Terms of Service

Welcome to Working Metrics! We invite you to access our website and use the Working Metrics service, but please note that your invitation is subject to your agreement with these Terms of Service. This document describes in detail your rights and our rights relating to the provision of the Service (as defined below), so please review these Terms carefully.

What Are the Terms of Service?

The Terms of Service constitutes a contract between Working Metrics, you and your company. The Terms include the provisions set forth in this document and in the Working Metrics Privacy Policy and other terms or conditions that may be presented by us and accepted by you from time to time in connection with specific Service offerings (all of which we collectively refer to as the “Terms of Service” or “Terms”). If you do not agree to these Terms, you do not have the right to access or use our Service. If you do register for or otherwise use our Service you shall be deemed to confirm your acceptance of the Terms and your agreement to be a party to this binding contract.

By using the Service, you acknowledge, accept and agree with all provisions of the Privacy Policy, including, without limitation, the use and treatment of the text, images, and other data you choose to input, upload, or store in Working Metrics (collectively, “Content”) and your personal information in accordance with such Privacy Policy.

What Is the Working Metrics Service?

The Working Metrics Software (as defined below), the Working Metrics service, and other products, services and websites hosted or made available by Working Metrics, including, for example our User Forum, and Help & Learning pages are collectively referred to in these Terms as the “Service”. In exchange for being enabled to use the Service, you agree to abide by these Terms.

If This Is a Contract, Who Are the Parties?

You and your company, the Account Holder, are parties to this contract. (An Account Holder is the person or entity who has contracted with Working Metrics as either an individual or as a Customer.

The other party to this contract is Working Metrics Corporation, a corporation headquartered in Delaware. (As applicable, may be referred to in these Terms of Service as “Working Metrics,” “we” and sometimes “us”).

Will These Terms of Service Ever Change?

These Terms may be amended as new features, technology, or legal requirements arise, so please check back from time to time. If we make a significant change, we’ll notify you.

If we do update these Terms, you are free to decide whether to accept the updated terms or to stop using our Service (see “How is My Account Closed” below); your continued use of the Service after the effectiveness of that update will be deemed to represent your agreement with, and consent to be bound by, the new Terms.

What Do I Have to do to Use the Working Metrics Service?

First, you need to create a Working Metrics service account. You create an account by providing us with an email address and creating a password. We refer to this as your “Basic Subscriber Information”. We encourage you to use a distinct and non-obvious password that is different from passwords you use for any other service. You are responsible for maintaining the accuracy, completeness and confidentiality of your Basic Subscriber Information, and you will be responsible for all activities that occur under your account, including activities of others to whom you have provided your Basic Subscriber Information. We will not be liable for any loss or damage arising from your failure to provide us with accurate information or to keep your Basic Subscriber Information secure. If you discover any unauthorized use of your Basic Subscriber Information or suspect that anyone may be able to access your private Content without authorization, you should immediately change your password and notify our Customer Support team.

Second, you will need to access your account through a web browser.  Working Metrics also has no responsibility for the availability of the Internet and other telecommunication services necessary to access the Service.

Can I Share My Account with Someone Else?

Working Metrics service accounts should not be shared. If you share your Basic Subscriber Information with anyone, that other person may be able to take control of the account, and we may not be able to determine who is the proper Account Holder. We will not have any liability to you (or anyone you share your Basic Subscriber Information with) as a result of your or their actions under those circumstances.

Once I Have an Account, What Are My Rights in the Working Metrics Service?

Once your account is created and you accept these Terms, we grant you a limited, non-exclusive license to use the Service subject to these Terms, for so long as you are not barred from receiving the Service under the laws applicable to you, until you close your account voluntarily or until we close your account pursuant to these Terms.

Your Company Owns its Data.

You retain copyright and any other rights you already held in your Content before you submitted, posted or displayed it on or through the Service. But you do have to grant Working Metrics a limited license, as described below, so we can make your data accessible and usable on the Service.

What Is the License I Have to Grant to Working Metrics?

In order to enable Working Metrics to operate the Service, we must obtain from you certain limited license rights to process your Content that is covered by intellectual property rights so that technical actions we take in operating the Service are not considered legal violations. For example, copyright laws could prevent us from processing, analyzing, maintaining, storing, backing-up and distributing certain Content, unless you give us these rights. Accordingly, by using the Service and uploading Content, you are granting Working Metrics a license to display, analyze, perform and distribute your Content, to aggregate your data with that of other companies to generate industry sector and regional analytics, benchmarks, trends, etc., and to modify (for technical purposes, e.g., making sure content is viewable on smartphones as well as computers and other devices) and reproduce such Content to enable Working Metrics to operate the Service. You also agree that Working Metrics has the right to elect not to accept, post, store, display, publish or transmit any Content in our sole discretion.

You agree that these rights and licenses are royalty free, transferable, sub-licensable, worldwide and irrevocable (for so long as your Content is stored with us), and include a right for Working Metrics to make such Content available to, and pass these rights along to, others with whom Working Metrics has contractual relationships related to the provision of the Service, solely for the purpose of providing such services, and to otherwise permit access to or disclose your Content to third parties if Working Metrics determines such access is necessary to comply with its legal obligations.

If you elect to use any third party service or application that is integrated with Working Metrics, you also agree that the licenses granted to Working Metrics in the preceding paragraph shall apply to Content that is submitted or uploaded through such third party service or application. If the third party service or application you elect to use would access or extract Content, you grant Working Metrics the right and license to enable third party access to and extraction of your Content. Working Metrics does not assume any responsibility for, or liability on account of, the actions or omissions of such third party applications or service providers.

As we rely upon your rights to upload and distribute your Content, you represent and warrant to Working Metrics that (1) you have the unfettered legal rights and authority to submit your Content to Working Metrics, to make any other use, publication or other distribution of that Content in your use of the Service, and to grant the rights granted to Working Metrics under these Terms; and (2) your Content complies with our User Guidelines and these Terms.

Finally, you understand and agree that Working Metrics in performing the required technical steps to provide the Service to our users, may make such changes to your Content as are necessary to conform and adapt that Content to the technical requirements of connecting networks, devices, services or media.

What Other Assurances Do I Have to Grant to Working Metrics?

When you use the Working Metrics Service to send messages to an email address, to a telephone number via SMS, or through a social media account (e.g., Facebook or LinkedIn) that has not been linked to a Working Metrics account, Working Metrics sends such messages on your behalf, and we are relying on your representation to us that you have a direct relationship with the recipient(s) and that you are respecting the legal rights of the recipient(s) not to receive certain kinds of messages (such as harassing messages, unsolicited commercial messages, and unwanted SMS messages). Whenever you send any kind of message to a third party you represent and warrant to Working Metrics that you are acting within the law and that you have prior consent from the recipient to send them such a message.

Are There Rules about What I Can Do on the Working Metrics Service?

Yes. Your use of the Service must be in accordance with these Terms. When it comes to your use of the Service, you agree that you are responsible for your own conduct and all conduct under your account. This means all Content created, transmitted, stored or displayed in your account, is your sole responsibility as the person who created the Content or introduced it into the Service. This applies whether the Content is kept private, shared or transmitted using the Service or any third-party application or services integrated with the Working Metrics service. If we find that any shared Content in your account violates our Terms of Service (including by violating another person’s intellectual property or privacy rights), we reserve the right to un-share or take down such content.

What Are Working Metrics’ Rights Relating to the Service?

CONTENT RIGHTS.

While you own the Content you store within the Working Metrics Service (subject to third party rights), you acknowledge and agree that Working Metrics (and our licensors) own(s) all legal right, title and interest in and to the Service, including, without limitation, all software that is part of the Service.

INTELLECTUAL PROPERTY RIGHTS.

In agreeing to these Terms, you also agree that the rights in the Service and Working Metrics Software, including all intellectual property rights, such as trademarks, patents, designs and copyrights, are protected by one or more of copyright, trademark, patent, trade secret and other laws, regulations and treaties, in addition to these Terms and any Separate Agreement. In particular, you agree to not modify, create derivative works of, decompile or otherwise attempt to extract source code from any Working Metrics Software, unless you are expressly permitted to do so under an open source license, we give you express written permission or you are otherwise legally permitted to do so notwithstanding this prohibition.

RIGHT TO MODIFY THE SERVICE.

We retain the right, in our sole discretion, to implement new elements as part of and/or ancillary to the Service, including changes that may affect the previous mode of operation of the Service or Working Metrics Software. We expect that any such modifications will enhance the overall Service, but it is possible that you may not agree with us. We also reserve the right to establish limits to the nature or size of storage available to you, the number of transmissions, the ability to send or receive email messages, the nature or size of any index or library information, the nature of, or your continued ability to access or distribute, your Content and other data, and impose other limitations at any time, with or without notice.  There may be some features offered as premium services that are not available to all subscriptions.

You also acknowledge that a variety of Working Metrics actions may impair or prevent you from accessing your Content or using the Service at certain times and/or in the same way, for limited periods or permanently, and agree that Working Metrics has no responsibility or liability as a result of any such actions or results, including, without limitation, for the deletion of, or failure to make available to you, any Content. You agree that we shall not be liable to you or to any third party for any modification, suspension or discontinuance of any part of the Service. However, if you are a subscriber for Working Metrics Subscription, you may notify our Customer Support team, explain the adverse impact the modification has created and, if you desire, request a termination of your Paid Service. Upon receipt of any such request, we will endeavor to promptly remedy the adverse impact caused by the modification, extend the duration of your Paid Service subscription for a period of time equal to the interruption.

RIGHT TO ENGAGE THIRD PARTIES.

Working Metrics engages certain affiliates or other third parties (“Service Providers”) to provide technical or other services relating to all or part of the Service, and you hereby agree that such involvement by these Service Providers is acceptable. Please see our Privacy Policy to understand the extent to which any affiliate or third party may have access to your account information or Content.

RIGHT TO USE THIRD-PARTY SOFTWARE.

Working Metrics may from time to time include as part of the Service and Working Metrics Software computer software supplied by third parties which is utilized by permission of the respective licensors and/or copyright holders on the terms provided by such parties. Working Metrics expressly disclaims any warranty or other assurance to you regarding such third party software.

RIGHT TO UPDATE OUR SOFTWARE.

Working Metrics maintains the right to update its software as and when it determines necessary.

Where Does My Data Go?

The Service is available worldwide, but your data is stored in the United States, as described in our Privacy Policy. If you use the Service, you acknowledge that you may be sending electronic communications (including your Basic Subscriber Information and Content), through computer networks owned by Working Metrics, its Service Providers, and other third parties located in the United States and other countries. As a result, your use of the Service will likely result in interstate and possibly international data transmissions, and your use of the Service shall constitute your consent to permit such transmissions.

How is My Account Closed?

You may deactivate your account with our Service at any time, for any reason (or no reason).

Working Metrics may act to temporarily limit your use of the Service, suspend access to your account, or close your account, with or without notice according to these Terms. Reasons for Working Metrics suspending or closing your account may include, without limitation: (i) breach or violation of these Terms (including the User Guidelines) or any Separate Agreement, (ii) an extended period of inactivity (determined in Working Metrics’s sole discretion), (iii) your nonpayment of any fees or other sums due Working Metrics or any other party related to your use of the Service, (iv) the discontinuance or material modification of the Service (or any part thereof) or (v) unexpected technical or security issues or problems or extensive Unsupported Use.

In most cases, in the event we elect to close your account, we will provide at least 30 days advance notice to you at the email address you have provided to us, so you have a chance to retrieve any Content stored on the Service servers (unless we determine that we are legally prohibited from providing such notice or enabling you to do so). After the expiration of this notice period, you will no longer be able to retrieve Content contained in that account or otherwise use the Service through that account.

If I Have a Great Idea to Share with Working Metrics, What Are My Rights?

When you submit any ideas, suggestions, documents and/or proposals relating to the Service (or other products or services) to Working Metrics through the “Contact Us,” User Forum or Support interfaces or through any other channel or mechanism (collectively, “Contributions”), you acknowledge and agree that: (i) your Contributions do not contain confidential or proprietary information; (ii) Working Metrics is not under any obligation of confidentiality, express or implied, with respect to the Contributions; (iii) Working Metrics shall be entitled to use or disclose (or choose not to use or disclose) such Contributions for any purpose, in any way; (iv) Working Metrics may have something similar to the Contributions already under consideration or in development; (v) your Contributions automatically become the property of Working Metrics without any obligation of Working Metrics to you; and (vi) you are not entitled to any accounting, compensation or reimbursement of any kind from Working Metrics under any circumstances.

What Else Do I Need to Know?

THIRD-PARTY LINKS, CONTENT AND PROGRAMMING.

We may include or recommend third party resources, materials and developers and/or links to third party websites, content and applications as part of, or in connection with, the Service. We may have little or no control over such sites or developers and, accordingly, you acknowledge and agree that (i) we are not responsible for the availability of such external sites, content or applications; (ii) we are not responsible or liable for any content or other materials or performance available from such sites or applications and (iii) we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, materials or applications.

INDEMNITY.

You agree to indemnify and hold Working Metrics, its subsidiaries, affiliates, officers, agents, employees, advertisers, Service Providers and other partners harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including legal and other professional fees) arising from or in any way related to any third party claims relating to your use of any of the Service, any violation of these Terms of Service or any other actions connected with your use of the Service (including all actions taken under your account). In the event of such claim, we will endeavor to provide notice of the claim, suit or action to the contact information we have for the account, provided that any failure to deliver such notice to you shall not eliminate or reduce your indemnification obligation hereunder.

LIMITATION OF LIABILITY AND DISCLAIMER OF WARRANTIES.

To the maximum extent permitted by law, the Service Is Available “As Is.” YOU EXPRESSLY UNDERSTAND AND AGREE THAT:

  1. YOUR USE OF THE SERVICE AND THE PURCHASE AND USE OF ANY SERVICES ARE ALL AT YOUR SOLE RISK.
  2. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WORKING METRICS EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
  3. WORKING METRICS DOES NOT WARRANT THAT (i) THE SERVICE WILL MEET ALL OF YOUR REQUIREMENTS; (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (iii) ALL ERRORS IN THE SOFTWARE OR SERVICE WILL BE CORRECTED.
  4. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER OR OTHER DEVICE OR LOSS OF DATA RESULTING FROM THE DOWNLOAD OR USE OF ANY SUCH MATERIAL.
  5. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM WORKING METRICS OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE.

YOU EXPRESSLY UNDERSTAND AND AGREE THAT WORKING METRICS, ITS SUBSIDIARIES, AFFILIATES, SERVICE PROVIDERS, AND LICENSORS, AND OUR AND THEIR RESPECTIVE OFFICERS, EMPLOYEES, AGENTS AND SUCCESSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, COVER OR OTHER INTANGIBLE LOSSES (EVEN IF WORKING METRICS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE OR TO USE PROMOTIONAL CODES OR WORKING METRICS POINTS; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES RESULTING FROM ANY DATA, INFORMATION OR SERVICE PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR THE LOSS, CORRUPTION OR ALTERATION OF YOUR TRANSMISSIONS, CONTENT OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OR USING THE SERVICE, OR PROVIDING ANY SERVICES RELATED TO THE OPERATION OF THE SERVICE; (v) WORKING METRICS’S ACTIONS OR OMISSIONS IN RELIANCE UPON YOUR BASIC SUBSCRIBER INFORMATION AND ANY CHANGES THERETO OR NOTICES RECEIVED THEREFROM; (vi) YOUR FAILURE TO PROTECT THE CONFIDENTIALITY OF ANY PASSWORDS OR ACCESS RIGHTS TO YOUR ACCOUNT; (vii) THE ACTS OR OMISSIONS OF ANY THIRD PARTY USING OR INTEGRATING WITH THE SERVICE; (viii) ANY ADVERTISING CONTENT OR YOUR PURCHASE OR USE OF ANY ADVERTISED OR OTHER THIRD-PARTY PRODUCT OR SERVICE; (ix) THE TERMINATION OF YOUR ACCOUNT IN ACCORDANCE WITH THE TERMS OF THESE TERMS OF SERVICE; OR (x) ANY OTHER MATTER RELATING TO THE SERVICE.

EXCLUSIONS AND LIMITATIONS.

NOTHING IN THESE TERMS OF SERVICE (INCLUDING THE LIMITATION OF LIABILITY PROVISIONS) IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY WILLFUL ACTS, NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THOSE LIABILITY AND OTHER LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION (IF ANY) WILL APPLY TO YOU AND OUR LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

If Working Metrics Needs to Send Me Notice of Something, How Will That Happen?

This is another reason why it’s important for you to make sure your Basic Subscriber Information is accurate, complete and up to date. We may provide you with notices by email (to the email address associated with your account), regular mail or postings on the website(s) related to the affected Service.

How Can I Send a Notice to Working Metrics?

Except where these Terms or any Separate Agreement specifically provide for use of a different means or address for notice, any notice to Working Metrics must be delivered by email to support@workingmetrics.com. This email address may be updated as part of any update to these Terms of Service.

What Law Applies to My Use of Working Metrics?

These Terms and the relationship between you and Working Metrics (including any dispute) shall be governed in all respects by the laws of the Commonwealth of Virginia, United States of America, as they apply to agreements entered into and to be performed entirely within Virginia between Virginia residents, without regard to its conflict of law provisions.

If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms of Service remain in full force and effect.

What Do I Do If I Think I Have a Claim Against Working Metrics?

LET US KNOW ABOUT YOUR COMPLAINT.

We want to know if you have a problem so we encourage you to contact our Customer Support team if you have any concerns with respect to the operation of the Service or any Working Metrics Software, as we want to ensure that you have an excellent experience.

INITIATING A FORMAL CLAIM.

If you conclude that we have not satisfied your concern and that you must pursue legal action, you agree that your claim must be resolved by the processes set forth in these Terms. Working Metrics provides the Service to you on the condition that you accept the dispute resolution provisions described below, so if you initiate any claim against Working Metrics in any other manner, you shall be in violation of these Terms and you agree that Working Metrics shall be entitled to have such action dismissed or otherwise terminated and you agree to reimburse Working Metrics for its reasonable costs incurred in defending against such improperly initiated claim. You agree that prior to initiating any formal proceedings against Working Metrics, you will send us a notice to our attorneys at support@workingmetrics.com and state that you are providing a “Notice of Dispute.” Upon receipt of a Notice of Dispute, you and we shall attempt to resolve the dispute through informal negotiation within sixty (60) days from the date the Notice of Dispute is sent. If the dispute remains unresolved, either you or we may initiate formal proceedings according to these Terms.

Except where our dispute is being resolved pursuant to an arbitration (as provided below), if you are a resident of the United States or Canada, you agree that any claim or dispute you may have against Working Metrics must be resolved exclusively by a state or federal court located in Fairfax County, Virginia. You agree to submit to the exclusive personal jurisdiction of the courts located within Fairfax County, Virginia (and, for the avoidance of doubt, to exclude the jurisdiction of any other court) for the purpose of litigating all such claims or disputes.

ALTERNATIVE DISPUTE RESOLUTION PROCESS.

Unless you are subject to the Arbitration Agreement set out below, and subject to any applicable laws, if a claim arises between you and Working Metrics where the total value of such claim is less than US$10,000, the party initiating the claim may elect to have the dispute resolved pursuant to a binding arbitration process that does not require attendance in person. This “Alternative Dispute Resolution Process” shall be initiated by either party sending notice to the other, in which event you and Working Metrics agree to use our reasonable efforts to agree within thirty (30) days upon an individual or service to manage the Alternative Dispute Resolution Process (the “Arbitration Manager”) according to the following requirements: (i) neither party shall be required to attend any proceeding in person, (ii) the proceeding will be conducted via written submissions, telephone or online communications or as otherwise agreed upon, (iii) the fees for the Arbitration Manager will be borne equally by the parties or be submitted to the Arbitration Manager to determine as part of the dispute and (iv) the judgment rendered by the Arbitration Manager may be entered in any court of competent jurisdiction for enforcement.

If you are a resident of the European Union (EU), please note that we offer this Alternative Dispute Resolution Process, but we cannot offer you the European Commission Dispute Platform as we do not have an establishment in the EU.

ARBITRATION AGREEMENT.

If you reside in the United States or are otherwise subject to the US Federal Arbitration Act, you and Working Metrics agree that any and all disputes or claims that have arisen or may arise between us - except any dispute relating to the enforcement or validity of your, our or either of our licensors’ intellectual property rights - shall be resolved exclusively through final and binding arbitration, rather than in court, except that you may assert claims in small claims court, if your claims qualify. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.

Our arbitration proceedings would be conducted by the American Arbitration Association ("AAA") under its rules and procedures applicable at that time, including the AAA's Supplementary Procedures for Consumer-Related Disputes (to the extent applicable), as modified by our Arbitration Agreement. You may review those rules and procedures, and obtain a form for initiating arbitration proceedings at the AAA's website. The arbitration shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is US$10,000 or less, either of us may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on us subject to the arbitrator's discretion to require an in-person hearing. Attendance at an in-person hearing may be made by telephone by you and/or us, unless the arbitrator requires otherwise.

The arbitrator will decide the substance of all claims in accordance with the laws of the State of California, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Working Metrics users, but is bound by rulings in prior arbitrations involving the same user to the extent required by applicable law. The arbitrator's award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court possessing jurisdiction over the parties, except for a limited right of appeal under the Federal Arbitration Act.

The AAA rules will govern the payment of all filing, administration and arbitrator fees, unless our Arbitration Agreement expressly provides otherwise. If the amount of any claim in an arbitration is US$10,000 or less, Working Metrics will pay all filing, administration and arbitrator fees associated with the arbitration, so long as (i) you make a written request for such payment of fees and submit it to the AAA with your Demand for Arbitration and (ii) your claim is not determined by the arbitrator to be frivolous. In such case, we will make arrangements to pay all necessary fees directly to the AAA. If the amount of the claim exceeds US$10,000 and you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Working Metrics will pay as much of the filing, administration and arbitrator fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. If the arbitrator determines the claim(s) you assert in the arbitration are frivolous, you agree to reimburse Working Metrics for all fees associated with the arbitration paid by Working Metrics on your behalf, which you otherwise would be obligated to pay under the AAA's rules.

YOU AND WORKING METRICS AGREE, AS PART OF THE ARBITRATION AGREEMENT, THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS PART OF ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. WE REFER TO THIS AS THE “PROHIBITION OF CLASS AND REPRESENTATIVE ACTIONS.” UNLESS BOTH YOU AND WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN YOUR OR OUR CLAIM WITH ANOTHER PERSON'S OR PARTY'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE OR CLASS PROCEEDING. THE ARBITRATOR MAY ONLY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER WORKING METRICS USERS.

Except with respect to the Prohibition of Class and Representative Actions, if a court decides that any part of this Arbitration Agreement is invalid or unenforceable, the other parts of this Arbitration Agreement shall continue to apply. If a court decides that the Prohibition of Class and Representative Actions is invalid or unenforceable, then this entire Arbitration Agreement shall be null and void. The remainder of these Terms and this Section (What Do I Do if I think I Have A Claim Against Working Metrics?) will continue to apply.

CLAIMS ARE TIME-BARRED.

You agree that regardless of any statute or law to the contrary or the applicable dispute resolution process, any claim or cause of action you may have arising out of or related to use of the Service or otherwise under these must be filed within one (1) year after such claim or cause of action arose or you hereby agree to be forever barred from bringing such claim.

The provisions of this section, entitled “Claims Are Time-Barred” shall be deemed to constitute a separate written legally binding agreement by and between you and us.

SPECIAL NOTICE FOR CALIFORNIA USERS.

Under California Civil Code Section 1789.3, users of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact us via email at support@workingmetrics.com.

Anything Else?

A couple of final, but important, points. First, these Terms constitute the entire agreement between you and Working Metrics and govern your use of the Service, except for, and then only to the extent that you have entered into a Separate Agreement. These Terms supersede any prior agreements or earlier versions of these Terms between you and Working Metrics for the use of the Service as of the Effective Date indicated at the top of these Terms. If, through accessing or using the Service, you utilize or obtain any product or service from a third party, you may additionally be subject to such third party’s terms and conditions applicable thereto, and these Terms shall not affect your legal relationship with such third party.

Second, you acknowledge and agree that each affiliate of Working Metrics shall be a third party beneficiary to these Terms and that such other companies shall be entitled to directly enforce, and rely upon, any provision of these Terms which confers a benefit on (or provides rights in favor of) them. Other than this, no other person or company shall be a third party beneficiary to these Terms.

Finally, the section headings in these Terms of Service are for convenience only and have no legal or contractual effect.