TERMS OF USE

VIVOAQUATICS TERMS OF SERVICE

PLEASE READ THESE TERMS OF SERVICE ("TERMS") CAREFULLY BEFORE USING THE VIVOAQUATICS SYSTEM, INCLUDING THE SERVICES, DOWNLOADABLE SOFTWARE, AND EQUIPMENT. BY USING THE VIVOAQUATICS SYSTEM, YOU ("CUSTOMER") ARE CONSENTING TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, PROMPTLY RETURN THE EQUIPMENT, DELETE THE DOWNLOADABLE SOFTWARE, AND DO NOT USE THE SERVICES.

  1. Definitions.

    • "Aggregated Statistics" means data and information related to Customer's use of the Services that is used by VivoAquatics in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
    • "Authorized User" means Customer's employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the VivoAquatics System under the rights granted to Customer pursuant to these Terms and (ii) for whom access to the VivoAquatics System has been purchased hereunder.
    • "Customer Data" means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the VivoAquatics System.
    • "Downloadable Software" means software that VivoAquatics makes available for download or installation via media provided by VivoAquatics, that is specifically for purposes of facilitating access to, operation of, or use with the Services, and any updates VivoAquatics may make available to such software from time-to-time.
    • "Equipment" means physical tools that VivoAquatics makes available for purchase by Customer to facilitate or augment use of the Services.
    • "VivoAquatics IP" means the VivoAquatics System and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, VivoAquatics IP includes Aggregated Statistics and any information, data, or other content derived from VivoAquatics' monitoring of Customer's access to or use of the Services or Downloadable Software, but does not include Customer Data.
    • "Order" means the form or document under which VivoAquatics agrees to provide and Customer agree to receive the VivoAquatics System, including purchase via an online portal, and including a description of the specific scope of the Services and Equipment to be provided to Customer, as well as applicable fees, subscription period, invoicing and renewal process, authorized users, and any other limitations, a sample form of which is Exhibit A.
    • "VivoAquatics System" means the Services, Equipment, and the Downloadable Software.
    • "Services" means the software-as-a-services offering of VivoAquatics, including VivoPoint, VivoPoint Pro and the VivoAquatics AI Chatbot as may be procured by Customer.

  2. Access and Use.

    • Provision of Access. Subject to and conditioned on Customer's payment of Fees (as defined below) and compliance with all other terms and conditions of these Terms, VivoAquatics hereby grants to Customer a non-exclusive, non-transferable (except in compliance with Section 12(g)) right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein and an applicable Order. Such use is limited to Customer's internal use. VivoAquatics shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the Services. The total number of Authorized Users will not exceed the number set forth in the applicable Order, except as otherwise expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the Fees payable hereunder.
    • Downloadable Software and Equipment Terms. Subject to the terms and conditions contained in these Terms, VivoAquatics hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 12(g)) license during the Term to: (i) use Downloadable Software, in object code format, solely for Customer's internal use in connection with its use of the Services and the Equipment as specified in an applicable Order, (ii) use the Equipment provided to Customers in conjunction with the Service. Customer's use of Downloadable Software must comply with the additional terms and conditions set forth in Exhibit A (the "Downloadable Software and Equipment Terms"). In the event of any inconsistency between the Downloadable Software and Equipment License Terms and these Terms, Terms in Exhibit A shall apply only with respect to the Downloadable Software and Equipment references and not the Services provided under these Terms.
    • Use Restrictions. Customer shall not use the VivoAquatics IP for any purposes beyond the scope granted in these Terms. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the VivoAquatics IP, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the VivoAquatics IP; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the VivoAquatics IP, in whole or in part; (iv) remove any proprietary notices from the VivoAquatics IP; or (v) use the VivoAquatics IP in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
    • Reservation of Rights. VivoAquatics reserves all rights not expressly granted to Customer in these Terms. Except for the limited rights and licenses expressly granted under these Terms, nothing in these Terms grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the VivoAquatics IP.
    • Suspension. Notwithstanding anything to the contrary in these Terms, VivoAquatics may temporarily suspend Customer's and any Authorized User's access to any portion or all of the Services if: (i) VivoAquatics reasonably determines that (A) there is a threat or attack on any of the VivoAquatics IP; (B) Customer's or any Authorized User's use of the VivoAquatics IP disrupts or poses a security risk to the VivoAquatics IP or to any other customer or vendor of VivoAquatics; (C) Customer, or any Authorized User, is using the VivoAquatics IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) VivoAquatics' provision of the Services to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of VivoAquatics has suspended or terminated VivoAquatics' access to or use of any third-party services or products required to enable Customer to access the Services; or (iii) in accordance with Section 5(a)(iii) (any such suspension described in subclause (i), (ii), or (iii), a "Service Suspension"). VivoAquatics shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. VivoAquatics shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. VivoAquatics will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
    • Aggregated Statistics. Notwithstanding anything to the contrary in these Terms, VivoAquatics may monitor Customer's use of the Services and collect and compile Aggregated Statistics. As between VivoAquatics and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by VivoAquatics. Customer acknowledges that VivoAquatics may compile Aggregated Statistics based on Customer Data input into the Services. Customer agrees that VivoAquatics may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer or Customer's Confidential Information.
  3. Customer Responsibilities.
    • General. Customer is responsible and liable for all uses of the VivoAquatics IP resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of these Terms. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of these Terms if taken by Customer will be deemed a breach of these Terms by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of these Terms’ provisions as applicable to such Authorized User's use of the VivoAquatics IP and shall cause Authorized Users to comply with such provisions.
  4. Support
    The access right granted hereunder entitles Customer to the support services described from time to time on VivoAquatics' website located at https://www.vivoaquatics.com/contact/ for the period specified therein following the Effective Date under these Terms and thereafter, solely if Customer purchases additional support services.
  5. Fees and Payment
    • Fees. Customer shall pay VivoAquatics the fees ("Fees") as set forth in the applicable Order. Customer shall make all payments hereunder in U.S. dollars on or before the due date set forth in the Order. If Customer fails to make any payment when due, without limiting VivoAquatics' other rights and remedies: (i) VivoAquatics may charge interest on the past due amount at the rate of 1.5% per month/ calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse VivoAquatics for all costs incurred by VivoAquatics in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees; and (iii) if such failure continues for thirty (30) days or more, VivoAquatics may suspend Customer's and its Authorized Users' access to any portion or all of the Services until such amounts are paid in full.
    • Taxes. All Fees and other amounts payable by Customer under these Terms are exclusive of taxes and similar assessments. Customer is responsible for any applicable taxes, including, without limitation, any sales, use, levies, duties, or any value added or similar taxes payable with respect to Customer’s subscription and assessable by any local, state, provincial, federal, or foreign jurisdiction. Unless expressly specified otherwise in the Order Form, all fees, rates, and estimates exclude sales taxes. If VivoAquatics believes any such tax applies to Customer’s subscription and VivoAquatics has a duty to collect and remit such tax, the same may be set forth on an invoice to Customer unless Customer provides VivoAquatics with a valid tax exemption certificate, direct pay permit, or multi-state use certificate, and shall be paid by Customer immediately or as provided in such invoice. Customer shall indemnify, defend, and hold harmless VivoAquatics and its officers, directors, employees, shareholders, agents, partners, successors, and permitted assigns against any and all actual or threatened claims, actions, or proceedings of any taxing authority arising from or related to the failure to pay taxes owed by Customer, except to the extent that any such claims, action, or proceeding is directly caused by a failure of VivoAquatics to remit amounts collected for such purpose from Customer. VivoAquatics is solely responsible for taxes based upon VivoAquatics’ net income, assets, payroll, property, and employees.
    • Auditing Rights and Required Records. Customer agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of two years after the termination or expiration of these Terms with respect to matters necessary for accurately determining amounts due hereunder. VivoAquatics may, at its own expense, on reasonable prior notice, periodically inspect and audit Customer's records with respect to matters covered by these Terms, provided that if such inspection and audit reveals that Customer has underpaid VivoAquatics with respect to any amounts due and payable during the Term, Customer shall promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with Section 5(a). Customer shall pay for the costs of the audit if the audit determines that Customer's underpayment equals or exceeds 10% for any quarter. Such inspection and auditing rights will extend throughout the Term of these Terms and for a period of two years after the termination or expiration of these Terms.
  6. Confidential Information
    . From time to time during the Term, Customer or VivoAquatics may disclose or make available to the other party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as "confidential" (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving party at the time of disclosure; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (d) independently developed by the receiving party. The receiving party shall not disclose the disclosing party's Confidential Information to any person or entity, except to the receiving party's employees who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (ii) to establish a party's rights under these Terms, including to make required court filings. On the expiration or termination of these Terms, the receiving party shall promptly return to the disclosing party all copies, whether in written, electronic, or other form or media, of the disclosing party's Confidential Information, or destroy all such copies and certify in writing to the disclosing party that such Confidential Information has been destroyed. Each party's obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving party; provided however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of these Terms for as long as such Confidential Information remains subject to trade secret protection under applicable law.
  7. Intellectual Property Ownership; Feedback
    • VivoAquatics IP. Customer acknowledges that, as between Customer and VivoAquatics, VivoAquatics owns all right, title, and interest, including all intellectual property rights, in and to the VivoAquatics IP.
    • Customer Data. VivoAquatics acknowledges that, as between VivoAquatics and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to VivoAquatics a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for VivoAquatics to provide the Services to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics.
    • Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to VivoAquatics by mail, email, telephone, or otherwise, suggesting or recommending changes to the VivoAquatics IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), VivoAquatics is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to VivoAquatics on Customer's behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and VivoAquatics is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although VivoAquatics is not required to use any Feedback.
  8. Disclaimer
    • VivoAquatics does not make any representations or guarantees regarding uptime or availability of the Services unless specifically identified in Exhibit A. The remedies set forth in these Terms are Customer's sole remedies.
    • THE VIVOAQUATICS IP IS PROVIDED "AS IS" AND VIVOAQUATICS HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. VIVOAQUATICS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. VIVOAQUATICS MAKES NO WARRANTY OF ANY KIND THAT THE VIVOAQUATICS IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, INCLUDING WITHOUT LIMITATION THE VIVOAQUATICS AI CHATBOT, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
    • THE VIVOAQUATICS SYSTEM AND THE Information PROVIDED ARE meant to inform Customer AND ANY AUTHORIZED USERS on PREVENTATIVE practices for maintaining WATER QUALITY CONSISTENT WITH THE guidance of the U.S. CENTERS FOR DISEASE CONTROL AND common PUBLIC HEALTH CODES. CUSTOMER acknowledgeS and agree that provision of the VIVOAQUATICS sYSTEM does not constitute the rendering of legal OR regulatory guidance by VIVOAQUATICS. owners and operators or bodies of water ARE SOLELY RESPONSIBLE to appropriately apply and integrate the knowledge gained from USE OF the VivoAquatics System into day-to-day maintenance and compliance. Customer is advised that new guidelines and regulations may affect current GUIDANCE AND compliance requirements that MAY NOT YET BE INCORPORATED INTO THE VivoAquatics SYSTEM. VivoAquatics HEREBY DISCLAIMS ALL representations or warranties as to the effectiveness, VALIDITY, or safety of any described maintenance protocols, procedures, or intervals described in the VivoAquatics System for any individual body of water or any specific jurisdiction. VivoAquatics and ITS related entities, officers, EMPLOYEES, CONTRACTORS, AFFILIATES, OR AGENTS are not responsible for errors or omissions of information, or for any USE of the information PROVIDED BY the VivoAquatics System. VivoAquatics HEREBY DISCLAIMS ALL liability for legal, administrative, or regulatory fines or penalties, damage to bodies of water or other facilities, injury or death of any person, or for direct, indirect, incidental, consequential, special or punitive damages arising out of any cause of action relating to the use of the information PROVIDED BY the VivoAquatics System. Many actions and procedures described in the VivoAquatics System require additional equipment, inspection, or TRAINING that is beyond the scope of the VivoAquatics System. Users are advised that application of all information contained in the VivoAquatics System remains the sole responsibility of the individual USER. VivoAquatics urges customers and authorized to be aware of all relevant statutory and regulatory requirements, and conform to relevant credentialing AND CERTIFICATION, aND FOR ALL individuals to obtain training appropriate to their professional needs and RELEVANT STATUTORY AND REGULATORY requirements.
  9. Indemnification.
    • VivoAquatics Indemnification.
      • VivoAquatics shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including [reasonable] attorneys' fees) ("Losses") incurred by Customer resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that the Services, or any use of the Services in accordance with these Terms, infringes or misappropriates such third party's U.S. intellectual property rights, provided that Customer promptly notifies VivoAquatics in writing of the claim, cooperates with VivoAquatics, and allows VivoAquatics sole authority to control the defense and settlement of such claim.
      • If a Third-Party Claim is made or appears possible, Customer agrees to permit VivoAquatics, at VivoAquatics' sole discretion, to (A) modify or replace the VivoAquatics System, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If VivoAquatics determines that neither alternative is reasonably available, VivoAquatics may terminate these Terms and provision of the Services, in their entirety or with respect to the affected component or part, effective immediately on notice to Customer.
      • This Section 9(a) will not apply to the extent that the alleged infringement arises from: (A) use of the VivoAquatics System in combination with data, software, hardware, equipment, or technology not provided by VivoAquatics or authorized by VivoAquatics in writing; (B) modifications to the VivoAquatics System not made by VivoAquatics; or (C) Customer Data.
    • Customer Indemnification. Customer shall indemnify, hold harmless, and, at VivoAquatics' option, defend VivoAquatics from and against any Losses resulting from any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with these Terms, infringes or misappropriates such third party's U.S. intellectual property rights and any Third-Party Claims based on Customer's or any Authorized User's (i) negligence or willful misconduct; or (ii) use of the VivoAquatics IP in a manner not authorized by these Terms; (iii) use of the VivoAquatics IP in combination with data, software, hardware, equipment, or technology not provided by VivoAquatics or authorized by VivoAquatics in writing; or (iv) modifications to the VivoAquatics IP not made by VivoAquatics, provided that Customer may not settle any Third-Party Claim against VivoAquatics unless VivoAquatics consents to such settlement, and further provided that VivoAquatics will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
    • Sole Remedy. THIS SECTION 9 SETS FORTH CUSTOMER'S SOLE REMEDIES AND VIVOAQUATICS' SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE VIVOAQUATICS IP INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. IN NO EVENT WILL VIVOAQUATICS' LIABILITY UNDER THIS SECTION 9 EXCEED $500,000.
  10. Limitations of Liability. IN NO EVENT WILL VIVOAQUATICS BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER VIVOAQUATICS WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL VIVOAQUATICS' AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE LESSER OF TWO TIMES THE TOTAL AMOUNTS PAID TO VIVOAQUATICS UNDER THESE TERMS IN THE ONE-YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, OR $50,000.
  11. Term and Termination.
    • Term. These Terms shall be effective upon any Order by Customer and, unless terminated earlier pursuant to these Terms' express provisions, will continue in effect until the end of Customer’s subscription to the VivoAquatics Services as specified in the Order.
    • Termination. In addition to any other express termination right set forth in these Terms:
      • VivoAquatics may terminate these Terms, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than thirty (30) days after VivoAquatics' delivery of written notice thereof; or (B) breaches any of its obligations under Section 2(c) or Section 6.
      • Either party may terminate these Terms, effective on written notice to the other party, if the other party materially breaches these Terms, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured (thirty) 30 days after the non-breaching party provides the breaching party with written notice of such breach.
      • Either party may terminate these Terms, effective immediately upon written notice to the other party, if the other party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
    • Effect of Expiration or Termination. Upon expiration or earlier termination of these Terms, Customer shall immediately discontinue use of the VivoAquatics IP and, without limiting Customer's obligations under Section 6, Customer shall cease using and delete, destroy, or return all copies of the VivoAquatics IP and certify in writing to the VivoAquatics that the VivoAquatics IP has been deleted or destroyed. No expiration or termination will affect Customer's obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.
    • Survival. This Section 11(d) and Sections 1, 5, 6, 7, 8(a), 8(b), 9, 10, and 12 survive any termination or expiration of these Terms. No other provisions of these Terms survive the expiration or earlier termination of these Terms.
  12. Miscellaneous.
    • Entire Agreement. These Terms, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of these Terms and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. Except as otherwise set forth in Section 2(b), in the event of any inconsistency between the statements made in the body of these Terms, Exhibit A, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, these Terms, excluding its Exhibits; (ii) second, Exhibit A to these Terms as of the Effective Date; and (iii) third, any other documents incorporated herein by reference.
    • Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") must be in writing and addressed to the Parties at the addresses set forth on the first page of these Terms (or to such other address that may be designated by each respective party from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in these Terms, a Notice is effective only: (i) upon receipt by the receiving party; and (ii) if the party giving the Notice has complied with the requirements of this Section.
    • Amendment and Modification; Waiver. No amendment to or modification of these Terms is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in these Terms, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from these Terms will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
    • Severability. If any provision of these Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties shall negotiate in good faith to modify these Terms so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
    • Governing Law; Submission to Jurisdiction. These Terms is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California. Any legal suit, action, or proceeding arising out of or related to these Terms or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of California, in each case located in the County of Los Angeles, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
    • Arbitration. Any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Los Angeles County, California before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
    • Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of VivoAquatics. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating party of any of its obligations hereunder. These Terms is binding upon and inures to the benefit of the parties and their respective permitted successors and assigns.
    • Export Regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval) that prohibit or restrict the export or re-export of the VivoAquatics IP or any Customer Data outside the U.S.
    • US Government Rights. Each of the Downloadable Software and the software components that constitute the Equipment or Services is a "commercial product" 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 Downloadable Software 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.
    • Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 6 or, in the case of Customer, Section 2(c), would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

 

EXHIBIT A

DOWNLOADABLE SOFTWARE AND EQUIPMENT LICENSE

 

  1. Grant of License. Subject to the terms and conditions in this Downloadable Software and Equipment License (the "License") and the payment of applicable fees, VivoAquatics, Inc., VivoAquatics and its suppliers grant to Customer a non-exclusive, non-transferable license consistent with the terms of an applicable Order to use the Downloadable Software.
  2. License Restrictions. Except as otherwise expressly provided for under this License, Customer shall have no right to, and shall not: (i) make corrections to or otherwise modify or adapt the Downloadable Software or create derivative works based upon the Downloadable Software, or permit third parties to do the same; (ii) make or distribute copies of the Downloadable Software or electronically transfer the Downloadable Software from one computer to another or over a network other than as required for use of the Downloadable Software under an applicable Order; (iii) decompile, translate, reverse engineer, disassemble or otherwise reduce the Downloadable Software to human-readable form; (v) use the Downloadable Software in any manner to provide service bureau, web hosting, or other computer services to third parties; (vi) rent, lease or sublicense the Downloadable Software; (vii) use the Downloadable Software to develop any product having the same primary function as the Downloadable Software, or (viii) publish or otherwise make public the results of any benchmark tests run on the Downloadable Software.
  3. Upgrades. For purposes of this License, Downloadable Software shall also include all upgrades, updates, bug fixes or modified versions (collectively, "Upgrades") of the Downloadable Software licensed or provided to Customer by VivoAquatics or an authorized distributor of the Downloadable Software. Notwithstanding the foregoing, VivoAquatics shall have no obligation to develop or provide any Upgrades under this License. If Upgrades are developed or provided, Customer acknowledges and agrees that: (i) Customer has no license or right to use any such Upgrades unless Customer, at the time of acquiring such Upgrade, already holds a valid license to the original Software, (ii) Customer has no license or right to use such Upgrades unless Customer has paid in full all license, sublicense or other fees due with respect to the Downloadable Software, and (iii) use of the Upgrades is limited to Equipment for which Customer is the original Customer purchaser. Customer acknowledges and agrees that any obligation VivoAquatics may have to support and/or offer support for the earlier version of the Downloadable Software may be ended upon availability of the Upgrade.
  4. Proprietary Rights. The Downloadable Software, including, but not be limited to: (i) all copies of the Downloadable Software, in whole and in part; and (ii) all Intellectual Property Rights in the Downloadable Software, is and will remain the sole and exclusive property of VivoAquatics. For purposes herein, "Intellectual Property Rights" means patent rights (including patent applications and disclosures), copyrights (including, but not limited to, rights in audiovisual works and moral rights), trade secret rights, moral rights, rights of priority and any other intellectual property right recognized in any country or jurisdiction in the world. "Moral Rights" means any right to claim authorship to or to object to any distortion, mutilation, or other modification or other derogatory action in relation to a work, whether or not such would be prejudicial to the author's reputation, and any similar right, existing under common or statutory law or any country in the world or under any treaty, regardless of whether or not such right is denominated or generally referred to as a "moral right. "
  5. Notices of Proprietary Rights. Customer shall maintain and reproduce all trademark, copyright, patent, and notices of other proprietary rights on all copies, in any form, of the Downloadable Software in the same form and manner that such trademark, copyright, patent, and notices of other rights are included on the Downloadable Software.
  6. Disclaimer. All support requests for the Downloadable Software or Equipment must be made by contacting VivoAquatics between the hours of 9:00 AM and 5:00 PM Pacific time during the applicable term. Downloadable Software and Equipment are provided "AS IS," "WITH ALL FAULTS," and without warranty of any kind. VivoAquatics does not warrant that the Downloadable Software is error free, that any errors in the Downloadable Software will be corrected, or that Customer will be able to operate the Downloadable Software without problems or interruptions. VivoAquatics reserves the right to refuse any repairs or replacements requested and further reserves the right to charge additional fees for such repairs or replacements, if accepted by VivoAquatics in its sole discretion. .
  7. Virus Warning. VivoAquatics may request the Customer to temporarily disable anti-virus software to enable VivoAquatics to complete the installation of the Downloadable Software. VivoAquatics shall have no liability or responsibility if the Customer’s computer gets a computer virus, computer worm, computer time bomb or similar component during the installation period. VivoAquatics recommends that Customer back up all data prior to installation of the Downloadable Software, and enable the anti-virus software immediately after installation of the Downloadable Software.

 

  1. Term and Termination. Customer's license rights to the Downloadable Software will terminate immediately upon termination of an applicable subscription. Upon such termination, Customer must destroy all copies of Downloadable Software in its possession or control.

 

Updated Jan. 2024

PHONE
i-01

888-702-VIVO (8486)

ADDRESS
i-02

254 N Lake Ave #834 Pasadena CA 91101

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