Last updated: July 21, 2026

These Terms and Conditions are organized in two parts. Part I (Website Terms of Use) applies to everyone who accesses or uses the Waterplan website. Part II (Subscription Terms) applies to customers who subscribe to Waterplan’s products and services under an Order Form. If you are a subscribing customer, both parts apply to you; in the event of a conflict between Part I and Part II with respect to the subject matter of your subscription, Part II controls.

Please read the Website Terms carefully. Part I, Section J below contains a binding arbitration agreement and a class action and jury trial waiver. By accessing or using the website, you agree that disputes between you and Waterplan will be resolved by individual binding arbitration, and you waive the right to participate in a class action or have a trial by jury, except as otherwise provided in Section J. You may opt out of arbitration within the time period described in Section J.

PART I — WEBSITE TERMS OF USE (Applicable to All Visitors)

These Website Terms of Use (“Website Terms”) govern your access to and use of the websites operated by Climateplan Inc., d/b/a Waterplan (“Waterplan,” “we,” “us,” or “our”), including www.waterplan.com (the “Site”). They form a binding agreement between you and Waterplan.

A. Acceptance of These Terms

By accessing, browsing, or otherwise using the Site, you acknowledge that you have read, understood, and agree to be bound by these Website Terms, including the Arbitration Agreement in Section J, and by our Privacy Policy, which is incorporated herein by reference. If you do not agree, do not access or use the Site.

B. Eligibility

The Site is intended for users who are at least 16 years of age and have the legal capacity to enter into a binding agreement. The Site is not directed to children, and we do not knowingly collect personal information from individuals under 16.

C. Consent to Cookies, Tracking, Recording, and Electronic Communications

You acknowledge and agree that, subject to the choices you make in our cookie preferences manager, the Site uses cookies, pixels, software development kits (“SDKs”), and similar technologies — including analytics, session-analysis, chat, and advertising tools provided by us and by third parties — that may collect, record, intercept, store, and share information about your interactions and communications with the Site, including pages viewed, clicks, scrolling, form inputs, and messages you submit.

To the extent you enable and consent to such technologies, you expressly consent to the collection, recording, interception, monitoring, storage, and disclosure of your interactions and communications by Waterplan and by our third-party partners, and you acknowledge that such third parties may receive this information directly and process it under their own privacy policies. This consent is given for purposes of all applicable wiretap, eavesdropping, and electronic communications laws, including the California Invasion of Privacy Act (“CIPA”). You may withdraw consent at any time by adjusting your settings in the cookie preferences manager, which will apply prospectively. See our Privacy Policy for details.

You also consent to receive communications from us electronically, and you agree that all agreements, notices, disclosures, and other communications we provide electronically satisfy any legal requirement that such communications be in writing.

D. License and Acceptable Use

Subject to these Website Terms, Waterplan grants you a limited, non-exclusive, non-transferable, revocable license to access and use the Site for your personal or internal business informational purposes. You agree not to: (a) use the Site in violation of any applicable law or regulation; (b) copy, modify, distribute, sell, or create derivative works from the Site or its content except as expressly permitted; (c) reverse engineer or attempt to access the source code of the Site; (d) use any robot, spider, scraper, data-mining, or other automated means to access or collect data from the Site; (e) probe, scan, or test the vulnerability of the Site or breach any security or authentication measures; (f) introduce any virus, malware, or harmful code; (g) interfere with or disrupt the integrity or performance of the Site; or (h) use the Site to infringe the rights of, or to harass, harm, or defraud, any person.

E. Intellectual Property

The Site and all content, features, and functionality (including text, graphics, logos, designs, and software) are owned by Waterplan or its licensors and are protected by intellectual property laws. The Waterplan name, logo, and marks may not be used without our prior written permission. No rights are granted to you except as expressly set forth in these Website Terms.

F. Third-Party Links and Services

The Site may contain links to third-party websites or services that we do not control. We are not responsible for the content, policies, or practices of any third party, and your use of any third-party website or service is at your own risk and subject to that third party’s terms.

G. Disclaimers

THE SITE AND ALL CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. WATERPLAN DOES NOT WARRANT THAT THE SITE WILL BE UNINTERRUPTED, SECURE, OR ERROR-FREE, OR THAT ANY CONTENT IS ACCURATE OR COMPLETE. ANY INFORMATION ON THE SITE IS PROVIDED FOR GENERAL INFORMATIONAL PURPOSES ONLY AND DOES NOT CONSTITUTE PROFESSIONAL ADVICE.

H. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL WATERPLAN OR ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE, DATA, OR GOODWILL, ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF (OR INABILITY TO ACCESS OR USE) THE SITE, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WATERPLAN’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO YOUR USE OF THE SITE WILL NOT EXCEED ONE HUNDRED U.S. DOLLARS (US$100). SOME JURISDICTIONS DO NOT ALLOW CERTAIN OF THESE LIMITATIONS, SO SOME OF THE ABOVE MAY NOT APPLY TO YOU.

I. Indemnification

You agree to indemnify, defend, and hold harmless Waterplan and its affiliates, officers, employees, and agents from and against any claims, damages, losses, liabilities, and expenses (including reasonable attorneys’ fees) arising out of or relating to your access to or use of the Site, your violation of these Website Terms, or your violation of any law or the rights of any third party.

J. Arbitration Agreement

PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS. BY AGREEING TO THIS ARBITRATION AGREEMENT, YOU WAIVE YOUR RIGHTS TO TRY ANY CLAIM IN COURT BEFORE A JUDGE OR JURY AND TO BRING OR PARTICIPATE IN ANY CLASS OR OTHER REPRESENTATIVE ACTION. YOU UNDERSTAND THAT YOU HAVE THE RIGHT TO REJECT THIS PROVISION BY OPTING OUT, AS PROVIDED BELOW.

Definitions. For purposes of this Arbitration Agreement (Section J) the terms below have the following meanings. Other capitalized terms have the same meaning as set forth in the Website Terms.

“You” and “your” mean the individual(s) entering into this Arbitration Agreement, as well as any person claiming through such individual;

“We” and “us” means Climateplan Inc., d/b/a Waterplan (“Waterplan”), and its employees, officers, directors, agents, independent contractors, affiliates, subsidiaries, service providers, and their employees, agents, independent contractors, affiliates, subsidiaries, and service providers;

You and We are collectively referred to as the “Parties;”

“Claim” means any dispute, claim, or controversy (whether based on contract, tort, intentional tort, constitution, statute, ordinance, common law, or equity, whether pre-existing, present, or future, and whether seeking monetary, injunctive, declaratory, or any other relief) arising from or relating to these Website Terms, your access to or use of the Site, and the relationship between us and you, and includes claims that are brought as counterclaims, cross claims, third party claims or otherwise, as well as disputes about the validity or enforceability of this agreement or the validity or enforceability of this Arbitration Agreement (except the validity, enforceability, and effect of the No Class Action Proceedings, Notice and Cure, and Public Injunctive Relief Requests paragraphs, which shall be determined by a court). Claims filed by you or by us in a small claims court are not subject to arbitration, so long as the dispute remains in such court and advances only an individual claim for relief. Either party may seek injunctive or other equitable relief in a court of competent jurisdiction to protect its intellectual property or confidential information.

Agreement to Arbitrate. You and We agree that any and all Claims, which are not resolved pursuant to the notice and cure requirements below, shall be resolved by binding arbitration on an individual basis. Subject to the terms of this Arbitration Agreement, either you or we may start an arbitration by giving written notice to the other party. This notice may be given before or after a lawsuit has been filed concerning the Claim and it may be given by papers filed in the lawsuit such as a motion to compel arbitration. The arbitration shall be administered by JAMS unless you and we agree to another arbitration administrator. JAMS’ rules may be obtained from www.jamsadr.com or 1-800-352-5267 (toll free). If JAMS is unavailable, or declines to administer the arbitration, and the Parties are unable to agree on an alternative administrator, then either we or you may petition a court of competent jurisdiction to appoint an arbitrator. Any arbitration under this Arbitration Agreement will take place on an individual basis; class arbitrations and class actions are not permitted. The arbitrator shall be selected from the JAMS panel of neutrals and shall be a retired federal judge, a retired state appellate judge, or a retired state trial judge (in that order of preference). Upon request, the arbitrator shall issue a written award describing the essential findings supporting the award. Except as provided in the “No Class Action Proceedings” and “Public Injunctive Relief Requests” paragraphs below, the arbitrator shall have the power to award any relief authorized under applicable law, including injunctive relief.

No Class Action Proceedings. YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN OUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. The arbitrator shall have no power to arbitrate any Claims on a class action basis or Claims brought in a purported representative capacity on behalf of the general public or other persons similarly situated. Further, except as provided in the Mass Arbitration section below or both you and we agree otherwise in writing, the arbitrator may not consolidate more than one person’s claims. This paragraph does not apply to requests for public injunctive relief, which are addressed in the paragraph below entitled “Public Injunctive Relief Requests.” No arbitration award under this Arbitration Agreement will affect any dispute involving any other party. No arbitration award under another party’s agreement will affect any arbitration under this Arbitration Agreement. The validity, enforceability, and effect of this paragraph shall be determined exclusively by a court, and not by the administrator or any arbitrator.

Jury Trial Waiver. YOU AND WE AGREE THAT, BY ENTERING INTO THESE TERMS OF USE, THE PARTIES ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY. YOU AND WE ACKNOWLEDGE THAT ARBITRATION WILL LIMIT OUR RESPECTIVE LEGAL RIGHTS, INCLUDING, THE RIGHT TO A JURY TRIAL, THE RIGHT TO CONDUCT FULL DISCOVERY, AND THE RIGHT TO APPEAL (EXCEPT AS PERMITTED IN THIS ARBITRATION AGREEMENT OR UNDER THE FAA).

Public Injunctive Relief Requests. If you or we seek public injunctive relief as a remedy for any Claim (a “Public Injunctive Relief Request”) you and we agree that the Public Injunctive Relief Request cannot be arbitrated. Instead, the Public Injunctive Relief Request shall be adjudicated by a court after all other Claims to be decided in arbitration under this Arbitration Agreement are resolved in arbitration. You and we agree to jointly request that the court stay the Public Injunctive Relief Request until after the remaining Claims have been finally resolved in arbitration, and that the parties will only seek to lift the stay and request that a court resolve the Public Injunctive Relief Request if an arbitrator finds that one of them is liable for a Claim for which public injunctive relief is an available remedy. The validity, enforceability, and effect of this paragraph shall be determined exclusively by a court, and not by any arbitration administrator or arbitrator.

Arbitration Costs. We will cover all filing, administrative, hearing, and Arbiter’s fees except, if applicable, any consumer filing fee assessed by the arbitration administrator. Under no circumstances will your liability for a consumer filing fee exceed $250.00; we will cover any excess over that amount. We will also cover any consumer filing fee if a court or arbitrator determines that it is necessary to enforce this Arbitration Agreement. Each party shall bear the expense of its own counsel, experts, witnesses and preparation and presentation of proofs except where applicable law provides for an award of reasonable attorney’s fees to the prevailing party.

Applicability of the FAA and Survival. You and we acknowledge and agree that these Website Terms evidence a transaction involving interstate commerce. Accordingly, the Federal Arbitration Act (9 U.S.C. §1-16) (the “FAA”) shall govern this Arbitration Agreement. The arbitrator shall not apply any state law governing consolidation or joinder of parties or claims in (or subject to) arbitration; arbitration must be conducted on an individualized basis. This Arbitration Agreement shall survive the termination of this agreement.

Notice and Cure. Before starting an arbitration, the party electing to commence a proceeding must give the other party written notice of the claim. The notice must include: (1) the name, telephone number, mailing address, and email address of the party seeking arbitration; (2) reasonable detail of the claim, including supporting facts; (3) the remedy sought and a good-faith calculation of the amount in controversy, expressed in United States Dollars; and (4) the original signature of the party making a claim. You must send the notice by email to legal@waterplan.com. If we intend to make a claim, we will notify you in writing by email or certified mail return receipt requested at the most recent address we have for you in our files. The complaining party must give the other party a reasonable opportunity over the sixty (60) days after notice is received to resolve the claim on an individual basis. We will toll any applicable period of limitations during the 60-day period commencing with receipt of your notice provided you engage in a good faith effort to resolve the dispute on an individual basis as contemplated by this provision during that 60-day period. If requested by the party that receives the notice, the other party must personally participate in an individualized telephone or video settlement conference (if a party is represented by counsel, counsel may also participate) to discuss the dispute. If the dispute is not resolved within sixty (60) days after receipt of the notice (which period can be extended by agreement of the parties), you or we may commence an arbitration proceeding by filing a demand for arbitration with JAMS consistent with the process set forth in this clause. Compliance with and completing the foregoing informal dispute resolution process (the “Informal Resolution Requirement”) is a condition precedent to filing a demand for arbitration. If the sufficiency of a notice or compliance with this informal dispute resolution process is at issue, it shall be decided by a court at either party’s election, and any arbitration proceeding shall be stayed pending resolution of the issue. A court of competent jurisdiction shall have the authority to enforce this condition precedent to arbitration, which includes the power to enjoin the filing or prosecution of a demand for arbitration.

Mass Arbitration. In the event that 75 or more similar demands for arbitration are filed against the same party or related parties by individuals represented by the same law firm or law firms acting in coordination, the JAMS Mass Arbitration Procedures and Guidelines will apply, subject to the provisions of this Arbitration Agreement. The JAMS Mass Arbitration Procedures and Guidelines are available from www.jamsadr.com or 1-800-352-5267 (toll free). If the JAMS Mass Arbitration Procedures and Guidelines apply, JAMS will appoint a process administrator to exercise the powers granted under the JAMS Mass Arbitration Procedures and Guidelines. All decisions issued by the process administrator may be reviewed by the merits arbitrator de novo once appointed. Accordingly, the merits arbitrator will have the power to modify, correct, amend, reverse, or otherwise alter the decision of the process administrator with respect to the particular Claims before the merits arbitrator.

Severability. If any portion of this Arbitration Agreement is deemed invalid or unenforceable for any reason, it shall not invalidate the remaining portions of this Arbitration Agreement. However, if the No Class Action Proceedings paragraph or the Public Injunctive Relief Requests paragraph of this Arbitration Agreement is deemed invalid or unenforceable in whole or in part, then this entire Arbitration Agreement shall be deemed invalid and unenforceable with respect to the Claims you have brought. The terms of this Arbitration Agreement will prevail if there is any conflict between the rules of the applicable arbitration administrator and this section.

30-day right to opt out. You may opt out of this arbitration agreement (Section J) by sending written notice of your decision to opt out to legal@waterplan.com within thirty (30) days of first accepting these Website Terms. Your notice must include your name and a clear statement that you wish to opt out of arbitration. If you opt out, neither you nor Waterplan can require the other to arbitrate, and Disputes will be resolved in the courts identified in Section K.

K. Governing Law; Venue

Except for the Arbitration Agreement in Section J, these Website Terms are governed by the laws of the State of California, without regard to its conflict-of-laws rules. Subject to Section J, any Dispute not subject to arbitration will be brought exclusively in the state or federal courts located in San Francisco, California, and you consent to the personal jurisdiction of those courts.

L. Changes to These Website Terms

We may update these Website Terms from time to time. Changes are effective when posted with a revised “Last updated” date. Your continued use of the Site after changes are posted constitutes your acceptance of the revised Website Terms.

M. Severability and Entire Agreement

If any provision of these Website Terms is held unenforceable, that provision will be limited to the minimum extent necessary and the remaining provisions will remain in full force. These Website Terms, together with the Privacy Policy, constitute the entire agreement between you and Waterplan regarding your use of the Site.

N. Contact

Questions about these Website Terms may be directed to legal@waterplan.com.

PART II — SUBSCRIPTION TERMS (Applicable to Customers)

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. Ownership

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 Company’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. After each Subscription Term, Company may increase the annual subscription fees upon each renewal by a maximum of 4% per year, by providing at least 30 days’ prior written notice to Customer. Fees are payable through automated clearing house (“ACH”) transfers and international wire transfers. Upon Company’s request, Customer agrees to promptly complete and submit an ACH authorization form to Company. 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 Company. 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. Indemnification

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.

10. Security

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.

11. Publicity

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: legal@waterplan.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.