be disclosed, the other party’s Confidential Information directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder.  Each party will use reasonable measures to protect the confidentiality and value of the other party’s Confidential Information.  Notwithstanding any provision of thisAgreement, either party may disclose the other party’s ConfidentialInformation, in whole or in part (i) to its employees, officers, directors, consultants and professional advisers (e.g., attorneys, auditors, financial advisors, accountants and other professional representatives) who have a need to know and are legally bound to keep such Confidential Information confidential by confidentiality obligations or, in the case of professional advisors, are bound by ethical duties to keep such Confidential Information confidential consistent with the terms of this Agreement; and (ii) as required by law (in which case each party will provide the other with prior written notification thereof, will provide such party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law).  Each party agrees to exercise due care in protecting the other party’s Confidential Information from unauthorized use and disclosure.  In the event of actual or threatened breach of the provisions of this Section, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it.  Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement. 
• As between the parties, Company will own and retain all right, title and interest in and to (a) the Services, and all improvements, enhancements or modifications thereto, whether or not developed based on Customer’s suggestions or other feedback, (b) any software, applications, inventions or other technology developed in connection with theServices, and (c) all intellectual property rights related to any of the foregoing.
• Customer hereby grants toCompany a non-exclusive, worldwide, royalty-free, fully paid up, sub-licensable(directly and indirectly through multiple tiers), nontransferable (except asset forth in Section 9): perpetual, irrevocable right and license during and after the Term to collect, use and analyze data and other information relating to the Services and related systems and technologies  and  Company will be free to (i) use such information and data to improve and enhance theServices and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. 
• Customer may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to Company with respect to the Services.  Company will have full discretion to determine whether or not to proceed with the development of the requested enhancements, new features or functionality. Customer hereby grants Company a royalty-free, fully paid up, worldwide, transferable, sub-licensable, irrevocable, perpetual license to (a) copy, distribute, transmit, display, perform, and create derivative works of theFeedback; and (b) use the Feedback and/or any subject matter thereof, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody, or are configured for use in practicing, the Feedback and/or any subject matter of the Feedback.

5. Payment of Fees

• Customer will pay Company the fees described in the Order Form in accordance with the terms herein and therein (the “Fees”). If Company chooses to bill through an invoice, full payment for invoices issued in any given month must be received by Company thirty (30) days after the date of the invoice.Unpaid Fees are subject to a finance charge of 1.5% per month, or the maximum permitted by law, whichever is lower.
• Customer will be responsible for all taxes associated with Services other than taxes based on Company’s net income.  If any past due payment has not been received by Company within thirty(30) days from the time such payment is due, Company may suspend access to theServices until such payment is made. At its discretion, Company may increase the pricing stated on the Order Form for any Renewal Term (as defined below) by giving Customer at least sixty (60) days’ notice prior to the end of the then-current term.

6. Term and Termination

• Subject to earlier termination as provided below, the term of this Agreement will commence on the Effective Date and continue in effect so long as the AccessTerm under at least one Order remains in effect, unless earlier terminated by either Customer or Company as set forth herein (collectively, the “Term”).
• Termination for Breach. Either Party may terminate this Agreement immediately upon written notice in the event that the other Party materially breaches theAgreement and thereafter: (i) in the case of material breach resulting from non-payment of amounts due hereunder, has failed to pay such amounts within forty-five (45) days after receiving written notice thereof; or(ii) has failed to cure any other material breach (or to commence diligent efforts to cure such breach that are reasonably acceptable to the terminatingParty) within thirty (30) days after receiving written notice thereof.
• Company may at any time terminate its agreement with Customer if Company is required to do so by law(for example, where the provision of the Service to Customer is, or becomes, unlawful).
• IfCustomer fails to pay undisputed amounts in accordance with this Agreement or, if and as necessary to protect the Sitemetric Data System Content in the event of a threat to the security of the Service, Company will have the right, in addition to any of its other rights or remedies, upon five (5) days’ notice, to suspend the provision of the Services to Customer without liability to Customer until such amounts are paid in full or such breach is cured (in Company’s sole discretion), as applicable. “Sitemetric Data System Content” means the Sitemetric Data System information, data, content and materials provided byCompany through the Service.
• In addition to any other remedies it may have, either party may terminate this Agreement upon written notice to the other party: (a) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings; provided, that, if such proceeding is involuntary, it is not dismissed within forty-five (45) days of its institution, (b) upon the other party's making an assignment for the benefit of creditors, or (c) upon the other party's dissolution or cessation of business without a named successor. 
• Except as expressly set forth in paragraph 6.7, upon expiration or termination of this Agreement, all rights granted by Company hereunder and all obligations of Company to provide theServices will immediately terminate and Customer will cease use of theServices. Upon expiration or termination of this Agreement, each party will return or destroy all copies or other embodiments of the other party’sConfidential Information. The provisions of Sections 3, 4, 5.3, 6.3, 7, 8 and 9will survive any termination or expiration of this Agreement.

7. Warranty and Disclaimer

• Each party represents and warrants to the other party that (a) such party has the required power and authority to enter into this Agreement and to perform its obligations hereunder; (b) the execution of this Agreement and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party; and (c) this Agreement constitutes a legal, valid and binding obligation when signed by both parties.
• Limited Warranty.  Company warrants that the Services will conform to the Company’s then current Documentation in all material respects for the Services under normal use and circumstances.  If Customer notifies Company of a breach of the foregoing warranty and Company can validate such breach, Company will use best efforts to remedy any such non-conforming Services.  The foregoing constitutes Customer’s sole and exclusive remedy for any breach of warranty.Customer agrees and acknowledges that the Sitemetric Data System Content is based on information believed to be accurate and Company makes no guarantee regarding the accuracy of such Sitemetric Data System Content.
• DISCLAIMER.  EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON INFRINGEMENT AND TITLE. THE SERVICES ARE PROVIDED ON AN AS-IS BASIS. Company does not warrant that the Services will be uninterrupted or error free.
• Internet Delays.  THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT INTHE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS.  COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS WITH THE INTERNET AND ELECTRONIC COMMUNICATIONS OR ANY OTHER FORCE MAJEURE EVENT.

8. Limitation of Liability

• IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY,SPECIAL OR INCIDENTAL DAMAGES, INCLUDING ANY LOSS OF USE, DATA, PROFITS, OR GOODWILL, ARISING FROM OR RELATING TO THIS AGREEMENT, THE SERVICES, OR ANY OTHER SERVICES OR CONTENT PROVIDED HEREUNDER, WHETHER IN CONTRACT OR TORT OR OTHERWISE, EVEN IF COMPANY HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES.  COMPANY WILL NOT BE LIABLE FOR PROCUREMENT COSTS OF SUBSTITUTE PRODUCTS OR SERVICES.
• THE TOTAL CUMULATIVE LIABILITY OF COMPANY ARISING FROM OR RELATING TO THIS AGREEMENT, THE SERVICES, AND ANY OTHER SERVICES OR CONTENT PROVIDED HEREUNDER, WILL NOT EXCEED THE AMOUNT OF FEES PAID TO COMPANY BY CUSTOMER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE CIRCUMSTANCES GIVING RISE TOTHE FIRST CLAIM AT ISSUE. THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. CUSTOMER ACKNOWLEDGES THAT THE FEES SET FORTH IN THIS AGREEMENT REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT COMPANY WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. CUSTOMER AGREES THAT COMPANY’S SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND UNDER OR AS A RESULT OFTHIS AGREEMENT.

9. Indemnification

• Company shall defend Customer and the officers, directors, agents, and employees of Customer (“CustomerIndemnified Parties”) against any third party claim, allegation or legal action (a “Claim”) arising from an allegation that Customer’s authorized use of the Services infringes any copyright or misappropriates a trade secret of any third party. Further, Company shall indemnify the Customer IndemnifiedParty against any damages actually awarded or paid in connection therewith, including any reasonable attorneys’ fees.  Notwithstanding the foregoing,Company’s indemnification obligation will not apply to claims to the extent arising from (a) modification of the Services by any party other than Company without Company’s express consent; (b) the combination, operation, or use of the Services with other product(s), data or services where the Services would not otherwise be infringing; or (c) unauthorized or improper use of theServices.  If the use of the Services by Customer has become, or inCompany’s opinion is likely to become, the subject of any claim of infringement, Company may at its option and expense (i) procure for Customer the right to continue using the Services as set forth hereunder, (ii) replace or modify the Services to make the Services non-infringing so long as theServices has at least equivalent functionality, (iii) substitute an equivalent for the Services or (iv) if options (i)-(iii) are not reasonably practicable, terminate this Agreement (subject to a refund of pre-paid fees (if any) for the remaining part of the then-current term).  This Section 9.1 statesCompany’s entire obligation and Customer’s sole remedies in connection with any claim regarding the intellectual property rights of any third party.
• Customer shall defend Company and the officers, directors, agents, and employees of Company (“CompanyIndemnified Parties”) against any Claims arising from any use or disclosure by Customer of the Services in violation of this Agreement.  Further,Customer shall indemnify the Company Indemnified Party against any damages actually awarded or paid in connection therewith, including any reasonable attorneys’ fees.
• If a Customer Indemnified Party or a Company Indemnified Party (each, an “Indemnified Party”) becomes aware of any matter it believes it should be indemnified under Section 9.1 or Section9.2, as applicable, involving any claim, action, suit, investigation, arbitration or other proceeding against the Indemnified Party by any third party (each an “Action”), the Indemnified Party will give the other party (the“Indemnifying Party”) prompt written notice of such Action.  TheIndemnified Party will cooperate, at the expense of the Indemnifying Party, with the Indemnifying Party and its counsel in the defense and the IndemnifiedParty will have the right to participate fully, at its own expense, in the defense of such Action with counsel of its own choosing.  Any compromise or settlement of an Action will require the prior written consent of both parties hereunder, such consent not to be unreasonably withheld or delayed.

10. Wireless Carriers

• This Agreement may incorporate additional terms and conditions accompanying transmission of data by 3rd party wireless carriers.

11. Miscellaneous

• Company reserves the right to identify Customer as a customer of the Services onCompany’s website and in other marketing or promotional communications.
• Neither party may assign this Agreement or assign or delegate its rights or obligations under this Agreement without the other party’s prior written consent; provided however, that either party may assign this Agreement without such consent to an acquirer of or successor to all or substantially all of its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Any assignment or attempted assignment by either party otherwise than in accordance with this Section shall be null and void.
• If any provision of thisAgreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.  Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. In the event of a conflict between the Order Form and these Terms and Conditions, these Terms and Conditions will govern unless the Order Form expressly amends a provision herein. 
• No agency, partnership, joint venture, or employment is created as a result of this Agreement and a party does not have any authority of any kind to bind the other party in any respect whatsoever. 
• All notices under thisAgreement will be in writing and sent to the recipient’s address on the OrderForm (unless subsequently updated in writing) and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. 
• Each party shall be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service, in whole or in part, as a result of a cause beyond its reasonable control and without its fault or negligence, including, but not limited to, acts of God, acts of war, epidemics, fire, communication line failures, power failures, earthquakes, floods, blizzard, or other natural disasters (but excluding failure caused by a party's financial condition or any internal labor problems (including strikes, lockouts, work stoppages or slowdowns, or the threat thereof)) (a “Force Majeure Event”).  Delays in performing obligations due to a Force Majeure Event shall automatically extend the deadline for performing such obligations for a period equal to the duration of such Force Majeure Event. 
• This Agreement shall be governed by the laws of the State of Delaware without regard to its conflict of laws provisions.  For all disputes relating to this Agreement, each party submits to the exclusive jurisdiction of the state and federal courts located in Houston, Texas and waives any jurisdictional, venue, or inconvenient forum objections to such courts. 
• Customer acknowledges that any unauthorized use of the Services may cause irreparable harm and injury toCompany for which there is no adequate remedy at law.  In addition to all other remedies available under this Agreement, at law or in equity, Customer agrees that Company may be entitled to injunctive relief in the event Customer uses the Services in any way not expressly permitted by this Agreement.
• No change, alteration, modification, waiver, or addition to this Agreement shall be effective unless in writing and properly executed by the parties here.

‍

Appendix 1

Delivery and Support Obligations

Delivery: Promptly following execution of this Agreement, Company will provide Customer, via email, the URL(s) of the hosted environment of theService. Upon receiving the URL(s), Customer will confirm to Company the receipt of the URL(s) and the successful access of the hosted environment.

Support and Maintenance Includes:

• Interface/API maintenance. Any other User Interface for Conductor subject to Sitemetric approval, granting of which is contingent upon end customer required functionality that Sitemetric declines to incorporate into the User Interface.
  o  Technical support to the customer (not the Customer’s end users)

• Patching and pushing software(firmware) updates down to fielded hardware devices such as gateways, access points, and reference points.
  o  Company shall use commercially reasonable efforts to achieve at least 99.9% availability of the Service measured monthly, not including downtime excused under the Availability section below of this Delivery and Support Obligations Appendix, for production environments. Company shall monitor the availability of the Service 24/7, subject to the Availability section below of this Delivery and SupportObligations Appendix.
  o  Company to provide a scalable sized hosting environment to allow a consistent speed of data flow
  o  Company uses reasonable industry measures designed to protect the operating environment of the Service against unauthorized physical access and the threats of fire, power, temperature, humidity and other physical forces with the following capability:
  o  A secure data center with physical access limited to authorized personnel and protected by multi-level security systems. Other persons are admitted only on an as-needed and supervised basis (such as to maintain hardware components).
  o  Continuous, conditioned power supplied by a redundant power infrastructure, including battery backup systems and diesel-powered generators, with regular system testing for continuous availability.
  o  Redundant HVAC climate control and fire suppression systems.

• Company maintains antivirus protection software on the Service. In the event viruses, worms or similar problems are determined to have infected the Service, Company will use commercially reasonable efforts to restore the Service as quickly as reasonably possible.
• Company will provide sufficient server capacity to provide a productive operating environment for the scope of the Service specified in this Agreement. The Service shall include collection and retention of all statistical, transactional, and configuration data for active end users. Production environments will be configured in a redundant disk configuration to help ensure data availability and recovery. The operating system will be appropriate to the hardware selected for production and non-production use. Industry standard security patches, service packs and anti-virus software will be installed at initial implementation, and updated on a monthly or on an as needed basis, as applicable.
• Inbound and outbound traffic will be monitored through firewall(s), switches, routers and load balancers utilizing burstable bandwidth.
• Company staff is available for support and troubleshooting of Severity 0, 1, 2 and 3problems by phone during regular business hours from Monday through Friday,8:00 A.M. to 5:00 P.M. local time where Customer’s Designated Technical SupportPersonnel is located, excluding public holidays and other Company observed holidays.
• Severity and Resolution Targets: Company will use commercially reasonable efforts to meet the Initial Response and Target Resolution Times associated with the Severity Levels as set forth below:

• Severity Definitions: Forpurposes of these Services:
  o  “Severity 0” means a problem inthe Service that causes substantial downtime of the Service. There is no viableWorkaround available.
  o  “Severity 1” means a problem in the Service that results in the loss of critical functions of the Service or a limited number of Users cannot access the Service.
  o  “Severity 2” means a problem in the Service that impacts operations and/or efficiency but Customer is still able to use the Service. A Workaround is generally available.
  o  “Severity 3” means a technicalquestion about the Service that does not impact Customer’s use of the Service.
• Company shall use commercially reasonable efforts to resolve each significant issue by providing a workaround, an object code patch or a specific action plan for howCompany will address the issue, and an estimate of how long it will take for the issue to be resolved.
• Company is responsible to implement the corrective actions needed to resume functionality as quickly as possible and to the above outlined service agreement.

Availability. Company will use commercially reasonable efforts to make the Services, including any backup data, available twenty four (24) hours a day, seven (7) days a week, except for: (i) planned downtime (of which Company shall give at least eight (8) hour notice via the Services and which Company shall schedule to the extent reasonably practicable between Friday at 10:00 PM EST and Sunday 2:00 PM EST);or (ii) any unavailability caused by circumstances beyond Customer's reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Company employees), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within Company's possession or reasonable control, and denial of service attacks.

Data Transfer Upon Expiration or Termination: If the Agreement expires or is terminated for any reason by either party except in the case of breach by Customer, Company will make available for download by Customer all statistical, transactional, and configuration data for all active end users stored in Company’s servers. Customer shall have ninety (90) days to complete such download to Customer’s servers or a replacement service provider’s servers.