By using the services or indicating its acceptance of this agreement, you (“you” or “customer”) agree to these terms. 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 entity in order to accept these terms, and you represent and warrant that you have such authority. If the individual accepting these terms does not have the aforementioned authority or do not agree with these terms, they may not use the services.
These Terms and Conditions (“Agreement”) are entered into between Meter, Inc., a Delaware corporation (“Meter”) and 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.
“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 Platform.
“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.
“Analytics” means aggregated and anonymized 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 and de-identified measurements of Services usage and performance relating to Customer’s and its Users use thereof).
“Customer Data” means any performance data or metrics provided by or obtained from Customer and Users in connection with all uses of the Service.
“Designated Site” means any designated site specified in an Ordering Document.
“Documentation” means any user instructions, help information, training materials and other documentation regarding the Services (if any) that are made available by Meter to Customer in electronic or other form.
“Hardware” means any devices provided to the Customer to operate the Platform as specified in the applicable Ordering Document.
“Ordering Document” means an online order specifying the Services and submitted by Customer, or if applicable, 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.
“Platform” means Meter’s network management software-as-a-service application as described in the applicable Ordering Document (including its source code, object code or underlying structure, ideas or algorithms), and including all corrections, improvements, extensions and modifications thereto and new versions thereof.
“Professional Services” means professional services provided by Meter to Customer as described in the applicable Ordering Document.
“Services” means, collectively, the Platform and the Professional Services.
“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.
Account. Customer and its Administrative Users will be responsible to provide Access Protocols to the Platform for its authorized personnel (“Users”) to administer and use, respectively, the Platform through a Customer-specific account (“Account”). Each User will have and use a unique identifier to access the Platform. 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 Meter immediately of any unauthorized use of its Account or any other breach of security.
Access. Subject to all terms and conditions in this Agreement, Meter hereby grants Customer a nonexclusive, nontransferable right to access and use the Platform (and to permit Users and Administrative Users to access the Platform under its Account), and 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.
Customer and Meter agree 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.
The Customer Data is, as between Meter and Customer, the property of Customer. Customer (on behalf of itself and its Users) grants Meter 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.
Notwithstanding anything to the contrary herein, Customer (on behalf of itself and its Users) acknowledges and agrees that Meter shall have the right to: (a) collect, use, and analyze Analytics, and Meter 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 Meter 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 in writing by the Parties.
Customer acknowledges and agrees that once Meter has granted access rights to the Customer Data to a User, Meter 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, Meter reserves the right, in its sole judgment, to revoke, remove, cancel or deny continued access by any User to any Customer Data.
Third Party Software. Meter disclaims all warranties with respect to 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 Meter. If such third party software has been authorized by Meter, Meter disclaims all warranties with respect to any third-party software downloaded or installed in any Hardware by Customer, 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 Meter 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. Meter 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 made available by Meter will constitute Customer’s agreement to be bound by the terms of all licensing, subscription and similar agreements relating to such use.
Support. Subject to the terms and conditions of this Agreement, Meter shall exercise commercially reasonable efforts to provide Technical Assistance and support to Customer for the use of the Platform in accordance with its standard policies and procedures.
Access. As a condition of Meter’s obligations under Section 3.1 (Support), Customer shall provide such information and/or access to Customer resources as Meter may reasonably require in order to provide Technical Assistance under this Agreement. Meter 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).
Hardware Lease. Meter 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 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, 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 Site, 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.
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 Meter. If such third party hardware has been authorized by Meter, Meter disclaims all warranties with respect to third party 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 Meter 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. Meter 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 made available by Meter will constitute Customer’s agreement to be bound by the terms of all licensing, subscription, and similar agreements relating to such use.
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 Sites.
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.
Embedded Software License
Hardware may be accompanied by or include computer software (“Embedded Software”). As between the Parties, all Embedded Software shall remain the sole and exclusive property of Meter or Meter’s licensors, and no title to Embedded Software or any intellectual property contained therein shall pass to Customer. Meter 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 to Customer.
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 Meter and/or its licensors on the Embedded Software.
Installation. Meter shall provide the Professional Services to Customer set forth on the Ordering Document in accordance with all applicable Documentation. Meter or its contractors shall use commercially reasonable efforts to install the Hardware at a time mutually agreed by the Parties after Meter’s acceptance of such order. Meter 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.
Customer Assistance. Customer shall provide Meter or its contractors with such resources, information, assistance, and access to Customer’s premises as Meter 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 Meter or its contractors, whether requested during regular business hours or otherwise. Customer acknowledges and agrees that Meter’s ability to successfully perform the Professional Services in a timely manner is contingent upon its receipt from Customer of the information, resources, assistance, and access to Customer’s premises requested. Neither Meter 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.
Customer Materials. Customer acknowledges that in order to perform the Professional Services, Meter 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, subject to the terms and conditions of this Agreement, Customer hereby grants to Meter a non-exclusive, non-transferable, non-sublicensable, revocable license to use the Customer Materials solely as necessary for Meter or its contractors to perform the Professional Services for Customer.
Fees. Unless otherwise specified in an Ordering Document, Customer shall pay Meter the fees, costs, and expenses described in the applicable Ordering Document within thirty (30) days after Company’s invoice.
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 Meter’s address or to an account specified by Meter.
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. 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 Meter with a valid tax exemption certificate issued by or acceptable to the applicable taxing jurisdiction or entity.
Scope. 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. The Platform, Services, Hardware, Analytics (excluding any Customer Data), Documentation, and pricing information are Meter Confidential Information. The Customer Data and Customer Materials are Customer Confidential Information. 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.
Confidentiality. Except as necessary for the performance of the Receiving Party’s obligations or exercise of its rights expressly set forth in this Agreement, and except for disclosures that are necessary to comply with any legal, regulatory, law enforcement or similar requirement or investigation (provided that the Receiving Party gives the Disclosing Party reasonable advance 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), 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. 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.
Customer Materials and Customer Data. Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted and Customer (and its licensors) shall retain all rights, title and interests (including all intellectual property and proprietary rights) in and to the Customer Materials, Customer Confidential Information, and Customer Data.
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 Meter (and its licensors) shall retain all rights, title and interests (including all intellectual property and proprietary rights) in and to Meter Confidential Information (as defined in Section 7.1 (Scope)), Analytics, Documentation, Hardware (including any Embedded Software), Platform, and Services (collectively, “Company Properties”).
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 Meter, (g) intentionally gain or attempt to gain unauthorized access to the Services(including, without limitation, penetration or similar testing), or (h) permit any third party to do any of the foregoing.
Customer. Customer represents and warrants to Meter that (a) its use of the Services complies with and will at all times comply with all applicable laws and regulations, (b) the Services do not breach or conflict with any agreement between Customer and a third party, and (c) the premises of the Designated Sites shall be in a safe and orderly condition when accessed by Meter or any Meter authorized representative.
Meter. Meter represents and warrants to Customer that (a) Meter will perform the Services in a professional and workmanlike manner, (b) Meter has full right, power and authority to enter into and perform this Agreement, including the right to grant all licenses granted by Meter hereunder, and (c) Meter’s installation and maintenance of the Company Properties complies with and at all times will comply with all applicable laws and regulations.
Disclaimers. Except as specifically provided herein, all Customer Materials and Customer Data provided by or on behalf of Customer, and all 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. Except as specifically provided herein or in an applicable ordering document, Company and Customer and each of their 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, each of Customer and Company hereby disclaims (for itself and its licensors) all other representations and warranties, whether express or implied, oral or written, with respect to Customer Materials or Customer Data provided by or on behalf of Customer or 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.
Customer. Customer agrees to defend, indemnify and hold harmless Meter and its directors, officers, employees and agents (“Representatives”) against any liability, damage, loss or expense (including reasonable attorneys’ fees and costs) (“Losses”) incurred by Meter or its Representatives in connection with any third party claim arising out of or relating to (a) Customer’s access to or use of the Company Properties at any time, or (b) any breach of Customer’s representations or warranties.
Meter. Meter agrees to defend Customer and its Representatives against any Losses incurred by Customer or its Representatives in connection with any third party claim arising out of any infringement or misappropriation by the Platform of any U.S. intellectual property rights. Meter 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 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 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 Meter, 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.
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 expressly for the use of Customer’s Users.
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.
Types of damages. Except for amounts arising from (a) a party’s breach of its confidentiality obligations, or (b) either party’s indemnification obligations, 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.
Amount of damages. Except for amounts arising from (a) a party’s breach of its confidentiality obligations or (b) either party’s indemnification obligations hereunder, to the extent permitted by law, 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.
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.
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”. Notwithstanding the foregoing, if this Agreement expires pursuant to a notice of non-renewal, each Order Form with a term extending beyond the termination of this Agreement shall continue until the end of the term provided in such Order Form and shall remain subject to all terms of this Agreement.
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.
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 Meter any outstanding balance of fees due by Customer to Meter that are applicable to the period prior to expiration or termination; (b) Customer will immediately cease all use of the Services and Platform and, within ten (10) days after such expiration or termination, at Meter’s option, return to Meter all Hardware and other Company Properties or permit Meter to pick up all Hardware and other Company Properties inside of Customer’s premises; 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 (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), 9.3 (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.
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.
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.
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.
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.
Notices. All notices will be in writing, in English and delivered to the Parties at their respective addresses stated in the applicable Ordering Document, 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.
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, Meter 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 solely to the extent necessary 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.
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.
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.
Subcontracting. Before allowing any subcontractor to begin performing services, Meter will enter into a binding written agreement with such subcontractor that protects Customer’s Confidential Information to at least the same degree as this Agreement. Meter will be responsible for the direction and coordination of each subcontractor. Customer will have no obligation to pay any subcontractor.