This Master Services Agreement (the "MSA") is entered into by and between Meter, Inc., a Delaware corporation, with an address at 2700 18th St, San Francisco, CA 94110 ("Meter"), and the customer identified in one or more ordering documents that reference this MSA (each, an "Order," and such customer, "Customer"). This MSA consists of (i) the general terms and conditions set forth below (the "Terms and Conditions"), (ii) the Product-Specific Terms attached as Exhibit A, (iii) the Platform Service Level Agreement attached as Exhibit B-1, (iv) the Cellular Service Level Agreement attached as Exhibit B-2, (v) the Support Terms attached as Exhibit C, and (vi) the Installation Scope Exhibit attached as Exhibit D. This MSA, together with each Order (as defined below), constitutes the entire agreement between Meter and Customer with respect to the Services (collectively, the "Agreement"). In the event of a conflict between this MSA and an Order, the Order will control solely with respect to the subject matter of such conflict. The "Effective Date" of the Agreement is the effective date of the first Order.
By accepting this MSA, whether by clicking a box indicating acceptance, executing an Order that references this MSA, or accessing or using the Services, Customer agrees to be bound by the terms of this MSA. If the individual accepting this MSA is doing so on behalf of a company or other legal entity, such individual represents and warrants that they have the authority to bind that entity and its affiliates to this MSA, in which case "Customer" refers to that entity and its affiliates. If the individual does not have such authority, or if the entity does not agree with these terms, then the individual must not accept this MSA and may not use the Services.
If Meter and Customer have entered into a separate written agreement governing Customer's use of the Services that is signed by both parties, then that signed agreement will govern and will supersede this MSA with respect to its subject matter.
Meter and Customer hereby agree to the following:
Terms & Conditions
1.
Definitions
The definitions of certain capitalized terms used in these Terms & Conditions (and used throughout the Agreement) are set forth below.
"Cellular Service Level Agreement" means the service level agreement governing the Cellular Product, attached hereto as Exhibit B-2.
"Confidential Information" has the meaning set forth in Section 8.1.
"Designated Location" means each physical location identified in an Order at which Meter provides the Services.
"Disclosing Party" has the meaning set forth in Section 8.1.
"Documentation" means the documentation and specifications regarding the Services available at docs.meter.com.
"Excluded Claims" means any claim arising out of Meter's breach of Section 9 (Privacy and Security).
"Feedback" has the meaning set forth in Section 10.2.
"Fees" means amounts payable to Meter under an Order. Fees include any pass-through costs permitted under the applicable Order, including ISP fees associated with Customer's circuits.
"Go-Live Date" means, with respect to a Designated Location: (a) for the Network Product, (i) if Customer purchases a Premium Subscription under the applicable Order, the date on which Meter notifies Customer that the Services are available for use at such Designated Location, or (ii) if Customer purchases a Pro Subscription under the applicable Order, the earlier of (A) the date installation of the applicable Hardware and Infrastructure at such Designated Location is completed, or (B) thirty (30) days following shipment of the Hardware to such Designated Location; and (b) for the Cellular Product, the date on which Meter notifies Customer that the Extension Services are available for use at such Designated Location.
"Hardware" means the networking devices and equipment provided by Meter in connection with the Products set forth in an Order (if any).
"Infrastructure" means the physical network components installed by Meter at a Designated Location, including cabling, fiber, conduits, patch panels, racks, and related components, but excluding Hardware.
"Meter Improvements" has the meaning set forth in Section 10.2.
"Meter IP" has the meaning set forth in Section 10.1.
"Order" means (a) a written order form entered into by Meter and Customer, or (b) a purchase order submitted to Meter by an authorized reseller or distributor on Customer's behalf, in each case specifying at minimum the Designated Location(s), pricing, and payment terms. Each Order, once executed by the applicable parties or accepted by Meter, is incorporated into the Agreement.
"Platform" means Meter's cloud-based network-management software-as-a-service used by Customer to configure and manage certain Products, including the Network Product.
"Platform Service Level Agreement" means the service level agreement governing the Platform, attached hereto as Exhibit B-1.
"Premium Subscription" has the meaning set forth in Section 5.2.
"Pro Subscription" has the meaning set forth in Section 5.2.
"Products" means Meter's networking product offerings, including the "Network," "Cellular," and "Connect" product offerings and all correspondingly required Hardware, Infrastructure, and software.
"Product-Specific Terms" means the terms specific to a particular Meter Product attached hereto as Exhibit A.
"Prohibited Use" has the meaning set forth in Section 2.3.
"Receiving Party" has the meaning set forth in Section 8.1.
"Renewal Term" has the meaning set forth in Section 7.1.
"Reseller" has the meaning set forth in Section 6.3.
"Reseller Order" has the meaning set forth in Section 6.3.
"Services" means the Platform, Products, Support, and any related services provided by Meter under the MSA or an Order, including installation, configuration, and maintenance as well as any updates, upgrades, and modifications thereto.
"Service Data" has the meaning set forth in Section 10.3.
"Subscription" has the meaning set forth in Section 2.2.
"Subscription Delivery Tier" means, for the Network Product, the tier of installation and configuration services Meter provides at each Designated Location, as set forth in the applicable Order. The available tiers are Pro Subscription and Premium Subscription, each as described in Section 5.2.
"Subscription Term" means, for each Designated Location, the period during which Meter provides the Services at that Designated Location, as specified in the applicable Order. The Subscription Term for a Designated Location begins on the date on which all Network and Cellular Products purchased for that Designated Location have reached their respective Go-Live Dates and continues for the number of months specified in the applicable Order. The Connect Product is not subject to the Subscription Term; each Circuit is governed by the term set forth in Section 4 of the Connect Product Terms.
"Supplemental Order Form" means an Order that amends or supplements a prior Order.
"Support" means the technical support services provided by Meter as set forth in Exhibit C.
"Term" has the meaning set forth in Section 7.1.
"Uncapped Claims" means (a) a party's breach of its confidentiality obligations under Section 8; (b) a party's indemnification obligations under Section 12; or (c) any liability that cannot be limited under applicable law, including liability arising from gross negligence, recklessness, or willful misconduct.
"Users" has the meaning set forth in Section 2.2.
2. Subscription and Restrictions
2.1
Product-Specific Terms. Each Product is subject to its own Product-Specific Terms, which apply only if Customer has purchased that Product under an Order. The Product-Specific Terms for the Cellular Product and the Connect Product are set forth in Exhibit A. The Product-Specific Terms for the Network Product are set forth in these Terms and Conditions.
2.2
Subscription. During the Subscription Term, and in accordance with the Agreement and the Documentation: (a) Customer may access and use the Services at the Designated Locations specified in the applicable Order (the "Subscription"); and (b) to the extent Customer subscribes to the Network Product, Meter hereby grants to Customer, including its authorized users ("Users"), a limited, nonexclusive, nontransferable right and license to access and use the Platform solely for Customer's internal business purposes.
2.3
Restrictions. Customer will not, and will not permit any third party to, directly or indirectly: (a) use the Services to develop, offer, or support any product or service competitive with the Services; (b) access or attempt to access the Services except as expressly permitted under this MSA, including by reverse engineering, decompiling, disassembling, or otherwise attempting to derive the source code, underlying structure, ideas, or algorithms of the Services; (c) sublicense, distribute, transfer, lease, lend, resell, or otherwise make the Services available to any third party, including on a time-sharing or service bureau basis; (d) copy, modify, adapt, translate, create derivative works of, or otherwise alter the Services; (e) use the Services in violation of applicable laws or regulations, including export control and sanctions laws; (f) publish or disclose any benchmark or performance information relating to the Services without Meter's prior written consent, other than for internal evaluation purposes; (g) attempt to gain unauthorized access to the Services or related systems, including through penetration testing or similar security testing, without Meter's prior written consent; or (h) remove, obscure, or alter any proprietary notices or legends included in the Services. Each of the foregoing constitutes a "Prohibited Use."
3. Meter Responsibilities
3.1
General. Meter will provide the Services to Customer in accordance with the Agreement and the Documentation.
3.2
Service Level Agreement.Exhibit B-1 sets forth the service level agreement that Meter commits to with respect to the Platform, and Exhibit B-2 sets forth the service level agreement that Meter commits to with respect to its Cellular Product.
3.3
Support & Maintenance. During a Subscription Term, Meter will: (a) provide Customer with ongoing technical support for the Services and will work with Customer to diagnose issues and restore service functionality, including by providing fixes, patches, updates, or reasonable workarounds for reproducible issues that materially affect the Services in accordance with the Support Terms; and (b) maintain the Services and may implement updates, upgrades, and bug fixes as necessary to meet its obligations under the Agreement or to improve the Services.
4. Customer Responsibilities
4.1
Platform Account. Customer is responsible for its Users' access to and use of the Services, including the Platform, and for anything done through Customer's or its Users' accounts. Each User must have their own unique login. Customer must keep all account details, including usernames and passwords, confidential. Customer must promptly notify Meter of any unauthorized access or suspected security breach. Meter may, at any time and in its sole discretion, suspend, restrict, or remove any User or other personnel from the Platform if Meter reasonably determines that such User or personnel (a) has accessed or is accessing the Platform without proper authorization, (b) is engaged in any Prohibited Use, or (c) is employed by, affiliated with, or otherwise acting on behalf of a competitor of Meter.
4.2
Supporting Documentation. Customer will provide Meter with accurate and complete documentation regarding the floorplans and layouts of each Designated Location so that Meter can verify the information set forth in an Order.
4.3
Access and Assistance. Customer will maintain all rights, consents, and authorizations required for Meter and its personnel to access the Designated Locations as reasonably necessary to install, maintain, and support the Services. Customer will provide (or cause applicable third parties to provide) reasonable cooperation and access, including any nonexclusive license or other legally sufficient right of entry needed for such purposes. Meter will not be responsible for any failure or delay to the extent caused by Customer's failure to provide or maintain the foregoing.
4.4
Approved Components. Customer will not install, use, or permit the use of any third-party software on the Hardware, or any third-party hardware with the Platform, without Meter's prior written consent, except for end-user devices that connect to the Platform in the ordinary course of Customer's use of the Services.
5. Hardware & Installation
To the extent Customer purchases Services that require the deployment of Infrastructure or Hardware (including the Network and Cellular Products), this Section 5 will apply:
5.1
Hardware Lease; Possession and Use. Meter will provide to Customer the Hardware that Meter determines is necessary to provide the Services. All Hardware is leased to Customer under the Agreement. Meter retains all right, title, and interest in the Hardware at all times. Customer will have possession of the Hardware and bears all risk of loss while the Hardware is in Customer's care, custody, or control. Customer will not, without Meter's prior written consent, sell, sublease, transfer, encumber, or otherwise dispose of or relinquish possession of any Hardware, or create, incur, or permit any lien, security interest, or other encumbrance on the Hardware. Customer may use the Hardware only at the applicable Designated Location(s) and only in connection with the Services and the Agreement.
5.2
Installation. Meter's installation responsibilities will depend on the Subscription Delivery Tier set forth in the applicable Order. Prior to installation, Meter will provide Customer with an installation plan and communicate the respective responsibilities of the parties following Meter's review of the supporting documentation described in Section 4.2. For Pro Subscription, Meter will configure the Services at each Designated Location and will ship the Hardware to each Designated Location, but will not install, cable, or mount any Hardware or Infrastructure at Designated Locations. For Premium Subscription, Meter will install the Hardware and Infrastructure and configure the Services at each Designated Location. Meter will do so in a manner that is compliant with applicable law and industry best practices and at no additional charge to Customer. The scope of Meter's installation responsibilities is set forth in the Installation Scope Exhibit attached as Exhibit D. Any work outside of that scope will be performed only with Customer's prior written approval and at Customer's cost.
5.3
Relocation of Hardware & Services. During a Subscription Term, Customer may request to relocate the Network Services from a Designated Location to a new physical location. Meter will accommodate such requests if and only if (a) Customer is in good standing under the Agreement, with no past-due invoices; (b) Customer introduces Meter to the landlord of the applicable Designated Location and reasonably cooperates with Meter in attempting to have such landlord keep the existing Hardware and Infrastructure in place for future tenants of such Designated Location; (c) Customer provides Meter with all information Meter reasonably requests regarding the new location, including address, square footage, floorplans, and any other operational or building-specific information; (d) the new location is reasonably comparable to the original Designated Location in size and nature; and (e) Meter evaluates the new location and confirms, in its professional judgment, that it can deliver the Network Services from the new location and can do so at a cost and operational profile reasonably comparable to those at the original Designated Location. If Meter agrees, then (i) the parties will enter into a Supplemental Order Form for the new location with a fresh Subscription Term equal in length to the original Subscription Term and commencing on the Go-Live Date for the new location; (ii) the Subscription Term for the original Designated Location will end as of the Go-Live Date for the new location; and (iii) the necessary Hardware and Infrastructure will be installed at the new location within sixty (60) days, or such other date as the parties may agree. If Meter does not agree, then Customer remains responsible for all Fees associated with the original Designated Location for the remainder of the applicable Subscription Term regardless of whether Customer continues to occupy such Designated Location. For the avoidance of doubt, this Section 5.3 does not permit Customer to reduce the number of Designated Locations under an Order.
5.4
Hardware Repair & Replacement. Customer will maintain the Hardware in good operating condition, ordinary wear and tear excepted, and will not permit any third party to service or repair the Hardware without Meter's prior written consent. If Hardware fails, malfunctions, or otherwise becomes unable to deliver the Services as intended, Customer will promptly notify Meter, and Meter will repair or replace the Hardware at no cost to Customer in accordance with the Support Terms attached as Exhibit C. Notwithstanding, Customer is responsible for any loss, damage, or failure of the Hardware caused by Customer, its personnel, or any third party granted access by Customer (including from unauthorized downloads, vandalism, abuse, neglect, or Prohibited Uses), and Customer will reimburse Meter for the reasonable cost of any resulting repair or replacement. Customer's reimbursement obligation under this Section 5.4 will not exceed the portion of the total Fees under the applicable Order that corresponds to the affected Hardware's proportionate share of all Hardware deployed under such Order.
5.5
Disposition of Hardware. Upon expiration or termination of a Subscription, if Customer is vacating the applicable Designated Location, Customer will introduce Meter to the landlord of such Designated Location and reasonably cooperate with Meter in attempting to have the landlord keep the existing Hardware and Infrastructure in place for future tenants. In all other cases, or if the landlord does not agree, Customer will, as directed by Meter: (a) promptly return the applicable Hardware and Infrastructure to Meter, at Customer's cost and expense, and in accordance with Meter's return instructions; (b) reasonably cooperate with Meter to provide Meter with access to remove the applicable Hardware and Infrastructure; or (c) reasonably cooperate with Meter to remove and e-recycle the applicable Hardware and Infrastructure.
6. Billing; Payment
6.1
Billing. Unless otherwise specified in an Order: (a) Fees for each Product at a Designated Location commence on the Go-Live Date for that Product at that Designated Location; (b) Services are provided to each Designated Location for the Subscription Term specified in the applicable Order; (c) Meter will invoice Customer in advance for the Services provided at each Designated Location beginning on the applicable Go-Live Date and for the duration specified in the applicable Order; and (d) if an Order includes multiple Products at the same Designated Location, Meter will bill for each Product as a separate line item, and billing for each Product will commence on the Go-Live Date for that Product at that Designated Location, independent of whether other Products at that Designated Location have reached their Go-Live Dates.
6.2
Payment. Unless otherwise specified in an Order, Customer will pay all Fees payable under the applicable Order within thirty (30) days after the date of Meter's invoice. All Fees are payable in United States dollars and will be paid to the account designated by Meter.
6.3
Reseller Orders. If Customer purchases the Services through an authorized reseller or other channel partner of Meter (a "Reseller"), then, as between Meter and Customer: (a) invoicing, payment of fees, and payment of applicable taxes will be governed solely by the ordering document between Customer and the Reseller (a "Reseller Order"), and Customer will pay all amounts due directly to the Reseller; (b) any credits or refunds owed by Meter in connection with the Services will be issued to the Reseller, and not directly to Customer; (c) Meter will have no responsibility or liability for any failure by the Reseller to remit payments, credits, or refunds to Customer; (d) no terms or conditions set forth in any Reseller Order will be binding on Meter; and (e) the Agreement will govern the relationship between Meter and Customer, and will prevail in the event of any conflict between the Agreement and a Reseller Order.
6.4
Taxes and Shipping Costs. All payments required by the Agreement are exclusive of (a) federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including sales taxes, use taxes, and value added taxes but excluding taxes based on Meter's income) and (b) shipping, freight, and delivery costs, and Customer will bear and be responsible for the payment of all such charges. 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 will furnish Meter with a valid tax exemption certificate issued by or acceptable to the applicable taxing jurisdiction or entity.
6.5
Overdue Charges. If Meter does not receive payment of any undisputed invoiced amount in accordance with Section 6.2, then (a) the unpaid amount may accrue interest at 1.5% per month (or the maximum rate permitted by law, if lower), and (b) Meter may require payment for prior Subscriptions before providing future Subscriptions and may require shorter payment terms than those in the applicable Order.
7. Term and Termination
7.1
Term. The Agreement will commence on the Effective Date and will remain in effect until the expiration or termination of all Subscription Terms for all Designated Locations across all Orders (the "Term"). Each Subscription Term will automatically renew for successive one-year renewal terms (each, a "Renewal Term") unless either party provides written notice of non-renewal at least sixty (60) days before the end of the then-current Subscription Term. Each Renewal Term will be on the same terms as the then-current Subscription Term, except that Meter may increase the Fees applicable to such Renewal Term by up to the greater of (a) seven percent (7%) or (b) the percentage increase in the Consumer Price Index over the prior twelve (12) months, in each case over the Fees in effect during the immediately preceding Subscription Term. For clarity, the Fees in effect during the initial Subscription Term will not change during the initial Subscription Term.
7.2
Termination for Material Breach. Either party may terminate the Agreement or any Subscription upon written notice if the other party materially breaches the Agreement and fails to cure such breach within thirty (30) days after receipt of notice from the non-breaching party. Notwithstanding, if Meter reasonably believes that Customer has engaged in a Prohibited Use, then Meter may immediately (and without a cure period) terminate the Agreement or any Subscription upon written notice to Customer.
7.3
Termination for Bankruptcy. Either party may terminate the Agreement upon written notice to the other party if the other party (a) becomes the subject of a petition in bankruptcy or insolvency that is not dismissed within sixty (60) days, (b) makes an assignment for the benefit of creditors, or (c) has a receiver appointed for all or substantially all of its assets.
7.4
Effects of Termination. Upon termination of the Agreement, Customer will immediately cease all use of the Services. Within ten (10) days after expiration or termination, Customer will assist Meter, as directed by Meter, in handling or managing the Hardware and Infrastructure in accordance with Section 5.5.
7.5
Survival. All payment obligations and the following sections of these Terms and Conditions will survive any expiration or termination of the Agreement: 1, 2.3, 5.1, 5.5, 6, 7.5, 8, 10-13, 15.
8. Confidentiality
8.1
Confidential Information. "Confidential Information" means any nonpublic information of a party (the "Disclosing Party"), whether disclosed orally, in writing, electronically, or by inspection, that is designated as confidential or that the receiving party (the "Receiving Party") reasonably should know is confidential or proprietary.
8.2
Obligations. Except as necessary to perform its obligations or exercise its rights under the Agreement, the Receiving Party will not use or disclose the Disclosing Party's Confidential Information without the Disclosing Party's written consent and will protect such Confidential Information using reasonable care. The Receiving Party will ensure that access to Confidential Information is limited to its employees and contractors with a need to know for permitted purposes and who are bound by confidentiality obligations at least as protective as those set forth herein. Each party is responsible for breaches of this Section 8.2 by its employees and contractors. Notwithstanding the foregoing, Meter's use of Service Data as expressly permitted under the Agreement will not be deemed a breach of this Section 8.2.
8.3
Exclusions. Confidential Information does not include information that (a) is or becomes publicly available through no fault of the Receiving Party, (b) is lawfully received by the Receiving Party without confidentiality obligations, or (c) is independently developed by the Receiving Party without use of the Disclosing Party's Confidential Information.
8.4
Compelled Disclosure. A Receiving Party may disclose Confidential Information to the extent required by applicable law or legal process, provided that, to the extent legally permitted, the Receiving Party gives the Disclosing Party reasonable notice and cooperates to seek confidential treatment.
8.5
Existence of the Agreement. Each party may disclose the existence and general nature of the Agreement, but not its specific terms (including pricing), without the other party's consent; provided that either party may disclose the Agreement in connection with a legal or regulatory requirement, audit, financing, or due diligence transaction, subject to customary confidentiality obligations.
9. Privacy and Security
Meter will maintain administrative, technical, and physical safeguards designed to protect the Services and Confidential Information against unauthorized access, use, disclosure, alteration, and destruction. Meter will implement and maintain an information security program consistent with applicable law and generally accepted industry standards for similarly situated service providers. During the Term, Meter will maintain SOC 2 Type II compliance or a substantially equivalent security assurance framework and will undergo regular independent audits of its information security controls. Meter may update its security measures from time to time, provided that such updates do not materially reduce the overall level of protection for the Services. If required by applicable law or reasonably requested by Customer, the parties will negotiate in good faith a data processing addendum on Meter's then-current form. For additional information regarding Meter's security practices, see Meter's trust page at meter.com/trust.
10. Intellectual Property & Service Data
10.1
Ownership of Meter IP. As between the parties, Meter owns and retains all right, title, and interest in and to (a) the Hardware, Products, Platform, Documentation, and all Meter standards, specifications, designs, methods, workflows, software, tools, APIs, templates, and processes; (b) any technology or materials provided to Customer; and (c) all associated intellectual property rights ("Meter IP"). Except for the limited right to use Meter IP solely to receive the Services, no rights or licenses are granted to Customer herein. Customer will not modify, reverse engineer, copy, or create derivative works of any Meter IP.
10.2
Improvements, Work Product & Feedback. Meter will own all right, title, and interest in and to any improvements, enhancements, modifications, or derivative works of the Meter IP ("Meter Improvements"). Meter will also own all right, title, and interest in any suggestions, recommendations, process improvements, or other feedback provided by Customer related to the Meter IP or the Services ("Feedback"). To the extent Customer acquires any right, title, or interest in any Meter Improvements or Feedback, Customer hereby irrevocably assigns and agrees to assign all such right, title, and interest to Meter, including all associated intellectual property rights.
10.3
Service Data. In connection with the provision of the Services and the operation of the Hardware, Meter generates and collects data relating to the operation, performance, configuration, and use of the Services and the underlying network, including network topology and configuration data, device and software information, provisioning and deployment metadata, logs, metrics, telemetry, usage and capacity data, performance and availability measurements, error, fault, and diagnostic data, security and reliability signals, and other similar technical and operational information (collectively, "Service Data"). Meter may use Service Data to provide, operate, support, maintain, and improve the Services, to develop new or enhanced products and services, and to train, develop, and improve Meter's machine learning and artificial intelligence models. Meter retains all right, title, and interest, including all intellectual property rights, in and to the Services, the Service Data, and any aggregated, anonymized, or derived data or insights. Notwithstanding, Meter will not disclose Service Data or any data or insights derived from Service Data to any third party in a manner that identifies Customer or any individual.
11. Warranties and Disclaimers
11.1
Mutual. Each party represents and warrants that: (a) it has all requisite power and authority to execute and deliver the Agreement and to carry out the provisions of the Agreement; (b) its execution, delivery, and performance of the Agreement does not and will not conflict with, violate, or result in any breach of any applicable law or regulation or any agreement or obligation by which it is bound, and, in the case of Customer, Customer has and will maintain all rights, consents, permits, and authorizations necessary to permit Meter to access each Designated Location and install, maintain, and remove the Hardware and Infrastructure in connection with the Services; and (c) to the knowledge of such party, no action, claim, suit or proceeding is pending or threatened against such party before any court, government authority or arbitrator of competent jurisdiction that could reasonably be expected to materially adversely affect the financial condition or operations of such party or the ability of the parties to perform their obligations under the Agreement.
11.2
Disclaimers. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THE AGREEMENT, THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE," WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND. METER DISCLAIMS ALL IMPLIED AND STATUTORY WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. METER WILL NOT BE LIABLE FOR ANY DELAY, DEGRADATION, OR FAILURE OF THE SERVICES TO THE EXTENT RESULTING FROM OR RELATING TO: (A) UNANTICIPATED AND UNUSUALLY HIGH USAGE VOLUMES; (B) FAILURES OF THIRD-PARTY SERVICES, INCLUDING THIRD-PARTY TELECOMMUNICATIONS SERVICES, NETWORKS, OR SYSTEMS; (C) FORCE MAJEURE OR OTHER CAUSES BEYOND METER'S REASONABLE CONTROL; OR (D) CUSTOMER'S BREACH OF THE AGREEMENT OR CUSTOMER'S NEGLIGENT ACTS OR OMISSIONS.
12. Indemnification
12.1
By Meter. Meter will indemnify, defend, and hold harmless Customer and its directors, officers, and employees from and against any third-party claims, losses, damages, liabilities, costs, and expenses (including reasonable attorneys' fees) finally awarded against Customer to such third party, by a court of competent jurisdiction or agreed to in settlement, related to (a) any allegation that the Services or the Platform infringe, misappropriate, or otherwise violate any third-party intellectual property rights; or (b) bodily injury (including death) or damage to real or tangible personal property to the extent caused by the gross negligence or willful misconduct of Meter or its subcontractors in connection with the installation, repair, or replacement of the Hardware.
12.2
Exclusions. Meter will have no liability or obligation under Section 12.1 for any claim to the extent arising from: (a) Customer's use of the Services or Platform other than in strict accordance with this Agreement, including use in any application, environment, platform, or device for which the Services or Platform were not designed or contemplated; (b) use of the Services or Platform in combination with any third-party technology, products, or services to the extent such claim results from Customer's acts or omissions; or (c) any modification, alteration, enhancement, or combination of the Services or Platform not authorized by or performed by Meter and to the extent caused by Customer or any third party acting on Customer's behalf.
12.3
Infringement Remedies. If the Services or Platform become, or in Meter's reasonable opinion are likely to become, the subject of a claim or injunction alleging infringement, misappropriation, or violation of a third party's intellectual property rights, then Meter may, at its option and expense: (a) procure the right for Customer to continue using the Services or Platform; (b) replace or modify the Services or Platform so that they become non-infringing without materially diminishing their principal functionality; or (c) if neither (a) nor (b) is reasonably available, terminate the Agreement upon written notice to Customer and refund any prepaid Fees on a prorated basis for the remainder of the applicable prepaid period. This Section 12.3 states Meter's entire liability, and Customer's exclusive remedy, with respect to any claim of infringement, misappropriation, or other violation of intellectual property rights by the Services or Platform.
12.4
By Customer. Customer will indemnify, defend, and hold harmless Meter and its directors, officers, and employees from and against any third-party claims, losses, damages, liabilities, costs, and expenses (including reasonable attorneys' fees) finally awarded by a court of competent jurisdiction or agreed to in settlement, arising out of or related to: (a) any Prohibited Use of the Services by Customer, any User, or any unauthorized third party to the extent resulting from Customer's acts or omissions; (b) Customer's use of the Services other than in accordance with this Agreement or the Documentation; or (c) bodily injury (including death) or damage to real or tangible personal property to the extent caused by the gross negligence or willful misconduct of Customer or its contractors in connection with the installation, repair, or replacement of the Hardware.
12.5
Procedures. The indemnifying party's obligations under this Section 12 are conditioned on the indemnified party: (a) providing prompt written notice of the claim, provided that the indemnifying party will be relieved of its obligations only to the extent it is materially prejudiced by any failure to provide such notice; (b) providing reasonable information and cooperation in connection with the defense of the claim; and (c) granting the indemnifying party sole control over the defense and settlement of the claim. The indemnified party may participate in the defense at its own expense. The indemnifying party will not settle any claim (other than a settlement involving only the payment of money for which it is responsible) in a manner that adversely affects the indemnified party's rights or interests without the indemnified party's prior written consent, which will not be unreasonably withheld, conditioned, or delayed.
13. Limitation of Liability
13.1
Indirect Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM OR WHETHER ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING LOST PROFITS, LOST REVENUE, LOSS OF BUSINESS, BUSINESS INTERRUPTION, COSTS OF DELAY, FAILURE OR DEGRADATION OF CONNECTIVITY OR INTERNET ACCESS, LOSS OF USE, OR COSTS ASSOCIATED WITH LOST, CORRUPTED, OR DAMAGED DATA OR DOCUMENTATION.
13.2
Liability Cap. EXCEPT FOR EXCLUDED CLAIMS AND UNCAPPED CLAIMS, IN NO EVENT WILL THE AGGREGATE TOTAL LIABILITY OF EITHER PARTY ARISING OUT OF OR RELATING TO THE AGREEMENT EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER FOR THE SERVICES DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM GIVING RISE TO SUCH LIABILITY. METER'S AGGREGATE LIABILITY FOR ALL EXCLUDED CLAIMS WILL NOT EXCEED TWO (2) TIMES THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER FOR THE SERVICES DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM GIVING RISE TO SUCH LIABILITY; AND A PARTY'S AGGREGATE LIABILITY FOR ALL UNCAPPED CLAIMS WILL NOT BE CAPPED.
14. Insurance
14.1
Coverage. During the Term, Meter will maintain the following insurance coverage, each with insurers rated A-VII or better by A.M. Best:
(a)
Commercial General Liability insurance on an occurrence basis, with limits of not less than $1,000,000 per occurrence and $2,000,000 in the aggregate, covering bodily injury, death, property damage, and personal injury;
(b)
Workers' Compensation insurance as required by applicable law;
(c)
Technology Errors and Omissions and Cyber Liability insurance, on an occurrence or claims-made basis, with limits of not less than $2,000,000 in the aggregate, covering financial loss arising from acts, errors, or omissions in the provision of the Services, including data damage, destruction, or corruption, unauthorized access or use, malware or virus transmission, denial-of-service attacks, and violations of privacy resulting from network security failures; and
(d)
Umbrella Liability insurance on an occurrence basis, with limits of not less than $10,000,000 per occurrence and in the aggregate.
14.2
Additional Insurance Terms. All insurance maintained by Meter will be primary and non-contributory with respect to any insurance maintained by Customer. The coverage limits set forth in this Section 14 will not limit or affect Meter's indemnification obligations or any other liability under the Agreement.
15. General Provisions
15.1
Compliance with Laws. Each party will comply with all applicable laws and regulations in connection with its performance under the Agreement.
15.2
Publicity & Use of Name. Each party grants the other a non-exclusive, royalty-free, worldwide license during the Term to use its name, logos, and trademarks solely to identify and promote the parties' relationship including in customer/vendor lists, press releases, marketing, and other promotional materials, provided that such use complies with the owning party's then-current brand guidelines (to the extent provided). Upon a party's reasonable written request, the other party will provide copies of such materials and will discontinue use of the owning party's name and logos and remove them from future versions of such materials.
15.3
Entire Agreement. The Agreement, inclusive of all Orders, constitutes the entire agreement between the parties with respect to the Services and supersedes all prior and contemporaneous negotiations, understandings, and agreements relating to its subject matter. Any additional, different, or conflicting terms in any purchase order, confirmation, or similar document provided by Customer will be null and void and will not modify the Agreement, even if such document is accepted or signed by Meter. Meter may update this MSA, including the Product-Specific Terms, the Platform Service Level Agreement, the Cellular Service Level Agreement, the Support Terms, and the Installation Scope Exhibit, from time to time by posting the updated terms on its website or within the Services. Updates that do not materially and adversely affect Customer become effective upon posting. For any update that materially and adversely affects Customer, Meter will provide reasonable advance notice (e.g., by email or in-product notice), and Customer may decline the update by providing written notice to Meter before the update takes effect, in which case the version of this MSA in effect immediately before that update will continue to govern Customer's use of the Services. Customer's continued use of the Services after an update takes effect constitutes acceptance of the updated terms.
15.4
Electronic Acceptance. Customer agrees that its acceptance of this Agreement through an online click-through or other electronic acceptance process, or by incorporation into an Order, constitutes a legally binding agreement enforceable against Customer in accordance with its terms.
15.5
Counterparts. The Agreement may be executed in one or more counterparts, each of which will be deemed an original, but taken together constituting one and the same instrument. Delivery and execution of the Agreement by electronic means (including via email or electronic signature platform) will have the same force and effect as execution and delivery of an original signed copy.
15.6
Assignment. The Agreement, and the rights and obligations under it, may not be assigned by either party, in whole or in part, without the other party's prior written consent. Notwithstanding the foregoing, either party may assign the Agreement, without consent, to a successor in connection with the sale of all or substantially all of its business or assets to which the Agreement relates, whether by merger, consolidation, reorganization, change of control, sale of equity or assets, or otherwise. The Agreement will be binding upon and inure to the benefit of the parties and their respective successors, representatives, and permitted assigns.
15.7
Subcontracting. Each party may subcontract the performance of its obligations under the Agreement, provided that such subcontracting is consistent with generally accepted industry standards and does not materially diminish the quality of performance. In the case of Meter, Meter may expressly use subcontractors to perform on-site installation and support-related Services at Designated Locations. Meter will remain responsible for the performance of any subcontracted Services and for the acts and omissions of its subcontractors as if performed by Meter. Meter will direct and coordinate its subcontractors, and Customer will have no obligation to pay any subcontractor.
15.8
Waiver. Except as expressly provided herein, no waiver or consent of the Agreement is effective unless in writing and signed by the party against whom it is enforced. A failure to enforce any right is not a waiver, and the exercise of any right or remedy does not waive any other right or remedy.
15.9
Severability. If any provision is held invalid, the remaining provisions remain in full force and effect.
15.10
Independent Contractors. The parties are independent contractors. Nothing in the Agreement creates an employment, agency, partnership, or joint venture relationship between the parties.
15.11
Governing Law. The Agreement is governed by the laws of the State of Delaware, without regard to conflict-of-laws rules. The parties submit to the exclusive jurisdiction of state and federal courts located in San Francisco County, California. Each party waives any objection to venue or forum non conveniens and knowingly waives any right to a jury trial to the extent permitted by law.
15.12
Equitable Remedies. A party may seek temporary or permanent injunctive or equitable relief from any court of competent jurisdiction without posting bond and without waiving any other rights or remedies.
15.13
No Third-Party Beneficiaries. Nothing expressed or implied in the Agreement is intended to confer, nor will confer, upon any person or entity other than the parties and their respective successors or assigns, any rights, remedies, obligations, or liabilities whatsoever.
15.14
Notices. Notices must be in writing and will be deemed given when (a) delivered by hand; (b) sent by email without bounce back; (c) deposited with a recognized overnight courier; or (d) received, if mailed certified return-receipt. Notices must be sent to the addresses set forth in the applicable Order.
15.15
Language; Interpretation; Etc. The Agreement is executed in English only. Any translation of the Agreement into another language will be for reference only and without legal effect. The parties have fully negotiated the Agreement, and it will be interpreted according to the plain meaning of its terms without a presumption that it should be construed for or against either party. Unless otherwise expressly stated, "including" and "e.g." are not exclusive or limiting (and will be deemed followed by "without limitation"); "Section" refers to sections of the Agreement; unless otherwise specified, "days" refers to calendar days, including Saturdays, Sundays and holidays; dollar amounts and the symbol "$" refer to United States Dollars; "hereof," "herein" and "hereunder" and words of like import refer to the Agreement as a whole and not to any particular section or provision of the Agreement; words used in the Agreement in the singular number will extend to and include the plural, and words in the plural number will extend to and include the singular; and words in any gender (including the neuter) will extend to and include all genders (including the neuter). Section and other headings are for ease of reference only and are not to be used to interpret the meaning of any provision. Any rights and remedies provided for in the Agreement are cumulative and are in addition to, and not in lieu of, any other rights and remedies available under the Agreement or under applicable law.
Exhibit A: Product-Specific Terms
These Product-Specific Terms are incorporated into and form part of the Agreement between Meter and Customer and apply to one or more of the Products purchased under an Order. A Product's terms apply only if Customer has purchased or subscribed to that Product under an Order. Capitalized terms not defined in these Product-Specific Terms have the meanings given in the Terms and Conditions. In the event of a conflict between the Terms and Conditions and these Product-Specific Terms, these Product-Specific Terms will govern.
I. Cellular Product Terms
The following terms and conditions govern Meter's Cellular Product, including Customer's use of the Extension Services at Designated Locations (the "Cellular Product Terms"). For avoidance of doubt, these Cellular Product Terms apply only if Customer has purchased or subscribed to the Cellular Product under an Order.
1. Definitions
1.1
"Cellular Hardware" means the equipment, cabling, wiring conduits, connections, and other materials necessary to provide Extension Services at the Designated Locations.
1.2
"Cellular SLA" means the service level agreement that governs the availability of the Extension Services attached hereto as Exhibit B-2.
1.3
"Extension Services" means Meter's cellular extension service that provides cellular coverage at a Designated Location by enabling connectivity to one or more cellular carriers, as set forth in the applicable Order.
1.4
"Extension Services Commencement Date" means, for each Designated Location set forth in an Order, the date on which the Extension Services have been activated and are available for access to and use by Customer, as confirmed by Meter.
2. Extension Services
2.1
Provision of Extension Services. Meter will provide the Extension Services in accordance with the Terms and Conditions, these Cellular Product Terms, and the Cellular SLA.
2.2
Support for Extension Services. Meter will serve as Customer's initial point of contact for issues relating to the Extension Services and will use commercially reasonable efforts to support and resolve issues that Meter determines are within the scope of the Extension Services and within Meter's control. Issues relating to a cellular carrier's network or services, or to Customer's or any end user's devices, are outside the scope of the Extension Services, and Meter may, in its discretion, escalate such issues to the applicable cellular carrier or direct Customer to contact the applicable carrier or device provider directly. Meter does not guarantee that the Extension Services will be available through any particular cellular carrier at any Designated Location during the applicable Subscription Term.
2.3
Designated Locations and Use Restrictions. Customer may use the Extension Services solely at the Designated Locations for which the Extension Services are provisioned. Customer will not relocate, modify, disconnect, reconfigure, or integrate the Extension Services or any Cellular Hardware with any other technology, hardware, software, or network without Meter's prior written consent. Customer will not permit any unauthorized access to or use of the Extension Services and will promptly notify Meter upon becoming aware of any unauthorized access or use and, to the extent within Customer's reasonable control, promptly terminate it.
2.4
Customer Cooperation and Access. As a condition to Meter's provision of the Extension Services, Customer will provide Meter and its personnel with the access, information, and cooperation reasonably necessary to plan, install, test, activate, and support the Extension Services at the applicable Designated Locations, including reasonable access to the premises and coordination with Customer personnel. Except in emergencies, Meter will provide at least twenty-four (24) hours' prior notice before accessing a Designated Location. Customer represents and warrants that it has obtained all rights necessary to permit Meter to access each Designated Location and install the Cellular Hardware. The Extension Services Commencement Date will not occur until installation and testing are complete, and any delay or failure by Customer to provide required access, information, or cooperation may delay the Extension Services Commencement Date.
2.5
Permitted Use. Customer will use the Extension Services solely for the purposes contemplated by the Agreement and these Cellular Product Terms and in compliance with all applicable laws and regulations, including applicable Federal Communications Commission rules. Customer may not resell, sublicense, or otherwise provide third parties access to the Extension Services or any capacity or functionality thereof without Meter's prior written consent.
2.6
Interference. Customer will provide Meter at least thirty (30) days' prior written notice before deploying, installing, or operating any wireless or radio-frequency equipment at a Designated Location that could reasonably be expected to interfere with or degrade the performance of the Extension Services.
2.7
Costs and Expenses. Customer bears all costs and expenses related to its use of the Extension Services, except as expressly agreed in writing.
3. Emergency Services Disclaimer
METER WILL NOT BE LIABLE FOR ANY LOSSES, DAMAGES, CLAIMS, OR EXPENSES ARISING OUT OF OR RELATING TO THE USE OF, ATTEMPTED USE OF, OR INABILITY TO ACCESS 911, E911, OR ANY OTHER EMERGENCY NUMBERS OR SERVICES, OR ANY LIFE SUPPORT, MONITORING, OR EMERGENCY RESPONSE SYSTEMS OR DEVICES, WHETHER ARISING FROM SERVICE INTERRUPTION, DEGRADED PERFORMANCE, OR OTHERWISE.
4. Governmental and Regulatory Matters
4.1
Legal Process. If Meter or any of its suppliers receives a lawful subpoena, court order, or other compulsory legal process seeking end-user records or information relating to the Extension Services, Meter will be responsible for responding to such process as between the parties. To the extent Meter reasonably requires information from Customer to respond, Customer will cooperate in good faith and provide the requested information within fifteen (15) days of Meter's written request.
4.2
Regulatory Changes. If a decision, order, or ruling of a governmental authority or court of competent jurisdiction requires modification of these Cellular Product Terms, the parties will negotiate in good faith to amend the terms to address the impact of such decision. If the parties do not reach agreement and the decision results in a material adverse impact on a party with respect to an applicable Order for Extension Services, the affected party may terminate the applicable Order without penalty by providing written notice within thirty (30) days after the decision becomes effective, unless Meter determines in its sole discretion that earlier termination is required to comply with the decision.
4.3
Audits and Investigations. If a governmental authority requires an audit or investigation relating to communications traffic under the Extension Services, the parties will reasonably cooperate, including by promptly notifying the other party of any required disclosure and, where legally available, making a good-faith effort to obtain protective treatment for Confidential Information.
5. Term and Termination
5.1
Term. Unless otherwise set forth on an Order, Meter will provide the Extension Services for a Designated Location for the Subscription Term applicable to that Designated Location, or, if no Subscription Term is specified in the applicable Order, for sixty (60) months, in each case unless earlier terminated in accordance with Section 7 of the Terms and Conditions. The Subscription Term will renew as set forth in Section 7.1 of the Terms and Conditions.
5.2
Termination. In addition to the termination rights in the Agreement, Meter may terminate any Subscription for Extension Services for a specific Designated Location, upon prior written notice and without liability (other than a refund of prepaid Fees for Extension Services not yet provided as of the effective termination date), if: (a) the Extension Services Commencement Date does not occur within sixty (60) days after the earlier of the Order execution date or any commencement date specified in the Order; (b) no cellular carrier agrees to provide Extension Services at the Designated Location; or (c) a cellular carrier suspends or terminates transmission of its licensed cellular frequencies at the Designated Location. Meter may also immediately suspend the Extension Services or terminate the applicable Order upon Customer's breach of Section 2.3 of the Terms and Conditions or Section 2 of these Cellular Product Terms.
II. Connect Product Terms
The following terms and conditions govern the internet connectivity services that Meter provides to Customer (the "Connect Product Terms"). These Connect Product Terms apply only if Customer has executed an Order for the Connect Product (a "Connect Order Form"), which sets forth the Circuits ordered and their details, including the number of Circuits, type of service, bandwidth, port speed, price per Circuit, and any non-recurring charges. Meter's Acceptable Use Policy (available at meter.com/aup), Open Internet Transparency Policy (available at meter.com/transparency), and Privacy Policy (available at meter.com/privacy-policy) apply to Customer's use of the Connect Services.
1. Definitions
1.1
"Circuit" means an internet access circuit that Meter procures from an ISP and manages as part of the Connect Services, as set forth in the applicable Order.
1.2
"Connect Go-Live Date" means, with respect to a Circuit, the date of successful activation of such Circuit as communicated by Meter.
1.3
"Connect Services" means the internet access services that Meter provides to Customer, including procurement, provisioning, management, support, and billing, in accordance with the applicable Order. Connect Services may include dedicated internet access (DIA), broadband internet, fixed wireless, ethernet transport, static IP addresses, managed router or CPE, and network monitoring. Specific bandwidth, port speed, and service details are set forth in the applicable Order.
1.4
"ISP" means a third-party internet service provider whose internet access services Meter procures and resells to Customer as part of the Connect Services.
2. Provision and Scope of Connect Services
2.1
Provision. Meter will provide the Connect Services in accordance with the Terms and Conditions and these Connect Product Terms and all applicable law.
2.2
Scope. Connect Services are delivered by Meter through agreements with third-party ISPs. Meter may, at any time and without Customer consent, substitute the underlying ISP for any Circuit. Meter does not control the underlying ISP networks and makes no representation, warranty, or guarantee regarding the availability, performance, capacity, uptime, latency, repair times, or service levels of any Circuit, and Meter has no liability for any interruption, degradation, failure, or unavailability of a Circuit caused by or attributable to an underlying ISP or its network. To the extent Meter receives any service credits or refunds from an underlying ISP in connection with a Circuit, Meter will pass through such credits or refunds to Customer.
2.3
Relocation of Circuits. During the Connect Subscription Term, Customer may request to relocate a Circuit from a Designated Location to a new physical location. Meter will accommodate such requests if and only if (a) Customer is in good standing under the Agreement, with no past-due invoices; (b) at least twelve (12) months have elapsed since the Connect Go-Live Date for the original Circuit; (c) Customer provides Meter with all information Meter reasonably requests regarding the new location; and (d) Meter confirms, in its professional judgment, that a comparable Circuit can be procured from an ISP at the new location at a cost and on terms reasonably comparable to those for the original Circuit. If Meter agrees, then (i) the parties will enter into a Supplemental Order Form for the new Circuit with a fresh Connect Subscription Term equal in length to the original Connect Subscription Term and commencing on the Connect Go-Live Date for the new Circuit; (ii) the Connect Subscription Term for the original Circuit will end as of the Connect Go-Live Date for the new Circuit; and (iii) Meter will use commercially reasonable efforts to provision the new Circuit, with timing dependent on the underlying ISP. Customer remains responsible for all charges associated with the original Circuit, including any early termination or cancellation fees imposed by the underlying ISP. If Meter does not agree, or if no comparable Circuit is available at the new location, then Customer remains responsible for all Fees associated with the original Circuit for the remainder of the applicable Connect Subscription Term regardless of whether Customer continues to occupy the original Designated Location. For the avoidance of doubt, this provision does not permit Customer to reduce the number of Circuits under an Order.
3. Fees and Pass-Through Charges
3.1
Fees. For each Circuit, Customer will pay the applicable fees set forth in the applicable Order. Customer is responsible for all applicable taxes, regulatory fees, surcharges, and pass-through costs imposed by an underlying ISP in connection with a Circuit, including installation, construction, extensions, service calls, and equipment charges, in each case as set forth in the applicable Order or otherwise invoiced by Meter.
4. Customer Obligations
4.1
Acceptable Use. Customer will comply with, and ensure that its Users comply with, Meter's Acceptable Use Policy and the operational requirements of the underlying ISP. Customer will not use the Connect Services in any manner that impairs the underlying ISP's network or facilities or the ability of other ISP customers to use the underlying ISP's services.
4.2
Site and Facility Conditions. Customer will provide and maintain, at no cost to Meter or the underlying ISP, all conditions reasonably necessary for the installation and operation of Circuits at each Designated Location, including clean electrical power, mechanical connections, environmental controls (temperature, humidity, fire suppression, and security), rack and floor space, cable entrance and conduit, and reasonable physical and information security measures protecting equipment, software, and data located on Customer's premises.
4.3
Cooperation with Underlying ISP. Customer will reasonably cooperate with Meter and the underlying ISP in connection with the installation, operation, maintenance, modification, and removal of Circuits, including by providing reasonable access to each Designated Location, following reasonable instructions of the underlying ISP regarding ISP-provided equipment, and obtaining any rights of way, easements, licenses, or consents required for the underlying ISP to perform work at a Designated Location.
4.4
ISP-Provided Equipment. To the extent the underlying ISP provides equipment for use in connection with a Circuit, (a) title to such equipment remains with the underlying ISP at all times, (b) Customer will not create, incur, or permit any lien or encumbrance on such equipment, (c) Customer will not move, modify, tamper with, or interfere with such equipment, and (d) the underlying ISP may upgrade, modify, replace, or take any action with respect to such equipment that it deems necessary to protect its services or facilities.
5. Suspension
5.1
Meter may suspend the Connect Services at a Designated Location for (a) non-payment, (b) security risks, (c) violation of the Acceptable Use Policy, or (d) regulatory compliance requirements.
6. Regulatory Matters
6.1
Legal Process. If Meter or any underlying ISP receives a lawful subpoena, court order, or other compulsory legal process relating to the Connect Services, Meter will be responsible for responding to such process as between the parties. To the extent Meter reasonably requires information from Customer to respond, Customer will cooperate in good faith and provide the requested information within fifteen (15) days of Meter's written request.
6.2
Regulatory Changes. If a decision, order, or ruling of a governmental authority or court of competent jurisdiction requires modification of these Connect Product Terms or affects Meter's ability to deliver the Connect Services, the parties will negotiate in good faith to amend the terms to address the impact of such decision. If the parties do not reach agreement and the decision results in a material adverse impact on a party, the affected party may terminate the applicable Order without penalty by providing written notice within thirty (30) days after the decision becomes effective.
7. Term and Termination
7.1
Connect Subscription Term. The term of the Connect Services for each Circuit (the "Connect Subscription Term") will commence on the Connect Go-Live Date for that Circuit and continue for the period specified in the applicable Order, or, if no period is specified, for twelve (12) months, in each case unless earlier terminated in accordance with the Agreement. After that initial period, the Connect Subscription Term for each Circuit will continue on a month-to-month basis until either party terminates that Circuit on thirty (30) days' written notice or the underlying ISP ceases to provide that Circuit, whichever occurs first.
7.2
Termination. Termination or expiration of an Order or Subscription for Connect Services does not relieve Customer of responsibility for any fees, charges, or obligations imposed by an underlying ISP in connection with a Circuit, including any early termination or cancellation fees and any pass-through costs incurred by Meter, whether arising before or as a result of such termination. Meter has no obligation to continue procuring or managing a Circuit beyond the availability or term offered by the underlying ISP.
Exhibit B-1: Platform Service Level Agreement
To the extent Customer has access to the Platform or subscribes to Meter's Network Product, this Platform SLA is incorporated into and forms part of the Agreement between Meter and Customer and sets forth the service level commitments applicable to Customer's access to and use of the Platform. Capitalized terms not defined in this Platform SLA have the meanings given in the Terms and Conditions. In the event of a conflict between the Terms and Conditions and this Platform SLA, this Platform SLA will govern.
1. Definitions
The definitions of certain capitalized terms used in this Platform SLA are set forth below.
"Platform Downtime" means, subject to Section 6 of this Platform SLA, a period during which Customer is unable to access the Platform through a standard web browser due to a failure of the Platform or Meter-controlled systems, as confirmed by Meter. Platform Downtime excludes unavailability resulting from planned maintenance performed during the non-business hours specified by Customer in the Platform.
"Platform SLA" has the meaning set forth in Section 2 of this Platform SLA.
"Platform SLA Termination" has the meaning set forth in Section 5 of this Platform SLA.
"Platform Uptime Percentage" means the total number of minutes in a calendar month minus the number of minutes of Platform Downtime during such calendar month, divided by the total number of minutes in a calendar month.
"Service Credit" means the number of days that Meter will credit and add to the end of the Subscription Term at no charge to Customer in accordance with Section 2.
2. Service Level Warranty
Platform Service Level Warranty. During the Term, the Platform will be available to Customer with a Platform Uptime Percentage of at least 99.99% in any calendar month (the "Platform SLA"). If the Platform Uptime Percentage does not meet the Platform SLA in any calendar month, and if Customer meets its obligations under the Agreement, then Customer will be eligible to receive Service Credits in accordance with the table below.
Uptime Percentage
Days Credited
< 99.99% - ≥99.8%
3
< 99.8% - ≥99.5%
5
< 99.5% - ≥98.0%
10
< 98.0%
15
3. Request for Service Credits
To be eligible to receive any Service Credit, Customer must submit a written request to Meter within thirty (30) days after the end of the calendar month in which Customer became eligible for such Service Credit, specifying the applicable downtime event(s). Failure to submit a timely request in accordance with this Section 3 will result in forfeiture of Customer's right to receive the applicable Service Credit.
4. Maximum Service Credit
The aggregate total of all Service Credits issued to Customer in a single calendar month for Platform Downtime, whether arising from one or more incidents, will not exceed fifteen (15) days. Service Credits may not be exchanged for, or converted into, cash or any other monetary amount.
5. Termination
If Platform Uptime Percentage falls below 98.0% in two (2) consecutive calendar months, or in three (3) calendar months during a rolling twelve (12) month period, then, in lieu of Service Credits, Customer may terminate the Agreement upon written notice to Meter and receive a pro rata refund of any prepaid fees allocable to the remaining Subscription Term ("Platform SLA Termination").
6. Exclusions
The Platform SLA does not apply to any performance issues that result from: (a) a force majeure event, including riots, insurrection, fire, flood, storm, explosion, act of God, war, terrorism, earthquake, or any other cause beyond Meter's reasonable control, provided that Meter uses commercially reasonable efforts to mitigate the effects of such event; (b) Customer's equipment or systems, or from any third-party equipment or services, including Customer's internet connection, ISP circuits, cellular carriers, upstream networks, or any services not provided by Meter; or (c) Customer's violation of the Agreement or the Documentation.
7. Exclusive Remedy
The Service Credits and the Platform SLA Termination are Customer's sole and exclusive remedies for any failure by Meter to meet the Platform SLA.
Exhibit B-2: Cellular Service Level Agreement
To the extent Customer subscribes to Meter's Cellular Product, this Cellular SLA is incorporated into and forms part of the Agreement between Meter and Customer and sets forth the service level commitments applicable to Customer's access to and use of the Extension Services. Capitalized terms not defined in this Cellular SLA have the meanings given in the Terms and Conditions. In the event of a conflict between the Terms and Conditions and this Cellular SLA, this Cellular SLA will govern.
1. Definitions
The definitions of certain capitalized terms used in this Cellular SLA are set forth below.
"Cellular Downtime" means, subject to Section 6 of this Cellular SLA, a period during which the Extension Services at a Designated Location are unavailable due to a failure of Meter-provided Cellular Hardware or Meter-controlled configuration, as confirmed by Meter. Cellular Downtime excludes any unavailability caused by a cellular carrier, spectrum availability, carrier backhaul, RF conditions, Customer or end-user devices, or any other third-party systems or services.
"Cellular SLA Standard" has the meaning set forth in Section 2 of this Cellular SLA.
"Cellular SLA Termination" has the meaning set forth in Section 5 of this Cellular SLA.
"Cellular Uptime Percentage" means the total number of minutes in a calendar month minus the number of minutes of Cellular Downtime during such calendar month, divided by the total number of minutes in the calendar month.
"Service Credit" means the number of days that Meter will credit and add to the end of the applicable Subscription Term at no charge to Customer in accordance with Section 2.
2. Cellular Service Level Warranty
During the Term, the Extension Services will be available with a Cellular Uptime Percentage of at least 99.0% in any calendar month (the "Cellular SLA Standard"). If the Cellular Uptime Percentage does not meet the Cellular SLA Standard in a calendar month, and if Customer meets its obligations under the Agreement, then Customer will be eligible to receive Service Credits as follows:
Uptime
Days Credited
< 99.0% - ≥98.5%
3
< 98.5% - ≥98.0%
5
< 98.0% - ≥97.0%
10
< 97.0%
15
3. Request for Service Credits
To be eligible to receive any Service Credit, Customer must submit a written request to Meter within thirty (30) days after the end of the calendar month in which Customer became eligible for such Service Credit, specifying the applicable downtime event(s). Failure to submit a timely request in accordance with this Section 3 will result in forfeiture of Customer's right to receive the applicable Service Credit.
4. Maximum Service Credit
The aggregate total of all Service Credits issued to Customer in a single calendar month for all Cellular Downtime, whether arising from one or more incidents, will not exceed fifteen (15) days. Service Credits may not be exchanged for, or converted into, cash or any other monetary amount.
5. Termination
If, with respect to more than fifty percent (50%) of the Designated Locations, the Cellular Uptime Percentage falls below 97.0% in two (2) consecutive calendar months, or in three (3) calendar months during a rolling twelve (12) month period, then, in lieu of Service Credits, Customer may terminate the Agreement upon written notice to Meter and receive a pro rata refund of any prepaid fees allocable to the remaining Subscription Term ("Cellular SLA Termination").
6. Exclusions
The Cellular SLA does not apply to any performance issues that result from: (a) a force majeure event, including riots, insurrection, fire, flood, storm, explosion, act of God, war, terrorism, earthquake, or any other cause beyond Meter's reasonable control, provided that Meter uses commercially reasonable efforts to mitigate the effects of such event; (b) any cellular carrier, spectrum availability, carrier core network or backhaul, regulatory or governmental action or restriction, RF conditions, or any third-party equipment or services, including Customer or end-user devices or systems; or (c) Customer's violation of the Agreement, the Cellular Product Terms, or the Documentation.
7. Exclusive Remedy
The Service Credits and the Cellular SLA Termination are Customer's sole and exclusive remedies for any failure by Meter to meet the Cellular SLA Standard.
Exhibit C: Support Terms
These Support Terms are incorporated into and form part of the Agreement between Meter and Customer and sets forth the technical support services applicable to the Services provided under the Agreement during the Subscription Term, including the procedures, priority levels, and response targets for addressing Incidents. Capitalized terms used but not defined in these Support Terms have the meanings given in the Agreement. In the event of a conflict between the Terms and Conditions and these Support Terms, these Support Terms will govern.
1. Definitions
"Escalation" means Meter's internal process by which an Incident is formally elevated for additional review and prioritization, including continued active investigation, until the Incident is resolved or reasonably mitigated.
"Incident" means an unplanned failure of, or material degradation in, the operation of the Services that adversely impacts Customer's ability to use the Services as intended.
2. General
During the applicable Subscription Term, Meter will provide the Support described in these Support Terms on a continuous basis, twenty-four (24) hours per day, seven (7) days per week. Meter's support organization will receive, triage, and respond to Incidents in accordance with the priority levels and response and resolution targets set forth in these Support Terms.
3. Contact
Customer may initiate a Support case by submitting a request through the support channels designated by Meter, as identified in the Platform or otherwise communicated by Meter from time to time. There is no limit on the number of Support cases that Customer may submit.
4. Priority Leveling, Response & Resolution Time
When submitting a Support case, Customer may assign an initial Priority Level. Meter will confirm the Priority Level and may reclassify it based on Meter's reasonable assessment. Meter will provide an initial response within the applicable Initial Response Time below and will use commercially reasonable efforts to diagnose and address the Incident (including repair or replacement of Hardware, or providing a fix or workaround, as applicable) within the applicable Target Resolution Time below. If an Incident is not resolved or reasonably mitigated within the Target Resolution Time, then Meter will escalate the Incident and keep it under active review and prioritization until resolved or reasonably mitigated.
Priority
Description
Initial Response Time
Target Resolution
Sev1
Business Critical: Material outage of core Service functionality at a Designated Location, with no reasonable workaround available
Within 15 minutes
Within 8 hours to restore service or implement a reasonable workaround
Sev2
Urgent & Major Impact: Significant degradation of Service functionality with a reasonable workaround available
Within 30 minutes
Within 24 hours to restore service or implement a reasonable workaround
Sev3
Medium / Non-Critical: Limited degradation of functionality with minimal operational impact
Within 1 hour
Within 3 calendar days
Sev4
Minor / General Questions: Cosmetic issues, minor performance issues, or general questions (e.g., regarding API or network configuration, dashboard functionality, enhancement requests, or documentation clarification)
Within 4 hours
Within 7 calendar days
5. Hardware Repair and Replacement
If Meter determines that resolution of an Incident requires repair or replacement of Hardware, Meter may, in its discretion, repair the Hardware or provide replacement Hardware, as applicable. Repair may include remote diagnostics, configuration changes, or software or firmware updates. Time required to ship or install replacement Hardware is excluded from the Incident resolution time. If replacement Hardware is provided, Meter will use commercially reasonable efforts to ship replacement Hardware to the applicable Designated Location within one (1) business day. For Customers with a Premium Subscription, Meter will provide on-site installation and configuration of replacement Hardware in accordance with the Agreement. For Customers with a Pro Subscription, Meter will provide reasonable remote support and cooperate with Customer regarding installation and configuration; however, Meter is not responsible for performing installation or configuration.
6. Conditions and Exclusions
Meter's obligation to provide Support is conditioned on Customer's reasonable cooperation (including following Meter's reasonable troubleshooting guidance, providing timely and accurate information and access—including reasonable physical access to the applicable Designated Location when necessary—and maintaining all Customer-provided equipment, connectivity, and systems required to access and use the Products). Meter has no obligation to provide Support to the extent an issue results from (a) Customer's negligence, misuse, or violation of the Agreement or Documentation; (b) equipment, software, or services not provided by Meter (including third-party hardware, software, internet connectivity, carriers, or upstream networks); or (c) any cause beyond Meter's reasonable control.
7. Conclusion of Support Cases
Meter may close a Support case when Meter determines that the Incident has been resolved or reasonably mitigated, including through the provision of a workaround. Meter may also close a Support case if Customer fails to respond to three (3) reasonable requests for information or feedback necessary to proceed with or confirm a proposed resolution.
Exhibit D: Installation Scope
This Installation Scope Exhibit sets forth the installation and cabling work that is in and out of scope for Meter under a Premium Subscription for the Network Product. Meter's installation responsibilities under this Exhibit D apply only to network designs approved by Meter. If Customer requests a network topology or device placement that Meter has not approved, Meter may decline to provide installation services for such design, or may treat the resulting work as out of scope and subject to additional fees and costs. To the extent of any conflict between this Exhibit D and the Terms and Conditions, this Exhibit D will govern.
Meter will provide all work that is in scope at no additional cost to Customer. For out-of-scope work, the Customer will be responsible for such work and Meter may elect to perform such work with prior written approval of Customer and at Customer's cost.
In Scope for Premium Subscription
Installation of Meter Hardware, including rack installation at MDF and IDF locations and rack-and-stack of Meter Hardware.
Installation of low-voltage cabling between core backbone Meter Hardware (e.g., firewall to core switch, core switch to access switches, access switches to access points) in accordance with Meter's approved network design for the applicable Designated Location.
Interior fiber runs between an MDF and an IDF within a single building at the Designated Location.
Patch cables from existing terminated ports on Customer's patch panels to Meter Hardware, as part of the initial installation only.
Structured cabling and pathway work (including drilling, conduit, and ceiling tile work) necessary to meet physical, safety, or permitting requirements.
Out of Scope for Premium Subscription
Configuration or installation of any Customer-owned or third-party devices (e.g., workstations, phones, cameras, printers, non-Meter networking equipment).
Cabling between Meter Hardware and Customer-owned or third-party devices (e.g., workstations, phones, cameras, printers, TVs).
Cabling to desk switches or other Meter Hardware deployed at end-user workstations or desks.
Cabling to Meter Hardware deployed outside of MDF or IDF locations, or otherwise inconsistent with Meter's approved network design for the applicable Designated Location.
Termination of unterminated ports on Customer's patch panels; patching of cable runs added by Customer after the initial installation.
Construction or pathway work not necessary to meet physical, safety, or permitting requirements (for example, work performed solely to satisfy Customer's aesthetic preferences).
ISP-related construction or installation work to extend or deliver ISP service to the MDF or to Meter Hardware, including where the ISP demarcation point is not located at the MDF.