xMatters Free Terms and Conditions.
Use of xMatters Free constitutes acceptance of these terms and conditions
Your use of the free, cloud based, hosted software-as-a-service of xMatters (“xMatters Free”), is expressly subject to these terms and conditions of service and creates a binding contract with xMatters (the “Agreement”). The Agreement becomes effective when you electronically and affirmatively assent to this Agreement upon registration of your account with xMatters to use and access xMatters Free.
This Agreement applies only to xMatters Free, which is a free product offered by xMatters that showcases some of the features of the paid subscription products offered by xMatters. Subscription products are governed by either the Hosted Services Policy (https://www.xmatters.com/policy/hosted-service-subscription-policy/), or a separately negotiated Hosted Services Agreement, as applicable.
Who are You?
The client is you (“You”) and/or the organization or company for whom you represent (“You” or the “Client”) in assenting to this Agreement.
If you registered an account using your corporate email domain, your organization is the Client, and the Client can modify and re-assign roles on your account, including your role, and otherwise exercise its rights under the Agreement. If Client elects to replace You as the Client representative with ultimate authority for the account, we will provide You with notice following such an election, and You agree to take any actions reasonably requested by us to facilitate the transfer of authority to a new representative of the Client.
If You use a personal email address to sign up for xMatters Free, You will still be considered a representative of the company or organization for whom You use xMatters Free. This means that your company or organization will be subject to this Agreement. By registering for an xMatters Free account, You represent and warrant that you have the requisite legal authority to contract on behalf of your company or organization.
How long can You use xMatters Free?
xMatters makes its Hosted Service available to You based on the terms in this Agreement. During the period of your access and use of xMatters Free (“Free Term”), and subject to your compliance with this Agreement, You are granted a worldwide, fully-paid, royalty-free, limited-term, non-sublicensable, non-transferable and non-exclusive license to access and use xMatters Free for internal business purposes. The Free Term commences when you register or open your xMatters Free account and agree to the terms and conditions of this Agreement and continues until You, the Client, or xMatters terminates the Agreement.
xMatters can terminate this Agreement at any time if You breach its terms and conditions. We will give you five (5) days’ notice if we discover that You have breached this Agreement and that we intend to terminate your access. We may also terminate your account and therefore this Agreement in the event of non-use or abandonment of your account.
You can terminate this Agreement at any time by closing your account or otherwise giving xMatters notice of your intent to terminate the Agreement. Following termination, we will delete your Client Data (defined below) within sixty (60) days.
What are Your responsibilities when using xMatters Free?
You are responsible for any equipment needed for your connections and applications. We are responsible for ours. You agree to use xMatters Free service in compliance with the laws as related to telecommunications, anti-spam, do not call, and any other applicable law. You cannot resell, sublicense, lease, time-share or otherwise make xMatters Free available to third parties other than explicitly stated in this Agreement. You cannot use xMatters Free to send or store unlawful material or material containing software viruses, worms, Trojan horses or similar harmful code, files, scripts, agents or programs. You further cannot use xMatters Free to impersonate someone or something when sending messages. You agree to not modify, copy or create their own similar systems based on xMatters Free (this includes attempts to reverse engineer the service or access it for the purpose of building a competitive product).
Because it is so important, we are going to state it again: under no circumstances may You use xMatters Free for competitive purpose. Any attempt to do so will be a material breach of this Agreement, and will be subject to further legal action, including but not limited to preliminary injunctive relief. You agree that if we prevail in any legal action, You will pay our attorneys’ fees and other costs related to litigation.
How does xMatters get and use my data?
As the Client, You will supply xMatters with your information (“Client Data”) in order to access the functionality of xMatters Free. By accessing the service and providing the Client Data and Information, You are warranting that this information is true and accurate, and that You have authorization to provide the Client Data to xMatters. In the event the Client Data is inaccurate, and/or You do not have authorization to provide the Client Data to xMatters, You agree to indemnify xMatters for any third party claims arising from Your provision of the Client Data and/or Your use of xMatters Free. Please ensure that You have all requisite legal authority to provide Client Data to xMatters Free prior to any provision of Client Data.
What is included with xMatters Free?
You can get a comprehensive description of the features of xMatters Free, as well a comparison with our subscription products, at https://www.xmatters.com/pricing, which will be updated from time to time, as we reserve the right to modify or even discontinue xMatters Free in our sole discretion. There is no service level agreement applicable to xMatters Free, and customer support services for xMatters Free are limited to Community Support, which is defined and described at (https://www.xmatters.com/policy/client-support/). It is also important to note that SMS messaging, phone alerts, and conference calling are not included with xMatters Free. Please see our messaging policy at https://www.xmatters.com/policy/message-rates/ for further details.
Representations, Warranties, Indemnifications, and Limitations of Liability
You and xMatters represent that each have the legal power to enter into this Agreement and will comply with all applicable laws when performing under this Agreement. xMatters makes no other warranty, including any implied, statutory or any other warranties, including warranties of merchantability or fitness for a particular purpose. xMatters is providing xMatters Free at no charge, as-is and doesn’t warrant that the operation of xMatters Free will be uninterrupted or free of errors.
xMatters defends, indemnifies and holds You and your officers, directors, employees and agents harmless against any loss, damage or costs – including reasonable attorney fees – incurred in connection with claims, demands, suits, or proceedings made or brought against you by a third party alleging that use of our service contemplated under this Agreement (i) violates any applicable law or regulation or (ii) infringes the intellectual property rights of the third party, provided that the You promptly provide written notice of the claim to xMatters. The latter represents xMatters’ sole obligation and the Client’s sole remedy respecting infringement or misappropriation of third-party intellectual property rights.
You agree to defend, indemnify and hold xMatters, its affiliates and each of their officers, directors, employees, and agents harmless against any loss, damage or costs – including reasonable attorney fees – incurred in connection with claims made against xMatters or its affiliates by a third party alleging that the Client Data created and stored by You in the service or otherwise provided to xMatters by You in connection with this Agreement (i) violates any applicable law or regulation; (ii) violates any third party’s privacy rights; or (iii) infringes any patent, copyright or other intellectual property right of a third party, provided that xMatters (a) promptly gives the You written notice of the claim (provided that the obligations under this section shall not be reduced by the failure to give such notice except to the extent that the Client is materially prejudiced by such failure); (b) gives the You sole control of the defense and settlement of the claim (provided that You may not settle any claim unless it unconditionally releases xMatters of all liability and obligation); and (c) provides You, at the your cost, all reasonable assistance.
EXCEPT FOR THE CLIENT’S INDEMNIFICATION OBLIGATIONS SET FORTH IN THIS SECTION, OR EITHER PARTY’S BREACH OF THE CONFIDENTIALITY OBLIGATIONS ALSO SET FORTH HEREIN, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT OF ANY SUBSCRIPTION FEES PAID DURING THE PRECEDING TWELVE (12) MONTHS.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL XMATTERS OR ITS LICENSORS OR SUPPLIERS HAVE ANY LIABILITY TO THE CLIENT FOR ANY LOST PROFITS, OR FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED, AND WHETHER IN CONTRACT, TORT, OR ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT XMATTERS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
In this Agreement, “confidential information” means all confidential and proprietary information of a disclosing party disclosed to the receiving party. Confidential information doesn’t include information that: (i) is or becomes generally known in a way that does not breach any obligation owed to the disclosing party; (ii) was known to the receiving party prior to its disclosure by the disclosing party without breaching any obligation owed to the disclosing party; (iii) was independently developed by the receiving party without breaching any obligation owed to the disclosing party; or (iv) is received from a third party without breaching any obligation owed to the disclosing party. The receiving party must not disclose the disclosing party’s confidential information for any purpose outside the scope of this Agreement, except with prior written consent from the disclosing party. Upon any termination of this Agreement, the receiving party shall continue to maintain the confidentiality of the disclosing party’s confidential information and, upon request and to the extent feasible, return to the disclosing party or destroy (at the disclosing party’s election) all materials containing the confidential information.
General and Additional Terms
No Amendment or Waiver. No amendment or waiver of any provision of this Agreement will be effective unless it is in writing and signed by the You and xMatters. To the extent that there is any conflict between this Agreement and any other schedule or attachment, this Agreement shall prevail unless expressly stated otherwise. This Agreement represents the entire Agreement among the parties, and supersedes all prior or contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.
Force Majeure. Neither You nor xMatters will be liable by reason of any failure or delay in the performance of obligations hereunder on account of events beyond the reasonable control of the party affected, which may include denial-of-service attacks, failure by a third-party hosting provider or utility provider, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action.
Choice of Law, Jurisdiction, and Venue. This Agreement is governed exclusively by the internal laws of the state of California, without regard to its conflicts of laws rules. Any dispute arising under this Agreement can only be brought in the courts located in Contra Costa County, California. The United Nations Convention on Contracts for the International Sale of Goods does not apply. Please send all legal notices to xMatters, inc., ATTN: Legal Counsel, 12647 Alcosta Boulevard, Suite 425, San Ramon, California 94583.