This Organica Water Terms of Service (this “Agreement”) shall govern the use of Organica’s website available at centralstation.organicawater.com, www.organicawater.com and www.organicawater.cn (collectively, the “Organica 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 regarding Organica’s products and services, made available through the Organica Site (“Organica Central Station” or “WWTP Design Generator”), as such Organica Central Station may be updated from time to time by Organica in its sole discretion (the Organica Central Station and the Organica Site are collectively referred to herein as the “Service”). The Service is made available by, and you contract with, Organica Water, Inc., a Delaware corporation with registered offices at 61 Princeton-Hightstown Road, Suite 3A, Princeton, NJ 08550-1120. As used in this Agreement, (i) “Organica” refers to Organica Water, 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 Customized Design (as defined in Section 2.3) unless Customer registers a Partner Member User Account (as defined in Section 2.1.2), which are subject to fees as set forth in Section 4.1.
1.1. Hosted Service. The Service shall be hosted by Organica or its designee and the Service will be made available through the Organica 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 Organica’s sole discretion in accordance with Section 10.5, for any purpose deemed appropriate by Organica, provided that Organica shall not modify the Service in a manner that materially adversely affects the performance of the Service. Organica will provide updates or upgrades to the Service as such updates and upgrades may become generally available to all Organica customers of the Service. Organica will undertake commercially reasonable efforts to make the Service available twenty four (24) hours a day, seven (7) days a week. Notwithstanding the foregoing, Organica 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, Organica 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. Registration; Subscriptions.
2.1.1. To access the Service, Customer must register for one of the following accounts (each, a “Member User Account”): (i) an Express Member User Account, (ii) a Premium Member User Account or (iii) a Partner Member User Account (as each term is defined below). The descriptions of the different Member User Accounts and related pricing are available on the Organica Site. Each Member User Account shall be valid for an initial term of one year and shall automatically renew thereafter for successive terms of one-year each, subject to payment of any applicable Fees for each renewal period. Organica agrees not to revise the pricing terms for Partner Member User Accounts for the Service during the initial term. Thereafter, pricing terms for Partner Member User Accounts may be amended by Organica for each renewal period upon written notice to Customer. Pricing terms for Express Member User Accounts and Premium Member User Accounts may be revised by Organica at any time at its sole discretion upon written notice to Customer. Any such revisions to the pricing terms for Express Member User Accounts and Premium Member User Accounts would take effect thirty (30) days after notification thereof by Organica. If Customer does not agree to the revised pricing terms, Customer may terminate the Service pursuant to Section 7.6.
2.1.2. To access the Organica Site, Customer must, at a minimum, complete registration as an Express Member user (the “Express Member User Account”). Upon registering an Express Member User Account, Customer shall have the right to view, comment on and submit articles and blog entries to the Organica Site and to use the express design feature available at htt://organicawater.com/express (the “Express Design Site”).
2.1.3. To access the full content of articles and blog entries displayed on the Organica Site and to use the customized design feature of Organica Central Station, Customer must register for either (a) a premium membership account (the “Premium Member User Account”), or (b) a partner membership account (the “Partner Member User Account”). A Customer who desires to register for either a Premium Member User Account or a Partner Member User Account must be approved for such Member User Account by Organica prior to the registration being effective. Upon completing registration for a Premium Member User Account or a Partner Member User Account, Customer shall have full access to the Service
2.2 .Service and Content.
2.2.1. Subject to the terms and conditions of this Agreement, Organica 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 Organica Site solely for Customer’s personal use.
2.2.2. If Customer registers a Registered User Account, then, subject to the terms and conditions of this Agreement and in addition to the license granted in Section 2.2.1 above, Organica grants Customer a limited, non-exclusive, non-transferable, non-sublicensable, worldwide, fee-bearing right during the term of this Agreement to permit named authorized users of Customer (each, an “Authorized User”) to whom Customer has provided a login identification (e.g., personal login name and password) to access, use, view, download, and print work papers, educational videos and tutorials, portals and other materials made available through the Service (collectively, the “Content”) solely for Customer’s internal business purposes.
2.2.3. If Customer registers a Member User Account, then, subject to the terms and conditions of this Agreement and in addition to the licenses granted in Sections 2.2.1 and 2.2.2 above, Organica grants Customer and its Authorized Users a limited, non-exclusive, non-transferable, non-sublicensable, worldwide, fee-bearing right during the term of this Agreement to(a) access and use the Organica Central Station 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 Organica provides to Customer relating to the use of the Organica Central Station (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 an Express Member User Account, Organica 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 7.2 (due to Customer’s breach), Section 7.3 (due to Customer’s insolvency) or Section 7.5 (due to Customer’s change of control), in which case the right shall terminate with immediate effect upon termination of this Agreement) (the “Design Term”) to (a) download, print, and copy preliminary engineering designs for an Activated Sludge WWTP based on regional standards (each, a “Express Design”) generated through the Express Design Site from data submitted by Customer through the Express Design Site, including but not limited to name, company name, email address, information on specific wastewater treatment plants, (the “Express Design Customer Data”) solely for Customer’s internal business purposes in connection with the applicable Project, (b) incorporate or include the Express Design in reports or other materials prepared by Customer in connection with the applicable Project, and (c) subject to Section 8.1 below, disclose the Express Design to third parties solely in connection with the design, development or regulatory approval of the applicable Project on a need-to-know basis.
2.3.2. Subject to the terms and conditions of this Agreement (including, without limitation, the ownership provisions in Section 3.1), if Customer registers a Premium Member User Account, or a Partner Member User Account Organica grants Customer a limited, non-transferable, worldwide, non-exclusive, non-sublicensable right during the Design Term to (a) download, print, and copy a customized plant design (the “Customized Design” and together with the Express Design, 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, including but not limited to name, company name, email address, information on specific wastewater treatment plants, (the “Service Customer Data” and together with the Express Design Customer Data, 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 8.1 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 each of the Member User Accounts are on the Organica Site
2.3.3. Notwithstanding any other terms of this Agreement, except as may be set forth in a separate agreement between Customer and Organica regarding the supply of equipment or other physical assets by Organica or services relating to the build and construction of a Project (the “Supply Agreement”), no rights are granted to Customer to copy or use the Design or any architectural works embodied in a Design to build, construct, carry out or engage any other person to build, construct a plant as set forth in a Design. Customer further acknowledges and agrees that the Service assumes for purposes of generating each Design that only equipment, technology or other physical assets supplied by Organica or its affiliates will be used in the build or construction of the plant or Project to which the Design relates and, without limiting Section 5.3 of this Agreement, Organica expressly disclaims all representations or warranties of any kind regarding the use of the Designs (or any plant constructed based on such Designs) in connection with any equipment, technology or other materials of any third party.
2.3.4. 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: (a) copy, modify, disclose, publicly display, distribute, create derivative works or otherwise use or exploit any Design, Content or Documentation (each of which is owned by Organica, its affiliates and its licensors (where applicable), as set forth in Section 3.1); or (b) 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:
2.6. Additional Restriction on Designs.
Organica shall have the right to decline to generate a Design if there are territorial exclusivity restrictions for Customer’s jurisdiction. For a list of territories currently subject to limitations, please see the Organica Site. Organica shall provide Customer written notice if it declines to generate a Design and shall offer a prorated refund based on the number of Designs declined.
2.7. Federal Government End Use Provisions. In relation to Customers who are US government bodies, Organica 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).
3.1. Subject to the rights and licenses granted by Organica in Section 2.2 and Section 2.3, Organica, 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) Organica’s Confidential Information, (c) Organica’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 Organica (the “Improvements”) and (e) any suggestions, ideas, feedback, recommendations or other information provided by Customer, any Authorized User 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 Organica or if Customer obtains any rights in any Design, Customer hereby irrevocably assigns to Organica all such rights, title, and interest in and to such Design, Improvements and Suggestions and all intellectual property rights therein. Organica shall be free to use, disclose, reproduce, license and otherwise distribute the Improvements and Suggestions without any obligations or restrictions of any kind. Organica and its licensors reserve all rights not expressly granted herein. Customer shall provide Organica 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 Organica 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 Organica which may be of interest to Customer. Accordingly, Customer hereby grants Organica 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 Organica’s provision of the Service, including any support services provided by Organica, (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 Organica acquire or retain any title to or ownership of Customer’s Confidential Information or Customer Data.
3.3. Furthermore, Customer shall remain the owner of any articles or blog entries submitted to or through the Service (the “Blog Entries”) but, by submitting and uploading the Blog Entries, Customer grants Organica a perpetual, irrevocable, worldwide, non-exclusive, royalty-free, fully paid up, fully transferable license (with the right to sublicense) to use, copy, reproduce, distribute, modify, display, make available and otherwise exploit the Blog Entries in connection with the Service. Customer also grants each visitor of the Organica Site a non-exclusive license to reproduce, display and use the Blog Entries as permitted under the terms of this Agreement. To the extent permitted by applicable laws, Customer waives any moral rights to any Blog Entries. Customer acknowledges and agrees that Organica has the right, but not the obligation, in its sole discretion to determine whether a Blog Entry is appropriate and reserves the right to block, remove or delete any Blog Entry at any time, for any reason and without liability and without limitation. To the extent practicable, Organica shall use reasonable efforts to notify Customer if any Blog Entry submitted by Customer is removed or deleted.
3.4. 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.
3.5. 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 Organica.
4.1.1 Customer shall pay Organica the subscription fee (the “Fee”) applicable to such Customer’s Member User Account, as set forth on the Organica Site, subject to fee increases pursuant to Section 2.1.1. The Fee shall be due upon invoice by Organica on the day that Customer is approved by Organica for the applicable Member User Account and on each annual anniversary of such registration date. The Fee is non-refundable.
4.1.2. All payments shall be made in US Dollars (unless a different currency is specified and agreed upon between the parties in writing) and are first payable by Customer on the day that Customer registers for a Subscription to the Service using the payment methods available through the Service. At Organica’s sole discretion, Organica may, in lieu of receiving payment through the Service, invoice Customer for the Fees due. Payment of any such invoice shall be due five (5) days after receipt of such invoice by Customer.
4.2. Late Fees; Suspension of Service. All overdue amounts shall bear interest until paid at the rate of 1.5% per month or the maximum amount permitted by law, whichever amount is less. Customer shall reimburse Organica for all reasonable costs incurred (including reasonable attorneys’ fees) in collecting past due amounts. If any amount owing by Customer under this Agreement is thirty (30) or more days overdue (or ten (10) or more days overdue for any amounts authorized by Customer to charge by credit card), Organica may, without limiting any other rights and remedies available to it, accelerate Customer’s unpaid fee obligations so that all such obligations become immediately due and payable, and suspend Customer’s use of the Service until such amounts are paid in full. Organica will give Customer at least ten (10) days’ prior notice that Customer’s account is overdue before suspending Customer’s use of the Service. During any period during which Customer’s account is suspended, Customer shall continue to have access to its account page on the Organica Site but shall not be permitted to access any other portion of the Organica Site or the Service.
4.3. Taxes. The Fees payable hereunder are exclusive of all present and future taxes, duties, levies and other charges by any name (including any interest, penalties or additions thereto) imposed by any foreign, federal, state, local or other taxing authorities (including, without limitation, export, sales, use, excise and value-added taxes) on or with respect to the transactions or payments under this Agreement (including such taxes regardless of whether they are imposed on Organica or Customer under applicable law, but excluding taxes imposed on Organica’s net income by Organica’s jurisdiction of organization) (collectively, “Taxes”). Customer shall file any returns required to be filed with respect to any Taxes and pay any Taxes in accordance with applicable law. If Customer is required to deduct or withhold any Taxes from any payment due to Organica, then (a) the amount payable shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 4.3), Organica receives an amount equal to the amount it would have received had no such deductions been made, (b) Customer shall make and/or declare such deductions, (c) Customer shall pay the full amount deducted and/or deductible to the relevant governmental authority in accordance with applicable law, and (d) Customer shall promptly provide Organica satisfactory evidence of such payment upon request.
Organica shall have the right to monitor Customer’s and each Authorized User’s usage of the Service to allow Organica to verify Customer’s compliance with the terms of this Agreement, including the number of users accessing the Service. Customer shall be responsible for any breach of this Agreement by any Authorized User.
During the term of this Agreement, and for a period of five (5) years thereafter, Customer will maintain books and records regarding Customer’s use of the Service. During the term of this Agreement, and for a period of five (5) years thereafter, Organica will have the right to engage at its own expense an independent auditor to inspect Customer’s facilities and to review the applicable books and records of Customer solely for the purpose of confirming Customer’s compliance with terms and conditions of Section 2 and Section 8 of this Agreement. Organica will furnish Customer with written notice at least thirty (30) days’ prior to the date that it desires to commence such review. Any such review will be conducted during Customer’s regular business hours and in a manner that minimizes interference with Customer’s normal business activities. The rights set forth in this Section 4.5 may not be exercised by Organica more frequently than once in any twelve (12)-month period.
5.1. 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 (including any Blog Entries) 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.
5.2. By Organica. Organica represents and warrants that (a) 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, (b) Organica will not materially decrease the overall security of the Service during the Subscription Period, (c) the Service will perform materially in accordance with the published operating and user manuals provided to Customer by Organica regarding the Service and (d) Organica will not materially decrease the functionality of the Service during the Subscription Period. For any breach of this Section 5.2, Customer’s exclusive remedies are to terminate this Agreement upon thirty (30) days’ notice to Organica.
5.3. Disclaimer. CUSTOMER ACKNOWLEDGES THAT DURING ANY PERIOD OF TIME WHEN CUSTOMER USES THE SERVICE WITHOUT A SUBSCRIPTION, 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 5.2, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ORGANICA 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, ORGANICA 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, ORGANICA 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 ORGANICA 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 ORGANICA WOULD NOT AGREE TO ENTER THIS AGREEMENT WITHOUT SUCH DISCLAIMER.
Subject to the provisions of this Section 6, Customer agrees to indemnify, hold harmless and defend Organica, 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 “Organica 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 Organica 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 Organica 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.
7.1. 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. If Customer uses the Service pursuant to a Subscription allowing for Designs to be generated, then Customer’s license to use any Design generated by Customer through the Service in accordance with this Agreement will remain in effect during the Design Term. Customer may notify Organica of its desire to renew the Design Term thirty (30) days prior to the end of the initial or any renewal Design Term and Organica may, at its sole discretion, renew the Design Term for a specific period of time to be determined by Organica at its sole discretion.
7.2. 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, Organica 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.
7.3. 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.
7.4. Termination for Force Majeure. Organica may terminate this Agreement in accordance with Section 10.9.
7.5. Termination for Change of Control. Organica may terminate this Agreement immediately in the event of a merger, reincorporation or sale of all or substantially all of the assets or stock of Customer.
7.6. Termination for Convenience. Organica 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 Organica; provided, however that Customer shall remain obligated to pay for any Fees for the remainder of the Subscription Period.
7.7. Consequences of Termination.
8.1. Confidential Information.
The obligations of confidentiality contained in Section 8.1 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.
8.3. User Name and Password.
Customer agrees that login information for the Registered User Account or Member User Account, including any username and password, is Confidential Information of Organica and Customer shall not disclose such login information to any third party.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ORGANICA 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 ORGANICA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL ORGANICA’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED (A) WITH RESPECT TO ANY CLAIM OR DAMAGE RELATING TO A DESIGN, THE APPLICABLE DESIGN FEES PAID BY CUSTOMER FOR SUCH DESIGN, OR (B) WITH RESPECT TO ALL OTHER CLAIMS OR DAMAGES, THE SUBSCRIPTION FEES PAID BY CUSTOMER TO ORGANICA HEREUNDER DURING THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY. FURTHERMORE, ORGANICA SHALL HAVE ABSOLUTELY NO LIABILITY FOR ANY USE OF THE SERVICE DURING ALL PERIODS WHEN CUSTOMER USES THE SERVICE WITHOUT A SUBSCRIPTION.
NOTWITHSTANDING THE FOREGOING, ORGANICA SHALL HAVE ABSOLUTELY NO LIABILITY FOR CUSTOMER’S BREACH OR ATTEMPTED BREACH OF THE US EXPORT CONTROL REGULATIONS, AS AMENDED. FURTHERMORE, ORGANICA 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, ORGANICA 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.
10.1. Governing Law.
10.1.1. 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.
10.1.2. 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.
10.2.1. 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.
10.2.2. 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 10.3. 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 8 by the other party or, in the case of Organica, any actual or threatened breach of Section 2 by Customer.
10.4. 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.
10.5. Terms Modification.
Organica may revise this Agreement from time to time (the “Revised Terms”) and the most current version will always be posted on the Organica Site and Customer shall be responsible for checking the Organica Site for such revisions. If any Revised Terms, in Organica’s sole discretion, are material, Organica will notify Customer pursuant to Section 10.7. 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 and its Subscription to the Services within thirty (30) days of receiving notice of the change and Organica shall refund any prepaid but unused amounts of the Subscription Fee for the remainder of the Subscription Period. Except for Revised Terms, this Agreement may not be modified except by mutual written agreement between Organica 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 Organica 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 firstname.lastname@example.org. 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.
10.9. 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 Organica shall have the right to terminate this Agreement immediately upon written notice to Customer.
10.10. Relationship between the Parties.
Organica 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 Organica. Organica may freely assign all or part of its rights under this Agreement, in whole or in part. Any assignment in violation of this Section 10.11 shall be null and void from the beginning, and shall be deemed a material breach of this Agreement.
10.12. No Third-Party Beneficiaries.
Except for the Organica Indemnified Parties specified in Section 6, 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 Organica Indemnified Parties, Customer and Organica may amend this Agreement without reference to, or the consent of, the Organica Indemnified Parties.
Customer agrees to participate in press announcements, case studies, trade shows, or other forms reasonably requested by Organica. Organica is permitted to disclose on its website (including the Organica Site) or otherwise that Customer is one of its customers.
10.14. 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.
10.15. Entire Agreement.
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