Last Updated: 14 April 2023.
These Conditions may be updated from time to time and the updated version will be effective as soon as it is accessible. You are responsible for regularly reviewing these Conditions so that you are aware of any changes to them.
1.1. In these Conditions, the following words have the following meanings:
Confidential Information: has the meaning given to it in Condition 9;
Client, you: the party wishing to use the System;
Client Customer: if not the Client, the third party who owns or has the right to operate the Monitored Source;
Cloud Provider Account: the cloud service provider account belonging to the Client, eg. Amazon Web Services, Google Cloud Platform, Microsoft Azure, etc;
Fee: the fee (if any) due to Stackcrafters to access and use of the System calculated in accordance with the provisions of the Fee Page;
functionmetric Integration: the application to be deployed within the Cloud Provider Account that parses, records, stores and analyses metrics for Monitored Sources including all error corrections, patches, new releases and new versions;
functionmetric Portal: the user interface and supporting management APIs which are hosted by Stackcrafters and made available to the Client to display information about the metrics captured by the functionmetric Integration;
IP Rights: any patent, trade mark, registered design or any application for registration of the same, or the right to apply for registration of the same, any copyright or related rights, database right, design rights, rights in trade, business or domain names, rights in trade dress, rights in inventions, rights in confidential information or know-how or any similar of equivalent rights in any part of the world;
Monitored Source: the resource deployed within the Cloud Provider Account that the functionmetric Integration is configured to monitor, which may be owned by the Client itself, or by the Organisation;
Organisation: the functionmetric account held by the Client.
Organisation Administrator: has the meaning given to it in Condition 2.2;
Stackcrafters, us: Stackcrafters Ltd, a company registered in England and Wales with company number 12311839 and registered office at 12 Chiswick View, 300 Acton Lane, London W4 5DJ;
System: the functionmetric Integration and the functionmetric Portal;
User: your employees or the Client Customer's employees authorised to use the System; and
Working Day: a day other than a Saturday, Sunday or public holiday in England.
1.2. Words in the singular include the plural and in the plural include the singular.
1.3. The headings shall not affect the interpretation of these Conditions.
1.4. References to Conditions are references to the numbered provisions of these Conditions.
1.5. Unless a right or remedy of a party is expressed to be an exclusive right or remedy, the exercise of it by a party is without prejudice to that party's other rights and remedies.
1.6. Any phrase introduced by the words including shall be construed as illustrative and shall not limit the generality of the related general words.
2.1 If you wish to register to use the System, you must be entitled to represent your company or other organisation and bind them to these Conditions. You must provide us with accurate and current information and if there is any change to the information that you provide to us, you must immediately update your account. At our request, you shall promptly provide written evidence of the validity of information that you provide to us.
2.2 You shall designate one contact as the responsible party for communication (the "Organisation Administrator"). Your Organisation Administrator may authorise Users to access all or part of your Organisation within the functionmetric Portal.
2.4 You shall be responsible for all access to and use of the functionmetric Portal by Users. You shall be responsible for ensuring the security and confidentiality of all log-on identifiers, including passwords, assigned to, or created by, you or any User in order to access or use the functionmetric Portal and you acknowledge and agree that you are solely responsible for all activities that occur under such log-in identifiers. You shall promptly notify us upon becoming aware of any unauthorised access to or use the functionmetric Portal, and provide all reasonable assistance to bring an end to such unauthorised access or use.
The Client shall:
3.1 ensure that its network and systems comply with the relevant specifications provided by Stackcrafters from time to time;
3.2 be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Stackcrafters' data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to its network connections or telecommunications links or caused by the internet;
3.3 ensure that it has and retains a valid Cloud Provider Account in relation to each Monitored Source and has the right to provide access to the Monitored Sources for the purposes of these Conditions; and
3.4 Install the functionmetric Integration within its Cloud Provider Account and permit us to provide access to the functionmetric Integration by the Users; and you agree that we cannot provide information on the functionmetric Portal until you have installed the functionmetric Integration; and
3.5 be solely responsible for all costs and expenses that are incurred or otherwise arise as a result of installation and use of the functionmetric Integration within the Cloud Provider Account.
4.1 On acceptance of these Conditions, Stackcrafters shall make available to you a number of copies of the functionmetric Integration. You shall be responsible for the installation of the functionmetric Integration in accordance with any instructions provided to you from time to time.
4.2 You shall ensure that the functionmetric Integration is compatible with your own systems and you acknowledge and accept that Stackcrafters shall have no responsibility for any delays or errors relating to the installation of the functionmetric Integration.
4.3 We may, at our sole discretion, provide upgrades and new releases of the functionmetric Integration from time to time but we shall be under no obligation to do so. You shall comply with our reasonable instructions relating to the functionmetric Integration including the implementation of upgrades and new releases within your Cloud Provider Account.
5.1 Subject to these Conditions, Stackcrafters grants to you the non-exclusive, non-transferable right and licence to access and use the System for your lawful, business purposes in relation to the Monitored Sources.
5.2 Only your Users shall be entitled to exercise the rights granted to you under Condition 5.1 and you have no right to sub-license your rights under Condition 5.1, including to any Client Customer
5.3 You shall not, and shall not permit or assist any third party to:
(a) translate, adapt, disassemble, reverse engineer, decompile or copy the whole or any part of the Software, nor arrange or create derivative works based on the System except to the extent permitted by law not capable of exclusion by agreement;
(b) make for any purpose including error correction, any modifications, adaptations, additions or enhancements to the System;
(c) combine, match or merge the whole or any part of the System with or incorporate the System into any third party code;
(d) distribute, sell, sub-license, lease, resell or purport to assign access to the System;
(e) attempt to undermine the security of the System;
(f) access the System to build a competitive product or service or to build a product using similar ideas, features, functions or graphics;
(g) make available online all or part of the System through the Internet;
(h) remove or alter any copyright or other proprietary notice on any part of the System; and/or
(i) take any action in an attempt to cause malfunction, crash, tamper with or otherwise impair the System.
6.1 Stackcrafters shall use reasonable endeavours to make the functionmetric Portal available at all times, but the Client acknowledges that there may be occasions when access to the functionmetric Portal may be interrupted, including for scheduled maintenance or upgrades, for emergency repairs, or due to failure of telecommunications links and/or equipment or cloud provider outage. You should promptly report any fault in access to the functionmetric Portal to us and we shall endeavour to remedy the fault as soon as reasonably practical.
6.2 We shall use our reasonable endeavours to keep the functionmetric Portal secure. However you acknowledge that complex software is never entirely free from security vulnerabilities; and accordingly, we give no warranty or representation that the functionmetric Portal will be entirely secure.
6.3 Stackcrafters reserves the right to remove any content or features from the functionmetric Portal for any reason, without prior notice, and shall have no liability or responsibility to the Client in any manner whatsoever in such circumstances, save to refund pro-rata any Fees paid in advance in respect of any significant content or features suspended or stopped that you previously accessed and used. We shall calculate such pro-rata refund at our sole discretion, provided that we shall act reasonably in doing so.
7.1 If at any time you fail to pay an instalment of the Fee by the due date, we reserve the right to:
(a) claim costs and interests on any outstanding amount in accordance with the Late Payment of Commercial Debts (Interest) Act 1998;
(b) cease to make the System available to you.
7.2 You acknowledge and agree that we shall be entitled to increase the Fees at any time on written notice to you, provided such increase shall not start until the renewal of your subscription. Your continued access and use of the System shall constitute your acceptance of the increased Fees and the renewal.
8.1 You agree that no IP Rights that subsist in the System shall transfer to you under these Conditions.
8.2 You grant to Stackcrafters the right and licence to use your name and any associated logo in any and all promotional and marketing materials, including online materials.
8.3 You shall promptly notify Stackcrafters of any claim, notification or allegation that you receive that your use of the System infringes the IP Rights of any third party (a Claim). You shall:
(a) not make any admission of liability, agreement, settlement or compromise in relation to a Claim without Stackcrafters' prior written consent;
(b) give to Stackcrafters and its professional advisers all reasonable assistance as may be required in relation to a Claim;
(c) at Stackcrafters' request, give Stackcrafters the exclusive control and right to defend a Claim and make settlements in relation to a Claim; and
(d) mitigate your losses in relation to a Claim, including where requested to do so by stopping using the System.
8.4 On receipt of a notice under Condition 8.3, Stackcrafters shall at its sole expense either procure for the Client the right to continue accessing and using the System or modify or replace the infringing part of the System without to avoid the infringement.
9.1 Confidential Information shall mean all information whether written or oral and in whatever medium and relates to the business, products, financial and management affairs, customers, employees or authorised agents, plans, proposals, strategies or trade secrets disclosed by one party (the Disclosing Party) to the other party (the Receiving Party).
9.2 The Receiving Party shall not, and shall ensure that its employees shall not, use, copy or disclose any of the Confidential Information of the Disclosing Party except to carry out its obligations and exercise its rights under the Conditions.
9.3 The Receiving Party shall only disclose the Disclosing Party’s Confidential Information to those of its employees to the extent that they need to know the same in order to carry out its obligations under the Conditions and where those employees are bound by written obligations of confidentiality and non-use and such obligations apply to the Confidential Information disclosed to them.
9.4 The provisions of Conditions 9.1, 9.2 and 9.3 shall not apply to any Confidential Information which:
(a) is or becomes generally available to the public other than as a result of any act or omission of the Receiving Party;
(b) is already in or comes into the possession of the Receiving Party from a person lawfully in possession of the information and owing no obligation of confidentiality to the Disclosing Party in respect of the information; or
(c) is required to be disclosed by any court, government or administrative authority competent to require disclosure.
10.1 Each of the parties represents, warrants and undertakes that:
(a) it has the right, power and authority to enter into these Conditions and to perform fully all of its obligations under these Conditions;
(b) the performance of these Conditions shall not breach any other agreement entered into by it; and
(c) in exercising its rights and carrying out its obligations under these Conditions, it shall comply with applicable laws, including the Bribery Act 2010.
10.2 Subject to these Conditions, Stackcrafters warrants that it shall:
(a) provide access to the System with reasonable skill and care; and
(b) use industry standard virus detection software in relation to the System.
You warrant that:
(a) you have not relied on any oral representation made by or on behalf of Stackcrafters, or on any descriptions, illustrations or specifications contained in any materials, including online materials, produced by Stackcrafters which are only intended to convey a general idea of the System. You confirm that in your opinion, the System is fit for your purpose; and
(b) you have the right to install the functionmetric Integration in the Cloud Provider Account in relation to each of the Monitored Sources.
10.4 You shall indemnify us and keep us indemnified from and against any third party costs, expenses, liability, damages and claims we receive in relation to your breach of Condition 10.3(b).
11.1 DURING ANY FREE SUBSCRIPTION PERIOD, YOU AGREE TO USE THE SYSTEM TO ENSURE THAT IT IS FIT FOR YOUR PURPOSES AND OF SATISFACTORY QUALITY. IF YOU DO NOT SO AGREE, YOU SHOULD NOT PURCHASE A SUBSCRIPTION TO THE SYSTEM. ACCORDINGLY, THE SYSTEM IS PROVIDED ON AN “AS IS” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW AND SUBJECT TO CONDITION 10, ALL IMPLIED WARRANTIES, TERMS AND CONDITIONS RELATING TO THE SYSTEM (WHETHER IMPLIED BY STATUTE, COMMON LAW OR OTHERWISE), INCLUDING ANY WARRANTY, TERM OR CONDITION AS TO ACCURACY, COMPLETENESS, SATISFACTORY QUALITY, PERFORMANCE, FITNESS FOR PURPOSE, AVAILABILITY AND NON-INFRINGEMENT ARE EXCLUDED.
11.2 STACKCRAFTERS WILL NOT BE LIABLE, IN CONTRACT, TORT (INCLUDING NEGLIGENCE), UNDER STATUTE OR OTHERWISE, AS A RESULT OF OR IN CONNECTION WITH THE SYSTEM FOR ANY:
(A) FAILURE OF THE SYSTEM FOR REASONS OUTSIDE OF OUR REASONABLE AND DIRECT CONTROL, INCLUDING ANY FAILURE CAUSED BY ANY CLOUD SERVICE PROVIDER OR YOUR OR ANY THIRD PARTY EQUIPMENT;
(B) ECONOMIC LOSS (INCLUDING LOSS OF REVENUES, PROFITS, CONTRACTS, BUSINESS OR ANTICIPATED SAVINGS);
(C) WASTED EXPENDITURE;
(D) LOSS OF REPUTATION OR GOODWILL;
(E) LOSS OF DATA OR CONTENT; AND/OR
(F) SPECIAL, INDIRECT OR CONSEQUENTIAL LOSS EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSSES.
11.3 STACKCRAFTERS’ AGGREGATE LIABILITY TO THE CLIENT UNDER THESE CONDITIONS OR OTHERWISE IN RESPECT OF THE SYSTEM SHALL BE LIMITED TO THE FEES RECEIVED BY STACKCRAFTERS FROM THE CLIENT FOR THE SYSTEM DURING THE 6 MONTHS BEFORE THE DATE THE CLAIM AROSE.
11.4 Nothing in these Conditions shall limit or exclude a party’s liability for death or personal injury caused by negligence, fraud, fraudulent misrepresentation or any other loss that cannot lawfully be excluded or limited.
12.1 At the end of each subscription term, your subscription to the System shall automatically renew on the same duration, unless 30 days before the end of the then current subscription, you notify us at email@example.com that you wish to terminate the subscription, provided that no refund shall be due for any Fees paid in advance.
12.2 Either party may terminate a paid or free subscription to the System, at any time, immediately by giving the other written notice if the other:
(a) materially breaches any term of these Conditions and it is not possible to remedy that breach;
materially breaches any term of these Conditions and it is possible to remedy that breach, but the other fails to do so within 5 Working Days of being requested in writing to do so; or
becomes insolvent, makes composition with its creditors, has a receiver or administrator of its undertaking or the whole or a substantial part of its assets appointed, or an is order made, or an effective resolution is passed, for its administration, receivership, liquidation, winding-up or other similar process, or has any distress, execution or other process levied or enforced against the whole or a substantial part of its assets, or is subject to any proceedings which are equivalent or substantially similar to any of the foregoing under any applicable jurisdiction, or ceases to trade or threatens to do so.
For the purposes of this Condition 12.2 in order for it to be possible to remedy a breach it must be possible to take steps so as to put the other party into the same position which (save as to the date) it would have been in if the breach had never occurred. If we terminate these Conditions under this Condition 12.2, no refund shall be due for any Fees paid in advance. If you terminate these Conditions under this Condition 12.2, a refund shall be due for any Fees paid in advance for access to the System not made available to you.
12.3 If the Cloud Provider Account is terminated in relation to a functionmetric Integration then you agree that we can no longer provide the System for that functionmetric Integration. Accordingly, these Conditions shall be deemed terminated for the relevant functionmetric Integration, but no refund shall be due for any Fees paid in advance.
12.4 If you terminate a paid subscription to the System, you shall be entitled to access the System on the basis of a free subscription and accordingly the features you can access will be reduced.
12.5 If we or you terminate your subscription entirely, you shall cease to access the functionmetric Portal and delete the Software from your Cloud Provider Account. If you do not delete the Software from your Cloud Provider Account, then in accordance with Condition 3.5, you shall be responsible for all costs incurred. .
12.6 The following Conditions shall remain in force notwithstanding termination: Conditions 8.1, 8.2 (IP Rights), 9 (Confidential Information), 10 (Warranties, Indemnity), 11 (Disclaimer, Limit of Liability), 12.3 - 12.6 (Termination), 14 (Dispute Resolution), 15 (General) and 16 (Governing Law & Jurisdiction).
13.1 For the purposes of this Condition 13, an event of Force Majeure means any event beyond the reasonable control of either party, including change in laws or regulations, war, invasion, armed conflict, terrorism, strike, lock-out, labour dispute, failure of suppliers or subcontractors, riot, civil commotion, accident, act of God, fire, flood and storm, pandemic or epidemic.
13.2 If a party is prevented, hindered or delayed from or in performing any of its obligations under this Agreement by an event of Force Majeure, the affected party’s obligations under this Agreement are suspended without liability while the event of Force Majeure continues and to the extent that it is prevented, hindered or delayed.
13.3 If performance of any obligation under this Agreement is prevented, hindered, or delayed due to an event of Force Majeure either party shall be entitled to terminate these Conditions on written notice to the other party.
13.4 The provisions of Condition 13 shall not be relied on in relation to the inability to pay any Fees due under these Conditions.
14.1 If a dispute arises between the parties under these Conditions, then within 5 Working Days of the dispute arising, the dispute shall be escalated by each of the parties to a director. If the directors are unable to resolve the dispute within 10 Working Days, then the directors shall refer the dispute to the chief operating officer, or such person of equivalent seniority. If such persons are unable to resolve the dispute within a further 10 Working Days, then the parties shall be entitled to pursue legal action under Condition 16.
14.2 Nothing in Condition 14.1 shall prevent a party taking action under Condition 16 in respect of misuse of the System.
15.1 These Conditions contain the entire agreement of the parties with respect to the access to the System and supersede all prior agreements and representations, standard conditions or other implied conditions, whether written or oral, with respect to the subject matter of these Conditions.
15.2 The Client shall not assign or delegate its rights or obligations under these Conditions, in whole or in part, to any third party by operation of law or otherwise, without the prior written consent of Stackcrafters. Any attempted assignment or delegation that does not comply with this Condition 15.2 shall be of no effect.
15.3 Any failure to enforce any provision of these Conditions shall not constitute a waiver thereof or of any other provision.
15.4 If any provision of these Conditions is found to be unenforceable, the remainder shall be enforced as fully as possible and the unenforceable provision shall be deemed modified to the limited extent required to permit its enforcement in a manner most closely approximating the intention of the parties.
15.5 Nothing in these Conditions shall create or imply an agency, partnership or joint venture between the parties. Neither party shall act or describe itself as the agent of the other party nor shall either party have or represent that it has any authority to make commitments on behalf of the other.
16.1 These Conditions are governed by and will be construed in accordance with the laws of England and Wales.
16.2 The parties submit to the exclusive jurisdiction of the courts of England and Wales in relation to any legal actions or proceedings arising out of or in connection with these Conditions, save that this submission will not preclude any party from applying to any other court having jurisdiction for urgent or interim relief in aid of proposed or pending proceedings in England.