TERMS AND CONDITIONS
These Terms and Conditions (these "Terms") are agreed to between Metron-Farnier Holdings Inc., and its subsidiaries and divisions (“Metron-Farnier”) and you, or, if you represent an entity or other organization, that entity or organization (in either case, “you” or “your”). These Terms apply to Metron-Farnier, LLC; Transparent Technologies, Inc.; and Metron Sustainable Services, Inc. businesses, and their parents, subsidiaries, and divisions.
Metron-Farnier offers a smart water management platform (the “Platform”). The Platform provides end users of the Platform (“Users”) with the ability to access and use information, data, and content from Metron-Farnier and other third parties (“Content”); as well as additional resources, enhancements, functionality, support, maintenance, training, and other services described on the Platform (“Services”). The Platform is accessed through Metron-Farnier’s websites including www.metron-farnier.com, www.metronsubmetering.com, and www.waterscope.us, and any other websites operated by Metron-Farnier (each, a “Website”) or using equipment, devices, meters, and systems provided by and on behalf of Metron-Farnier (“Equipment,” and the Websites and Equipment treated as a part of the “Platform” for purposes of this Privacy Policy). In some cases, we may act as an agent of the water utility or property manager that supplies you with water with which you have a customer relationship (the “Water Provider”). In such a situation, the Water Provider has engaged Metron-Farnier to provide Services to you.
These Terms includes the terms and conditions below and the current Privacy Policy, located at https://metronfarnier.com/privacy-policy/ (the “Privacy Policy”) relating to the Platform. You are responsible for compliance with these Terms (including the Privacy Policy).
Unless you have entered into a separate written agreement with Metron-Farnier regarding the Platform, these Terms are the complete and exclusive agreement between you and Metron-Farnier regarding your access to and use of the Platform.
PLEASE CAREFULLY READ THESE TERMS. by ACCESSING OR USING THE Platform, or by clicking a box that states that you accept or agree to these terms, YOU agree THAT YOU HAVE READ AND AGREE TO BE BOUND BY THESE TERMS.
IF YOU DO NOT AGREE TO THESE TERMS, or do not meet the qualifications included in these Terms, Metron-Farnier IS NOT WILLING TO PROVIDE YOU WITH ACCESS TO OR USE OF THE PLATFORM and YOU MUST NOT ACCESS OR USE THE PLATFORM. IF YOU ACCESS OR USE THE PLATFORM, YOU ACKNOWLEDGE that you meet the qualifications included in these Terms and AGREE TO BE BOUND BY THESE TERMS.
1. Definitions. Terms used in these Terms have the definitions given in these Terms or, if not defined in these Terms, have their plain English meaning as commonly interpreted in the United States.
2. Term. These Terms is entered into as of the earlier of the date you first access or use the Platform (the “Effective Date”) and will continue until terminated as set forth herein.
3. Modifications. These Terms may be amended at any time by Metron-Farnier from time to time without specific notice to you. The latest Terms will be made available when you access or use the Platform, and you should review these Terms prior to accessing or using the Platform. If any modification is unacceptable to you, your only recourse is to terminate these Terms. your continued access and use of the Platform following our posting of an amended agreement or providing you notice of a modification will constitute binding acceptance.
4. Eligibility. Access and use of the Platform is intended for use by Users who are at least 18 years of age and able to form legally binding contracts. You represent and warrant that you are not: (a) a citizen or resident of (or located in) any jurisdiction where use of the Platform is prohibited by law; (b) a citizen or resident of (or located in) any country that is currently subject to sanctions or embargoes by the United States or any other country; (c) an individual who is, or who is employed by or associated with a Business Entity that is, identified on the U.S. Department of Commerce’s Denied Persons or Entity List, the U.S. Department of Treasury’s Specially Designated Nationals or Blocked Persons Lists, or the U.S. Department of State’s Debarred Parties List or is otherwise ineligible to receive items subject to U.S. export control laws and regulations or other economic sanction rules of any sovereign nation.
5. Account.
5.1 Users. You may be permitted to access certain Content and Services without establishing a user account on the Platform, provided that you have agreed to these Terms. However, access to and use of certain Content and Services on the Platform, may require you to establish a user account (“Account”) and create a profile with Metron-Farnier (“Profile”). Approval of your request to establish an Account will be at the sole discretion of Metron-Farnier. You may authorize designated Users to access and use the Metron-Farnier on your behalf through your Account by creating a separate Profile for such Users (you and each such User, as applicable, a “User” of your Account). If you are an individual, then you may access and use the Platform through your Account as the sole User of your Account. Each user identification and password for your Account (each, “Account ID”) is personal in nature and may be used only by you or, as applicable, the User to whom the Account ID is issued.
5.2 Registration Information. In connection with establishing an Account, you will be asked to submit certain information about yourself (“Registration Information”) and, as applicable, your association with the Water Provider. You agree that: (a) all such Registration Information you provide will be accurate, complete, and current; (b) you will maintain and promptly update all such Registration Information to keep it accurate, complete, and current; and (c) you will not provide any Registration Information belonging to another person with the intent to impersonate that person. Before posting any Profiles of Users associated with your Account, you are responsible for obtaining any and all authorizations required by federal or state law to authorize the sharing of their Registration Information, including their personal data, on the Platform. Metron-Farnier is not liable for any invasion of privacy or other claim that may be asserted by Users of your Account as a result of your posting of Registration Information regarding Users of your Account on the Platform and the subsequent sharing of that information with other Users, such as your Water Provider. By providing Registration Information, you authorize Metron-Farnier to disclose such information to Water Providers.
5.3 Responsibilities. You are solely responsible for all access to and use of your Account (whether authorized or unauthorized), including Content and Services accessed through your Account. Metron-Farnier may deem any actions taken through your Account to have been authorized by you. You are responsible for compliance, and the compliance any other Users of your Account, with these Terms. You will ensure the security and confidentiality of each Account ID and will notify Metron-Farnier immediately if any Account ID is lost, stolen, or otherwise compromised. You acknowledge that you are fully responsible for all costs, fees, liabilities or damages incurred, and material transferred, stored, modified, or shared through the use of each Account ID (whether lawful or unlawful). You acknowledge that any transactions completed through your Account will be deemed to have been lawfully completed by you. In no event will Metron-Farnier be liable for the foregoing obligations or the failure by you to fulfill such obligations.
5.4 Account Authority. The individual who establishes your Account (the “Account Authority”) will have control over your Account, unless you designate a different Account Authority as specified below. Metron-Farnier may deem the Account Authority to have full authority for all decisions relating to your Account, including: (a) addition or removal of Users; (b) permissions to access your Account; (c) disputes regarding your Account; (d) notices and other communications relating to your Account; and (e) any other decisions that may be required regarding your Account. There must be one and only one Account Authority for each Account at all times. The initial Account Authority must be designated in the initial request to establish an Account. If an initial Account Authority is not designated, the individual requesting to establish an Account shall be deemed the initial Account Authority for that Account. The Account Authority may be changed: (i) by an email sent to Metron-Farnier from the registered email address of the current Account Authority; (ii) by bona fide legal written notice provided to Metron-Farnier; or (iii) as separately set forth by Metron-Farnier. It is your responsibility to properly designate a new Account Authority whenever appropriate. In the event of a dispute where multiple persons claim to be the rightful Account Authority, Metron-Farnier reserves the right, at its sole discretion, to suspend all access to your Account until an Account Authority is properly designated to Metron-Farnier’s sole satisfaction; or terminate your Account.
6. Access.
6.1 To the Platform. Subject to your compliance with these Terms, Metron-Farnier will permit you to access and use the Platform solely for personal, non-commercial, and lawful purposes in accordance with the terms of these Terms. You are solely responsible for obtaining and maintaining all infrastructure, facilities, and connectivity required to access or use the Platform, in each case as necessary to meet your operational and business requirements based on your particular circumstances.
6.2 To the API. Subject to your compliance with these Terms and Exhibit 1, Metron-Farnier will permit you to access Metron-Farnier Content (see below) through the application program interface software in source code or executable code form, and any modified, updated, or enhanced versions of such software (the “API”).
6.3 To the Equipment. Subject to your compliance with these Terms and any other terms and conditions accompanying the Equipment, Metron-Farnier will permit you to maintain and operate the Equipment solely for the purpose of using and accessing the Services and Content provided by Metron-Farnier. All use of the Equipment will be in accordance with any documentation for the Equipment provided by Metron-Farnier.
6.4 To the Content. Subject to your compliance with these Terms and any other terms and conditions accompanying the Metron-Farnier Content, you will be provided with access to a variety of Content through the Platform solely for your own personal purposes in connection with your use of the Platform. Unless otherwise noted on the Platform, all Content available through the Platform is owned by Metron-Farnier (“Metron-Farnier Content”). All Metron-Farnier Content is provided for informational purposes only and you are solely responsible for verifying the accuracy, completeness, and applicability of all Metron-Farnier Content and for your use of any Metron-Farnier Content. Except for your ability to use the Metron-Farnier Content to prepare invoices and for your billing management program, you will not, and will not permit any third party to: (a) alter, modify, reproduce, or create derivative works of any Metron-Farnier Content; (b) distribute, sell, resell, lend, loan, lease, license, sublicense, or transfer any Metron-Farnier Content; or (c) alter, obscure, or remove any copyright, trademark, or any other notices that are provided on or in connection with any Metron-Farnier Content. Certain Content may include or be based on data, information, or content from other third-party Content providers (“Third-Party Content”). In addition to the terms of these Terms, your access to and use of any Third-Party Content is also subject to any other agreement you may agree to before being given access to the Third-Party Content (each, a “Third-Party Content Agreement”). Metron-Farnier has not verified the accuracy of, and will not be responsible for any errors or omissions in, any Third-Party Content provided through the Platform. Without limiting the foregoing, Metron-Farnier will not be held liable to you or any other third party for any Content, including Third-Party Content or Your Content (as defined below) under a Federal Law the Communications Decency Act or CDA, 47 U.S.C. § 230. Except as set forth in these Terms, you are granted no licenses or rights in or to any Content, or any IPR (as defined below) therein or related thereto.
6.5 To Other Users. The Platform may allow you to link, connect, or otherwise communicate with other Users through the Platform. By linking, connecting, or communicating with other Users, you are agreeing to allow those Users to communicate directly with you through the Platform. You agree that you are solely responsible for all communications between you and any other User through the Platform. Your extension or acceptance of a link, connection, or other communication with another User will serve as your affirmative “opt in” to the disclosure by Metron-Farnier of Your Content (as defined below) (which may include your personal data) to that other User.
6.6 To Third Party Services. The Platform may provide You with the choice to access services developed, provided, or maintained by other third party service providers (“Third Party Services”). In addition to the terms of this Agreement, your access to and use of any Third Party Services is also subject to any other agreement you may agree to before being given access to the Third Party Services (each, a “Third Party Service Agreement”). The terms of any Third Party Service Agreement (which may include payment of additional fees) will apply to the applicable Third Party Services provided under that Third Party Service Agreement in addition to the terms of this Agreement, but will not apply to any other Services you may access through Metron-Farnier. Except as set forth in these Terms, the terms of any Third Party Service Agreement will control in the event of a conflict between the terms of these Terms and that Third Party Service Agreement.
7. Your Content. You are solely responsible for all data, information, and other content (such as personal data, text, audio, video, photographs, and other media) that you may provide or generate through your use of the Platform, including your Profile and Registration Information (collectively, “Your Content”). As between you and Metron-Farnier, you retain ownership of Your Content. However, subject to any limitations included in the Privacy Policy, you grant Metron-Farnier a nonexclusive, royalty-free (unless otherwise agreed), perpetual, irrevocable, and fully sublicensable (including, without limitation, to Users, Water Providers, and other third parties) right to use, copy, store, reproduce, modify, display, adapt, publish, translate, create derivative works from, distribute, and display (“Use”) Your Content for purposes of providing the Platform to you and for use in making enhancements and improvements to the Platform. You represent and warrant that none of Your Content or the Use of Your Content by Metron-Farnier or any other party: (a) violates these Terms, the Privacy Policy, or any requirements under applicable laws; (b) is libelous, defamatory, obscene, abusive, threatening, or an invasion of privacy; (c) constitutes an infringement, misappropriation or violation of the IPR or other rights of any third party; (d) is illegal in any way or advocates illegal activity; (e) is an advertisement or solicitation of funds, goods, or services; (f) is false, misleading, or inaccurate; or (g) is or could be considered junk mail, spam, a part of a pyramid scheme, a disruptive commercial message or disruptive advertisement. Metron-Farnier is not responsible or liable for any deletion, correction, destruction, damage, loss or failure to store, restore or back-up any of Your Content. You agree that you have all right, title, interest and consent in Your Content necessary to allow Metron-Farnier to Use Your Content as set forth in the rights and licenses you grant to Metron-Farnier under these Terms.
8. Purchases. In addition to any Content, Services, or Equipment available for no charge through the Platform, you may be offered the opportunity to purchase, subscribe to, or otherwise obtain access to Content, Services, or Equipment through the Platform for an additional fee. Any purchase or subscription will be subject to any terms and conditions displayed in connection with the purchase or subscription in addition to the terms of these Terms. Unless otherwise indicated on the Platform, purchases or subscriptions made by you through the Platform cannot be exchanged and any fees or charges in connection with those purchases or subscriptions are non-refundable. All information that you provide in connection with a purchase or other transaction through the Platform will be accurate complete and current. You authorize Metron-Farnier (or a company chosen to act on behalf of Metron-Farnier) to charge the credit card, debit card, mobile services account, or other payment method provided in connection with any transaction made through your Account on the Platform and agree to honor all charges incurred in connection with any such transaction.
9. Termination.These Terms may be terminated by either party at any time, in that party’s sole discretion, upon notice to the other party as permitted under these Terms. Upon termination or expiration of these Terms for any reason: (a) all rights and subscriptions granted to you under these Terms will terminate; (b) you will immediately cease all use of and access to the Platform and all Content and Services (including, without limitation, all Content you obtained prior to termination); (c) you will immediately remove any Equipment you have installed prior to termination; and (c) Metron-Farnier may, in its sole discretion, delete your Account and any of Your Content held by Metron-Farnier at any time. Sections 1 (Definitions), 8 (Purchases), 9 (Termination), 11 (Platform Technology), 12 (Ownership), 13 (Representations and Warranties), 14 (No Warranties; Disclaimers), 15 (Indemnity), 16 (Limitation on Liability), 17 (Confidentiality), 18 (Data Privacy), 20 (Disputes), 21 (Governing Law and Venue), 22 (Notices), and 24 (Additional Terms) will survive any expiration or termination of these Terms.
10. Suspension. Without limiting Metron-Farnier’s right to terminate these Terms, Metron-Farnier may also suspend your access to your Account and the Platform, Content, Services, or Equipment, with or without notice to you, upon any actual, threatened, or suspected breach of these Terms or applicable law or upon any other conduct deemed by Metron-Farnier to be inappropriate or detrimental to the Platform, Metron-Farnier, or any other Metron-Farnier User or Water Provider.
11. Platform Technology. The Platform, and the Content, Services, Equipment, API, and other databases and technology used by or on behalf of Metron-Farnier to operate the Platform, and the structure, organization, and underlying data, information, and software code thereof (collectively, the “Technology”), constitute valuable trade secrets of Metron-Farnier and its third-party providers. You will not, and will not permit any third party to: (a) access or attempt to access the Technology except as expressly provided in these Terms; (b) use the Technology in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Technology; (c) use automated scripts to collect information from or otherwise interact with the Technology, except as permitted through the API in accordance with Exhibit 1; (d) alter, modify, reproduce, create derivative works of the Technology; (e) distribute, sell, resell, lend, loan, lease, license, sublicense or transfer any of your rights to access or use the Technology or otherwise make the Technology available to any third party; (f) reverse engineer, disassemble, decompile, or otherwise attempt to derive the method of operation of the Technology; (g) attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the Technology; (h) monitor the availability, performance, or functionality of the Technology; (i) interfere with the operation or hosting of the Technology; or (j) alter, obscure, or remove any copyright, trademark, or any other notices that are provided on or in connection with the Technology.
12. Ownership. Metron-Farnier and its third-party providers retain all right, title, and interest, including, without limitation, all IPR (as defined below), in and to the Technology and any additions, improvements, updates and modifications thereto. You receive no ownership interest in or to the Technology and you are not granted any right or license to use the Technology itself, apart from your ability to access and use the Platform under these Terms. The Metron-Farnier name, logo, and all product and service names associated with the Platform are trademarks of Metron-Farnier and its third-party providers and you are granted no right or license to use them. For purposes of these Terms, “IPR” means all intellectual property rights, proprietary rights, rights of publicity, rights of privacy, and any and all other legal rights protecting data, information or intangible property throughout the world, including, without limitation, any and all copyrights, trademarks, service marks, trade secrets, patent rights, moral rights, sui generis rights in databases, and contract rights.
13. Representations and Warranties.
13.1 Mutual. Each party hereby represents and warrants to the other party that: (a) it has the legal right and authority to enter into these Terms; (b) these Terms forms a binding legal obligation on behalf of such party; and (c) it has the legal right and authority to perform its obligations under these Terms and to grant the rights and licenses described in these Terms.
13.2 Compliance with Laws. You acknowledge that the Platform is a computer system for normal personal use and is not specifically designed to facilitate compliance with any specific law, rule, or regulation. Your use of the Platform in compliance with any specific law, rule, or regulation applicable to you, or to Your Content, is your sole responsibility. Metron-Farnier is not responsible for enabling your compliance with any such law, rule, or regulation or for your failure to comply. You represent and warrant to Metron-Farnier that your use of and access to the Platform, including, without limitation, Your Content, will comply with all applicable laws, rules, and regulations and will not cause Metron-Farnier itself to violate any applicable laws, rules, and regulations.
14. No Warranties; Disclaimer. EXCEPT AS PROVIDED HEREIN, THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” Metron-Farnier AND ITS THIRD-PARTY PROVIDERS DO NOT WARRANT OR GUARANTEE THE ACCURACY, COMPLETENESS, ADEQUACY, OR CURRENCY OF ANY CONTENT, SERVICES, or equipment AND DO NOT ENDORSE THE VIEWS OR OPINIONS THAT MAY BE EXPRESSED IN THE CONTENT, SERVICES, or equipment. Metron-Farnier AND ITS THIRD-PARTY PROVIDERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO THE PLATFORM AND ANY OTHER SUBJECT MATTER OF THESE TERMS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, OR NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY Metron-Farnier, ITS EMPLOYEES, OR THIRD-PARTY PROVIDERS WILL INCREASE THE SCOPE OF, OR CREATE ANY NEW WARRANTIES IN ADDITION TO, THE WARRANTIES EXPRESSLY SET FORTH IN THESE TERMS. You expressly agree that your access and use of the PLATFORM is at your sole risk.
15. Indemnity. You hereby agree to indemnify, defend, and hold harmless Metron-Farnier and its third-party providers, officers, directors, shareholders, affiliates, employees, agents, contractors, assigns, customers, providers, licensees, and successors in interest (“Indemnified Parties”) from any and all claims, losses, liabilities, damages, fees, expenses and costs (including attorneys' fees, court costs, damage awards, and settlement amounts) that result from any claim or allegation against any Indemnified Party arising in any manner from: (1) your access to or use of the Platform, Content, Services, or Equipment; (2) Your Content or other data, information, or Content that you access or provide through the Platform; (3) your violation of any third party right, including any infringement or misappropriation of any third-party’s IPR or privacy right; and (4) your breach of any representation, warranty, or other provision of these Terms. Metron-Farnier will provide you with notice of any such claim or allegation, and Metron-Farnier will have the right to participate in the defense of any such claim at its expense.
16. Limitation on Liability. Metron-Farnier, AND ITS THIRD-PARTY PROVIDERS, will not BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING IN CONNECTION WITH OR OUT OF THE ACCESS OR USE OF THE PLATFORM, EVEN IF Metron-Farnier HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF Your Content, OPPORTUNITY, REVENUES OR PROFITS, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. Metron-Farnier’s, AND ITS THIRD-PARTY PROVIDERS’, TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THESE TERMS AND THE PLATFORM provided under these Terms, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED $100 or, in the case of any purchases you make through the PLATFORM, the amounts paid by you to Metron-Farnier for those purchases IN THE 12 MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO ANY LIABILITY. You agree THAT Metron-Farnier WOULD NOT ENTER INTO THESE TERMS WITHOUT THESE LIMITATIONS ON ITS LIABILITY. IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, Metron-Farnier’s, AND ITS THIRD-PARTY PROVIDERS’, LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
17. Confidentiality. For purposes of these Terms, “Confidential Information” means the documentation and materials relating to the Equipment, regardless of the form thereof, including all copies and extracts thereof. You will not disclose Confidential Information to any third party without Metron-Farnier’s prior written consent. You may disclose the Confidential Information only to those individuals who have a need to know the Confidential Information for purposes of your valid use of the equipment as permitted under these Terms, or authorized by Metron-Farnier in writing, and who are bound by an obligation of confidentiality at least as protective of the Confidential Information as the terms of these Terms. You will treat all Confidential Information with the same degree of care as you treat your own confidential information which, in no event, will be less than reasonable care. You will not utilize the Confidential Information other than as expressly permitted in these Terms.
18. Data Privacy. You expressly consent to the use and disclosure of Your Content and personal data as described in the Privacy Policy. Notwithstanding anything in the Privacy Policy, Metron-Farnier will have the right to collect, extract, compile, synthesize, and analyze non-personally identifiable data or information (e.g., data or information that does not identify an entity or natural person as the source thereof) resulting from your access to and use of the Platform (“Usage Data”). To the extent any such Usage Data is collected or generated by Metron-Farnier, the Usage Data will be solely owned by Metron-Farnier, Metron-Farnier will own all rights, title, and interest in such Usage Data and any algorithm, computational, or cumulative results of such Usage Data, and Metron-Farnier may use such Usage Data to deliver, support, develop, test, improve the Platform, for any other lawful business purposes, and may provide it to third parties, such as Water Providers, or compile it with other data to derive statistical and water consumption information.
19. Claims of Infringement. Metron-Farnier respects your copyrights and other intellectual property rights and those of third parties. If you believe in good faith that your copyrighted work has been reproduced on the Platform without your authorization in a way that constitutes copyright infringement, you may notify our designated copyright agent by mail to:
Metron-Farnier
RE: Copyright Infringement Agent
5665 Airport Blvd
Boulder, CO 80301
Please provide the following information to Metron-Farnier’s Copyright Infringement Agent: (a) the identity of the infringed work, and of the allegedly infringing work; (b) your name, address, daytime phone number, and email address, if available; (c) a statement that you have a good-faith belief that the use of the copyrighted work is not authorized by the owner, his or her agent, or the law; (d) a statement that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner; and (e) your electronic or physical signature.
20. Disputes. Except as otherwise provided below, the parties will attempt to resolve all disputes, controversies, or claims arising under, out of, or relating to these Terms, including the formation, validity, binding effect, interpretation, performance, breach or termination, of these Terms and the arbitrability of the issues submitted to arbitration hereunder and non-contractual claims relating to these Terms (each, a “Dispute”), in accordance with the procedures set forth in this Section. If any Dispute cannot be resolved through negotiations between the parties within 5 days of notice from one party to the other of the Dispute, such Dispute will be finally settled through binding arbitration under the arbitration of the American Arbitration Association (“AAA”) then in effect (the “Rules”). Either party may commence the arbitration by delivering a request for arbitration as specified in the Rules. The arbitration will be conducted before a sole neutral arbitrator selected by agreement of the parties. If the parties cannot agree on the appointment of a single arbitrator within 30 days (the “Initial Period”) after either party to these Terms delivers a request for arbitration, a neutral arbitrator will be selected as provided in the Rules. The arbitration will be conducted exclusively in the English language at a site in Denver, Colorado U.S.A. The award of the arbitrator will be the exclusive remedy of the parties for all claims, counterclaims, issues or accountings presented or plead to the arbitrator. The award of the arbitrators will require payment of the costs, fees and expenses incurred by the prevailing party in any such arbitration by the non-prevailing party. Judgment upon the award may be entered in any court or governmental body having jurisdiction thereof. Any additional costs, fees or expenses incurred in enforcing the award may be charged against the party that resists its enforcement.
21. Governing Law and Venue. The interpretation of the rights and obligations of the parties under these Terms, including, to the extent applicable, any negotiations, arbitrations, or other proceedings hereunder, will be governed in all respects exclusively by the laws of the State of Colorado, U.S.A. as such laws apply to contracts between Colorado residents performed entirely within Colorado without regard to the conflict of laws provisions thereof. Subject to Section 20 (Disputes), each party shall bring any action or proceeding arising from or relating to these Terms exclusively in a federal or state court in Denver, Colorado, U.S.A., and each party irrevocably submits to the personal jurisdiction and venue of any such courts in any such action or proceeding brought in such courts.
22. Notices. Unless otherwise specified in these Terms, any notices required or allowed under these Terms will be provided to Metron-Farnier by postal mail to the address for Metron-Farnier listed above or on the Platform. Metron-Farnier may provide you with any notices required or allowed under these Terms by sending you an email to any email address you provide to Metron-Farnier in connection with your Account, provided that in the case of any notice applicable both to you and other Users of the Platform, Metron-Farnier may instead provide such notice by posting on the Platform. Notices provided to Metron-Farnier will be deemed given when actually received by Metron-Farnier. Notice provided to you will be deemed given 24 hours after posting to the Platform or sending via e-mail, unless (as to e-mail) the sending party is notified that the e-mail address is invalid.
23. Linked Sites. The Platform may contain links to third-party sites, which contain content at such sites, that are not under the control of Metron-Farnier. If you access a third-party site or content from the Platform, then you do so at your own risk and Metron-Farnier is not responsible for any such site or content on any linked site. If the Platform links to any third-party site or content, it is not an indication of an endorsement, authorization, or sponsorship to such third-party site or content.
24. Additional Terms. Unless otherwise amended as provided herein, these Terms will exclusively govern your access to and use of the Platform, and is the complete and exclusive understanding and agreement between the parties, and supersedes any oral or written proposal, agreement or other communication between the parties, regarding your access to and use of the Platform. Except as expressly set forth in these Terms, these Terms may be amended or modified only by a writing signed by both parties. All waivers by Metron-Farnier under these Terms must be in writing or later acknowledged by Metron-Farnier in writing. Any waiver or failure by Metron-Farnier to enforce any provision of these Terms on one occasion will not be deemed a waiver by Metron-Farnier of any other provision or of such provision on any other occasion. If any provision of these Terms is held to be unenforceable, that provision will be removed to the extent necessary to comply with the law, replaced by a provision that most closely approximates the original intent and economic effect of the original, and the remaining provisions will remain in full force. Neither these Terms nor any rights or obligations of you hereunder may be assigned or transferred by you (in whole or in part and including by sale, merger, consolidation, or other operation of law) without the prior written approval of Metron-Farnier. Any assignment in violation of the foregoing will be null and void. Metron-Farnier may assign these Terms to any party that assumes Metron-Farnier’s obligations hereunder. The parties hereto are independent parties, not agents, employees or employers of the other, or joint venturers, and neither acquires hereunder any right or ability to bind or enter into any obligation on behalf of the other. Metron-Farnier may reference you as a User of the Platform and use your name and logo, as applicable, in listings of Users of the Platform appearing on Metron-Farnier’s website and for other marketing and promotional purposes relating to the Platform.
Exhibit 1
API License Terms
To the extent Metron-Farnier Content is provided through a Metron-Farnier API pursuant to the Terms, the following terms shall apply. All capitalized terms not otherwise defined herein will have the meaning set forth in the Terms:
“API Documentation” means the documentation and specifications for APIs that are published by Metron-Farnier from time-to-time.
“API Key” means the code provided by Metron-Farnier that permits you to access the API.
API License. Subject to the terms and conditions of the Terms, Metron-Farnier hereby grants to you a limited, non-exclusive, non-transferable, license to: (a) use the API Key to access and incorporate the API as part of the your billing management program; and (b) use, perform, display, reproduce the API solely as necessary to develop, maintain, and support the your billing management program, in accordance with the specifications included in the API Documentation. You agree not to (i) reverse engineer or attempt to extract the source code from any API or any related software, except to the extent that this restriction is expressly prohibited by applicable law; (ii) disclose, distribute, sublicense, lease, rent, loan, resell or otherwise transfer the API source code, the Metron-Farnier Content received from the API, except for your ability to use the Metron-Farnier Content to prepare invoices and for your billing management program; or (iii) use the API or API Keys in any manner that exceeds the scope of the licenses granted hereunder or the limits or restrictions set forth in any order. You must reproduce, on all copies made, and must not remove, alter, or obscure in any way all proprietary rights notices (including copyright notices) of Metron-Farnier on or within the copies of the API. Metron-Farnier may, at its sole discretion, release subsequent versions of the API and require you to obtain and use the most current version.