Any order signed by Customer and NatureMetrics for services which references these Terms (“Order”), shall incorporate these Terms. Customer's use of and access to the Services and/or Kit & Test Services (as applicable and as further defined under an Order) is conditional on its compliance with and acceptance of these Terms. These Terms and an Order together form the “Contract”.
1. Interpretation. Capitalized terms not defined herein are as set out in the Order. NatureMetrics may from time to time publish additional terms that apply to new products which NatureMetrics may make available from time to time ('Additional Service Terms'), which are available here, including but not limited to Kit & Tests Service Terms) that supplement these Terms, and shall be incorporated by reference under an applicable Order.
2. Order of priority. In the event of a conflict in respect of these Terms and/or the documents referred therein, the following order of priority shall prevail (in descending order): (i) the Order, (ii) Additional Service Terms, (iii) Acceptable Use Policy, (iv) these Terms.
3. Contracting with NatureMetrics. The Contract is between Customer and: (a) NatureMetrics North America Ltd if Customer is located in North America. NatureMetrics North America Ltd is a company incorporated and registered under the laws of Ontario with a registered address at 590 Hanlon Creek Blvd, Unit 11, Guelph, Ontario, Canada, N1C 0A1; or (b) NatureMetrics Ltd if Customer is located outside North America. NatureMetrics Ltd is a company incorporated and registered in England with company number 09243907, whose registered office is at 1 Occam Court, Surrey Research Park, Guildford, GU2 7HJ, United Kingdom ('NatureMetrics'). NatureMetrics may provide the Services through any of its affiliates.
4. Basis of contract. No terms or conditions endorsed on, delivered with, or contained in Customer’s purchase conditions, order, confirmation of order, specification or other document shall form part of the Contract. These Terms and any Additional Service Terms shall supersede any different legal terms upon which Customer and NatureMetrics have contracted prior to the date the Order becomes binding on both parties (‘Order Date’); Customer and NatureMetrics agree that any such previous terms are terminated by mutual agreement with effect from the Order Date.
5. Sampling Services. These Terms do not apply to the 'Sampling Services' (as defined in the Sampling Services T&Cs).
6.1 During the Subscription Period, NatureMetrics shall provide the services as set out in the Subscription Plan ('Services') during the Subscription Period.
6.2 Customer acknowledges that NatureMetrics may modify the features of the Services without prior notice (provided that doing so does not materially adversely affect use by Customer).
6.3 Customer may only use the Services pursuant to these Terms. Subject to compliance with these Terms, NatureMetrics grants Customer a non-exclusive, non-transferable, personal right to use the Services.
6.4 If the Subscription Plan includes a subscription to the cloud-hosted platform by which Customer accesses certain functionality ('Platform'), NatureMetrics shall allow Customer to access and use the Platform during the Subscription Period.
6.5 Where applicable, Customer acknowledges that: (a) NatureMetrics may update the Platform in relation to maintenance and upgrades; (b) the Platform may be subject to delays and/or errors resulting from use of the internet, and such risks are inherent in cloud services and are not NatureMetrics' responsibility, and (c) the Platform may contain links to or use third-party resources, which may be subject to different terms, and NatureMetrics is not liable for the availability or accuracy of such third-party resources.
6.6 Where Customer procures consultancy services in respect of survey design for testing in relation to certain Projects ('Survey Design Services') (the Survey Design Services shall form part of the Services whether they are included in the Subscription Plan or otherwise):
(a) NatureMetrics will use reasonable endeavours to provide the Survey Design Services;
(b) NatureMetrics shall use its reasonable endeavours to meet any delivery dates but such dates are indicative only;
(c) unless otherwise specified, NatureMetrics and its suppliers make no warranty or representation regarding the results or accuracy or reliability of any information obtained through the Survey Design Services, or that the Survey Design Services will meet any requirements; and
(d) Customer will be solely responsible for any damages resulting from the use of the Survey Design Services. The entire risk arising out of use or performance of the Survey Design Services remains with Customer, and NatureMetrics has no liability to Customer in relation to the use or performance of the Survey Design Services.
7. Term. Subject to earlier termination in accordance with clause 13, the Contract shall last for the Initial Period. Thereafter, the Subscription Plan will automatically renew for successive Renewal Periods, at the end of the Initial Period or relevant Renewal Period, unless either party gives the other written notice of non-renewal at least 90 days prior to the end of the Initial Period or relevant Renewal Period. Customer’s access and use of the Subscription Plan will terminate on termination of the Contract.
8. Use of the Services
8.1 Customer agrees that it will not use the Services in violation of any of NatureMetrics' policies (including those set out at www.naturemetrics.com/terms) or in a manner that violates applicable law.
8.2 Customer may not enable any third parties (other than users it has authorised ('Authorised Users')) to use the Services. Authorised User accounts cannot be shared or used by more than one individual at the same time. Customer is solely responsible for its (and Authorised Users') use of the Services and shall abide by, and ensure compliance with, all applicable laws. Customer shall be liable for the acts and omissions of the Authorised Users.
8.3 NatureMetrics is not responsible for the accuracy of information or data Customer inputs or provides, or data NatureMetrics receives from third parties. To the fullest extent permitted by law, NatureMetrics shall not be responsible or liable for: (a) the inputting of any information by Customer (or an Authorised User); (b) the accuracy, quality and integrity of data retrieved from third party sources; or (c) back-ups of Customer's account information or any other data.
8.4 The individual entering into this Contract: (a) represents and warrants that they have the authority to bind Customer (which can be any type of business); and (b) in respect of the Platform (if applicable), will automatically become the 'master user'. The master user has the ability to add and/or remove Authorised Users from Customer's account.
9. Fees, payment and auto renewal
9.1 The 'Fees' payable by Customer are set out in the Order. NatureMetrics shall invoice Customer for the Fees at any time following the Effective Date (it being acknowledged by Customer that Platform fees are payable upon order annually in advance, and fees for one-off services upon Order). Customer shall pay all invoices (in full and without deduction or set-off) within the time period set out in the Order, or otherwise within 30 days of the date of the invoice.
9.2 Unless stated to the contrary, Fees are exclusive of applicable taxes or other charges and Customer shall in addition pay such applicable taxes and other charges at the rate and in the manner prescribed by law from time to time.
9.3 Time of payment is of the essence. Where sums due under this Contract are not paid in full by the due date, NatureMetrics may charge interest up to the maximum amount permitted under applicable law and suspend access to the Services until such time as payment (including interest) is received in full.
9.4 NatureMetrics may increase the Fees (including any other applicable charges) from time to time by the higher of (i) any cumulative increase in the jurisdiction’s consumer price index over the previous 12 months, and (ii) 5 per cent of then current Fees, upon sixty days notification to Customer, the change in Fees taking effect on the following anniversary of the Subscription Period Start Date.
10. Intellectual property rights
10.1 Subject to the Additional Service Terms, NatureMetrics is the owner or the licensee of all intellectual property rights (including all processes, techniques and know-how) in: (a) the Services; and (b) any data created during and in connection with the provision of the Services, and no proprietary rights are transferred to Customer. All such rights are reserved.
10.2 Subject to the Additional Service Terms, all intellectual property rights in the information that Customer provides to NatureMetrics in relation to the Platform shall remain owned by Customer or the relevant third-party owner and Customer grants to NatureMetrics a royalty-free, irrevocable, non-transferrable and non-exclusive licence to use such information and data to the extent necessary to perform or provide the Services. In addition to the foregoing and notwithstanding any Additional Service Terms, NatureMetrics may (i) collect anonymised, de-identified information relating to use of the Services (including usage data) in order to improve NatureMetrics' products and services and for other reasonable internal uses, and (ii) aggregate such anonymised, de-identified information with anonymous, de-identified information of its other customers for purposes of creating reports and other deliverables as part of its products and services. Any intellectual property rights in data, analysis and improvements derived from NatureMetrics' use of information which Customer provides shall be owned by NatureMetrics.
10.3 If Customer provides feedback, comments or suggestions about the Service or any of NatureMetrics' technologies, products, or services ('Feedback'), Customer agrees the Feedback is not confidential and NatureMetrics is free to use, disclose, reproduce, licence or otherwise distribute the Feedback without any obligations or restrictions of any kind, including intellectual property rights.
10.4 In consideration for the price of £1, receipt of which is duly acknowledged by Customer, Customer hereby assigns all present and future intellectual property rights in or relating to any Final Reports (including (i) the format and data charts within it, (ii) the algorithms, techniques and know-how used to generate such reports, (iii) photographic images contained within such reports, and (iv) all technical data generated during analysis of samples set out in the report) delivered by NatureMetrics to Customer prior to the Order Date (“Prior Reports”) to NatureMetrics, save that the parties agree that Customer shall retain a sole, perpetual, non-transferrable, non-sublicensable licence to use such Prior Reports for business purposes and to make all or part of such Prior Reports public (provided that where partly published, the published element reflects the particular Prior Report as a whole) The foregoing licence does not include the right for Customer to exploit the Prior Reports for direct commercial gain or facilitate any third party in doing so unless expressly agreed in writing by NatureMetrics. Any non-compliance by Customer with the terms of the licence granted in this clause, shall entitle NatureMetrics to revoke the licence upon written notice.
10.5 Notwithstanding clause 10.4, NatureMetrics shall not without prior written permission of Customer (which may be given or withheld at the sole discretion of Customer) publish or otherwise make available to third parties a non-anonymised copy or extract of the Prior Reports and the confidentiality provisions set out in clause 14.3 shall apply to any information in the Prior Reports that identifies or could reasonably identify Customer.
11. Warranty. Customer understands and agrees that the Services are provided "as is" and NatureMetrics (and its affiliates) expressly disclaim all warranties of any kind, express or implied, save that the Services are provided using reasonable care and skill. The entire risk arising out of use or performance of the Services remains with Customer. Unless otherwise specified, NatureMetrics cannot guarantee and do not promise any specific results from use of the Services. Customer acknowledges that calculation methods are constantly evolving depending on academic studies published and that metrics provided as part of the Services may change from time to time on this basis. NatureMetrics will use reasonable endeavors to explain such changes where they are material.
12. Limitation of liability
12.1 The restrictions on liability in this section 12 apply to every liability arising under or in connection with the Contract including liability arising in contract, tort (including negligence), misrepresentation, restitution or otherwise.
12.2 Nothing in the Contract limits any liability which cannot legally be limited, including liability for: (a) death or personal injury caused by negligence; (b) fraud or fraudulent misrepresentation; or (c) any other losses which cannot be excluded or limited by applicable law.
12.3 Subject to section 12.2: (a) NatureMetrics' total liability to Customer shall not exceed the aggregate amounts paid or payable to NatureMetrics in the 12 month period preceding the event or circumstances giving rise to the claim under the Order to which such liability relates; (b) the following types of loss are wholly excluded: (i) loss of profits; (ii) loss of sales or business; (iii) loss of agreements or contracts; (iv) loss of anticipated savings; (v) loss of use or corruption of data, software or systems; (vi) loss of or damage to goodwill; and (vii) indirect or consequential loss; and (c) all implied terms and conditions as to the quality or performance of the Platform (if applicable) and any other goods or services provided under this Contract are, to the fullest extent permitted by law, excluded from this Contract.
12.4 Interpretation of the Services and any consequential decision making are the sole responsibility of Customer, and NatureMetrics does not accept any responsibility or liability in respect of actions taken by Customer in reliance on the content of the Services.
12.5 This section 12 shall survive termination.
13.1 Either party may give notice in writing to the other to terminate this Contract with immediate effect if the other party commits a material breach of any term of this Contract and fails to remedy that breach within a period of 14 days after being notified in writing to do so.
13.2 If Customer fails to pay any amount due under the Contract on the due date for payment, NatureMetrics may, by giving written notice to Customer, immediately suspend provision of the Services.
13.3 At the end of the Subscription Period or any earlier termination of this Contract: (a) Customer shall immediately pay all amounts payable by way of the Fees regardless of whether due; and (b) the rights granted by NatureMetrics to Customer under this Contract shall terminate.
13.4 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
14.1 Updates. NatureMetrics may change these Terms and will use reasonable efforts to notify Customer. Within 14 days of notice, changes will be binding on Customer (unless Customer reasonably believes that any changes are of material negative impact, in which case it may by notice (prior to such changes taking effect) elect to terminate this Contract and must notify NatureMetrics of the negative impact which has caused Customer to exercise this right). If Customer continues to use the Services after such 14 day period, Customer will be deemed to have accepted the changes.
14.2 Force majeure. A party shall not be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure results from an event, circumstance or cause beyond that party's reasonable control, but excluding payment of sums due under this Contract ('Force Majeure'). In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 1 month, NatureMetrics may terminate this Contract by giving 14 days' written notice to Customer.
14.3 Confidentiality. (a) Each party undertakes that it shall not during the Subscription Period and for a period of 5 years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except that (b) each party may disclose the other party's confidential information: (i) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under the Contract; and (ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority. (c) Neither party shall use the other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
14.4 Data protection. NatureMetrics will process personal information in line with applicable data protection and privacy legislation in force from time to time. NatureMetrics shall collect and process any personal data in accordance with the Privacy Notice, as may be amended from time to time.
14.5 Third party rights. Unless it expressly states otherwise, a person who is not a party to this Contract shall not have any rights under or in connection with it, save that any entity in NatureMetrics' group may enforce this Contract as if they were NatureMetrics and a party to this Contract.
14.6 Export restrictions. Customer shall comply (and shall ensure all Authorised Users comply) with all applicable laws, rules, and regulations governing export that apply to the Services, and shall not export or re-export, directly or indirectly, separately or as a part of a system, the Services to, or access or use the Services in, any country or territory for which an export licence or other approval is required under the laws of the United Kingdom, the United States, the European Union or any of its member states, without first obtaining such licence or other approval. Customer shall be solely responsible for ensuring its access, importation and use of the Services complies with all export and other laws.
14.7 Entire agreement. This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements and understandings between them, whether written or oral, relating to its subject matter.
14.8 Governing law and jurisdiction. The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation, shall be governed by the laws of:
(a) England, if Customer contracts with Nature Metrics Ltd, and to the fullest extent permitted by law, the English courts shall have the exclusive jurisdiction over any dispute or claim relating to this Contract; or
(b) the Province of Ontario and the federal laws of Canada applicable therein, if Customer contracts with Nature Metrics North America Ltd, and to the fullest extent permitted by law, the courts of the Province of Ontario shall have the exclusive jurisdiction over any dispute or claim relating to this Contract.
These Terms were published on 8th February 2024.