Micro Metrics Inc. (“Micrometrics”) provides subscription-based software-as-a-service product and services for businesses to collect valuable insights and data on use of their products and services through end user surveys and other tools managed through the Micrometrics mobile application and web applications available through the Micrometrics website located at www.micrometrics.com (the “Platform”).
This Agreement applies to Customer (as identified on the Order Form) and its end users’ use of the Platform.
THIS AGREEMENT CONTAINS IMPORTANT LIMITATIONS THAT ARE APPLICABLE TO THE SERVICES. EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS HEREOF. IF YOU ARE AN AGENT OR EMPLOYEE OF AN ENTITY YOU REPRESENT AND WARRANT THAT (I) THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH ENTITY’S BEHALF AND TO BIND SUCH ENTITY, AND (II) SUCH ENTITY HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS HEREUNDER. IF YOU DO NOT ACCEPT THESE TERMS, THEN DO NOT USE THE WEBSITE OR ANY OF ITS CONTENT OR SERVICES.
1. USE OF MICROMETRICS SERVICES
If you subscribe to use the Platform, you will have access to the Micrometrics Platform and services (collectively, the “Services”); the Platform provides you with the ability to develop surveys which you can customize to suit your needs. Micrometrics may also provide you with access to pre-loaded survey templates. You also have the option to provide an incentive for consumers and your customers to complete the surveys; for example, you may offer a discount on a specified product that is redeemable within a specified time period. Customer partners and affiliates (“Affiliates”) may use the Platform, provided the Affiliate executes an Affiliate Addendum in the form of Schedule A and Customer uses commercially reasonable efforts to ensure Affiliate complied with this Agreement.
1.2 Consultation Services
To help you get started with using the Platform, Micrometrics offers optional consulting services which may include the creation of custom surveys for your organization. For further information about these optional services please e-mail Micrometrics at firstname.lastname@example.org.
1.3 Software and Services License
Micrometrics hereby grants you a limited, non-exclusive, non-transferable license to use our Services during the term of your subscription within your organization and not for resale or further distribution. Your right to use our Services is limited by all terms and conditions set forth in this Agreement. Micrometrics further grants you a non-exclusive, non-transferable license to use the Micrometrics web application and mobile application in order to access and make use of the Platform. For greater certainty, any software provided is licensed; not sold.
1.4 Passwords and Access
You are responsible for safeguarding the password that you use to access the Website and Platform, and you are responsible for any activities or actions undertaken while logged in under your password. You agree to keep your password secure. Micrometrics cannot, and will not, be held liable for any loss or damage arising from a failure to comply with these requirements.
1.5 Retained Rights
Our software and services are protected by applicable intellectual property laws, including Canadian and US copyright law and international treaties. Except as expressly permitted by applicable law, you may not, and will not permit or authorize any third party to: (a) reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer or create derivative works of any of our Services; or (b) rent, lease or sublicense access to the Platform.
1.6 Content Rules
The Platform enables client users to generate surveys and questionnaires to engage with their customers or guests, as applicable. You acknowledge and agree that you are solely responsible for the content of any surveys which you create, for ensuring that you comply with privacy & anti-spamming laws/regulations, and for ensuring appropriate consent is obtained from any customer/guest whose personal information you collect through your use of the Platform. You acknowledge that you are solely liable for any misuse of personal information collected through the Platform, and agree that Micrometrics cannot and will not be held liable for any potential misuse of survey respondents’ personal information undertaken either by you or by a member of your organization. In the event of such misuse, you will take on full & sole liability for any breach of federal, state, provincial or international laws & regulations, whether these relate to data privacy, spamming or any other matter.
2. MICROMETRICS PERSONAL INFORMATION AND DATA PRACTICES
2.1 Personal Data
As used in this Section 2: (a) “Personal Information” means information about an identifiable individual or other information subject to Privacy Laws collected or accessible to Micrometrics in the course of providing the Services to you; and (b) “Privacy Laws” means all federal, provincial, state or other applicable statutes, laws or regulations of any governmental or regulatory authority in any jurisdiction governing the handling of information about an identifiable individual, including the Personal Information Protection and Electronic Documents Act (Canada) and equivalent provincial legislation.
2.2 Privacy Commitment to Survey Participants and Individuals
2.3 Privacy Commitment to Customers
Micrometrics acknowledges and agrees that all Personal Information collected from Your personnel who sign up and use the Services and all Personal Information provided by You to Micrometrics in respect of your customers and users (collectively “Customer Personal Information”) constitutes Your confidential information. Micrometrics will use commercially reasonable efforts to:
- receive, collect, use, store, access, process, record, disclose, transfer, retain, dispose of, destroy, manage or otherwise handle (collectively, “Handle”) all Customer Personal Information in accordance with Privacy Laws;
- except for disclosures required by law or disclosures in connection with a corporate transaction such as a merger or acquisition of Micrometrics’ business or assets, not use or disclose Customer Personal Information for any purposes other than as specifically contemplated under this Agreement and only to the extent reasonably necessary or appropriate for the performance of the Services;
- protect the Customer Personal Information, regardless of format, by security safeguards appropriate to the sensitivity of the information to protect against loss or theft, as well as unauthorized access, disclosure, copying, use, or modification;
- if Micrometrics receives a request for access to Customer Personal Information from the individual whose personal information is stored, refer such request to you and respond to any such request as directed by you;
- notify you if Micrometrics receives notice from any governmental or regulatory authority alleging that either you or Micrometrics has failed to comply with Privacy Laws in connection with the performance of this Agreement; and
- Provide reasonable assistance to you in responding to and addressing any complaint relating to the Handling of Customer Personal Information in the course of Micrometrics’ performance under this Agreement.
2.4 Anti-Spam Laws
Micrometrics cannot and does not, monitor, censor or edit the contents of email messages sent using our Platform or Services. Client users are solely responsible for the contents of their commercial electronic messages and the consequences of any such commercial electronic message, including ensuring all messages comply with applicable anti-spam laws. Micrometrics do not assume any responsibility or liability for messages or other content that is created by our client users. In the event of a complaint or investigation, Micrometrics reserve the right to review your usage of any information acquired through our Platform or Services to send commercial electronic messages. Micrometrics reserve the right to warn you or suspend or terminate your account(s) and your use of our services, without notice, if Micrometrics determines, in its sole discretion, that Customer is violating applicable privacy or anti-spam laws.
3. NOT INCLUDED
4. PROPRIETARY RIGHTS
4.1 Reservation of Rights
Micrometrics will retain ownership of all right, title and interest (including all intellectual property rights) of its proprietary technology used to provide the Platform, including all software, survey templates and forms. All equipment provided as part of the Services is either owned by Micrometrics or licensed/distributed by third-party providers.
4.2 Survey Data
As between you and Micrometrics, you will own and retain all right, title and interest in and to data derived from persons filling out surveys in your locations, including any Personal Information of users collected by you through the surveys (collectively, “Survey Data”). In the event that Micrometrics is providing consulting services to you (whether on an ongoing or limited basis) as part of your engagement with us, Micrometrics retains ownership of copyright for any and all reports produced within the scope of these consulting services.
4.3 License to Survey Data
You hereby grant Micrometrics and its affiliates a non-exclusive, non-transferable, royalty-free, worldwide sub-licensable (solely to Micrometrics agents and contractors assisting in the provision of the Services) right and license to access and use the Survey Data in order to perform the Services as contemplated by this Agreement.
4.4 Aggregate Data
You agree that Micrometrics may collate, modify and create aggregate, non-personally identifiable information from the Survey Data and from use of the Services and Micrometrics may reuse all general knowledge, know-how, work and technologies acquired during provision of the Services.
Micrometrics shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual, unrestricted license to use and/or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by you or your users (including end users who fill out surveys) relating to the operation of the Services.
4.6 General Learning
Micrometrics compiles and analyzes usage and performance of the Services (“Compiled Data”) and uses Compiled Data to build features and improve the functionality and feature set of the Services. Micrometrics shall have exclusive ownership of any Compiled Data and the exclusive right to use the same for any purpose, provided that Micrometrics shall not distribute any Compiled Data in a manner which identifies your organization or your customers or guests, as applicable.
4.7 Copyright and Trademark Rights
Solely for the purpose of marketing and promoting the availability of our services, you grant us the non-exclusive, non-transferable right, during the term of the contract/agreement only and they should be in their original form as provided by you. Micrometrics also grants you the non-exclusive right to reproduce any of our marketing materials, trademarks, designs, logos and similar identifying marks in connection with your promotional material, subject to our right to review and approve any of your promotional materials containing references to Micrometrics, prior to distribution.
Any information not generally known to the public that is disclosed by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) in connection with this Agreement and that has been identified as proprietary and/or confidential shall be kept in strict confidence by the Receiving Party and may only be used or disclosed with permission of the Disclosing Party. This Section will not apply to any information which is in the public domain (otherwise than through breach of this Agreement); is known by the Receiving Party prior to its disclosure by the Disclosing Party or is independently developed by the Receiving Party without breach of the obligations contained in this Agreement; or has been received by the Receiving Party from a third party who is not subject to obligations similar to the obligations contained in this Agreement.
5.2 Pricing Information
You acknowledge and understand that any and all information relating to the cost paid for the Services, or any discounts/promotion that you may have received in procuring the Services are strictly confidential between you and Micrometrics. You understand this information may not be shared with, discussed with or revealed to any party other than an authorized representative of Micrometrics or your organization’s internal stakeholders during the decision-making process. Failure to maintain the confidentiality of this information could severely & irrevocably affect Micrometrics’ ability to do business, and would constitute a breach of the Subscription Agreement. In the event of such a breach, your use of the Services will be terminated immediately, without any sort of refund or compensation.
6. TECHNICAL SUPPORT, CONSULTATION AND CHANGES TO SERVICES
6.1 Technical Support
Micrometrics will provide basic technical support to you during the term of your subscription if you call the support desk or e-mail Micrometrics.
6.2 Consultation Services
Micrometrics also offer an optional one-time consultation with our survey consultant who can assist you in determining how to best use the Services to satisfy your organization’s needs (“Consultation”). If you choose to purchase a Consultation, you may also receive a specified number of custom survey templates which you may use at no additional charge.
The Website and/or Services may be unavailable from time to time due to planned maintenance or due to unforeseen network interruptions from our third-party service providers. However the method used to provide the Services means that maintenance and/or equipment errors that affect the Website and/or Services will not cause an inability to provide Internet service to your customers. Micrometrics may periodically add or update the information and materials on this Website without notice and may suspend the Service if you are in arrears in your payment obligations.
6.4 Service Updates
The Services are continually being developed, modified and/or enhanced. You will be provided access to any new features Micrometrics generally make available to the Services during the term of your subscription, at no additional cost. However, you acknowledge and agree that the Services are provided ‘as is’ and you are not subscribing to use the Services based on any expectation of future features or functionality.
6.5 Agreement Updates.The date of the last revision of this Agreement is set out at the bottom of this document. Micrometrics reserve the right to further revise the terms of this Agreement from time to time and the most current version will always be available at: http://micrometrics.co/helix-terms/. All material changes to this Agreement will be notified to you via e-mail to the e-mail address(es) associated with your account. All changes will take effect 10 business days from the date of publication on the Website. By continuing to access or use the Website or Services after those revisions become effective, you agree to be bound by the revised Agreement terms.
7. PAYMENT TERMS
7.1 Subscription Fees
In order to use the Services, you must sign up for a minimum subscription term of 1-year (unless otherwise specified in the quote details) and pay a subscription fee which covers access to and use of the software and the Services. Subscription fees will vary depending on various factors including the number of licenses associated with your subscription.
If you would like to receive a Consultation, you will be required to pay a consultation fee, unless otherwise specified in the quote details. For a list of our subscription and consultation fees, please speak to a Micrometrics agent, who will provide a customized quote for you.
7.3 Payment Terms
Fees for the Services will be invoiced on a monthly or annual basis, as per the terms of the quote you accept. Unless otherwise stated in an invoice, charges are due net thirty (30) days from the invoice date. You are responsible for maintaining complete and accurate billing and contact information with Micrometrics. All amounts are payable in the currency indicated on an invoice. Fees are based on the scope of the Services you purchased as part of your subscription, as outlined in the quote you accept, and not actual usage. Payment obligations are non-cancelable, fees paid are non-refundable and a subscription cannot be terminated by you during the relevant subscription term, unless agreed to by an authorized Micrometrics representative.
7.4 Overdue Payments
Any payment not received from you by the due date may accrue, at Micrometrics’ discretion, late charges at the rate of 1.5% of the outstanding balance per month (19.57% per annum), or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
Unless otherwise stated within the quote you accept, Micrometrics’ fees do not include any direct or indirect local, state, provincial, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, goods and services, harmonized, use or withholding taxes (collectively, “Taxes”). You are responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on Micrometrics’ net income or property.
8. TERM AND TERMINATION
Your subscription will begin upon signature of a quote or purchase order, or acceptance of an electronic quote referencing these terms. This Agreement will remain in full force and effect for the duration of the term of your subscription. Unless otherwise agreed in a purchase order or in the quote you accept, the term of your subscription will be for the initial term of your agreed subscription (the “Initial Term”). At the end of the Initial Term, your subscription will auto-renew for further terms of one (1) year unless either party gives at least 30 days written notice of termination prior to the expiry of the then current term or unless terminated sooner in accordance with Section 8.2.
Either party may terminate this Agreement with written notice if the other party (a) fails to correct a material breach of its obligations under this Agreement within thirty (30) days after receipt by such other party of written notification from the notifying party of such material breach; (b) ceases to carry on business as a going concern; or (c) files a bankruptcy petition or has such a petition filed involuntarily against it, becomes insolvent, makes an assignment for the benefit of creditors, consents to the appointment of a trustee, or if bankruptcy reorganization or insolvency proceedings are instituted by or against the other party.
8.3 Returns Procedure.On termination of this Agreement for any reason, your right to use the Services will terminate and you will not be able to access historical data or launch or maintain surveys. Each party shall promptly return or destroy (at the disclosing party’s election) any Confidential Information of the other party.
The obligations of the parties under this Agreement that by their nature would continue beyond expiration, termination or cancellation of this Agreement (including, without limitation, the warranties, indemnification obligations, confidentiality requirements, ownership and proprietary rights) shall survive any such expiration, termination or cancellation.
9. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS; INDEMNITY
9.1 Mutual Representations and Warranties.Each party represents and warrants to the other party that: (a) it is a corporation or registered institution (e.g. government department, registered non-profit, etc.), duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or registration; (b) it has all requisite power and authority and approvals to execute, deliver and perform its obligations under this Agreement; (c) the execution and delivery of this Agreement and the performance of its obligations hereunder have been duly authorized by it and any necessary third parties; and (d) it will perform its duties and obligations hereunder in a careful, diligent, professional, proper, efficient and business-like manner.
9.2 Data Warranties.You represent and warrant that you have all rights necessary to provide Micrometrics with access to data (including Survey Data) for use in accordance with the terms of this Agreement and use by Micrometrics of Survey Data and any other data or materials provided by you for use in accordance with the terms of this Agreement will not violate the rights of any third party.
10. DISCLAIMER OF WARRANTIES
THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICES IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM MICROMETRICS OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, MICROMETRICS, ITS SUBSIDIARIES, AND ITS LICENSORS DO NOT WARRANT THAT THE SERVICES WILL MEET YOUR REQUIREMENTS; THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; OR THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED.
11.1 IP Indemnity
Micrometrics shall indemnify and hold you harmless against all actions or claims, liability, loss, costs, attorneys’ fees, expenses and damages due to or arising from any infringement on the intellectual property rights of third parties (“IP Claim”). Micrometrics shall, at its own expense, if so requested by you, defend you against all such claims, proceedings and suits, provided that (a) you will promptly notify Micrometrics of any IP Claim (and failure to do so will relieve Micrometrics of its obligations to the extent Micrometrics establishes that it has been prejudiced by such failure); and (b) Micrometrics will have the right to control the defense of any IP Claim and all negotiations for its settlement. In the event that Micrometrics becomes aware of an actual or potential IP Claim, Micrometrics may, in its sole discretion: (A) undertake to procure for you the right to continue using the Platform; (B) provide you with a functionally equivalent, non-infringing replacement for the Platform; or if (a) and (b) aren’t commercially reasonable, terminate your license to use the Platform and refund any prepaid fees for the Platform and Services.
The obligations in Sections 11.1 do not extend to (1) any IP Claim based upon infringement or alleged infringement of any patent, trademark, copyright or other intellectual property right by the combination of the Service furnished by Provider with other products, software or services not provided by Provider; (2) any IP Claim related to any Customer Data, or (3) any IP Claim related to any use or exercise of any other right in respect to the Service outside the scope of the rights granted in this Agreement.
11.3 Mutual Indemnity
Subject to the terms and conditions of this Agreement, each party shall (the “Indemnifying Party”), at its own expense, defend the other party, its affiliates and its and their directors, officers, employees and agents (the “Indemnitees”) in any action, suit or proceeding brought by a third party against arising from (a) a breach of applicable laws by the Indemnifying Party; (b) breach of any warranties given by the Indemnifying Party; or (c) in the case of MicroMetrics as the Indemnitee, a claim that the Customer’s trademarks infringe any intellectual property rights of the third-party (“Claims”) and shall indemnify and hold the Indemnitees harmless from and against any settlement amounts agreed in writing by the Indemnifying Party and/or any losses, damages, expenses or costs (including but not limited to reasonable attorneys’ fees) awarded to such third party against any of the Indemnitees by a court or tribunal of competent jurisdiction in any such Claim. As conditions for such defense and indemnification, (a) the Indemnitees shall notify the Indemnify Party promptly in writing upon becoming aware of all pending Claims; (b) Indemnitees shall give Indemnifying Party sole control of the defense and settlement of such Claims; (c) Indemnitees shall cooperate fully with Indemnifying Party in the defense or settlement of such Claims; and (d) Indemnitees shall not settle any Claims without the Indemnifying Party’s written consent, or compromise the defense of any such Claims or make any admissions in respect thereto.
12. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THESE SERVICES. EACH PARTY’S AGGREGATE LIABILITY FOR ALL CLAIMS OF ANY KIND ARISING AS A RESULT OF OR RELATED TO THIS AGREEMENT, SHALL NOT EXCEED AN AMOUNT EQUAL TO THE AMOUNTS ACTUALLY PAID BY YOU TO US IN THE PREVIOUS 12 MONTHS PRIOR TO A CLAIM ARISING. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
During the Term, Micrometrics shall maintain the following insurance coverage:
- Comprehensive general liability insurance including with a limit of no less than five million dollars ($5,000,000 CDN) in respect to any one occurrence; and
- Errors and Omissions insurance with a limit of no less than two million ($5,000,000 CDN) per claim and in the aggregate.
- Cyber Insurance with a limit of no less than Two Million Dollars ($5,000,000.00 CDN) per claim and in aggregate.
14. GENERAL PROVISIONS
You may not assign or transfer any interest under this Agreement without the written consent of Micrometrics. In the even that Customer goes through a “Change of Control”, Customer shall notify Micrometrics of such Change of Control within 30 days. For purposes of this Agreement, “Change of Control” shall mean the occurrence of any of the following events: (a) an acquisition of the Customer by another entity by means of any transaction or series of related transactions (including, without limitation, any reorganization, merger or consolidation but excluding any merger effected exclusively for the purpose of changing the domicile of the Company), or (b) a sale of all or substantially all of the assets of the Company (collectively, a “Merger”), so long as in either case the Customer’s shareholders of record immediately prior to such Merger will, immediately after such Merger, hold less than fifty percent (50%) of the voting power of the surviving or acquiring entity.
14.2 Governing Law; Venue
This Agreement is governed by the laws of Ontario, Canada. Any dispute arising out of this Agreement shall be exclusively heard in the provincial courts of Ontario located in Ottawa, ON.
14.3 Entire Agreement
This Agreement, as well as any Schedule, Order Form and policy incorporated herein, constitutes the entire agreement between the parties with respect to the subject matter herein. If any part of this Agreement is held to be invalid or otherwise unenforceable, the provision shall no longer form part of this Agreement; however, the remainder Agreement shall stand.
14.4 No Waiver
No failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver of such right, power or privilege.
It is not intended that any agency or partnership relationship be created by this Agreement. Nothing stated in this Agreement shall be interpreted to construe the parties as partners or as creating any relationship other than as independent contractors.
14.6 Force Majeure
Neither party shall be liable for any failure or delay in performing any of its obligations hereunder if such delay is caused by any event or circumstance beyond its reasonable control, including acts of nature, accidents, breakdowns of equipment or software, power failures, strikes, lockouts, or any other industrial, civil or public disturbance.
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