Master Services Agreement
Last Modified: July 28, 2022
This Master Services Agreement (together with all Order Forms, the “Agreement”) is made by and between 120 Water Audit, Inc. d/b/a 120Water (“120Water”), and the customer identified on the Order Form (“Customer”), and is binding and effective as of the last date of signature on the initial online Order Form (“Effective Date”). 120Water and Customer are each also referred to hereunder as a “party” and together as the “parties”.
In consideration of the mutual covenants and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1.1. “Authorized Users” means personnel authorized by Customer to use the Service solely for the internal use of Customer, subject to the terms and conditions of this Agreement.
1.2. “Customer Data” means all electronic data or information uploaded by Customer to the 120Water Platform.
1.3. “Deliverables” means the deliverables (e.g., any custom reports) specified in an applicable Order Form that are expressly created for Customer.
1.4. “Derivative Data” means collectively, (i) information derived or generated from or based on Customer Data, but not containing Customer Data, (ii) Customer Data which has been de-identified or anonymized so that it no longer identifies a specific individual or Customer; and, (iii) Customer Data which has been aggregated with other data but which no longer identifies a specific individual or Customer.
1.5. “Documentation” means the user guides and specifications for the SaaS Services that are made available from time to time by 120Water in electronic or tangible form, but excluding any sales or marketing materials.
1.6. “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful files, scripts, agents or programs.
1.7. “120Water Platform” means 120Water’s proprietary online hosted software, website, operating systems, hardware and other technical resources used by 120Water to provide the SaaS Services.
1.8. “Order Form” means 120Water’s quote accepted by Customer via an ordering document submitted to 120Water.
1.9. “Personal Data” means Customer Data which identifies a specific identifiable individual.
1.10. “Professional Services” means any implementation, integration, consulting and other related services specifically described in an Order Form, other than the SaaS Services.
1.11. “Project Start Date” means a date mutually agreed upon by the parties following execution of an Order Form, upon which date 120Water shall commence provision of implementation or other Professional Services.
1.12. “SaaS Services” means the water test administration and reporting services made available to web-based and mobile users via the 120Water Platform hosted by 120Water, which may be further described in a written Scope of Work document provided upon request to Customer (and if so provided, is automatically incorporated by reference herein).
1.13. “Services” means, together, the SaaS Services and Professional Services.
1.14. “Site” means the 120wateraudit.com website.
1.15. “Subscription Start Date” means the date on which 120Water shall make the SaaS Services available to Customer as set forth in an applicable Order Form.
1.16. “Subscription Term” means the period of time during which Customer is subscribed to the SaaS Services, as specified in an Order Form.
1.17. “Usage Data” means statistical data related to Customer’s access to and use of the SaaS Services and data derived from it, that is used by 120Water, including to compile statistical and performance information related to the provision and operation of the SaaS Services.
2. SERVICES AND RESPONSIBILITIES OF THE PARTIES
2.1. 120Water Responsibilities.
A. During the Subscription Term, 120Water shall make the SaaS Services available to Customer and shall provide maintenance and support to Customer in accordance with its standard support policies and procedures. The SaaS Services further include developing, training, testing, correcting, and improving the 120Water Platform, such activities for which may include the use of Customer Data. 120Water will use commercially reasonable efforts to maintain the SaaS Services’ availability, except for planned downtime for maintenance or upgrades, or any unavailability caused by circumstances beyond 120Water’s reasonable control. 120Water reserves the right to modify the SaaS Services at any time. The parties may, from time to time, execute an Order Form describing Professional Services that 120Water shall provide to Customer, the duration of such Professional Services if applicable, the compensation to be paid for the Professional Services, and any other terms applicable to the project. A list of specific deliverables, a timetable, and/or a detailed specification may be attached as Exhibits to any Order Form.
B. Subcontractors. 120Water may engage subcontractors to perform or to support 120Water’s performance of portions of the Services provided or made available to substantially all of 120Water’s customers (e.g., data hosting service providers), provided that 120Water may not subcontract any custom Services or Deliverable specifically purchased only by Customer (and set forth in a separate statement of work) without Customer’s prior written consent, such consent not being unreasonably withheld, delayed, or conditioned.
2.2. Customer Responsibilities. Customer is responsible for all activities that occur in Customer’s account(s). Customer shall: (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (b) prevent unauthorized access to, or use of, the SaaS Services, and notify 120Water in writing immediately upon becoming aware of any such unauthorized access or use; (c) comply with all applicable laws and regulations in using the SaaS Services; and (d) procure for 120Water, at Customer’s sole expense, all rights and consents necessary for 120Water and its contractors to access, use, disclose, store, and retain all Customer Data pursuant to this Agreement. Customer is solely responsible for ensuring: (i) that only appropriate Authorized Users have access to the SaaS Services, and (ii) confidentiality and proper usage of passwords and access procedures with respect to logging into the SaaS Services. Customer is solely responsible for all acts and omissions of the Authorized Users, and for ensuring that the Authorized Users comply with this Agreement.
2.3. Use Restrictions. Customer shall use the SaaS Services solely for its internal business purposes as contemplated by this Agreement and shall not: (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the SaaS Services available to any third party except as contemplated by this Agreement; (b) send via, or store within, the SaaS Services infringing, obscene, threatening, defamatory, fraudulent, abusive, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights; (c) send via the SaaS Services any unsolicited commercial or non-commercial communication; (d) send via, upload to, or store within the SaaS Services any Malicious Code; or (e) attempt to gain unauthorized access to the SaaS Services or its related systems or networks. In addition, Customer shall not directly or indirectly: (i) remove any notice of proprietary rights from the SaaS Services or 120Water Platform; (ii) decompile, reverse engineer, or attempt to derive the source code or underlying ideas or algorithms of any part of the SaaS Services or 120Water Platform (except to the limited extent applicable laws specifically prohibit such restriction); (iii) copy, modify, translate or otherwise create derivative works of any part of the SaaS Services or 120Water Platform; (iv) upload to the 120Water Platform or otherwise provide to 120Water any personal health, credit card, or financial data or other such sensitive data (collectively, “Inadvertent Data”); (v) use any of 120Water’s Confidential Information (defined below) to create any service, software, documentation or data that is similar or competitive to any aspect of the SaaS Services, (vi) interfere or attempt to interfere with the proper working of the SaaS Services or any activities conducted on the SaaS Services or 120Water Platform, or modify another website so as to falsely imply that it is associated with the SaaS Services; or (vii) permit any third party to engage in any of the foregoing proscribed acts set forth in this Section 2.3 (with the restrictions set forth in this Section 2.3, collectively, referred to as the “Use Restrictions”). In the event Customer provides to 120Water any Inadvertent Data, Customer shall immediately notify 120Water in writing of such disclosure. 120Water shall treat Inadvertent Data as Customer’s Confidential Information, but not as Personal Data, and will not be liable for any such unauthorized disclosure, access, loss, or use of Inadvertent Data. 120Water shall promptly delete all Inadvertent Personal Data it receives and becomes aware of.
2.4. Acceptance Procedure for Custom Deliverables. Unless expressly stated otherwise in a statement of work all custom-developed Deliverables shall be subject to the following acceptance procedure. Customer has 30 days (the “Testing Period”) from receipt of a Deliverable to test the Deliverable. The “Acceptance Criteria” is whether the Deliverable materially conforms with the applicable Specifications. During the Testing Period, Customer will notify 120Water of any material noncompliance of the Deliverable with the Specifications (“Material Error”) that Customer discovers. When it receives this notice, 120Water will promptly correct the Material Error and redeliver the Deliverable within 30 days unless otherwise agreed to in writing by the Parties. The Testing Period will be extended for the period of time used by 120Water to correct a Material Error. If 120Water is unable to correct a Material Error within the 30 day period (or other time period agreed to in writing by the Parties), Customer may terminate this Agreement, and 120Water will promptly return to Customer all monies paid by Customer under the applicable Statement of Work.
2.5. SaaS Services Platform. 120Water and its third party service providers will use commercially reasonable efforts to maintain the availability of the SaaS Services. 120Water will comply with the Service Level Agreement set forth in Exhibit A attached hereto and incorporated herein.
2.6. Purchase of Goods. Purchases of goods, including without limitation, water testing kits and water pitcher filters, from 120Water are governed by the Terms of Sale available at https://120water.com/terms-of-sale/, and which may be amended from time to time by 120Water and effective when posted, and which is incorporated herein by reference.
3. FEES; PAYMENT; TAXES
3.1. Service Fees. 120Water will invoice Customer for the Services as set forth in the applicable Order Form or as otherwise agreed by the parties in writing in a statement of work. Except as otherwise specified in an Order Form, fees are based on the Services purchased and not actual usage; payment obligations are non-cancellable; fees paid are non-refundable; and the Services purchased cannot be decreased during the relevant Subscription Term. 120Water may adjust its fees applicable to the Services upon renewal of a Subscription Term. Customer may add subscriptions for SaaS Services during a Subscription Term at the same pricing as the underlying subscription pricing set forth in the most recent Order Form, prorated for the portion of that Subscription Term remaining at the time the subscriptions are added, and any added subscriptions will terminate on the same date as the underlying subscriptions. For all other additional goods or services purchased by Customer during the Subscription term, such purchases will be made at the then-current prices of such goods or services.
3.2. Overdue Payments. Customer’s failure to pay fees as set forth herein shall constitute a material breach of this Agreement. Any fees hereunder not paid when due will be subject to a late charge of one and one-half percent (1½%) per month on the unpaid balance or the maximum rate allowed by law, whichever is less. If Customer’s account is fifteen (15) days or more overdue, 120Water may, in addition to any of its other rights or remedies, suspend Customer’s access to the SaaS Services and/or suspend provision of Professional Services until such amounts are paid in full. If such failure to pay has not been cured within thirty (30) days of the due date, then upon written notice 120Water may terminate this Agreement and any or all outstanding Order Forms.
3.3. Taxes. Unless Customer is tax exempt and provides written certification of such status to 120Water, Customer shall be responsible for payment of all taxes due in connection with the Services provided hereunder (other than taxes owed by 120Water based on its income), whether or not collected by 120Water. 120Water may collect such taxes from Customer, and Customer shall remit to 120Water all applicable taxes required to be collected by 120Water, or if such taxes have previously been paid by Customer, provide 120Water with the appropriate documentation of such payments.
3.4. Future Functionality. The Parties agree and acknowledge that Customer’s purchases hereunder are not contingent on the delivery of any future Service functionality or features, or dependent on any oral or written public comments made by 120Water regarding future functionality or features of any Service.
4. PROPRIETARY RIGHTS
4.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, 120Water reserves all rights, title and interest in and to the SaaS Services and 120Water Platform, including all software, technology and other materials associated therewith, all Documentation and content (excluding Customer Data), and all copies, modifications and derivative works thereof, and all 120Water trademarks, names, logos, and all rights to patent, copyright, trade secret and other proprietary or intellectual property rights therein. No rights are granted to Customer hereunder other than as expressly set forth herein. As between 120Water and Customer, Customer owns all Customer Data. Customer shall procure all rights and consents necessary to enable 120Water and its third party service providers to access and use Customer Data pursuant to this Agreement. Customer hereby grants 120Water a worldwide, non-exclusive, royalty-free, fully paid-up license to use, reproduce, perform, display, modify, and distribute the Customer Data in connection with providing the Services to Customer hereunder. 120Water may use the trademarks and trade name of Customer in connection with provision of the Services.
4.2. Feedback. If Customer provides or otherwise makes available to 120Water any feedback, suggestions, recommendations, data, or other input regarding the Services or resulting from Customer’s use thereof (“Feedback”), Customer hereby grants to 120Water a perpetual, irrevocable, royalty-free right and license to use such Feedback for any purpose, including to improve and enhance the Services or any component thereof, to develop new features or functionality, and to otherwise use and exploit such Feedback for 120Water’s business purposes. Customer acknowledges that any 120Water products or materials incorporating any such Feedback shall be the sole and exclusive property of 120Water. Consultant agrees to indemnify, defend and hold harmless Owner for any use by Consultant of any Feedback.
4.3. Improvements; Deliverables. 120Water shall own all rights, title and interest, including all intellectual property rights, in and to any improvements to the SaaS Services and 120Water Platform, and, unless expressly stated otherwise in a statement of work, in and to any Deliverables or new programs, upgrades, modifications or enhancements developed by 120Water in connection with rendering the Services to Customer, even when Deliverables, refinements or improvements result from Customer’s request. 120Water shall own all right, title, and interest in and to all Usage Data.
5.1. Definition of Confidential Information. “Confidential Information” means all confidential, proprietary, or nonpublic information of a party (or its customers) (“Disclosing Party”) disclosed to the other party (“Receiving Party”) that (a) if disclosed orally is designated as confidential at the time of disclosure, (b) if disclosed in writing is marked as “Confidential” and/or “Proprietary” or (c) that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer’s Confidential Information shall consist of the Customer Data. 120Water’s Confidential Information includes any nonpublic information relating to the SaaS Services or the software, Order Forms, pricing, technology or content underlying the SaaS Services, or relating to any other of 120Water’s or its business partners’ products or services (including any beta version of a service), software, technology, customers, business plans, and other business affairs. Notwithstanding the foregoing, each party may disclose the existence and terms of this Agreement, in confidence, to a potential purchaser of or successor to any portion of such party’s business resulting from the reorganization, spin-off, or sale of all or a portion of all of the assets of any business, division, or group of such party. Confidential Information shall not include any information that:(i) is or becomes generally known to the public without breach by the Receiving Party of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
5.2. Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission or if required by applicable law or judicial order. The Receiving Party shall use the same degree of care to protect the Confidential Information as it uses to protect its own information of a confidential and proprietary nature, but in no event shall it use less than a reasonable degree of care. 120Water may disclose Customer’s Confidential Information to those of its employees and contractors who need to know such information for purposes of performing the Services. Notwithstanding the foregoing, and as permitted by applicable law, 120Water shall be permitted to retain Customer Data and use the same for statistical, analytical, and similar purposes internally, through publications, and with 120Water’s other customers; provided, that any distribution to third parties of the results of such usage will include Customer Data in aggregate form only and will not identify Customer or its Authorized Users as the source of any such data. Further, 120Water may store, reproduce, distribute, create derivative works (including compilations and statistical summaries and analyses), transmit, display and otherwise make available certain test results (and related data) and location information to third party individuals and organizations as reasonably necessary in order for 120Water to perform Services hereunder.
5.3. Compelled Disclosures; Open Records Requests. If the Receiving Party is compelled by law an order issued by a judge or public competent authority to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. In the event a third party makes a request of Customer for information under any open records act for documents or information related to this Agreement which may be subject to exclusion from disclosure based on confidential information or trade secrets, Customer will provide 120Water with a timely opportunity to object to disclosure of such documents and information.
5.4. Survival. The Confidentiality obligations as are set forth in this Section 5 shall remain in force and effect at all times during this Agreement, and (i) with respect to Confidential Information that constitutes a trade secret under applicable law, for so long as such trade secret status has not been lost; and (ii) with respect to Confidential Information that does not constitute a trade secret, for five (5) years after termination or expiration of this Agreement, and (iii) with respect to Personal Data held by 120Water, forever.
6. DATA SECURITY
6.1. 120Water shall use commercially reasonable efforts to store, maintain, and protect the confidentiality of Customer Data uploaded by Customer and its Authorized Users to the Software or otherwise disclosed or transmitted to, or received or accessed by 120Water. 120Water is not liable for the confidentiality or security of any Personal Data through no fault of 120Water in the event of unauthorized access, theft, use or disclosure of such Personal Data, either by or due to Customer’s Authorized Users by users or third parties who have obtained unauthorized access to an Authorized User’s Login Credentials. 120Water shall not be responsible for any suspected or actual unauthorized access, theft, use or disclosure, or Security Breach of Customer Data due to Customer’s breach of this Agreement, Customer’s (or its contractors’ or providers’) failure to use reasonable care in securing Customer Data or due to Customer’s Authorized Users acts or omissions that are the proximate cause of any data Security Breach related to the Services or 120Water Platform. “Security Breach” means any accidental, unauthorized, or unlawful access, use, destruction, loss, alteration, lockup (i.e., encryption or rendering unavailable), loss of confidentiality, or disclosure of Personal Data stored or otherwise processed by or in 120Water’s (or its service providers’ or contractors’) possession or control; but, shall not include: (a) “pings” on an information system firewall; (b) port scans; (c) attempts to log on to an information system or enter a database with an invalid password or user name; or, (d) denial-of-service attacks that do not result in a server being taken offline.
6.2. 120Water will be responsible for any Security Breach of Customer Data successfully uploaded to the 120Water Platform where caused by the acts or omissions of 120Water or its agents, hosting services or other contractors, except to the extent due to any acts, omissions, or negligence of Customer, its agents, or contractors (“120Water Security Breach”).
6.3. Customer shall be responsible for any Security Breach of Customer Data due to the acts or omissions of Customer, its contractors (other than 120Water, its agents or contractors), its then-current employees, former employees who were previously Authorized Users, other than to the extent directly due to the negligence of 120Water or its agents, hosting services and other contractors (“Customer Security Breach”). Notwithstanding the previous sentence, former employees or contractors of Customer whose Authorized User credentials have been properly deactivated by Customer, but who subsequently cause a Security Breach through methods that do not include the use of their Authorized User credentials, does not constitute a Customer Security Breach.
7. DATA OWNERSHIP AND USE
7.1. Ownership of Customer Data. As between Customer and 120Water, Customer owns all Customer Data.
7.2. Use of Customer Data. Customer hereby grants 120Water and its contractors a limited, nonexclusive right and license to use all Customer Data during this Agreement, and, after expiration or termination as permitted herein.
7.3. Use of Customer Data after Expiration or Termination. After any expiration or termination of this Agreement 120Water shall handle Customer Data as set forth in Section 11.3.B.
7.4. Derivative Data and Usage Data. “Derivative Data” means collectively, (i) information derived or generated from or based on Customer Data, but not containing Customer Data, (ii) Customer Data which has been de-identified or anonymized so that it no longer identifies an specific individual; and, (iii) Customer Data which has been aggregated with other data but which no longer identifies a specific individual or Customer. “Usage Data” means statistical data related to Customer’s access to and use of the SaaS Services and data derived from it, that is used by 120Water, including to compile statistical and performance information related to the provision and operation of the SaaS Services. 120Water shall irrevocably own all Derivative Data and Usage Data and may use or disclose it in any way it chooses. This Section 7.4 shall survive any expiration or termination of this Agreement.
8. WARRANTIES AND DISCLAIMERS
8.1. 120Water Warranties. 120Water warrants that: (a) the functionality of the SaaS Services will not be materially decreased during a Subscription Term; (b) 120Water shall take commercially reasonable measures to protect against the SaaS Services or any deliverables containing or transmitting Malicious Code to Customer; (c) the Services will be performed in a professional and workmanlike manner in accordance with generally accepted industry standards (collectively referred to as the “Service Warranty”). Customer must report to 120Water in writing any failure of the Professional Services to materially conform to the Service Warranty within 90 days of performance of such Professional Services in order to receive warranty remedies. For any breach of the Service Warranty, Customer’s exclusive remedy, and 120Water’s entire liability, shall be the re-performance of the Professional Services, and, if 120Water is unable to re-perform the Professional Services as warranted within thirty (30) days of receipt of notice of breach, Customer shall be entitled to recover the fees paid to 120Water for the deficient Professional Services.
8.2. Warranties for third-party products are governed under the applicable third party warranty terms, and Customer expressly acknowledges that 120Water has no obligations with regard to third-party products.
8.3. EXCEPT FOR THE WARRANTIES EXPRESSLY STATED HEREIN, 120WATER PROVIDES ALL SERVICES AS-IS, AND 120WATER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
8.4. Customer acknowledges and agrees that the SaaS Services, the Services, the 120Water Platform, Deliverables, and any other services or products provided hereunder are intended to provide Customer with a means of sampling, testing, and monitoring water for contaminants. 120Water uses third-party labs and service providers to perform certain components of the Services and, while 120Water endeavors to maintain relationships with dependable, accurate and timely third party service providers, 120Water does not control such service providers, and therefore hereby disclaims all representations, warranties, and liability for any inaccurate, untimely, or otherwise erroneous Deliverables including data, alerts, or information attributable to such service providers. 120Water is not responsible for any contaminants or other harmful conditions present in water or other materials tested hereunder.
9.1. By 120Water. 120Water shall indemnify, defend, and hold harmless Customer and its officers, directors, employees, agents, and affiliates from and against any and all third-party claims, actions, or causes of action (“Claims”) for any liabilities, damages, penalties, fines, assessments, costs, and expenses, including reasonable attorneys’ fees and costs (collectively, “Losses”) arising or related to (a) an allegation by a third party alleging that the Services or use of the 120Water Platform infringes any United States patent, and/or any copyright, trade secret or other property right held by such a third party; (b) 120Water’s breach of this Agreement; (c) any failure by 120Water or its employees, agents, service providers, or subcontractors to comply with applicable law or regulation; (d) 120Water’s use of any Feedback provided by Customer; or (e) damage to or loss of real or tangible property, or personal injury, resulting from the gross negligence or willful misconduct of 120Water, its agents, service providers, or subcontractors. The above shall apply provided that 120Water is notified promptly by Customer of any such Claim (including any threatened claim) and 120Water shall have sole control of the defense with respect to same (including without limitation, the negotiations and settlement of such claim). If a Claim pursuant to clause (a) has occurred or, in 120Water’s opinion, is likely to occur, 120Water shall, at 120Water’s option and expense, (i) procure the right to continue providing the Services or the 120Water Platform, (ii) re-perform or replace the potentially infringing portion of the Services or the 120Water Platform, or (iii) modify the Services or the 120Water Platform so that infringement is avoided. If, after using commercially reasonable efforts, none of the foregoing three alternatives is reasonably available, 120Water may terminate this Agreement, and Customer shall be entitled to a pro-rated refund of pre-paid but unearned fees. 120Water shall have no such indemnification obligation to the extent such infringement under clause (a) above: (w) relates to use of the Services or the 120Water Platform or any Deliverable in combination with other software, data products, processes, or materials not provided by 120Water and the infringement would not have occurred but for such combination; (x) arises from or relates to modifications to the SaaS Services, the 120Water Platform, or any Deliverable not made by 120Water; (y) relates to Customer Data or any third-party product or service, or (z) where Customer continues the activity or use constituting or contributing to the infringement after notification thereof by 120Water.
9.2. By Customer. Customer shall indemnify, defend, and hold harmless 120Water and its officers, directors, employees, agents, affiliates and service providers from and against any and all Losses based on any Claims relating to (a) the possession or use of the SaaS Services, the Professional Services, the 120Water Platform, Deliverables, or any other materials provided hereunder, or their failure, or (b) for Customer’s failure to comply with the terms of this Agreement, or (c) from any allegation that Customer Data or 120Water’s possession or use thereof violates or infringes the rights of any third party.
9.3. Indemnification Procedure. As an express condition to the indemnifying party’s obligation under this Section 9, the party seeking indemnification must: (a) promptly notify the indemnifying party in writing of the applicable Claim for which indemnification is sought (except that any delay on the part of the indemnified party in providing such notice shall not relieve the indemnifying party of its indemnification obligation except to the extent the it is prejudiced thereby); and (b) provide the indemnifying party with all reasonable non-monetary assistance, information and authority reasonably required for the defense and settlement of such Claim. No settlement or compromise that imposes any liability or obligation on the indemnified party will be made without the indemnified party’s prior written consent, which consent shall not be unreasonably withheld, delayed, or conditioned.
10. LIMITATION OF LIABILITY
10.1. Limitation of Liability. SUBJECT TO SECTION 10.3, IN NO EVENT SHALL EITHER PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS PAID BY CUSTOMER UNDER THE ORDER FORM FOR THE SERVICES FOR WHICH LIABILITY IS CLAIMED IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.
10.2. Exclusion of Consequential Damages. SUBJECT TO SECTION 10.3, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND OR NATURE HOWEVER CAUSED, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF GOOD WILL, SUBSTITUTE GOODS OR SERVICES, WORK STOPPAGE, DATA LOSS, LOST PROFIT OR COMPUTER FAILURE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.3. The restrictions on the types and amounts of damages for which a party may be liable hereunder shall not apply to Customer’s liability for breach of 120Water’s proprietary rights or confidentiality, or a party’s indemnification obligations.
11. TERM AND TERMINATION
11.1. Term and Renewal. This Agreement commences on the date both parties execute an initial Order Form (the “Effective Date”), and continues through the expiration of all Order Forms in effect between the parties hereunder (including any renewals as set forth below) unless earlier terminated as set forth in this Section 11 (the “Term”). Subscriptions to the SaaS Services commence on the Subscription Start Date and continue for the Subscription Term specified in the applicable Order Form. Thereafter, the Subscription Term shall automatically renew for successive twelve (12) month renewal terms unless a party provides the other party notice of its intent not to renew at least thirty (30) days in advance of the end of the then-current Term.
11.2. Termination. Either party may terminate this Agreement for cause upon written notice of a material breach to the other party if such breach remains uncured (if curable using commercially reasonable efforts) for thirty (30) days from such notice. 120Water may terminate this Agreement or any Order Form for non-payment in accordance with Section 3.2, and no opportunity to cure shall apply. 120Water may immediately terminate this Agreement for cause, without the opportunity to cure, if Customer breaches any of the Use Restrictions set forth in Section 2.3. In addition, 120Water may terminate this Agreement, in whole or in part, or cease provision of Services if required to comply with applicable law or regulation. Upon termination for cause by 120Water, Customer shall remain obligated to pay all fees owed for the remainder of the then current- subscription Term, all of which fees shall become immediately due and payable in full.
11.3. Effects of Termination.
A. Upon expiration or termination of this Agreement, all rights granted by 120Water under this Agreement shall terminate, and Customer’s access to the 120Water Platform shall be terminated. Termination of this Agreement shall not affect either Customer’s obligation to pay any sums due hereunder, including Service Fees for the remainder of the then-current Subscription Term. In the event Customer prepays any fees and receives a discount and Customer fails to make timely orders as required to receive such discount, Customer agrees to pay Provider within thirty (30) days of such termination the non-discounted fee for such orders. Pre-payments or deposits will not be refunded to Customer.
B. Within thirty (30) days after the termination or expiration of this Agreement, 120Water will provide Customer with a copy of Customer Data held by 120Water. Upon expiration of such thirty (30) day period, 120Water shall convert Customer’s account to an inactive status. 120Water may, but shall not be obligated to, delete all Customer Data after Customer’s account converts to inactive status.
12.1. Insurance. During the Term, 120Water shall, at its own expense, maintain and carry in full force and effect insurance policies with financially sound and reputable insurers having limits of liability of not less than the following:
|Commercial General Liability
||(a) $1,000,000 per occurrence for bodily injury and property damage;
(b) $1,000,000 per occurrence for personal and advertising injury;
(c) $2,000,000 aggregate for products and completed operations; and,
(d) $2,000,000 general aggregate applying separately to the work performed under the Agreement.
|Commercial Automobile Liability
||$1,000,000 per accident for bodily injury and property damage.
|Workers’ Compensation Insurance
||as required by the State of Indiana with statutory limits
||(a) $1,000,000 each accident for bodily injury;
(b) $1,000,000 disease each employee; and,
(c) $1,000,000 disease policy limit.
|Technology Professional Liability
||(a) $1,000,000 per claim/occurrence; and,
(b) $2,000,000 policy aggregate.
12.2. In the event 120Water purchases an umbrella or excess insurance policy to meet the minimum limits of insurance set forth in this Section 12, such insurance policy shall afford no less coverage than the primary insurance policy. Upon Customer’s request, 120Water shall provide Customer with a certificate of insurance evidencing the insurance coverage specified in this Section 12. The certificate of insurance shall name Customer as an additional insured and loss payee. 120Water shall provide Customer with thirty (30) days’ advance written notice in the event of a cancellation or material change in such insurance policy. 120Water waives and 120Water shall cause its insurers to waive, any right of subrogation or other recovery against Customer.
13. FORCE MAJEURE
13.1. Definition. A “Force Majeure Event” means a cause or event beyond the reasonable control of the party claiming delay of performance, including, but not limited to, (i) labor disputes, strikes, or lockouts (but excluding nonunion labor shortage or disputes), or labor unavailability or workplace closure or restrictions or travel restrictions as required or recommended by government or agency (or implemented as company-wide policy by the party suffering the delay in performance) due to pandemic, epidemic, or other widespread health emergency (e.g., viruses or other diseases, such as, but not limited to, COVID-19, SARS, etc.); (ii) riots, war, acts of terrorism, or other civil disturbance; (iii) fire, flood, earthquake, tornado, hurricane, snow, ice, lightning, or other natural disasters, elements of nature or acts of God, (iv) outages, cable cuts, power crisis shortages, infrastructure outages or failures, internet failures, interruption or failure of telecommunications carriers or digital transmission links, network congestion, computer equipment failures, telecommunication equipment or other equipment failures, electrical power failures, loss of or fluctuations in heat, light, or air conditioning, all of the foregoing in this Subsection (iv) being of or due to third party providers or utility service providers; (v) acts of computer, system, or network sabotage or file lockup (e.g., ransomware attack), DDOS or other network attacks, intrusion, or other failures not arising out of a breach of Provider’s data security obligations set forth in this Agreement; (vi) any law, order, regulation, direction, action or request of the United States, state or local governmental agency, department, commission, court, bureau, corporation or other instrumentality of any one or more of such instrumentality, or of any civil or military authority, or national emergencies, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown; (vii) change in law or regulation making performance impracticable without having material impact on such party’s ability to perform under this Agreement without material increase in cost, resources, or time; or, (viii) national or regional shortage of adequate power or telecommunications or transportation, or, (ix) supply chain interruption due to any of the foregoing.
13.2. If a Force Majeure Event occurs, the party who’s performance is delayed or prevented (the “Affected Party”) shall be entitled to (i) relief from its performance obligations under this Agreement to the extent the occurrence of the Force Majeure Event prevents or adversely affects that Affected Party’s performance of such obligations, and (ii) an extension of schedule to perform its obligations under this Agreement to the extent the occurrence of the Force Majeure Event prevents or adversely affects that Affected Party’s ability to perform such obligations in the time specified in this Agreement. The occurrence of a Force Majeure Event shall not, however, excuse or delay the other Party’s obligation to pay monies previously accrued and owing to the Affected Party under this Agreement or excuse or delay the Affected Party’s performance of any obligation under this Agreement not affected by the occurrence of the Force Majeure Event. Upon the occurrence of a Force Majeure Event, the Affected Party shall notify the other Party promptly after the Affected Party’s performance has been delayed or prevented. The Affected Party shall use commercially reasonable efforts to reduce costs resulting from the occurrence of the Force Majeure Event, fulfill its performance obligations under the Agreement and otherwise mitigate the adverse effects of the Force Majeure Event. The Affected Party shall also provide prompt written notice to the other Party of the cessation of the Force Majeure Event. If the Force Majeure Event renders the Services completely unavailable for more than thirty (30) consecutive days, Customer may terminate the Agreement upon written notice to 120Water, and Customer will receive a refund of prepaid fees starting from the beginning of the period of unavailability due to such conditions.
14. GENERAL PROVISIONS
14.1. Relationship of the Parties. The relationship between the parties created by this Agreement is one of independent contractors and neither party shall have the power or authority to bind or obligate the other except as expressly set forth in this Agreement. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. There are no third-party beneficiaries to this Agreement.
14.2. Use of Customer Name and Logo. Customer hereby agrees that: (a) 120Water may use Customer’s name and logo in 120Water’s published customer list, on 120Water’s website, and in 120Water’s marketing materials; and, (b) subject to Customer’s review and approval, which approval shall not be unreasonably withheld or delayed, allow 120Water to reference Customer in a press release that announces Customer’s decision to use 120Water Services.
14.3. Assignment. 120Water may not assign, convey, or transfer (whether by contract, merger or operation of law) (collectively “assign” and its cognates) any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Customer, other than in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of 120Water’s assets. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. Any assignment in violation of this Agreement shall be of no power or effect.
14.4. Governing Law. This Agreement shall be governed exclusively by the laws of the State of Customer’s primary business office, without regard to its conflicts of laws rules.
14.5. Miscellaneous. This Agreement and the Exhibits attached hereto and Order Forms either attached hereto or entered into during this Agreement are incorporated herein and collectively set forth the entire understanding and agreement between the parties regarding the subject matter of this Agreement and supersede all prior or contemporaneous proposals or communications, oral or written, between the parties relating to the subject matter of this Agreement. The background recitals form a material part of this Agreement. If any provision in this Agreement is invalid or unenforceable, that provision shall be construed, limited, modified or, if necessary, severed, to the extent necessary, to eliminate its invalidity or unenforceability, and the other provisions of this Agreement shall remain in full force and effect. No waiver of any right under this Agreement shall be deemed effective unless contained in writing signed by a duly authorized representative of the party against which the waiver is sought to be enforced, and no waiver of any past or present right arising from any breach or failure to perform shall be deemed to be a waiver of any future right arising under this Agreement.
14.6. Modification. 120Water may make changes to this Agreement from time to time. If 120Water makes a material change to this Agreement, 120Water will inform Customer by email to the email address(es) noted on the Order (or subsequently designated by Customer in writing as a contact for notifications from 120Water). If Customer does not agree to the change, Customer must so notify 120Water by e-mail to firstname.lastname@example.org within thirty (30) days after 120Water’s notice. If Customer so notifies 120Water, then Customer will remain governed by the most recent version of this Agreement applicable to Customer until the end of the then-current period of the Subscription Term and the updated Agreement shall apply upon the commencement of the subsequent period of the Subscription Term. Other than the foregoing, no modification of this Agreement shall be effective unless in writing and signed by both parties. Notwithstanding the foregoing, if 120Water is required to change this Agreement in order to remain compliant with applicable law, and Customer does not agree to such change, 120Water may terminate this Agreement, in which case 120Water shall provide Customer with a pro-rated refund of any pre-paid fees for Services not performed by the effective date of termination
SERVICE LEVEL AGREEMENT
This Service Level Agreement (“SLA”) sets forth 120Water’s performance objectives for the availability of its hosted software platform (“120Water Platform”). The remedies set out in this SLA are Customer’s sole and exclusive remedy for issues covered by the SLA. While 120Water will not modify this SLA arbitrarily, 120Water may do so from time-to-time. Should 120Water make a change to this SLA, 120Water shall notify Customer. The notification will set out the effective date of any changes.
- Availability. 120Water will use commercially reasonable efforts to maintain availability of the 120Water Platform for Customer’s use 24×7, except in the event of any of the following, during which the 120Water Platform may be partially or totally unavailable:
- “Scheduled Maintenance”: Scheduled maintenance, which includes updates and other routine maintenance, will be conducted between 7 p.m. – 2 a.m. (Eastern US Time) weekdays, weekends and/or holidays. However, maintenance may also occur at any other time as is necessary to provide top tier service to 120Water’s customers. 120Water may change planned maintenance windows at its sole discretion and will notify Customer of any such changes that affect previously notified plans, provided such maintenance is done during low-volume times. 120Water will use commercially reasonable efforts to provide Customer with at least 24 hours’ prior notice if Scheduled Maintenance downtime will occur at such other time.
- “Unscheduled Maintenance”: Maintenance not previously planned which is needed to resolve issues that are critical for customers and/or performance of the 120Water Platform. 120Water will notify Customers when possible via email prior to the unscheduled maintenance. When and where practicable, 120Water will try to conduct unscheduled maintenance between 9:00 p.m. and 2:00 a.m. (Eastern US Time).
- Force Majeure Events (as defined in the Agreement).
- Unauthorized use or misuse of the 120Water Platform by Customer or anyone using any of Customer’s authorized user’s login credentials.
- “Availability Goal”: 120Water will use commercially reasonable efforts to make the 120Water Platform available 99.5% of the time, measured on an average monthly basis, exclusive of the following:
- The events set forth in Section 1.A-1.D. of this SLA;
- Any outage lasting less than 5 minutes;
- Any outage 120Water determines to be a result of Customer’s breach of the Agreement or other acts or omissions of Customer;
- Force Majeure Events, provided that 120Water timely implements its disaster recovery plan; and,
- Any outage determined to be a result of a failure of outside services or equipment not within the control of 120Water, including Customer’s hardware and software.
- Technical Support. 120Water provides technical support 24/7 by email to email@example.com, and by telephone at 800-674-7961.
- Response Time. 120Water endeavors to respond to support requests within 2 hours.