These Terms of Service (these “Terms“) is a binding agreement between you (“Customer,” “you,” or “your“) and Aquicore Inc., a Delaware corporation (“Aquicore,” “we,“, “our” or “us“). These Terms govern your access to and use of Aquicore’s Software as a Service offering in which we host our software for your use (the “Aquicore Service”).
THESE TERMS TAKE EFFECT WHEN YOU HAVE ACCESS FROM AQUICORE TO THE AQUICORE SERVICE (THE “EFFECTIVE DATE“). BY ACCESSING OR USING THE AQUICORE SERVICE, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THESE TERMS; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THESE TERMS AND, IF ENTERING INTO THESE TERMS FOR AN ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPT THESE TERMS AND AGREE THAT YOU ARE LEGALLY BOUND BY THESE TERMS. IF YOU DO NOT ACCEPT THESE TERMS, YOU MAY NOT ACCESS OR USE THE AQUICORE SERVICE. YOU MAY ALSO NOT ACCESS THE AQUICORE SERVICE IF YOU ARE A COMPETITOR OF AQUICORE, EXCEPT WITH OUR PRIOR WRITTEN CONSENT.
(a) “Aggregated Statistics” has the meaning set forth in Section 2(f).
(b) “Anonymized Data” has the meaning set forth in Section 2(f).
(c) “Aquicore IP” means the Aquicore Service (including any software component of the Aquicore Service), the Documentation, and all intellectual property provided to Customer or any other Authorized User in connection with the foregoing. For the avoidance of doubt, Aquicore IP includes Aggregated Statistics and any information, data, or other content derived from Aquicore’s monitoring of Customer’s access to or use of the Aquicore Service, but does not include Customer Data.
(d) “Aquicore Service” has the meaning set forth in the preamble to these Terms.
(e) “AUP” has the meaning set forth in Section 2(b).
(f) “Authorized User” means Customer and Customer’s employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Aquicore Service under the rights granted to Customer pursuant to these Terms, and (ii) for whom access to the Aquicore Service has been purchased hereunder in accordance with the applicable purchase order.
(g) “Building Activation Notice” means the notice provided by Aquicore to Customer electronically that the Aquicore Service is ready for use with respect to a particular Customer Building.
(h) “Confidential Information” has the meaning set forth in Section 10.
(i) “Customer Building” means a building owned by Customer.
(j) “Customer Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or any other Authorized User through the Aquicore Service.
(k) “Documentation” means Aquicore’s user manuals, handbooks, and guides relating to the Aquicore Service provided by Aquicore to Customer either electronically or in hard copy form.
(l) “Feedback” has the meaning set forth in Section 13.
(m) “Final Customer Activation Date” means the earlier of (a) the date on which all Customer Buildings set forth in a given Purchase Order have been activated by Aquicore; or (b) the date on which Customer and Aquicore agree that all Customer Buildings that will be activated for a Customer under a given Purchase Order have been activated.
(n) “Initial Subscription Term” has the meaning set forth in Section 11.
(o) “Losses” has the meaning set forth in Section 15(a)(i).
(p) “Purchase Order” means a purchase order delivered by Customer and accepted by Aquicore.
(r) “Renewal Subscription Term” has the meaning set forth in Section 11.
(s) “Service Suspension” has the meaning set forth in Section 2(g).
(t) “Subscription Fees” has the meaning set forth in Section 6.
(u) “Subscription Term” has the meaning set forth in Section 11.
(v) “Support Services” has the meaning set forth in Section 9(a).
(w) “Third Party Claim” has the meaning set forth in Section 15(a)(i).
(x) “Third-Party Components” has the meaning set forth in Section 8.
(y) “Trial Period” has the meaning set forth in Section 3.
(z) “Trial Version” has the meaning set forth in Section 3.
(aa) “Warranty Period” has the meaning set forth in Section 14(a).
2. Service Terms. If you purchased a subscription to use the Aquicore Service, the following terms apply to you:
(a) Access to the Aquicore Service. Aquicore hereby grants you a revocable, non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Aquicore Service during the Subscription Term solely for your internal business operations by Authorized Users in accordance with the terms and conditions herein. Aquicore shall provide you the necessary passwords and access credentials to allow you to access the Aquicore Service.
(b) Acceptable Use Policy. The Aquicore Service may not be used for unlawful, fraudulent, offensive, or obscene activity, as further described and set forth in Aquicore’s acceptable use policy (“AUP”) located at [URL], as may be amended from time to time, which is incorporated herein by reference. You will comply with all terms and conditions of these Terms, all applicable laws, rules, and regulations, and all guidelines, standards, and requirements that may be posted on [URL] from time to time, including the AUP.
(c) Account Use. You are responsible and liable for all uses of the Aquicore Service resulting from access provided by you, directly or indirectly, whether such access or use is permitted by or in violation of these Terms. Without limiting the generality of the foregoing, you are responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of these Terms if taken by you will be deemed a breach of these Terms by you. You shall use reasonable efforts to make all Authorized Users aware of the provisions of these Terms applicable to such Authorized User’s use of the Aquicore Service and shall cause Authorized Users to comply with such provisions.
(d) Customer Data. You hereby grant to Aquicore a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display Customer Data and perform all acts with respect to the Customer Data as may be necessary for Aquicore to provide the Aquicore Service to you, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics. You will ensure that Customer Data and any Authorized User’s use of Customer Data will not violate any policy or terms referenced in or incorporated into these Terms or any applicable law. You are solely responsible for the development, content, operation, maintenance, and use of Customer Data. You warrant that you own all right, title, and interest, including all intellectual property rights, in and to Customer Data and that both the Customer Data and your use of the Aquicore Service are in compliance with the AUP
(e) Passwords and Access Credentials. You are responsible for keeping your passwords and access credentials associated with the Aquicore Service confidential. You will not sell or transfer them to any other person or entity. You will promptly notify us about any unauthorized access to your passwords or access credentials.
(f) Anonymized Data and Aggregated Statistics. Notwithstanding anything to the contrary in these Terms, Aquicore may receive and use aggregated and/or anonymized data from the Aquicore Service (“Anonymized Data”) for Aquicore’s business purposes provided Aquicore shall not identify Customer to any unaffiliated third party as the source of such Anonymized Data. Upon creation, Aquicore will be the owner of such Anonymized Data and may copy, commingle, and use such Anonymized Data, in Aquicore’s sole discretion, for any lawful purpose. Aquicore may also monitor Customer’s use of the Aquicore Service and collect and compile data and information related to Customer’s use of the Aquicore Service to be used by Aquicore in an aggregated and anonymized, de-identified, or otherwise obfuscated manner, including to compile statistical and performance information related to the provision and operation of the Aquicore Service (“Aggregated Statistics”). As between Aquicore and Customer, all right, title, and interest in Anonymized Data and Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Aquicore. You acknowledge that Aquicore may compile Anonymized Data or Aggregated Statistics based on Customer Data input into the Aquicore Service. You agree that Aquicore may (i) make Anonymized Data and Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Anonymized Data and Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Anonymized Data and Aggregated Statistics do not identify Customer or Customer’s Confidential Information.
(g) Suspension of the Aquicore Service. Notwithstanding anything to the contrary in this Agreement, Aquicore may temporarily suspend Customer’s and any other Authorized User’s access to any portion or all of the Aquicore Service if: (i) Aquicore reasonably determines that (A) there is a threat or attack on the Aquicore Service; (B) Customer’s or any other Authorized User’s use of the Aquicore Service disrupts or poses a security risk to the Aquicore Service or to any other customer or vendor of Aquicore; (C) Customer or any other Authorized User is using the Aquicore Service for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Aquicore’s provision of the Aquicore Service to Customer or any other Authorized User is prohibited by applicable law; or (ii) any vendor of Aquicore has suspended or terminated Aquicore’s access to or use of any third-party services or products required to enable Customer to access the Aquicore Service (any such suspension described in subclause (i) or (ii), a “Service Suspension”). Aquicore shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Service following any Service Suspension. Aquicore shall use commercially reasonable efforts to resume providing access to the Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Aquicore will have no liability for any damage, liabilities, losses (including any loss of or profits), or any other consequences that Customer or any other Authorized User may incur as a result of a Service Suspension.
3. Trial Version. If you register for a free Trial offered by Aquicore, Aquicore will make the Aquicore Service available to you on a temporary basis (the “Trial Version”) free of charge until the end of the free trial period for which you registered (the “Trial Period”). The Trial Version may be used only by you to review, evaluate and demonstrate the Aquicore Service internally. The Trial Version may have limited features. The Trial Version may cease operating after the end of the Trial Period ends or when your use has exceeded the number of uses provided by Aquicore based on an internal metering mechanism within the Trial Version itself. Regardless of any such metering, you must stop use of the Aquicore Service, as the case may be, at the end of the Trial Period or when the number of specified uses have exceeded their limit. You shall not: (a) use the Trial Version of the Aquicore Service for any commercial purposes whatsoever, including but not limited to training, application deployment or production purposes; (b) disclose the results of performance benchmarks obtained using the Trial Version of the Aquicore Service to any third party without Aquicore’s prior written consent; (c) use the Trial Version other than for the sole purpose of determining whether to purchase access to the Aquicore Service; or (d) access or use the Trial Version of the Aquicore Service under more than one username.
4. Documentation License. Subject to the terms and conditions contained in these Terms, Aquicore hereby grants you a non-exclusive, non-sublicensable, non-transferable license for your Authorized Users to use the Documentation solely for your internal business purposes in connection with your use of the Aquicore Service.
5. Use Restrictions. You shall not, and shall not permit any Authorized Users to, use the Aquicore Service, any software component of the Aquicore Service, or Documentation for any purposes beyond the scope of the access granted in these Terms and the terms of any invoice provided by Aquicore. You shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative work, in whole or in part, of the Aquicore Service (including any software component of the Aquicore Service) or Documentation; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Aquicore Service (including any software component of the Aquicore Service) or any Documentation except as expressly permitted under these Terms; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Aquicore Service, in whole or in part; (iv) use the Aquicore Service (including any software component of the Aquicore Service) in order to build a competitive product or Aquicore Service; (v) copy any features, functions or graphics of the Aquicore Service (including any software component of the Aquicore Service); (vi) use the Aquicore Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (vii) remove any proprietary notices from the Aquicore Service or Documentation; or (viii) use the Aquicore Service (including any software component of the Aquicore Service) or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law, regulation, or rule. If the restriction set forth in clause (iii) above is prohibited by applicable law, you shall provide Aquicore with detailed prior written notice of any such intention to reverse engineer the Aquicore Service and shall provide Aquicore with a right of first refusal to perform such work at rates equal to those proposed by a recognized third-party software services Aquicore for such work.
6. Subscription Fees and Payment. Customer shall pay Aquicore the subscription fees ("Subscription Fees") and any hardware, services, or installation fees (“Hardware and Service Fees” and with Subscription Fees, collectively, the “Fees”) as described in the applicable Purchase Order. Aquicore will charge for Customer Hardware and Service Fees upon delivery of the hardware and/or service unless otherwise specified in the applicable Purchase Order. Aquicore will begin charging Customer the Subscription Fees due under each Purchase Order for each Customer Building starting on the first day of the month following delivery of the Building Activation Notice for that particular Customer Building to Customer. Aquicore shall have the right to increase Subscription Fees annually in an amount not to exceed five percent (5%) per year upon written notice to Customer. All annual Subscription Fees shall be paid in advance of the subscription period to which such payment relates. Customer shall make all payments hereunder for all Fees in US dollars on or before the due date. If Customer fails to make any payment when due, without limiting Aquicore’s other rights and remedies: (i) Aquicore may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; and (ii) Customer shall reimburse Aquicore for all reasonable costs incurred by Aquicore in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees. All Subscription Fees and other amounts payable by Customer under these Terms are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Aquicore’s income.
7. Reservation of Rights. Aquicore reserves all rights not expressly granted to Customer in these Terms. Except for the limited rights and licenses expressly granted under these Terms, nothing in these Terms grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Aquicore IP.
8. Third-Party Components. The Aquicore Service may contain or otherwise make use of software, code or related materials from third parties, including, without limitation, “open source” or “freeware” software (“Third Party Components”). Third Party Components may be licensed under additional or other license terms that accompany such Third Party Components. You acknowledge and agree that these accompanying license terms govern their use. Nothing in this Terms limits your rights under, or grants you rights that supersede, the license terms that accompany any Third Party Components. Aquicore shall: (a) pass through to you any warranty or other rights it receives for any Third Party Components; and (b) reasonably cooperate with you in enforcing such rights, at your expense.
9. Support Services.
(a) Description. Aquicore shall provide support services (the “Support Services”) to you via e-mail from 9:00 a.m. Eastern to 5:00 p.m. Pacific (8:00 p.m. Eastern), Monday through Friday, excluding holidays observed by Aquicore. In addition, as part of the Support Services, Aquicore may make available bug lists, planned feature lists, and other supplemental materials. Aquicore makes no representations or warranties of any kind for these materials.
(b) Support Fees Included. Service, Maintenance and Support Services are provided to you without additional charge as part of your subscription to the Aquicore Service.
10. Confidential Information. From time to time, Aquicore and Customer may disclose or make available to the other party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, whether or not marked, designated, or otherwise identified as “confidential” at the time of disclosure (collectively, “Confidential Information“). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving party; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (d) independently developed by the receiving party. The receiving party shall not disclose the disclosing party’s Confidential Information to any person or entity, except to the receiving party’s employees, agents, or subcontractors who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder and who are required to protect the Confidential Information in a manner no less stringent than required under these Terms. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (ii) to establish a party’s rights under these Terms, including to make required court filings. Each party’s obligations of non-disclosure with regard to Confidential Information are effective as of the date such Confidential Information is first disclosed to the receiving party and will expire five years thereafter; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of these Terms for as long as such Confidential Information remains subject to trade secret protection under applicable law.
11. Term. Unless earlier terminated in accordance with Section 12 below, the term of these Terms shall commence upon access to the Aquicore Service and continue for thirty-six (36) months after the Final Customer Activation Date (“Initial Subscription Term”). The Agreement shall automatically renew, at the then-current and then-applicable subscription price (each a “Renewal Subscription Term”) upon the end of the Initial Subscription Term and each Renewal Subscription Term for a period of one (1) year, unless either Party delivers written notice of non-renewal to the other Party at least sixty (60) days prior to the end of the then-current Initial Subscription Term or Renewal Subscription Term, as the case may be. The Initial Subscription Term and any Renewal Subscription Term shall be referred to as the “Subscription Term”.
(a) Notwithstanding anything contained herein to the contrary, these Terms may be terminated: (a) by either party if the other party is adjudicated as bankrupt, or if a petition in bankruptcy is filed against the other party and such petition is not discharged within sixty (60) days of such filing, (b) by either party if the other party materially breaches this Agreement and fails to cure such breach to such party’s reasonable satisfaction within thirty (30) days following receipt of written notice thereof; or (c) by Aquicore immediately by delivery of written notice thereof to you if you violate the use restrictions set forth in Section 5. Termination shall not limit either party from pursuing any remedies available to it, including injunctive relief, or relieve you of your obligation to pay all Subscription Fees that have accrued or become payable hereunder. Any right, obligation, or required performance of the parties in these Terms which, by its express terms or nature and context is intended to survive termination of these Terms, will survive any such termination.
(b) Customer may terminate this Agreement with respect to a particular Customer Building upon the sale of such Customer Building by Customer to an unaffiliated third party provided Customer provides advance written notice to Aquicore and Customer pays all Subscription Fees due to Aquicore for such Customer Building through the end of the month in which such notice is provided to Aquicore.
13. Intellectual Property Ownership; Feedback. As between you and us, (a) we own all right, title, and interest, including all intellectual property rights, in and to the Aquicore Service, and any improvements, enhancements or modifications thereto or derivative works thereof; and (b) you own all right, title, and interest, including all intellectual property rights, in and to Customer Data. If you or any of your employees, contractors, or agents sends or transmits any communications or materials to us by mail, email, telephone, or otherwise, suggesting or recommending changes to the Aquicore Service, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback“), we are free to use such Feedback irrespective of any other obligation or limitation between you and us governing such Feedback. All Feedback is and will be treated as non-confidential. You hereby assign to us on your behalf, and shall cause your employees, contractors, and agents to assign, all right, title, and interest in, and we are free to use, without any attribution or compensation to you or any third party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although we are not required to use any Feedback.
14. Limited Warranty and Warranty Disclaimer.
(a) Limited Warranty. Aquicore warrants for the Warranty Period (as defined below) that the Aquicore Service (not including any Third Party Components) will conform in all material respects in accordance with its Documentation. If, during the Warranty Period, the Aquicore Service fails to comply with the limited warranty set forth in this Section and such failure is not excluded from this warranty pursuant to Section 14(b), Aquicore shall, subject to you promptly notifying Aquicore in writing of such failure, at its sole option, repairs or replaces the Aquicore Service, provided that you provide Aquicore with all information Aquicore reasonably requests to resolve the reported failure, including sufficient information to enable Aquicore to recreate such failure. For purposes of these Terms, “Warranty Period” is one (1) year after your initial access to the Aquicore Service (the “Warranty Period”) The remedies set forth in this Section 14(a) are Licensee’s sole remedies and Licensor’s sole liability under the limited warranty set forth in this Section 14(a).
(b) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 14(a), THE AQUICORE SERVICE IS PROVIDED “AS IS” AND AQUICORE SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. AQUICORE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. AQUICORE MAKES NO WARRANTY OF ANY KIND THAT THE AQUICORE SERVICE OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON’S OR ENTITY’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF YOUR OR ANY THIRD PARTY’S SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
(a) Aquicore Indemnification.
(i) Aquicore shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees (“Losses“), incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim“) that the Aquicore Service, or any use of the Aquicore Service in accordance with these Terms, infringes or misappropriates such third party’s US patents, copyrights, or trade secrets, provided that Customer promptly notifies Aquicore in writing of the Third-Party Claim, cooperates with Aquicore, and allows Aquicore sole authority to control the defense and settlement of such Third-Party Claim.
(ii) If such a Third-Party Claim is made or Aquicore anticipates such a Third-Party Claim will be made, Customer agrees to permit Aquicore, at Aquicore’s sole discretion, to (A) modify or replace the Aquicore Service, or any component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use the Aquicore Service, as the case may be. If Aquicore determines that neither alternative is reasonably available, Aquicore may terminate these Terms, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer and Aquicore shall refund the amounts (a) Customer prepaid for use of the Aquicore Service, or (ii) paid for the affected component or part. This Section 15(a)(ii) sets forth your sole remedies and our sole liability and obligation for any actual, threatened, or alleged Third-Party Claims that the Aquicore Service infringe, misappropriate, or otherwise violate any intellectual property rights of any third party.
(iii) This Section 15(a) will not apply to the extent that any such Third-Party Claim arises from Customer Data or Third-Party Products.
(b) Customer Indemnification. Customer shall indemnify, hold harmless, and, at Aquicore’s option, defend Aquicore and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all Losses arising from or relating to any Third-Party Claim (i) that the Customer Data, or any use of the Customer Data in accordance with these Terms, infringes or misappropriates such third party’s intellectual property rights; or (ii) based on Customer’s or any Authorized User’s negligence or willful misconduct or use of the Aquicore Service in a manner not authorized by these Terms; provided that Customer may not settle any Third-Party Claim against Aquicore unless Aquicore consents to such settlement, and further provided that Aquicore will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
16. Limitations of Liability. IN NO EVENT WILL AQUICORE BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER AQUICORE WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL AQUICORE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO AQUICORE UNDER THESE TERMS IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
17. Modifications. You acknowledge and agree that we have the right, in our sole discretion, to modify these Terms from time to time, and that modified terms become effective on posting. Your continued use of the Aquicore Service after the effective date of the modifications will be deemed acceptance of the modified terms.
18. Export Regulation. The Aquicore Service utilizes software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Aquicore Service, the software or technology included in the Aquicore Service to, or make the Aquicore Service, the software or technology included in the Aquicore Service accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, regulation, or rule. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Aquicore Service, the software or technology included in the Aquicore Service available outside the US.
19. U.S. Government End Users. This Section 19 applies to all acquisitions of the Software by or for the United States Federal government, including by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement or other activity with the Federal government. The Software and related documentation were developed at private expense and are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with and subject to 48 CFR 12.212 and 48 CFR 227.7202-1 through 227.7702-4, as applicable, the Commercial Computer Software is being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms herein. Any provisions of this Agreement that are inconsistent with federal procurement regulations or other federal law are not enforceable against the U.S. Government. Unpublished rights reserved under the copyright laws of the United States.
20. Governing Law and Jurisdiction. These Terms is governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Delaware. Any legal suit, action, or proceeding arising out of or related to these Terms or the rights granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Delaware, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
21. Force Majeure. Aquicore is not liable for delay in the performance of its duties, obligations or responsibilities hereunder due to force majeure. A force majeure impediment is an unforeseen event which occurs after acceptance of orders, and which is beyond Aquicore’s reasonable control, such as strikes, blockade, war, mobilization, pandemic, epidemic, natural disaster, refusal of license by government or other stipulations or restrictions by the authorities, Internet service failures, delays or availability issues (including downtime or service outages) or any other similar or dissimilar cause beyond the control of Aquicore. Notwithstanding the foregoing, a force majeure does not extinguish your obligations to pay the applicable Subscription Fees hereunder.
22. Publicity. You agree to be identified as a customer of Aquicore and agree that Aquicore may refer to you by name, trade name and trademark, if applicable, and may briefly describe your business in Aquicore’s marketing materials and web site. You hereby grant Aquicore a license to use your name and any of your trade names and trademarks solely in connection with the rights granted to Aquicore pursuant to this marketing section. You grant Aquicore the right to add your name and company logo to our customer list and website.
23. Miscellaneous. These Terms constitutes the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. The terms of any purchase order or other document relating to the transactions contemplated by these Terms or delivered by you to Aquicore shall not apply. Any notices to us must be sent to our corporate headquarters address set forth in the preamble to these Terms and must be delivered either in person, by certified or registered mail, return receipt requested and postage prepaid, or by recognized overnight courier service, and are deemed given upon receipt by us. Notwithstanding the foregoing, you hereby consent to receiving electronic communications from us. These electronic communications may include notices about applicable fees and charges, transactional information, and other information concerning or related to the Aquicore Service. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing. The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction. Any failure to act by us with respect to a breach of these Terms by you or others does not constitute a waiver and will not limit our rights with respect to such breach or any subsequent breaches. These Terms is personal to you and may not be assigned or transferred for any reason whatsoever without our prior written consent and any action or conduct in violation of the foregoing will be void and without effect. We expressly reserve the right to assign these Terms and to delegate any of Aquicore’s obligations hereunder without your prior written consent.
24. Cyber Liability Insurance. Aquicore shall maintain Cyber Liability insurance with limits not less than $1,000,000 per occurrence or claim, $1,000,000 aggregate. Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by Aquicore in this agreement and shall include, but not limited to, claims involving infringement of intellectual property, including but not limited to infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, alteration of electronic information, extortion and network security. The policy shall provide coverage for breach response costs as well as regulatory fines and penalties as well as credit monitoring expenses with limits sufficient to respond to these obligations.
25. Non-Recourse. Notwithstanding anything to the contrary contained in this Agreement, none of the shareholders, partners, agents, directors, employees or officers of either Aquicore or Customer (collectively, the "Exculpated Parties") will be liable for the performance of either party’s obligations under this Agreement. Each party will look solely to the other party to enforce such party’s obligations hereunder, and shall not seek damages against any of the Exculpated Parties.
26. Assignment. Aquicore may assign these Terms without Customer’s consent to an affiliate of Aquicore or to a successor to all or substantially all of the business of Aquicore, whether in a merger, sale of stock, sale of assets or other transaction.
Last Modified: September 12, 2022