MetraTech provides innovative billing, commerce, usage, subscription and settlement solutions

1.1

Member Account, Password and Security. The Metanga Services require You to open an account. You shall be responsible to complete the registration process by providing MetraTech with current, complete and accurate information as prompted by the applicable registration form or the Subscription Agreement, available viawww.metanga.com, to choose a password and a user name, to maintain the confidentiality of Your password and account and for any and all activities that occur under Your account. You further undertake to promptly notify MetraTech of any unauthorized use of Your account or of any other breach of security. MetraTech will not be liable for any loss that You may incur as a result of someone else using your password or account, either with or without your knowledge. However, You could be held liable for losses incurred by MetraTech or another party due to someone else using Your account or password. You may not use anyone else's account at any time.

1.2

Billing Data and Personal data. MetraTech shall apply commercially reasonable efforts, consistent with generally acceptable market practices, as they may exist from time to time to maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Billing Data and of applicable Personal Data of Your subscribers. The Safeguard of Your Billing Data and the applicable Personal Data that you transmit to MetraTech, including, without limitation, data transferred over the Internet or other media is dependent upon your encrypting such Billing Data or using the encryption feature provided in the Metanga Services in order to encrypt such Billing Data. For purposes of this Agreement “Billing Data” means all electronic data or information submitted by You to the Metanga Services, including, but not limited to Your Personal Data and Your subscribers’ Personal Data, product information, pricing, invoicing and configuration data, and such other information or data associated with Your use of the Metanga Services for billing purposes, which information, by its nature, ought to be protected under confidentiality, privacy and trade secrets laws; and “Personal Data” means information provided by You or collected by MetraTech in connection with the Metanga Services that identifies or can be used to identify, contact, or locate the person to whom such information pertains. Personal Data includes: name, address, phone number, fax number, email address, social security number or other government-issued identifier, and Payment Card (credit or debit cards) information (whether relating to an individual or an Entity). It also includes, but is not limited to, customer-payment data such as bank-account numbers, ACH information, or any other information related to a payment instrument transmitted to MetraTech. Additionally, to the extent any other information (including a personal profile, unique identifier, biometric information, and/or IP address) is associated or combined with Personal Information, then that information is also Personal Information. The term “Data” shall also include any derivatives of the Data or any information extrapolated from or calculated based on the Data (for instance, taxes owing, amounts owing to MetraTech, its resellers or partners, etc.

1.3

Modification and disclosure of Billing Data. MetraTech shall not modify or disclose Your Billing Data, except as required by law or an order of a competent authority or court and subject to the provisions of Section ‎6 below or as expressly permitted in writing by You. MetraTech shall further not access Your Billing Data except to provide You or the Entity you represent the Metanga Services or prevent or address service or technical problems, or at Your request in connection with customer support matters.

1.4

PCI Compliance. MetraTech will provide the server and network infrastructure and all other software, hardware and other resources necessary to provide the Metanga Services in accordance with this Agreement (collectively the “Environment”) and will ensure that the Environment will at all times satisfy the requirements for Level 1 compliance with the Payment Card Industry ("PCI") security standards established by the PCI Security Standards Council (including, without limitation, the PCI Data Security Standard (“PCI DSS”) requirements for cardholder data and the PCI Payment Application Data Security Standard (“PCI Payment Application DSS). MetraTech shall be responsible for the security of the Personal Data that MetraTech possesses.

1.5

SAS 70 Type II Review. MetraTech shall conduct SAS 70 Type II annual reviews for as long as it provides the Metanga Service(s) and shall make the relevant report available upon request.

1.6

Back Up and Disaster Recovery. In the course of providing the Metanga Services MetraTech shall utilize redundant hardware systems at all times. Backups shall be performed on an incremental basis and at least once a day, as may be advised to You from time to time by MetraTech and shall be restricted to Your Billing Data. In the event of a disaster, MetraTech will apply commercially reasonable efforts to restore from backup as soon as possible Your Billing Data and the applicable Personal Data to a facility designated by MetraTech. MetraTech’s obligations hereunder are subject to Your performing periodic backups of your Billing Data as per the advisement of MetraTech as may be given to You from time to time.

1.7

Monitoring. The Environment that runs Your operations and holds the Billing Data is housed in a facility with 24x7 monitoring. Physical and electronic access to the Billing Data is limited to specific personnel at MetraTech in accordance with PCI and SAS70 compliance requirements. Billing Data is stored and transmitted only in encrypted and secured formats. MetraTech will retain all Billing Data and historical records in accordance with all applicable laws.

2.1

Use by You and Your Affiliates. Your Subscription may only be used by You or by the Entity You Represent or, where applicable, by its Affiliates, but cannot be shared with other individuals or Entities or used by any third party or otherwise used for the provision of Services for the Benefit of Third Parties, unless otherwise expressly agreed with MetraTech in writing. "Affiliate" means when used with respect to a specified Entity, another Entity that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the specified Entity; For the purpose hereof “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of an Entity Person, through the ownership of more than 50% of the voting securities, and the terms “Controlling” and “Controlled” have meanings correlative thereto.

2.2

Restrictions on Use. You shall not:

2.3

Suspension of the Metanga Services. MetraTech reserves the right to suspend Your access to the Metanga Services at any time, if MetraTech believes that You have breached any of the terms and conditions of use stipulated hereunder or the terms and conditions of Your Subscription Agreement.

2.4

Service Availability. MetraTech shall use commercially reasonable efforts to make the Metanga Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which MetraTech shall apply commercially reasonable efforts to give at least 72 hours notice for service updates via the Metanga Service(s) shall schedule to the extent practicable during the weekend hours from 5pm EST on Friday to 8am EST on Monday), and planned downtime for emergency fixes (of which MetraTech shall apply commercially reasonable efforts to give at least 12 hours notice) or (b) any unavailability caused by Force Majeure, as defined in Section 10.5 10.6 below or Internet service provider failures or delays, or (c) unavailability caused by an act or omission of a competent authority or in connection with the provisions of applicable laws or regulations.‎‎

2.5

Your Responsibilities. You shall:

2.6

Support. MetraTech shall provide basic support for the Metanga Services. Basic Support shall include reasonable efforts to correct any errors found in the Metanga Services that are directly attributable to the Environment, within reasonable time after You report such error to MetraTech. If necessary, according to MetraTech’s sole discretion, its engineers will work 24 hours a day/7 days a week in order to devise a solution for the reported error.

3.1

See the Metanga Privacy Policy relating to the collection and use of your Billing Data. MetraTech reserves the right to modify its privacy and security policies in its reasonable discretion from time to time. If you become a paying customer of the Metanga Services, you agree that MetraTech can disclose the fact that you are a paying customer and the features of the Metanga Services that you are using.

4.1

Acquisition of Third Party Products and Services. “Third Party Applications" means any application or software that is provided by a third party, interoperates with the Metanga Services, and is identified as third-party applications, including but not limited to those listed on www.metanga.com. Third Party Applications may be offered for sale within the Metanga Services. Any other acquisition by You of third-party products or services, including but not limited to Third Party Applications and implementation, customization and other consulting services, and any exchange of data between You and any third-party provider, is solely between You and the applicable third-party provider. MetraTech does not warrant or support Third Party Applications or third-party products or services, except as specified expressly in the Metanga Services, the User Guide or contract documentation.

4.2

Discontinuation of Third Party Applications. Metanga Services’ features that interoperate with Third Party Applications depend on the continuing availability of the applicable third party APIs, programs, products and services for use with the Metanga Service(s). If the relevant third party provider ceases to make its APIs, programs, products and services available on reasonable terms for the Metanga Services, MetraTech may cease providing such features without entitling You to any refund, credit, or other compensation. MetraTech will however, make reasonable attempts to offer said service functionality via an alternative third party application or via updated built-in functionality via the Metanga service.

4.3

Third Party Applications and Billing Data. If You install or enable Third Party Applications for use with the Metanga Services, You acknowledge and agree that MetraTech may allow providers of those Third Party Applications to access your Billing Data as required for the interoperation of such Third Party Applications with the Metanga Services. MetraTech shall not be responsible for any disclosure, modification or deletion of your Billing Data resulting from any such access by Third Party Application providers. The Metanga Services shall allow You to restrict such access by restricting users roles within the Metanga Services.

5.1

Definition of Intellectual Property. “Intellectual Property Rights” mean all intellectual property rights throughout the world, whether existing under statute or at common law or equity, now or hereafter in force or recognized, including: (a) copyrights, trade secrets, trademarks and service marks, patents, inventions, designs, logos and, moral rights, mask works, publicity rights, and privacy rights; and (b) any application or right to apply for any of the rights referred to in clause (a), and all renewals, extensions and restorations.

5.2

The Metanga Services are Intellectual Property of MetraTech. Subject to the limited rights expressly granted hereunder, MetraTech reserves all rights, title and interest in and to the Metanga Services and the MetraTech software underlying the Metanga Services, including all related Intellectual Property Rights. No rights are granted to You hereunder other than the non-exclusive, non-transferable right to use the Metanga Service(s) as expressly set forth herein.

5.3

Restrictions. You shall not modify, copy (other than copying or framing for Your own internal business purposes), distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, reverse engineer, transfer, or sell any information, software, products or services obtained from or in connection with the Metanga Service(s).

5.4

Ownership of Your Billing Data. As between MetraTech and You, then subject to applicable laws and your agreements with Your subscribers, You shall exclusively own all rights, title and interest in and to all of Your Billing Data.

5.5

Your Feedback. We shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Metanga Service(s) any suggestions, enhancement requests, recommendations or other feedback provided by You, including Your Users, relating to the operation of the Metanga Service(s) and the operation of the Metanga Service(s).

6.1

Definition of Confidential Information. Intellectual Property Confidential Information” means all information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is specifically designated as confidential or that, given the nature of the information and circumstances of disclosure, reasonably ought to be understood as confidential. “Your Confidential Information” shall include Your Billing Data; MetraTech’s Confidential Information shall include the Metanga Service(s) and all software underlying the Metanga Service(s); and Confidential Information of each party shall include these terms and conditions, as well as business and commercial information, marketing plans, technology and technical information, product plans and designs. Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without reference or access to the Disclosing Party’s Confidential Information.

6.2

Confidentiality and Non Disclosure. Except as otherwise permitted in writing by the Disclosing Party, the Receiving Party (i) shall not use the Confidential Information of the Disclosing Party for any purpose other than in connection with and within the scope of this Agreement; (ii) shall not disclose the Confidential Information of the Disclosing Party to any third party; (iii) shall use the same degree of care to protect the Confidential Information of the Disclosing Party that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care), and (iv) shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who are bound by confidentiality undertaking no less stringent than those herein.

6.3

Required Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law or regulation to do so, provided, however, that in the case of such required disclosure, the Receiving Party: (i) provides the Disclosing Party prompt advance written notice of such disclosure, if reasonably possible, so that Disclosing Party has the opportunity to contest the disclosure or seek an appropriate protective order or other appropriate remedy; and (ii) to the extent that any compelled disclosure is required, make only the most limited disclosure necessary to comply with the requirements of such compelled disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

7.1

The Metanga Service(s)’ Warranty. MetraTech warrants to You (and to You only) that the Metanga Service(s), if used according to the User Guide and MetraTech’s instructions (as may be given from time to time), shall perform substantially in accordance with the User Guide and shall not be materially decreased in functionality and features. In the event of breach of this warranty, MetraTech shall use reasonable efforts to promptly correct any reproducible errors and defects found in the Metanga Service(s) so as to render the Metanga Service(s) operable as warranted. If following reasonable attempts, MetraTech is unable to provide the Metanga Service in compliance with this warranty You may terminate your agreement with MetraTech and receive a refund of fees paid in advance for the remainder of your contract term (as applicable). The foregoing remedies constitute Your sole and exclusive remedy and MetraTech's sole and exclusive liability in connection with the warranties given hereunder.

7.2

Mutual Warranties. Each party represents and warrants that it has all necessary rights and full authority to enter into this Agreement and to perform its obligations hereunder, and that this Agreement is not in conflict with any other agreement to which it is a party or by which it may be bound.

7.3

Disclaimer. EXCEPT AS SET FORTH IN THIS SECTION 7 ABOVE, THE METANGA SERVICE(S) ARE PROVIDED “AS IS”, AND METRATECH DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.‎

8.1

Indemnification by MetraTech. MetraTech shall defend You against a claim, suit, or proceeding ("Claim") made or brought against You by a third party alleging that the use of the Metanga Service(s) as permitted hereunder infringes upon the Intellectual Property Rights of a third party, and shall indemnify You for any damages awarded against You in accordance with a final judgment that cannot be appealed, and for reasonable attorney’s fees incurred by You in connection with any such Claim; provided, that You (a) promptly give MetraTech written notice of the Claim; (b) tender the control of the defense and settlement of the Claim to MetraTech; and (c) provide MetraTech all reasonable assistance in connection with the Claim, at its expense. Any settlement of a Claim by MetraTech shall be subject to your prior written approval, which approval shall not be unreasonably delayed or withheld, provided however that MetraTech may settle a Claim without your approval if the settlement unconditionally releases You of all liability. You may not settle a Claim without MetraTech’s prior written approval.

8.2

Indemnification by You. You shall defend MetraTech against any Claim made or brought against MetraTech by a third party alleging that Your Data, or Your use of the Metanga Service(s) in violation of this Agreement, infringes upon the Intellectual Property Rights of a third party or violates applicable law, and shall indemnify MetraTech for any damages finally awarded against MetraTech in accordance with a final judgment that cannot be appealed, and for reasonable attorney’s fees incurred by, MetraTech in connection with any such Claim; provided, that MetraTech (a) promptly gives You written notice of the Claim; (b) tenders the control of the defense and settlement of the Claim to You; and (c) provides You with all reasonable assistance in connection with the Claim, at Your expense. Any settlement of a Claim by You shall be subject to the prior written approval of MetraTech, which approval shall not be unreasonably delayed or withheld, provided however that You may settle a Claim without MetraTech’s approval if the settlement unconditionally releases MetraTech of all liability.

9.1

Exclusion of Liability. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL METRATECH AND ITS AFFILIATES AND SUPPLIERS AND THEIR RESPECTIVE DIRECTORS, OFFICERS, ADVISERS AND CONTRACTORS (“RELEVANT PERSONS”) BE LIABLE TO YOU UNDER ANY CONTRACT, STRICT LIABILITY, NEGLIGENCE, TORT OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR SIMILAR DAMAGES OF ANY KIND WHATSOEVER ARISING OUT OF OR RELATING TO THIS AGREEMENT THE METANGA SERVICE(S), THE USER GUIDE, OR ANY OTHER METRATECH ACT OR OMISSION RELATED TO THE METANGA SERVICE(S), INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, REVENUES OR DATA, EVEN IF YOU HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.

9.2

Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF METRATECH AND ITS AFFILIATES AND THEIR RESPECTIVE RELEVANT PERSONS PER OCCURRENCE AND IN THE AGGREGATE ARISING FROM OR RELATING TO THIS AGREEMENT, THE METANGA SERVICE(S), THE USER GUIDE, OR ANY OTHER METRATECH ACT OR OMISSION RELATED TO THE METANGA SERVICE(S), WHETHER UNDER ANY CONTRACT, STRICT LIABILITY, NEGLIGENCE, TORT OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED AN AMOUNT EQUAL TO THE SUBSCRIPTION FEES ACTUALLY PAID BY YOU TO METRATECH UNDER THIS AGREEMENT DURING TWELVE MONTHS’ IMMEDIATELY PRECEDING THE MOST RECENT CAUSE OF ACTION THAT GAVE RISE TO SUCH LIABILITY.

10.1

Relationship. The parties are independent contractors. This Agreement does not create a partnership, joint venture, agency and fiduciary or employment relationship between the parties.

10.2

No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.

10.3

Publicity. Neither party may use the names, marks or other brand identifiers of the other party in any manner without the prior written consent of the other party except: (i) either party may make legal or accounting disclosures referencing the existence of this Agreement; (ii) without disclosing the terms of this Agreement, MetraTech may publicly identify You as a user of the Metanga Service(s) and a customer of MetraTech, including by using Your logo, name and other trademarks which You use to identify yourself or Your business on its Web pages or in its marketing materials and use You as a public reference in communication with analysts, prospective customers, financing institutions and other third parties; (iii) at MetraTech’s request, You shall cooperate with MetraTech in the drafting and release of a concise, good faith press announcement announcing the conclusion of an agreement with You for the use of the Metanga Service(s), including in connection with future product or services upgrades; and (iv) the Metanga logo and trademark may appear on the first page of the Metanga Service(s) as used by Your Users and the legend “powered by Metanga” including the Metanga logo bearing look and feel acceptable to MetraTech may appear on any web page used by Your Subscribers.

10.4

Modifications to These Terms. MetraTech reserves the right to modify these terms of use or its policies relating to the Metanga Service at any time effective upon posting of an updated version of this Agreement on the Metanga website (www.metanga.com). You are responsible for regularly reviewing this Agreement. Continued use of the Metanga Service after any such changes shall constitute your consent to such changes.

10.5

Assignment. You may not assign any of Your rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of MetraTech which consent shall not be unreasonably delayed or withheld, save for in the event of assignment by You to a direct competitor of MetraTech.

10.6

Force Majeure. Except with respect to payment of Subscription fees or other charges, neither party will be in default of its obligations to the extent its performance is delayed or prevented by causes beyond its reasonable control, including but not limited to acts of God, earthquake, flood, embargo, riots, sabotage, utility or transmission failures, fire or labor disturbances, explosion, vandalism, cable cut, computer viruses, storm or other similar occurrence, any law, order, regulation, direction, action or request of any government, or any body of authority thereof, or by national emergency, insurrection, riot, war, general strike, lockout, or work stoppage, or other labor difficulties, shortage, breach, or delay on the part of a party’s supplier. Performance time will be extended by the period during which force majeure persists plus fourteen (14) Days, provided however that either party may terminate this agreement in the event that force majeure conditions prevent the other party to carry out its obligations hereunder for more than sixty (60) consecutive Days.

10.7

Export Compliance. You shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing your products and services while using the Metanga Service(s). Without limiting the foregoing You shall apply your best efforts to restrict Users access or use the Metanga Service(s) in violation of any U.S. export embargo, prohibition or restriction.

10.8

Notice. Notices required or permitted by this Agreement shall be deemed to be given if sent by telephone facsimile with transmission confirmed to the fax number set forth in Your account data, or if sent by independent private overnight courier for next business day delivery with established tracking capability (such as FedEx or UPS) to the address set forth above. In either event, such notice when delivered to MetraTech should be addressed to attention of the Chief Financial Officer. Such notice shall be deemed to be received on the date of delivery confirmed by fax transmission or by the tracking system of the courier used.

10.9

Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

10.10

Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.

10.11

Nature of remedies. Other than as expressly stated herein, the remedies provided in this Agreement are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

10.12

Claims Period. To the maximum extent permitted under applicable law, no claim shall be brought by You against MetraTech within more than 12 months from the date on which the relevant cause of action occurred or the date on which the relevant cause of action has first been discovered by You.

10.13

Governing Law and Jurisdiction. This Agreement shall be governed by the laws of The Commonwealth of Massachusetts, without regard to its conflicts of laws principles. All litigation arising from or relating to this Agreement shall be filed and prosecuted in any court of competent subject matter jurisdiction in the County of Middlesex, Massachusetts, USA. The parties stipulate to the convenience and efficiency of proceeding in such form, and waive and covenant not to assert any objections to proceeding in such forum based on grounds other than a lack of subject matter jurisdiction.