Terms & Conditions
These Terms and Conditions (this “Agreement”) are entered into by and between the entity agreeing to these terms (“Customer”) and Climateplan Inc., d/b/a Waterplan (“Waterplan”) (Customer and Waterplan each, a “party” and collectively, the “parties”) and sets forth the terms and conditions under which Customer may subscribe to or otherwise use certain products and services of Waterplan as set forth in one or more order forms or other ordering documents executed by the parties that reference this Agreement (each, an “Order Form”). The Agreement is effective as of the date Customer agrees to it, pursuant to an Order Form (“Effective Date”).
1. WATERPLAN PRODUCTS AND SERVICES
1.1. Provision of Products and Services. Subject to the terms and conditions of this Agreement, Waterplan will provide Customer with the online software-as-a-service products and services on a subscription basis for the Subscription Term (defined below), and such other products and services, as set forth on an applicable Order Form (collectively, the “Service(s)”). The Services include Waterplan Software (defined below) and Professional Services (defined below). Waterplan may provide support, set up, integration, consulting and other services for the Customer (“Professional Services”) as specified in an Order Form that references this Agreement. Customer acknowledges that the performance of the Services is contingent upon Customer’s timely provision of access to Customer’s complete and accurate data and any other assistance or materials reasonably necessary for Waterplan to provide the Services. Each Order Form will be incorporated into, and is fully governed by, this Agreement upon execution of the Order Form by both parties. In the event of any conflict or inconsistency between this Agreement and an Order Form, this Agreement shall control, except where the Order Form specifically states the intent to supersede a specific provision of this Agreement.
1.2. Access to Services. Customer may access and use the Services on a non-exclusive and non-transferrable basis, solely for its internal business purposes, and only in accordance with the terms and conditions of this Agreement, the applicable Order Form, and any end user technical documentation provided by Waterplan for such Services (“Documentation”). To the extent Waterplan provides Customer with any downloadable software, agents, SDKs, APIs, or other code in connection with the Services (“Waterplan Software”), Waterplan grants to Customer a non-exclusive, non-transferable, non-sublicensable, limited right and license to use the Waterplan Software during the applicable Subscription Term solely as reasonably necessary for Customer’s use of the Services in accordance with this Agreement. For clarity, except for Waterplan Software, Waterplan’s software products are provided on a remote, software-as-a-service basis only.
1.3. Permitted Users. Customer may permit its employees, agents, independent contractors and consultants to use the Services on its behalf (“Permitted Users”), provided that “Permitted Users” shall in no event include any third-party engaged in the business of offering water risk, water stewardship, or water use analytics (“Competitor”) or any employee or contractor of a Competitor. Customer remains responsible for the acts and omissions of each such Permitted User. Use of the Services by or on behalf of Customer in the aggregate must be within the restrictions set forth in the applicable Order Form (if any). Each Permitted User will be given a password to access the Services under such Permitted User’s Customer account (each a “User Account”), each User Account is personal to the individual Permitted User assigned such User Account. Each Permitted User may access the Services only through the User Account assigned to such Permitted User, and solely on an individual, non-transferrable basis. Customer shall require that all Permitted Users keep user ID and password information strictly confidential and not share such information with any unauthorized person (including any Competitors), and not permit any other person to use such Permitted User’s User Account. Customer shall promptly notify Waterplan: (a) if Customer has reason to suspect that any user ID or password has been lost, stolen, compromised, or misused, and (b) of any unauthorized access to or use of the Services. Customer shall be responsible for any and all actions taken using Customer’s accounts and passwords.
1.4. Use by Affiliates. Customer’s Affiliates may enter into Order Forms under this Agreement with Waterplan, and in such cases the terms of this Agreement will govern, and will be incorporated by reference into, each such Order Form as if this Agreement were separately executed by the applicable Customer Affiliate, and the term “Customer” as used in this Agreement will be deemed as applying to such Customer Affiliate for the purposes of such Order Form. The Customer signing this Agreement shall remain responsible to Waterplan for the actions and omissions of each such Affiliate (and each Permitted User). “Affiliate” means an entity that, directly or indirectly, controls, is controlled by, or is under common control with a party. As used herein, “control” means the power to direct the management or affairs of an entity or the beneficial ownership of fifty percent (50%) or more of the voting equity securities or other equivalent voting interests of an entity.
1.5. General Restrictions. Customer shall not, and shall not allow any third party (including any Permitted User) to: (a) sell, rent, lease or use any Service for time sharing purposes; (b) use any Service to help develop, or help provide to any third party, any product or service similar to or competitive with any Service; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code of any Service; (d) copy, modify or create derivative works from any Service or any Documentation; (e) remove or obscure any copyright or proprietary or other notice contained in any Service or Documentation; (f) propagate any virus, Trojan horse, or other malware or programming routine intended to damage any system or data; (g) access or use any Services in a manner intended to circumvent or exceed service account limitations or requirements; (h) use any Services in a manner that violates any applicable law, regulation, or legal requirement or obligation; (i) use any Services in violation of any third-party rights of privacy or intellectual property rights; (j) use or permit the use of any tools in order to probe, scan or attempt to penetrate or benchmark any Services; (k) use any robot, spider, scraper, data mining tool, data gathering or extraction tool, or any other automated means, to access, collect, copy or record the Services; (l) post, upload, transmit or provide any Customer Data (defined below) that Waterplan reasonably deems to be unlawful, harmful, abusive or otherwise objectionable; or (m) use the Services except as expressly permitted by this Agreement.
2. CUSTOMER OBLIGATIONS; CUSTOMER DATA
2.1. Generally. “Customer Data” means information, data, and other content, in any form or medium, that is downloaded, or otherwise received, directly or indirectly (including via a third-party provider), from Customer (including from a Permitted User on Customer’s behalf) by or through the Services, or provided by Customer to Waterplan to input into the Services. Customer represents and warrants to Waterplan that Customer’s use of the Services and all Customer Data is and will be at all times compliant with Customer’s privacy policies and all applicable local, state, federal and international laws, regulations and conventions, including, without limitation, those related to data privacy, international communications, and the exportation of technical or personal data (including Personal Data as defined in the DPA (defined below), if applicable). Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer represents and warrants to Waterplan that Customer has sufficient rights in the Customer Data to grant the rights granted to Waterplan in Section 2.2 and 2.3 below and that the Customer Data does not infringe or otherwise violate the rights of any third party.
2.2. Rights in Customer Data. As between the parties, Customer shall retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data. Customer hereby grants to Waterplan a non-exclusive, worldwide, irrevocable, transferable, sublicensable (through multiple tiers), fully paid-up, royalty-free right and license to use, copy store, transmit, modify, and display the Customer Data in order to: (a) provide the Services to Customer; (b) provide Customer Data to third-party providers of Third-Party Services (defined below) utilized by Customers; and (c) perform such other actions as authorized or instructed by Customer in writing (email to suffice).
2.3. De-identified Data. Notwithstanding anything to the contrary, Waterplan shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Waterplan will be free (during and after the term hereof) to (a) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Waterplan offerings, and (b) disclose and use such data solely in aggregate or other de-identified form in connection with Waterplan’s business (and such de-identified data will be owned by Waterplan).
2.4. Third-Party Application Service Providers. Customer may be able to access and use certain optional third-party services or products that are outside of the scope of the Services, (collectively “Third-Party Services”). Customer is under no obligation to use any Third-Party Services. If Customer elects to use any Third-Party Services, Waterplan may facilitate the provision of the Third-Party Services through a third-party service provider. The Third-Party Services may be provided directly through an engagement between Customer and a provider, or as a subcontractor of Waterplan pursuant to a statement of work. WATERPLAN DISCLAIMS ALL LIABILITY AND LOSSES THAT MAY ARISE FROM THE THIRD-PARTY SERVICES. IF CUSTOMER USES ANY THIRD-PARTY SERVICES, WATERPLAN WILL NOT BE RESPONSIBLE FOR ANY ACT OR OMISSION OF ANY PROVIDER OF SUCH THIRD-PARTY SERVICES. WATERPLAN DOES NOT WARRANT OR PROVIDE DIRECT SUPPORT FOR ANY THIRD-PARTY SERVICES. CUSTOMER ACKNOWLEDGES AND AGREES THAT WATERPLAN WILL HAVE NO RESPONSIBILITY OR LIABILITY FOR THE ACTS OR OMISSIONS OF ANY PERMITTED USERS IN CONNECTION WITH ANY THIRD-PARTY SERVICES.
2.5. Third-Party Components. Additionally, all or some portions of the Services may be subject to additional and/or separate terms and conditions, including but not limited to open-source software licenses and other third-party software license terms and conditions (“Third-Party Components”). To the extent there is a conflict between the terms and conditions applicable to any such Third-Party Components and this Agreement, the Third-Party Components terms and conditions shall control. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, ALL THIRD-PARTY SERVICES AND THIRD-PARTY COMPONENTS ARE MADE AVAILABLE ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND.
3.1. Ownership. Customer acknowledges that no intellectual property rights are assigned or transferred to Customer hereunder. Customer is obtaining only a limited right to access and use the Services set forth on the applicable Order Form. Customer agrees that Waterplan or its suppliers own and retain all right, title and interest (including all patent, copyright, trade secret and other intellectual property rights) in and to (a) the Services, Documentation, and any and all related and underlying technology, methodologies, templates, software, analytics, documentation, and other information, (b) any intellectual property it develops hereunder, and any derivatives thereof, and (c) all improvements or modifications to the foregoing (a) and (b) ((a), (b) and (c) individually and collectively, “Waterplan Technology”). To the extent that Customer has, at any time, any rights to Waterplan Technology, Customer will, and hereby does, assign and transfer to Waterplan all of its right, title, and interest in and to such Waterplan Technology.
3.2. Deliverables. “Deliverables” means the reports, presentations, or other tangible output of the Services, including such materials Waterplan creates and delivers to Customer in connection with the Professional Services. Unless otherwise specified in an applicable Order Form, Customer shall own all rights, title, and interest in and to the Deliverables, excluding any Waterplan Technology and Waterplan’s Confidential Information incorporated therein or provided therewith. Notwithstanding anything to the contrary, Customer shall in no event disclose to any third party any Confidential Information (defined below), including any methodologies or algorithms, of Waterplan included in the Deliverables and shall treat all such Confidential Information in accordance with Section 9 hereof.
3.3. Feedback. In the event Customer or any Permitted User provides Waterplan with any suggestions, ideas, improvements or other feedback with respect to any aspect of the Services (“Feedback”), Customer hereby assigns and shall cause all Permitted Users to assign to Waterplan all right, title and interest in and to such Feedback, including all intellectual property rights therein, and acknowledges that Waterplan shall own such Feedback.
4. SUBSCRIPTION TERM, FEES AND PAYMENT
4.1. Subscription Term and Renewals. Unless otherwise terminated as set forth below, each Order Form will have a term as set forth therein (the “Initial Subscription Term”). Thereafter, each Order Form will automatically renew for successive renewal terms of equal length to the Initial Term (each, a “Renewal Subscription Term,” and together with the Initial Term, the “Subscription Term”), unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current Subscription Term. If no term is stated on an Order Form, the Subscription Term for such Order Form is one (1) year.
4.2. Fees and Payment. All fees are as set forth in the applicable Order Form and shall be paid by Customer within thirty (30) days of Customer’s receipt of Waterplan’s invoice, unless otherwise specified in the applicable Order Form. Except as otherwise set forth in the applicable Order Form, all fees are in USD and are due and payable in advance at the start of the applicable Subscription Term (and each Renewal Term). Fees are payable through automated clearing house (“ACH”) transfers and international wire transfers. Upon Waterplan’s request, Customer agrees to promptly complete and submit an ACH authorization form to Waterplan. Except as expressly set forth in Section 6 or 8, all fees are non-refundable. Fees are exclusive of taxes, and Customer is required to pay any sales, use, value-added withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of Waterplan. Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less (plus the costs of collection).
4.3. Suspension of Service. If Customer’s account is ten (10) days or more overdue, in addition to any of its other rights or remedies, Waterplan reserves the right to suspend Customer’s access to the applicable Service without liability to Customer until such amounts are paid in full. Waterplan also reserves the right to suspend Customer’s access to the Services immediately if Customer’s use of the Services: (a) materially violates this Agreement; (b) is improper or substantially exceeds or differs from normal use by other users; (c) raises suspicion of fraud, misuse, security concern, illegal activity or unauthorized access issues; or (d) to protect the integrity or availability of the Services or Waterplan’s systems.
5. TERM AND TERMINATION
5.1. Term. This Agreement is effective as of the Effective Date and will continue in effect until terminated as set forth below.
5.2. Termination. Either party may terminate this Agreement with at least five (5) days’ prior written notice if there are no Order Forms then in effect. In addition, either party may terminate this Agreement if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice (such notice must contain sufficient detail as to the nature of the breach and state the intent to terminate and email notice is sufficient in the case of non-payment); (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter). For clarity, termination of this Agreement will automatically terminate all Order Forms.
5.3. Effect of Termination. Upon the expiration or termination of this Agreement, (a) Customer shall immediately cease any and all use of and access to the Services (including any and all related Waterplan Technology) and (b) each party will return to the other party (or destroy) such other party’s Confidential Information. Upon request by Customer made within thirty (30) days after the effective date of termination or expiration of this Agreement, Waterplan will make Customer Content available to Customer for export or download. After such 30-day period, Waterplan will have no obligation to maintain or make available Customer Content, and may thereafter remove all Customer Content in its possession or control. Except as otherwise set forth herein, termination of this Agreement is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
5.4. Customer Data. Customer acknowledges that if Customer or a Permitted User deletes Customer Data from the Services, such Customer Data may still reside in Waterplan’s systems, applications, databases and servers (including, without limitation, as backups and/or archives). Customer acknowledges that the foregoing actions during any Subscription Term may have an adverse impact on Customer’s use of the Services (and Waterplan is not liable with respect thereto).
5.5. Survival. The following Sections shall survive any expiration or termination of this Agreement: 1.5, 2, 3, 4.2, 5, 6.2, 7, 8, 9, 11, and 13.
6. LIMITED WARRANTY; DISCLAIMER
6.1. Limited Warranty. Waterplan warrants that it will provide the Services in substantial conformity with the applicable Documentation and the descriptions in the Order Form. Waterplan’s sole liability (and Customer’s sole and exclusive remedy) for any breach of this warranty shall be, in Waterplan’s sole discretion and at no charge to Customer, to use commercially reasonable efforts to provide Customer with an error correction or work-around that corrects the reported non-conformity, or if Waterplan determines such remedies to be impracticable, to allow Customer to terminate the Subscription Term and receive as its sole and exclusive remedy and Waterplan’s entire liability, a refund of any fees Customer has pre-paid for use of the Services or related services it has not received as of the date of the warranty claim. The limited warranty set forth in this Section 6.1 shall not apply: (a) unless Customer makes a claim within thirty (30) days of the date on which the condition giving rise to the claim first appeared, (b) if the error was caused by misuse, unauthorized modifications or third-party hardware, software or services, or (c) to any Services provided on a no-charge or evaluation basis.
6.2. Warranty Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS AGREEMENT, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WATERPLAN AND ITS SUPPLIERS EACH EXPRESSLY DISCLAIM ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE.
7. LIMITATION OF LIABILITY
EXCEPT WITH RESPECT TO GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT: (A) WATERPLAN SHALL NOT BE LIABLE, UNDER ANY LEGAL OR EQUITABLE THEORY OF LAW, WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING LOST PROFITS, BUSINESS, CONTRACTS, REVENUE, GOODWILL, PRODUCTION, AND ANTICIPATED SAVINGS OR DATA, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE; AND (B) WATERPLAN’S AGGREGATE LIABILITY SHALL IN NO EVENT EXCEED THE FEES PAID BY CUSTOMER TO WATERPLAN DURING THE TWELVE (12) MONTH PERIOD PRIOR TO WHEN THE CLAIM AROSE.
8.1. Indemnification by Waterplan. Waterplan shall indemnify and defend Customer from and against any claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising from the infringement of a U.S. patent, copyright, trademark, or other intellectual property right asserted against Customer by a third party based upon Customer’s use of the Services in accordance with the terms of this Agreement, provided that Waterplan shall have received from Customer: (a) prompt written notice of such claim (but in any event notice in sufficient time for Waterplan to respond without prejudice); (b) the exclusive right to control and direct the investigation, defense, or settlement (if applicable) of such claim (as long as such settlement releases Customer from any and all liability); and (c) all reasonable necessary cooperation of Customer. If Customer’s use of any Service is, or in Waterplan’s opinion is likely to be, enjoined due to the type of infringement specified above, or if required by settlement, Waterplan may, in its sole and reasonable discretion: (x) substitute substantially functionally similar products or services; (y) procure for Customer the right to continue using the Services; or if (x) and (y) are commercially impracticable, (z) terminate this Agreement and refund to Customer any unused, prepaid fees paid by Customer for the terminated period. The foregoing indemnification obligation of Waterplan shall not apply to the extent that the alleged infringement arises from: (1) any modification of the Services other than by or on behalf of Waterplan; (2) access to or use of any Service in combination with any hardware, system, software, network, or other products, materials or services not provided by or on behalf of Waterplan (3) use of the Services in breach of this Agreement; or (4) Customer Data. THIS SECTION 8.1 SETS FORTH WATERPLAN’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
8.2. Indemnification by Customer. Customer shall indemnify, defend, and hold harmless Waterplan from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim arising from or relating to (a) Customer’s violation of any laws, regulations, or rights relating to Customer Data (including, without limitation, privacy laws, regulations, or rights), or Customer’s breach of Section 2.1, (b) any action taken (or not taken) by Customer based upon use of a Service, or (c) any dispute between Customer and any other user of the Services or Third-Party Service provider. This indemnification obligation is subject to Customer receiving: (x) prompt written notice of such claim (but in any event notice in sufficient time for Customer to respond without prejudice); (y) the exclusive right to control and direct the investigation, defense, or settlement of such claim (any settlement, subject to Waterplan’s prior written consent); and (z) all reasonably necessary cooperation of Waterplan at Customer’s expense.
9. CONFIDENTIAL INFORMATION
9.1. Definition. “Confidential Information” means information disclosed by one party to the other, including prior to the Effective Date, that is marked as confidential or proprietary or that ought reasonably to be understood as confidential or proprietary. All Waterplan Technology, performance information relating to the Services, and the terms and conditions of this Agreement (including the fees and pricing information) shall be deemed Confidential Information of Waterplan without any marking or further designation. Confidential Information does not include Customer Data, nor does it include information that the recipient already lawfully knew, that becomes public through no fault of the recipient, that was independently developed by the recipient without any reference to or use of Confidential Information, or that was rightfully obtained by the recipient from a third party.
9.2. Obligations. The recipient agrees not to disclose Confidential Information except to its Affiliates, employees, contractors and agents who need to know it and have agreed in writing to keep it confidential (with respect to Customer as recipient, excluding any Competitor). Only those parties may use the Confidential Information, and only to exercise the recipient’s rights and fulfill its obligations under this Agreement, while using at least a reasonable degree of care to protect it. The recipient may also disclose Confidential Information to the extent required by law after providing reasonable notice to the discloser and cooperating to obtain confidential treatment. Unauthorized disclosure of Confidential Information may cause harm not compensable by damages, and the disclosing party may seek injunctive or equitable relief in a court of competent jurisdiction, without posting a bond, to protect its Confidential Information.
Waterplan shall use reasonable physical, technical, and administrative procedures designed to protect, safeguard and help prevent loss, misuse, and unauthorized access, disclosure, alteration or destruction of Customer Data, and Waterplan will choose these safeguards based on the sensitivity of the information that is collected, processed, and stored and the current state of applicable technology.
Except as otherwise agreed in writing (email to suffice), neither party may use the other party’s name, logos, or marks without such party’s written pre-approval in each case. Waterplan may create and use a case study featuring Customer, including Customer’s name and logo, on Waterplan’s website and in Waterplan’s promotional materials, provided that Customer will have the right to pre-approve any such case study prior to the Waterplan’s first use thereof.
12. DATA PROCESSING
12.1. “Personal Data” means any information defined as “personal information” under the California Consumer Privacy Act of 2018, as amended (“CCPA”), “personal data” under the General Data Protection Regulation (Regulation (EU) 2016/679) (“GDPR”) or other similar terms under applicable data privacy and security laws, regulations, or other legal requirements.
12.2. If the Personal Data that Waterplan processes relates to individuals who are data subjects entitled to the rights granted under GDPR, Customer agrees that Waterplan does so as a data processor as defined in GDPR. If the Personal Data that Waterplan processes relates to individuals who are California residents, and Customer is subject to CCPA, Customer agrees that Waterplan does so as a service provider as defined in CCPA. Unless otherwise agreed by the parties, Waterplan will process Customer’s Personal Data solely to provide the Services, as reasonably required to comply with legal, regulatory or law enforcement obligations and to protect Waterplan’s rights or the rights of third parties, and as otherwise permitted by this Agreement. Any Data Processing Agreement (“DPA”) executed between Waterplan and Customer shall be incorporated herein by reference.
13. GENERAL TERMS
13.1. Interpretation. The terms “for example,” “including” and/or “includes” shall be deemed to mean “for example, but not limited to,” “including, but not limited to” or “includes, but is not limited to,” as applicable. This “Agreement” includes all executed Order Forms (including any statement of work referencing this agreement), and all attachments, addenda and exhibits hereto and thereto, which are incorporated herein by reference.
13.2. No Professional Advice. If the Waterplan or the Services provide professional information, such information is for informational purposes only and should not be construed as professional advice. Customer agrees and acknowledges that it will not take any action based upon any information contained in the Services, and Customer will seek independent professional advice from a person who is licensed and/or qualified in the applicable area.
13.3. Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement or any of its right or obligations hereunder except upon the advance written consent of the other party, except that either party may assign this Agreement and all of its rights and obligations hereunder without such consent in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities (provided that Customer shall not assign this Agreement, by operation of law or otherwise, to a Competitor). Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 13.3 will be null and void.
13.4. Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events (each, a “Force Majeure Event”) which occur after the signing of this Agreement and which are beyond the reasonable control of such party, such as a strike, blockade, epidemic, pandemic, government act, war, act of terrorism, riot, natural disaster, civil unrest or failure or diminishment of power, Third-Party Services, Customer systems, or telecommunications or data networks or services.
13.5. Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
13.6. Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
13.7. Governing Law; Jurisdiction and Venue. This Agreement shall be governed by the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court in San Francisco, California), any dispute arising under this Agreement shall be finally settled in binding arbitration. The Judicial Arbitration and Mediation Service, Inc. (“JAMS”) will administer the arbitration in accordance with its Comprehensive Arbitration Rules and Procedures (though to the extent JAMS’ Expedited Arbitration Procedures are available, they will apply), and the arbitration will be held in San Francisco, California. Subject to the foregoing provisions of this Section 13.7, the jurisdiction and venue for actions related to the subject matter hereof shall be the state and United States federal courts located in San Francisco, California and both parties hereby submit to the personal jurisdiction of such courts.
13.8. Notice. Any notice or communication required or permitted under this Agreement shall be in writing to the parties at the addresses set forth as first listed above or at such other address as may be given in writing by either party to the other in accordance with this Section and shall be deemed to have been received by the addressee (a) if given by hand, immediately upon receipt; (b) if given by overnight courier service, the first business day following dispatch or (c) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail. In addition, any legal notices to Waterplan must be also delivered to the following email address: email@example.com but, notwithstanding earlier receipt via email, legal notices will be deemed received when the physical notice is received (as set forth in preceding sentence).
13.9. Amendments; Waivers. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. Purchase orders (and similar documents) issued by Customer are for administrative purposes only (e.g., setting forth products and services ordered and associated fees) and any additional or different terms or conditions contained in any such order shall not apply (even if the order is accepted, or performed on by Waterplan).
13.10. No Third-Party Rights. There are no third-party beneficiaries to this Agreement.
13.11. US Government Rights. Each of the Documentation and the software components that constitute the Services is a “commercial item” 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. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.
13.12. Export Compliance. Each party shall comply with all applicable export and re-export control and trade and economic sanctions laws, including the Export Administration Regulations maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC), and the International Traffic in Arms Regulations maintained by the U.S. State Department. Neither party, nor any of its subsidiaries or any person acting on its behalf or owning 50% or more of its equity securities or other equivalent voting interests, is (a) a person on the List of Specially Designated Nationals and Blocked Persons or any other list of sanctioned persons administered by OFAC or any other governmental entity, or (b) a national or resident of, or a segment of the government of, any country or territory for which the United States has embargoed goods or imposed trade sanctions.
13.13. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties, and supersedes and cancels all previous written and oral agreements and communications, relating to the subject matter of this Agreement. This Agreement may be executed electronically and in counterparts (such as via DocuSign), which counterparts taken together shall form one legal instrument. Any pre-printed terms in a Customer purchase order or similar document are null and void.