KeyMetric "Software as a Service" End User License Agreement (EULA)

Updated: September 1, 2020



The following are the terms and conditions, for the use of any proprietary KeyMetric 'Software as a Service' (hereinafter "Services"), between KeyMetric, Inc. (hereinafter "KeyMetric") and you (either an individual or a legal entity that you represent as an authorized employee or agent) (hereinafter "Customer").

Unless otherwise agreed to in writing by KeyMetric and Customer, your agreement with KeyMetric shall include the terms of any legal notices and/or License Agreement updates applicable to the Services (hereinafter “Additional Terms”), in addition to this End User License Agreement (hereinafter "EULA"). This EULA, in addition to any Additional Terms, form a legally binding agreement between Customer and KeyMetric.

1. Accepting These Terms: In order to use the KeyMetric Services, Customer must read, and agree to be bound by the terms and conditions of this EULA. By selecting the "I accept" checkbox, and/ or completing the registration process (hereinafter "Registration"), and/ or by using any KeyMetric Services, you are stating that you are eligible for an account and that you have reviewed, and agree to be bound by the terms and conditions of this agreement. KeyMetric Services are available to Customer conditional to the acceptance of this Agreement, without modification of the terms, conditions, and notices contained herein.

2. Licensed Services: KeyMetric shall provide the Services contracted by Customer, as established during Registration and subsequent use of the Services. KeyMetric may, at its sole discretion utilize third parties, subsidiaries, and affiliated legal entities (hereinafter "Third-Party Services") to provide Services under this Agreement. Customer grants KeyMetric the exclusive right to transfer KeyMetric rights herein to such Third-Party Services, solely to the extent necessary to provide the Services and provided that KeyMetric shall remain responsible for the performance of any such Third-Party Services.

KeyMetric reserves the right to modify or discontinue, temporarily or permanently, all or part of the Services to the extent that such Services are discontinued to KeyMetric Customers as a whole, where KeyMetric shall provide thirty (30) days prior written and/ or electronic notice; except in such case where KeyMetric has not received advanced notice from a Third-Party Service regarding the modification or discontinuation of any Services. In such case, KeyMetric shall provide Customer notice of any such discontinuation or termination of a Service, in whole or in part, within twenty-four (24) hours; where actual termination date is determined by the Third-Party Service. If KeyMetric modifies or discontinues all or part of the Services, the fees associated shall be modified or discontinued.


2.1. Nonexclusive License Grant: Subject to all the limitations and restrictions contained herein and during Registration, KeyMetric grants Customer a limited, revocable, non-exclusive and non-sublicensable license to access and use the Services solely for their business, or as authorized by KeyMetric for a third party’s business. Customer may remotely access, view and download Customer data, transactions, and reports. Customer will not, and will not allow any third party to (i) copy, modify, adapt, translate or otherwise create derivative works of the Services, documentation, or other KeyMetric Intellectual Properties; (ii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Services; (iii) rent, lease, sell, assign or otherwise transfer rights in or to the Services; (iv) remove any proprietary notices, branding, or labels used with the Services; (v) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Service; or (vi) use data labeled as belonging to a third party in the Services for purposes other than generating, viewing, and downloading reports. Customer agrees to comply with all applicable laws and regulations in Customer use of, and access to the Services and documentation.

2.2. Services Updates: Customer accepts that the Services may, from time to time and/ or at regularly scheduled intervals, undergo automated updates designed to enhance, improve, remedy, and/or extend the Services. Customer agrees to receive such updates and permit KeyMetric to update the Services, at will, as required.


3. Use of Services: Customer agrees that to use the Services, they will be required to provide information about yourself and/or your business and/ or a third party business as part of the Registration, and/ or as part of the continued use of the Services. Customer agrees that the information provided shall be accurate, correct, and up-to-date. Customer agrees to use the Services only for the purposes authorized and permitted by this Agreement.


3.1. Use Restrictions: Customer agrees not to access or attempt to access, through mechanical or non-mechanical methods, any of the Services by any means other than as authorized herein, and through the User Interface(s) and/ or applications provided by KeyMetric, unless expressly authorized to do so in writing through agreement with KeyMetric (e.g., KeyMetric API Agreement). Customer agrees not to access, or attempt to access any of the Services through automated means including use of scripts or other methods. Customer must use the Services in accordance with applicable laws and the terms of this Agreement. Customer shall not engage in any activity that knowingly interferes with the Services or KeyMetric customers, including but not limited to objectionable activity, phishing, denial of service, collusion, reverse proxy, or other activity considered malicious and/or suspicious. If Customer is determined by KeyMetric to misuse or abuse the Services, KeyMetric may, without limiting other rights or remedies, immediately and without notice limit Customer access, and/or suspend, and/ or terminate Customer access to the Services.

3.2. Right to Use Data: Customer warrants to, and grants KeyMetric the right to use, to the extent necessary for KeyMetric to deliver the contracted Services, all materials, data (including events, transactions, call-to-actions, conversions, sales, costs, bids, transcripts, tags, notes, and other data) and information provided to, or accessed by KeyMetric in connection with the Services. In addition, it is the exclusive responsibility of Customer to obtain all necessary consents from any third parties receiving messages via the Services, and to monitor and control all messages delivered through the Services.


4. Term & Termination: Unless otherwise agreed to in writing by KeyMetric and Customer, this Agreement shall be effective as of the date of acceptance by Customer, and/ or the date of first usage of Services by Customer, and shall continue on a month-to-month basis until terminated by Customer or KeyMetric.


4.1. Termination by Customer: Customer notifies KeyMetric of its intent to cancel the Services, prior to the commencement of a new billing cycle (hereinafter "Billing Cycle") (see section 6.2), through the "Cancel Account" functions of the User Interface, or via email to support@keymetric.net, or via telephone or chat communication; where KeyMetric shall suspend the services on conclusion of the then current Billing Cycle, and where Customer shall discontinue all use of the Services.

4.2. Termination by KeyMetric: Customer fails to maintain the account in good standing, and KeyMetric suspends and/or terminates the Services; or KeyMetric terminates the Services for non-payment, or malicious or other unauthorized usage. In addition, KeyMetric may suspend or terminate Customer use of any Services immediately in a particular jurisdiction if KeyMetric determines, in its reasonable discretion, that the Services cannot be provided, or, based on Customer conduct, is not being provided, in accordance with applicable laws.

4.3. Effect of Termination: Upon termination of the Services, Customer shall no longer access the Services and Customer shall not circumvent any security mechanisms of the Services.


5. Fees & Services: Fees for the Services are indicated during the time of Registration and/or at any time Customer agrees to add, change, alter, or provision any additional Services. All account license fees, usage fees, overage fees, per unit and/or per transaction fees, per minute fees, per lookup fees, per data transfer fees, or other per-event charges shall be billed at the contracted rates for such Services, as determined at the time of Registration and /or at such time Customer adds, alters, provisions or executes such Services.

Customer acknowledges that the KeyMetric Services are billed on a "per account" license basis with Customer-optional additional usage and/ or overage fees; where an account is defined as any unique group of website properties, landing pages or apps that are accessed and administered under a single account billing profile, typically with a unique username and password. Unless otherwise agreed to in writing by KeyMetric and Customer, KeyMetric reserves the right, in its sole discretion, to change its rates for any Services. Any such changes in rates or fees for the Services shall be provided to Customer, in writing through the User Interface and/ or via email, with a minimum of thirty (30) days advance notice.

6. Payment & Invoicing: With the exception of the fees for the first month of Services, which are payable upon completed Registration and execution of this Agreement, Customer shall pay all fees and appropriate taxes to KeyMetric according to the payment terms defined herein, through their associated User and Billing Account (hereinafter referred to as "Account") using the authorized Customer credit card(s) provided in the Billing and/ or Payment Information section and assigned to their Account. KeyMetric may, at its discretion, use third party billing and financial management providers (i.e., credit card processing).


6.1. Subscription License Fees: Customer shall pay KeyMetric subscription license fees (hereinafter “License Fees”), in advance, as contracted at the time of Registration, and/ or at the time Customer adds any additional Services. License Fees shall be billable, in advance, on the first calendar date of a new Billing Cycle.

6.2. Payment Billing Cycle: A Billing Cycle shall commence on the calendar date Customer completed Registration, and/ or first remitted payment for the Services, and renew on the same calendar date each subsequent month, until such time the Services are cancelled or terminated by Customer or KeyMetric. In cases where a Customer completes Registration on the 31st day of a calendar month; the Billing Cycle shall terminate on the last calendar day of each month regardless the calendar date.

6.3. Invoices: KeyMetric shall regularly submit, via the User Interface and/ or to the email address provided for the Customer Account, a billing invoice (hereinafter referred to as "Invoice") for all Services, License Fees, overage fees, and charges to the Customer within forty-eight (48) hours of the end date of the Billing Cycle. All License Fees, telephone number fees, added Service fees, change fees, per-minute package fees, and other fixed-cost fees, including any applicable Third-Party Service fees, shall be invoiced and payable in advance, for the then current Billing Cycle. All actual usage charges and overage charges, including but not limited to additional or overage minute fees, messaging fees, transaction fees, texting fees, transcription fees, Third-Party Service taxes, and any Service change or upgrade fees shall be invoiced and payable in arrears for the then previous Billing Cycle.

6.4. Payments: Customer authorizes KeyMetric to recurrently charge the total cost amount of each Billing Cycle Invoice to the authorized Customer credit card(s) assigned and registered to the Customers Account. Unless otherwise agreed to in writing by KeyMetric and Customer, in the event that the Customer credit card(s) cannot be authorized by KeyMetric after three (3) attempts, all Services will be immediately suspended until all outstanding Invoices and fees are paid in full. In such event where the Customer account remains suspended for a period of fifteen (15) days, and unless the Customer has received written exception from KeyMetric, the Customer account shall be considered delinquent and terminated accordingly. After thirty (30) days, unless the Customer has received written exception from KeyMetric, all account data, transaction data, event data, and other Services data shall be permanently deleted by KeyMetric. Any undisputed fees, taxes, or other amounts not paid in full when due will be subject to finance charges equal to one and one-half percent (1.5%) per month or the highest rate permitted by applicable usury law, whichever is less, determined from the initial Invoice due date until the date the Invoice is paid in full. If Customer has reason to believe there is an error with an Invoice, Customer has thirty (30) days from the date of Invoice in which to notify KeyMetric at the email address billing@keymetric.net. If Customer does not inform KeyMetric within this timeframe, the Invoice and all billing shall be established as accurate and shall no longer be disputable.

6.5. Telephony Porting Fees: KeyMetric does not charge any fees to any Customer who ports (transfers) toll-free and/ or local phone numbers from another telephony provider or service to KeyMetric. KeyMetric allows a maximum of fifty (50) toll-free and/ or local phone numbers to be ported (transferred) from KeyMetric to another telephony provider or service without a porting charge. Each additional toll-free and/ or local phone number over fifty (50) ported from KeyMetric to another telephony provider or service will incur a Porting Administration Fee of three dollars ($3.00 USD) per phone number, which is charged to KeyMetric by its third party telephony service providers. These fees are payable and due prior to KeyMetric authorizing the porting/ transfer request.


7. Taxes & Other Fees: Customer shall be responsible for, and shall pay all applicable foreign country, federal, state, provincial, local, county, and/ or municipal taxes, fees, surcharges, and other similar exactions including, but not limited to, such things as sales and use taxes, utility user fees, municipal occupation and license taxes, excise taxes, business and occupation taxes, 911 taxes, franchise fees, telephone surcharges, advertising fees, and universal service fund fees, or taxes (collectively referred to as “Taxes”) imposed on, or with respect to the Services whether such Taxes are imposed directly upon Customer or upon KeyMetric. For purposes of this section, unless otherwise agreed to in writing by KeyMetric and Customer, Taxes shall be calculated on the full amount of the Invoice amount.

8. No Resale or Assignment of Services: Customer acknowledges that this Agreement is not a license to resell or redistribute any KeyMetric Services, in whole or in part, or act on behalf of KeyMetric as an agent, employee, partner, or infer any association with KeyMetric other than the Customer relationship determined by this Agreement.

9. Telephony Services, Toll-Free and Local Phone Numbers: All toll-free (TFN) and local (DID) phone numbers used and provisioned in connection with the Services are and shall always be considered exclusive intellectual property of KeyMetric and /or its contracted Third-Party Services. Subject to terms of this Agreement, KeyMetric grants Customer a non-exclusive, non-transferable, limited license, without right of sublicenses, to access and use each KeyMetric phone number solely in connection with KeyMetric Services. Upon termination of the Services, Customer agrees to promptly cease and desist all use of KeyMetric phone numbers and Services, and all lawful customer of record rights, including management, control, portability, routing, directing, and shared-use or market-specific licensing rights to all phone numbers administered and/or provisioned by KeyMetric shall revert to KeyMetric. Customer agrees that from time to time, phone numbers may be discontinued by Third-Party Services, and removed from their account. KeyMetric shall not he held liable by Customer for these occurrences which are beyond the administration of KeyMetric.

10. Customer Responsibilities: Customer agrees to the following:


10.1. Setup, Implementation and Installation: Customer is solely responsible for correctly setting up, implementing, installing, testing, and maintaining its KeyMetric Accounts, Services, connections, terminations, redirects, and integrations across internal and published domains, subdomains, and environments and maintaining the confidentiality of all usernames and passwords to these Accounts.

10.2. Phone Number Testing: Before using or publishing any phone numbers in connection with the Services, Customer agrees to confirm that the phone numbers are active and will test the phone numbers for accuracy of ad source, campaign, connection and redirection, and termination (point-to). Additionally, any changes to phone numbers, including but not limited to point-to redirects, shall be tested and confirmed by Customer to be active, accurate, and working. KeyMetric shall not be held liable by Customer for any issues with any phone number connections and/ or terminations due to Customer error.

10.3. Phone Number Connection, Redirection and Termination: Customer is solely responsible and liable for managing, testing and auditing the connection, redirection and/ or termination of all inbound phone calls and/ or text communications in connection with the Services, and is responsible for all per minute, per transaction, per text, and/ or other actual usage charges regardless of any errors or inefficiencies in the connection, redirection of termination of inbound calls in connection with the Services as a result of Customer account settings, Customer systems, Customer processes or other Customer error.


11. Data Retention & Storage: KeyMetric shall not retain Customer Account transactional data, including but not limited to, phone call data, interaction data, engagement data, visitor data or any other Data beyond a period of thirty-six (36) months from the initial date of generation, aggregation and/ or processing of such data. After thirty-six (36) months, Customer Account transactional data shall be deleted from the KeyMetric Services and no longer available to Customer.


11.1. Call Recordings: Call recordings shall be available through the Services to Customer for a period of thirty (30) days from the date of the call.


12. Privacy & Compliance: KeyMetric may use personally identifiable information provided by Customer and/or its customers (such as names and contact information) to provide Services to Customer as part of aggregated materials. KeyMetric may, from time to time, provide information to Customer to assist in complying with applicable laws regarding the use of the Services. KeyMetric provides this information as a courtesy only, and assumes no responsibility or liability regarding its completeness, accuracy, or applicability to particular circumstances.


12.1. Data Privacy: KeyMetric commits to utilizing industry-standard practices, processes and technology to protect the privacy of Customer data. KeyMetric will utilize commercially reasonable administrative, technical, and physical safeguards to protect against potential threats, including but not limited to denial of service.

12.2. Public Privacy Policy: Customer agrees to post a Privacy Policy on their website, app, or business content providing public notice regarding the use of first and/ or third party cookies that are used by the Services to collect traffic, visitor, and transactional data.

12.3. Account Security and Passwords: Customer agrees that they are solely responsible for maintaining the confidentiality of all usernames and/or passwords associated with any Account used to access the Services. Customer agrees that they are solely responsible to KeyMetric for all activities that occur under their Account. If at any time Customer becomes aware of any unauthorized use of their Account and/or username or password associated with their Account, they agree to immediately notify KeyMetric by email or telephone.


13. Additional Information Regarding GDPR for Resident of the European Union: The General Data Protection Regulations (GDPR) is a legal framework that sets guidelines for the collection and processing of personal information of individuals within the European Union (EU). KeyMetric has initiated ongoing efforts to ensure compliance with the privacy and security guidelines of GDPR. This includes actively working with third-party vendors, affiliates, customers, and other integrated third-party services that are categorized as either Processors or Controllers under GDPR definition.

Under GDPR, KeyMetric is considered both a Controller and a Processor. As a Controller, KeyMetric collects personal information provided directly by individuals when requesting information on any KeyMetric Services. As a Processor, KeyMetric collects personal data collected under use of the Services including, but not limited to, information regarding KeyMetric customers or customers to a third party using KeyMetric Services.

KeyMetric, and all its connected data systems are established in the United State of America (USA). Any personal data processed and stored by KeyMetric is transferred using industry-standard security processes and protocols. For personal data for which KeyMetric is a Processor, KeyMetric transfers personal information, only in order to provide KeyMetric Services, only to third parties as documented by our approved list of third party sub-processors or as protected under the KeyMetric Data Processing Agreement.

Individuals within the EU maintain the right to review, correct or erase any personal information processed and stored by KeyMetric, and maintain the right to refuse any direct marketing or promotional outreach by KeyMetric. To request review, correction or erasure of personal information processed by KeyMetric please contact our Privacy Team at privacy@keymetric.net.

14. Additional Information Regarding CCPA for Resident of the State of California: The California Consumer Privacy Act (CCPA) is a legal framework designed to enhance the privacy rights and consumer protections for residents of the State of California; allowing for the review and removal of personal information a company may have saved on them, and to control the sale, resale and/ or distribution of such data. KeyMetric has initiated ongoing efforts to ensure compliance with the privacy and security guidelines of CCPA. This includes actively working with third-party vendors, affiliates, customers, and other integrated third-party services.

KeyMetric collects personal information provided directly by individuals when requesting information on any KeyMetric Services. Additionally, KeyMetric may collect personal data under use the Services including, but not limited to, information regarding KeyMetric customers or customers to a third party using KeyMetric Services. KeyMetric does not, under any condition, sell or resell personal consumer information. KeyMetric may transfer personal information, in order to provide KeyMetric Services, only to authorized third parties as documented under the KeyMetric Data Processing Agreement.

KeyMetric, and all its connected data systems are established in the United State of America (USA). Personal data processed and stored by KeyMetric is transferred using industry-standard security processes and protocols.

For personal data for which KeyMetric is a Processor, KeyMetric transfers personal information, only in order to provide KeyMetric Services, only to third-parties as documented by our approved list of third-party sub-processors or as protected under the KeyMetric Data Processing Agreement.

Individuals residing within the State of California maintain the right to review, correct and/ or request the deletion of any personal information processed and stored by KeyMetric, and maintain the right to refuse any direct marketing or promotional outreach by KeyMetric. To request review, correction or erasure of personal information processed by KeyMetric please contact our Privacy Team at at privacy@keymetric.net.

15. Representation of Warranties: Under applicable law, KeyMetric along with its affiliates, partners, officers, directors, employees, contractors, and representatives disclaims all warranties and conditions, either express or implied, including but not limited to implied warranties and/or conditions of merchantability, title, merchantable quality, accuracy, inclusiveness, and fitness for Customers particular purpose with respect to the Services and Information. Customer agrees that KeyMetric provides no warranty against interference with the performance of the Services, or against infringement. Without limitation of the foregoing, KeyMetric does not warrant that all Customer transactions, events, messages, phone calls, or leads will be received, recorded, monitored, divulged, or saved as part of the Services. Customer will not have the right to make any representation of warranty on behalf of KeyMetric to any users of third parties.

16. Indemnification and Limitation of Liability: Each party (hereinafter referred to as “Indemnitor”) shall hold the other party (hereinafter referred to as “Indemnitee”) harmless from and against any and all loss, liability, damage, and expense (including reasonable attorneys’ fees) arising from the claims of any third parties for damages arising out of the Indemnitors inappropriate or illegal conduct; failure to comply with applicable law; failure to obtain rights to information shared with KeyMetric Services or Customer Systems in connection with this Agreement, or; the misuse or abuse of KeyMetric Services or KeyMetric and Customer Information. In such case, the Indemnitors obligation to indemnify the Indemnitee from any such claim will require that the Indemnitee notify the Indemnitor, in writing and sent via certified mail, of any claim as to which the indemnification will be sought and provide Indemnitor reasonable cooperation in the defense and settlement thereof. The Indemnitor will have the exclusive right to defend any such claim, and the Indemnitee may not negotiate, settle, or compromise such claim without the prior written consent of the Indemnitor.

Except in connection with breaches of confidentiality obligations, gross negligence, or willful misconduct of either party (hereinafter referred to as "Exclusions"), neither party shall be liable to the other party for any amounts greater than the total fees incurred by Customer under this Agreement during the one (1) month Billing Cycle immediately preceding the event giving rise to such liability. In no event shall either party be liable for any indirect, consequential, special, incidental, reliance or punitive damages of any kind or nature, including, but not limited to any lost profits, lost revenues, marketing or advertising costs, lost savings, or harm to business. Each party hereby releases the other party, its subsidiaries, affiliates, Customers, and third parties and their officers, directors, managers, employees, and agents from any such claim to the extent excluded by the foregoing Exclusions mentioned herein.

KeyMetric shall defend, indemnify, and hold Customer, Customer affiliates, and Customer customers harmless from and against any and all claims, actions, damages, liabilities, payments made in settlement, costs and expenses, including reasonable attorney’s fees and expenses, arising out of or in connection with any claim of infringement of any patent, patent published or pending, trade secret, copyright, trade name, trademark, service mark, or similar proprietary right of a third-party related to any Services provided by KeyMetric (hereinafter referred to as “Infringement Claim”). In the event of such Infringement Claim, Customer shall promptly notify KeyMetric, in writing, where KeyMetric shall control the response thereto and the defense thereof, including, without limitation, any agreement relating to the settlement thereof. If an injunction or order is obtained against Customer’s continued use of the KeyMetric Services due to the Infringement Claim, KeyMetric shall, at its expense, either procure the Customer the right to continue using the infringing Services or replace or modify the infringing Services so that they become non-infringing, provided that any such modification or replacement does not adversely affect the functional performance or Customer’s use of the Services.

17. Third Parties: Customer agrees that, in such case where Customer is using the KeyMetric Services on behalf of a third party, or a third party otherwise uses the KeyMetric Services through the Customer Account, whether or not Customer authorized the third party to do so, that Customer represents and warrants that (i) Customer is authorized to act on behalf of, and bind to this Agreement, the third party to all terms and conditions and obligations of this Agreement; (ii)Customer agrees to be liable for all fees and costs associated with the Customer Account; (iii) Customer authorizes KeyMetric to share with the third party any data that is specific to the third party’s business; and (iv) Customer will not disclose third party’s data to any other party without the third party’s consent.

18. Force Majeure: In the event that KeyMetric performance under this Agreement is delayed, prevented, obstructed on inhibited because of any act of God, force of nature, or governmental action or any other cause beyond KeyMetric reasonable control (hereinafter referred to as “Force Majeure”), KeyMetric will not be in default of this Agreement; provided, however, that KeyMetric exercise commercially reasonable efforts to prepare for, perform in spite of and resume performance after the Force Majeure event. In the event of Force Majeure that materially impacts performance for ten (10) business days or more, either party may terminate the affected Services without penalty or further obligation upon written notification to the other party. During a Force Majeure Event, all Customer payment obligations shall abate with respect to the impacted Services.

19. General: This Agreement shall be contingent upon approval of Customer credit and/or ability to pay through credit card or other authorized payment methods, consistent with KeyMetric financial policies. The prevailing party in any dispute concerning the matter hereof shall be entitled to recover its reasonable attorney’s fees and costs.

20. Governing Law: This Agreement will be considered and enforced in accordance with the laws of the State of Nevada.