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Services Terms and Conditions of Software


Last Updated: 04.22.2021

These service terms and conditions for Software ("Terms") are the only terms that govern the access and use of the Software (the "Services") provided by Metas, LLC ("Metas") to the Customer ("Customer") referenced in that certain Managed Label Services Agreement between Metas or Service Provider (as applicable) and Customer. References to "Service Provider" in these Terms are only applicable if Customer has entered into a Managed Label Services Agreement with a Service Provider, as an authorized reseller. The Managed Label Services Agreement (and any documents or agreements incorporated into and made a part thereof) and these Terms (collectively, this "Agreement") comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications with respect to Customer's use of the Services. These Terms prevail over any of Customer's general terms and conditions regardless of whether or when Customer submits any request for proposal, order, or terms. Provision of Services to Customer does not constitute acceptance of any of Customer's terms and conditions and does not serve to modify or amend these Terms.

  1. Definitions
    1. "Aggregated Statistics" means data and information related to Customer's use of the Services that is used by Metas in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
    2. "Authorized User" means Customer's employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Services has been purchased hereunder.
    3. "Customer Data" means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services.
    4. "Documentation" means Metas' user manuals, handbooks, and guides relating to the Services provided by Metas to Customer either electronically or in hard copy form.
    5. "Metas IP" means the Services, the Documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, Metas IP includes Aggregated Statistics and any information, data, or other content derived from Metas' monitoring of Customer's access to or use of the Services but does not include Customer Data.
  2. Access and Use.
    1. Provision of Access. Subject to and conditioned on Customer's payment of fees and compliance with all other terms and conditions of this Agreement, Metas hereby grants Customer a non-exclusive, non-transferable right to access and use the Services during the term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer's internal use. Metas shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the Services. The total number of Authorized Users will not exceed the number set forth in Appendix A to the Agreement.
    2. Documentation License. Subject to the terms and conditions contained in this Agreement, Metas hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable license to use the Documentation during the term solely for Customer's internal business purposes in connection with its use of the Services.
    3. Use Restrictions. Customer shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; or (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
    4. Reservation of Rights. Metas reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Metas IP.
    5. Suspension. Notwithstanding anything to the contrary in this Agreement, Metas may temporarily suspend Customer's and any Authorized User's access to any portion or all of the Services if: (i) Metas reasonably determines that (A) there is a threat or attack on any of the Metas IP; (B) Customer's or any Authorized User's use of the Metas IP disrupts or poses a security risk to the Metas IP or to any other customer or vendor of Metas ; (C) Customer, or any Authorized User, is using the Metas IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Metas' provision of the Services to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of Metas has suspended or terminated Metas' 's access to or use of any third-party services or products required to enable Customer to access the Services; or (iii) any failure to make any payment when due (any such suspension described in subclause (i), (ii), or (iii), a ("Service Suspension"). Metas and/ shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Metas shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Neither Metas n will have any liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences
    6. Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Metas and/ may monitor Customer's use of the Services and collect and compile Aggregated Statistics. As between Metas and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Metas. Customer acknowledges that Metas and/ may compile Aggregated Statistics based on Customer Data input into the Services. Customer agrees that Metas and/ may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer or Customer's Confidential Information.
  3. Customer Responsibilities. Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement's provisions as applicable to such Authorized User's use of the Services, and shall cause Authorized Users to comply with such provisions.
  4. Support. The access rights granted hereunder entitle Customer to the support services described in Appendix A. Customer may purchase additional support services as provided by Metas subject to a separate written purchase order.
  5. Security. 
    1. Information Security. Throughout the term of the Agreement and at all times in connection with its actual or required performance of the Services hereunder, Service Provider shall make the Services available in accordance with commercially reasonable data security requirements consistent with industry standards for services of this kind. 
    2. Data Breach Procedures. Service Provider maintains a data breach plan in accordance with the industry standard criteria and shall implement the procedures required under such data breach plan on the occurrence of a data breach.
    3. Provider Systems. Service Provider shall be solely responsible for the information technology infrastructure, including all computers, software, databases, electronic systems (including database management systems), and networks used by or for Service Provider to access and use the Customer Data and systems or otherwise in connection with the Services ("Provider Systems") and shall prevent unauthorized access to the Customer Data and systems through the Provider Systems. 
    4. Redundancy, Data Backup, and Disaster Recovery. Service Provider shall, in accordance with the provisions of this Section 5, maintain or cause to be maintained disaster avoidance procedures designed to safeguard the Customer Data and Customer's other Confidential Information, Service Provider's processing capability, and the availability of the Services, in each case throughout the term of this Agreement and at all times in connection with its actual or required performance of the Services hereunder. 
    5. Data Backup. Service Provider shall conduct or have conducted periodic backups of Customer Data and store such backup Customer Data in a commercially reasonable location and manner on at least a weekly basis. On written notice from Customer, Service Provider shall provide Customer with a copy of the backed-up Customer Data in a machine-readable format as Customer reasonably requests. 
    6. Disaster Recovery/Business Continuity. Throughout the term of this Agreement and at all times in connection with its actual or required performance of the Services hereunder, Service Provider shall maintain a Business Continuity and Disaster Recovery Plan for the Subscription Services (the "Plan") and implement such Plan in the event of any unplanned interruption of the Subscription Services. 
  6. Fees. Customer shall pay Service Provider the fees as set forth in Appendix A without offset or deduction. If Customer fails to make any payment when due, without limiting Service Provider's other rights and remedies, Service Provider may cause Metas to suspend Customer's and its Authorized Users' access to any portion or all of the Services until such amounts are paid in full.
  7. Confidential Information. Each party to this Agreement (as the "receiving party") will protect and safeguard, with the same degree of care as it protects its own confidential information, but not less than a reasonable care, all non-public, confidential or proprietary information of the other party to this Agreement (as the "disclosing party") that the receiving party receives from the disclosing party in connection with this Agreement, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (collectively, "Confidential Information"), whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked or otherwise identified as "confidential". Without the prior written consent of the disclosing party, the receiving party will not disclose, except as required by law or legal process, any of the disclosing party's Confidential Information to any person or entity other than the receiving party's employees, agents, and consultants who need to know the Confidential Information to assist the receiving party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement, and the receiving party will not use the disclosing party's Confidential Information for any purpose other than to exercise the receiving party's rights or perform its obligations under this Agreement. Confidential Information does not include information that is (a) in the public domain other than as result of the receiving party's breach of this Section 7; (b) known to the receiving party as documented by the receiving party's written records at the time of disclosure; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (d) independently developed by the receiving party without use of the disclosing party's Confidential Information. The receiving party will be responsible for any breach of its obligations under this Section 7 that is caused by any employee or agent of the receiving party.
  8. Intellectual Property Ownership.
    1. Metas IP. Customer acknowledges that, as between Customer and Metas, Metas owns all right, title, and interest, including all intellectual property rights, in and to the Metas IP.
    2. Customer Data. Metas acknowledges that, as between Metas and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to Metas and Service Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Metas to provide the Services to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics.
    3. Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Metas by mail, email, telephone, or otherwise, suggesting or recommending changes to the Metas IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), Metas free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Metas on Customer's behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Metas is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Metas is not required to use any Feedback.
  9. Warranty Disclaimer. THE METAS IP IS PROVIDED "AS IS" AND METAS HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. METAS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. METAS MAKES NO WARRANTY OF ANY KIND THAT THE METAS IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
  10. Indemnification.
    1. Metas Indemnification.
      1. Metas shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys' fees) ("Losses") incurred by Customer resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party's US patents, copyrights, or trade secrets, provided that Customer promptly notifies Metas in writing of the claim, cooperates with Metas, and allows Metas sole authority to control the defense and settlement of such claim.
      2. If such a claim is made or appears possible, Customer agrees to permit Metas, at Metas' sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Metas determines that neither alternative is reasonably available, Metas may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer.
      3. This Section 10(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Metas or authorized by Metas in writing; (B) modifications to the Services not made by Metas; or (C) Customer Data.
    2. Customer Indemnification. Customer shall indemnify, hold harmless, and, at Metas' option, defend Metas and Service Provider from and against any Losses resulting from any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party's intellectual property rights and any Third-Party Claims based on Customer's or any Authorized User's (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; (iii) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Metas or authorized by Metas in writing; or (iv) modifications to the Services not made by Metas, provided that Customer may not settle any Third-Party Claim against Metas unless Metas (as the case may be) consents to such settlement, and further provided that Metas and Service Provider will each have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
    3. Sole Remedy. THIS SECTION 10 SETS FORTH CUSTOMER'S SOLE REMEDIES AND METAS' AND SERVICE PROVIDER'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
  11. Limitations of Liability. IN NO EVENT WILL METAS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER METAS WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL METAS 'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO SERVICE PROVIDER UNDER THIS AGREEMENT IN THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
  12. Term; Termination.
    1. The term of this Agreement begins on the Effective Date of this Agreement referenced in the Managed Label Services® Agreement and continues until the expiration of the term as stated in the Managed Label Services® Agreement.
    2. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Metas IP and, without limiting Customer's obligations under Section 7, Customer shall delete, destroy, or return all copies of the Metas IP and certify in writing to Metas that the Metas IP has been deleted or destroyed.
  13. Waiver. No waiver by a party of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by the waiving party. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement operates or may be construed as a waiver thereof, no single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
  14. Force Majeure. Metas will not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Metas, including, but not limited to, acts of God, flood, fire, earthquake, explosion, governmental actions, terrorist threats or acts, war or hostilities, riot or other civil unrest, national emergency, epidemic, labor disputes, restraints or delays affecting carriers, inability or delay in obtaining supplies of materials or goods, telecommunication breakdown, or power outage. If the failure or delay continues for a continuous period of more than 90 days, a party may terminate this Agreement by written notice to the other party.
  15. Assignment. Customer may not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Metas. Any purported assignment or delegation in violation of this section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement.
  16. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and no party shall have authority to contract for or bind the other party in any manner.
  17. Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Michigan without giving effect to any choice or conflict of law provision or rule (whether of the State of Michigan or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Michigan.
  18. Submission to Jurisdiction. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States located in the Western District of Michigan or the courts of the State of Michigan located in the County of Kent, and each party submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
  19. Notices. Other than routine business communications, all notices, claims, and demands hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth in this Agreement or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
  20. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
  21. Survival. The provisions of these Terms, which by their nature should apply beyond the term of this Agreement, will remain in force after the expiration or termination of this Agreement, including, but not limited to, Sections 7, 8, 9, 10, 11, 12(c), and 16-21.
  22. Amendment and Modification. This Agreement may be amended or modified only in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party.
  23. Successors and Assigns. This Agreement is binding on and inures to the benefit of the parties to this Agreement and their successors and permitted assigns.