Terms of Service
The Terms of Service was last revised and made effective on June 14, 2016.
Thank you for visiting www.deskmetrics.com (the “Site”). By visiting the Site and using any of the products and services made available to you, you agree to the following terms and conditions (“Terms of Service”).
1. Use of Services
Deskmetrics is providing you with certain products and services (collectively, the “Services”) through the Site provided that you are of legal age to form a binding contract in your applicable jurisdiction. In order to receive or access certain Services available through the Site, you may be required to provide current, accurate identification, contact, and other information as part of the registration process and/or your continued use of the Services. If you choose to register as a member to use the Services available through the Site, you hereby agree to be bound by the terms and conditions of the Agreement. You are responsible for maintaining the confidentiality of your user login information and account password, and you are responsible for all activities that occur under your account. You agree to immediately notify Deskmetrics of any unauthorized use of your password or account or any other breach of security. Deskmetrics cannot and will not be liable for any loss or damage arising from your failure to provide us with accurate information or to keep your login information and/or password secure. When using the Services available through the Site, you agree to comply with your own local laws and regulations regarding online conduct and acceptable content, including laws regulating the export of data to and from your country of residence.
The Deskmetrics Analytics SDK is a proprietary software analytics tool available for download from the Site. The Deskmetrics Analytics SDK may be subsequently integrated into third party software applications. The downloading, installation, and use of the Deskmetrics Analytics SDK will be governed by these Terms of Service , and your use of the Deskmetrics Analytics SDK constitutes your acceptance these terms and conditions.
Use of the Services may be subject to certain quotas, including those Services that indicate “unlimited” usage, as set out in the applicable Deskmetrics policies and guidelines, which may be changed, updated, or amended at any time at Deskmetrics’ sole discretion. Any use of the Services that exceed fifteen (15%) percent of the defined quota will be subject to additional fees.
2. Service Availability
Deskmetrics uses reasonable endeavours to ensure that the Services available through the Site are available 24 hours a day 7 days a week. However, there will be occasions when the Services will be interrupted for maintenance, upgrades and emergency repairs or due to failure of telecommunications links and equipment that are beyond the control of Deskmetrics. Every reasonable step will be taken by us to minimize such disruption where it is within the reasonable control of Deskmetrics. You agree that Deskmetrics shall not be responsible or liable to you for the deletion or failure to store or make available any content and other communications maintained or transmitted through the Site, or any modification, suspension or discontinuance of the Services. You acknowledge that Deskmetrics reserves the right, in its sole discretion, to limit your activity and restrict your use of the Services available through the Site or any other resources you may use. Deskmetrics also reserves the right to terminate, suspend, or limit certain features or functionality of your account based on usage that exceeds any limits established by us. You may elect to purchase other Services or resources that may be available and offered by Deskmetrics. Payments for such purchases are non-refundable. Upon the termination of your account, you may no longer be able to retrieve content or data contained in your account.
You agree that you are responsible for your own conduct when using any of the Services available through the Site, and for any consequences thereof. Deskmetrics reserves the right, but shall not be obligated, to pre-screen, refuse, or remove any content that you have uploaded to or that is stored in your account. You agree that visiting the Site and your use of any of the Services is at your own risk. You agree NOT to use the Site and Services: (a) for any unlawful purposes or the promotion of any illegal activities, including without limitation, that may be threatening, obscene, libellous or defamatory, harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age; (b) to upload, post, or otherwise transmit or communicate any files or content that you do not have the right to transmit or communicate under any contractual or fiduciary relationship or which infringes any copyright, trade mark, patent or other intellectual property right; (c) to upload any material that could give rise to any civil or criminal liability under applicable law; (d) to forge headers or otherwise manipulate identifiers in order to disguise the origin of any files or content transmitted through the Services; (e) to attempt to upload and files or content by any method to another user’s account without permission; (f) to upload, post, or otherwise transmit any files or content which is likely to cause harm to Deskmetrics or anyone else’s computer systems, including without limitation any virus, code, worm, Trojans, data or other files or programs designed to damage or allow unauthorized access to the Services which may cause any defect, error, malfunction or corruption to the Services, or any network(s) connected to the Services, provided through the Site; (g) to impersonate any person or entity, or otherwise to misrepresent your affiliation with a person or entity while using the Services; (h) to collect, intercept or harvest user names, to collect, intercept or store personal data about other visitors of the Site or users of the Services, or to solicit or attempt to discover a user’s password, user name or other registration information without the user’s express knowledge and consent; and (i) to reproduce, duplicate, copy, or resell the Services available through the Site or any portion of thereof. Deskmetrics reserves the right to suspend and or terminate your account, without prior notice to you, if the Deskmetrics Analytics SDK or any of Services are not being used as intended, is being abused or used in a way beyond what Deskmetrics deems to be ‘normal usage’, or if any act or omission by you is likely to negatively affect our systems or Services.
If you use the Service to make any applications available to us or to any third parties (“Applications”), you represent and warrant that such Applications do not and will not: (a) be racist, supportive of terrorist activities, defamatory, libelous, unlawfully threatening or unlawfully harassing; (b) contain nudity, violence, or offensive subject matter or contains a link to an adult website; (c) intentionally solicit personal information from anyone under eighteen (18) years of age without expressly complying with all applicable laws; (d) harass or advocate harassment of another person; (e) infringe any third party’s copyright, trademark, service mark, trade secret, or other proprietary rights or rights of publicity or privacy; (f) promote information, material, or content that is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory, libelous, obscene, scandalous, inflammatory, pornographic, or profane material, or any other content that could give rise to any civil or criminal liability under the law; (g) involve the transmission of “junk mail,” “chain letters,” unsolicited mass mailing, or “spamming”; or (h) violate any law or regulation (including without limitation those governing consumer protection, unfair competition, antidiscrimination or false advertising).
4. Account Terms
You may be required to create a user account in order to access and use the Services that are being made available on the Site. The following conditions are required in order to create a user account:
- You must be 13 years or older (or the minimum age required under applicable law) to use the Service.
- You must be a human. Accounts created and registered by “bots” or other automated methods are not permitted.
- You must provide your legal full name, a valid email address, and any other information that we may request in order to complete the signup process and create a user account for you.
- Your login may only be used by one person – a single login shared by multiple users is not permitted. You may create separate logins for as many users as your account allows.
The user who creates an account to access the Services is referred to herein as the “Account Owner”. The Account Owner will have access and control over its account and is responsible for maintaining the confidentiality of its account and password. THE ACCOUNT OWNER SHALL NOT SHARE ITS ACCOUNT PASSWORD WITH ANY THIRD PARTY AND SHALL BE FULLY RESPONSIBLE FOR ANY AND ALL ACTIONS WITH RESPECT TO ITS USE OF THE ACCOUNT.
7. Payment, Refunds, Upgrading and Downgrading Terms
The Service is provided on a pay as you go basis and Monthly Charges are based on the number of the Active Users. The following terms will be used in this section:
Application – For the purpose of this section, Application means a piece of Content, Website, Extension or Application you add to the Service.
Active Users – Active Users are defined as customers who launch and use your Application at least once during the Payment Period.
Effective Date – Shall mean the date that you register for access to use the Services.
Payment Period – A Payment Period is either a one (1) month period or a one (1) year period. Your first Payment Period commences on the Effective Date, and shall continue for successive Payment Periods until the end of the Payment Period in which you cancel your access to, and use, the Services.
Pricing Tiers – The term Pricing Tiers refers to the various levels of the Monthly and Annual Charges for the Service, available at https://www.deskmetrics.com/pricing/.
Monthly Charges – The term Monthly Charges refers to the charges for the Service for each applicable Payment Period during the term of your access and use of the Services. Monthly Charges for the Service depend on the selected Price Tier and the number of Active Users of all your Applications. Fees for the Monthly Charges are available at https://www.deskmetrics.com/pricing/.
Annual Charges – The term Annual Charges refers to the charges for the Service for each applicable Payment Period during the term of your access and use of the Services. Annual Charges for the Service depend on the selected Price Tier and the number of Active Users of all your Applications. Fees for the Annual Charges are available at https://www.deskmetrics.com/pricing/.
7.1 Service Subscriptions
By purchasing a Service subscription, you acknowledge that you are subscribing to our Services and agree to be charged the applicable Monthly or Annual Charges. In order to purchase a Service Subscription, you must already be a registered user with a valid account to access and use the Services. Deskmetrics reserves the right to modify, terminate or otherwise amend the Pricing Tiers that may be offered. Under no circumstances shall Deskmetrics be liable to you or to any third party for any modification to the Pricing Tiers or Monthly/Annual Charges, nor will Deskmetrics be liable for any suspension or cancellation of the Services. When you upgrade to a specific Service Subscription, your Deskmetrics account should be updated immediately pending confirmation of your upgrade payment. Once your payment for the upgrade has been confirmed, the Effective Date will be updated to reflect the date that you are granted access to the Services at the new Pricing Tiers. Please allow up to two (2) business days for Deskmetrics to verify and process your Service upgrade subscription purchase and to update your Services account. Any downgrades to a lower Pricing Tier will take effect at the end of the then current Payment Period provided that your current account does not exceed the threshold level of the lower Pricing Tier.
7.2 Service Subscription Billing
By purchasing a monthly or annual Service subscription, you agree that Deskmetrics may submit Monthly Charges or Annual Charges without further authorization from you until you provide prior notice that you wish to terminate your Services subscription, or you wish to change your payment method. SERVICES SUBSCRIPTIONS CAN BE CANCELLED AT ANY TIME. As used in these Terms of Service, “billed” or “billing” shall indicate either a charge or debit, as applicable, against your payment method that we have on file. The Monthly Charges or Annual Charges will be billed at the start of each Payment Period until you cancel your Service subscription and will be automatically re-billed on each anniversary date corresponding to the Effective Date of your Service subscription, or within 2-3 business days of such date. You acknowledge that the amount billed for the Services may vary from month to month (or year to year for annual subscriptions) for reasons that may include without limitation differing amounts due to promotional offers or upgrades/downgrades to different Pricing Tiers offered by Deskmetrics, and you authorize us to charge your payment method for such varying amounts. We may change the Monthly Charges or Annual Charges in effect, or add new fees and charges from time to time, but we will give you advance notice of these changes by email or via notification through your Services account. If your payment information is invalid (incorrect or out-dated), or you do not renew your Services subscription, we reserve the right to terminate or limit your access to the Services.
7.3 Monthly Charges and Annual Charges
All Monthly Charges and Annual Charges are exclusive of all applicable taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties.
7.4 Services Subscription Auto-Renewal
Your Services subscription will automatically extend for successive Payment Periods unless you cancel your Services subscription. You may cancel your Service subscription at any time. If you decide to cancel your Services subscription, your Services subscription will not be renewed after your then-current Payment Period expires. Your continued use of the Services subscription reaffirms that Deskmetrics is authorized to bill you for the applicable Monthly Charges or Annual Charges.
8. Cancellation and Termination
You are entitled to cancel your Services subscription at any time. You are solely responsible for properly canceling your account. An email or phone request to cancel your account or any Services subscription is not a valid method of cancellation. To cancel your Services account or any Services subscription, you must request the cancellation by clicking on the “Account” tab in the settings panel of your Services account.
All of your data will be immediately deleted from the Service upon cancellation. This information cannot be recovered once your Services account is cancelled.
If you cancel the Service before the end of your current paid up month or year, your cancellation will take effect immediately and you will not be billed again for any Monthly Charges or Annual Charges following the expiration of the then-current Payment Period, nor will you receive any refund as a result of your cancellation of the Service subscription.
Deskmetrics, in its sole discretion, has the right to suspend or terminate your Services account and refuse any and all current or future access and use of the Service, or any other Deskmetrics service, for any reason at any time. Any termination of the Service will result in the deactivation or deletion of your Services account and any access to your Services account.
9. Copyright Restriction
The Services, the Deskmetrics Analytics SDK, and any software created by Deskmetrics (collectively, the “Software”) used in connection with the Services are provided by Deskmetrics and contains copyrighted material, trade secrets and other proprietary and confidential material that is protected by applicable intellectual property and other laws and treaties. Subject to the terms and conditions of this Agreement, Deskmetrics grants to you a limited, non-transferable and non-exclusive right and license to use the Software and the Services made available to you through the Site. You shall not directly, and shall not attempt to allow or assist any third party to, modify, reverse engineer, disassemble or decompile the Service or the Software, nor shall you create any derivative works or other works that are based upon or derived from the Software or any of the Services in whole or in part. Deskmetrics retains sole and exclusive ownership of all right, title and interest in and to the Software and the Services provided through the Site and all Intellectual Property rights relating thereto including without limitation Deskmetrics’ name, any Deskmetrics logos and graphic files that represents the Software and/or the Services provided through the Site. You further agree not to remove, obscure, or alter any Deskmetrics or any third party copyright notices, trademarks, or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through the Software, the Services or the Site. You acknowledge and agree that third parties, including other users of the Service, may own right, title and interest in and to the files and any content hosted on the Site or otherwise presented to you through the Services available through the Site, and that the files and content may be protected by applicable intellectual property and other laws and treaties. Copyright law and international copyright treaty provisions protect all parts of the Software and the Services available through the Site. No program, code, part, image, or text may be copied or used in any way by you except as intended within the bounds of this Agreement. All rights not expressly granted hereunder are reserved for Deskmetrics.
10. Content Rights
Deskmetrics does not claim ownership rights or control over any files or content contained in your account, submitted, posted or displayed by you through the Services. You, or the applicable third party licensor, retain all patent, trademarks, and copyright to any files and content you submit, post, or display through the Services and you are responsible for all of the files and content you upload, share or copy using the Services. You must either own all right, title and interest in and to the copyrights in the files and content or have express permission from the copyright owner to copy and use such files and content for all purposes related to the Services provided through the Site, and that such files and content do not violate or infringe upon the rights (including other intellectual property rights, privacy, moral or publicity rights) of others. You are responsible for protecting those rights. By submitting, posting or displaying any files and content through the Services on the Site, whether for private or public purposes, you grant Deskmetrics a worldwide, non-exclusive, royalty-free license to reproduce, adapt, distribute and display/publish such files and content through the Services on the Site. The Services may allow you to share your files and content with other users of the Services. Please note that when you share your files and content, you are allowing the recipients to view and share those files and content with others and/or allow them to copy such files and content. Deskmetrics reserves the right to pre-screen, refuse to accept, post, remove, display or transmit any files and content in its sole discretion.
11. Limitation of Liability/Indemnification
Information on this Site may contain technical inaccuracies or typographical errors although Deskmetrics will make commercially reasonable efforts to maintain and review all its content. Information and/or the Services available on this Site may be changed or updated at any time without notice to you. You agree to indemnify, hold harmless, and defend Deskmetrics, its employees, directors, officers, and authorized agents against any and all claims, proceedings, demand and costs (including litigation costs and attorneys’ fees) resulting from or in any way connected with (i) your use of the Site, the Software and/or the Services; (ii) any files and content that you upload through to the Site through the Services that breaches any third party intellectual property rights; or (iii) your breach of any of the terms and conditions of this Agreement. IN NO EVENT (INCLUDING, WITHOUT LIMITATION, IN THE EVENT OF NEGLIGENCE) WILL DESKMETRICS, ITS EMPLOYEES, DIRECTORS, OFFICERS, OR AUTHORIZED AGENTS BE LIABLE FOR ANY ACTUAL, CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT, SPECIAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF INFORMATION OR DATA, OR PECUNIARY LOSS), IN CONNECTION WITH OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE SOFTWARE, THE SERVICES, OR THE USE OR INABILITY TO USE THIS SITE, THE SOFTWARE OR THE SERVICES, OR THE FURNISHING, PERFORMANCE OR USE OF ANY OTHER MATTERS HEREUNDER WHETHER BASED UPON CONTRACT, TORT OR ANY OTHER THEORY INCLUDING NEGLIGENCE, EVEN IF EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE SITE, THE SOFTWARE AND THE SERVICES ARE BEING PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS WITH NO WARRANTIES EXCEPT AS OTHERWISE SPECIFIED HEREIN. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, DESKMETRICS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. DESKMETRICS DOES NOT WARRANT THAT (I) THE SITE, THE SOFTWARE OR THE SERVICES WILL MEET YOUR REQUIREMENTS; (II) THE SITE, THE SOFTWARE OR THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE, THE SOFTWARE OR THE SERVICES WILL BE ACCURATE OR RELIABLE; (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER RELATERD MATERIALS PROVIDED OR OFFERED THROUGH THE SITE OR SERVICES WILL MEET YOUR EXPECTATIONS; AND (V) ANY ERRORS IN THE SITE, THE SOFTWARE OR THE SERVICES WILL BE CORRECTED. ANY FILES AND CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH YOUR USE OF THE SITE AND THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD AND USE OF ANY SUCH FILES AND CONTENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM DESKMETRICS, THROUGH THE SITE, OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE.
13. Changes to the Terms of Service
Deskmetrics reserves the right to update and change the Terms of Service from time to time without prior notice to you. If you have registered as a user to access the Services available through the Site, we shall notify you of any material changes to the Agreement by email sent to the address that you have provided during your account registration process. It is important for you to ensure that your contact information is updated on a regular basis. Any new features that augment or enhance the current Service, including the release of new tools and resources, shall be subject to these Terms of Service. Continued use of the Service after any such changes shall constitute your consent to such changes. You can review the most current version of the Terms of Service at any time at https://www.deskmetrics.com/terms-conditions/.
14. Governing Law
This Agreement, and all claims related to it or the performance by both parties under it, shall be interpreted and governed exclusively by the laws of the Province of British Columbia and the laws of Canada applicable therein except any principles regarding conflicts of law rules and the United Nations Convention on Contracts for the International Sale of Goods. You hereby irrevocably attorn and submit to the exclusive jurisdiction of the courts of Victoria, British Columbia, and any competent Courts of Appeal therefrom. The failure of Deskmetrics to exercise or enforce at any time any of the provisions of this Agreement, or the failure to require at any time performance by you of any of the provisions of this Agreement, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect Deskmetrics’ ability to enforce each and every such provision thereafter. If any provision shall be considered unlawful, void or otherwise unenforceable, then that provision shall be deemed severable from this Agreement and not affect the validity and enforceability of any other provisions.
15. Entire Agreement
These Terms of Service (including any policies, guidelines or amendments that may be presented to you from time to time) constitute the entire agreement between you and Deskmetrics and govern your use of the Site, the Software, and Services, superseding any prior agreements, oral or written, between you and Deskmetrics with respect to the subject matter hereof. You also may be subject to additional terms and conditions that may apply when you use any other current or future Services made available through the Site.