Last modified: June 15, 2020
Introduction. Thank you for your commitment to smart water management! These Terms of Service (these “Terms”) are a legal agreement between you (“you” or “your”) and Apana® Inc. (“Apana,” “we” or “our”) and govern your access to and use of the software, hardware, technology, mobile applications, websites and other products and services we offer through our Water Efficiency as a Service™ (collectively, the “Services”). Please read these Terms carefully.
By using the Services, you are agreeing to be bound by these Terms. You represent and warrant that you have the legal power and authority to form a contract between your organization and ours, and these Terms and each Order Form are entered into by an employee or agent with all necessary authority to bind that organization to these Terms.
You may use the Services only in accordance with these Terms. The Services will evolve as we work to improve and add features and functionality.
These Terms and the terms in your Apana Services Order Form(s) (“Order Form”) constitute the Agreement between us and you (the “Agreement”).
Description of the Services. During the Service Term specified on the Order Form where you wish to use our Services (each, a “Facility” and collectively, the “Facilities”), we will provide you with the following (the “Solution”):
- Sensors installed at strategic locations and/or on specific equipment throughout each Facility controlled and connected through a proprietary gateway (the “Hardware”). Sensors and gateway capture and transmit water data on a secure, independent private network.
- Access to and use of cloud-based software and an online dashboard for performance, analysis and reporting of water data (the “Software”).
- Alert notifications for designated personnel at each Facility (the “Alerts”).
- Commercially available water meters compatible with Apana sensors (the “Water Meters”). In some instances, existing customer water meters may be used.
Ordering Services. You must submit an Order Form to us in order to request Services. The Order Form will become binding on you and Apana when we notify you that we have accepted the Order Form. A site review of each Facility listed on the Order Form may be necessary to adjust the configuration of our Solution. We will notify you in writing if the total project cost set forth in the Order Form require adjustment after completion of the site review.
Solution Delivery. We will deliver the Hardware and Water Meters to you at each Facility where the Solution will be deployed in accordance with the applicable Order Form. We will provide you access to other features and functions of the Solution, including the Software, as soon as possible after we receive notice from you that the Hardware and Water Meters have been installed.
Cooperation. You acknowledge that we require certain technical information and other cooperation from you in order to accurately and efficiently provide the Services. During the Service Term, you will assign appropriate personnel and resources, and provide us reasonable cooperation, assistance, information and access related to Apana providing the Solution consistent with these Terms.
Installation Services. Within three (3) weeks of signing the Order Form, you will engage your designated contractor (s) (each, an “Installation Provider”) to complete the site review, unless we mutually agree that Apana will conduct the site review.
Upon mutual acceptance of findings from the site review, you will cooperate with us to receive the hardware and promptly schedule the Installation using the installation instructions we provide (the “Installation Instructions”).
You agree to pay all fees assessed and costs incurred by an Installation Provider for the Installation Services. You also agree that the Installation Provider will install the Hardware and Water Meters in accordance with the Installation Instructions provided by us. We are not responsible for an Installation Provider’s performance of the Installation Services.
You are solely responsible for obtaining and maintaining all necessary licenses, consents, and permissions necessary for the installation of the Hardware and Water Meters at each Facility. We will have no liability for any damages or harm arising from, or related to, an Installation Provider’s performance of the Installation Services or their acts or omissions while they are at a Facility. We expressly exclude the Installation Services from any and all warranties provided to you under these Terms, except to the extent we install the Hardware and Water Meters.
Restrictions on Use. You must not (and must not allow any third party to) directly or indirectly: (1) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Solution; (2) modify, translate, or create derivative works based on the Solution; (3) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber any rights to the Solution or any underlying software or other intellectual property; (4) file a patent application or provoke interference with any patent application that we (or our affiliates) have filed or will file or any improvements thereof; (5) enhance or improve the design or operation of any machinery, equipment or process that is similar to the Solution or the manner in which any such machinery, equipment or process is fabricated, assembled or used; (6) use the Solution to violate the security or integrity of any network, computer or communications system, software application, or network or computing device; or (7) use the Solution except in accordance with these Terms.
Account Security. You are responsible for keeping the password that you use to access the Solution secure and you agree not to provide your password to any third party, unless the third party is subject to confidentiality obligations sufficient to protect the security of your account information and they need your password solely for purposes of operating the Solution at your Facility. You are responsible for all activity using your account, whether authorized by you or not. You should notify us immediately of any unauthorized use of your account.
Our Solution and Services. You acknowledge and agree we are the sole and exclusive owner of all right, title, and interest in and to the Solution, including, but not limited to, all software incorporated into or used by us to provide the Solution, the Hardware, the Software, and all Apana marks. The content, information and products made available through the Services are protected by U.S. and international Intellectual Property Rights, and you acknowledge that these rights are valid and enforceable. “Intellectual Property Rights” means: (1) copyrights and other rights associated with works of authorship; (2) trademark and trade name rights and similar rights; (3) trade secret rights; (4) patents, designs, algorithms, utility models, and other industrial property rights, and all improvements thereto; and (5) all registrations, applications, renewals, extensions, continuations, divisions, or reissues now or in the future.
Our License to You. We hereby grant to you a revocable, non exclusive, non-transferable, non-sublicensable license during the Term to use the Solution at each Facility specified in the Order Form. All rights not expressly granted herein are reserved by us. You acknowledge that, as between you and Apana, Apana owns and retains all right, title and interest in the Intellectual Property Rights in the Solution, and does not convey any ownership therein to you, except in the event that you purchase the Hardware. In that case, you will own all right, title, and interest in and to that Hardware, excluding all Intellectual Property Rights and Confidential Information (as defined below) that is contained or embodied in the Hardware, but your right to use the Hardware is restricted to use pursuant to the terms of this license.
Usage Data. You own all right, title, and interest in and to your Usage Data. Nonetheless, you agree that we are permitted (1) to compile Usage Data and use Usage Data to deliver and improve the Solution and comply with applicable law; and (2) to transfer Usage Data for legitimate business purposes but only in an aggregated, non-identifiable form (together, the “Permitted Uses”). You agree to and hereby grant to us a worldwide, royalty-free, irrevocable, perpetual, and transferrable license to reproduce, distribute, make derivative works of, and use Usage Data solely for the Permitted Uses. If within ninety (90) days following the termination of these Terms, you submit to us a written request for a copy of Usage Data, we will use commercially reasonable efforts to provide a copy of Usage Data to you. “Usage Data” means all data and information uploaded by either of us in connection with your use of the Solution, including but not limited to, data regarding water use, water flow, and water waste events.
Support Services. We will provide technical support services 8:00 a.m. to 5:00 p.m. Pacific Time Monday to Friday for general technical information, technical advice, and technical consultation regarding relating to your use of the Solution.
Maintenance. To the extent necessary to maintain the operability of the Solution during the Service Term, we will make all generally available enhancements, updates, and bug fixes to the Solution.
Term. These Terms will become effective on the date that we accept the signed Order Form and remain in full force and effect until the end of the Service Term as specified in the Order Form (the “Initial Term”), which will automatically renew for successive one (1) year renewal periods (each, a “Renewal Term”, and together with the Initial Term, the “Service Term”), unless you provide us written notice at least sixty (60) days prior to the expiration of the Initial Term or any Renewal Term (as applicable) of your intent not to renew, or these Terms are terminated for cause as set forth below.
Termination. Either you or Apana may terminate these Terms after thirty (30) days prior written notice to the other if the other party fails to perform any material duty or obligation imposed upon it by these Terms. The party accused of breach will have the opportunity to cure the breach within the thirty (30) day period following receipt of the written notice from the non-breaching party reasonably specifying the facts underlying the claim that the other party is in breach. In addition, either you or Apana may terminate these Terms immediately upon notice if the other party: (1) becomes insolvent; (2) makes a general assignment for the benefit of creditors; (3) files a voluntary petition in bankruptcy or any voluntary proceeding relating to reorganization, insolvency, receivership or liquidation; or (4) becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, unless the petition or proceeding is dismissed or discharged within sixty (60) days of filing. Termination of these Terms pursuant to this paragraph does not affect your obligations to pay the Fees due to Apana .
Fees. You will pay to us all fees with respect to the Solution deployed at each Facility as set forth on the applicable Order Form (as applicable, the “Fees”). If you believe that we have billed you incorrectly, you must contact us within thirty (30) days from the date of the invoice.
Payment Terms. Unless otherwise specified on the accepted Order Form, fifty percent (50%) of the Fees for the Hardware, Water Meters and Professional Services costs will be invoiced when the Order Form is accepted by us. The remaining balance owed will be invoiced when the Solution is delivered. The Software subscription is billed annually and in advance. You agree to pay the Fees to us within thirty (30) days of the invoice date.
Late Payment. If you fail to pay the Fees within five (5) business days of notice to you that payment is past due or delinquent, we may suspend or terminate your access to the Solution. Any unpaid overdue Fees will be subject to a finance charge equal to one percent (1%) of the unpaid balance per month. You agree to reimburse us for any costs or expenses (including, but not limited to, reasonable attorneys’ fees) that we incur in order to collect any amount of Fees that is not paid when due.
Taxes. You will either provide us with a tax exemption certificate or pay all applicable sales, use, service, value-added, consumption or other taxes attributable to your purchase and/or use of the Services. Any such taxes collected by Apana and remitted on your behalf will be separately stated on the invoice we submit to you. We will pay all taxes on our income and all taxes and insurance associated with our personnel.
Definition of Confidential Information. “Confidential Information” means either party’s non-public information, material and data that relates to its business, research, and any proprietary information, trade secrets, and know-how of the party that is disclosed under these Terms or in connection with the Solution. Our Confidential Information includes, but is not limited to, the terms and conditions set forth in the Order Form, our research, Solution plans, Hardware mechanisms and systems, our location of the Hardware, Installation Instructions, the Software, including the Software source code, our customer lists, development plans, inventions, processes, formulas, technology, designs, drawings, marketing, and finances.
Protection of Confidential Information. During the Service Term (except for trade secrets, which shall be held in confidence for so long as they constitute trade secrets, and confidentiality obligations as required by applicable law), you and we each will protect the others Confidential Information as follows:
We agree to maintain the confidentiality of your Confidential Information (as defined below). Unless otherwise permitted by these Terms, we also agree not to use any of your Confidential Information other than for the purpose of performing the Services and not to disclose your Confidential Information except to our employees or contractors who have a need to know for that purpose.
You agree to maintain the confidentiality of the Solution, the Installation Instructions, and any of our other Confidential Information. You agree not to disclose such information to any third-party, other than to your employees, agents, subcontractors, and representatives who have a reasonable need to have access to it in connection with exercising your rights under these Terms.
Both you and we each agree to implement and maintain an appropriate security program for the Confidential Information of the other party. The security program must: (1) ensure the security and confidentiality of the Confidential Information; (2) protect against any threats or hazards to the security or integrity of the Confidential Information; and (3) prevent unauthorized access to or use of Confidential Information. Each party will immediately notify the other party of any misappropriation, theft, misuse or unauthorized disclosure, access to, or use of any Confidential Information, and fully cooperate with the other party, at the other party’s sole expense, in any legal action taken to enforce its rights in and to the Confidential Information.
Exceptions to Obligations of Confidentiality. Information will not be considered Confidential Information under these Terms to the extent, but only to the extent, that the information: (1) is already rightfully known to the recipient free of any restriction at the time it is obtained from the discloser; (2) is subsequently learned from an independent third party free of any restriction and without breach of these Terms; (3) is or becomes publicly available through no wrongful act of the recipient; or (4) is independently developed by the recipient without reference to any Confidential Information of the discloser.
Disclosures Required by Law. Confidential Information may be disclosed by the recipient of the Confidential Information to the extent, but only to the extent, required by law, regulation, government agency or court order, discovery request, subpoena, or civil investigative demand. In the event that disclosure of Confidential Information is so required, the recipient of the Confidential Information must give the discloser (to the extent not legally prohibited from doing so) prompt written notice and cooperate with the discloser in seeking to limit the disclosure to the greatest extent possible consistent with the recipient’s legal obligations and obtaining confidential treatment for such information, if available.
Return of Confidential Information. Upon request or upon expiration or termination of these Terms for any reason, the recipient of Confidential Information will: (1) promptly return the Confidential Information to the discloser, or, at the discloser’s option, destroy all copies of the Confidential Information and provide a written certification of the destruction; and (2) purge its and its affiliates’ information systems of all Confidential Information in electronic form.
Equitable Relief. You and we each acknowledge and agree that any breach of the confidentiality obligations above will cause immediate, irreparable damage to the other party (1) for which no adequate remedy at law exists, and (2) for which equitable remedies (including temporary and permanent injunctive relief), as well as any other available legal remedies, may be sought without the obligation to post a bond or to prove actual damage, and awarded by a court of competent jurisdiction.
Feedback. Any suggestions, comments, or other feedback provided by you to us in connection with these Terms, the Services, the Solution, the Hardware or the Installation Instructions (collectively, the “Feedback”) is and will be treated as our Confidential Information. You hereby assign to us all right, title and interest in and to the Feedback, including all intellectual property rights contained therein. We will be free to use, disclose, reproduce, license, distribute and otherwise exploit the Feedback as we, in our sole discretion, deem appropriate, entirely without obligation or restriction of any kind. You also acknowledge that the optimization of the Solution and accuracy of the Alerts depend in part on our receipt of feedback from you regarding your response to the Alerts.
Representations, Warranties, and Covenants. You represent and warrant to us that: (1) you have the full right, power, and authority to enter into these Terms, to grant the rights and licenses granted hereunder, and to perform your obligations under these Terms; and (2) you will comply with all laws, rules and regulations that apply to your use of the Solution and the Services.
In addition, you covenant and acknowledge to us that (1) you will install the Hardware in a reasonably clean, accessible, and secure area that is protected from damage either due to weather or resulting from your normal business operations (“Preventable Damage”), and that you, and not Apana, will be responsible and liable for all physical damage to the Hardware due to Preventable Damage; and (2) you will work with us in good faith and in a commercially reasonable manner (a) to resolve any functionality problems with the Hardware and (b) to mitigate any damage to the Hardware.
Solution Warranty. We represent and warrant that the Solution will perform in accordance with all associated documentation and the requirements and specifications set forth in the applicable Order Form during the Initial Term and during any Renewal Term for which you have purchased an extended warranty (the “Warranty Period”). If we are unable to correct any failure of the Solution during the Warranty Period, by replacing the Hardware or otherwise, you may terminate these Terms and receive a pro-rated refund (calculated daily) of amounts you paid in connection with the portion of the Solution that is non-compliant.
This warranty does not apply to: (1) a failure to properly install the Hardware; (2) a failure to keep the Hardware powered with electricity; (3) any use of the Solution in any manner not authorized under these Terms; (4) a lack of access at each Facility to an adequate mobile spectrum for operation of the Solution; or (5) a failure as a result of Preventable Damage. We do not warrant and are not responsible for any third-party products or services, including the Water Meters. Your sole and exclusive rights and remedies with respect to any third-party products or services are against the third-party provider and not against us.
Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES MADE IN THE PARAGRAPH ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY LAW, APANA DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
Your Indemnity to Us. You will indemnify, defend and hold us and our affiliates, employees, officers, directors, agents, successors and assigns, harmless at your own expense, against any and all liabilities, losses, costs, damages and expenses (including interest, penalties and reasonable attorneys’ fees), directly or indirectly relating to any third party claim, demand, or lawsuit arising out of: (1) your use of the Solution and Services in any way contrary to these Terms or your breach of the terms and conditions of these Terms; (2) your violation of applicable laws, rules or regulations in connection with the Solution; (3) Your Usage Data or the combination of Your Usage Data with other applications, content or processes, including any claim involving alleged infringement or misappropriation of third-party rights by Your Usage Data.
Our Indemnity to You. We will defend and hold you and your employees, officers, directors, agents, successors and assigns, harmless at our own expense, against any and all liabilities, losses, costs, damages and expenses (including interest, penalties and reasonable attorneys’ fees), relating to any third-party claim that the Solution or Services infringe or misappropriate the intellectual property rights of the third party. Our indemnification obligations do not apply to any such third-party claim based on (1) the use, integration, or combination of the Solution or Services, or any portion thereof, with non-Apana programs, solutions, processes, hardware or materials; (2) the alteration, modification or enhancement, or creation of a derivative work of the Solution by you or a third party without our authorization; or (3) the use of the Solution or Services, or our Confidential Information or intellectual property contrary to the terms of these Terms.
Infringement Claims. If a preliminary or final judgment is obtained against your continued use of the Solution or Services, or any part thereof, due to any alleged infringement or violation of a third party’s proprietary rights, or if, in our opinion, the Solution or Services or Deliverables are likely to become subject to a claim for infringement, we will, at our sole expense and discretion, either: (1) procure for you the right to continue using the allegedly infringing element of the Solution or Services; (2) replace or modify the Solution or Services, in whole or in part, so that it becomes non-infringing, but only if the modification or replacement is functionally equivalent to the allegedly infringing element of the Solution or Services; or (3) terminate the applicable Order Form and refund a pro rate portion of the Fees you actually paid to us for the Solution or affected Services, as applicable. Our satisfaction of any of the above options, along with performing our defense and indemnity obligations with respect to third-party claims for intellectual property infringement, will satisfy our entire liability to you, or any of your customers (if any), for any claim of intellectual property or proprietary rights infringement, and will be your sole and exclusive remedy for any claim for such infringement, notwithstanding anything to the contrary herein.
Indemnification Procedure. The party seeking indemnification under these Terms will: (1) give the indemnifying party prompt written notice of the applicable claim; (2) tender to the indemnifying party control of the defense and settlement of the claim (except that any settlement that imposes any obligation or liability on the indemnified party will be subject to the prior written consent of the indemnified party); and (3) fully cooperate with the indemnifying party, at the indemnifying party’s sole expense, in defending or settling the claim. The indemnified party will have the right to participate at its own expense in any indemnification action or related settlement negotiations using counsel of its own choice. Neither party may consent to the entry of any judgment or enter into any settlement that adversely affects the rights or interests of the other party without that party’s prior written consent, which may not be unreasonably withheld.
Limitation of Liability. EXCEPT FOR DAMAGES ARISING FROM INTENTIONAL MISCONDUCT, RECKLESSNESS, GROSS NEGLIGENCE, OR EITHER PARTY’S BREACH OF THE CONFIDENTIALITY OBLIGATIONS, OR BREACH OF YOUR OBLIGATIONS REGARDING RESTRICTIONS ON USE OF THE SOLUTION AND SERVICES, OR VIOLATION OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS OR THE LICENSES GRANTED UNDER THESE TERMS, TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER YOU OR APANA (AND ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS) BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL (INCLUDING LOSS OF USE, DATA, BUSINESS, OR PROFITS) DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, REGARDLESS OF LEGAL THEORY, WHETHER OR NOT THE PARTIES HAVE BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
EXCEPT FOR DAMAGES ARISING FROM EITHER PARTY’S BREACH OF THE CONFIDENTIALITY OBLIGATIONS, OR BREACH OF YOUR OBLIGATIONS REGARDING RESTRICTIONS ON USE OF THE SOLUTION AND SERVICES, OR VIOLATION OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS OR THE LICENSES GRANTED UNDER THESE TERMS, THE AGGREGATE LIABILITY OF EITHER PARTY TO THE OTHER FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, REGARDLESS OF THE DAMAGES THEORY, WILL NOT EXCEED THE FEES PAID BY YOU TO APANA UNDER THESE TERMS DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE THE CLAIM AROSE. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE PURPOSE OF THIS PARAGRAPH IS TO PROVIDE FOR THE ALLOCATION OF RISK AND LIMIT POTENTIAL LIABILITY GIVEN THE FEES PAID, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF WE WERE TO ASSUME ANY FURTHER LIABILITY THAN PROVIDED FOR HEREIN.
Insurance. Throughout the term of the Services, Apana shall maintain adequate minimum insurance coverage and shall be solely responsible for the payment of all deductibles and/or self-insured retention contained in the insurance policies for (1) Commercial General Liability, (2) Commercial Automobile Liability, (3) Workers’ Compensation and (4) Employer’s Liability.
Modifications. We may revise these Terms from time to time and the most current version will always be posted on our website. We will notify you of any change at sign in or by some other method (for example via email to the email address associated with your account). By continuing to access or use the Solution after revisions become effective, you are agreeing to be bound by the revised Terms. The Terms will not be modified in a manner that materially decreases the Services to you without your prior consent.
Disputes and Resolution. Both you and we will attempt in good faith to resolve by mutual agreement all disputes arising out of or relating to these Terms. Any dispute that is not resolved with a thirty (30) day period must be submitted to JAMS, or its successor, for mediation. If the matter is not resolved through mediation within one hundred twenty (120) days after submission, then it will be submitted to JAMS, or its successor, for final and binding arbitration before a single arbitrator. We and you each agree and covenant to participate in the mediation and, if necessary, arbitration in good faith, and to share equally the costs and expenses of the mediator, the arbitrator, and JAMS, as applicable. The provisions of this paragraph may be enforced by any federal and/or state courts located in King County, State of Washington. The party seeking enforcement, if successful, will be entitled to an award of all costs, fees and expenses, including attorneys’ fees, to be paid by the party against whom enforcement is ordered. You and we each irrevocably consent and waive any objection to the exclusive jurisdiction of and venue in the applicable federal and/or state courts located in King County, State of Washington.
Assignment. Except as expressly permitted herein, neither you nor we may assign these Terms or any of the respective rights or obligations under these Terms without the prior written consent of the other party, which shall not be unreasonably denied, delayed, or conditioned. These Terms or the rights or obligations of a party may be assigned by operation of law or otherwise in connection with a merger, consolidation, or sale of all or substantially all the assets or equity interests of the party. These Terms will be binding upon and will inure to the benefit of your and our respective successors and permitted assigns. Any assignment in violation of the foregoing will be of no force or effect.
Miscellaneous Legal Terms. These Terms and the use of the Solution will be governed by Washington law except for its conflicts of laws principles. All claims arising out of or relating to these terms or the services or software must be litigated exclusively in the federal or state courts of Washington, and both parties consent to venue and personal jurisdiction there. The provisions of these Terms that relate to restrictions on use of the Solution, the Installation Services, payment of Fees and taxes, Confidentiality Obligations, ownership of the Services and Usage Data, Indemnification and Limitation of Liability, as well as those provisions that, by their sense and context, are intended to survive performance by either or both parties shall also survive the completion, expiration, termination or cancellation of these Terms.
All remedies set forth in these Terms are cumulative and not exclusive of any other remedies at law or in equity, statutory or otherwise. These Terms constitutes the entire and exclusive agreement between you and us with respect to the Solution and the Services, and supersede and replace any other applicable agreements, terms and conditions. In the event of a conflict between these Terms and any other Apana document or policy, these Terms will prevail and control the subject matter of such conflict. These Terms creates no third-party beneficiary rights. Our failure to enforce a provision is not a waiver of our right to do so later. If a provision is found to be unenforceable, the remaining provisions of the Agreement will remain in full effect and an enforceable term will be substituted to reflect our intent as closely as possible.