Terms of Service
Effective as of 25 May 2018 (Version 2)
These Terms of Service (the “Agreement”) are a legal agreement between You as the user and Devart Inc., registered under the Laws of Commonwealth of Dominica, having its registered address situated at Nancy Whiticker House, 7 Old Street, Roseau, Commonwealth of Dominica (“Devart”, or “We”, “Our”, or “Us”), that governs Your limited, non-exclusive and terminable right to the use of the TMetric Site and Services as defined herein.
If You do not agree to this Agreement, You must not sign up for an Account and shall not make use of any of the Services or the Site. By agreeing to this Agreement, You acknowledge that You have read this Agreement, understood it, and agree to be bound by its terms and conditions.
We reserve the right to amend the Agreement at any time at Our sole discretion, and without prior notice to You. We will include such modification in the Agreement, along with a notice of the effective date of such modified Agreement. All amended terms automatically take effect on the day You use the Site and/or Services, or 30 calendar days after they are initially posted on the Site, whichever date is the earliest. Your use of the Site and/or Services following the effective date of any modifications to this Agreement will constitute Your acceptance of the Agreement, as modified.
“Agreement” shall mean these Terms of Service, including any annexes thereto which form an integral part thereof and which in their totality, govern Your relationship with Devart;
“Applicable Law” shall mean the laws to which Devart is subject, particularly the Commonwealth of Dominica, where Devart is incorporated and any other laws as may be applicable from time to time;
“Data” shall mean content, Personal Data, information, know-how and confidential information relating to Your business, some of which may not be publicly available, including but not limited to technical and commercial information concerning Your, or any of Your parent company’s or subsidiaries’, business, systems, processes, software and services, as the case may be;
“Free Plan” shall mean a Subscription Plan that is provided to You by Devart free of charge;
“Identity Provider” means a system entity that creates, maintains, and manages identity information for principals while providing authentication services to relying party applications within a federation or distributed network;
“Number of Users” shall mean a reserved number of users that are allowed to access Your Service Account for any Subscription Plan;
“Personal Data” means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;
“Service Account” shall mean an account with Devart to use the Services;
“Service/s” shall mean the software as a service (SaaS) offered by Devart including all software, mobile apps, and websites developed and provided to You by Devart as further described on the Site;
“Site” shall mean the website tmetric.com, in addition to any pages in all sub-domains of the tmetric.com website;
“Subscription” shall mean the extent of the Services to which You may have access;
“Subscription Plan” shall mean one of the different subscription packages through which You can use the Services;
“Subscription Term” shall mean the period of time for which subscription to the Services shall be made available by Devart to You, subject to Your adherence to the obligations undertaken by virtue of this Agreement;
“Third Party/ies” shall mean any persons, whether legal or natural, which are neither You nor Devart;
“Trial Period” shall mean free access provided to You by Devart for a limited and established period of time, to the Services under a Subscription Plan involving payment, which shall be granted at the sole discretion of Devart, which access may be revoked by Devart at any time without need of any prior notice;
“User Account” shall mean login credentials used by You to access the Site along with Personal Data associated with these credentials;
“You” / “Your” shall mean a person, whether natural or legal, who agrees to be bound by the terms contained in this Agreement.
2. User and Service Accounts, Access and Disclosure
2.1. To benefit from Our Services, You must register a User Account by
(a) completing a registration form, by providing Us with all required information;
(b) authenticating with an external Identity Provider and giving Us consent to access Your Personal Data.
You are advised to keep Your login credentials strictly confidential and to refrain from disclosing these to anyone. We shall not be held responsible for unauthorized access to Your User Account and Service Accounts arising from Your failure to keep Your login credentials safe and secure.
2.2. A Service Account is created for You automatically during Your User Account registration, unless You are invited to use the TMetric Service by another person. In the latter case You are granted access to a Service Account owned by that person. You may create any number of Service Accounts during the course of Your business. Any such separate Service Account you own shall be governed by the terms and conditions set forth in this Agreement.
2.3. If You are using the Site or Services for and on behalf of a legal entity, You shall do so by creating a separate Service Account. If You are using the Site or Service for and on behalf of a legal entity, You shall be, and shall be presumed to be empowered by and/or properly authorized for and on behalf of that legal entity, and You and the legal entity shall be jointly and severally subject to this Agreement.
2.4. We reserve the right for Us, Our contractors or Our employees, to access Your accounts and the information that You have provided for support, maintenance and servicing purposes or for any security-related, technical or billing reasons.
2.5. It is Your responsibility to protect Your Personal Data and maintain the confidentiality of Your login credentials. You are also responsible for promptly notifying Devart of any unauthorized use of Your User Account, or breach of Your login credentials. Devart will not be liable for any loss that You may incur as a result of someone else using Your login credentials, either with or without Your knowledge. To the extent allowable by the Applicable Law, You shall be liable for any expenses, including usage charges and fines, fees, civil judgments, and reasonable attorney's fees for Your intentional or negligent failure to safeguard user and password information and/or promptly notifying Devart about any unauthorized use of Your User Account or breach of Your login credentials.
3.1. The Subscription may be different for each Service Account. The Subscription depends on the relevant Subscription Plan, Number of Users, Subscription Term and respective and timely payment of Service fees to Devart.
3.2. We offer several different Subscription Plans for Our Services. Information about Our standard plans can be found on Our Pricing page. All fees quoted on Our site are exclusive of VAT or any other taxes that may be applicable in Your jurisdiction. For additional information on Our Subscription Plans, please contact Us.
3.3. The applicable Subscription Plan depends on Your choice. By default, upon registration, Trial Period starts allowing You to test all available features and options. You can choose to change Your plan at any time. You may upgrade or downgrade Your Subscription at any time during Your Subscription Term, upon which We will apply the respective fees.
3.4. Following Your current Subscription Term, We reserve the right to amend the Subscription Plans and/or Subscription Term at any time or introduce new fees and/or subscription levels or charges. We will provide You with thirty (30) calendar days’ written notice in advance during which You will have the right to unsubscribe from, or change Your current Subscription Plan, should You not agree with these amendments.
4. Service Fees
4.1. Devart charges service fees for use of the Services under all Subscription Plans involving payment. The level of a service fee may vary according to Our current pricing policy. Your service fee depends on the Subscription Plan, Number of Users, and the Subscription Term.
4.2. Avangate Inc., which is doing business as 2Checkout, is the authorized merchant provider for Devart. We do not process Your payment details and billing information. Orders are processed by Avangate, they collect and store Your payment details and billing information for processing purposes. Avangate’s service is governed by its own Terms and Conditions.
5. Subscription Term and Renewal
5.1. Trial Period starts upon registration. The duration of the Trial Period is specified at the time of its activation. We will send you email notifications about the expiration of the Trial Period. At the end of the Trial Period, You will be able to choose whether to switch to the Free Plan or pay an applicable service fee for the continued use of the Services.
5.2. When You purchase a Subscription for a Subscription Plan involving payment, You can choose a Subscription Term (among the available options). You can enable automatic billing, and your subscription will be automatically renewed before it expires, avoiding usage interruptions. You can disable the auto-renewal option at any time.
5.3. 2Checkout sends email notifications about Your Subscription Term and renewal to the billing email address You provide during the order checkout process.
6.1. We may immediately terminate this Agreement if You do not pay the fees when due in accordance with Your Subscription Plan.
6.2. You may terminate this Agreement by requesting all of Your Service Accounts and User Accounts to be deactivated and deleted while logged into the Service. Devart may also terminate Your right to use the Site and/or Services with or without cause at any time. We shall notify You via email to Your registered email account if We terminate Your Account.
6.3. Upon expiration of the Subscription Term, or termination, howsoever occasioned, Your Subscription shall be immediately switched to the Free Plan and consequently, You may make use of the free version of the Service.
7. Service Availability
You acknowledge that 100% availability of the Site and the Services is not technically feasible. However, Devart will make its best efforts to keep the Site and the Services available in the most constant possible way. Due to special maintenance, security or capacity issues, and also to some events over which Devart may have no influence (e.g. anomalies in public communication networks, electricity cut offs, etc.), Services provided by Devart may be temporarily suspended or affected by brief anomalies.
8.1. You shall not permit Third Parties to use the Services, with the exception of clauses 2.2 and 2.3 above, including but not limited to shared use via a network connection, except under the terms of this Agreement.
8.2. You shall not reverse engineer the Site and/or the Service, or access the Site and/or the Service in order to build a competitive product or service, or copy any features, functions or graphics of the Services. This Site or any portion of this Site may not be reproduced, duplicated, copied, sold, resold, or otherwise exploited for any commercial purpose. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form). You shall not use the Service in any manner or for any purpose that violates any law or regulation, any right of any person, including but not limited to intellectual property rights, rights of privacy, or rights of personality, or in any manner inconsistent with this Agreement.
9. User Content
You agree that all information, data, text, sound, photographs, graphics, video, software, or other materials submitted, posted or displayed by You on or through the Site is your sole responsibility. Devart claims no ownership or control over any user content. By submitting, posting or displaying user content on or through the Site, you grant Devart a worldwide, non-exclusive, royalty-free, transferable license to use, reproduce, and adapt, such user content to provide the Services to You. By submitting, posting or displaying user content which is intended to be shared or made available to the general public, You grant Devart a worldwide, non-exclusive, royalty-free license to reproduce, adapt, distribute and publish such user content through the Site and for the purpose of promoting Devart and its services.
10. Proprietary Rights
10.1. Except as otherwise stated herein, all rights, titles and interest in the Site and/or the Services and any content contained therein is the exclusive property of Devart. Unless otherwise specified, the Services are for Your limited use only, and if You copy or download any information from this Site and/or Service, You agree that You shall not remove or obscure any copyright or other notices or legends contained in any such information.
10.2 You agree that Devart will have access to some of Your Data in the course of performing the Services. All rights, title and interest in the Data are Your exclusive property, except as otherwise provided for herein throughout this Agreement.
11. Limitation of Liability
Devart shall not, under any circumstances, be liable to you for any indirect, incidental, consequential, special or exemplary damages arising out of or in connection with use of the site or the service, whether such damages are based on breach of contract, breach of warranty, or any other pecuniary loss, whether or not it has been advised of the possibility of such damages. Under no circumstances shall Devart be liable to you for any amount. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations may not apply to you.
12. Data Retention
Devart commits to securely storing data on behalf of Our customers in accordance with their Subscription Plan and time frames corresponding to each Subscription Plan. All data exceeding the stated time frame will be routinely and automatically deleted from Our systems.
The Site and/or Services may include links to certain websites, materials, or content developed by Third Parties. Devart has not reviewed all of the sites linked to its Site and/or Services and shall not be responsible for the contents of any such linked material. The inclusion of any link does not imply endorsement by Devart of such material, and Devart shall not be held liable in respect of any links contained therein. Use of any such linked material shall be at Your own risk. Devart reserves the right, at its sole and absolute discretion, to remove links to any other material at any time and for any reason.
Unless You specifically withdraw Your consent to this clause by sending an email at firstname.lastname@example.org, You hereby acknowledge and consent to Devart making use of any of Your marks, logos and trade names to identify You as TMetric user/customer on TMetric Site and/or Services, in addition to any other marketing material.
15. Release and Waiver
To the maximum extent permitted by Applicable Law, You hereby release and waive all claims against Devart, and its employees, or other partners from any and all liability for claims, damages (actual and/or consequential), costs and expenses (including litigation costs and attorneys' fees) of every kind and nature, arising from or in any way related to Your use of the Site or the Services.
16. Relationship of the Parties
Subject to the contrary set forth herein, nothing contained in this Agreement shall be interpreted or construed to create a partnership, agency, single employer, joint employer or any other type of employment relationship between the parties hereto, or to impose liability attributable to such relationship upon either party. Neither party will have any right, power or authority to enter into any agreement on behalf of, to incur any obligation or liability of, or to otherwise bind the other party.
17. Minimum age of users
All Users of Devart’s Services must be at least 18 years of age and older than the age of legal majority in Your jurisdiction (if it is over 18). By using the Service you confirm that you are over 18 years of age and are a competent legal adult in Your jurisdiction.
ALL INFORMATION CONTAINED ON THE TMETRIC SITE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, AND DEVART SPECIFICALLY DISCLAIMS ALL WARRANTIES, CONDITIONS OR OTHER TERMS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES, CONDITIONS OR OTHER TERMS OF MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. ADDITIONALLY, IN NO EVENT WILL DEVART BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR USE, INCURRED BY YOU OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, ARISING FROM YOUR ACCESS TO, OR USE OF, THIS SITE OR ANY OTHER HYPERLINKED WEB SITE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY. DEVART RESERVES THE RIGHT TO MAKE CHANGES OR UPDATES TO THIS SITE OR THE SERVICES OR PROGRAMS DESCRIBED IN THIS SITE AT ANY TIME WITHOUT NOTICE.