This AirRated Air Quality Rating Services Agreement (this “Agreement”) is between AirRated Limited, a private limited company incorporated in the United Kingdom with an address of 10 Arthur Street, London EC9R 4AY (“AirRated”) and the person (“Client”) that clicks to accept AirRated’s terms on any of its websites or other means of electronic communication operated by AirRated (collectively, the “Website”). Any of Client’s Affiliates may, by the Client clicking to accept its terms be bound by this Agreement as if it was an original signatory to it in place of the Client. For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
- 1. Definitions. The following definitions apply:
- a) “Activation Date” – the date upon which AirRated commences the Services or the date of installation of all sensors used to measure all the parameters required to perform the Services, whichever is the earlier.
- b) “Affiliate” means, with respect to any specified Person, any other Person who, directly or indirectly, controls, is controlled by, or is under common control with such Person,
- c) “AirScore©” means a measure of indoor air quality calculated by AirRated with respect to a particular built environment.
- d) “Authorized User” – any of Client’s employees, representatives, consultants, agents, or other persons expressly authorized and permitted by Client in connection with Client’s business to use the Services.
- e) “Client Data” – data from Client in electronic form input or collected through the Services directly or by or from Authorized Users in the course of using the Services.
- f) “Documentation” – AirRated’s user guides, documentation, and training materials, as updated by AirRated from time to time.
- g) “Equipment” – any hardware provided to the Client from time to time by AirRated whether by loan or sale that includes but is not limited to air quality sensors..
- h) “Person” means any individual, corporation, partnership, trust, limited liability company, association or other entity.
- i) “Services” – the air quality rating services provided by AirRated including but not limited to an AirScore© and AirScore D&O and associated collection of Client Data, or any other services (such as consulting services) set out in a Statement of Work.
- j) “Statement of Work” means a statement of work setting out the Services to be provided and the costs for such Services provided by AirRated pursuant to this Agreement to the Client or an Affiliate of Client and any other Services that are purchased by the Client by clicking to accept such a purchase from AirRated.
2.1 Access and Use. Subject to the terms and conditions of this Agreement, the Client shall permit AirRated sufficient access to its premises and network in order to install all relevant Equipment to carry out the Services. Any delay in such access will cause delay in the provision of the Services for which AirRated shall not be responsible.
2.2 AirRated Responsibilities. AirRated shall use commercially reasonable efforts to provide an AirScore© rating in connection with the Services. AirRated shall notify the Client of any event or development that it becomes aware of that would reasonably be expected to (i) materially and adversely impact its ability to comply with this Agreement; or (ii) materially and adversely impact the Services. Such notification shall be given as soon as is practical, but in any event within twenty four (24) hours of AirRated becoming aware of the event or development.
2.3 Client Responsibilities. Client shall use the Services only in accordance with this Agreement and the Documentation. Client shall not (i) permit unauthorized access to, or use of, the Services or Documentation (and shall notify AirRated promptly upon any such threatened or actual unauthorized access or use), (ii) make the Services available to anyone other than Authorized Users, (iii) sell, resell, license, sublicense, distribute, rent or lease the Services, (iv) create derivative works based on the Services or (v) copy, frame or mirror any part or content of the Services (other than for Client’s own internal business purposes). Client may use the AirScore© rating in connection with its own business purpose and advertise that rating, provided that Client indicates that the “Rating as of [date]” with the date being the date upon which AirRated delivered the certification pursuant to the Services. Should the Client purchase Services that require the delivery of Client Data to AirRated then the Client shall deliver such Client Data accurately and in a timely manner to permit AirRated to perform the Services.
2.4 Loan of Equipment. In relation to the provision of the Services, AirRated may provide items of Equipment through an “on demand” loan to the Client. Any such Equipment (the “Loaned Equipment”) shall be agreed between the Client and AirRated in a mutually signed writing setting out (i) the agreed cost of such Loaned Equipment if any, (ii) the agreed loan period, and (iii) the agreed replacement cost of the Loaned Equipment, should it not be returned to AirRated in as good a condition as when received by the Client, except for reasonable wear and tear or not be returned by the Client. The Client agrees that such Loaned Equipment remains the property of AirRated notwithstanding it may be attached to or affixed to the premises of the Client and title to the Loaned Equipment shall remain with AirRated and does not pass to the Client. The Client agrees to return the Loaned Equipment to AirRated upon request at the end of the loan period and shall be responsible for the safe packaging, proper import, export, and shipping of the Loaned Equipment in order to return it at the end of its loan period together with any costs of doing so. If Client does not return the Loaned Equipment as set forth in this Section 2.4, AirRated may charge the pre-agreed price of the Loaned Equipment, and upon the receipt of payment for such unreturned Loaned Equipment, title to such Loaned Equipment shall transfer to the Client. The Client is responsible for the full cost of repair or replacement of any or all of the Loaned Equipment that is damaged, lost, confiscated, or stolen from the time the Client receives the Loaned Equipment until it is returned to AirRated, and shall notify AirRated promptly upon any occurrence thereof. The Client shall be responsible for the proper use and deployment of the Loaned Equipment, complying with all laws and regulations in the country in which it will operate the Loaned Equipment, and in accordance with the directions of AirRated and Documentation, including for demonstration or as a proof of concept. AirRated disclaims all liability in connection with the Loaned Equipment and any use thereof, except for any liability not capable of being excluded in law. The Loaned Equipment cannot be resold or exported without the consent of AirRated. In consideration for any Loaned Equipment, the Client agrees to indemnify, defend and hold AirRated harmless from any and all damages, losses, costs, claims, causes of actions, expenses and liability of any nature whatsoever associated with its use of the Loaned Equipment unless due to the gross negligence of AirRated. Any Loaned Equipment may be purchased at the end of its loan period by the Client as agreed by AirRated in writing.
2.5 Equipment Purchased. Equipment may be purchased by the Client and in such case risk of loss to such Equipment shall transfer to Client upon its delivery to the Client, and title shall transfer to the Client at the time the Client receives the Equipment provided payment in full has been received in respect of the Equipment. Equipment purchased will be detailed on the Website. AirRated shall notify the Client of the terms of any warranty provided by a third party manufacturer of Equipment purchased by Client hereunder. The Client agrees that, as AirRated has not manufactured the Equipment it is not liable to provide any warranty in relation to it, but will pass on any warranty received from the manufacturer and act as agent for the Client in relation to giving effect to any warranty claims.
2.6 Security Interest. As security for the loan of the Equipment, Client grants to AirRated a security interest in the Equipment and all parts and accessories at any time attached thereto, and to all proceeds, including insurance and rental proceeds. Client shall perform all acts and execute and deliver to AirRated all instruments required to perfect and assure continuing retention of AirRated’s security interest until the Equipment has been returned to AirRated. Until the Equipment has been returned to AirRated, in the event of (a) any action claiming or seeking the bankruptcy, receivership or insolvency of Client; (b) any merger, consolidation, dissolution, liquidation, or assignment for the benefit of creditors of Client; or (c) any transfer or attempt to transfer any of Client’s rights or obligations hereunder; AirRated may, at its option, if Client fails either to remedy any of the forgoing (a)-(c) within forty-five (45) days after receiving written notice from AirRated of such an event, terminate this Agreement and/or repossess any of the Equipment in Client’s possession in accordance with AirRated’s rights as a secured party under Article 9 of the Uniform Commercial Code. Client shall give written notice to AirRated of any of the foregoing events within ten (10) days after its occurrence. The rights and remedies granted to AirRated hereunder are cumulative, and the exercise thereof shall be without prejudice to the enforcement of any other rights or remedies provided by law or this Agreement.
3. Fees and Payment.
3.1 Fees. Client shall pay AirRated the fees set forth in the Statement of Work or as otherwise agreed to in writing by AirRated and Client (the “Fees”). Any Statement of Work attached to this Agreement or any terms on the Website shall form an integral part of it.
3.2 Invoicing and Payment. Fees are payable in one installment upon execution of this Agreement or upon the Client clicking to accept its terms on the Website. In each case an invoice shall be delivered to the Client by AirRated. Client is responsible for providing accurate billing and contact information including any appropriate VAT or other taxation details. Fees are due within fourteen (14) days of the date of each invoice or immediately if clicking to accept this Agreement through the Website. Services shall not commence until payment has been received by AirRated.
3.3 Overdue Payments. If any amounts invoiced are not received by AirRated by the payment due date, then at AirRated’s discretion, such charges may accrue interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. AirRated will not exercise its rights under this Section 3.3 if the applicable charges are under reasonable and good-faith dispute and Client is diligently cooperating to resolve the dispute.
3.4 Taxes. Unless otherwise stated in writing, the Fees do not include any taxes, levies, duties or other similar government assessments of any nature, including but not limited to value added, sales and use, or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively “Taxes”). Client is responsible for paying all Taxes associated with this Agreement except for Taxes assessable against AirRated based on its income, property and employees. If AirRated has the legal obligation to pay or collect Taxes for which Client is responsible pursuant to this Agreement, the appropriate amount shall be invoiced to and paid by Client, unless Client provides AirRated with a valid tax exemption certificate authorized by the appropriate taxing authority.
4.1 Intellectual Property Rights. Client acknowledges and agrees that (i) AirRated (or, if applicable, its licensors) exclusively owns all rights, title and interest in and to the Services and Documentation, all improvements, enhancements, modifications and derivative works thereof, and all intellectual property rights therein, (ii) its rights to access and use the Services and Documentation are limited to those specifically granted in this Agreement and no other rights are implied, and (iii) AirRated reserves all rights not expressly granted hereunder.
4.2 Data. Client owns all right, title and interest in and to Client Data. Client shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of Client Data and of the means by which AirRated acquires Client Data. In order to improve the Services, AirRated may collect and analyze certain anonymized usage data relating to the provision, use, and performance of the Services (such data, the “Anonymized Data”). Client hereby grants AirRated a worldwide, royalty-free, transferable, sub-licensable, irrevocable, perpetual license to use Anonymized Data for the limited purpose of operating, assessing and improving the Services or providing comparisons to similar services provided to third parties, provided AirRated shall, at all times, preserve the confidentiality of Client Data..
4.3 Recommendations. Client grants AirRated a worldwide, royalty-free, transferable, sublicensable, irrevocable, perpetual license to use and incorporate into the Services any recommendations, enhancement requests, corrections, suggestions or other feedback provided by Client or Authorized Users relating to the functionality and/or operation of the Services.
5.1 Authority. AirRated and Client each declares that it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform under this Agreement.
5.2 Warranty. AirRated represents and warrants that it will provide the Services, in a professional manner consistent with general industry standards and that the Services will perform in accordance with the Documentation in all material respects. Client’s exclusive remedy for breach of the foregoing warranty shall be as provided in Section 7 (Termination). AirRated does not warrant that the Services will result in any Fitwel or Wellness standard or other particular rating or standard. AirRated provides all Services on a best efforts basis as air quality is a dynamic factor dependent on many different elements including different levels of occupancy, external and internal variations that are outside AirRated’s control. Measurements of air quality are often based on averages that may not comply with any recognized standards. These internal and external elements change over time and any AirScore© is provided as of its date only.
5.3 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICES, THE EQUIPMENT AND THE DOCUMENTATION ARE PROVIDED “AS IS” AND AS AVAILABLE, AND AIRRATED MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. AIRRATED SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, UNINTERRUPTED OR ERROR-FREE SERVICE, OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. Client acknowledges and agrees that (i) it is responsible for reviewing any calculations that may be produced as part of the Services (“Calculations”) and for ensuring that the Calculations are accurate, and (ii) AirRated has no responsibility or liability for the accuracy of the Calculations or for any results generated thereby (included but not limited to any AirScore©), all of which shall be Client’s sole responsibility.
5.4 Limitation of Liability.
(A) IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS OR LOST REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT, TORT OR OTHERWISE, AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE.
(B) EXCEPT WITH RESPECT TO CLIENT’S PAYMENT OBLIGATIONS HEREUNDER, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CLIENT HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM. THE LIABILITIES LIMITED BY THIS SECTION 5.4(B) APPLY REGARDLESS OF THE (I) NATURE OF THE ACTION OR CLAIM, (II) FORM OF THE ACTION OR CLAIM, WHETHER IN CONTRACT, TORT, OR OTHERWISE, AND (III) EVEN IF A PARTY’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
(C) NEITHER AIRRATED NOR ITS PARTNERS OR SUBSIDIARIES ARE RESPONSIBLE FOR ERRORS IN ANY DATA, CLIENT DATA, OR ADDITIONAL CHEMICALS PRESENT BUT NOT DETECTED IN CONNECTION WITH THE PROVISION OF THE SERVICES WHICH MAY BE HARMFUL. AN AIRSCORE© DOES NOT GUARANTEE THE ABSENCE OF ANY PARTICULAR CHEMICALS UNDISCOVERED IN CONNECTION WITH THE SERVICES AND IS SUBJECT TO INACCURACIES WHICH AIRRATED CANNOT BE RESPONSIBLE FOR. AIRRATED IS NOT ACCOUNTABLE FOR ANY ILLNESSES OR FATALITIES ARISING FROM ANY AIR QUALITY ISSUES.
7. Term and Termination.
7.1 Term. This Agreement shall be in force upon the date both parties have executed this Agreement and shall continue for the period of one year from that date (“Initial Term”). Thereafter, this Agreement will automatically renew for additional one (1) year terms unless either party provides the other party with written notice of termination at least sixty (60) days prior to the expiration of the then current term (each, a “Renewal Term” and, with the Initial Term, the “Term”). AirRated shall notify client of any changes in Fees due during any Renewal Term on or before the aforementioned sixty (60) day point in time.
7.2 Termination. Either party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding related to insolvency, receivership, liquidation or assignment for the benefit of creditors.
7.3 Effect of Termination. The following provisions of this Agreement shall survive the termination of this Agreement: (i) any obligation of Client to pay before termination, (ii) Sections 3 – 9, and (iii) any other provision of this Agreement that must survive to fulfil its essential purpose
and (iii) any other provision of this Agreement that must survive to fulfill its essential purpose.
8. Confidentiality. Each party will potentially share with the other certain confidential and proprietary information. Each party, as the recipient of such confidential and proprietary information (“Recipient”), agrees to protect and maintain such information of the disclosing party (“Discloser”) as set forth below.
8.1 Definition. “Confidential Information” means information relating to Discloser’s business including, without limitation, product designs, product plans, proprietary software and technology, services, financial information, marketing plans, business opportunities, pricing information, discounts, inventions and know-how to the extent disclosed to Recipient hereunder.
8.2 Disclosure of Confidential Information. Recipient shall: (i) hold the Confidential Information in strict confidence and take reasonable precautions to protect the Confidential Information (including, without limitation, all precautions Recipient employs with respect to its own confidential information), (ii) not divulge any Confidential Information to any third party (other than to employees or contractors of Recipient as set forth below), (iii) not copy, decompile or reverse-engineer any Confidential Information, or remove any proprietary markings from any Confidential Information, and (iv) only use the Confidential Information in connection with the performance of this Agreement and for no other purpose. Any employee, agent or contractor of Recipient given access to any Confidential Information must have a legitimate “need to know” such information and Recipient shall remain responsible for each such person’s compliance with this Agreement.
8.3 Confidentiality Period. Recipient’s obligations with respect to Confidential Information under this Agreement expire five (5) years from the termination or expiration of this Agreement (except that with respect to any trade secrets, the obligations shall be perpetual).
8.4 Exclusions. his Agreement imposes no obligations with respect to information which (i) was in Recipient’s possession before receipt from Discloser, (ii) is or becomes a matter of public knowledge through no fault of Recipient, (iii) was rightfully disclosed to Recipient by a third party without restriction on disclosure, or (iv) is developed by Recipient without use of the Confidential Information and such independent development can be shown by documentary evidence. Recipient may make disclosures to the extent required by applicable law or legal or governmental authority provided that Recipient provides Discloser prompt notice of any such requirement (to the extent permissible under applicable law) and reasonably cooperates with Discloser in any effort of Discloser to seek a protective order, injunction or to otherwise contest such disclosure, at Discloser’s expense.
8.5 Return/Destruction. Upon termination of this Agreement, Recipient shall (i) promptly cease using the Confidential Information, (ii) destroy or return the Confidential Information and all copies, notes or extracts thereof to Discloser within ten (10) days of receipt of Discloser’s request, and (iii) confirm in writing that it has complied with these obligations.
9.1 Independent Contractors. AirRated and Client are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
9.2 Waiver. Neither party will be deemed to have waived any of its rights under this Agreement other than by an authorized representative of such party in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any prior or subsequent breach of this Agreement.
9.3 Severability. In the event one or more of the provisions of this Agreement is found to be illegal or unenforceable under applicable law, this Agreement shall not be rendered inoperative but the remaining provisions shall remain in full force and effect.
9.4 Notices. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the third business day after mailing by certified mail, or (iii) the first business day after sending by overnight delivery service. The mailing address for each party shall be as set forth in the introductory paragraph above (or as otherwise designated by a party in accordance with this Section 9.4). Notices to AirRated shall be addressed to the attention of AirRated’s Chief Executive Officer. Notices to Client shall be addressed to the attention of the Service administrator designated by Client in a Statement of Work (or to such other person designated by Client in writing).
9.5 Assignment/Subcontracting. Neither party may assign any of its rights or obligations under this Agreement without the other party’s prior written consent (not to be unreasonably withheld or delayed); provided, however, either party may assign this Agreement in its entirety without the other party’s consent to an affiliate or in connection with a merger, acquisition, corporate reorganization, resolution, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. Client acknowledges that AirRated may engage the assistance of subcontractors in its reasonable discretion for purposes hereunder including but not limited to those of Metrikus Limited.
9.6 Dispute Resolution and Arbitration. If a dispute arises in conjunction with the provision of the Services, the parties shall make reasonable efforts to reach an out-of-court settlement and agree on the following escalation procedure by discussion between board members of each of the Client and AirRated (the “Dispute Resolution Process”). Each party may only seek additional recourse once the Dispute Resolution Process has been used and has proven unsuccessful with regard to the dispute in question. Any dispute not resolved through the Dispute Resolution Process shall be finally settled by binding arbitration, conducted in accordance with the Rules of Arbitration of the American Arbitration Association by three arbitrators appointed in accordance with said rules. The costs of the arbitration, including administrative and arbitrators’ fees, shall be shared equally by the parties. Otherwise, except as set forth in the next sentence, each party shall bear its own costs and attorneys’ and witness’ fees. The prevailing party in any arbitration, as determined by the arbitration panel, shall be entitled to an award against the other party in the amount of the prevailing party’s costs and reasonable attorneys’ fees. The arbitration shall be held in Wilmington, Delaware. The right of the parties to seek injunctive relief shall remain unaffected hereby.
9.7 Governing Law/Jurisdiction. In the event a party seeks injuctive relief related to this Agreement, such action shall be governed by the laws of Delaware, without giving effect to its conflict of laws provisions. Any such legal action or proceeding that is not subject to the Dispute Resolution Process shall be brought exclusively in the courts located in the State of Delaware. Each of the parties a waives any objection to venue in any such court or to any claim that any such court is an inconvenient forum.
9.8 Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY
9.9 Entire Agreement/Amendment. This Agreement and the Attachments hereto set forth the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to the subject matter hereof. This Agreement may not be amended except by the written agreement of the parties.
9.10 Counterparts. This Agreement may be executed electronically and in counterparts, which taken together shall form one legal instrument.
9.11 Press Release/Interview/Reference. Within six (6) months of the execution of this Agreement (or such other time period as may be agreed to by the parties), AirRated shall be permitted to issue a press release announcing the relationship between Client and AirRated. Client will have the right to review and approve the release prior to distribution. Client also agrees to let AirRated list it, and utilize its logo(s), in order to identify Client as a Client on the Website and other AirRated sales and promotional materials. Any such use of Client’s logos will be subject to any applicable trademark usage guidelines of Client as provided to AirRated.