By entering into an Ordering Document that references these terms and conditions, or by using the Services (as defined below) or otherwise indicating your acceptance of this agreement, you agree on behalf of the customer identified on the Ordering Document or in the enterprise account (“Customer”) to these terms and conditions. If you are using the services as an employee, contractor, or agent of a company, corporation, partnership or similar entity, then you must be authorized to sign for and bind the Customer in order to accept these terms, and you represent and warrant that you have such authority. If the individual accepting these terms and conditions does not have the aforementioned authority or does not agree to these terms and conditions, neither the individual nor the Customer may use the services. Together, the Ordering Document and these terms and conditions form the agreement between Meter, Inc. (“Meter”) and the Customer.
The “Effective Date” of this Agreement is the date set forth in the Ordering Document or, if not specified in an Ordering Document, the date that the Customer first accesses the Services through any online registration or order process.”
Meter Network as a Service. Subject to the terms of this Agreement, Meter will provide Customer with its Meter Network as a Service as described at https://www.meter.com/product-terms (the “Services”) at certain Customer locations. The Services consist of the following:
Hardware. Meter will provide Customer with networking equipment and hardware (“Hardware”) as further described in Section 6 (Hardware).
Firmware: Meter will install firmware on Hardware (“Firmware”) and make updates from time to time, as Meter reasonably determines is necessary.
Platform. Customer may access and use Meter’s cloud-based software as a service platform (the “Platform”) as further described in Section 7 (Platform; Proprietary Rights).
Operations. Meter may provide Customer with certain operational services (which may include on-site installation) as mutually agreed upon between the parties in writing.
Support. Meter will provide Customer with support as described in its Service Level Agreement available at meter.com/product-terms#support (the “Service Level Agreement”).
Ordering Document. Meter will provide the Services to each Customer location listed in a mutually signed location addendum (each location, a “Designated Location,” and each addendum, a “Location Addendum”).
Subscription Fees. For each Location Addendum, Customer shall pay Meter the monthly fees as referenced therein. Meter shall have the right to increase pricing under a Location Addendum following the Initial Term, and thereafter on an annual basis, and each such increase will take place in the immediately subsequent contract year.
ISP Fees. For each circuit that Customer agrees to have Meter manage, Meter shall pay amounts due and payable to the circuit provider as part of the Services. Customer shall pay Meter amounts charged or passed through by Meter reflecting the total costs of the circuit, such as monthly service charges, taxes, installation costs, early termination fees, service calls, equipment, circuit extensions, and construction, to the extent any such amounts are applicable with respect to any particular circuit in a particular billing period.
Account. Customer and its authorized personnel and administrative users (collectively, “Users”) will be responsible for providing passwords and security credentials to the Platform to its Users. Each User will have and use a unique identifier to access the Platform. Customer is solely responsible for maintaining the confidentiality of its 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 Meter immediately of any unauthorized use of its account or any other breach of security.
Supporting Documentation. Customer shall provide Meter with a copy of the lease(s) or other supporting documentation reasonably requested to verify the details set forth in any Location Addendum.
Access and Assistance. As a condition of Meter’s obligations under this Agreement, Customer shall provide Meter and its designated personnel with information, assistance and/or access as they may reasonably request to perform their obligations under this Agreement (including, without limitation, access to Designated Locations for installation and support). Meter shall be excused from any non-performance the extent it is caused by Customer’s failure to provide any such information, assistance and/or access.
Approved Components. Customer may not download, install, or use any third-party software on the Hardware or any third-party hardware with the Platform (except for devices that use the Platform to connect to the internet in the ordinary course as contemplated by this Agreement), in each instance, unless authorized in writing by Meter in advance.
Optional Third-Party Services. Meter may make available optional third-party services and/or integrations in connection with the Platform (“Third-Party Services”). To use these Third-Party Services, Customer may be required to agree to terms with third-party service providers. Meter shall not be responsible for any such third-party terms. Customer’s use of any Third-Party Services is solely between Customer and the applicable third-party provider and Meter is not responsible for any failure by or support for such Third-Party Services.
Payment. Unless otherwise specified in a Location Addendum, Customer shall pay Meter the fees, costs, and expenses described in the applicable Location Addendum within fifteen (15) days after date of Meter’s invoice. Customer shall pay in United States Dollars to an account designated by Meter. Customer agrees and understands that amounts invoiced by Meter may include adjustments or additional costs relating to Meter’s cost of providing the Services, including without limitation Meter’s payment of ISP Fees associated with Customer’s circuits.
Go-Live. Unless otherwise specified in a Location Addendum, subscription fees for a Designated Location shall commence on its applicable Go-Live Date (as defined below). Meter will inform Customer via email or the Platform when the Services are “live” at a Designated Location. The date Meter informs Customer of the foregoing is the “Go-Live Date” for such Designated Location.
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 Meter’s income. If any deduction or withholding is required by law, Customer agrees to gross up the payment to ensure that Meter receives the full amount it would have received had no deduction or withholding been required. If Customer claims exemption from any tax, then it shall furnish Meter with a valid tax exemption certificate issued by or acceptable to the applicable taxing jurisdiction or entity.
Term. This Agreement shall commence on the Effective Date and continue in effect for the Initial Term set forth in the Ordering Document or the applicable Location Addendum (the “Initial Term”) or until terminated in accordance with Section 5.2 (Termination). After the Initial Term, this Agreement will automatically renew for successive twelve (12) month-terms (each, a “Renewal Term,” collectively, the “Term”), unless either party gives notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term.
Termination. This Agreement and any or all Location Addendums 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 thirty (30) days (or ten (10) days in the case of non-payment) after receiving notice of such breach from the non-breaching party. Either party may terminate this Agreement (including all Location Addendums) immediately upon notice to the other party if the other party: (a) becomes insolvent or unable to pay its debts as they mature; (b) makes an assignment for the benefit of creditors; (c) seeks relief under any bankruptcy law, receivership, trust deed, creditors arrangement, composition, or comparable proceeding; or (d) has any such proceeding instituted against it which is not dismissed within sixty (60) days.
Location Addendum Terms. The term of each Location Addendum shall end on the date this Agreement is terminated. Notwithstanding the foregoing, if this Agreement expires pursuant to a notice of non-renewal, each Location Addendum with a term extending beyond the Term shall continue until the end of the term indicated in such Location Addendum. Each such Location Addendum will remain subject to all terms of this Agreement.
Effects of Termination. Upon any termination of this Agreement, except as otherwise provided in Section 5.3 (Location Addendum Terms), Customer shall immediately cease all use of the Services and Meter Properties (as defined below). Within ten (10) days after any expiration or termination, at Meter’s option, Customer shall return to Meter all Hardware and other Meter Properties or permit Meter to pick up all Hardware and other Meter Properties inside of Customer’s premises.
Survival. All payment obligations and the following Sections shall survive any expiration or termination of this Agreement: 5.4 (Effects of Termination), this 5.5 (Survival), 6.2 (Return of Hardware), 6.3 (Possession and Use), 6.4 (Liens and Encumbrances), 6 (Platform; Proprietary Rights), 8 (Confidentiality), 10.4 (Disclaimers), 11 (Indemnification), 12 (Limitation of Liability), and 13 (General Provisions).
Hardware Lease. All Hardware is leased to Customer in accordance with the terms of this Agreement. Meter will provide to Customer the Hardware as Meter reasonably determines is necessary to conform to the Service Level Agreement. 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 Meter, at which point Meter will repair or replace Hardware to the extent necessary within a commercially reasonable timeframe. If Customer has met its maintenance responsibility in this Section 6.1 (Hardware Lease), then the replacement will be at no cost to Customer; otherwise, Customer will pay Meter the applicable fees and costs for repairing or replacing such Hardware. Customer will provide Meter with reasonable access to the Hardware for the purpose of repair or replacing defective Hardware. Customer will not allow anyone other than Meter or its authorized agents to service any Hardware without Meter’s prior written authorization (email acceptable). 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.
Return of Hardware. Upon expiration or termination of this Agreement or if Customer relocates from any Designated Location, Customer will, at Meter’s option: (a) reasonably cooperate with Meter and the applicable landlord to make the Hardware available as installed for future tenants, (b) reasonably cooperate with Meter and the applicable landlord to provide Meter with access to remove the Hardware, or (c) return, at the Customer’s cost, the Hardware in accordance with return instructions provided by Meter. Such Hardware shall be in the same condition (subject to ordinary wear) as when delivered to Customer.
Possession and Use. Ownership and title to leased Hardware shall at all times be vested in Meter, 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 without Meter’s written permission. Customer may use the Hardware only at Designated Locations.
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.
Access to Platform. During the Term, Meter hereby grants Customer (including its permitted users and administrative users) a nonexclusive, nontransferable right to access and use the Platform solely for its internal purposes and subject to Meter’s then published documentation.
Firmware License. Meter hereby grants Customer a non-exclusive, nontransferable license to use and execute the Firmware solely in object code and solely on the Hardware that such Firmware was originally loaded by Meter, subject to this Agreement. Firmware is licensed, not sold. Meter retains all rights, title and interest in and to the Firmware, except for the express license grants stated in this Section.
Meter Properties. As between the parties, except for the limited license set forth in Section 7.1 (Access to Platform), Meter shall retain all rights, title and interest (including all intellectual property rights) in and to the Platform, the Hardware (and the Firmware embedded therein), the Documentation, the Analytics, and the Services (collectively, the “Meter Properties”).
Restrictions. Customer shall not, directly or indirectly, (a) use any Meter Properties to create any software, platform, service, equipment, or documentation that is similar to any Meter Property, (b) attempt to access any component of any Meter Property or to disassemble, decompile, reverse engineer or otherwise discover any source code or underlying organization, structures, ideas or algorithms of any Meter Property, (c) encumber, sublicense, distribute, transfer, rent, lease, lend, access or use any Meter Property in any time-share or service bureau arrangement, (d) copy, adapt, combine, create derivative works of, translate, localize, port or otherwise modify any Meter 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 Meter, (g) intentionally gain or attempt to gain unauthorized access to the Services (including, without limitation, penetration or similar testing), (h) remove any proprietary notices or legends included on the Meter Properties, or (i) permit any third party to do any of the foregoing.
Analytics. In connection with the Services, Meter may collect, use, and analyze statistics, metrics and other analyses that are based on or derived from the Services, the Platform, the Hardware, and/or other related systems and technologies (including, without limitation, usage and performance data relating to Customer’s use thereof) (collectively, “Analytics”), provided that all such Analytics are aggregated/anonymized and do not identify Customer or any individual. Customer may use any Analytics delivered to Customer in connection with Meter’s performance of the Services.
Confidential Information. The term “Confidential Information” means any nonpublic information of a party (the “Disclosing Party”), whether disclosed orally or in written or digital media, or by observation of physical premises, equipment or tangible objects, 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.
Obligations. Except as necessary for the performance of the Receiving Party’s obligations, the Receiving Party shall not access, reproduce , use or disclose any of the Disclosing Party’s Confidential Information without Disclosing Party’s written consent, and shall use reasonable care to protect the Disclosing Party’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.
Exclusions. Notwithstanding the foregoing, Confidential Information does not include information that: (a) is or becomes generally available to the public other than through a wrongful act of the Receiving Party; (b) is or becomes available to the Receiving Party on a non-confidential basis from a source without obligations related thereto; or (c) is independently developed by the Receiving Party, its employees or third-party contractors without reference to or use of the Disclosing Party’s Confidential Information.
Compelled Disclosure. A Receiving Party may disclose Confidential Information to the extent necessary to comply with any legal, regulatory, law enforcement or similar requirement or investigation (provided that, unless otherwise required by applicable laws, the Receiving Party gives the Disclosing Party reasonable notice of such required disclosure and cooperates with the Disclosing Party so that the Disclosing Party has the opportunity to obtain appropriate confidential treatment for such Confidential Information).
Existence of this Agreement. Each party may disclose only the general nature, but not the specific terms (including the pricing), 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.
Meter is committed to maintaining robust security measures designed to protect its systems and Confidential Information Meter will adhere to the information security practices and protocols described at https://www.meter.com/trust as well as its privacy policy set forth at https://www.meter.com/privacy-policy. These practices include, but are not limited to, data encryption, access controls, incident response procedures, and regular security assessments. Meter will update these practices as necessary to ensure compliance with applicable laws and industry standards.
Mutual. Each party represents and warrants that it possesses the full legal right, power, and authority to enter into, deliver, and perform its obligations under this Agreement, without any need for additional approvals or consents from any third parties.
Meter. Meter represents and warrants to Customer that it will perform the Services in a professional and workmanlike manner and in material compliance with all applicable laws and regulations.
Customer. Customer represents and warrants to Meter that (i) the Services do not and will not breach or conflict with any agreement between Customer and a third party and (i) all Designated Locations shall be in a safe and orderly condition when accessed by Meter or any Meter authorized representative.
Disclaimers. EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 10 (WARRANTIES AND DISCLAIMERS), ALL COMPANY PROPERTIES AND SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND (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). METER WILL NOT BE LIABLE FOR ANY DELAY, DEGRADATION OR FAILURE IN THE SERVICES RESULTING FROM OR RELATING TO (A) UNUSUALLY HIGH USAGE VOLUMES, (B) FAILURES IN ANY THIRD-PARTY TELECOMMUNICATIONS SERVICES, NETWORKS OR SYSTEMS (INCLUDING THIRD-PARTY SERVICES), (C) ANY FORCE MAJEURE OR OTHER CAUSE BEYOND ITS REASONABLE CONTROL OR (D) CUSTOMER’S BREACH OF THIS AGREEMENT OR NEGLIGENT ACTS OR OMISSIONS.
Meter. Meter agrees to defend, indemnify, defend and hold harmless Customer and its directors, officers, employees and agents (“Representatives”) against any liability, damage, loss or expense (including reasonable attorneys’ fees and costs) (“Losses”) incurred by Customer or its Representatives in connection with any third-party claim arising out of any infringement or misappropriation by the Services or the Platform of any third-party intellectual property right.
Exclusions. Meter 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 Meter, or (c) alterations, combinations or enhancements of the Services and/or Platform not created by Meter.
Infringement Remedies. If the Services and/or Platform becomes or, in Meter’s opinion, is likely to become the subject of an injunction preventing its use as contemplated herein, Meter 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 Meter may at its option, and without any additional liability to Customer except as expressly set forth below, (c) terminate this Agreement upon notice to Customer and refund to Customer any prepaid fees, pro-rated for the remainder of the prepaid period. This Section 11 (Indemnification) states the entire liability of Meter, and Customer’s exclusive remedy, with respect to any infringement or misappropriation by the Services and/or the Platform.
Customer. Customer agrees to defend, indemnify and hold harmless Meter and its Representatives in connection with any third-party claim arising out of or relating to Customer’s access to or use of the Meter Properties, except to the extent resulting from Meter’s negligence or willful misconduct.
Procedures. The indemnifying party’s obligations hereunder are conditioned on the party seeking indemnification providing (a) prompt notice thereof (provided the indemnifying party will only be relieved of its obligations to the extent it is materially prejudiced by any failure of such notice), (b) reasonable information and cooperation in connection therewith, and (c) 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.
EXCEPT FOR AMOUNTS ARISING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS OR A BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, IN NO EVENT WILL EITHER PARTY (OR ITS SUPPLIERS) BE LIABLE TO THE OTHER PARTY FOR (A) ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM AND WHETHER ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION), OR (B) ANY AMOUNT IN EXCESS OF THE SUM OF ALL FEES PAID AND PAYABLE BY CUSTOMER TO METER UNDER THE APPLICABLE LOCATION ADDENDUM DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. NOTHING IN THIS AGREEMENT WILL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OR FOR DEATH OR PERSONAL INJURY RESULTING THEREFROM. 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.
Insurance. Meter, at its sole cost and expense, will maintain appropriate insurance with Commercial General Liability Broad Form Coverage, in a combined single limit of not less than $4,000,000. A Certificate of Insurance indicating such coverage will be delivered to Customer upon request.
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 Meter’s press releases, marketing, and promotional efforts; provided that Meter 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.
Entire Agreement. This Agreement (including all Location Addendums and the terms and policies referenced in these terms) constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements between the parties regarding the subject matter of this Agreement. Any additional, different or inconsistent terms on any related purchase order, confirmation or similar form provided by Customer, even if signed by the parties hereafter, shall have no effect on this Agreement.
Subcontracting. Meter may use subcontractors to perform the installation and support-related Services that are performed on-site. Meter will be responsible for all acts and omissions of such subcontractors under this Agreement. Meter will be responsible for the direction and coordination of each subcontractor. Customer will have no obligation to pay any subcontractor.
Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but taken together constituting one and the same instrument. Delivery and execution of this Agreement by electronic means (including via email or electronic signature platform) shall have the same force and effect as execution and delivery of an original signed copy.
Waiver. 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.
Severability. 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.
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.
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. 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.
Injunctive Relief. Each party agrees that, in the event of any breach or threatened breach of Section 7 (Platform; Proprietary Rights) or 8 (Confidentiality), 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.
No Third-Party Beneficiaries. Nothing expressed 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.
Notices. Notices under this Agreement shall be in writing, in English, and deemed effective upon actual receipt when delivered personally or by overnight courier, or three (3) business days after mailing by certified or registered mail, return receipt requested, to the applicable address specified below or to such other address as either party may designate by notice in accordance with this Section 13.12.
Notices to Meter:
Meter, Inc.
Attn: Legal Team
2700 18th Street
San Francisco, CA, 94110
With a copy to (not to constitute notice):
legal@meter.com
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. Notwithstanding the foregoing, 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 to which this Agreement relates (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 here.