Terms and Conditions

 

1. Services.

 

(a)        Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the services (the “Services”) described in the Order Form and incorporated herein by this reference (the “Order Form”).  Company hereby grants Customer a non-exclusive, non-transferable, worldwide right to use the Services, solely for its own internal business purposes, subject to the terms of this Agreement.  All rights not expressly granted to Customer herein are reserved by Company.

(b)       Company reserves the right, in its sole discretion, to suspend or modify the Services that it deems necessary or useful to:  (i) maintain or enhance (a) the quality or delivery of Company’s services to its customers or (b) the Services’ cost efficiency or performance; or (ii) to comply with applicable law.  Customer agrees that Company shall not be liable for any suspension or modification of the Services under the circumstances described in this subsection.

(c)        Any use of the Company’s website by Customer will also be governed by the Terms of Use and Privacy Policy located thereon (collectively, “Website Terms”).  In the event the Website Terms conflict with this Agreement, the terms of this Agreement shall control.

2. Restrictions and Responsibilities.

(a)        Customer will not, directly or indirectly, and shall not allow any third party to: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); (ii) modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); (iii) use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of any third party; (iii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer the Services or any Software; (iv) bypass or breach any security device or protection of the Services or Software; (v) input, upload, transmit or otherwise provide to or through the Services or Software, any information or material that are unlawful, injurious, or contain, transmit or activate any harmful code; (vi) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services, Software, or Company’s provision of services to any third party, in whole or in part; (vii) access or use the Services or Software for purposes of competitive analysis of the Services or Software or development of a competing software service or product; or (viii) remove any proprietary notices or labels.

(b)       Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.

(c)        Customer represents and warrants that Customer will use the Services only in compliance with Company’s standard written policies then in effect and all applicable laws and regulations.  Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of this Agreement.

(d)       Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”).  Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords, and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.

3. Confidentiality and Proprietary Rights.

(a)        Each Party (the “Receiving Party”) understands that the other Party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).  Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service.  Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”).  The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information.  The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party, or (e) is required to be disclosed by law.  Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under this subsection would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy.  Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.

(b)       Customer shall own all right, title and interest in and to the Customer Data.  Customer has the sole responsibility for the entry, deletion, correction, accuracy, quality, integrity, legality, reliability, appropriateness and intellectual property ownership or right to use the Customer Data.  Company will not be responsible for any destruction, damage, loss or failure to store any Customer Data beyond its reasonable control or resulting from a failure in data transmission or operation of the Services by Customer.

(c)        Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with the Services or support, (c) any suggestions, ideas, enhancements requests, feedback, recommendations or other information provide by Customer relating to the Services or Software; (d) Feedback (as defined in Section 9 below), and (e) all intellectual property rights related to any of the foregoing.  The name “AQUAOSO” and other Company marks, logos, and designs are trademarks, service marks, or trade dress of Company, and no right or license is granted to use them under this Agreement.

(d)       Notwithstanding anything to the contrary, Company shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and  Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.  No rights or licenses are granted except as expressly set forth herein.

4. Payment of Fees.

(a)        Customer will pay Company the fees, costs, and expenses described in the Order Form (the “Fees”).  All Fees are non-cancelable and non-refundable.  All Fees shall be paid by Customer to Company in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable law).

(b)       Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term (defined in the Order Form) or then current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email).

(c)        Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company ten (10) days after the mailing date of the invoice.  Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection, and may result in immediate termination of the Services.

(d)       All amounts due under this Agreement are quoted and shall be paid in US dollars.  The Fees do not include taxes.  Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.

5. Term and Termination.

(a)        Subject to earlier termination as provided below, this Agreement is for the Initial Service Term through December 31, 2018.

(b)       In addition to any other remedies it may have, either Party may also terminate this Agreement if the other Party (i) materially breaches any of the terms or conditions of this Agreement and fails to cure such breach within thirty (30) days of receiving written notice requiring it to do so, or (ii) ceases to do business, becomes or is deemed insolvent, has a receiver or examiner appointed in respect of the whole or any part of its assets or business enters into liquidation whether compulsorily or voluntarily, or if justifiable doubts exist as to solvency of the other Party.

(c)        Upon termination for any reason, Customer shall immediately cease all use of any Services, and at the request of Company, return to Company or destroy all documents and materials containing Company’s Proprietary Information.  If the Agreement is terminated by Company pursuant to Section 5(b), all fees due by Customer for the term are accelerated and immediately due.  If the Agreement is terminated for any other reason, except as otherwise provided for in the Order Form, Customer will pay in full for the Services up to and including the last day on which the Services are provided.

(d)       All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

 

6. Warranty and Disclaimer. Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services.  The Services will be performed in a professional, workman-like manner.  The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.  EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES.

 

7. Indemnity.

 

(a)        Company Indemnification.  Company shall defend, indemnify and hold Customer harmless from and against any and all claims, suits, damages, liabilities, costs and expenses (including reasonable attorneys’ fees) arising out of or resulting from any claim that Customer’s use of the Services or Software infringes a United States patent, copyright, or trademark or misappropriates a trade secret of any third party, provided Company is promptly notified of any and all threats, claims and proceedings related thereto.  In the event that the Services or Software, or any portion thereof, becomes the subject of a claim of infringement or misappropriation, Company shall, at its expense and at no cost or expense to Customer, take any of the following steps so that Customer’s use is not subject to any claim of infringement or misappropriation and Customer is provided with functionally equivalent software, provided that Customer’s use of the Services conforms with the provisions of this Agreement:  (i) procure for Customer the right to continue using the Services, or (ii) replace or modify the infringing portion of the Services or Software.  The foregoing obligations of Company do not apply with respect to Services or Software which are modified by Customer, if the alleged infringements relates to such modification, or which are combined with other products, processes or materials where the alleged infringement related to such combination.  THE FOREGOING STATES COMPANY’S ENTIRE LIABILITY WITH RESPECT TO INFRINGEMENT OF ANY PATENTS, COPYRIGHTS, TRADEMARKS OR MISAPPROPRIATION OF TRADE SECRETS BY THE SERVICES, SOFTWARE, OR ANY PARTS THEREOF.  NO COSTS OR EXPENSES SHALL BE INCURRED FOR THE ACCOUNT OF COMPANY BY CUSTOMER OR ITS AGENTS IN CONNECTION WITH ANY INFRINGEMENT WITHOUT THE PRIOR CONSENT OF COMPANY.

 

(b)       Customer Indemnification.  Customer shall defend, indemnify and hold Company and its affiliates, and each of their members, managers, officers, directors, shareholders, employees, contractors, agents and representatives harmless from and against any and all claims, suits, damages, liabilities, costs and expenses (including reasonable attorneys’ fees) arising out of or resulting from (i) Customer Data, including claims that the Customer Data infringes intellectual property rights of third parties, (ii) violation of this Agreement or applicable law, or (iii) Customer’s use of the Services or Software.

 

8. Limitation of Liability. COMPANY AND ITS AFFILIATES AND EACH OF THEIR MEMBERS, MANAGERS, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS, AGENTS AND REPRESENTATIVES SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES RESULTING FROM THE USE, OR INABILITY TO USE, THE SERVICES OR SOFTWARE, OR ARISING OUT OF THIS AGREEMENT, CUSTOMER SHALL NOT BE ENTITLED OT DAMAGES BASED ON LOSS OF PROFIT, LOSS OR INTERRUPTION OF DATA OR COMPUTER TIME, ALTERATION OR ERRONEOUS TRANSMISSION OF DATA, EVEN IF COMPANY IS ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES OR SHOULD HAVE KNOWN OR FORESEEN SUCH POSSIBILITY.  NOTWITHSTANDING ANYTHING TO THE CONTRARY,  COMPANY AND ITS AFFILIATES AND EACH OF THEIR MEMBERS, MANAGERS, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS, AGENTS AND REPRESENTATIVES TOTAL LIABILITY FOR ANY AND ALL CLAIMS, LOSSES, OR DAMAGES RELATING TO THE SOFTWARE, SERVICES, OR THIS AGREEMENT, (WHETHER BASED ON TORT, CONTRACT, OR ANY OTHER THEORY) SHALL BE LIMITED TO THE AMOUNT PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY.

 

9. Beta Services of Trial. The terms of this Section shall apply to Customer with respect to any beta features, functionality or services (the “Beta Services”) made available to Customer by Company for purposes of evaluation and feedback.  Beta Services may be used by Customer at its sole election and shall be identified as beta in the Services.  Customer acknowledge that the Beta Services being evaluated may contain bugs, errors and/or other problems and is provided to Customer “AS IS, WITH NO WARRANTIES.”  Therefore, Company disclaims any and all warranty, indemnification, security, data back-up, support and liability obligations to Customer of any kind with respect to the Beta Services.  Company does not guarantee the availability of the Beta Services.  Customer also hereby acknowledge that Company has not made any representations or guarantees that the Beta Services will ever be announced or made generally available to anyone in the future and that Company has no express or implied obligation to Customer to announce the Beta Services or make it generally available.  As part of Customer’s use of the Services, including the Beta Services and as reasonably requested by Company, Customer agrees to give feedback, comments and suggestions (“Feedback”) to Company about the Services and Beta Services.  Customer hereby assigned all right, title, and interest in and to the Feedback to Company.  With respect to the Beta Services, this Section shall supersede any other conflicting terms and conditions of this Agreement or otherwise agreed to between Customer and Company.  If Customer is using a beta trial version of the Services, (i) the terms of this Section shall apply, and (ii) Company may stop providing the Services to Customer at Company’s sole discretion, without any prior notice.

 

10. Governing Law; Venue. This Agreement shall be deemed to have been made in, and be construed pursuant to the laws of the State of California and the United States without regard to conflicts of laws provisions thereof.  Any dispute not resolved by negotiation between the Parties shall be submitted to the exclusive jurisdiction of the state and federal courts located in Placer County, California.  Both Parties agree that such courts shall be a proper place for venue in connection with any litigation initiated hereunder.  Each Party consents to and waives any objection to venue and jurisdiction in the state and federal courts located in Placer County, California.

 

11. Amendments; Waiver. This Agreement may only be changed or modified by a written agreement duly signed by authorized representatives of both Parties.  Any waiver of any provision of this Agreement shall be effective only if made in writing and signed by a duly authorized representative of the waiving Party.

 

12. Force Majeure. Except for Customer’s payment obligations under this Agreement, neither Party shall be deemed to have breached this Agreement by reason of any delay or failure in its performance arising from events beyond its reasonable control, including, but not limited to, acts of God, acts of war, riot, epidemic, fire, flood or other disasters.

 

13. Notice. Any notice, report, approval or consent required or permitted hereunder shall be delivered in writing, or mailed by registered or certified US mail, postage prepaid or reputable overnight carrier (e.g. Federal Express) to the address for Company set forth below and to the address for Customer set forth in the Order Form, or such other address as a Party may designate by ten (10) days written notice delivered in accordance with this Section and shall be deemed given upon receipt.

 

If to Company:

AQUAOSO Technologies, PBC.

604 Sutter Street, Suite 280

Folsom, California 95630

 

14. Assignment. Customer shall not assign or transfer, or purport to assign or transfer, any of its rights or obligations under this Agreement without the prior written consent of Company. Except as set forth in this Section, this Agreement shall be binding upon and shall inure to the benefit of the successors and permitted assigns of the respective Parties hereto.

 

15. Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.

 

16. Severability. If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

 

17. Further Assurances. Upon a Party’s reasonable request, the other party shall, at the requesting Party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to this Agreement.

 

18. Relationship of the Parties; No Third Party Beneficiaries; Nonexclusively. The relationship between the Parties is that of independent contractors.  Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.  This Agreement is for the sole benefit of the Parties hereto and their successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.  This Agreement is nonexclusive, and Company and Customer may contract with other entities to perform related services.

 

19. Attorney Fees. The prevailing Party in an action brought against the other to enforce the terms of this Agreement or any rights or obligations hereunder, shall be entitled to receive its reasonable attorney fees and costs.

 

20. Entire Agreement. This Agreement, together with the Website Terms, Order Form, attachments and other documents incorporated herein by reference, is the complete and exclusive statement of the mutual understanding of the Parties and shall and does supersede and cancel all previous written and oral agreements and communications relating to the subject matter of this Agreement.