Understand Your Subscription Agreement with Aquasight.io

AQUASIGHT SUBSCRIPTION AGREEMENT

This Aquasight Subscription Agreement (“Agreement”) is a binding legal contract between your employer or other entity on whose behalf you accept the terms of this Agreement (Customer) and Aquasight, LLC (Aquasight). By accessing or using the Software or Services, as defined below, Customer will be bound by the terms of this Agreement.

Additionally, by accepting the terms of this Agreement you agree to be bound individually to the use restrictions and limitations, and confidentiality obligations set forth in this Agreement.

 

A. DEFINITIONS

Defined terms, as used in this Agreement, have the meanings set forth in this Section, elsewhere in the body of this Agreement, in exhibits and in any other attachment to this Agreement.

1. “Data” means information, content and other data that may be exchanged electronically between Customer and Aquasight.
2. “Documentation” means the user manuals and/or technical publications as applicable, supplied in connection with Software relating to the installation, use and administration of Software.
3. “Services” means on-boarding, implementation, initial deployment, maintenance, administration, subscription, technical, training, consulting, support and other professional services provided in connection with or otherwise associated with Software as described in an Order Form.
4. “Software” means the proprietary software and platform employed by Aquasight to deliver Services and its associated technology (if applicable), and any modified versions and copies of, and upgrades, updates and additions to Software, provided to Customer by Aquasight, including Software and access thereto provided on a Software as a Service (SaaS)

B. LICENSE GRANT AND PROVIDER RESPONSIBILITIES

1. Hosting and Software Aquasight agrees to provide the hosting services described herein and as may be set forth in more detail in the applicable Order Form, including the right of Customer to access, view, download, transmit and use all data transmitted by Customer or Customer’s systems and facilities to Aquasight (“Customer Data”) hosted by Aquasight. Aquasight hereby grants Customer a non-exclusive, non-transferable, worldwide right to use and access the Software solely for Customer’s own internal business purposes, subject to the terms and conditions of this Agreement and provided that all fees due and payable under this Agreement have been paid by Customer to Aquasight. Only employees of Customer properly authorized by Customer for the performance of their job responsibility
2. (“Authorized Users”) for Customer shall be entitled to access and use the Software. Only the number of Authorized Users indicated on the Order Form are permitted to access and use the Software. The Software may be hosted on hardware owned, operated and managed by Aquasight’s third party service providers. Upon Customer’s request, Aquasight shall provide reasonable information to Customer with respect to Aquasight’s third party hosting services provider. Aquasight shall have the right to modify the Software in its sole discretion, provided that Aquasight shall not materially diminish the performance or functionality of the Software without Customer’s prior written consent.
3. Data Security. Aquasight will maintain and enforce information and data privacy and security procedures with respect to its access, use and storage of all Customer Data that (a) are at least equal to industry standards taking into consideration the sensitivity of the relevant Customer Data, (b) comply with all applicable international, foreign, federal, state and local laws, statutes, rules, orders and regulations, and (c) provide reasonably appropriate administrative, technical, and physical safeguards to protect against accidental or unlawful destruction, loss, alteration or unauthorized disclosure, access or use of Customer Data.

C. CUSTOMER RESPONSIBILITIES

1. Compliance with Laws. Customer is responsible for all activity occurring under any applicable user accounts and Customer shall abide by all applicable local, state, federal and foreign laws, treaties and regulations in connection with Customer’s use of the Services and Software, including those related to data privacy, international communications and the transmission of technical or personal data.
2. Customer Data. Customer is solely responsible for the quality of the data transmitted to Aquasight or otherwise processed by the Customer acknowledges that the quality of the results and analytics provided by the Software is a function of the quality of Customer’s data, and that inaccurate or erroneous data can lead to inaccurate or erroneous results. Aquasight cannot and does not guarantee the quality of any data provided by Customer. Aquasight retains real-time collected data for a period of one year, and all analyzed data results for the life of the Subscription Term.
3. Customer Equipment and Connectivity. Customer is solely responsible for the equipment used by Customer in connection with the Software, including without limitation the calibration of all sensors and equipment data being collected, and Customer’s connectivity to the Aquasight system and Software. Aquasight will not be liable or responsible for any delays, inaccuracies or unavailable resulting from a disruption or interruption of connectivity and data communication to the Aquasight system and Software.
4. Use of the Software and Results. Customer acknowledges and agrees (a) it will verify and validate with its engineering staff any changes that Customer proposes to make to its systems or facilities based on intelligence from the Aquasight system and Software, and (b) the Aquasight system and Software does not control Customer’s systems or facilities, but rather assist Customer with the efficiencies associated with the operation of Customer’s system and facilities.

5. Design Information and Configuration. Customer acknowledges and agrees that the Aquasight system and Software are configured based on the preliminary design information provided by Customer. In the event of any changes or modifications to the design information relating to Customer’s systems or facilities, Customer will promptly notify Aquasight of such changes or modifications. Aquasight will adapt the configuration of the Aquasight system and Software to the new design conditions pursuant to a separate Statement of Work to be mutually agreed to by the parties.
6. License to Use Customer Data. Customer grants Aquasight (i) a non-exclusive, non-transferable (except as permitted herein), royalty-free, perpetual and fully paid license to use, reproduce, modify and transmit Data provided by Customer for the purpose of performing the Services, and (ii) a non-exclusive, non-transferable (except as permitted herein), perpetual, royalty-free, fully-paid license to use, reproduce, display, modify, create derivative works of, disclose and distribute any usage data derived by Aquasight from the provision of Services to Customer (“Usage Data”) for the purpose of performing the Services and providing the Software listed in the applicable Order Form, including improving Software and the Services, provided that the Usage Data is disclosed in an aggregate form.

D. TERM AND TERMINATION

1. Term. The initial subscription term of this Agreement shall commence as of the date set forth on the applicable Order Form and shall continue for the Subscription Term set forth in the applicable Order Form (the “Initial Subscription Term”). Thereafter, this Agreement shall automatically renew for successive renewal terms of one (1) year each unless: (i) either Party provides written notice of its intention not to renew at least 90 calendar days prior to the expiration of the then-current term; or (ii) the Agreement is terminated in accordance with this Section D.
2. Termination for Either Party may terminate this Agreement with thirty (30) calendar days prior written notice in the event that the other Party has failed to comply with any material term, condition, or obligation of this Agreement, and such Party subsequently has failed to remedy the default within thirty (30) calendar days after notice of the default by the non-defaulting Party.
3. Effect of Termination. Promptly upon termination or expiration of this Agreement for any reason, Customer shall cease using and accessing the Termination of this Agreement shall be in addition to and not in limitation of any other rights and remedies to which either Party is or may become entitled. In the event of termination or expiration of this Agreement for any reason, Aquasight will provide Customer Data to Customer pursuant to a separate Statement of Work to be mutually agreed to by the parties. Aquasight will retain a copy of Customer Data (real-time data) for a period of one year after termination or expiration of this Agreement. After the expiration of the one year period, Aquasight shall have the right to delete and destroy all Customer Data without notice to Customer.

E. FEES AND CHARGES

1. Fees. Customer shall pay all fees or charges in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. The initial fees and charges, and the applicable fees for renewal terms are described in the applicable Order Unless otherwise agreed in writing by the parties, all fees and charges are due and payable thirty (30) days after receipt of invoice by Customer. Aquasight shall be entitled to charge interest on overdue unpaid fees due hereunder at the rate of the lesser of (a) 12% per year or (b) the highest amount permitted by applicable law.
2. Customer agrees to pay any sales, value-added, or other similar taxes imposed by applicable law that Aquasight must pay based on Software or the Services, except for taxes based on Aquasight’s income. Fees listed in the applicable Order Form are exclusive of taxes. Notwithstanding the foregoing, if Customer is exempt from the payment of such taxes, Customer shall provide Aquasight with documentary proof of exemption issued by the appropriate taxing authorities.

F. OWNERSHIP

1. Aquasight IP. All right, title and interest in and to Software and all portions thereof, including the look and feel of the Software, visualizations displayed by the Software, and all other intellectual property rights therein, are and shall remain with Aquasight and its suppliers. Customer understands and agrees that all intellectual property rights, and all rights incident thereto, are and shall remain in Aquasight including all applicable rights to: (i) copyrights, including all rights incident to copyright ownership, such as all rights of publication, registration and rights to create derivative works; (ii) patents; (iii) trademarks; and (iv) trade secrets (including all know-how, ideas, logic, formulas and confidential information embodied in or reflected in Software).
2. Customer IP. All right, title and interest in and to Data provided by Customer, and all related information provided to and accessed by Aquasight, including all intellectual property rights therein, are and shall remain with Customer.

G. WARRANTY AND LIMITATION OF LIABILITY

1. Legal Authority. Each Party represents and warrants to the other Party that: (i) such Party is a corporation duly organized, validly existing and in good standing under the laws of the state of its incorporation; (ii) such Party has the full and unrestricted power and authority to execute and deliver this Agreement and to carry out the transactions contemplated hereby; and (iii) the performance of such Party’s obligations and duties hereunder does not and shall not conflict with or result in a breach of any other agreement of such Party or any judgment, order, or decree by which such Party is bound.
2. Customer Data. Customer represents and warrants that it is the right and authority to provide all Customer Data and software to be hosted by Aquasight hereunder, and that all such Customer Data and software shall be free from viruses, spyware, and other similar harmful and destructive code.
3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SOFTWARE AND THE SERVICES ARE PROVIDED TO CUSTOMER IN THEIR THEN-EXISTING CONDITION, AS IS, WHERE IS AND WITH ALL FAULTS. EXCEPT FOR THE FOREGOING LIMITED WARRANTIES, PROVIDER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY, QUIET ENJOYMENT, SATISFACTORY QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE. PROVIDER DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE OR ANY SERVICES WILL BE SECURE, UNINTERRUPTED, OR ERROR FREE, OR MEET CUSTOMER’S EXPECTATIONS, THAT ANY STORED DATA WILL BE ACCURATE OR COMPLETE, OR THAT ANY ERRORS OR DEFECTS IN SOFTWARE WILL BE CORRECTED.
4. Limitation of Liability. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY LOST PROFITS, LOST REVENUES OR OPPORTUNITIES, DOWNTIME, OR ANY INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, INDIRECT, OR SPECIAL DAMAGES OR COSTS, RESULTING FROM ANY CLAIM OR CAUSE OF ACTION BASED ON BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE (INCLUDING STRICT LIABILITY), OR ANY OTHER LEGAL THEORY, EVEN IF EITHER OR BOTH OF THEM KNEW, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY THEREOF. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER PERSON OR ENTITY FOR AN AMOUNT OF DAMAGES IN EXCESS OF THE FEES PAID BY CUSTOMER TO PROVIDER IN THE SIX (6) FULL CALENDAR MONTHS IMMEDIATELY PRECEDING THE MONTH IN WHICH THE EVENT GIVING RISE TO THE CLAIM NOTWITHSTANDING THE FOREGOING OR ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, THE LIMITATIONS UPON THE TYPES AND AMOUNTS OF EACH PARTY’S LIABILITY, AND THE EXCLUSIONS OF CERTAIN TYPES OF DAMAGES, SET FORTH IN THE THIS SECTION, SHALL NOT APPLY TO THE FOLLOWINGDAMAGES RESULTING FROM CUSTOMER’S USE IN VIOLATION OF THE LICENSE AND USAGE RESTRICTIONS SET FORTH HEREIN (E.G., SECTION B(1)), OR CUSTOMER’S BREACH OF SECTION F (OWNERSHIP).

H. MISCELLANEOUS

1. Governing Law; Venue; Severability. This Agreement shall be governed, construed and enforced in accordance with the laws of the State of Michigan without reference to conflicts of law principles. The Parties agree that the exclusive jurisdiction of any actions arising out of, relating to, or in any way connected with this Agreement, shall be in the state or federal courts, as applicable, located in Oakland County, Michigan. In the event that one or more of the provisions herein shall be invalid, illegal or unenforceable in any respect, the validity, legality and enforcement of the remaining provisions shall not be affected or
2. Customer shall not assign this Agreement or any rights or obligations hereunder, without the express written consent of Aquasight, which consent shall not be unreasonably withheld. Any assignment or transfer in violation of the foregoing will be null and void. Aquasight reserves the right to assign this Agreement to any affiliate or any entity in connection with the sale, combination, or transfer of all or substantially all of the assets or capital stock or from any other corporate form of reorganization by or of Aquasight. Subject to all of the terms and conditions hereof, this Agreement inures to the benefit of and is binding upon the Parties hereto and their successors and assigns.
3. Force Majeure. Any delays in or failure of performance of either Party to this Agreement shall not constitute a default under this Agreement or give rise to any claim for damages to the extent such delays or failure of performance are caused by a force majeure event, including acts of god, fire, flood, explosion, war, terrorism, strikes, or other concerted work stoppages of labor, inability to obtain raw material, equipment or transportation, breakage or failure of equipment or apparatus, or loss of any necessary utility. The time for performance so delayed will be deemed extended for the period of such delay; provided that, in the event the delay extends beyond 30 calendar days, the other Party shall be entitled to terminate this Agreement for cause.
4. Waiver. The failure to enforce or the waiver by either Party of one default or breach of the other Party shall not be considered to be a waiver of any subsequent default or
5. Entire Agreement. This Agreement, and each schedule and exhibit hereto, together constitute the entire understanding of the Parties with respect to the subject matter hereof, and supersedes all prior and contemporaneous written and oral agreements with respect to the subject matter. No modification of this Agreement shall be binding on either Party unless it is in writing and signed by both Parties. In the event of any conflict or inconsistency between this Agreement and any schedule or exhibit, the terms and conditions of this Agreement shall prevail.