For purposes of the Agreement, the following terms shall have the following meanings:
Additionally, capitalized terms not otherwise defined in this EULA shall have the meaning set forth in the Customer Agreement.
Subject to the terms and conditions of the Agreement and the payment of all applicable license fees set forth in the Customer Agreement, LeakAware grants to End User, and only End User, a personal, revocable, non-exclusive, non-transferable, non-sublicensable, Code-only license to use the Software and Documentation according to the License Scope, as identified in the Agreement, solely for End User’s own internal operations (including for operations performed on behalf of End User’s customers or tenants), utilizing End User’s (or its customers’ or tenants’) data. The licenses purchased are not cancelable, the fees paid are not refundable, and End User cannot decrease the quantity of licenses during the Term (as defined herein). End User acknowledges and understands that only certain file types are supported by the Software and are, in LeakAware’s sole discretion, subject to change at any time and without notice to End User.
End User acknowledges that the Software and the Software’s code sequence, structure, organization, and Code constitute valuable trade secrets of LeakAware. Accordingly, End User agrees not to:
These restrictions are not intended to restrict End User’s ability to implement the provided interfaces but rather intended solely to prohibit improper uses, alterations or modifications, or other changes of the Software.
End User shall be permitted to make a reasonable number of copies of the Documentation and distribute such copies to End User’s internal user community. If a serial number, password, license key, or other security device is provided to End User for use with the Software, End User may not share or transfer such security device with any other third party. Any other use of the Software by any third party, except as provided in the Agreement, is strictly forbidden and is a breach of the Agreement.
The Software, Hardware (if applicable), and Documentation will be shipped, delivered, installed, or otherwise made available to End User within a reasonable time following acceptance of the Agreement and the terms and conditions associated therewith, and the submission to LeakAware by End User of any other necessary information. The Software and Hardware(if applicable) shall be deemed accepted upon the date of delivery, or the date upon which the Software is made available to End User. LeakAware reserves the right, in its sole discretion, to determine on which operating system types and versions it will allow installation and support of the Software and may also, in its sole discretion, determine minimum acceptable levels of hardware and software protection. End User must provide a reliable and consistent cellular connection for the Software and Hardware (if applicable) to function properly. LeakAware may, in its sole discretion, change these criteria at any time. End User understands that failure to implement any necessary updates, failure to provide a reliable and consistent cellular connection, or failure to maintain such minimum acceptable levels of hardware and software protection required by this Section 5, as amended from time to time by written notice to End User, may result in unrecoverable data corruption and loss, for which LeakAware shall not be liable.
LeakAware must have reasonably easy access to all water meters that End User would like to monitor so that LeakAware can install Hardware, if applicable, on such water meters. End User grants permission to LeakAware and its contractors, representatives, successors, and assigns to enter upon Premises for the purpose of installation, inspection, maintenance, and repair of the Hardware and materials relating to the Agreement. Upon the termination of the Agreement for whatever reason, End User grants LeakAware and its contractors, representatives, successors, and assigns permission to enter upon the Premises and remove all Hardware and materials relating to the Agreement. End User represents it has the authority to grant such rights to LeakAware and its contractors, representatives, successors, and assigns. If End User is not the owner of the Premises, End User agrees to indemnify and hold LeakAware and its contractors, representatives, successors, and assigns harmless from any and all claims of owners or interested parties of the Premises arising out of the performance of the Agreement.
After the initial installation, LeakAwaremay, at its sole discretion, provide assistance concerning the proper use of the Softwareand the correction ofproblems via telephone and the Internet during normal business hours, provided all license fee payments are current and fully paid. In addition, on-siteservice and support may, in LeakAware’s sole discretion, be provided for an additional cost.
LeakAware’s service and support staff, whether operating remote or on-site, are not responsible for the following exclusions:
It is the Licensee’s responsibility to find and obtain the services of an information technology professional to create, configure, diagnose and repair exclusions (a)-(c) above.
If End User desires to upgrade their plan or gain access to any new, updated, or improved software platforms that LeakAware currently offers or may offer in the future, End User understands that such upgrades and improvements may require additional costs. LeakAware has no obligation to provide any updates or to continue to provide or enable any particular features and/or functionalities of the Software. Further, LeakAware reserves the right to, in its sole discretion, determine that any particular version of the Software is no longer supportable and must be upgraded at additional cost to the consumer. End User acknowledges that it is solely responsible for any and all data uploaded to the Software. LeakAwaremay assist, as described in this Section 6, with technical issues relating to the Software, but shall have no obligation to do so. LeakAware reserves the right to modify, suspend, or discontinue, temporarily or permanently, the Software or any service to which it connects, with or without notice and without any liability to End User. The Software may display, include, use, or make available third-party content, including, but not limited to data, information, applications, and other product services, or provide links to third-party websites or services, such as applications that provide remote access to End User’s computer systems for support and service (“Third-Party Services”). End User acknowledges and agrees that LeakAware shall not be responsible for any Third-Party Services, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. LeakAware does not assume, and shall not have, any liability or responsibility for any Third-Party Services, which are provided solely as a convenience, and which access and use are entirely at End User’s own risk and are subject to the third-party’s terms and conditions.
In addition to the Effects of Termination in the Customer Agreement, all licensed rights granted in the Agreement will immediately cease to exist. LeakAware’s obligation, if any, to provide maintenance and support shall immediately cease. End User must promptly discontinue all use of the Software and Hardware (if applicable), erase all copies of the Software from End User’s computers, and return to LeakAware or destroy all copies of the Software and Documentation in End User’s possession or control, and certify in writing to LeakAware that End User has fully complied with these requirements. Further, End User must, immediately upon termination of the Agreement, return the Hardware to LeakAware. If End User does not promptly return the Hardware to LeakAware, LeakAware may exercise its right of entry contained in Section 5 of this EULA to enter the Premises and remove the Hardware. If End User does not return the Hardware, does not allow LeakAware to recover the Hardware, or the Hardware that is returned or recovered is damaged in any way, then End User shall be required to immediately pay to LeakAware, and End User authorizes LeakAware to bill any credit card that End User has previously provided for billing purposes, $1,000 per unit of Hardware that is damaged or unrecoverable.
(a) Except as expressly allowed under the Agreement, End User will not use or disclose any Software, Hardware, Documentation, or any idea, algorithm, Code, or trade secrets of LeakAware in the Software or Documentation, except to the extent that End User can document that any such item:
(i) becomes generally available for use and disclosure by the public without any license or charge;
(ii) has been otherwise disclosed by LeakAware or a third party without breach of a confidentiality obligation;
(iii) was independently developed by End User without reference to the Software, Hardware, or Documentation; or
(iv) is required to be disclosed by End User by law or any governmental authority, provided that End User shall notify LeakAware as soon as reasonably possible of any such compelled disclosure and give LeakAware the opportunity to defend against such disclosure or obtain a protective order in connection therewith.
(b) End User shall use commercially reasonable efforts, which shall be no less stringent than those efforts that End User uses to protect End User’s own software, trade secrets, confidential information, or other similar proprietary property, to prevent the Software, Hardware, or Documentation from being used by any employee, agent, consultant, or other person in any manner that would violate the Agreement.
(c) End User further agrees to use commercially reasonable efforts to assist LeakAware in identifying and preventing any use or disclosure of any Code of the Software, any Hardware, any Documentation, or any of the ideas, algorithms, or trade secrets contained therein.
(d) Without limiting the foregoing obligation, End User shall advise LeakAware immediately in the event that End User learns or has reason to believe that any person who has had access to the Software, Hardware, or Documentation or any portion thereof, as a result of the Agreement, has violated or intends to violate the terms of the Agreement.
The Software, Hardware, and Documentation, and all Intellectual Property Rights associated therewith, are and will remain at all times the sole and exclusive property of LeakAware. End User has no right, title, or interest in or to the Software, Hardware, or Document, or any Intellectual Property Rights associated therewith, except as expressly set forth in the Agreement. Any feedback, comments, ideas, improvements, or suggestions provided by End User with respect to the Software, Hardware, or Documentation shall remain the sole and exclusive property of LeakAware, who shall be free to use, copy, modify, publish, or redistribute the feedback, comments, ideas, improvements, or suggestions for any purpose and in any way without any credit or compensation to End User. Upon LeakAware’s request, End User agrees, at LeakAware’s expense, to take such actions as LeakAware may reasonably request to perfect LeakAware’s ownership in the Software, Hardware, and Documentation.
The Agreement does not grant End User any rights in the trademarks or service marks of LeakAware, all of which remain the exclusive property of LeakAware. End User may not alter or remove trademarks, service marks, or other markings from the Software, Hardware, or Documentation, or their associated packaging.
The Software, Hardware, and Documentation contain material that is protected by patent laws, copyright laws, and international treaty provisions. Accordingly, End User may not make copies of the same, except as expressly allowed under the Agreement. End User shall maintain at all times all patent and/or copyright notices provided on the Software, Hardware, and Documentation, and their associated packaging. End User shall ensure that any permitted copy of the Software and Documentation is produced only for End User’s own benefit and that it is clearly marked on the copy that such copy is subject to copyright and confidentiality. End User shall further ensure that a written list is maintained of the number of copies of the Software and the place of storage of each copy. Copies of the Software and Documentation constitute LeakAware’s property. All terms and conditions of the Agreement shall also apply to such copies.
(a) If the Software or Hardware becomes, or in LeakAware’s opinion is likely to become, the subject of an infringement claim, LeakAware may, at its option and expense:
(i) procure for End User the right to continue using the Software or Hardware;
(ii) replace or modify the Software or Hardware so that it becomes non-infringing; or
(iii) accept return of the Software and Hardware and give End User a pro rata refund of license fees paid by End User.
(b) Notwithstanding the foregoing, End User shall defend, indemnify, and hold LeakAware harmless from and against all claims arising from the following activities:
(i) any use of the Softwarenot in accordance with the Agreement or for purposes not intended by LeakAware;
(ii) any use of the Software or Hardware in combination with other products, equipment, software, or data which End User is not authorized in writing to use in conjunction with the Software;
(iii) any use of any release of the Software other than the most current release made available to End User;
(iv) any modification of the Software or Hardware by any person other than LeakAware;
(v) End User’s continued alleged infringing activity after being informed of modifications that would have avoided the alleged infringement;
(vi) any use of the Hardware; or
(vii)any combination of End User’s use of the Software or Hardware with any other activities, other than those activities for which the Software and Hardware are intended, of End User or others.
(c) THIS SECTION 11 STATES LeakAware’S ENTIRE LIABILITY AND END USER’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT CLAIMS AND ACTIONS.
(a) IN NO EVENT WILL LeakAware BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING LOST profits or ANY DAMAGES ARISING FROM any data LOSS or corruption OF any kind, ARISING FROM OR RELATING TO the Agreement including the use of the software AND HARDWARE PROVIDED HEREUNDER. END USER ACKNOWLEDGES AND AGREES THAT THE TYPE, CHARACTER, QUANTITY, AND EXTENT OF EITHER THE POTENTIAL RISKS TO END USER, ITS TENANTS, OR ANY PERSON ON THE PREMISES AND/OR ANY ACTUAL DAMAGES THERETO OR THEIR PROPERTY OR THE PREMISES, WHICH MAY RESULT FROM ANY ALLEGED OR ACTUAL FAILURE TO PERFORM ANY OF LEAKAWARE’S OR END USER’S OBLIGATIONS HEREIN, INCLUDING, BUT NOT LIMITED TO, INSTALLATION, MAINTENANCE, MONITORING, OR THE FAILURE OF THE SOFTWARE OR HARDWARE TO PROPERLY OPERATE, ARE UNCERTAIN AND ANY ESTIMATION OF SUCH DAMAGES WOULD BE UNREASONABLE, IMPRACTICAL, AND EXTREMELY DIFFICULT TO ASCERTAIN. THIS IS DUE, IN PART OR IN WHOLE, TO THE UNCERTAINTY OF: (I) THE AMOUNT OR VALUE OF END USER’S PROPERTY OR THE PROPERTY OF OTHERS KEPT ON AT THE PREMISES WHICH MAY BE DESTROYED, DAMAGED, OR OTHERWISE AFFECTED BY OCCURRENCES WHICH THE SOFTWARE OR HARDWARE MAY BE UNDERSTOOD OR INTERPRETED TO DETECT OR AVERT: (II) WHAT PORTION, IF ANY, OF ANY LOSS, WOULD BE PROXIMATELY CAUSED BY ANY ACTUAL OR ALLEGED FAILURE BY LEAKAWARE TO PERFORM THE SERVICES OR BY END USER’S SYSTEM TO OPERATE; (III) THE NATURE OF OCCURRENCES WHICH MIGHT CAUSE INJURY TO END USER OR ANY OTHER PERSON OR THEIR PROPERTY WHICH THE END USER INTENDED FOR THE SOFTWARE AND HARDWARE TO DETECT OR AVERT; OR (IV) THE RELIABILITY OF END USER’S BROADBAND INTERNET CONNECTION, NETWORK, HARDWARE, CELL PHONE SERVICE OR CONNECTION, INTERNET SERVICE PROVIDER, OR TELEPHONIC COMMUNICATION LINES TO CONSISTENTLY CONNECT TO THE END USER’S SYSTEM.
(B)END USER UNDERSTANDS AND AGREES THAT, DUE TO THE UNCERTAINTY DESCRIBED IMMEDIATELY ABOVE, IF LEAKAWARE SHOULD BE FOUND LIABLE FOR LOSS OR DAMAGE DUE TO THE FAILURE OF THE SOFTWARE OR HARDWARE TO PROPERLY PERFORM OR THE FAILURE OF LEAKAWARE TO PERFORM ANY OF ITS OBLIGATIONS OR FAILURE OF THE SOFTWARE OR HARDWARE TO FUNCTION PROPERLY, END USER ACKNOWLEDGES AND AGREES THAT FOR EVERY EVENT AND FOR EVERY CLAIM THAT OCCURS DURING A CALENDAR YEAR, LEAKAWARE’S TOTAL CUMULATIVE LIABILITY TO END USER FOR SUCH CLAIMS OR EVENTS WILL BE LIMITED TO AND WILL NOT EXCEED THE LESSER OF 10% OF THE ANNUAL MONTHLY FEES CONTRACTED FOR HEREIN OR FIVE HUNDRED DOLLARS ($500.00). END USER ACKNOWLEDGES AND AGREES THAT THIS LIMITATION WILL BE END USER’S SOLE AND EXCLUSIVE MEASURE OF DAMAGES, AND THAT PROVISIONS OF THIS SECTION WILL APPLY TO ALL LOSS OR DAMAGE, IRRESPECTIVE OF CAUSE OR ORIGIN, WHICH ACTUALLY OR ALLEGEDLY RESULTS DIRECTLY OR INDIRECTLY, TO PERSONS OR PROPERTY, FROM PERFORMANCE OR NON-PERFORMANCE OF THE OBLIGATIONS IMPOSED BY THE AGREEMENT, OR FROM ANY ACTUAL OR ALLEGED NEGLIGENCE OR FAILURE TO PERFORM DUTIES UNDER THE AGREEMENT, ACTIVE OR OTHERWISE, OF LEAKAWARE, ITS PARENTS, AFFILIATES, SUBSIDIARIES, MEMBERS, OWNERS, MANAGERS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, SUCCESSORS, OR ASSIGNS. END USER AGREES AND ACKNOWLEDGES THAT, DUE TO THE NATURE OF THE AGREEMENT, THIS LIMITATION IS TO APPLY TO ANY ACTUAL, POTENTIAL, OR ALLEGED GROSS NEGLIGENCE OF LEAKAWARE.
Notwithstanding anything to the contrary contained herein, End User agrees to indemnify and hold LeakAware and its parents, subsidiaries, affiliates, agents, suppliers, partners, and licensors (if any) and their respective officers and employees harmless from and against any expenses and related costs, including, but not limited to, court costs and reasonable attorneys’ fees, in connection with any threatened or actual lawsuits, actions, investigations, damages, judgments, or claims by any third party, arising out of or relating to End User’s use of the Software, Hardware, and/or Documentation.
(a) Continued Enforceability. The Agreement will govern regardless of whether End User upgrades or downgrades their LeakAware Subscription Level or subscribes to any future platforms or software by LeakAware, unless the future platforms or software are governed by separate end user license agreements.
(b) Export. End User agrees not to export the Software outside the United States without LeakAware’s prior written consent, which consent will not be unreasonably withheld. End User further agrees to comply in all respects with the applicable export laws and regulations of the United States and not distribute or transfer the Software in contravention of those laws and regulations, including, but not limited to, exporting or re-exporting into or to a nation or a resident of any U.S. embargoed countries or to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. End User will defend, indemnify, and hold harmless LeakAware from and against any violation of such laws or regulations by End User or any of End User’s agents, officers, directors, or employees.
(c) Taxes. End User will be responsible for payment of, and shall not withhold from fees owed to LeakAware (including but not limited to license fees and maintenance fees, if applicable), all applicable sales, use, ad valorem, and excise taxes; duties; and assessments based on End User’s use or possession of the Software. End User shall hold LeakAware harmless from all claims and liability arising from End User’s failure to pay such taxes.
(d) Inspections. End User will for three (3) years maintain records sufficient to verify the amounts owing to LeakAware hereunder. End User will permit LeakAware or its representatives to review End User’s relevant records and inspect End User’s facilities to ensure compliance with the Agreement. LeakAware will give End User at least two (2) business days advance notice of any such inspection and will conduct the same during normal business hours in a manner that does not unreasonably interfere with End User’s normal operations.
(e) Remedies. End User acknowledges that the Software contains valuable trade secrets and proprietary information of LeakAware, that any actual or threatened breach of Section 3 (Restrictions of Use) or Section 9 (Confidentiality) will constitute immediate, irreparable harm to LeakAware for which monetary damages would be an inadequate remedy, and that LeakAware shall, in the event of such a breach, be entitled to equitable relief, including injunctive relief, without the posting of any bond, in addition to any other remedies. If any legal action is brought to enforce the Agreement, the prevailing party, as determined by a final, non-appealable judgment or order, will be entitled to receive its attorneys’ fees, court costs and other collection expenses, in addition to any other relief it may receive.
(f) Confidentiality of the Agreement; Announcements. Neither party shall disclose any terms of the Agreement to anyone other than its attorneys, accountants and other professional advisors except as required by law. LeakAware shall be allowed to use End User’s name on its customer lists, so long as such lists are not available to the general public and LeakAware discloses the same to its present and potential customers after execution of the Agreement. “Potential customer” in this section represents a specific customer that is contemplating LeakAware’s products and services. For any other usage of End User’s name, LeakAware shall obtain written permission from End User.
(j) Force Majeure. Neither party shall be liable for any delay in delivery or nonperformance in whole of its obligations under the Agreement if prevented from doing so by a cause or causes beyond its control, including, but not limited to, acts of God or public enemy, failure of suppliers to perform, fire, floods, storms, earthquakes, pandemics, epidemics, riots, strikes, war, and restraints of government. The suspension of performance shall be of no greater scope and no longer duration than is reasonably required and the non-performing party shall use reasonable efforts to remedy its inability to perform.
(k) Data Storage.LeakAware will use industry standard data storage systems and procedures to protect electronic information and communications (“Data”) belonging to End User and its tenants and customers. Such Data will also be compartmentalized from other users’ Data. End User agrees and acknowledges that LeakAware assumes no liability and specifically disclaims liability for unauthorized access to the End User’s Software or Hardware of any kind, including, without limitation, through the Internet or network, or for data corruption caused by any person or entity. LeakAware has no access to such data and cannot control such corruption. End Useralso agrees and acknowledges that all Data is recorded and stored by LeakAware. End User grants LeakAware a perpetual, irrevocable, limited license to use and monitor the Data for any purpose.
(l) Malware.LeakAware and End User agree that neither party will negligently, knowingly, intentionally, or otherwise upload data containing malware to the Software or otherwise damage the Software.
(m) Privacy.LeakAware collects, stores, maintains, and shares information about End User with LeakAware’s integration partners. If End User chooses to utilize one of LeakAware’s integration partners, End User may receive a fee or other form of monetary compensation associated therewith. By accepting the Agreement, End User agrees and consents to the collection, storage, maintenance, and sharing of End User’s data by LeakAware, who makes no representations or warranties regarding the privacy of End User’s information. LeakAware will use commercially reasonable efforts to maintain the privacy of End User’s customers’ information. End User understands and acknowledges that End User is responsible for any of End User’s customer data inputted into the Software, including, but not limited to, payment information, credit reporting information, and information provided in connection with credit checks. LeakAware will not be liable for any claims or damages arising from or out of such customer data, including, but not limited to, issues regarding data privacy, accuracy, and credit reporting and disclosures.
(n) Signage. End User will allow LeakAware to post signs at the Premises. Upon termination of the Agreement for any reason, End User will, or LeakAware may, remove any signage installed by LeakAware. End User will allow LeakAware a limited right of access to the Premises for the purpose of removing signage. Regardless of any continued signage, End User remains responsible for all incidents occurring on the Premises.
(o) No Further Obligations. End User understands and acknowledges that LeakAware has no further obligations other than those contained in the Agreement. End User is solely responsible for maintenance of End User’s business, including, but not limited to, payment of all governmental fees and taxes, proper credit reporting disclosures, and compliance with all laws, rules, and regulations.
(p) Survival. Section 1 (Definitions), Section 3 (Restrictions of Use), Section 7 (Effects of Termination), Section 8 (Warranties), Section 9 (Confidentiality), Section 10 (Proprietary Rights), Section 11 (Infringement Claims), Section 12 (Limitation of Liability), and Section 13 (General – with the exception of the “Inspections” paragraph) will survive expiration or termination of the Agreement for any reason.