TERMS OF SERVICE
The following Terms of Service (the “Agreement”), along with related Order Forms govern the use of Aquicore, Inc. (“Aquicore”) products and services between Aquicore and your organization (“Customer”, “You”, “Your”), or one or more of its affiliates (each such property’s owner referred to herein as a “Owner”, “You”, “Your”). Each deployment in which Aquicore engages in accordance with this Agreement shall be referred to herein as an “Order”.
BY USING THE SERVICES AND/OR CLICKING “AGREE”, YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT. IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF OR FOR THE BENEFIT OF YOUR EMPLOYER, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY AUTHORITY TO AGREE TO THIS AGREEMENT ON YOUR EMPLOYER’S BEHALF AND TO BIND YOUR EMPLOYER TO THIS AGREEMENT.
1. DEFINITIONS. Capitalized terms shall have definitions assigned to them in this Agreement.
2. ORDERING. Each Order shall be initiated by an individual form prepared and distributed by Aquicore and executed by the applicable Customer or Owner (each, an “Order Form”) in the form of Exhibit A, that shall set forth the following: (i) services to be provided, (ii) service term (“Term”), if applicable, (ii) price to be paid to Aquicore (iv) party representatives for the Order, and (v) any other relevant information. Order Term will renew for additional periods equal to the expiring subscription term, unless Customer or Owner notifies Aquicore of non-renewal at least (30) days prior to the subscription term.
3. FEES. Customer will pay Aquicore the fees specified on each Order Form (“Fees”). Payments are due within thirty (30) days of receipt of the invoice from Aquicore. Any amount that is not paid when due will accrue interest at one percent (1%) per month or the maximum rate permitted by applicable law, whichever is less. Aquicore Fees do not include any taxes, levies, duties or similar governmental assessments of any nature. Aquicore will calculate and charge any sales tax in accordance with applicable laws of the Order Form(s). Aquicore will invoice the Customer with the appropriate Tax amount due, and the Customer will pay that amount unless Customer provides Aquicore with a valid tax exemption certificate authorized by the appropriate taxing authority.
4. ASSIGNMENT OF ORDERS. This Agreement may only be modified by a subsequent writing executed by duly-authorized representatives of both parties hereto which expressly states that it is a modification of this Agreement. Under no circumstances shall any Order Form be treated as part of an integrated agreement, or of a set of integrated agreements, with this Agreement, nor shall this Agreement be treated as part of an integrated agreement, or of a set of integrated agreements, with any Order. For the avoidance of doubt, in the event of a sale or disposal of an Owner by Customer or its affiliates, such Owner may freely assign any Order it is party to and, upon such assignment, the Order shall remain in full force and effect in accordance with the provisions thereof. Further, upon the request of such Owner or its successor, Aquicore shall execute in such form as reasonably prepared and provided by Owner, a restatement of the assigned Order that deletes all separate reference to this Agreement but includes the terms and conditions hereof directly.
5. SUBSCRIPTION SOFTWARE
5.1 License to the Subscription. Aquicore grants Owner a revocable, non-exclusive, non-transferable license to use Aquicore’s proprietary and web-based software platform, including its features, functionality, integrations, and such other services solely subject to the terms of the applicable Order Form and the terms of this Agreement (hereinafter the “Subscription Service”).
5.2 License Restrictions. Owner, its affiliates, and third parties under Owner control will not: (a) decompile, disassemble, reverse engineer, attempt to obtain or determine the source code of any software component of the Subscription Service; (b) attempt to reconstruct or create any derivative products from any of the Subscription Service; (c) allow third parties to gain access to the Subscription Service.
5.3 Equipment Obligation. Depending on your intended use of the Subscription Service, Owner may require correctly installed and configured equipment either (i) from Aquicore (hereinafter “Purchased Equipment”) or (ii) by a third party which Aquicore approves as capable of interoperating with the Subscription Service (hereinafter “Third-Party Equipment”). If Owner is uncertain that they have the requisite skills and understanding to install Purchased Equipment, Owner agrees to consult with a qualified installer. Owner assumes any and all liability arising from any equipment installation by a party other than Aquicore, including, without limitation, liability arising from personal injury to Owner’s employees and third parties.
5.4 Software Ownership. No rights are granted to Owner hereunder other than as expressly set forth herein. Aquicore reserves all rights, titles and interest in and to the software associated with the Subscription Service provided, including all related intellectual property rights.
5.5 Ownership and Use of Data. Owner retains all right, title and interest to the data submitted by Owner, or collected by Aquicore on Owner’s behalf, in the performance of the Subscription Services (hereinafter “Owner Data”). Aquicore neither owns nor acquires any rights to Owner Data that are not expressly granted by this Agreement. Subject to the foregoing, Owner hereby grants to Aquicore a non-exclusive, non-transferable license to use, copy, display, modify, compile, aggregate, or generate statistics of Owner Data for the purposes of performing Aquicore’s obligations under this Agreement. Owner represents and warrants that it has all necessary rights to provide Owner Data
5.6 Data Portability and Deletion. Owner may export Owner Data at any time through the export features of the Subscription Service or Aquicore’s provided API. If this Agreement or an Order is terminated or expires Owner Data will be available for export for up to 30 days after the effective date of termination of this Agreement. After this period, Aquicore will have no obligation to maintain Owner Data and it may be immediately deleted unless legally prohibited.
5.7 Warranties. Aquicore warrants that functionality, features, and support provided for the Subscription Services may change but will not materially decrease during the term of this Agreement. Aquicore warrants that it will maintain the online availability of the Subscription Service at all times except for: (i) scheduled and emergency maintenance, (ii) any unavailability caused by circumstances beyond reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Aquicore employees), Internet service provider failure or delay or denial of service attack, (iii) outages that result from Owner or third party technology issues.
5.8 Customer Responsibilities. Owner’s license is subject to (a) all users granted permission to access the Subscription Service (hereinafter “Authorized Users”) to remain in compliance with this Agreement, applicable Order Forms, and applicable laws and government regulations; (b) not allowing unauthorized access to the Subscription Service. Any use of the Subscription Service by Owner or Authorized Users that is in breach of this Agreement and its associated Order Forms and that, in Aquicore’s judgment, threatens the security, integrity or availability of the Subscription Service may result in the immediate suspension of the Subscription Service. Owner will notify Aquicore promptly and in writing when it becomes aware of any unauthorized access or use of our Subscription Service.
5.9 Aquicore Responsibilities. Aquicore will (a) make the Subscription Service available to Owner pursuant to this Agreement and the applicable Order Forms, (b) provide applicable and standard support for the Subscription Services to Owner at no additional charge and (c) maintain industry standard administrative, physical, and technical safeguards for the protection security, confidentiality and integrity of Owner Data.
6.1 Equipment Warranty. Aquicore warrants that all Purchased Equipment shall be free from defects in materials and workmanship for one (1) year from the date of delivery following the original purchase date (the “Equipment Warranty Period”). If the Purchased Equipment fails to conform to this Equipment Warranty during the Equipment Warranty Period, Aquicore shall, at its election, either (a) repair or replace any defective hardware component at Aquicore’s sole expense, or (b) accept the return of the Purchased Equipment and refund the money actually paid by the original purchaser for the Purchased Equipment.
6.2 Equipment Warranty Exclusions. The Equipment Warranty does not cover the following (collectively “Ineligible Equipment”) Purchased Equipment that was subject to: (a) any modifications, alterations, tampering, or improper maintenance or repairs, handling, storage, installation, testing, or other use that was not in accordance with the installation guide or other instructions provided by Aquicore; or (b) acts of God including but not limited to lightning, flood, tornado, earthquake, or hurricane. Owner will be responsible for any damage to Purchased Equipment other than normal and reasonable wear and tear and any defects covered by Section 6.1 above.
6.3 Equipment Warranty Conditions. To make a claim under the Equipment Warranty set forth in Section 3.1 above, the Owner must (a) notify Aquicore of the intention to make a claim by emailing us at firstname.lastname@example.org during the Warranty Period and (b) comply with any Aquicore return shipping instructions, if applicable. Aquicore will have no warranty obligations with respect to returned Purchased Equipment if it determines, in its reasonable discretion after examination, that the Purchased Equipment is Ineligible Equipment.
6.4 Equipment Care. Owner agrees to take reasonable commercial effort to maintain all Purchased Equipment or Third-Party Equipment to enable the collection of Owner Data for the Subscription Service and be in compliance with all applicable laws. In the event any Purchased Equipment or Third-Party Equipment no longer meets the specifications provided by Aquicore for any reason, select features of the Subscription Service may no longer function properly and Aquicore will have no responsibility for any such failure and Aquicore will provide no abatement of Subscription Service fees for such an interruption.
6.5 No Modifications. Owner shall not permit any third party to modify or make adjustments to the Purchased Equipment. Owner, Owner affiliates, and third parties under Owner control will not: (a) disassemble, reverse engineer or otherwise attempt to reconstruct any component of installed Purchased Equipment; (b) create any derivative products from any of installed Purchased Equipment; or (c) allow third parties other than Authorized Users to gain access to installed Purchased Equipment.
6.6 Title Transfer. Title to Purchased Equipment passes to the Owner at the time of delivery by Aquicore to a commercial carrier for shipment or upon delivery to Owner if delivered by Aquicore directly; provided however, that Aquicore and/or the commercial carrier will be responsible for any product loss or damage that occurs while the Purchased Equipment is in transit to Owner.
7. TERMINATION AND SUSPENSION. Aquicore or Owner may terminate an Order for cause upon thirty (30) days written notice to the other party of a breach of this Agreement and if such breach remains uncured at the expiration of such notice period. Aquicore may suspend the Subscription Service of the Owner if Owner fails to pay undisputed amounts when due in accordance with this Agreement if said failure has existed for ninety (90) days past the applicable due date.
8. CONFIDENTIALITY. Both parties agree to not share certain information including, but not limited to, this Agreement, all Order Forms, pricing, business strategies, inventions, processes, formulas, technology, Owner Data, finances or other nonpublic information that should be confidential given the nature of the information (hereinafter “Confidential Information”). Both parties agree to restrict access to Confidential Information to any third party agents, consultants or users who are not considered Authorized Users. Notwithstanding the foregoing, confidentiality will not apply to Confidential Information that: (i) is publicly available or (ii) becomes publicly available through no fault of the recipient. Each party may disclose Confidential Information to the extent that the party is compelled by law and that party making the disclosure shall first notify the other party and give reasonable assistance to the other party in the event that it wishes to obtain a protective order or other remedy.
9. AQUICORE INDEMNIFICATION. Aquicore will defend, indemnify and hold harmless Customer and their respective officers, directors, agents, contractors and employees (collectively referred to as the “Indemnitees”), against and from any and all allegations, demands, claims, liabilities, damages, or costs of any kind (including reasonable attorneys’ fees), whether or not occurring during the Term (“Claims”), arising out of or in any way connected with (a) Aquicore’s breach of this Agreement or any Order, (b) Aquicore’s negligence or willful misconduct, or (c) Aquicore’s actual or alleged infringement of the rights of any person, including without limitation, copyright, patent, trade secret, trademark, privacy, publicity or other intellectual property laws. Any Indemnitees against whom a Claim has been made may, by notice to Aquicore, require Aquicore to defend the Claim at Aquicore’s own expense and to reimburse the Indemnitees any amounts paid or payable, including reasonable attorney fees and costs.
10. CUSTOMER INDEMNIFICATION. Customer agrees to defend, indemnify and hold Aquicore and its licensors and suppliers harmless for any damages, liabilities, claims or demands (including costs and attorneys’ fees) made by any third party due to or arising out of (i) your use of the Subscription Services (ii) your violation of this Agreement or Order Form(s), (iii) your violation of any law or the rights of any third party. Aquicore reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Aquicore and you agree to cooperate with our defense of such claims. You agree not to settle any such claim without Aquicore’s prior written consent. Aquicore will notify you of any such claim, action, or proceeding upon becoming aware of it. This Section states the indemnifying party’s sole liability to and the indemnified party’s exclusive remedy against the other party for any type of claim described in this Section 11.
11. LIMITATION OF LIABILITY. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY FOR DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT YOUR OR YOUR AFFILIATES PAYMENT OBLIGATIONS UNDER THE “FEES” SECTION ABOVE.
12. EXCLUSION OF CONSEQUENTIAL DAMAGES. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, COSTS OF DELAY, COST OF LOST OR DAMAGED DATA, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
13. GENERAL PROVISIONS
13.1 Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS
13.2 U.S. Government Restricted Rights. The Subscription Services are deemed to be “commercial computer software” and “commercial computer software documentation,” pursuant to DFAR Section 227.7202 and 252.227-7014(a)(1) and FAR Sections 12.211 and 12.212(b), respectively, as applicable, and any successors thereto. Any use, modification, reproduction, release, performance, display, or disclosure of the Subscription Service by the U.S. Government shall be governed solely by the terms of this Agreement.
13.3 Governing Law. This Agreement and the rights and obligations of the parties hereunder shall be construed in accordance with, and shall be governed by, the laws of the State of Delaware, without giving effect to its rules regarding conflicts of laws.
13.4 Surviving Provisions. The obligations of the parties stated in Sections 4, 6, 7, 8, 9, 10 will survive any termination of this Agreement.
13.5 Miscellaneous. This Agreement together with any fully executed Order Form(s) (i) covers the parties’ entire Agreement, and supersedes all prior discussions and writings between them, relating to this Agreement’s subject matter; (ii) will be binding upon and inure to the benefit of the parties, their successors and permitted assigns and (iii) creates no agency, partnership or employer-employee relationship. If any provision in the Agreement is held by a court of competent jurisdiction to be invalid, illegal, or otherwise unenforceable the remainder of this Agreement will remain in full force and effect. No failure or delay by a party in enforcing any terms or conditions of this Agreement shall be construed as a waiver of any of its rights under it. No changes to this Agreement will be effective unless in writing, signed by both parties.
13.6 Mutual Representation. Each party represents that it has full authority to enter into this Agreement.
13.7 Publicity. Aquicore will not use Customer or Owner name, trademarks, or logos in any way without your prior consent.
13.8 Notices. Notices may be delivered in person, by physical mail, or electronic mail and shall be deemed delivered upon (a) personal delivery in the case of personal delivery (b) the second business day after mailing, in the case of notices delivered by physical mail or (c) upon the day of sending in the case of electronic mail. Notwithstanding the foregoing, notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices.
13.9 Counterparts. This Agreement may be executed in counterparts and exchanged electronically, by facsimile or electronically scanned copy. Each such counterpart will be deemed to be an original and all such counterparts together will constitute one and the same Agreement.