Master Services Agreement
Last Modified: July 20, 2020
This Master Services Agreement (“MSA”) (together with the Order, the “Agreement”) is an agreement between 120 Water Audit, Inc. d/b/a 120Water (“120Water”, “we” or “us”), and the customer identified on the Order (“Customer” or “you”). This Agreement governs your access to and use of the Services (as defined below) and describes both your rights and your obligations as part of using the Services. Additionally, your ability to purchase goods from or through us will be subject to our Terms of Sale as further described herein. It is important that you read this Agreement carefully because you will be legally bound to this Agreement. 120Water only provides the Services to you subject to this Agreement. By accepting this Agreement via an Order or by accessing or using the Services, you agree to be bound by this Agreement (including any terms within the accompanying Documentation, and any applicable policies and guidelines, which are incorporated here by this reference). If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to this Agreement. In that case, the terms “Customer”, “you” or “your” shall also refer to such entity. If you do not have such authority, or if you do not agree with this Agreement, you may not use the Services. 120Water and Customer are each also referred to hereunder as a “party” and collectively 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:
THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
“Authorized Users” shall mean personnel authorized by Customer to use the Service solely for the internal use of Customer, subject to the terms and conditions of this Agreement.
“Customer Data” shall mean all electronic data or information submitted by Customer to the SaaS Services or otherwise provided by Customer to 120Water.
“Deliverables” means the deliverables or other work product produced by 120Water or its subcontractors or other personnel in provision of SaaS Services or Professional Services hereunder, including customizations, reports, alerts, data, and other information.
“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.
“Exhibits” shall mean any exhibits identified in an Order, the terms, conditions, and other provisions of which are hereby expressly incorporated herein by reference.
“Malicious Code” shall mean viruses, worms, time bombs, Trojan horses and other harmful files, scripts, agents or programs.
“120Water Software Platform” shall mean the platform consisting of the Site and any software, operating systems, hardware and other technical resources used by 120Water to provide the SaaS Services.
“Order” shall mean 120Water’s quote accepted by Customer via an ordering document submitted to 120Water or via subscription on the Site, to order any Services, which is hereby expressly incorporated herein by reference.
“Professional Services” shall mean any implementation, integration, consulting and other related services described in an Order.
“Project Start Date” shall mean a date mutually agreed upon by the parties following execution of an Order, upon which date 120Water shall commence provision of implementation or other Professional Services.
“SaaS Services” shall mean the water test administration and reporting services made available to web-based and mobile users via the 120Water Software Platform hosted by 120Water.
“Services” shall mean the SaaS Services and Professional Services collectively.
“Site” shall mean the website(s) accessible at https://120water.com/ (or any successor thereto).
“Subscription Start Date” shall mean the date on which 120Water shall make the SaaS Services available to Customer as set forth in an applicable Order.
“Subscription Term” shall mean the period of time during which Customer is subscribed to the SaaS Services, as specified in an Order.
“Usage Data” shall mean 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.
2.1 120Water Responsibilities. 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. 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 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.
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 Software 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 Software 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 Software Platform; (iv) send, store or process in the SaaS Services or 120Water Software Platform any personal health data, credit card data, personal financial data or other such sensitive or personal 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 Software 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”).
2.4 SaaS Services Platform. 120Water and its third party service providers will use commercially reasonable efforts to maintain the availability of the SaaS Services. 120Water may perform routine or other maintenance at times and for durations established by 120Water in its sole discretion, during which time(s) 120Water may take the SaaS Services down to conduct necessary maintenance or repairs, or to implement upgrades. In the event of an error or outage of the SaaS Services, 120Water will use commercially reasonable efforts to restore the SaaS Services to working order. Customer agrees that 120Water is not responsible to provide support for any issues resulting from problems, errors or inquiries related to Customer’s systems or hardware or Customer Data.
2.5 Beta Services. From time to time, 120Water may invite Customer to try Beta Services at no charge. Customer may accept or decline any such trial in Customer’s sole discretion. Beta Services will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import. Beta Services are for evaluation purposes and not for production use, are not considered “Services” under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available. 120Water may discontinue Beta Services at any time in 120Water’s sole discretion and may never make them generally available. 120Water will have no liability for any harm or damage arising out of or in connection with a Beta Service.
2.6 Purchase of Goods. Your 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/, which are incorporated herein by reference.
3.1 Service Fees; Taxes. 120Water will invoice Customer for Services, as set forth in the applicable Order or as otherwise agreed by the parties in writing. Except as otherwise specified in an Order, 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. 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 the Customer, provide 120Water with the appropriate documentation of such payments. 120Water may change the fees applicable to the Services upon thirty (30) days prior notice; provided, that, any such change shall only take effect 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, 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 (1 1/2 %) 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 Orders.
3.3. 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.
4.1 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 Software Platform, including all software, technology and other materials associated therewith, all Documentation and content (excluding the 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 exclusively owns all rights, title and interest in and to all Customer Data. 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 names 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.
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 Software Platform, and 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. To the extent, if any, that ownership in such Deliverables, refinements or improvements does not automatically vest in 120Water by virtue of this Agreement or otherwise, Customer hereby transfers, and shall transfer, to 120Water all rights, title, and interest which Customer may have, and such transfer is irrevocable, irreversible and binding on Customer’s successors.
5.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (“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, Orders, 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 Usage 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 or Usage 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 Disclosure; Remedies. 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. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek to file a lawsuit to enjoin such acts.
5.4 Survival. The Confidentiality obligations as are set forth in this Section shall remain in force and effect at all times during the term hereof and (i) with respect to Confidential Information that constitutes a trade secret under applicable law, for so long as such trade secret status is maintained (but no less than the period described in subclause (ii) hereof); 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 (or for the maximum amount of time permitted under applicable law, if shorter than five (5) years).
6.1 Customer Warranties. Customer represents and warrants that: (a) the Customer Data, and the use thereof by 120Water and its service providers, shall not infringe on any copyright, patent, trade secret or other proprietary right held by any third party; (b) Customer shall not use the Services in a manner that violates any law; and (c) Customer shall procure all rights and consents necessary to enable 120Water and its third party service providers to access and use all Customer Data and all access and use rights necessary to interface with Customer’s software, hardware and other systems.
6.2 120Water Warranties. 120Water represents and warrants that: (a) the functionality of the SaaS Services will not be materially decreased during a Subscription Term; and (b) 120Water shall take commercially reasonable measures to protect against the SaaS Services containing or transmitting Malicious Code. 120Water represents and warrants that the Professional Services (excluding any Services provided by third parties) will be performed in a professional and workmanlike manner in accordance with generally accepted industry standards (such warranty, 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.
6.3 Third party software usage and obligations are governed under the applicable third party software terms and conditions, and Customer expressly acknowledges that 120Water has no obligations with regard to third party software or services. In the event 120Water is required to integrate with or otherwise interface with third party software, Customer agrees to secure all rights necessary to enable 120Water to perform such work, and Customer represents, warrants and covenants that it has or will secure at Customer’s sole cost all access and license rights necessary to enable 120Water to perform its obligations hereunder. NOTWITHSTANDING ANYTHING IN THE AGREEMENT TO THE CONTRARY, 120WATER MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH REGARD TO THIRD PARTY SERVICES OR SOFTWARE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND TITLE. CUSTOMER EXPRESSLY ACKNOWLEDGES THAT 120WATER HAS NO LIABILITY, DIRECT OR INDIRECT AND REGARDLESS OF THE THEORY OF LAW, FOR THIRD PARTY SERVICES AND SOFTWARE.
6.4 EXCEPT FOR THE WARRANTIES EXPRESSLY STATED HEREIN, 120WATER PROVIDES ALL SERVICES AS-IS, WITHOUT WARRANTY OF ANY KIND, AND 120WATER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THOSE REGARDING MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
6.5 Customer acknowledges and agrees that the SaaS Services, the Professional Services, the 120Water Software Platform, Deliverables, or any other materials or services 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.
6.6 Understanding that 120Water is not responsible for any contaminants or other harmful conditions present in water or other materials tested hereunder, Customer assumes full and sole responsibility for all risks associated therewith, and with Customer’s use of or reliance on 120Water providing the SaaS Services, the Professional Services, the 120Water Software Platform, Deliverables, or any other materials, both known and unknown, inherent or otherwise, related thereto, errors and omissions in providing them, and Customer’s enjoyment thereof. Customer hereby voluntarily accept the risks associated with 120Water’s provision of the SaaS Services, the Professional Services, the 120Water Software Platform, Deliverables, or any other materials.
6.7 Acknowledging that such risks exist, CUSTOMER HEREBY RELEASES AND DISCHARGES 120WATER, ITS OFFICERS, REPRESENTATIVES, DIRECTORS, SHAREHOLDERS, SUBSIDIARIES, AFFILIATES, PARTNERS, LICENSORS, AGENTS AND EMPLOYEES, RELATED ENTITIES, SUCCESSORS AND ASSIGNS AND EACH OF THEM (HEREINAFTER FOR PURPOSES OF THIS SECTION 6.7 AND SECTION 7.1 INDIVIDUALLY AND COLLECTIVELY REFERRED TO AS “120WATER“), FROM ANY AND ALL ACTUAL OR ALLEGED DEMANDS, LOSSES, CLAIMS, DAMAGES, SUITS, STRICT LIABILITY ACTIONS, CLASS ACTIONS, NEGLIGENCE ACTIONS, IMPLIED WARRANTY ACTIONS, EXPRESS WARRANTY ACTIONS, EXPENSES, ATTORNEY FEES, AND LIABILITY RELATING TO ANY INJURY, DEATH, OR DAMAGES TO ANY PERSON OR PROPERTY (WHETHER TANGIBLE OR INTANGIBLE), INCLUDING ANY DATA, SOFTWARE, HARDWARE, NETWORKS, SYSTEMS, CUSTOMIZATIONS, OTHER INFORMATION, PERSON OR PROPERTY SUFFERED OR CLAIMED TO HAVE BEEN SUFFERED WHICH ARISES OUT OF OR IS RELATED IN ANY MANNER TO THE POSSESSION OR USE OF THE SAAS SERVICES, THE PROFESSIONAL SERVICES, THE 120WATER SOFTWARE PLATFORM, DELIVERABLES, OR ANY OTHER MATERIALS PROVIDED HEREUNDER, INCLUDING WITHOUT LIMITATION, ANY CLAIM THAT THE ACT OR OMISSION COMPLAINED OF WAS CAUSED SOLELY OR IN PART BY THE NEGLIGENCE IN ANY FORM OF 120WATER.
7.1 Customer further agrees to INDEMNIFY, HOLD HARMLESS, AND DEFEND in any action or proceeding, 120Water from and against all actual or alleged demands, damages, losses, claims, suits, strict liability actions, negligence actions, implied warranty actions, class actions, liability relating to any injury, death, or damages to any person or property, express warranty actions, expenses, and attorney fees (“Claims”) for or relating to the possession or use of the SaaS Services, the Professional Services, the 120Water Software Platform, Deliverables, or any other materials provided hereunder, or their failure, or for Customer’s failure to comply with the terms of this Agreement, or from any allegation that Customer Data or 120Water’s use thereof, infringes or misappropriates a third party’s patent, copyright, trademark or trade secret or other proprietary right, regardless of whether the act or omission complained of was caused solely or in part by the negligence in any form of 120Water.
7.2 120Water shall defend, indemnify and hold Customer and its respective officers, directors, and employees, harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with claims, demands, suits or proceedings (“Damage Claims”) made or brought against Customer by a third party alleging that Customer’s use of the SaaS Services within the scope of this Agreement infringes or misappropriates such third party’s United States patent, copyright, trademark or trade secret; provided, however, that 120Water shall have no such indemnification obligation to the extent such infringement: (a) relates to use of the SaaS Services 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 the combination; (b) arises from or relates to modifications to the SaaS Services or any Deliverable not made by 120Water; (c) relates to Customer Data or any third party product or service, or (d) where Customer continues the activity or use constituting or contributing to the infringement after notification thereof by 120Water.
7.3 Procedure. As an express condition to the indemnifying party’s obligation under this Section 7, 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.
8.1 Limitation of Liability. SUBJECT TO SECTION 8.3 HEREOF, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.
8.2 Exclusion of Consequential and Related Damages. SUBJECT TO SECTION 8.3 HEREOF, 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, 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.
8.3 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 HEREUNDER AND AMOUNTS PAYABLE PURSUANT TO CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER.
9.1 Term. This Agreement commences on the earlier of (a) the date both parties execute an initial Order or (b) the date you initially begin using the Services, and continues through the expiration of all Orders in effect between the parties hereunder (including any renewals as set forth below) unless earlier terminated as set forth in this Section 9 (the “Term”). Subscriptions to the SaaS Services commence on the Subscription Start Date and continue for the Subscription Term specified in the applicable Order. Thereafter, the Subscription Term shall automatically renew for successive one (1) year 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. Professional Services shall commence on the Project Start Date and shall continue until such Professional Services are completed.
9.2 Termination for Cause. A party may terminate this Agreement for cause upon thirty (30) days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such thirty (30) day period; provided, however, that 120Water may terminate this Agreement or the applicable Order for non-payment in accordance with Section 3.2 hereof. 120Water may immediately terminate this Agreement for cause if Customer breaches any of the Use Restrictions. This Agreement may also be terminated by either party immediately upon written notice to the other party if the other party: (a) becomes insolvent, (b) voluntarily commences any proceeding or files any petition under applicable bankruptcy laws, (c) becomes subject to any involuntary bankruptcy or insolvency proceedings under applicable laws, which proceedings are not dismissed within thirty (30) days, (d) makes an assignment for the benefit of its creditors, or (e) appoints a receiver, trustee, custodian or liquidator for a substantial portion of its property, assets or business. 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. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to 120Water prior to the effective date of termination. Not in limitation of any other remedies that may be available to 120Water, upon any termination for cause by 120Water, Customer shall remain obligated to pay all fees owed for the remainder of the Subscription Term, all of which fees shall become immediately due and payable in full.
9.3 Customer Data. Following the termination or expiration of this Agreement, Customer shall have thirty (30) calendar days to access its account and download/export Customer Data. Upon expiration of such thirty (30) calendar 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.
10.1 Relationship of the Parties; Customer Name and Logo. 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. Customer hereby agrees to: (a) allow 120Water to use Customer’s name and logo in 120Water’s 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.
10.2 Assignment. Customer may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of 120Water. Notwithstanding the foregoing, Customer may assign this Agreement in its entirety (including all Orders), without consent of 120Water, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of 120Water. Any attempt by Customer to assign its rights or obligations under this Agreement in breach of this Section shall be void and of no effect. 120Water may freely assign this Agreement and its rights and obligations hereunder, or may delegate or subcontract to third parties any of its duties and obligations hereunder, without the need for the consent of Customer. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
10.3 Governing Law. This Agreement shall be governed exclusively by the laws of the State of Indiana, without regard to its conflicts of laws rules.
10.4 Modifications. 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 e-mail to the e-mail address(es) noted on the Order (or subsequently designated by Customer in writing as a contact for notifications from 120Water), or through a banner or other prominent notice within the SaaS Services, or through the 120Water support platform. If Customer does not agree to the change, Customer must so notify 120Water by e-mail to [email protected] 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 terms shall apply upon the commencement of the subsequent period of the Subscription Term. 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 the Customer’s Order, in which case 120Water shall provide Customer with a pro-rated refund of any pre-paid fees for Service not performed by the effective date of termination.
10.5 Force Majeure. In no event will 120Water be liable or responsible to Customer, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by any circumstances beyond 120Water’s control (a “Force Majeure Event“), including acts of God, flood, fire, earthquake or explosion, pandemics, endemics, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of law or any action taken by a governmental or public authority, or national or regional shortage of adequate power or telecommunications or transportation. 120Water may terminate this Agreement if a Force Majeure Event continues substantially uninterrupted for a period of 30 days or more.
10.6 Dispute Resolution and Binding Arbitration. As set forth in this Section 10.6, you, your and similar variants shall mean Customer and all Authorized Users and others using the Services under or in connection with Customer’s account. Sections 10.6.1 through 10.6.3 shall apply only to a Customer that is a legal entity, not an individual consumer Customer. Dispute resolution between an individual consumer Customer and 120Water shall be governed by Sections 10.6.4 through 10.6.11 only.
10.6.1 In the event of a dispute, the parties agree to enter into good faith discussions which shall take place within fifteen (15) days of written notice from either party of a dispute.
10.6.2 Either party may refer the dispute to non-binding mediation in the event that the parties have not resolved a dispute referred to them for resolution within thirty (30) days. The parties agree that they shall attempt in good faith to resolve the dispute under the fast track mediation rules of procedure of the International Institute for Conflict Prevention & Resolution (“CPR”) in effect as of the date the mediation is initiated. Unless otherwise agreed, the parties shall select a mediator from the CPR Panels of Distinguished Neutrals. If the parties cannot agree on the selection within fourteen (14) days after the matter has been referred to mediation, they will defer to the CPR to select a mediator pursuant to the CPR rules. The cost of the mediator shall be borne equally by the parties.
10.6.3 Any dispute not resolved within thirty (30) days (or within such other time period as may be agreed by the parties in writing) after appointment of the mediator, shall be finally resolved by arbitration administered by the American Arbitration Association (“AAA”) in accordance with the following section of this Section 10.6.
10.6.4 YOU AND 120WATER ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
10.6.5 SUBJECT TO SECTIONS 10.6.1 AND 10.6.2, ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND US ARISING FROM OR RELATING IN ANY WAY TO THIS AGREEMENT, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
10.6.6 The arbitration will be administered by the AAA in accordance with the Consumer Arbitration Rules or the Commercial Arbitration Rules and Mediation Procedures, as applicable (the “AAA Rules“), each as then in effect (the AAA Rules are available at https://www.adr.org/Rules or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section.
10.6.7 There shall be one arbitrator agreed to by the parties within thirty (30) days of receipt by respondents of the request for arbitration or, if the parties cannot agree to an arbitrator, the AAA will appoint one. The place of arbitration shall be Indianapolis, Indiana.
10.6.8 The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the agreement is void, voidable or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction.
10.6.9 In any dispute, NEITHER YOU NOR 120WATER WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The arbitral tribunal may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction.
10.6.10 Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right.
10.6.11 If any provision of this Section 10.6 is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced.