Meter, Inc.

Terms & Conditions

1.

Definitions

1.1

“Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer or any Users to access the Services.

1.2

“Administrative User” means the Customer employees and independent contractors that are authorized to contact or use the support services described in Section 3 (Support) below.

1.3

“Analytics” means statistics, metrics and other analyses that are based on or derived from the Services, Platform, Hardware, Customer Data, or other related systems and technologies (including without limitation, aggregate measurements of Services usage and performance relating to Customer’s and its Users use thereof). 

1.4

“Customer Data” means any information and data provided by or obtained from Customer and Users in connection with all uses of the Service.

1.5

“Documentation” means any user instructions, help information, training materials and other documentation regarding the Services (if any) that are made available by Company to Customer in electronic or other form.

1.6

“Hardware” means any devices provided to the Customer to operate the Platform as specified in the applicable Ordering Document.

1.7

“Ordering Document” means the cover page to this Agreement or a supplemental ordering document, which shall be in writing and signed by both Parties and shall specify the Services and Hardware to be acquired by or for Customer.  

1.8

“Platform” means the technology platform developed and/or used by Company in providing the Services (including all related ideas, concepts, inventions, systems, hardware, software, interfaces, dashboards, tools, utilities, content, templates, forms, samples, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies, implementations and information), and including all corrections, improvements, extensions and modifications thereto and new versions thereof. 

1.9

“Professional Services” means professional services provided by Company to Customer as described in any Ordering Document.

1.10

“Services” means the Company’s network management software-as-a-service application that allows Users to access certain features and functions through a web interface.

1.11

“Technical Assistance” means the provision of online, telephone, and on-site responses and assistance, as applicable, to questions from and issues reported by Customer related to Customer’s use of the Services.

2.

Services

2.1

Account. Customer and its Administrative Users will be responsible to provide Access Protocols to the Services for its authorized personnel (“Users”) to administer and use, respectively, the Services through a Customer-specific account (“Account”). Each User will have and use a unique identifier to access the Services. Customer is solely responsible for maintaining the confidentiality of all Account information (including access credentials), and will be fully liable for any and all activities under its Account. Customer agrees to keep all Account information up-to-date and to notify Company immediately of any unauthorized use of its Account or any other breach of security.

2.2

License. Subject to all terms and conditions in this Agreement, Company hereby grants Customer a nonexclusive, nontransferable right and license, without the right to sublicense, to access and use the Platform (and to permit Users and Administrative Users to access the Services under its Account) through the Hardware, in each case, solely for its internal purposes. Customer’s access and use of the Platform shall at all times comply with all other conditions set forth in this Agreement.

2.3

Data

(a)

Customer agrees to comply with all laws, regulations and rules regarding the use, confidentiality and security of personally identifiable information, to the extent any such law, regulation or rule is applicable to its performance under this Agreement.

(b)

The Customer Data (other than Analytics relating thereto) is, as between Company and Customer, the property of Customer. Customer (on behalf of itself and its Users) grants Company a non-exclusive, worldwide, royalty-free and fully paid right and license to access and use the Customer Data as necessary for purposes of providing and improving the Platform to Customer and its Users and enabling the operation of the Platform, and otherwise as necessary to perform its obligations hereunder.

(c)

Notwithstanding anything to the contrary herein, Customer (on behalf of itself and its Users) acknowledges and agrees that Company shall have the right to: (a) collect, use, and analyze Analytics, and Company shall be free (during and after the term of this Agreement) to (i) use Analytics to improve and enhance the Platform and for other development, diagnostic, and corrective purposes in connection with the Platform and Professional Services, and (ii) disclose, sublicense, market, sell, and otherwise use and commercially exploit Analytics in aggregate or other de-identified form in connection with its business; (b) use Customer Data to protect the rights, property or safety of Company or others or to investigate or enforce suspected breaches of this Agreement; and (c) use Customer Data as otherwise provided in this Agreement or as otherwise mutually agreed upon by the Parties.

(d)

Customer acknowledges and agrees that once Company has granted access rights to the Customer Data to a User, Company has no control over the uses and disclosures that the User makes of Customer Data, and Customer and such individuals or entities may be subject to legal or regulatory obligations to retain and protect such information and make such information available to governmental authorities and others as required by applicable law or regulation. In any event, but especially in cases of potential fraud, misuse or abuse of the Services, Company reserves the right, in its sole judgment, to revoke, remove, cancel or deny continued access by any User to any Customer Data.

2.4

Third Party Software. Customer may not download, install, or use any software on Hardware or in connection with the Platform that has not been authorized in writing by Company. If such third party software has been authorized by Company, Company disclaims all warranties with respect to such software, assumes no liability regarding the use of such software, and will not furnish any support or services relating to such software, unless otherwise agreed upon by Company and the applicable third party in a separate written agreement. Customer may have to enter into separate written agreements with the applicable third parties for use of such third-party software, and in so doing, Customer will comply with all such agreements. Company may also make available optional services provided by third parties. Customer will comply with and, upon request, execute, any agreements that may be required for the use of such services. Additionally, Customer’s use of the Platform or of such third-party products or services will constitute Customer’s agreement to be bound by the terms of all licensing, subscription and similar agreements relating to such use.

3.

Support

3.1

Support. Subject to the terms and conditions of this Agreement, Company shall exercise commercially reasonable efforts to provide Technical Assistance and support to Customer for the use of the Platform during Company’s ordinary and customary business hours in accordance with its standard policies and procedures.

3.2

Access. As a condition of Company’s obligations under Section 3.1 (Support), Customer shall provide such information and/or access to Customer resources as Company may reasonably require in order to provide Technical Assistance under this Agreement. Company shall be excused from any non-performance of its obligations hereunder to the extent any such non-performance is caused by Customer’s failure to perform its obligations under this Section 3.2 (Access).

4.

Hardware

4.1

Hardware Lease. Company will lease and provide to Customer the Hardware as specified in the applicable Ordering Document. Customer shall at all times maintain the Hardware in good operating condition and repair, normal wear and tear excepted. In the event that Customer is unable to access or use the Platform as a result of defective Hardware, Customer shall notify Company, at which point Company will repair or replace Hardware to the extent necessary within a commercially reasonable timeframe following receipt of the defective Hardware from Customer. If Customer has met its maintenance responsibility in this Section, then the replacement will be at no cost to Customer; otherwise, Customer will pay Company the applicable fees and costs for repairing or replacing such Hardware. Customer will provide Company with reasonable access to the Hardware for the purpose of repair or replacing defective Hardware. Customer will not allow anyone other than Company or its authorized agents to service any Hardware. Customer shall be responsible for any and all damage to the Hardware as a result of unauthorized downloads, vandalism, abuse, neglect or force majeure, regardless of whether such vandalism, abuse, neglect or force majeure is caused by Customer or any other third party to whom Customer has granted access.

4.2

Return of Hardware. Upon expiration or termination of this Agreement or if Customer relocates from the Designated Site, Customer will, at Company’s option: (a) cooperate with Meter and the applicable landlord to make the Hardware available as installed for future tenants, (b) cooperate with Meter and the applicable landlord to provide Company with access to remove the Hardware, or (c) return, at the Customer’s cost, the Hardware in accordance with return instructions provided by Company. Such Hardware shall be in the same condition (subject to ordinary wear) as when delivered to Customer.

4.3

Third Party Hardware. Customer may not use or combine any third party hardware with Hardware or use such third party hardware in connection with the Platform that has not been authorized in writing by Company. If such third party hardware has been authorized by Company, Company disclaims all warranties with respect to such hardware, assumes no liability regarding the use of such hardware, and will not furnish any support or services relating to such hardware, unless otherwise agreed upon by Company and the applicable third party in a separate written agreement. Customer may have to enter into separate written agreements with the applicable third parties for use of such third-party hardware, and in so doing, Customer will comply with all such agreements. Company may also make available optional services provided by third parties. Customer will comply with and, upon request, execute, any agreements that may be required for the use of such services. Additionally, Customer’s use of the Hardware or of such third-party products or services will constitute Customer’s agreement to be bound by the terms of all licensing, subscription, and similar agreements relating to such use.

4.4

Possession and Use. Ownership and title to leased Hardware shall at all times be vested in Company, to the exclusion of Customer, notwithstanding Customer’s possession of such Hardware. Customer shall not sublease or in any manner deliver, transfer or otherwise relinquish possession of any of the Hardware. Customer may use the Hardware only at the site(s) designated in the applicable Ordering Document (each, a “Designated Site”).

4.5

Liens and Encumbrances. Customer shall not, directly or indirectly, create, incur or otherwise allow to be incurred or be in existence at any time mortgage, pledge, hypothecation, assignment, security interest, lien, charge or other encumbrance or similar claim on any Hardware.

4.6

Embedded Software License

(a)

Hardware may be accompanied by or include computer software (“Embedded Software”). All Embedded Software shall remain the sole and exclusive property of Company or Company’s licensors, and no title to Embedded Software or any intellectual property contained therein shall pass to Customer. Company grants Customer a nonexclusive, nontransferable right and license, without the right to sublicense solely to use the Embedded Software as embedded in the Hardware, solely in connection with the use of the accompanying Hardware, and solely in accordance with any applicable user documentation provided with such Embedded Software and/or Hardware.

(b)

Customer shall not copy, modify, or disassemble, or permit others to copy, modify, or disassemble, the Embedded Software, nor may Customer modify, adapt, translate, reverse assemble, decompile, or otherwise attempt to derive source code from the Embedded Software. Customer shall retain on all copies of the Embedded Software all copyright and other proprietary notices or legends included by Company and/or its licensors on the Embedded Software.

5.

Professional Services

5.1

Installation. Company or its contractors shall use commercially reasonable efforts to install the Hardware at a time mutually agreed by the Parties after Company’s acceptance of such order. Company will perform its standard acceptance test at Customer’s site following installation, and verification by the Parties that the Hardware complies in all material respects with the Documentation shall constitute acceptance of the Hardware by Customer. Notwithstanding the foregoing, all installed Hardware shall be deemed accepted by Customer thirty (30) days after such installation unless such Hardware fails the acceptance test set forth in this Section.

5.2

Customer Assistance. Customer shall provide Company or its contractors with such resources, information and assistance as Company or its contractors may reasonably request in connection with the performance of the Professional Services. Without limiting the generality of the foregoing, in the event the Professional Services are provided on Customer’s premises, Customer shall provide safe and adequate space, power, network connections, materials, access to its hardware, software and other equipment, assistance from qualified personnel familiar with Customer’s hardware, software and data processing requirements and other resources as reasonably requested by Company or its contractors, whether requested during regular business hours or otherwise. Customer acknowledges and agrees that Company’s ability to successfully perform the Professional Services in a timely manner is contingent upon its receipt from Customer of the information, resources and assistance requested. Neither Company nor its contractors shall bear liability for deficiencies in the Professional Services resulting from the acts or omissions of Customer, its agents or employees or performance of the Professional Services in accordance with Customer’s instructions.

5.3

Customer Materials. Customer acknowledges that in order to perform the Professional Services, Company or its contractors may require access to certain Customer software or other information or material of Customer or Customer’s suppliers (“Customer Materials”). Accordingly, except to the extent prohibited under any third party license from Customer’s suppliers, Customer hereby grants to Company a non-exclusive, non-transferable license to use the Customer Materials as necessary for Company or its contractors to perform the Professional Services.

6.

Payments

6.1

Fees. Customer shall pay Company the fees, costs, and expenses described in the applicable Ordering Document, in the amounts and at the times set forth therein, and as otherwise stated in this Agreement. Company reserves the right to increase the fees payable hereunder upon written notice to Customer at least 60 days prior to each Renewal Term (as defined below).

6.2

Payment Terms. Unless specified otherwise in writing by the Parties, all amounts due hereunder shall be paid in full (without deduction, set-off or counterclaim) within thirty (30) days after date of invoice in US dollars at Company’s address or to an account specified by Company.

6.3

Taxes. All payments required by this Agreement are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes), and Customer agrees to bear and be responsible for the payment of all such charges, excluding taxes based upon Company’s net income. All amounts due hereunder shall be grossed-up for any withholding taxes imposed by any tax authority. If Customer claims exemption from any tax, then it shall furnish Company with a valid tax exemption certificate issued by or acceptable to the applicable taxing jurisdiction or entity.

7.

Confidentiality

7.1

Scope. The term “Confidential Information” means any nonpublic information of a party (the “Disclosing Party”), whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of such disclosure or that the receiving party (the “Receiving Party”) knows or should have known is the confidential or proprietary information of the Disclosing Party. The Platform, Services, Hardware, Analytics, Documentation, and pricing information are Company Confidential Information.

7.2

Confidentiality. Except for the specific rights granted by this Agreement, and except for disclosures that are necessary to comply with any legal, regulatory, law enforcement or similar requirement or investigation, the Receiving Party shall not access, reproduce, use or disclose any of the Disclosing Party’s Confidential Information without its written consent, and shall use reasonable care to protect the other’s Confidential Information from unauthorized access, use and disclosure (including by ensuring that its employees and contractors who access any Confidential Information have a need to know for the permitted purpose and are bound by obligations that are at least as protective as this Agreement). Each party shall be responsible for any breach of confidentiality by its employees and contractors. Each party may disclose only the general nature, but not the specific terms, of this Agreement without the prior consent of the other party; provided, either party may provide a copy of this Agreement or otherwise disclose its terms in connection with any legal or regulatory requirement, audit, financing transaction, or due diligence inquiry, so long as the party to whom such information is disclosed is bound by confidentiality obligations substantially similar to those herein and the party disclosing such information is responsible for any breaches of confidentiality by the party to whom such information is disclosed.

8.

Proprietary Rights

8.1

Company Properties. Except for the limited rights and licenses to access and use the Services, Platform, Hardware, and Documentation expressly granted hereunder, no other license is granted, no other use is permitted and Company (and its licensors) shall retain all rights, title and interests (including all intellectual property and proprietary rights) in and to the Company Confidential Information (as defined in Section 7.1 (Scope)), Analytics, Documentation, Hardware (including any Embedded Software), Platform, and Services (collectively, “Company Properties”).

8.2

Restrictions. Customer shall not, directly or indirectly, (a) use any Company Properties to create any software, platform, service, equipment, or documentation that is similar to any Company Property, (b) attempt to access any component of any Company Property or to disassemble, decompile, reverse engineer or otherwise discover any source code or underlying organization, structures, ideas or algorithms of any Company Property, (c) encumber, sublicense, distribute, transfer, rent, lease, lend, access or use any Company Property in any time-share or service bureau arrangement, (d) copy, adapt, combine, create derivative works of, translate, localize, port or otherwise modify any Company Property, (e) use or permit the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction, (f) disseminate benchmark performance information or analysis for purposes other than internal issue resolution or as requested by Company, (g) abuse or misuse the Services or Hardware, including gaining or attempting to gain unauthorized access to the Services, (h) conduct any penetration or similar testing of any Company Property, or (i) permit any third party to do any of the foregoing.

8.3

Open Source Software. Certain items of software may be provided to Customer with the Platform and are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of Sections 2.2 or 10.2. Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in this Agreement limits Customer’s rights under, or grants Customer rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, Company makes such Open Source Software, and Company’s modifications to that Open Source Software, available by written request at the notice address specified below.

8.4

Feedback. Customer agrees that Company is free to use in any manner all comments, suggestions and other feedback made by Customer and the Users and other knowledge, experience, know-how, works and technologies (including ideas, concepts, processes and techniques) related to the Platform acquired while providing the Services or Professional Services under this Agreement, including but not limited to improve and enhance the Platform or Professional Services, without payment to Customer or Users in any form.

9.

Limited Warranties and Disclaimers

9.1

Customer. Customer represents and warrants to Company that the access, transfer, collection, processing, distribution and use of Customer Data as described in this Agreement will not violate any applicable law, regulation, or proprietary right (including without limitation, rights regarding privacy, publicity and defamation). In addition, Customer represents and warrants that (a) its use of the Services complies with all applicable law and regulations and (b) Customer’s business, and the services that Customer (and its employees and independent contractors) perform, will be conducted in a professional and workmanlike manner and in accordance with all industry standards and all applicable laws and regulations.

9.2

Disclaimers. Except as specifically provided herein, company properties, and other services provided by or on behalf of company, are provided “as is” and “as available”, without representation or warranty of any kind. Company and its licensors do not warrant that: (a) any information will be timely, accurate, reliable or correct; (b) company properties or other services provided by or on behalf of company will be error-free, uninterrupted, secure or available at any particular time or place; (c) any defects or errors will be corrected; (d) company properties or other services provided by or on behalf of company will meet customer’s business requirements or that any result or outcome can be achieved. To the fullest extent permitted by law, company hereby disclaims (for itself and its licensors) all other representations and warranties, whether express or implied, oral or written, with respect to company properties and other services provided by or on behalf of company, including without limitation, all implied warranties of title, non-infringement, quiet enjoyment, usefulness, merchantability, or fitness for any particular purpose and all warranties arising from any course of dealing, performance, or usage of trade.

Customer is solely responsible for validation of the accuracy of all reports and other outputs from the services, any use or misuse of such reports and other outputs or any services generally, and for protecting its data from loss by implementing appropriate security measures, including routine backup procedures. Customer hereby waives any damages occasioned by lost or corrupt data, incorrect reports, or incorrect data files resulting from programming error, operator error, equipment or software malfunction, security violations, or the use of third-party software.

Company will not be liable for any delay, degradation or failure in the services resulting from or attributable to (a) unusually high usage volumes, (b) failures in any third party telecommunications services, networks or systems, (c) customer’s or any user’s or other third party’s acts or omissions, (d) any force majeure or other cause beyond its reasonable control or (e) unauthorized access to the services.

10.

Indemnification

10.1

Customer. Customer agrees to defend Company against any demand, suit, action or other claim by any third party (including any User) that is related to any (a) Customer Data, or (b) breach of Customer’s representations, warranties and covenants, and to indemnify Company for any and all liabilities (resulting from settlements or judgment awards) based on such claims.

10.2

Company. Company agrees to defend Customer against any demand, suit, action or other claim by any third party that the Services misappropriates or infringes its U.S. intellectual property rights. Company will pay those costs and damages finally awarded against Customer in any such action that are specifically attributable to such claim or conduct or those costs and damages agreed to in a monetary settlement of such action. If the Services and/or Platform becomes or, in Company’s opinion, is likely to become the subject of an injunction preventing its use as contemplated herein, Company may, at its option: (a) obtain the rights needed to continue using the Services and/or Platform, or (b) replace or modify the Services and/or Platform so that it becomes non-infringing without substantially compromising its principal functions. If (a) and (b) are not reasonably available, then Company may at its option, and without any additional liability to Customer except as expressly set forth below, (c) terminate this Agreement upon written notice to Customer and refund to Customer any prepaid fees, pro-rated for the remainder of the prepaid period. The foregoing states the entire liability of Company, and Customer’s exclusive remedy, with respect to any actual or alleged violation of intellectual property rights by the Company Properties, any part thereof or their use or operation.

10.3

Exclusions. Company shall have no liability or obligation hereunder with respect to any claim attributable to (a) any use of the Services and/or Platform not strictly in accord with this Agreement, or in an application or environment or on a platform or with devices for which it was not designed or contemplated, (b) any use of the Services and/or Platform with any third party intellectual property not provided by the Company, or (c) alterations, combinations or enhancements of the Services and/or Platform not created by Company expressly for the use of Customer’s Users.

10.4

Conditions. The indemnifying party’s obligations hereunder are conditioned on (a) the party seeking indemnification providing prompt written notice thereof and reasonable cooperation, information, and assistance in connection therewith (provided the indemnifying party will only be relieved of its indemnification obligations to the extent it is materially prejudiced by the indemnified party’s failure to do any of the foregoing) and (b) the indemnifying party having sole control and authority to defend, settle or compromise such claim. The indemnified party may participate in the defense at its sole cost and expense. The indemnifying party will not enter into any settlement (other than for payment of money subject to its indemnity) that adversely affects the indemnified party’s rights or interests without its prior written approval, not to be unreasonably withheld, conditioned or delayed. The indemnifying party shall not be responsible for any settlement it does not approve in writing.

11.

Limitation of Liability

11.1

Types of damages. In no event will either party be liable to the other party for any incidental, indirect, special, consequential or punitive damages, regardless of the nature of the claim, including, without limitation, lost profits, costs of delay, any failure of delivery, business interruption, costs of lost or damaged data or documentation, or liabilities to third parties arising from any source, even if a party has been advised of the possibility of such damages. This limitation upon damages and claims is intended to apply without regard to whether other provisions of this agreement have been breached or have proven ineffective.

11.2

Amount of damages. The total cumulative maximum liability of either party for any and all claims arising out of or in any way connected to this agreement will not exceed the sum of all fees paid and payable by customer to company during the 12 months preceding the act, omission or occurrence giving rise to such liability. In no event will company’s suppliers have any liability arising out of or in any way connected to this agreement. Nothing in this agreement will limit or exclude either party’s liability for gross negligence or intentional misconduct of a party or its employees or agents or for death or personal injury.

11.3

Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section 11 will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.

12.

Term and Termination

12.1

Term. This Agreement shall commence on the Effective Date and continue in effect for the Initial Term set forth in the Ordering Document. Thereafter, this Agreement will automatically renew for additional terms of 1 year (each, a “Renewal Term”) unless either party gives written notice of non-renewal to the other party at least 30 days prior to the expiration of the then-current term. The Initial Term and any Renewal Terms are collectively, the “Term”.

12.2

Termination. This Agreement may be earlier terminated by either party if the other party breaches any material provision of this Agreement and fails to cure such breach within 30 days (10 days in the case of non-payment) after receiving written notice of such breach from the non-breaching party.

12.3

Effects of Termination. Upon any expiration or termination of this Agreement, all rights, obligations and licenses of the parties shall cease, except that (a) Customer will immediately pay to Company any outstanding balance of fees due by Customer to Company that are applicable to the period prior to expiration or termination (except as provided in Section 12.4); (b) Customer will cease all use of the Services and Platform and return to Company all Hardware and other Company Properties; and (c) all obligations that accrued prior to the effective date of termination, all remedies for any breach of this Agreement and the provisions of Sections 1 (Definitions), 2.3(c) (Data), 4.2 (Return of Hardware), 4.3 (Third Party Hardware), 4.4 (Possession and Use), 6 (Payments), 7 (Confidentiality), 8 (Proprietary Rights), 9.1 (Customer), 9.2 (Disclaimers), 10 (Indemnification), 11 (Limitation of Liability), 12.3 (Effects of Termination) and 13 (General Provisions) shall survive. Except as otherwise specifically set forth in this Agreement, termination is not the sole remedy and, whether or not termination takes effect, all other remedies remain available except as otherwise expressly limited by this Agreement.

12.4

Refund. Upon termination of this Agreement by Customer within one year of the Effective Date due to Customer’s dissatisfaction with Company’s Services or Platform, Customer will receive a full refund of all fees paid to Company and un-installation of all Hardware and other Company Properties at no cost to Customer.

13.

General Provisions

13.1

Entire Agreement. This Agreement (including the Ordering Document(s)) constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements between the Parties regarding the subject matter of this Agreement. This Agreement may be executed in one or more counterparts, each of which shall be an original, but taken together constituting one and the same instrument. Execution of a facsimile copy (including PDF or other electronic copy) shall have the same force and effect as execution of an original, and a facsimile or digital signature shall be deemed an original and valid signature. Any additional, different or inconsistent terms on any related purchase order, confirmation or similar form, even if signed by the parties hereafter, shall have no effect on this Agreement. Except as expressly provided herein, no change, consent or waiver of this Agreement will be effective unless in writing and signed by the party against which enforcement is sought. The failure of either party to enforce its rights hereunder any time for any period will not be construed as a waiver of such rights, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

13.2

Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, USA, without regard to its conflicts of law provisions. In the event of any conflict between US and foreign laws, rules and regulations, US laws, rules and regulations shall govern. Neither the United Nations Convention on Contracts for the International Sale of Goods nor the implementation of the Computer Information Transactions Act in any jurisdiction shall apply to this Agreement. Exclusive jurisdiction and venue for actions related to this Agreement will be the state or federal courts located in San Francisco County, California, and both parties consent to the jurisdiction of such courts with respect to any such action. Unless expressly provided otherwise, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy.

13.3

Remedies. Except as expressly specified otherwise herein, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. Each party agrees that, in the event of any breach or threatened breach of Section 7 (Confidentiality) or 8 (Proprietary Rights), the non-breaching party may suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to seek injunctive and other equitable remedies, without the necessity of proving actual damages or posting any bond, and without resort to arbitration.

13.4

No Third Party Beneficiaries. Nothing express or implied in this Agreement is intended to confer, nor shall confer, upon any person or entity other than the parties and their respective successors or assigns, any rights, remedies, obligations, or liabilities whatsoever.

13.5

Notices. All notices will be in writing, in English and delivered to the parties at their respective addresses stated herein, or at such other address designated by written notice. Notices will be deemed to have been duly given and effective when received, and shall be personally delivered or sent by overnight courier or certified or registered mail, postage pre-paid, return receipt requested.

13.6

Publicity. Customer hereby consents to inclusion of its name and logos in customer lists and presentation materials that may be published and distributed as part of Company’s press releases, marketing, and promotional efforts; provided that Company will provide Customer with copies of all press releases, marketing, and promotional materials upon request and shall remove Customer’s name and trademark from any such materials as reasonably requested by Customer.

13.7

Assignment. This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by either party without the other party’s written consent, not to be unreasonably withheld, conditioned or delayed. However, without consent, Company may subcontract performance of all or any part of the services to be provided hereunder to any subcontractor (and disclose Customer Data and Confidential Information of Customer to any such subcontractor for such purpose), and either party may assign this Agreement (and all of its rights and obligations hereunder) to any successor to all or substantially all of its business which concerns this Agreement (whether by sale of assets or equity, merger, consolidation, reorganization, change of control, or otherwise). This Agreement is binding upon, and inures to the benefit of, the successors, representatives and permitted assigns of the parties hereto.

13.8

Independent Contractors. The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint ventures or partners for any purpose.

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