LAST REVISED ON: Nov 1, 2022


THIS TERMS OF SERVICE AGREEMENT (the “Agreement”) is made and entered into by and between Metrics Design Automation Inc. (“Metrics”, “Company”, “we”, or “our” or “us”), a Canadian Corporation with offices located at 222 Queen Street, Suite 1010, Ottawa, ON K1P 5V9 and the person or entity (the “Customer”) clicking or checking the “accept” button/box to use the Metrics verification platform (“DSim Cloud”). By clicking or checking such “accept” button/box, the Customer agrees to become a party to and bound by this Agreement that governs Customer’s access to and use of DSim Cloud, and represents and warrants that individual clicking or checking such “accept” button/box has the right, power, and authority to enter into this agreement on behalf of the entity-Customer and bind it to this Agreement. If Customers does not agree to the terms of this Agreement, do not click or check the “accept” button/box or otherwise use, access, download or install DSim Cloud.

The Agreement is effective as of the date Customer “accepts” this Agreement (“Effective Date”).

1. Provision of the Services
1.1 DSIM CLOUD Use. Subject to this Agreement, during the Term, Customer and its authorized contractors may: (a) use DSim Cloud and Documentation, (b) integrate DSim Cloud into any Application that has material value independent of DSim Cloud and modify and integrate Documentation into Customer’s Application documentation, and (c) use any Software provided by Metrics as part of DSim Cloud. Customer may not transfer these rights.

1.2 Console. Metrics will provide DSim Cloud to Customer. As part of receiving DSim Cloud Customer will have access to the DSim Cloud console, through which Customer may employ the DSim Cloud environment linked to the Customer’s account.

1.3 Hardware Compute Resources. All hardware compute resources used to host DSim Cloud and facilities where Customer Data is stored in the European Union (“EU”) based data center resources, as part of cloud platform services currently provided by Azure Cloud Services (“Cloud Provider”) and will adhere to reasonable and industry acceptable security standards no less protective than the security standards at facilities where Cloud Provider processes and stores its own information of a similar type. Metrics has implemented at least industry standard systems and procedures to (a) ensure the security and confidentiality of an Application and Customer Data, (b) protect against anticipated threats or hazards to the security or integrity of an Application and Customer Data, and (c) protect against unauthorized access to or use of an Application and Customer Data.

1.4 New Applications and Services. Metrics may: (a) make new applications, tools, features or functionality available from time to time through DSim Cloud and (b) add new services to the “DSIM CLOUD” definition from time to time.

1.5 Modifications.

(a) Metrics may make commercially reasonable updates to DSim Cloud from time to time that in our sole discretion. If Metrics makes a material change to DSim Cloud, Metrics will promptly inform Customer in writing prior to releasing such updates.

(b) To the Customer Data and Privacy Terms. Metrics may only change the Customer Data and Privacy Terms where such change is required to comply with applicable law, applicable regulation, court order, or guidance issued by a governmental regulator or agency, where such change is expressly permitted by the Customer Data and Privacy Terms, or where such change:

(i) is commercially reasonable;

(ii) does not result in a degradation of the overall security of DSim Cloud; and

(iii) does not otherwise have a material adverse impact on Customer’s rights under the Customer Data and Privacy Terms.

If Metrics makes a material change to the Customer Data and Privacy Terms in accordance with this Section, Metrics will promptly notify Customer in writing.

2. Fees and Expenses. Customer shall pay such costs and fees to Metrics in accordance with the pricing terms and conditions set forth on Metrics’ website. Metrics may terminate this Agreement in accordance with Section 10 upon Customer’s failure to pay any such costs and fees in accordance with such terms and conditions.

3. Customer Data and Privacy. Unless Metrics receives Customer’s prior written consent, Metrics: (a) shall not access, process, or otherwise use Customer Data other than as necessary to facilitate the services for the purpose of Customer’s use of DSim Cloud; and (b) shall not grant any third party, including Metrics contractors, access to Customer Data including associated metadata, including without limitation Metrics’ other customers. The foregoing applies only to DSim Cloud and does not apply to any third-party website or other third party service (x) linked to DSim Cloud or (y) recommended or referred to through DSim Cloud or (z) recommended or referred by Metrics’ staff. Customer acknowledges and agrees that Metrics shall have no liability with respect to any information or data, including Customer Data, transmitted or otherwise uploaded to, by or through DSim Cloud,

4. Customer Obligations

4.1 Compliance. Customer is responsible for its Applications, Projects, and Customer Data and for making sure its Applications, Projects, and Customer Data do not violate the restricted uses in Section 4.2. Customer will not provide any Metrics Confidential Information to any other party not authorized, without prior written consent from Metrics.

4.2 Restricted Uses. Customer agrees not to, and not to allow third parties to use DSim Cloud:

a. to copy, modify, create a derivative work of, reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract any or all of the source code, or otherwise download any part, component or potion, of DSim Cloud or the Cloud Provider hosting (subject to Section 4.4 below and except to the extent such restriction is expressly prohibited by applicable law);

b. to use DSim Cloud for High Risk Activities;

c. to sublicense, resell, or distribute any or all of DSim Cloud separate from any integrated Application;

d. to create multiple Applications, Accounts, or Projects to simulate or act as a single Application, Account, or Project (respectively), unless otherwise authorized or approved by Metrics;

e. use DSim Cloud to operate or enable any telecommunications service or in connection with any Application that allows Customer to place calls or to receive calls from any public switched telephone network;

f. to process or store any Data in violation of any applicable law;

g. to remove or alter any product identification, copyright notices, Proprietary Information notices, restricted rights notices or other notices contained in DSim Cloud or Documentation;

h. to violate the legal rights of others;

i. to interfere with the use of DSim Cloud, or the equipment used to provide DSim Cloud, by other customers, or other authorized users; to disable, interfere with or circumvent any aspect of DSim Cloud; or

j. to use DSim Cloud, or any interfaces provided, to access any other of Cloud Providers product or service in a manner that violates the terms of service of such other Cloud Provider’s product or service.

4.3 Third Party Components. DSim Cloud includes software, content, data, or other materials, including related documentation, including Open Source Software, that are owned or licensed by third parties and that are provided to Customer on terms with such third parties that are in addition to and/or different from those contained in this Agreement (“Third-Party Licenses”). Customer acknowledges and agrees to be bound by and shall comply with all Third-Party Licenses. A list of material that may be included in DSim Cloud or otherwise provided under Third-Party Licenses can be found on Metrics’ website and any applicable Third-Party Licenses are accessible via links therefrom. The term “Open-Source Software” refers to any software that contains or is derived in any manner (in whole or in part) from any software that is distributed as open-source code pursuant to Open Source Software License or similar distribution models, including, but not limited to, software licensed, subject to or distributed under a license published by the Open-Source Initiative ( In all cases where Open-Source Software is approved for use in or with DSim Cloud, Metrics will use best efforts to remain in compliance with the terms and conditions of all applicable Open Source Software licenses.

4.4 Documentation. Metrics may provide Documentation for Customer’s use of DSim Cloud. The Documentation may specify reasonable restrictions (e.g. attribution or HTML restrictions) on how the Applications may be built or DSim Cloud may be used and Customer will comply with any such restrictions specified.

5. Suspension and Removals

5.1 Suspension/Removals. (a) If Customer becomes aware that any Application, Project, or Customer Data exhibits any of the restricted uses in Section 4.2, Customer will immediately suspend the Application or Project and/or remove the relevant Customer Data (as applicable) until such violation is corrected. (b) If Customer fails to suspend or remove as noted in the prior sentence, Metrics may specifically request that Customer do so. (c) If Customer fails to comply with Metrics’ request to do so within twenty-four (24) hours, then Metrics may disable the Project or Application, and/or disable the Account (as may be applicable) until such violation is corrected. Customer acknowledges that, should Cloud Partner become aware of such violation it may specifically request that Metrics take action as noted in clauses (b) and (c) of this section. If Metrics fails to comply with Cloud Partner’s request to do so within twenty-four (24) hours, then Cloud Partner may disable the Project or Application, and/or disable the Account (as may be applicable) until such violation is corrected.

5.2 Emergency Security Issues. Despite the foregoing, Customer acknowledges that if there is an Emergency Security Issue, then Cloud Partner may automatically suspend the offending Application, Project, and/or Account. Suspension will be to the minimum extent required, and of the minimum duration, to prevent or resolve the Emergency Security Issue. If Cloud Partner suspends an Application, Project, or the Account, for any reason, without prior notice to Metrics, at Metrics’ request or at Customer’s request to Metrics, Cloud Partner will provide Metrics, and Metrics will provide to Customer, the reason for the suspension as soon as is reasonably possible.

6. Intellectual Property Rights and Feedback

6.1 DSIM CLOUD Use. Intellectual Property Rights. Except as expressly set forth in this Agreement, this Agreement does not grant either party any rights, implied or otherwise, to the other’s content or any of the other’s intellectual property. DSim Cloud and Documentation and all Intellectual Property Rights related thereto (the “Proprietary Information”) constitute trade secrets and proprietary data of Metrics, nothing in this Agreement will be construed to convey any title or ownership rights to Customer. Metrics hereby retains all right, title, and interest in DSim Cloud and Documentation, and any copyrights, and patents embodied therein, including without limitation any derivatives or modification thereto, algorithms or methodologies developed during the Agreement Term, and all non-third-party software. The Customer Data, Application, Project (if applicable), and Brand Features constitute trade secrets, proprietary data and marks, and other intellectual property of Customer, and nothing in this Agreement will be construed to convey any title or ownership rights to Metrics. Customer owns all Intellectual Property Rights in, and hereby retains all right, title, and interest in, Customer’s Data, Application, Project (if applicable), and Brand Features, and any copyrights, patents or other Intellectual Property Rights embodied therein, including without limitation any derivatives or modification thereto. As between Metrics and Metrics’ cloud partner, cloud partner owns all Intellectual Property Rights in its services and software used to host Metrics DSIM CLOUD. Each Party reserves all rights except those expressly granted herein.

6.2 Customer Feedback. If Customer provides Metrics suggestions or ideas for improving or otherwise modifying DSim Cloud (collectively “Feedback”), then Metrics may use that information without obligation to Customer provided that no such Feedback shall include any of Customer’s Confidential Information. In no case will Metrics use or permit any third party to use Customer’s data or Confidential Information, including associated metadata, except for the purpose of providing DSim Cloud to Customer.

7. [Reserved].

8. Depreciation of Cloud Partner Services. Customer acknowledges that Cloud Partner will announce if it intends to discontinue or make backwards incompatible changes to the cloud services specified at the URL in the next sentence, and upon notification from Cloud Partner, Metrics will notify Customer in writing if Cloud Partner intends to discontinue or make backwards incompatible changes to the cloud services. Metrics, through its Cloud Partner, will use commercially reasonable efforts to continue to operate those services versions and features identified at without these changes for at least one year after that announcement, unless (as Cloud Provider determines in its reasonable good faith judgment):
(i) required by law or third party relationship (including if there is a change in applicable law or relationship), or
(ii) doing so could create a security risk or substantial economic or material technical burden.

9. Confidential Information.
9.1 Obligations. In addition to any other confidentiality obligations in any separate non-disclosure agreement executed between Metrics and Customer, each party (the “Receiving Party”) shall keep confidential and not disclose to any third party other than Receiving Party’s employees and permitted contractors, whose job performance requires access, or use for any purpose other than the purpose for which it was disclosed, or for the benefit of any third party or adversely to any interest of the other party (the “Disclosing Party”), any of the following information disclosed by the Disclosing Party to the Receiving Party (collectively, the “Confidential Information”): (i) the terms of this Agreement, (ii) any information provided by the Disclosing Party marked with a proprietary, confidential or other similar notice or orally disclosed by the Disclosing Party and followed by a writing within thirty (30) days of such oral disclosure indicating such information was confidential; (iii) if not so marked, information that is reasonably understood by the Receiving Party to be proprietary or confidential; (iv) DSim Cloud and Documentation, Account, Applications, Projects, and Customer Data and associated metadata; (v) all technical data test cases and testing materials and results, documentation, and schematics provided by Customer; and (vi) information about Customer’s customers. Confidential Information shall not be deemed to include information which: (a) is now, or hereafter becomes, through no act or failure to act on the part of the Receiving Party, generally known or available; (b) is known by Receiving Party at the time of receiving such information as evidenced by its written records; (c) is hereafter rightfully furnished to Receiving Party by a third party, without restriction of disclosure as evidenced by written records; (d) is independently developed by the Receiving Party without use of or reference to the Confidential Information of Disclosing Party; or (e) is the subject of written permission to disclose provided by Disclosing Party. Additionally, Receiving Party may disclose Confidential Information pursuant to a valid court order, provided Receiving Party has given Disclosing Party written notice in reasonable time prior to such disclosure to obtain a protective order or other appropriate relief.
9.2 Protection of Confidential Information. Receiving Party shall hold the Confidential Information it receives in trust and confidence and protect the same with at least the same degree of care used to protect its own similar confidential information from unauthorized use or disclosure, but in no event shall Receiving Party use less than reasonable care. All Confidential Information (including all copies thereof) shall remain the property of Disclosing Party, and shall be returned or destroyed, and certified as to its destruction, to Disclosing Party, after Receiving Party’s need for the Confidential Information has expired, upon request of Disclosing Party, or upon termination of this Agreement.

10. Term and Termination

10.1 Agreement Term. The “Term” of this Agreement will begin on the Effective Date and continue until the Agreement is terminated as set forth in Section 10 of this Agreement.

10.2 Termination for Breach. Either party may terminate this Agreement for breach if: (a) the other party is in material breach of the Agreement and fails to cure that breach within thirty (30) days after receipt of written notice; (b) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety (90) days; or (c) the other party is in material breach of this Agreement more than two (2) times notwithstanding any cure of such breaches. In addition, Metrics may terminate any, all, or any portion of the Project, if Customer meets any of the conditions in this Section 10.2(a), (b), and/or (c).

10.3 Termination for Inactivity. Metrics reserves the right to terminate DSim Cloud for inactivity, if, for a period exceeding 90 days, Customer: (a) has failed to access the Console; (b) a Project has no active services or storage resources or an Application has not served any requests.

10.4 Effect of Termination. Upon termination of this Agreement, then: (i) the rights granted by one party to the other will immediately cease; (ii) Metrics will delete the Software, any Application, Instance, Project, and any Customer Data; and (iii) upon request, each party will use commercially reasonable efforts to return or destroy, and certify as to its destruction, all Confidential Information of the other party. Those provisions which by their nature are intended to survive the termination or expiration of this Agreement will survive to fulfill its essential purpose.

11. Representations and Warranties. Each party represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement; and (b) it will comply with all laws and regulations applicable to its provision, or use, of DSim Cloud, as applicable, and (c) Metrics represents and warrants that during the Term that DSim Cloud will conform to the functional specifications set forth in the Documentation. The preceding paragraph does not apply to use of DSim Cloud in combination with hardware or software not provided, authorized, approved, or intended for use by Metrics. Metrics warrants that it will provide DSim Cloud in accordance with the technical support services as stated in Section 7 of this Agreement.


13. Limitation of Liability


13.2 Exceptions to Limitation. The limitation of indirect liability does not apply to breaches of confidentiality obligations, violations of a party’s Intellectual Property Rights by the other party, indemnification obligations, Metrics’ fraudulent, willful or intentional misconduct or gross negligence, Metrics’ failure to comply with applicable laws, rules and regulations, or representations and warranties.

14. Indemnification

14.1 By Customer. Unless prohibited by applicable law, Customer will defend and indemnify Metrics, its Subsidiaries, officers, directors, agents, and suppliers against Indemnified Liabilities in any Third Party Legal Proceeding to the extent arising from or relating to; (a) any Application, Project, or Instance; or (b) Customer’s use of DSim Cloud exhibits any of the Restricted Uses in Section 4.2; (c) Customer’s failure to comply with its confidentiality obligations in Section 9 of this Agreement, (d) Customer’s failure to comply with all local, Federal and international laws, treaties, rules, regulations, guidelines and codes of practice relating to usage of such DSIM CLOUD.

14.2 By Metrics. Metrics will defend and indemnify Customer and its Affiliates against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising from an allegation that use of (a) Metrics’ technology used to provide DSim Cloud (excluding any open source software), or (b) any Metrics’ Brand Feature infringes or misappropriates the third party’s patent, copyright, trade secret, or trademark.

14.3 Exclusions. This Section 14 will not apply to the extent the underlying allegation arises from:

a. the indemnified party’s breach of this Agreement and such allegation would not have occurred but for such breach;

b. modifications to the indemnifying party’s technology or Brand Features by anyone other than the indemnifying party or by authorization or approval of indemnifying party and such allegation would not have occurred but for such modification;

c. combination of the indemnifying party’s technology or Brand Features with materials not provided, authorized or approved by the indemnifying party and such allegation would not have occurred but for such combination, except where such technology or Brand Features have no substantial use other than as part of such combination; or

d. use of non-current or unsupported versions of DSim Cloud or Brand Features provided that one (1) year’s prior written notice for, and use of, replacement versions have been provided to Customer.

14.4 Conditions. The indemnified party shall:

a. Promptly notify the indemnifying party in writing of any allegation(s) that preceded the Third-Party Legal Proceeding and cooperate reasonably with the indemnifying party to resolve the allegation(s) and Third-Party Legal Proceeding. If breach of this Section 14.4(a) prejudices the defense of the Third- Party Legal Proceeding, the indemnifying party’s obligations under Section 14.1 or 14.2 (as applicable) will be reduced in proportion to the prejudice.

b. Tender sole control of the indemnified portion of the Third-Party Legal Proceeding to the indemnifying party, subject to the following: (i) the indemnified party may appoint its own non-controlling counsel, at its own expense; and (ii) any settlement requiring the indemnified party to admit liability, pay money, or take (or refrain from taking) any action, will require the indemnified party’s prior written consent, not to be unreasonably withheld, conditioned, or delayed.

14.5 Remedies. In addition to the obligations of this Section 14:

a. If Metrics reasonably believes DSim Cloud might infringe a third party’s Intellectual Property Rights, then Metrics may, at its sole option and expense: (a) procure the right for Customer to continue using DSim Cloud; (b) modify DSim Cloud to make it non-infringing without materially reducing its functionality; or (c) replace DSim Cloud with a non-infringing, functionally equivalent alternative.

b. If Metrics does not believe the remedies in Section 14.5(a) are commercially reasonable, then Metrics may suspend or terminate Customer’s use of the impacted DSIM CLOUD and will refund to Customer any prepaid fees prorata with the remaining period of the Term.

14.6 Sole Rights and Obligations. Without affecting either party’s termination rights, this Section 14 states the parties’ only rights and obligations under this Agreement for any third party’s Intellectual Property Rights allegations and Third-Party Legal Proceedings.

15. Miscellaneous

15.1 Notices. All notices must be in writing and addressed to the other party’s legal department and primary point of contact. Notice will be treated as given on receipt as verified by written or automated receipt or by electronic log (as applicable).

15.2 Assignment. Neither party may assign any part of this Agreement, in whole or in part, without the prior written consent of Metrics; any purported assignment of same shall be void. Notwithstanding the foregoing, either party may assign any part of this Agreement, in whole or in part, by operation or law, in connection with a change in control, or otherwise without the prior written consent of the other party. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns.

15.3 Force Majeure. Neither party will be liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control; provided, however, that any party excused under this sentence shall (a) give written notice to the other within a reasonable time after the cause of such excuse occurs, (b) use commercially reasonable efforts to resume its performance in full, and (c) continue at all times to perform whenever and to the extent reasonably possible.

15.4 No Agency. This Agreement does not create any agency, partnership or joint venture between the parties.

15.5 Severability. If any term (or part of a term) of this Agreement is invalid, illegal, or unenforceable, the rest of the Agreement will remain in effect.

15.6 No Third-Party Beneficiaries. This Agreement does not confer any benefits on any third party unless it expressly states that it does.

15.7 Equitable Relief. Nothing in this Agreement will limit either party’s ability to seek equitable relief.

15.8 Governing Law and Venue. This Agreement is governed by the laws of the Province of Ontario and the laws of Canada applicable therein, excluding its conflict-of-laws principles and excluding application of the United Nations Convention on Contracts for the International Sale of Goods. The exclusive venue shall be the courts sitting in the Province of Ontario, Canada. The parties hereto further agree to accept service of process, for any action brought related to this Agreement in the Province of Ontario, Canada, by the mailing of process by registered or certified mail, postage prepaid, return receipt requested, to the representative or address specified above in this Agreement, as applicable, or such other representative or address as has been identified as of such time as service is to be made, and the parties hereto irrevocably waive any objection that service of process must conform to the Hague Convention on Service of Process Abroad or other applicable law or treaty regarding service of process in favor of the procedure for service of process set forth herein. The failure or delay of any party to enforce at any time any provision of this Agreement shall not constitute a waiver of such party’s right thereafter to enforce each and every provision of this Agreement.

15.9 Amendments. Except as set forth in Section 1.5(b), any amendment must be in writing, signed by both parties, and expressly state that it is amending this Agreement.

15.10 Entire Agreement. This Agreement sets out all terms agreed between the parties and supersedes all other agreements between the parties relating to its subject matter. In entering into this Agreement, neither party has relied on, and neither party will have any right or remedy based on, any statement, representation or warranty (whether made negligently or innocently), except those expressly set out in this Agreement. The terms in this Agreement and the Documentation are incorporated by reference into the Agreement.

15.11 Conflicting Terms. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: the Agreement, and any Nondisclosure agreement executed between the parties.

15.12 Definitions

“Account” means Customer’s DSIM CLOUD account.

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a party. Control is defined as greater than fifty percent of the voting rights or equity interests of a party.

“Application(s)” means any web or other application Customer creates using DSim Cloud, including any source code written by Customer to be used with DSim Cloud, or hosted in an Instance.

“Brand Features” means the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of Metrics, respectively, as secured by such party from time to time.

“Customer Data” means content provided to Metrics by Customer (or at its direction) via DSim Cloud under the Account.

“Documentation” means the Metrics documentation (as may be updated from time to time) and made available to Customer.

“Emergency Security Issue” means either: (a) Customer’s use of DSim Cloud is in violation of any of the restricted uses as described in Section 4.2, which could disrupt: (i) DSim Cloud; (ii) other customers’ of Metrics’ cloud partner or their customer’s end users; or (iii) the Metrics’ cloud partner network or servers used to provide DSim Cloud; or (b) unauthorized third party access to DSim Cloud.

“High Risk Activities” means uses such as the operation of nuclear facilities, air traffic control, or life support systems, where the use or failure of DSim Cloud could lead to death, personal injury, or environmental damage.

“Indemnified Liabilities” means any (a) settlement amounts approved by the indemnifying party; and (b) damages and costs finally awarded against the indemnified party and its Affiliates by a court of competent jurisdiction.

“Instance” means a virtual machine instance, configured and used by Customer, which runs on DSim Cloud. Instances are more fully described in the Documentation.

“Intellectual Property Rights” means current and future worldwide rights under patent, copyright, trade secret, trademark, and moral rights laws, and other similar rights.

“Project” means a grouping of computing, storage, API, and Metrics’ resources for Customer, and via which Customer may use DSim Cloud.

“Software” means any downloadable tools, software development kits or other such proprietary computer software provided by Metrics in connection with DSim Cloud, which may be downloaded by Customer, and any updates Metrics may make to such Software from time to time.

“Third-Party Legal Proceeding” means any formal legal proceeding filed by an unaffiliated third party before a court or arbitral tribunal (including any appellate proceeding).