Terms & Conditions - Metrikus in a box

 These terms (this “Agreement”) apply for any purchases of the Metrikus in a box solution (the “Solution”) by a customer (“Customer”) from Metrikus Limited (a company incorporated in England with its registered office at 10 Arthur Street, London EC9R 4AY ("Metrikus"). A Customer agrees to these terms by placing an order via the Metrikus website.

Definitions

The following definitions apply:

1. “Authorised User” - any of Customer’s employees, representatives, consultants, agents, or other persons expressly authorised and permitted by Customer in connection with Customer’s business to use the Services.
2. “Customer Data” – data, including static data, from Customer in electronic form input or collected through the Services directly or by or from Authorised Users in the course of using the Services.
3. “Documentation” - Metrikus’s user guides, documentation, and training materials, as updated by Metrikus from time to time and accessed via the Platform.
4. “Equipment” – the sensors and connecting electronic equipment provided to the Customer from time to time by Metrikus that includes but is not limited to sensors that connect to the Platform and as set out on the Metrikus website when a Customer submits an offer to purchase.
5. “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.
6. “Platform” – the Metrikus platform used by Metrikus to deliver the Services including the Intellectual Property used in the Platform.
7. “Purchase Price” – the price to purchase the Services and Equipment set out on the Metrikus website from time to time.
8. “Services” – the provision of the Platform software as a service solution digitally displaying the output of various data feeds from electronic sensors.

 Services.

 2.1        Access and Use. This Agreement governs the terms on which Metrikus will provide Equipment and Services comprising the Solution. Metrikus shall provide the Solutions to the Customer following acceptance of this Agreement online and payment of the Purchase Price.

2.3        Customer Responsibilities. Customer shall use the Solutions only in accordance with this Agreement. Customer 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. Customer may use the information provided through the Services in connection with its own business purpose and make public that information. Customer shall install all Equipment itself and connect the Equipment to the Platform. Metrikus shall not be responsible for any errors or damage that occur as a result of incorrect installation or connection.

2.4 Equipment Purchased Equipment purchased by the Customer as part of the Solution shall transfer to the Customer on payment of the Purchase Price. As Metrikus is a reseller of the Equipment rather than being the manufacturer, Metrikus shall notify the Customer of the terms of any warranty provided by the third party manufacturer of the Equipment. The Customer 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 Customer in relation to giving effect to any warranty claims.

 Fees and Payment.

 3.1        Fees. Customer shall pay Metrikus the Purchase Price for the Solutions.

 3.2        Invoicing and Payment. Fees are payable in one installment upon execution of this Agreement online by the Customer. An invoice shall be delivered to the Customer by Metrikus. Customer is responsible for providing accurate billing and contact information including any appropriate VAT, sales or other taxation details.

 3.4        Taxes. Unless otherwise stated in writing, the Purchase Price includes all taxes, and shipping costs provided the Equipment and Services are provided in the United Kingdom unless otherwise explicitly stated on the Metrikus website.

 4.1        Intellectual Property Rights. Customer 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. Customer owns all right, title and interest in and to Customer Data. Customer shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of Customer Data and of the means by which Metrikus acquires Customer 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. Customer 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 or providing analytical data that may be in the form of an index of data, provided Metrikus shall, at all times, preserve the confidentiality of Customer Data.

4.3        Customer license. Metrikus grants to the Customer 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. Customer 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 Customer or Authorised Users relating to the functionality and/or operation of the Services.

 Warranties/Disclaimers/Liability.

5.1        Authority. Metrikus and Customer 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. Customer warrants that it is a business user and not an individual or consumer.

5.2        Warranty. Metrikus represents and warrants that it will provide the 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. Customer’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 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.

5.4       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 CUSTOMER’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 CUSTOMER 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, SUCH REPLACEMENT SHALL ONLY BE WITHIN THE ORIGINAL MANUFACTURER’S WARRANTY PERIOD.

6. 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 Customer 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 Customer, Metrikus will provide Customer information regarding the administrative, technical and physical safeguards utilized by Metrikus for the protection of Personal Data and allow Customer the ability to monitor Metrikus’s performance regarding the implementation of such safeguards during the Term.

 Term and Termination.

7.2        Termination. Metrikus may terminate this Agreement for cause (i) immediately should the Customer breach any provision of this Agreement or (ii) if the Customer fails to comply with any online fair use terms used by Metrikus that the Customer has agreed to in order to access the Platform.

7.3        Effect of Termination. The following provisions of this Agreement shall survive the termination of this Agreement: (i) any obligation of Customer to pay fees before termination, (ii) Sections 3 – 8, and (iii) any other provision of this Agreement that must survive to fulfill its essential purpose.

8.    Miscellaneous.

8.1        Independent Contractors. Metrikus and Customer are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

 8.2        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.

8.3        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.

 8.4        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 8.5). Notices to Metrikus shall be addressed to the attention of Metrikus’s Chief Executive Officer. Notices to Customer shall be addressed to the attention of the Service administrator designated by Customer in the Services (or to such other person designated by Customer in the Services).

8.5        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. Customer 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.

8.6        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 board members of each of the Customer and Metrikus (the “Dispute Resolution Process”):

8.7 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.

8.8        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.

8.9        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.

8.10      Online execution. This Agreement may be executed electronically and in counterparts which taken together shall form one legal instrument.

8.11      Reference. Metrikus shall be permitted to refer to the Customer as a customer of it.