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”).
1. DEFINITIONS. Capitalized terms shall have definitions assigned to them in this MSA.
2.1 Orders. Customer shall utilize Aquicore provided physical or online forms (each, an “Order Form”) that references: this Agreement, the Customer, the Services ordered by the Customer, applicable fees, and (if applicable) the Property where the Aquicore Services will be made available. By both Aquicore and Customer executing one or more Order Form(s) that reference this Agreement, Aquicore and Customer each hereby represents to the other that the individual signing this Agreement on its behalf has the authority to bind it to these terms and conditions. The terms of this Agreement will govern unless the applicable Order Form expressly states otherwise.
3. SUBSCRIPTION SOFTWARE
3.1 License to the Subscription. Aquicore grants You a revocable, non-exclusive, non-transferable licenses to use Aquicore’s proprietary and web-based software platform, including 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”).
3.2 License Restrictions. You, Your affiliates, and third parties under Your 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.
3.3 Equipment Obligation. Depending on your intended use of the Subscription Service, You 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 you are uncertain that you have the requisite skills and understanding, you agree to (i) consult with a qualified installer. Customer assumes any and all liability arising from any equipment installation, including, without limitation, liability arising from personal injury to Customer’s employees and third parties.
3.4 Ownership. Aquicore reserves all rights, titles and interest in and to the software associated with the Subscription Service provided, including all related intellectual property rights.
3.5 Ownership and Use of Data. You retain all right, title and interest to the data submitted by You, or collected by Aquicore on Your behalf, in the performance of the Subscription Services (hereinafter “Your Data”). Aquicore neither owns nor acquires any rights to Your Data that are not expressly granted by this Agreement. Subject to the foregoing, Customer hereby grants to Aquicore a non-exclusive, non-transferable license: (a) to use Your Data during the Term for the purposes of performing Aquicore’s obligations under this Agreement; and (b) on a perpetual basis, to use, copy, display, disclose, modify, and distribute Your Data on an anonymous basis, to create, compile, or aggregate data and/or statistics for Aquicore’s business purposes and performing its obligations to You. Customer represents and warrants that it has all necessary rights to provide Your Data
3.6 Data Portability and Deletion. You may export your Your Data at any time through the export features of the Subscription Service or our provided API. If this Agreement is terminated or expires your Your 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 Your Data and it may be immediately deleted unless legally prohibited.
3.7 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 Customer or third party technology issues.
3.8 Your Responsibilities. Aquicore’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 You 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. You will notify Aquicore promptly and in writing of any unauthorized access or use of our Subscription Service occurs.
3.9 Our Responsibilities. Aquicore will (a) make the Subscription Service available to You pursuant to this Agreement and the applicable Order Forms, (b) provide applicable and standard support for the Subscription Services to You at no additional charge and (c) maintain industry standard administrative, physical, and technical safeguards for the protection security, confidentiality and integrity of Your Data.
4.1 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 hardware.
4.2 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. You will be responsible for any damage to Purchased Equipment other than normal and reasonable wear and tear and any defects covered by Section 3.1 above.
4.3 Equipment Warranty Conditions. To make a claim under the Equipment Warranty set forth in Section 3.1 above, the Customer must (a) notify Aquicore of the intention to make a claim by emailing us at email@example.com 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.
4.4 Equipment Care. You agree to: (i) take reasonable commercial effort to maintain all Purchased Equipment or Third-Party Equipment to enable the collection of Your 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.
4.5 No Modifications. Customer shall not permit any third party to modify or make adjustments to the Purchased Equipment. You, Your affiliates, and third parties under Your 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 Equipment.
4.6 Title Transfer. Title to Purchased Equipment passes to the Customer at the time of delivery by Aquicore to a commercial carrier for shipment or upon delivery to Customer 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 You.
5.1 Fees. You 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.
5.2 Taxes. 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 You with the appropriate Tax amount due, and You will pay that amount unless You provide Aquicore with a valid tax exemption certificate authorized by the appropriate taxing authority.
6. TERM AND TERMINATION
6.1 Term. This Agreement commences on the Effective Date and continues until the expiration of the last active Order Form, or until terminated earlier as provided in these Terms. This Agreement will renew for additional periods equal to the expiring subscription term, unless Customer notifies Aquicore of non-renewal at least (30) days prior to the subscription term. Any increases in the per-unit Fees during any renewal term shall not exceed five percent (5%) of the then-current Fees.
6.2 Termination. Upon any termination or expiration of this Agreement, all licenses and rights granted hereunder shall immediately terminate. Aquicore or Customer may terminate this Agreement 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.
6.3 Suspension. Aquicore may suspend the Subscription Service of the Customer If Customer 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. Aquicore shall resume Subscription Services upon receipt of the undisputed amounts due.
6.4 Surviving Provisions. The obligations of the parties stated in Sections 5, 6, 7, 8, 9, 10 will survive any termination of this Agreement.
7.1 Confidential Information. The both parties agree to not share certain information including, but not limited to, this Agreement, all Order Forms, pricing, business strategies, inventions, processes, formulas, technologies, Customer Data, finances or other nonpublic information that should be confidential given the nature of the information (hereinafter “Confidential Information”). Both parties agree to (i) restrict access to Confidential Information to any third party agents agents consultants or users who are not considered Authorized Users. Notwithstanding the foregoing, the 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.
8. INDEMNIFICATION AND LIMITATION OF LIABILITY
8.1 Indemnity. You agree 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 8.
8.2 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.
8.3 Exclusion of Consequential and 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.
9. GENERAL PROVISIONS
9.1 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety without the other party’s consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
9.2 Order of Precedence. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) The applicable Order Form and (2) This Agreement.
9.3 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
9.4 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.
9.5 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.
9.6 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.
9.7 Mutual Representation. Each party represents that it has full authority to enter into this Agreement.
9.8 Publicity. You hereby grant Aquicore permission to use your company name and logo on our website, customer lists, and marketing materials to list you as a Customer. However, Aquicore will not use your name, trademarks, or logos in any other way without your prior consent.
9.9 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.