This Terms of Service (this “Agreement”) shall govern the use of the website available at www.wwtpdesigns.com, wrrfdesigns.com (collectively, the “WWTP Designs Site”) and the proprietary web-based, hosted platform for the design of wastewater treatment plants and the provision of various content and information related thereto including products and services, made available through the WWTP Designs Site ( “WWTP Design Generator”), as such WWTP Design Generator may be updated from time to time by the Service Provider in its sole discretion (the WWTP Design Generator and the WWTP Designs Site are collectively referred to herein as the “Service”). The Service is made available by, and you contract with, Transcend Software, Inc., a Delaware corporation with registered offices at 61 Princeton-Hightstown Road, Suite 3A, Princeton, NJ 08550-1120. As used in this Agreement, (i) “the Service Provider” refers to Transcend Software, Inc. and (ii) “Europe” means the European Union, Albania, Andorra, Bosnia-Herzegovina, Iceland, Liechtenstein, Macedonia, Monaco, Montenegro, Norway, San Marino, Serbia, Switzerland, Turkey and Vatican City. This Agreement governs access to and use of the Service by you (“Customer”).
BEFORE YOU CHECK THE BOX STATING “I HAVE READ AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT”, PLEASE CAREFULLY READ THIS AGREEMENT. BY CHECKING THIS BOX, YOU ARE AGREEING TO BE BOUND BY AND TO COMPLY IN ALL RESPECTS WITH THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH ANY OF THE TERMS, THEN DO NOT CHECK THIS BOX.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF YOUR EMPLOYER OR OTHER ORGANIZATION, THE TERM “CUSTOMER” SHALL BE DEEMED TO INCLUDE SUCH EMPLOYER OR ORGANIZATION. YOU REPRESENT, WARRANT AND UNDERTAKE THAT YOU HAVE THE POWER AND AUTHORITY TO BIND SUCH EMPLOYER OR ORGANIZATION TO THIS AGREEMENT.
IMPORTANT: Even though access to and use of the Service is available free of charge, please note that Customer is not be able to generate a complete set of preliminary engineering documents relating to a Design (as defined in Section 2.3) unless Customer registers a User Account (as defined in Section 2.1.1).
1.1. Hosted Service. The Service shall be hosted by the Service Provider or its designee and the Service will be made available through the WWTP Designs Site for use by Customer in accordance with the terms of this Agreement.
1.2. Support Services. The Service shall be subject to modification from time to time at the Service Provider’s sole discretion in accordance with Section 10.5, for any purpose deemed appropriate by the Service Provider, provided that the Service Provider shall not modify the Service in a manner that materially adversely affects the performance of the Service. The Service Provider will provide updates or upgrades to the Service as such updates and upgrades may become generally available to all Service Provider customers of the Service. The Service Provider will undertake commercially reasonable efforts to make the Service available twenty four (24) hours a day, seven (7) days a week. Notwithstanding the foregoing, the Service Provider reserves the right to suspend Customer’s access to the Service: (a) for scheduled or emergency maintenance, or (b) in the event Customer is in breach of this Agreement, including failure to pay any Fees (as set forth in Section 4 below). Subject to the terms hereof, the Service Provider will provide reasonable support to Customer for the Service from Monday through Friday during the hours of 8:00 am to 4:00 pm Greenwich Mean Time.
2.1.1. To access the Service, Customer must register for a “User Account”. Each User Account shall be valid until cancelled by the Service Provider or Customer. The Service Provider or the Customer may terminate the Service pursuant to Section 6.5.
2.2 Service and Content.
2.2.1. Subject to the terms and conditions of this Agreement, the Service Provider grants Customer a limited, non-exclusive, non-transferable, non-sublicensable, worldwide, fee-bearing right during the term of this Agreement to access and use the WWTP Designs Site and other materials made available through the Service (collectively, the “Content”) solely for Customer’s personal use and internal business purposes.
2.2.2. If Customer registers a User Account, then, subject to the terms and conditions of this Agreement and in addition to the licenses granted in Section 2.2.1 above, the Service Provider grants Customer a limited, non-exclusive, non-transferable, non-sublicensable, worldwide, fee-bearing right during the term of this Agreement to(a) access and use the WWTP Design Generator on behalf of Customer in connection with one or more Projects (as defined below) and (b) download and reproduce the applicable instructional and operating or user manuals or any other documentation or information the Service Provider provides to Customer relating to the use of the WWTP Design Generator (the “Documentation”) solely for Customer’s internal business purposes in connection with a Project. “Project” means the planning, development and design of a specific wastewater treatment plant for which Customer has submitted design specifications and other data through the Service.
2.3.1. Subject to the terms and conditions of this Agreement (including, without limitation, the ownership provisions in Section 3.1), if Customer registers a User Account the Service Provider grants Customer a limited, non-transferable, worldwide, non-exclusive, non-sublicensable right for a period of five (5) years (unless this Agreement is terminated earlier pursuant to Section 6.2 (due to Customer’s breach), in which case the right shall terminate with immediate effect upon termination of this Agreement) (the “Design Term”) to (a) download, print, and copy a customized plant design for an Activated Sludge WWTP based on regional standards (the “Designs”) and related documents generated through the Service (such documents together with the Designs, the “Design Package”) from data submitted by Customer through the Service (the “Customer Data” solely for Customer’s internal business purposes in connection with the applicable Project, (b) incorporate or include the Design Package in reports or other materials prepared by Customer in connection with the applicable Project, and (c) subject to Section 7.1 below, disclose the Design Package to third parties solely in connection with the design, development or regulatory approval of the applicable Project on a need-to-know basis. The details of the materials provided in the Design Package for the User Accounts are on the WWTP Designs Site.
2.3.2. Except for the limited licenses granted in Section 2.2 and this Section 2.3, no other license or right shall be deemed granted or implied under this Agreement.
2.4 Restrictions. Except as expressly permitted in this Agreement, Customer may not register or attempt to register or make an application to register with the U.S. Patent and Trademark Office, the US Copyright Office, the UK Intellectual Property Office or any similar domestic or foreign registrar the Designs (if any) or the architectural works embodied in any Design, the Content or the Documentation.
2.5 Other Restrictions. In addition to the restrictions set forth in Section 2.4, Customer shall not:
a) except as may be expressly permitted under this Agreement, provide access to, sell, resell, license, sublicense, rent, lease, lend or transfer the Service, the Content, the Documentation or any Design to any other person (including any affiliate) or use the Service, Content, Documentation or Designs to provide any paid or unpaid services on an outsourced basis or otherwise to any other person (including any affiliate), including as an application service provider;
b) except as may be expressly permitted by applicable law, cause or permit the reverse engineering, translation, disassembly or decompilation of the Service or any software used to provide the Service, or otherwise attempt to derive source code or the underlying ideas, algorithms, structure or organization from the Service or any software used to provide the Service or a part thereof. If the jurisdiction in which Customer operates expressly permits by applicable law any of the foregoing activities regardless of contractual restriction, then Customer agrees that prior to engaging in any such activity, Customer will first notify the Service Provider of the desire to reverse engineer the Service and the reason for such reverse engineering, and the Service Provider may, in its sole discretion, either provide such information or impose reasonable terms and conditions on such use to ensure that the Service Provider’s proprietary rights are protected;
c) hide, remove, tamper, amend, alter, obscure or in any manner interfere with any proprietary rights notices (including, without limitation, watermarks or other proprietary rights notices which may appear hidden) contained on or within the Service, Content, Designs, if any (including any photocopies thereof) or Documentation (including any photocopies thereof);
d) use the Service, or introduce code or other items to the Service, in a manner that adversely affects the operation of the Service Provider’s servers or other systems, including any virus, worm, Trojan horse or other components harmful to the Service, the Service Provider’s network or equipment and other users of the Service;
e) send, transmit, distribute or store on or through the Service infringing, obscene, threatening, libelous, defamatory or otherwise unlawful or tortious material, including material that violates any third party rights;
f) create derivative works based on the Service;
g) access the Service in order to copy any features, functions or graphics of the Service;
h) breach or otherwise circumvent any security or authentication measures of the Service;
i) access, attempt to access, temper with, or use any unauthorized or non-public areas or parts of the Service;
j) use the Service to post unauthorized commercial communications (such as “spam”) or send altered, deceptive or false source-identifying information, including “spoofing” or “phishing”;
k) use the Service to collect users’ information or content, or generate automated queries (including screen and database scraping, spiders, robots, crawlers, and any other automated activity); or
2.6. Federal Government End Use Provisions. In relation to Customers who are US government bodies, the Service Provider provides the Service, and any related software and technology, for ultimate federal government end use solely in accordance with the following: government technical data and software rights related to the Service include only those rights customarily provided to the public as provided in this Agreement. The licenses provided hereunder are provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for transactions with the US Department of Defense, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation).
3.INTELLECTUAL PROPERTY OWNERSHIP
3.1. Subject to the rights and licenses granted by the Service Provider in Section 2.2 and Section 2.3, the Service Provider, its affiliates and its licensors (where applicable) reserve and retain all the rights, title, and interest (including all intellectual property rights) in and to (a) the Service, Content, Documentation, Designs (if any) and any other drawing, design, plan, artwork, model, specification, process, software, algorithms or other work product (including, without limitation, all related drafts and preparatory materials) created using the Service, (b) the Service Provider’s Confidential Information, (c) the Service Provider’s proprietary intellectual property and technology utilized in industrial and communal water, waste water treatment and surface water and groundwater remediation using engineered ecosystems combining natural and artificial complex ecologies, including the use of plants or the inclusion of plants, (d) all modifications, enhancements or improvements to the items set forth in (a) through (c) developed or acquired by or on behalf of the Service Provider (the “Improvements”) and (e) any suggestions, ideas, feedback, recommendations or other information provided by Customer or any third party relating to the Service or Content (the “Suggestions”). At no time will Customer acquire or retain any title to or ownership to any assets set forth in sub-clauses (a) through (e) of the immediately preceding sentence. In the event ownership of any Improvements or Suggestions does not automatically vest with the Service Provider or if Customer obtains any rights in any Design, Customer hereby irrevocably assigns to the Service Provider all such rights, title, and interest in and to such Design, Improvements and Suggestions and all intellectual property rights therein. The Service Provider shall be free to use, disclose, reproduce, license and otherwise distribute the Improvements and Suggestions without any obligations or restrictions of any kind. The Service Provider and its licensors reserve all rights not expressly granted herein. Customer shall provide the Service Provider reasonable cooperation and assistance (including executing all documents reasonably necessary) to implement and confirm the terms of this Section 3.1
3.2. Subject to the rights and licenses granted by Customer in this Section 3.2, Customer reserves and retains its entire right, title, and interest (including intellectual property rights) in and to Customer’s Confidential Information and all Customer Data. Notwithstanding the foregoing, Customer acknowledges that the Service Provider will be permitted to use Customer Data (a) to the extent needed to provide the Service to Customer and (b) to contact Customer regarding products and services offered by the Service Provider which may be of interest to Customer. Accordingly, Customer hereby grants the Service Provider a non-exclusive, transferable (in accordance with Section 10.11) limited, royalty-free, worldwide license (a) to use, host, store, reproduce, modify Customer Data and create derivative works therefrom in connection with the Service Provider’s provision of the Service, including any support services provided by the Service Provider, (b) to communicate, publish, publicly perform, publicly display and distribute Designs created from Customer Data, and (c) thereafter, solely for compliance with applicable legal and tax requirements and for further development of the Service, except as otherwise prohibited by law. At no time will the Service Provider acquire or retain any title to or ownership of Customer’s Confidential Information or Customer Data.
3.3. Neither party will take any action inconsistent with a party’s ownership and interests set forth in this Section 3 as set forth above, or assist any third party in doing the same.
3.4. As used in this Agreement, the term “Confidential Information” shall mean any and all technical and non-technical data or information, in oral, written, graphic or electronic form, that is either indicated to be the proprietary or confidential information of the disclosing party, or which, by its nature, the receiving party would reasonably deem to be confidential or proprietary, including any information that relates to the disclosing party’s research, development or business activities, ideas, know-how, inventions, processes, testing methods, specifications, designs, schematics, techniques, technical documentation, marketing or business plans, and financial information. Without limiting the foregoing, the Service, Content, Designs, Improvements, and Documentation and any other drawing, design, plan, artwork, specification, software, process, algorithm, model or other work product (including, without limitation, all related drafts and preparatory materials) created using the Service, the Content and the Documentation shall be deemed the exclusive Confidential Information of the Service Provider.
4.REPRESENTATIONS AND WARRANTIES
4.1. By Customer. Customer represents and warrants that (a) it is the sole and exclusive owner, or else has the right to use, any Customer Data transmitted through the Service, (b) it has all rights necessary to grant the license set forth in Section 3.2, (c) the Customer Data and other materials uploaded, posted, submitted or otherwise made available by Customer to or through the Service do not and will not infringe, misappropriate or otherwise violate the intellectual property rights of any third party and (d) the Customer Data is accurate, correct and complete.
4.2. By the Service Provider. The Service Provider represents and warrants that this Agreement and the Documentation accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. For any breach of this Section 4.2, Customer’s exclusive remedies are to terminate this Agreement upon thirty (30) days’ notice to the Service Provider.
4.3. Disclaimer. CUSTOMER ACKNOWLEDGES THE SERVICE IS PROVIDED ON AN “AS IS” BASIS, WITHOUT ANY WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING AND EXCEPT AS SET FORTH IN SECTION 4.2, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE PROVIDER HEREBY EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS REGARDING THE SERVICE (INCLUDING ANY CONTENT AND DESIGNS), WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE. WITHOUT LIMITING THE FOREGOING, THE SERVICE PROVIDER DOES NOT WARRANT THAT THE SERVICE, OR ANY UPDATES OR UPGRADES THERETO, WILL (A) BE ERROR-FREE, (B) MEET CUSTOMER’S REQUIREMENTS, OR (C) BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE. IT IS CUSTOMER’S SOLE RESPONSIBILITY TO INDEPENDENTLY EVALUATE THE ACCURACY, CORRECTNESS OR COMPLETENESS OF THE CUSTOMER DATA, THE SERVICES, THE RESULTS THEREOF AND ANY PRODUCTS OR SERVICES AVAILABLE THROUGH THE SERVICE, INCLUDING THE CONTENT AND THE DESIGNS.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE PROVIDER EXPRESSLY DISCLAIMS ANY WARRANTIES WITH RESPECT TO ANY ESTIMATES, FORECASTS, PROJECTIONS OR CALCULATIONS RELATED TO WASTEWATER TREATMENT PLANTS OR ANY PROJECT PROVIDED OR CONTAINED ON THE SERVICE. ALL SUCH ESTIMATES, FORECASTS, PROJECTIONS AND CALCULATIONS ARE ONLY STATEMENTS OF OPINION AND ARE NOT STATEMENTS OF FACT. NO STATEMENT, INFORMATION OR CALCULATION CONTAINED IN THE SERVICE IS TO BE CONSTRUED AS INVESTMENT ADVICE OR A RECOMMENDATION REGARDING THE DESIGN, CONSTRUCTION OR INVESTMENT IN ANY WASTEWATER TREATMENT PLANT. CUSTOMER TAKES FULL RESPONSIBILITY FOR ITS USE OF THE SERVICE INCLUDING ANY ACTIONS, EVALUATIONS, DEVELOPMENT PLANS AND INVESTMENT DECISIONS, WITHOUT LIABILITY OF ANY KIND TO THE SERVICE PROVIDER OR ANY OF ITS AFFILIATES.
NOTWITHSTANDING ANY OTHER CLAUSE OF THIS AGREEMENT, NOTHING shall limit either A PARTY’S liability for fraud, for death or personal injury caused by a Party’s negligence or any other losses which cannot be excluded by Applicable Law.
CUSTOMER UNDERSTANDS AND AGREES THAT THE DISCLAIMER OF WARRANTIES IN THIS AGREEMENT IS A FUNDAMENTAL PART OF THIS AGREEMENT AND THAT THE SERVICE PROVIDER WOULD NOT AGREE TO ENTER THIS AGREEMENT WITHOUT SUCH DISCLAIMER.
Subject to the provisions of this Section 5, Customer agrees to indemnify, hold harmless and defend the Service Provider, its affiliates, each of their respective employees, officers, directors, partners, shareholders, agents, attorneys, third-party advisors, successors, and permitted assigns, and all of such persons’ or entities’ successors and assigns (collectively, the “the Service Provider Indemnified Parties”), from and against any and all third party claims, actions, liabilities, losses, damages, costs or expenses (including reasonably attorneys’ fees) (each, a “Claim”) incurred or sustained by the Service Provider Indemnified Parties, or any of them, to the extent such Claim arises out of: (a) any violation of applicable law by Customer or an Authorized User; (b) any negligence or willful misconduct in connection with Customer’s or an Authorized User’s performance of this Agreement; (c) Taxes assessed or claimed against any of the Service Provider Indemnified Parties that are obligations of Customer; (d) Customer’s or an Authorized User’s misuse or misappropriation of the Service, Content or the Designs, if any; (e) a breach of any representation, warranty, covenant or undertaking made by Customer under this Agreement; (f) the use, storage or processing of any Customer Data provided by or on behalf of Customer; (g) Customer’s incorporation of a Design into any report or other materials; or (h) a material breach of this Agreement by Customer or its Authorized Users.
6.TERM AND TERMINATION
6.1. Term. This Agreement shall be effective on the day that Customer registers for the Service and shall remain in effect until terminated in accordance with this Agreement. Customer may notify the Service Provider of its desire to renew the Design Term thirty (30) days prior to the end of the initial or any renewal Design Term and the Service Provider may, at its sole discretion, renew the Design Term for a specific period of time to be determined by the Service Provider at its sole discretion.
6.2. Termination for Cause. Either party may terminate this Agreement immediately upon written notice to the other party, if the other party materially breaches this Agreement and such breach (a) is incapable of cure; or (b) being capable of cure, remains uncured thirty (30) days after the breaching party receives written notice thereof. Notwithstanding the foregoing, the Service Provider reserves the right to terminate this Agreement with immediate effect if Customer breaches the confidentiality provisions set forth in Section 8 or the license restrictions set forth in Section 2.4 or Section 2.5.
6.3. Termination for Insolvency. Either party may terminate this Agreement immediately upon written notice to the other party, if the other party (a) becomes insolvent or admits inability to pay its debts generally as they become due; (b) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven (7) days or is not dismissed or vacated within sixty (60) days after filing; (c) is dissolved or liquidated or takes any action for such purpose; (d) makes a general assignment for the benefit of creditors; (e) has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any portion of its property or business (and such appointment is not discontinued within sixty (60) days thereafter); or (f) undergoes any analogous procedure under the laws of any country.
6.4. Termination for Force Majeure. The Service Provider may terminate this Agreement in accordance with Section 9.9.
6.5. Termination for Convenience. The Service Provider may terminate this Agreement, with or without cause, upon thirty (30) days’ written notice to Customer. Customer may terminate this Agreement, with or without cause, upon thirty (30) days’ written notice to the Service Provider; provided, however that Customer shall remain obligated to pay for any Fees for the remainder of the Subscription Period.
6.6. Consequences of Termination.
a) The license granted in Section 2.2 of this Agreement shall immediately terminate on the effective date of expiration or termination of this Agreement, regardless of cause.
c) Customer shall, within thirty (30) days after termination or expiration of this Agreement, return to the Service Provider, or destroy, the Service Provider’s Confidential Information and any copy thereof; provided, however that Customer shall be entitled to continue to use any Design for the remainder of the applicable Design Term in accordance with Section 2.3 (so long as the Design Fee has been paid) except if this Agreement is terminated pursuant to Section 6.2 (due to Customer’s breach), Section 6.3 (due to Customer’s insolvency) in which case Customer’s right to use the Designs in Section 2.3 shall terminate with immediate effect. If Customer breaches the surviving provisions of this Agreement, or if Customer undergoes a change of control or becomes insolvent during the remainder of the applicable Design Term, then the Service Provider shall have the right to terminate Customer’s license to the Design immediately upon written notice to Customer.
d) The termination of this Agreement or any license granted herein shall not limit either party from pursuing any other remedies available to it, including injunctive relief, nor shall such termination relieve Customer’s obligation to pay all Fees that accrued prior to such termination. In addition, Sections 3, 4, 5, 6.7, 7, 8, and 9 shall survive any termination or expiration of this Agreement. In addition to the foregoing, the terms of Sections 2.3, 2.4, 2.5, 2.6, and 7.1 shall survive any termination or expiration of this Agreement solely with respect to Designs, if any, and only until the expiration or termination of the applicable Design Term.
7.1. Confidential Information.
a) During the term of this Agreement and thereafter, each party will maintain in confidence all Confidential Information disclosed to it by the other party (the “Disclosing Party”). During the term of this Agreement and thereafter, each party receiving Confidential Information from the other party (a “Receiving Party”) agrees not to use any Confidential Information it receives from a Disclosing Party except as expressly authorized by this Agreement, however that the Designs, if any, may be disclosed by Customer pursuant to the terms of Section 2.3.1(c) Notwithstanding any such agreement with a Design Recipient, Customer shall remain responsible and liable for any breach of the terms of this Agreement, including any breach by a Design Recipient or any other third party to whom such Designs may have been disclosed by the Design Recipient.
b) Customer shall promptly inform the Service Provider in writing if Customer becomes aware of any infringement or suspected infringement of the Service Provider’s rights in and to the Designs. Customer hereby agrees to cooperate with and reasonably assist the Service Provider, its counsel and agents in any enforcement or infringement action or other proceeding against the Design Recipients or any other third parties relating to the Designs. Customer shall be responsible for any breach of this Agreement by a Design Recipient.
c) In addition and without prejudice to the provisions of this Section 7.1 above, each Receiving Party will use at least the same standard of care as it uses to protect its own Confidential Information of similar nature to protect the confidentiality of the Confidential Information of the Disclosing Party, and in no event less than reasonable care. Each Receiving Party agrees to promptly notify the Disclosing Party upon discovery of any unauthorized use or disclosure of the Confidential Information. The restrictions on disclosure will not apply to Confidential Information which is required to be disclosed by a court, government agency or regulatory requirement, provided that recipient shall first notify the disclosing party of such disclosure requirement or order and use reasonable efforts to obtain confidential treatment or a protective order.
The obligations of confidentiality contained in Section 7.1 will not apply to the extent that it can be established by the Receiving Party beyond a reasonable doubt that such Confidential Information: (a) was already known to the Receiving Party, other than under an obligation of confidentiality, at the time of disclosure by the Disclosing Party; (b) was generally available to the public or otherwise part of the public domain at the time of its disclosure to the Receiving Party; (c) became generally available to the public or otherwise part of the public domain after its disclosure, other than through any act or omission of the Receiving Party in breach of this Agreement; (d) was disclosed to the Receiving Party, other than under an obligation of confidentiality, by a third party who had no obligation to the Disclosing Party not to disclose such information to others; or (e) was developed independently by the Receiving Party without any use of Confidential Information of the Disclosing Party.
7.3. User Name and Password.
Customer agrees that login information for the Registered User Account or User Account, including any username and password, is Confidential Information of the Service Provider and Customer shall not disclose such login information to any third party.
8.LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE SERVICE PROVIDER BE LIABLE TO CUSTOMER OR TO ANY PARTY CLAIMING THROUGH OR UNDER CUSTOMER FOR ANY LOST PROFITS, LOST DATA, EQUIPMENT DOWNTIME, OR FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, HOWEVER ARISING, RESULTING FROM THIS AGREEMENT OR THE PERFORMANCE OR USE OF THE SERVICE AND ANY DESIGNS, EVEN IF THE SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE SERVICE PROVIDER SHALL HAVE ABSOLUTELY NO LIABILITY FOR ANY USE OF THE SERVICE.
NOTWITHSTANDING THE FOREGOING, THE SERVICE PROVIDER SHALL HAVE ABSOLUTELY NO LIABILITY FOR CUSTOMER’S BREACH OR ATTEMPTED BREACH OF THE US EXPORT CONTROL REGULATIONS, AS AMENDED. FURTHERMORE, THE SERVICE PROVIDER SHALL HAVE ABSOLUTELY NO LIABILITY FOR ANY CUSTOMER DATA OR FOR ANY DEFECTS, ERRORS, OMISSIONS, INACCURACIES OR INCONSISTENCIES IN THE DESIGNS CAUSED BY OR ARISING FROM OR IN CONNECTION WITH ANY CUSTOMER DATA. CUSTOMER IS SOLELY RESPONSIBLE AND LIABLE FOR THE CUSTOMER DATA. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THE SUPPLY AGREEMENT, THE SERVICE PROVIDER SHALL HAVE NO LIABILITY FOR ANY DAMAGES WHATSOEVER ARISING OR RESULTING FROM OR IN CONNECTION WITH ANY WASTEWATER TREATMENT PLANT OR PROJECT CONSTRUCTED FROM, BASED UPON, OR THAT OTHERWISE UTILIZES ANY DESIGN.
CUSTOMER ACKNOWLEDGES AND AGREES THAT THE FOREGOING LIMITATIONS OF LIABILITY ARE AN ESSENTIAL BASIS FOR THIS AGREEMENT BETWEEN THE PARTIES AND THAT IN THEIR ABSENCE THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.
9.1. Governing Law.
9.1.1. If Customer is domiciled outside of Europe, Hong Kong, Australia or New Zealand, this Agreement and any non-contractual obligation arising out of or in connection with this Agreement (including any claim or controversy arising out of or relating to this Agreement) shall be governed in all respects by the laws of the State of New York, United States of America. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to the interpretation or construction of this Agreement.
9.1.2. If Customer is domiciled in Europe, Hong Kong, Australia or New Zealand, this Agreement and any non-contractual obligation arising out of or in connection with this Agreement (including any claim or controversy arising out of or relating to this Agreement) shall be governed in all respects by the laws of England and Wales. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to the interpretation or construction of this Agreement.
9.2.1. If Customer is domiciled in the United States, Mexico or Canada (collectively, “North America”) then the parties hereby agree and consent to exclusive jurisdiction and venue in the proper Federal or State court located in New York, New York for the resolution of any controversy or claim directly or indirectly arising from or relating to this Agreement and any non-contractual obligation arising out of or in connection with this Agreement or, in each case, the breach thereof, including any questions regarding its existence, validity or termination.
9.2.2. If Customer is domiciled in Europe, then the parties hereby agree and consent to exclusive jurisdiction and venue in the courts located in England and Wales for the resolution of any controversy or claim directly or indirectly arising from or relating to this Agreement and any non-contractual obligation arising out of or in connection with this Agreement or, in each case, the breach thereof, including any questions regarding its existence, validity or termination.
If Customer is domiciled outside of North America and Europe, then the parties irrevocably agree that any dispute or controversy arising out of or in connection with this Agreement and any non-contractual obligation arising out of or in connection with this Agreement, or, in each case, the breach thereof, including any questions regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the LCIA Rules, which Rules are deemed to be incorporated by reference into this Section 9.3. The number of arbitrators shall be one. The seat, or legal place, of arbitration shall be London, England. The language to be used in the arbitral proceedings shall be English. The arbitral award shall be final, binding and incontestable and judgment thereon may be entered in any court of competent jurisdiction. Notwithstanding the foregoing, either party shall be entitled to bring a claim in any court of competent jurisdiction for injunctive or other equitable relief, without bond, to restrain any actual or threatened breach of Section 3 or Section 7 by the other party or, in the case of the Service Provider, any actual or threatened breach of Section 2 by Customer.
9.4. Waiver of Jury Trial.
TO THE EXTENT APPLICABLE, EACH PARTY HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR THE SUBJECT MATTER HEREOF.
9.5. Terms Modification.
the Service Provider may revise this Agreement from time to time (the “Revised Terms”) and the most current version will always be posted on the WWTP Designs Site and Customer shall be responsible for checking the WWTP Designs Site for such revisions. If any Revised Terms, in the Service Provider’s sole discretion, are material, the Service Provider will notify Customer pursuant to Section 9.7. By continuing to access or use the Service or Content after such Revised Terms become effective, Customer agrees to be bound by the Revised Terms. If Customer does not agree to any material Revised Terms, Customer may terminate this Agreement within thirty (30) days of receiving notice of the change . Except for Revised Terms, this Agreement may not be modified except by mutual written agreement between the Service Provider and Customer that is signed by duly authorized representatives of both parties and expressly references amendment of this Agreement.
Failure or neglect by either party to enforce at any time any of the provisions hereof shall not be construed nor shall be deemed to be a waiver of such party’s rights hereunder nor in any way affect the validity of the whole or any part of this Agreement nor prejudice such party’s rights to take subsequent action.
All notices, including notices of address change, required to be sent hereunder shall be in writing and shall be sent by first class mail or overnight courier and are deemed given when received. Notices to the Service Provider must be sent to: 61 Princeton-Hightstown Road, Suite 3A, Princeton, NJ 08550-1120. Notices given by Customer under this Section 10.7 may be confirmed by e-mail (which shall not serve as notice) to email@example.com. Notices to Customer will be sent to the address set forth in Customer’s registration form. Notices to Customer may also be sent to the applicable account email address set forth in Customer’s registration form and shall be deemed given when sent.
In the event that any provision contained in this Agreement is determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such provision shall to that extent be severed from the remaining clauses and provisions, or the remaining part of the clause in question, which shall continue to be valid and enforceable to the fullest extent permitted by law.
9.9. Force Majeure.
Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of events beyond the reasonable control of such party, which may include without limitation Internet denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each a “Force Majeure Event”). If a Force Majeure Event continues for longer than thirty (30) days, then the Service Provider shall have the right to terminate this Agreement immediately upon written notice to Customer.
9.10. Relationship between the Parties.
The Service Provider and Customer are independent contractors. Nothing in this Agreement shall be construed to create a partnership, joint venture, employer/employee or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent.
This Agreement may not be assigned by Customer to any party without the prior written consent of the Service Provider. The Service Provider may freely assign all or part of its rights under this Agreement, in whole or in part. Any assignment in violation of this Section 9.11 shall be null and void from the beginning, and shall be deemed a material breach of this Agreement.
9.12. No Third-Party Beneficiaries.
Except for the Service Provider Indemnified Parties specified in Section 5, no third party will have the right to enforce any provision of this Agreement as a third party beneficiary, including pursuant to the Contracts (Rights of Third Parties) Act 1999. Notwithstanding the rights of the Service Provider Indemnified Parties, Customer and the Service Provider may amend this Agreement without reference to, or the consent of, the Service Provider Indemnified Parties.
Customer agrees to participate in press announcements, case studies, trade shows, or other forms reasonably requested by the Service Provider.
9.14. Compliance with Law.
In exercising its rights under this Agreement, Customer (a) shall at all times comply with all applicable international, federal, state and local laws, including, without limitation, the Foreign Corrupt Practices Act of 1977, as amended, and the UK Bribery Act of 2010, as amended, and any comparable laws in any country from or to which services or goods are provided by Customer or its affiliates, and (b) shall not engage in any illegal or unethical practices. Without limiting the foregoing, Customer agrees that Customer shall not download, export, or re-export any software or technical data received hereunder, regardless of the manner in which received, (i) into, or to a national or resident of, any country to which the United States has embargoed goods, or (ii) to anyone on the United States Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders.
9.15. Entire Agreement.
LEGAL DISCLAIMER ON DESIGNS
THESE PRELIMINARY ENGINEERING DESIGN DOCUMENTS (HEREINAFTER REFERRED TO AS “DESIGNS”) HAVE BEEN GENERATED THROUGH WWTPDESIGNS.COM (WWTP DESIGN GENERATOR) FROM DATA SUBMITTED BY @client_name@ THROUGH WWTPDESIGNS.COM (“CUSTOMER DATA”) SOLELY FOR @client_name@’S INTERNAL BUSINESS PURPOSES IN CONNECTION WITH @proj_name@.
THE SERVICE PROVIDER OF WWTPDESIGNS.COM EXPRESSLY DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND REGARDING THE USE OF THE DESIGNS (OR ANY PLANT CONSTRUCTED BASED ON THE DESIGNS) IN CONNECTION WITH ANY EQUIPMENT, TECHNOLOGY OR OTHER MATERIALS OF ANY THIRD PARTY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE OPERATORS OF WWTPDESIGNS.COM HEREBY EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS REGARDING THE DESIGNS (OR ANY PLANT CONSTRUCTED BASED ON THE DESIGNS), WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE. WITHOUT LIMITING THE FOREGOING, THE OPERATORS OF WWTPDESIGNS.COM DO NOT WARRANT THAT THE DESIGNS WILL (A) BE ERROR-FREE, OR (B) MEET CUSTOMER’S REQUIREMENTS. IT IS CUSTOMER’S SOLE RESPONSIBILITY TO INDEPENDENTLY EVALUATE THE ACCURACY, CORRECTNESS OR COMPLETENESS OF THE DESIGNS.
NO INFORMATION OR CALCULATION CONTAINED IN THE DESIGNS IS TO BE CONSTRUED AS INVESTMENT ADVICE OR A RECOMMENDATION REGARDING THE DESIGN, CONSTRUCTION OR INVESTMENT IN ANY WASTEWATER TREATMENT PLANT. CUSTOMER TAKES FULL RESPONSIBILITY FOR ITS USE OF THE DESIGNS INCLUDING ANY ACTIONS, EVALUATIONS, DEVELOPMENT PLANS AND INVESTMENT DECISIONS, WITHOUT LIABILITY OF ANY KIND TO THE OPERATORS OF WWTPDESIGNS.COM OR ANY OF ITS AFFILIATES.
CUSTOMER UNDERSTANDS AND AGREES THAT THIS DISCLAIMER OF WARRANTIES IS A FUNDAMENTAL PART OF THE DESIGNS AND THAT THE OPERATORS OF WWTPDESIGNS.COM WOULD NOT PROVIDE THE DESIGNS WITHOUT SUCH DISCLAIMER.