Terms & Conditions
This Metrikus Services Agreement (this “Agreement”) is between Metrikus Limited, a private limited company incorporated in the United Kingdom, with an address of 10 Arthur Street, London EC9R 4AY (“Metrikus”) and the person (“Client”) that clicks to accept its terms on any website or other means of communication operated by Metrikus. Any member of the Client’s Group may, by the Client clicking to accept its terms be bound by this Agreement as if it was an original signatory to it in place of the Client. For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:1. Definitions. The following definitions apply:
- “Activation Date” – the date upon which the Services commence their data collection or the date of installation of all sensors used to measure all the parameters required to perform the Services, whichever is the earlier.
- “Authorised User” - any of Client’s employees, representatives, consultants, agents, or other persons expressly authorised and permitted by Client in connection with Client’s business to use the Services.
- “Client Data” – data, including static data, from Client in electronic form input or collected through the Services directly or by or from Authorised Users in the course of using the Services.
- “Documentation” - Metrikus’s user guides, documentation, and training materials, as updated by Metrikus from time to time.
- “Equipment” – any hardware provided to the Client from time to time by Metrikus whether by loan or sale that includes but is not limited to sensors that connect to the Platform or air purification units that improve air quality.
- “Fees” means the fees for the Services set out in Attachment A of the applicable SOW.
- “Group” shall have the meaning given to it in the UK Companies Acts 2006 or as amended.
- “Intellectual Property Rights” – patents, utility models, rights to inventions, copyrights and neighbouring and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to computer code (including source code), rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
- “Platform” – the Metrikus platform used by Metrikus to deliver the Services including the Intellectual Property used in the Platform.
- “Services” – the provision of software as a service connected to the measurement of various data feeds from electronic sensors and the sale or loan of any Equipment.
- “SOW” - each applicable Statement of Work as agreed between the parties pursuant to the applicable proposal for Services.
2.1 Access and Use. This Agreement governs the terms on which Metrikus will provide access to the Platform and ancillary Services as further set out herein. Subject to the terms and conditions of this Agreement, the Client shall permit Metrikus sufficient access to its premises and network in order to install all relevant Equipment to carry out the Services. Any delay in the grant of access will cause delay in the provision of the Services for which Metrikus shall not be responsible. Any such delays may incur additional costs as set out in Attachment A Any delays in the performance of Services or delivery of Deliverables caused by Client may result in additional applicable charges for resource time.as set out in Attachment A (each a “Statement of Work” a “SOW”).
2.2 Metrikus Responsibilities. Metrikus shall (i) use commercially reasonable efforts to provide the Services within a 4 week period following the agreed date for commencement of the Services, subject to the Client making all due payments in accordance with clause 3 below. Metrikus shall notify the Client of any event or development that it becomes aware of that would reasonably be expected to (i) materially and adversely impact its ability to comply with this Agreement; (ii) materially and adversely impact the Services; or (iii) jeopardise the Client‘s ability to use the Services in compliance with applicable laws and regulatory requirements. Such notification shall be given as soon as is practical, but in any event within 24 hours of Metrikus becoming aware of the event or development.
2.3 Client Responsibilities. Client shall use the Services only in accordance with this Agreement. Client shall not (i) permit unauthorised access to, or use of, the Services or Documentation (and shall notify Metrikus promptly upon any such threatened or actual unauthorised access or use), (ii) make the Services available to anyone other than Authorised Users, (iii) sell, resell, license, sublicense, distribute, rent or lease the Services, (iv) create derivative works based on the Services or (v) copy, frame, decompile or mirror any part or content of the Services (other than for Client’s own internal business purposes). Client may use the information provided through the Services in connection with its own business purpose and make public that information. Client shall provide all necessary assistance (including obtaining all relevant licenses and consents) in relation to this Agreement to permit Metrikus to deliver the Services, including, but not limited to, all cabling required to install any equipment required by Metrikus to provide data to the Platform in order to provide the Services.
2.4 Client Cooperation. Client will cooperate reasonably and in good faith with Metrikus in its performance of the Services by, without limitation: (a) allocating sufficient resources timely performing any tasks reasonably necessary to enable Metrikus to perform its obligations under each applicable SOW; (b) timely delivering any Client deliverables and other obligations required under each SOW; (c) timely responding to Metrikus’ inquiries related to the Services (d) assigning an internal project manager for each SOW to serve as a primary point of contact for Metrikus; (e) actively participating in scheduled project meetings; (f) providing, in a timely manner and at no charge to Metrikus, and coordination of onsite, online and telephone meetings all as reasonably required by Metrikus; and (g) complete, accurate and timely information, data and feedback, as reasonably required.
2.5 Loan of Equipment
In relation to the provision of the Services, Metrikus may provide items of Equipment through an “on demand” loan to the Client. Any such Equipment (the “Loaned Equipment”) shall be agreed in writing between the Client and Metrikus and be included in the Equipment schedule to this Agreement together with (i) the agreed cost of such loan, (ii) the agreed loan period, and (iii) the agreed replacement cost of the Loaned Equipment, should it not be returned to Metrikus in as good a condition as when received by the Client, except for reasonable wear and tear or not be returned by the Client. The Client agrees that such Loaned Equipment remains the property of Metrikus notwithstanding it may be attached to or affixed to the premises of the Client and title to the Loaned Equipment shall remain with Metrikus and does not pass to the Client. The Client agrees to return the Loaned Equipment to Metrikus upon request at the end of the loan period and shall be responsible for the safe packaging, proper import, export, shipping and sending of the Loaned Equipment in order to return it at the end of its loan period together with any costs of doing so. Should the Loaned Equipment not be so returned, Metrikus may charge the pre-agreed price of the Loaned Equipment, as described in the Equipment schedule, and upon the receipt of such price title shall transfer to the Client. The Client is responsible for the full cost of repair or replacement of any or all of the Loaned Equipment that is damaged, lost, confiscated, or stolen from the time the Client receives the Loaned Equipment until it is returned to Metrikus, and shall notify Metrikus promptly upon the occurrence thereof. The Client shall be responsible for the proper use and deployment of the Loaned Equipment, complying with all laws and regulations in the country in which it will operate the Loaned Equipment, and in accordance with the directions of Metrikus, including for demonstration or as a proof of concept. Metrikus disclaims all liability in connection with the loan of the Loaned Equipment and any use thereof, except for any liability not capable of being excluded in law. Metrikus makes no representation or warranty in connection with the Loaned Equipment including whether it is fit for any particular purpose. The Loaned Equipment cannot be resold or exported without the consent of Metrikus. In consideration for the Equipment loan, the Client agrees to indemnify, defend and hold Metrikus harmless from any and all damages, losses, costs, claims, causes of actions, expenses and liability of any nature whatsoever associated with its use of the Loaned Equipment unless due to the negligence of Metrikus. Any Loaned Equipment may be purchased at the end of its loan period by the Client as agreed by Metrikus in writing.
2.6 Equipment Purchased
Equipment may be purchased by the Client and in such case title shall transfer to the Client at the time the Client receives the Equipment provided payment in full has been received in respect of the Equipment. Equipment purchased is set out in the Equipment schedule to this Agreement. In relation to the Equipment purchased by the Client, Metrikus shall notify the Client of the terms of any warranty provided by the third party manufacturer of the Equipment. The Client agrees that, as Metrikus has not manufactured the Equipment it is not liable to provide any warranty in relation to it, but will pass on any warranty received from the manufacturer and act as agent for the Client in relation to giving effect to any warranty claims.
2.7 Professional Services. Subject to the terms and conditions of this Agreement, Metrikus or its Affiliates may provide the Client with professional services in accordance with Statements of Work as mutually agreed to in writing by the parties from time to time (the “Professional Services”). Those Professional Services shall incorporate the terms of this Agreement.
- Fees and Payment.
3.1 Fees. Client shall pay Metrikus the Fees set out in the payment schedule set out in the applicable SOW in Attachment A.
3.2 Invoicing and Payment. Fees are payable in one installment upon execution of this Agreement or in accordance with the Fees in Attachment A if different. In each case an invoice shall be delivered to the Client by Metrikus. Client is responsible for providing accurate billing and contact information including any appropriate VAT, sales or other taxation details. Fees are due within 30 days of the date of each invoice, but Services shall not commence until the first installment has been received by Metrikus.
3.3 Overdue Payments. If any amounts invoiced are not received by Metrikus by the payment due date, then at Metrikus’s discretion, such charges may accrue interest at the rate of of exercise its statutory right per Late Payment of Commercial Debts (Interest) Act 1998 claim interest at the rate of 8% above the Bank of England Base Rate, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. Metrikus will not exercise its rights under this Section 3.3 if the applicable charges are under reasonable and good-faith dispute and Client is diligently cooperating to resolve the dispute.
3.4 Taxes. Unless otherwise stated in writing, the Fees do not include any taxes, levies, duties or other similar government assessments of any nature, including but not limited to value added, sales and use, or withholding taxes or import taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively “Taxes”). Client is responsible for paying all Taxes associated with this Agreement except for Taxes assessable against Metrikus based on its income, property and employees. If Metrikus has the legal obligation to pay or collect Taxes for which Client is responsible pursuant to this Agreement, the appropriate amount shall be invoiced to and paid by Client, unless Client provides Metrikus with a valid tax exemption certificate authorised by the appropriate taxing authority.
4.1 Intellectual Property Rights. Client acknowledges and agrees that (i) Metrikus (or, if applicable, its licensors) exclusively owns all rights, title and interest in and to the Services, Platform and Documentation, all improvements, enhancements, modifications and derivative works thereof, and all Intellectual Property Rights therein, (ii) its rights to access and use the Platform, Services and Documentation are limited to those specifically granted in this Agreement and no other rights are implied, and (iii) Metrikus reserves all rights not expressly granted hereunder.
4.2 Data. Client owns all right, title and interest in and to Client Data. Client shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of Client Data and of the means by which Metrikus acquires Client Data. In order to improve the Services, Metrikus may collect and analyze certain anonymized usage data relating to the provision, use, and performance of the Services. Client hereby grants Metrikus a worldwide, royalty-free, transferable, sublicensable, irrevocable, perpetual license to use such usage data for the limited purpose of operating, assessing and improving the Services or providing comparisons to similar services provided to third parties, provided Metrikus shall, at all times, preserve the confidentiality of Client Data.
4.3 Client license. Metrikus grants to the Client a worldwide, royalty-free, non-transferable, non-sublicensable, revocable, license to use the Platform during the term of this Agreement for the purpose set out in this Agreement.
4.4 Recommendations. Client grants Metrikus a worldwide, royalty-free, transferable, sublicensable, irrevocable, perpetual license to use and incorporate into the Services any recommendations, enhancement requests, corrections, suggestions or other feedback provided by Client or Authorised Users relating to the functionality and/or operation of the Services.
5.1 Authority. Metrikus and Client each declares that it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform under this Agreement.
5.2 Warranty. Metrikus represents and warrants that it will provide the Services and any Professional Services, in a professional manner consistent with general industry standards and that the Services will perform in accordance with the Documentation in all material respects. Client’s exclusive remedy for breach of the foregoing warranty shall be as provided in Section 7 (Termination).
5.3 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICES, THE PROFESSIONAL SERVICES, AND THE DOCUMENTATION ARE PROVIDED “AS IS” AND AS AVAILABLE, AND METRIKUS MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. METRIKUS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, UNINTERRUPTED OR ERROR-FREE SERVICE, OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.5.3 Limitation of Liability.
(A) IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS OR LOST REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT, TORT OR OTHERWISE, AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE.
(B) EXCEPT WITH RESPECT TO CLIENT’S PAYMENT OBLIGATIONS HEREUNDER, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CLIENT HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM. THE LIABILITIES LIMITED BY THIS SECTION 5.4(B) APPLY REGARDLESS OF THE (I) NATURE OF THE ACTION OR CLAIM, (II) FORM OF THE ACTION OR CLAIM, WHETHER IN CONTRACT, TORT, OR OTHERWISE, AND (III) EVEN IF A PARTY’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
(C) NEITHER METRIKUS, ITS PARTNERS OR SUBSIDIARIES ARE RESPONSIBLE FOR ERRORS IN ANY DATA OR THE FAILURE TO OPERATE OR DETECT ANYTHING OUTSIDE THE SCOPE OF THE SPECIFIC EQUIPMENT OR SENSORS BEING UTILISED AND, IN PARTICULAR, ANY ADDITIONAL CHEMICALS OR OTHER NOXIOUS SUBSTANCES PRESENT BUT NOT DETECTED WHICH MAY BE HARMFUL IN CONNECTION WITH THE PROVISION OF THE SERVICES.
(D) IN THE EVENT ANY EQUIPMENT PROVIDED BY A THIRD PARTY, WHETHER OR NOT SOURCED THROUGH METRIKUS, FAILS TO OPERATE IN ACCORDANCE WITH ITS OPERATIONAL PARAMETERS, METRIKUS SHALL NOT BE RESPONSIBLE FOR ANY LOSSES OR DELAYS RESULTING FROM SUCH FAILURE. METRIKUS UNDERTAKES TO REPLACE ANY FAILED THIRD PARTY EQUIPMENT WITHIN A REASONABLE PERIOD, SUBJECT TO THE TERMS AND TIME PERIODS WITHIN ANY THIRD PARTY PURCHASING CONTRACT IT HAS ENTERED INTO WHETHER THAT EQUIPMENT IS LEASED OR PURCHASED THROUGH METRIKUS AND, IF PURCHASED, SUCH REPLACEMENT SHALL ONLY BE WITHIN THE ORIGINAL MANUFACTURER’S WARRANTY PERIOD.
- Privacy and Secrecy While it is not expected that Metrikus will obtain any Personal Data (as defined below), Metrikus will take commercially reasonable steps (including, without limitation, implementing and monitoring compliance with reasonable and appropriate measures with respect to administrative, technical and physical safeguards) to protect any nonpublic Personal Data (as such term is defined in Regulation (EU) 2016/679 (General Data Protection Regulation)), in the possession of Metrikus as a result of this Agreement against loss and unauthorised access, use, modification, disclosure or other misuse. Metrikus will notify Client in the event of a breach of Metrikus’s security measures involving such Personal Data as soon as is practical, but in any event within twenty-four (24) hours of Metrikus’s confirmation that such information has been impacted. Upon reasonable request by Client, Metrikus will provide Client information regarding the administrative, technical and physical safeguards utilized by Metrikus for the protection of Personal Data and allow Client the ability to monitor Metrikus’s performance regarding the implementation of such safeguards during the Term.
- Term and Termination.
7.1 Term. This Agreement shall be in force from the date both parties have executed this Agreement and shall continue for the period of thirty six (36) months from that date (“Initial Term”). Thereafter, this Agreement will automatically renew for additional one (1) year terms unless either party provides the other party with written notice of termination at least sixty (60) days prior to the expiration of the then current term (each, a Renewal Term and, with the Initial Term, the “Term”). The Fees during any Renewal Term will be notified to the Client on or prior to the aforementioned sixty (60) day point in time. In the absence of such a notification, the Fees shall remain the same
7.2 Termination. Either party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding related to insolvency, receivership, liquidation or assignment for the benefit of creditors.
7.3 Effect of Termination. The following provisions of this Agreement shall survive the termination of this Agreement: (i) any obligation of Client to pay fees before termination, (ii) Sections 3 – 10, and (iii) any other provision of this Agreement that must survive to fulfill its essential purpose.
- Confidentiality. Each party will potentially share with the other certain confidential and proprietary information. Each party, as the recipient of such confidential and proprietary information (“Recipient”), agrees to protect and maintain such information of the disclosing party (“Discloser”) as set forth below.
8.1 Definition. “Confidential Information” means information relating to Discloser’s business including, without limitation, product designs, product plans, proprietary software and technology, services, financial information, marketing plans, business opportunities, pricing information, discounts, inventions and know-how to the extent disclosed to Recipient hereunder.
8.2 Disclosure of Confidential Information. Recipient shall: (i) hold the Confidential Information in strict confidence and take reasonable precautions to protect the Confidential Information (including, without limitation, all precautions Recipient employs with respect to its own confidential information), (ii) not divulge any Confidential Information to any third party (other than to employees or contractors of Recipient as set forth below), (iii) not copy, decompile or reverse-engineer any Confidential Information, or remove any proprietary markings from any Confidential Information, and (iv) only use the Confidential Information in connection with the performance of this Agreement and for no other purpose. Any employee, agent or contractor of Recipient given access to any Confidential Information must have a legitimate “need to know” such information and Recipient shall remain responsible for each such person’s compliance with this Agreement.
8.3 Confidentiality Period. Recipient’s obligations with respect to Confidential Information under this Agreement expire five (5) years from the termination or expiration of this Agreement (except that with respect to any trade secrets, the obligations shall be perpetual).
8.4 Exclusions. This Agreement imposes no obligations with respect to information which (i) was in Recipient’s possession before receipt from Discloser, (ii) is or becomes a matter of public knowledge through no fault of Recipient, (iii) was rightfully disclosed to Recipient by a third party without restriction on disclosure, or (iv) is developed by Recipient without use of the Confidential Information and such independent development can be shown by documentary evidence. Recipient may make disclosures to the extent required by applicable law or legal or governmental authority provided that Recipient provides Discloser prompt notice of any such requirement (to the extent permissible under applicable law) and reasonably cooperates with Discloser in any effort of Discloser to seek a protective order, injunction or to otherwise contest such disclosure, at Discloser’s expense.
8.5 Return/Destruction. Upon termination of this Agreement, Recipient shall (i) promptly cease using the Confidential Information, (ii) destroy or return the Confidential Information and all copies, notes or extracts thereof to Discloser within ten (10) days of receipt of Discloser’s request, and (iii) confirm in writing that it has complied with these obligations.
9.1 Independent Contractors. Metrikus and Client are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
9.2 Waiver. Neither party will be deemed to have waived any of its rights under this Agreement other than by an authorised representative of such party in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any prior or subsequent breach of this Agreement.
9.3 Severability. In the event one or more of the provisions of this Agreement is found to be illegal or unenforceable under applicable law, this Agreement shall not be rendered inoperative but the remaining provisions shall remain in full force and effect.
9.4 Force Majeure. Neither party shall be liable for any failure to perform or delay in performance of any of its obligations under this Agreement caused by circumstances beyond the reasonable control of that party, including but not limited to adverse weather conditions, natural disasters, fires, floods, explosions, earthquakes, nuclear disasters, insurrection, riots, acts of terrorism, war, and acts of Government (a “Force Majeure Event”). In the event of a Force Majeure Event, the affected party's performance under this Agreement shall be suspended for the period that the Force Majeure Event continues and the party will have a reasonable extension of time for performance of its obligations in the circumstances. If the Force Majeure Event continues for more than thirty (30) consecutive days, the unaffected party may terminate this Agreement with immediate effect.
9.5 Notices. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the third business day after mailing by certified mail, or (iii) the first business day after sending by overnight delivery service. The mailing address for each party shall be as set forth in the introductory paragraph above (or as otherwise designated by a party in accordance with this Section 9.5). Notices to Metrikus shall be addressed to the attention of Metrikus’s Chief Executive Officer. Notices to Client shall be addressed to the attention of the Service administrator designated by Client in the Services (or to such other person designated by Client in the Services).
9.6 Assignment/Subcontracting. Neither party may assign any of its rights or obligations under this Agreement without the other party’s prior written consent (not to be unreasonably withheld or delayed); provided, however, either party may assign this Agreement in its entirety without the other party’s consent to an affiliate or in connection with a merger, acquisition, corporate reorganization, resolution, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. Client acknowledges that Metrikus may engage the assistance of subcontractors for purposes hereunder provided it remains responsible for them as if they were original parties to this Agreement.
9.7 Dispute Resolution. If differences of opinion arise in conjunction with the provision of the Services, the parties shall make reasonable efforts to reach an out-of-court settlement and agree on the following escalation procedure by discussion between directors of each of the Client and Metrikus (the “Dispute Resolution Process”):
9.7.1 Dispute Resolution Process. Each party may only seek recourse to the ordinary courts once the Dispute Resolution Process has been resorted to and has proven unsuccessful with regard to the dispute in question. The right of the parties to seek injunctive relief from the ordinary courts shall remain unaffected hereby.
9.8 Governing Law/Jurisdiction. This Agreement shall be governed by the laws of England and Wales, without giving effect to its conflict of laws provisions. The courts of England and Wales shall be the exclusive jurisdiction for any dispute arising out of or in connection with this Agreement.
9.9 Entire Agreement/Amendment. This Agreement and the Attachments hereto set forth the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to the subject matter hereof. This Agreement may not be amended except by the written agreement of the parties.
9.10 Counterparts. This Agreement may be executed electronically, by facsimile, and in counterparts, which taken together shall form one legal instrument.
9.11 Press Release/Interview/Reference. Within six (6) months of the execution of this Agreement (or such other time period as may be agreed to by the parties), Metrikus shall be permitted to issue a press release announcing the relationship between Client and Metrikus. Client will have the right to review and approve the release prior to distribution. Client also agrees to let Metrikus list it, and utilize its logo(s), in order to identify Client as a customer on the Metrikus website and other Metrikus sales and promotional materials. Any such use of Client’s logos will be subject to any applicable trademark usage guidelines of Client as provided to Metrikus.