End User License Agreement

 

METRON-FARNIER MOBILE APP Terms of Use

Last Updated: February 6, 2024

These Metron-Farnier Mobile App Terms of Use (this “Agreement”) are agreed to between the individual downloading or using the App (defined below) (in either case, “You” or “Your”) and Transparent Technologies, Inc. (“Metron-Farnier”).

By accessing, DOWNLOADING or using THE APP, OR BY TICKING A BOX OR OTHERWISE INDICATING YOUR ACCEPTANCE TO THIS AGREEMENT (E.G., CLICKING “I AGREE”), You agree to enter into and be bound by this Agreement. If You do not have such authority, or You do not agree to be bound by this Agreement, DO NOT TICK A BOX OR OTHERWISE INDICATE YOUR ACCEPTANCE TO THIS AGREEMENT OR access or use THE APP.

If You subscribe to a Paid Subscription (defined below), it will be automatically renewed and will continue on a recurring, continuous basis for additional periods of the same duration as Your initial Subscription Term (defined below) for the Paid Subscription at the then-current price for such Paid Subscription unless and until You cancel Your Subscription in accordance with Section (Cancellation) (unless You have upgraded or downgraded Your Subscription plan during such Subscription Term in accordance with Section (Upgrading or Downgrading Subscription Plans), in which case Your Subscription will be automatically renewed under the same terms and conditions as such upgraded or downgraded plan (as applicable), rather than Your initial plan for such Paid Subscription).

1. Scope. This Agreement governs Your use of Metron-Farnier’s mobile applications (collectively, the “App”) and all information, data, reports, and other content (collectively, “Content”) available via the App or any technology networked with the App, including any Metron-Farnier equipment, devices, meters, or systems that transmit data to the App (each, a “Device”). Access to certain portions or features of the App or certain items of Content provided through the App may be subject to additional agreements You enter into in connection with those portions or items (each, an “Additional Agreement”). This Agreement and any Additional Agreement together comprise Your entire agreement with Metron-Farnier. In the event of a conflict between the terms of this Agreement and an Additional Agreement, the terms of this Agreement will control.

2. Definitions. Terms used in this Agreement have the definitions given in this Agreement or, if not defined in this Agreement, have their plain English meaning as commonly interpreted in the United States.

3. Term. This Agreement is entered into as of the earlier of the date You first access or use the App or any Content or tick a box or otherwise indicate Your acceptance to this Agreement (e.g., click “I agree”) and will continue until terminated as set forth herein.

4. Your Account and Content.
           4.1 Account Creation and Responsibility. You and any person You authorize to access or use the App (“User”) may be required to establish an account on the App (an “Account”). Approval of any request to establish an Account will be at the sole discretion of Metron-Farnier. Each Account and the user identification and password for each Account (the “Account ID”) is personal in nature. Except to the extent expressly specified otherwise in Section (Confidentiality), each Account is for Your Users’ individual use and each Account ID may be used only by an individual User. You are responsible for Your and Your Users’ conduct and compliance with this Agreement. You will ensure the security and confidentiality of each Account ID and will promptly notify Metron-Farnier if You become aware that any Account ID has been lost, stolen, or otherwise compromised. Any transactions completed through any Account or under any Account ID will be deemed to have been lawfully completed by You. In connection with establishing an Account, You will be asked to submit certain information about Yourself (such as Your name/nickname, email address, meter ID, utility information) (“Registration Information”). You agree that: (a) all Registration Information You provide will be true and complete; and (b) You will maintain and promptly update Your Registration Information to keep it accurate and current. You may not: (i) select or use an Account ID of another person or entity with the intent to impersonate that person or entity; or (ii) use an Account ID that Metron-Farnier, in its sole discretion, deems offensive.
       4.2 Your Water Consumption Data. Certain aspects of the App rely on access to certain data about Your water usage information from Devices (“Water Consumption Data”) received from Your water utility or property manager that supplies You with water (“Water Provider”). Without limiting the generality of the foregoing, You hereby: (a) agree to share, and (if applicable) authorize Your Water Provider to share, Water Consumption Data with Metron-Farnier; and (b) expressly consent to all and any such disclosure and the uses contemplated in this Agreement. If Your Water Provider cannot or does not share Water Consumption Data with Metron-Farnier, or if You do not wish to have Your Water Provider share Your Water Consumption Data with Metron-Farnier, Your use of certain aspects of the App may be limited.
       4.3 Your Content. As between You and Metron-Farnier, You retain all right, title, and interest in and to identifying information about Your Devices (e.g., the meter ID) and Your Registration Information (collectively, “Your Content”). You hereby grant to Metron-Farnier and its authorized representatives and contractors a non-exclusive, perpetual, irrevocable, worldwide, fully-paid, royalty-free, transferable, and fully sublicensable right and license to (i) use, copy, store, reproduce, modify, display, adapt, publish, translate, create derivative works from, distribute, and display Your Content throughout the world in any form, media, software, or technology of any kind, and (ii) exercise any and all other present or future rights in Your Content. You represent, warrant, and covenant that (A) Your Content: (1) does not violate this Agreement or any applicable laws, rules, or regulations; (2) is not libelous, defamatory, obscene, abusive, pornographic, threatening, or an invasion of privacy; and (3) does not constitute an infringement or misappropriation of the IPR (as defined below) or other rights of any third party; and (B) You: (1) are the owner of the copyright to Your Content or You have written permission from the copyright owner to use Your Content; and (2) You have all right, title, interest, and consent in Your Content necessary to allow Metron-Farnier to use Your Content for the purposes for which You provide Your Content to Metron-Farnier. Metron-Farnier is not responsible or liable for any deletion, correction, destruction, damage, loss, or failure to store or back-up any of Your Content.

5. Access.
        5.1 To the App. Subject to Your compliance with this Agreement and any other terms and conditions accompanying the App, during the term of this Agreement, Metron-Farnier grants You the non-exclusive, non-transferable, non-sublicensable right and license to download, install, and operate the App solely for Your internal business purposes. You may install the App only on mobile devices or smart phones owned or controlled by You.
        5.2 To Alerts. The App may allow You to set alerts for certain scenarios related to a Device (e.g., if a certain water leak is detected) (each an “Alert”) through communication channels allowed via the App, including push notifications to Your mobile device on which the App has been downloaded and installed. By opting in to receive Alerts, You may also receive communications and push notifications from Metron-Farnier regarding the App. You may use the opt out features in the App to modify Your preferences if You no longer wish to receive Alerts.
        5.3 To App Content. As between Metron-Farnier and You, all Content other than Your Content, including all text, audio, video, photographs, illustrations, graphics, and other content or media, provided through the App (“App Content”) is owned by Metron-Farnier or its providers or licensors. All App Content is for Your informational purposes only and You are solely responsible for verifying the accuracy, completeness, and applicability of all App Content prior to making use of that App Content. Subject to Your compliance with this Agreement, You may use the App Content provided to You through the App solely for Your internal business purposes in connection with Your permitted use of the App in accordance with this Agreement. You agree that You will not, and will not permit any third party to: (a) alter, modify, reproduce, or create derivative works of any App Content; (b) distribute, sell, resell, lend, loan, lease, license, sublicense, or transfer any App Content; (c) alter, obscure, or remove any copyright, trademark, or any other notices that are provided on or in connection with any App Content; or (d) access or use any App Content in order to build or improve a competitive product, service, or other offering (whether now or hereafter existing). Metron-Farnier has not verified the accuracy of, and will not be responsible for any errors or omissions in, any App Content.
        5.4 To Third-Party Services. Metron-Farnier may provide You with the ability to access services developed, provided, or maintained by third-party service providers through the App (“Third-Party Services”). Third-Party Services may integrate with, pull Content from, or add Content to, the App, including Your Content. In addition to the terms of this Agreement, Your access to and use of any Third-Party Services is also subject to any other agreement You may agree to before being given access to the Third-Party Services (each, a “Third-Party Service Agreement”). The terms of any Third-Party Service Agreement will apply to the applicable Third-Party Services provided under that Third-Party Service Agreement in addition to the terms of this Agreement, but will not apply to any other services or Content You may access through the App.
        5.5 To Google APIs. Without prejudice to Section (To Third-Party Services), if You are provided with the ability to access or use (in whole or in part) any of Google’s APIs, other developer services, or associated software through Metron-Farnier, the App, or any Content, You hereby agree to, and shall: comply with applicable law, regulation, the Google APIs Terms of Service at https://developers.google.com/terms#d_user_privacy_and_api_clients, any additional terms thereof, terms within the accompanying API documentation, and any applicable policies and guidelines related thereto.

6. App Store. The App may be obtained through a third-party distribution platform (e.g., Google Play Store or Apple’s App Store) (each, an “App Store”) and is to be used solely on a mobile device owned or controlled by You that operates such third party’s operating system (e.g., iOS or Android). You agree to comply with all applicable third-party terms of the applicable App Store (the “Usage Rules”) when using the App. To the extent this Agreement provides for usage rules that are less restrictive than or otherwise in conflict with the Usage Rules, the more restrictive term applies. Specifically, with respect to any App accessed through or downloaded from Apple’s App Store (each, an “App Store-Sourced Application”) to the extent this Agreement provides for usage rules for such App Store-Sourced Application that are in conflict with the Apple Media Services Terms and Conditions as of the effective date of this Agreement, such Apple Media Services Terms and Conditions will, and will be deemed to, apply and control. This Agreement incorporates by reference the terms of the Addendum to this Agreement and any other terms available at the respective App Store from which You have obtained the App. You agree that this Agreement is between You and Metron-Farnier, and not with the App Store. The App Store is not responsible for any App, maintenance and support services or any warranty thereof, or addressing any claims related thereto. You agree to pay all fees charged by the applicable App Store in connection with each applicable App (if any). The App may also be subject to additional terms and conditions and privacy policies, and Metron-Farnier is not a party to nor responsible for those additional terms.

7. Payment. You shall pay Metron-Farnier, the Water Provider, or the applicable app store all fees You have agreed to pay in connection with this Agreement and Your access to and use of the App or Content (“Fees”), either when You enter into this Agreement or during the term of this Agreement. All recurring Fees will be due and payable by You in advance of the initial period and each applicable renewal period under this Agreement unless other payment terms have been extended by Metron-Farnier. All other Fees will be due and payable as indicated by Metron-Farnier. All Fees will be non-refundable once paid to Metron-Farnier (or the company chosen to act on behalf of Metron-Farnier), including upon any termination, expiration, or suspension of this Agreement. Until paid in full, all past due amounts will bear an additional charge of the lesser of 1½% per month or the maximum amount permitted under applicable law. If Metron-Farnier requires use of collection agencies, attorneys, or courts of law for collection of Your account, You will be responsible for those expenses. You will be responsible for any and all use, sales, and other taxes imposed on any services or Content provided under this Agreement or on any access to or use of the foregoing or the App provided hereunder.

8. Subscriptions.
        8.1 Subscriptions. Metron-Farnier may offer access to the App or Content (or portions thereof) on a paid subscription basis (each, a “Subscription”), the terms of which will be set forth in the relevant offer. To purchase a Subscription (each, a “Paid Subscription”), You must provide a valid payment method. Unless otherwise specified in the offer details (for example, if Your Water Provider is paying for Your Subscription), You will be billed by the applicable app store in advance on a recurring and periodic basis for Your Paid Subscription base rate (“Billing Cycle”) and each such Billing Cycle will be the same duration and period as Your applicable Subscription Term (as defined below). Billing Cycles are set on a 30-day basis (such 30-day periods each referred to herein as a “month”), unless otherwise specified in the offer details. Notwithstanding the foregoing, to the extent specified in the offer details, each plan may be subject to additional monthly charges (“Additional Monthly Charges”). Upon renewal of any Paid Subscription, if Metron-Farnier does not receive payment, (a) You agree to pay all Fees and charges, including Subscription fees and Additional Monthly Charges, due on Your account upon demand, and (b) You agree that Metron-Farnier may either terminate or suspend Your Subscription and continue to attempt to charge Your Payment Method until payment is received (upon receipt of payment, Your Subscription will be reactivated and Your next Subscription Term will begin on the date of such payment). Notwithstanding anything to the contrary contained herein, Metron-Farnier may change its Subscription models and pricing at any time, and therefore, Subscription models and prices are subject to change at any time during Your Subscription Term. Metron-Farnier will provide You with notice of such changes.
        8.2 Free Trials and Discounts. Metron-Farnier may offer a free-trial or discounted Subscription for a premium plan, which automatically converts to a free basic plan after a period of 30 days (each, a “Trial Subscription”). In such instances, if after the Trial Subscription You would like to upgrade to a premium plan (and thus purchase a Paid Subscription), You can upgrade Your Subscription at any time in the App.
        8.3 Automatic Renewal. A Subscription will continue for 30 days (each, a “Subscription Term”). To the extent permitted by applicable law, after Your initial Subscription Term, and again after any subsequent renewal Subscription Term, Your Subscription will be automatically renewed on the first day following the end of such Subscription Term (each, a “Renewal Date”) (for example, if You start Your Subscription on January 15th, it will renew on February 15th), and will continue on a recurring, continuous basis for additional periods of the same duration as Your initial Subscription Term, under the same terms and conditions (unless You have upgraded or downgraded Your Subscription plan (if applicable) during the Subscription Term, in which case Your Subscription will be automatically renewed under the same terms and conditions as such upgraded or downgraded plan (as applicable), rather than Your initial plan), and at Metron-Farnier’s then-current price for such Subscription plan, unless and until or cancel Your Subscription in accordance with, and subject to, the cancellation terms set forth in Section (Cancellation) below (or unless You have upgraded or downgraded Your Subscription plan (if applicable) as described herein). If Your Water Provider is not sponsoring Your Subscription, You agree that Your Account will be subject to this automatic renewal feature unless You cancel Your Subscription at least 1 day prior to the Renewal Date. Your Payment Method will be charged at the beginning of each Subscription Term on or around the Renewal Date. To cancel a Subscription, You shall follow the cancellation instructions in Section (Cancellation) below.

By purchasing or otherwise signing up for any Paid Subscription, You acknowledge that Your Subscription:

      • Is subject to automatic renewal and continuous service;
      • Will be automatically extended for successive periods and will continue until You cancel Your Subscription in accordance with Section (Cancellation); provided that if You upgrade or downgrade Your Subscription plan during a Subscription Term in accordance with the terms of Section (Upgrading or Downgrading Subscription Plans), the Subscription will continue under the terms of the upgraded or downgraded plan, as applicable, until the Subscription is cancelled as set forth in Section (Cancellation);
      • Has an initial and recurring payment feature and, except to the extent Your Water Provider is sponsoring Your Subscription, You accept responsibility for all recurring charges prior to cancellation of the automatic renewal of Your Subscription; and
      • Is subject to automatic charges on Your Payment Method (except to the extent Your Water Provider is sponsoring Your Subscription).

        8.4 Upgrading or Downgrading Subscription Plans. You may request to upgrade or downgrade Your Subscription plan at any time prior to the Renewal Date by going to the App and changing Your Subscription plan. Except as otherwise mutually agreed in writing:
(a) Upgrades. Any such upgrade of Your Subscription plan will be effective immediately; provided that You or someone on Your behalf (e.g., Your Water Provider) have paid all applicable Fees and Additional Monthly Charges related to the Subscription plan upgrade in full.
(b) Downgrades. Any such downgrade of Your Subscription plan will be effective on the upcoming Renewal Date. No downgrade will take effect during the then-current Subscription Term in which the downgrade request is made. If You downgrade Your Subscription plan, You may use the then-current Subscription plan (i.e., the non-downgraded plan) until the end of the applicable Subscription Term; thereafter, on the Renewal Date, You will only have access to the downgraded Subscription plan.

      8.5 Cancellation. If Your Water Provider is not sponsoring Your Subscription, then this subsection ‘(a)’ applies to You. Subject to the terms of this Section (Subscriptions), You may cancel Your Subscription at any time at least 1 day prior to the Renewal Date through the App or Your mobile device settings (e.g., on an iPhone: open the ‘Settings’ app; tap Your name; tap ‘Subscriptions’; tap Your Subscription (as displayed on the iPhone); and tap ‘Cancel Subscription’). Cancellation of Your Subscription will be effective at the end of the then-current Subscription Term. If You cancel Your Subscription, You may use it until the end of the applicable Billing Cycle. Your Subscription will not be renewed after Your cancellation. You will not be eligible for a prorated refund of any portion of the Fees or Additional Monthly Charges paid for the then-current Subscription Term.

9. Termination. This Agreement may be terminated by either party at any time, in that party’s sole discretion, upon notice to the other party as permitted under this Agreement. Upon expiration or termination of this Agreement for any reason: (1) all rights and licenses granted to You under this Agreement will terminate; (2) You will immediately cease all use of and access to the App, all Confidential Information (as defined below), and all Content, including Your Content and any Content You obtained prior to such expiration or termination; (3) You will promptly return to Metron-Farnier, or destroy (if requested), all Confidential Information in Your (including Your Users’) possession or control and You will promptly permanently erase all electronic copies of such Confidential Information; and (4) Metron-Farnier may, in its sole discretion, delete Your Account or Your Content at any time. Your Content may continue to exist on the App after expiration or termination of this Agreement unless You actively delete it or contact Metron-Farnier’s support team and request that it be deleted. The following Sections will survive any expiration or termination of this Agreement: (Scope), (Definitions), (Your Account and Content), (App Store), (Payment), (Subscriptions), (Termination), (Metron-Farnier Technology), (Ownership), (Representations and Warranties), (Confidentiality), (Disclaimers), (Limitation on Liability), (Privacy), (Governing Law and Venue), (Notices), (Force Majeure, (App Updates and Support), (Modifications), (Additional Terms), (Questions, Complaints, and Claims), and (Contact Information).

10. Suspension. Without limiting Metron-Farnier’s right to terminate this Agreement, Metron-Farnier may also suspend Your access to Your Account and the App (including Your Content), with or without notice to You, upon any actual, threatened, or suspected breach of this Agreement or applicable law or upon any other conduct deemed by Metron-Farnier to be inappropriate or detrimental to Metron-Farnier, the App, or any other Metron-Farnier product, customer, or user.

11. Metron-Farnier Technology. The App, App Content, and all databases, software, hardware, and other technology used by or on behalf of Metron-Farnier to operate and provide the foregoing, and the structure, organization, and underlying data, information, and software code thereof, and all additions, modifications, improvements, upgrades, or derivatives (including derivative works) thereof (collectively, the “Technology”), constitute the valuable trade secrets of Metron-Farnier. You will not, and will not permit any third party to: (1) access or attempt to access the Technology except as expressly provided in this Agreement; (2) use the Technology in any unlawful manner or in any other manner that could damage, disable, overburden, or impair the Technology; (3) use automated scripts to collect information from or otherwise interact with the Technology; (4) alter, modify, reproduce, or create derivative works of the Technology; (5) distribute, sell, resell, lend, loan, lease, license, sublicense, or transfer any of Your rights to access or use the Technology or otherwise make the Technology available to any third party; (6) reverse engineer, disassemble, decompile, or otherwise attempt to derive the method of operation of the Technology; (7) attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the Technology; (8) monitor the availability, performance, or functionality of the Technology; (9) interfere with the operation or hosting of the Technology; or (10) access or use the Technology, any App Content, or any other Confidential Information in order to build or improve a competitive product or service (whether now or hereafter existing) or gain competitive insights regarding the Technology. Metron-Farnier uses reasonable means to protect the security of the App, but You acknowledge that perfect security on the internet is impossible and that, as a result, Your Content may be exposed in the event of a breach.

12. Ownership. Metron-Farnier retains all rights, title, and interest, including all IPR, in and to all Technology and Confidential Information and any additions, improvements, updates, derivatives (including derivative works), and modifications thereto. You receive no ownership interest in or to the Technology or other Confidential Information and You are not granted any right or license to use the Technology or other Confidential Information itself, apart from Your ability to access the App or App Content under this Agreement. The Metron-Farnier name, logo, and all product and service names associated with the App are trademarks of Metron-Farnier and its licensors and providers and You are granted no right or license to use them. For purposes of this Agreement, “IPR” means all intellectual property rights, proprietary rights, rights of publicity, rights of privacy, and any and all other legal rights protecting data, information, or intangible property throughout the world, including any and all copyrights, trademarks, service marks, trade secrets, patent rights, moral rights, sui generis rights in databases, and contract rights.

13. Representations and Warranties. You represent and warrant to Metron-Farnier that: (1) You have the legal right and authority to enter into this Agreement; (2) this Agreement forms a binding legal obligation on Your behalf; (3) You have the legal right and authority to perform Your obligations under this Agreement and to grant the rights and licenses described in this Agreement; and (4) Your use of and access to the App and Content, including Your Content, will comply with all applicable laws, rules, and regulations and will not cause Metron-Farnier itself, or any Metron Providers themselves, to violate any applicable laws, rules, or regulations.

14. Confidentiality. For purposes of this Agreement, “Confidential Information” means the App Content and any other information disclosed or made available by Metron-Farnier under this Agreement, regardless of the form thereof, including all copies and extracts thereof. You will not disclose Confidential Information to any third party without Metron-Farnier’s prior written consent. You may use Confidential Information only for purposes of Your valid use of the App and App Content as permitted under this Agreement and may disclose Confidential Information only to: (a) Your Account members (if an individual, residential customer); or (b) employees or contractors (if an entity or other commercial customer or provider) who have a need to know such Confidential Information for the same purposes and who are bound by obligations of confidentiality at least as protective of Confidential Information as those contained in this Agreement. You will maintain the confidentiality of all Confidential Information and will treat all Confidential Information with the same degree of care as You treat Your own confidential or proprietary information which, in no event, will be less than reasonable care. You will not utilize Confidential Information other than as expressly permitted in this Agreement. Notwithstanding the foregoing, and without violating Your obligations under this Section, You may clip and share information about Your usage. For the avoidance of doubt, there may be five (5) unique Devices that can log in under the same Account credentials; and Your household (of four (4), for example), may access Your same Account.

15. Disclaimers.
15.1 ALL CONFIDENTIAL INFORMATION (INCLUDING THE APP AND ALL APP CONTENT) IS PROVIDED “AS IS” AND “AS AVAILABLE.” METRON-FARNIER AND ITS PROVIDERS, INCLUDING ALL WATER PROVIDERS, APP STORE PROVIDERS, AND OTHER PROVIDERS OR LICENSORS (COLLECTIVELY, THE “METRON PROVIDERS”) DO NOT WARRANT OR GUARANTEE THE ACCURACY, COMPLETENESS, ADEQUACY, OR CURRENCY OF ANY CONFIDENTIAL INFORMATION AND DO NOT ENDORSE THE VIEWS OR OPINIONS THAT MAY BE EXPRESSED OR PROVIDED THROUGH THE APP OR OTHERWISE THROUGH ANY CONFIDENTIAL INFORMATION. METRON-FARNIER AND THE METRON PROVIDERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO CONFIDENTIAL INFORMATION (E.G., THE TECHNOLOGY) AND THIS AGREEMENT, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, AND NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY METRON-FARNIER, THE METRON PROVIDERS, OR ANY OF EITHER OF THEIR EMPLOYEES, CONTRACTORS, PROVIDERS, OR AGENTS, OR THE APP, WILL INCREASE THE SCOPE OF, OR CREATE ANY NEW WARRANTIES IN ADDITION TO, THE WARRANTIES EXPRESSLY SET FORTH IN THIS SECTION (IF ANY). YOU UNDERSTAND AND AGREE THAT THE APP (IN WHOLE OR IN PART) IS NOT INTENDED TO, AND DOES NOT, REPLACE OR ENSURE YOUR COMPLIANCE WITH ANY WATER, HEALTH, OR SAFETY STANDARDS OR REQUIREMENTS. METRON-FARNIER AND EACH METRON PROVIDER SHALL HAVE NO OBLIGATION OR RESPONSIBILITY (INDIVIDUALLY OR COLLECTIVELY) RELATING TO ANY DETECTED LEAKS OR OTHER WATER ISSUES OR ANY FAILURE TO DETECT LEAKS OR OTHER WATER ISSUES. IN NO EVENT WILL METRON-FARNIER OR ANY METRON PROVIDER (INDIVIDUALLY OR COLLECTIVELY) BE RESPONSIBLE FOR REMEDYING ANY LEAKS OR OTHER WATER ISSUES. THE APP IS NOT FAULT-TOLERANT AND IS NOT DESIGNED, INTENDED, OR PERMITTED FOR USE IN ENVIRONMENTS IN WHICH THE FAILURE OF THE APP COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.

15.2 METRON-FARNIER AND EACH METRON PROVIDER MAKE NO WARRANTY THAT (A) THE APP WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, (B) THE CONTENT, WATER CONSUMPTION DATA, TECHNOLOGY, OR METRON-FARNIER SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, (C) THE APP, CONTENT, OR WATER CONSUMPTION DATA WILL BE AVAILABLE OR PROPERLY TRANSMITTED, OR (D) DATA (INCLUDING WATER CONSUMPTION DATA) ARE SECURE FROM UNAUTHORIZED ACCESS. METRON-FARNIER AND EACH METRON PROVIDER DO NOT WARRANT OR GUARANTEE THE ACCURACY, COMPLETENESS, ADEQUACY, OR CURRENCY OF ANY CONTENT OR WATER CONSUMPTION DATA.

15.3 Metron-Farnier may provide certain Content, recommendations, advertisements, and informational services via the App on the basis of information provided by You or on Your behalf as to Your particular requirements and information provided by other sources, including Your Water Provider. Metron-Farnier and the Metron Providers accept no responsibility or liability and do not provide any guarantees, undertakings, or warranties concerning: the suitability or accuracy of a specific recommendation, interpretation, or finding (e.g., water leaks (excessive leaks or intermittent toilet leaks), system-wide water loss, in-home water fixture identification, irrigation system usage breakdown by zone, flow rate reporting, household water usage by fixture, vault temperature, meter lid or pit ring disturbance); the accuracy, completeness, or current nature of the Content, Water Consumption Data, or other information provided to Metron-Farnier by the Water Provider or its contractors or providers; and the App, Content, functionality, operation, compatibility, ability to install, maintenance, level of service, or any other matter in connection with any product or service offering of any third-party provider (including the Metron Providers); and any aspect of the terms and conditions of use, installation, function, maintenance, price, or payment in connection with any product or service offering of any third-party provider(including the Metron Providers).

15.4 Except as otherwise expressly stated in this Agreement, the providers and other third-party companies and state agencies that may be directly or indirectly referenced or may directly or indirectly provide Content, Water Consumption Data, or services are not associated or affiliated with Metron-Farnier. Metron-Farnier does not represent or endorse the accuracy or reliability of any Content, Your Content (including Water Consumption Data), or other information, content, or advertisements contained on, distributed through, or linked, downloaded, or accessed from the App, nor the quality of any products, Content, Your Content (including Water Consumption Data), or other information or other materials displayed, purchased, or obtained by You as a result of an advertisement or any other information or offer in or in connection with the foregoing. You hereby acknowledge that any reliance upon the App or any Content or Your Content (including Water Consumption Data) shall be at Your sole risk. Metron-Farnier reserves the right, in its sole discretion and without any obligation, to make improvements to, or correct any error or omission in, any portion of the App or any Content. Any bill calculators, rate data, and other documentation provided through the App do not constitute official prices and cannot be used to make claims against Metron-Farnier or any Metron Providers.

15.5 Your Operations.
           (a) THE SERVICES AND APP ARE DESIGNED SOLELY TO ASSIST CUSTOMER IN IDENTIFYING POTENTIAL WATER-RELATED RISKS RELATING TO YOUR OPERATIONS AND ACTIVITIES (“YOUR OPERATIONS”). THE APP AND WATER CONSUMPTION DATA DO NOT AND CANNOT IDENTIFY EVERY POTENTIAL RISK OR PREVENT ALL EVENTS THAT COULD LEAD TO DEATH, PERSONAL INJURY, OR PROPERTY OR ENVIRONMENTAL DAMAGE OR OTHER HARM. IN NO EVENT WILL METRON-FARNIER, THE METRON PROVIDERS, OR ANY OF EITHER OF THEIR EMPLOYEES, CONTRACTORS, PROVIDERS, OR AGENTS BE RESPONSIBLE OR LIABLE FOR ANY CLAIM, LOSS, HARM, DAMAGE, OR LIABILITY RESULTING FROM YOUR OPERATIONS. YOU ASSUME SOLE RISK AND LIABILITY FOR ANY HARM, LOSS, DAMAGE, OR LIABILITY RESULTING FROM YOUR OPERATIONS AND YOU SHALL INDEMNIFY AND HOLD METRON-FARNIER AND THE METRON PROVIDERS HARMLESS FROM ANY CLAIMS WITH RESPECT TO OR ARISING FROM SUCH EVENTS.

           (b) IMPORTANT: YOU HEREBY ACKNOWLEDGE THAT THE APP OR WATER CONSUMPTION DATA MAY NOT BE AVAILABLE IN ALL LOCATIONS AT ALL TIMES. EACH OF THE APP AND WATER CONSUMPTION DATA ARE NOT INTENDED FOR EMERGENCY USE OR TO REPLACE 911 OR OTHER EMERGENCY SERVICES. IF YOU OR YOUR PROPERTY ARE IN IMMEDIATE DANGER, OR ARE EXPERIENCING AN EMERGENCY, CALL 911 OR THE APPROPRIATE AUTHORITIES IMMEDIATELY AND DO NOT RELY ON THE APP OR WATER CONSUMPTION DATA.


16. Limitation on Liability.
16.1 YOU ACKNOWLEDGE AND AGREE THAT YOUR ACCESS TO OR USE OF THE CONTENT, TECHNOLOGY, OR OTHER CONFIDENTIAL INFORMATION, AND ANY RELIANCE UPON ANY OF THE FOREGOING, IS AT YOUR SOLE RISK, AND THAT YOU ASSUME FULL RESPONSIBILITY FOR ALL COSTS ASSOCIATED WITH ALL NECESSARY SERVICING OR REPAIRS OF ANY DEVICE OR OTHER EQUIPMENT YOU USE IN CONNECTION WITH YOUR USE OF OR ACCESS TO THE CONTENT, TECHNOLOGY, OR OTHER CONFIDENTIAL INFORMATION. YOU AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL METRON-FARNIER OR ANY METRON PROVIDERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING IN CONNECTION WITH OR OUT OF THE USE OF OR ACCESS TO THE CONTENT, TECHNOLOGY, OR OTHER CONFIDENTIAL INFORMATION, EVEN IF METRON-FARNIER OR EACH APPLICABLE METRON PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY LOSS OF USE, IMAGES, DATA, YOUR CONTENT, OPPORTUNITY, REVENUES, PROFITS, OR OTHER INTANGIBLES, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY OTHER DAMAGES THAT RESULT FROM THE USE OR THE INABILITY TO USE THE CONTENT, TECHNOLOGY, OR OTHER CONFIDENTIAL INFORMATION, FROM ANY CHANGES TO THE CONTENT, TECHNOLOGY, OR OTHER CONFIDENTIAL INFORMATION, OR FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR CONTENT.

16.2 YOU SPECIFICALLY ACKNOWLEDGE THAT DOWN-TIME AND COMPUTER VIRUSES ARE RISKS INHERENT IN THE USE OF THE INTERNET AND SOFTWARE PRODUCTS, AND YOU AGREE TO ASSUME RESPONSIBILITY FOR ANY HARM OR DAMAGES OF ANY KIND OR CHARACTER WHATSOEVER RESULTING FROM THESE POSSIBLE HARMS. YOU ALSO SPECIFICALLY ACKNOWLEDGE THAT YOU MAY BE DISCLOSING SENSITIVE, PRIVATE, AND CONFIDENTIAL INFORMATION ABOUT YOURSELF IN YOUR USE OF THE CONTENT OR TECHNOLOGY AND YOU AGREE TO ASSUME RESPONSIBILITY FOR ANY HARM OR DAMAGES OF ANY KIND OR CHARACTER WHATSOEVER RESULTING FROM YOUR RELEASE OF SUCH OF YOUR CONTENT.

16.3 IF YOU ARE DISSATISFIED WITH THE CONTENT OR TECHNOLOGY OR WITH ANY OF THE TERMS OF THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE CONTENT AND TECHNOLOGY. METRON-FARNIER’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND METRON-FARNIER’S PROVISION OF THE CONTENT, TECHNOLOGY, AND OTHER CONFIDENTIAL INFORMATION, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY YOU FOR YOUR ACCESS TO OR USE OF THE APP IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO SUCH LIABILITY. IN NO EVENT SHALL ANY METRON PROVIDERS HAVE ANY LIABILITY WHATSOVER HEREUNDER. YOU AGREE THAT METRON-FARNIER WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY AND THE LIABILITY OF THE METRON PROVIDERS. IT IS THE INTENTION OF YOU AND METRON-FARNIER THAT THIS PROVISION BE CONSTRUED BY A COURT AS BEING THE BROADEST LIMITATION OF LIABILITY CONSISTENT WITH LAW. IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, METRON-FARNIER’S LIABILITY, AND EACH METRON PROVIDER’S LIABILITY, IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

17. Privacy. You acknowledge the use, collection, and disclosure of Your personal information as described in the Privacy Policy for the App, which is located at https://metronfarnier.com/privacy-policy (“Privacy Policy”). You expressly consent to the use and disclosure of Your personal information and other data and information as described in the Privacy Policy. Notwithstanding anything in the Privacy Policy, Metron-Farnier will have the right to collect, extract, compile, synthesize, and analyze non-personal information (e.g., data or information that does not identify an entity or natural person as the source thereof) (“Usage Data”) resulting from Your access to or use of the App. Notwithstanding anything to the contrary herein, to the extent any such Usage Data is collected or generated by Metron-Farnier, such Usage Data will be solely owned by Metron-Farnier and may be used by Metron-Farnier for any lawful business purpose without a duty of accounting to You, provided that the Usage Data is used only in an aggregated form, without directly identifying You or any other entity or natural person as the source thereof.

18. Governing Law and Venue. The interpretation of the rights and obligations of the parties under this Agreement, including, to the extent applicable, any negotiations, arbitrations, or other proceedings hereunder, will be governed in all respects exclusively by the laws of the State of Colorado (U.S.A.) as such laws apply to contracts between Colorado residents performed entirely within Colorado, without regard to the conflict of laws provisions thereof. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement, and the parties hereby disclaim the application thereof. Each party will bring any action or proceeding arising from or relating to this Agreement exclusively in a state or federal court in Denver, Colorado (U.S.A.), and You irrevocably submit to the personal jurisdiction and venue of any such court in any such action or proceeding brought in such courts by Metron-Farnier.

19. Notices. Unless otherwise specified in this Agreement, any notices required or allowed under this Agreement will be provided to Metron-Farnier by postal mail to the address for Metron-Farnier listed in Section (Contact Information) below. Metron-Farnier may provide You with any notices required or allowed under this Agreement by sending You an e-mail to any e-mail address You provide to Metron-Farnier in connection with Your Account, provided that in the case of any notice applicable both to You and other users of the App, Metron-Farnier may instead provide such notice by posting on the App. Notices provided to Metron-Farnier will be deemed given when actually received by Metron-Farnier. Notice provided to You will be deemed given 24 hours after posting to the App or sending via e-mail, unless (as to e-mail) the sending party at Metron-Farnier is notified that the e-mail address is invalid.

20. Force Majeure. Any delay or failure in performance (other than for the payment of amounts due) caused by conditions or events beyond the reasonable control of the performing party, including acts of God or any governmental body, acts of terrorism, war or national emergency, epidemic, riots or insurrection, sabotage, embargo, fire, flood, other natural disaster, accident, strike or other labor disturbance, or interruption of or delay in systems, power, or telecommunications under third-party control is not a breach of this Agreement. The time for performance will be extended for a period equal to the duration of the conditions preventing performance.

21. App Updates and Support. Metron-Farnier may (but is not obligated in any way to) provide updates, modifications, changes in feature set, maintenance, or support for the App at its sole discretion. You agree that this Agreement applies to any updates or modifications to, or updated or modified versions of, the App.

22. Modifications. Metron-Farnier reserves the right, at any time, to modify the App or any Content, as well as the terms of this Agreement, whether by making those modifications available on the App or by providing notice to You as specified in this Agreement. Any modifications will be effective upon posting to the App or delivery of such other notice. You may cease using or accessing the App or Content or terminate this Agreement at any time if You do not agree to any modification. However, You will be deemed to have agreed to any and all modifications through Your continued use of or access to the App or Content following such notice.

23. Additional Terms. Except as expressly set forth in this Agreement, this Agreement may be amended or modified only by a writing signed by both parties. All waivers by a party under this Agreement must be in writing or later acknowledged by such party in writing. Any waiver or failure by a party to enforce any provision of this Agreement on one occasion will not be deemed a waiver by such party of any other provision or of such provision on any other occasion. If any provision of this Agreement is held to be unenforceable, that provision will be removed to the extent necessary to comply with applicable law, replaced by a provision that most closely approximates the original intent and economic effect of the original to the extent consistent with applicable law, and the remaining provisions will remain in full force. You may not assign this Agreement or any right, interest or benefit under this Agreement without the prior written consent of Metron-Farnier. Any assignment in violation of the foregoing will be null and void. Metron-Farnier may also assign this Agreement to any party that assumes Metron-Farnier’s obligations hereunder. The words “include,” “includes,” and “including” means “include,” “includes,” or “including,” in each case, “without limitation.” The parties hereto are independent contractors, not agents, employees, or employers of the other or joint venturers, and neither party acquires hereunder any right or ability to bind or enter into any obligation on behalf of the other. The App may contain links to third-party sites that are not under the control of Metron-Farnier. Metron-Farnier is not responsible for any content on any linked site and You access any third-party site from the App at Your own risk.

24. Questions, Complaints, Claims. If You have any questions, complaints, or claims with respect to the App, please contact Metron-Farnier using the contact information provided in Section (Contact Information) below. Metron-Farnier will do its best to address Your concerns. If You feel that Your concerns have been addressed incompletely, Metron-Farnier invites You to let Metron-Farnier know for further investigation.

25. Contact Information:

Metron-Farnier

Attn: Legal – Mobile App Terms of Use

5665 Airport Blvd, Boulder, CO 80301

 mobile_support@metronfarnier.com

(303) 449-8833 

Addendum

Supplemental Terms for Apple Inc. (“Apple”)

Notwithstanding anything set forth above, with respect to any App Store-Sourced Application, the following additional terms and conditions apply.

  1. Acknowledgement: Both parties hereto acknowledge that this Agreement is concluded between You and Metron-Farnier, and not with Apple, and Metron-Farnier, not Apple, is solely responsible for the App Store-Sourced Application and the content thereof. Your use of the App Store-Sourced Application must comply with the Apple Media Services Terms and Conditions. To the extent of any conflict between this Agreement and the Apple Media Services Terms and Conditions, the Apple Media Services Terms and Conditions will apply.
  2. Scope of License: For the avoidance of doubt: (i) You will only use the App Store-Sourced Application (a) on any Apple-branded products that You own or control that run the iOS, iPadOS, macOS, tvOS, visionOS, or watchOS as applicable (Apple’s proprietary operating systems), and (b) as permitted by the Usage Rules set forth in the Apple Media Services Terms and Conditions, except that such App Store-Sourced Application may be accessed and used by other accounts associated with the purchaser via Family Sharing or volume purchasing; and (ii) the license granted to You in this Agreement for the App Store-Sourced Application is a limited, non-transferable license to use the App Store-Sourced Application as set forth in the foregoing subpart ‘(i)’.
  3. Maintenance and Support: Metron-Farnier is solely responsible for providing any maintenance and support services with respect to the App Store-Sourced Application, as specified in this Agreement, or as otherwise required under applicable law. Both parties hereto acknowledge that Apple does not and will not have any obligation whatsoever to furnish any maintenance and support services with respect to the App Store-Sourced Application.
  4. Warranty: You agree that Metron-Farnier shall be solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed in this Agreement. In the event of any failure of the App Store-Sourced Application to conform to any applicable warranty, You have the right to notify Apple, and Apple will refund the purchase price for the App Store-Sourced Application to You. You acknowledge that, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store-Sourced Application, and any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Metron-Farnier (to the extent applicable).
  5. Product Claims: Both parties hereto acknowledge that as between Metron-Farnier and Apple, Metron-Farnier, not Apple, is responsible for addressing any claims of Yours or any third party relating to the App Store-Sourced Application or Your possession or use of the App Store-Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store-Sourced Application fails to conform to any applicable legal or regulatory requirement, and (iii) claims arising under consumer protection, privacy, or similar legislation, including in connection with the App Store-Sourced Application’s use of the HealthKit and HomeKit frameworks (if applicable). For clarity, this Agreement is not intended to, and shall not be construed to, limit Metron-Farnier’s liability to You beyond what is permitted by applicable law.
  6. Intellectual Property Rights: Both parties hereto acknowledge that, in the event of any third-party claim that the App Store-Sourced Application or Your possession and use of that App Store-Sourced Application infringes that third party’s intellectual property rights, as between Metron-Farnier and Apple, Metron-Farnier, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim.
  7. Legal Compliance: You represent and warrant that: (i) You are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and (ii) You are not listed on any U.S. Government list of prohibited or restricted parties.
  8. Developer Name and Address: Metron-Farnier’s contact information to which any of Your questions, complaints, or claims with respect to the App Store-Sourced Application should be directed is set forth in this Agreement.
  9. Third Party Terms of Agreement: You must comply with all applicable third party terms of agreement when using the App Store-Sourced Application, e.g., You must not be in violation of Your wireless data service when using the App Store-Sourced Application.
  10. Third-Party Beneficiary: Both parties acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement (as related to Your license of the App Store-Sourced Application), and that, upon Your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against You as a third-party beneficiary hereof.
  11. Apple Minimum Terms Control: You acknowledge and agree that if any of the terms and conditions of this Agreement are inconsistent or in conflict with Apple’s applicable Instructions for Minimum Terms for Developer’s End-User License Agreement, the terms and conditions of Apple’s Instructions for Minimum Terms of Developer’s End-User License Agreement shall apply.