Please read and accept this End User License Agreement

END USER LICENSE AGREEMENT

WATER MANAGEMENT SYSTEM

Thank you for accessing and using our Garratt-Callahan (Water Management System) website (the "Website") and licensing our Water Management System Software ("WMS" or "Software"). The Software is provided on behalf of GARRATT-CALLAHAN COMPANY, a California corporation ("GC," "Licensor," "we" or "us"). You ("you" or "Customer") acknowledge and agree that you have read, understand, and agree to be bound by, all of the terms and conditions of use, without modification by you, of our Website and Software as provided in this End User License Agreement ("EULA"). GC may modify the provisions of the EULA at any time, with such modifications effective upon posting. No attempts to modify or amend the EULA by you without GC's written consent are binding on GC. Your continued access to the Website and the Software is your consent to be bound by modifications by GC.

YOUR ACCESS TO THE WEBSITE AND THE SOFTWARE ARE SUBJECT TO THE PRIVACY POLICY FOR OUR WEBSITE, WHICH IS A PART HEREOF AND THE TERMS OF WHICH ARE INCORPORATED HEREIN BY REFERENCE.

This END USER LICENSE AGREEMENT (“Agreement”) is by and between GarrattCallahan Company, a California corporation, and Customer (each being referred to as a "Party" and collectively as the "Parties").

RECITALS

A. GC provides water treatment programs for its customers and has developed a proprietary software program called Water Management System ("WMS" or the "Software") accessible via the Internet, as more particularly described on the Website.

B. GC desires to license the Software to Customer on a subscription basis and Customer desires to obtain a subscription to the Software and related services on the terms and conditions set forth in this Agreement.

NOW, THEREFORE, in consideration of the mutual promises set forth herein, the parties agree as follows:

AGREEMENT

1. License. GC grants Customer a limited, nonexclusive and nontransferable license to use the Software and the Service, during the Term as those terms are defined herein.

2. Hosting Service. GC will host the Software (the “Service”) so that Customer and its authorized users will have access via the Internet during the Term, subject to the terms of this Agreement. Customer may use the Service for the purposes of serving the internal needs of Customer’s business.

3. Restrictions on Use. Customer may not, directly or indirectly, (i) license, sell, lease or otherwise transfer or grant third-party access to the Service or the Software (ii) alter, modify, translate or create derivative works based on the Software, (iii) process or permit to be processed the data of any third party, (iv) use or permit the use of the Service or the Software in the operation of a service bureau, timesharing arrangement or otherwise for the benefit of a third party, (v) disassemble, decompile, or reverse engineer, or otherwise attempt to derive or construct source code or other trade secrets from the Software, or (vi) permit any third party to do any of the foregoing.

4. Support Services. Subject to Customer's prompt payment of the fees due under this Agreement, Licensor will provide telephone and/or email consultation and advice to Customer Monday through Friday, during the hours of 7:30 a.m. to 4:30 p.m. (PST), excluding GC's holidays. Licensor will respond within 24 hours (except for weekends) to messages sent to Licensor's support department via email or telephone. For all Customer problems which cannot be resolved in an initial telephone conversation or email response, Customer will provide Licensor with a reasonably detailed description of the problem by email. Customer acknowledges that Licensor is under no obligation to support any hardware or software that is not part of the Service.

5. GC Consulting Services. If applicable, Customer may request Licensor from time to time to provide additional services based on GC's standard charges. Any Statement of Work agreed to by the parties based on GC's standard charges will be governed by this Agreement. Customer shall cooperate with and assist Licensor in performing Consulting Services, including providing Licensor complete and accurate information and data from its officers, agents, and employees.

6. Expenses for GC Consulting Services. If applicable, Customer shall reimburse Licensor for reasonable travel, administrative, equipment, and out-of-pocket expenses incurred in performing the Consulting Services requested by Customer in a Statement of Work within ten (10) days after Licensor submits a request for reimbursement, accompanied by documentation of such expenses incurred. These expenses are not included in any estimate in a Statement of Work unless expressly itemized.

7. Customer Restrictions and Responsibilities.

1. Customer Representations. Customer represents, covenants, and warrants that Customer will use the Software, Service and any data of third parties only in conformity with any documentation published by Licensor and available online, in app manuals, or help screens related to the Software (the "Documentation") and in compliance with all applicable laws and policies (including but not limited to laws, government regulations, Licensor policies and any other applicable policies relating to intellectual property, employment, labor, spamming, spoofing, network security, and privacy).
2. Customer Equipment. Customer shall be responsible for selecting, obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking equipment, web servers, and long distance and local telephone service, but excluding the Software (collectively, the "Equipment"). Customer shall be responsible for ensuring that the Equipment is compatible with the Service and the Software and complies with the Documentation. Customer shall also be responsible for the security and use of the Equipment.
3. Customer Requirements; Authorized Representative. Customer shall be responsible for obtaining the maintenance, training, service and support to utilize the Service and Software in the manner Customer desires, including naming at least one Customer employee to act as system administrator and authorized representative of Customer ("Authorized Representative") to interface with Licensor; and
4. Customer Data. Customer shall be solely responsible for collecting, inputting and updating all customer data, the accuracy and content of information provided by Customer and for determining whether the Software and Service meets Customer’s needs.

8. Fees and Payment.

1. Fees. Customer shall pay the fees for the number of users indicated during the online registration process on a monthly or yearly basis as selected by Customer. Fees are due when you register and you authorize us to renew the fees through automatic credit card billings for the selected period. Invoices will be delivered to Customer via electronic mail to the email specified in your online registration, which may be updated by Customer to Licensor from time to time. Licensor reserves the right to change the fees or applicable charges upon 30 days prior notice by email or otherwise.
2. Excess Storage. Customer will be notified monthly if its data storage quota is exceeded. Customer may store unlimited history of application data. Attachment data uploaded to the system, however is limited. The standard is 5GB per licensed user. Excess disk usage is only measured for uploaded files, including pictures, attachments, and any other uploadable file type stored in the database. Tools are provided in the software to monitor disk usage and alert Customer when overages occur. Customer will be billed in arrears for disk usage in excess of its quota at GC's customary rates.
3. Taxes. Customer shall be responsible for all taxes, levies and any other fees, other than taxes on GC’s net income, incurred as a result of this Agreement. Fees specified herein are exclusive of taxes, levies and fees. If any State Government, City, County, or other taxing authority deems this transaction to be taxable, Customer agrees to pay to GC or to the taxing authority all sales, use, excise, duties, value added and similar taxes (collectively, “Taxes”) on the Software or services licensed pursuant to this Agreement. Customer shall be solely responsible for personal property taxes or use taxes, if any, on the Software or services.
4. Late Payment. If Customer fails to pay any amount by the due date, Customer shall owe interest on the unpaid balance at a rate of 10% per annum. In the event that Customer has a past due balance for more than thirty (30) days, GC reserves the right to suspend the Service until payments are received in lieu of termination of this Agreement. Customer will be notified of any such suspension, in writing, via email to the Authorized Representative of Customer. GC shall promptly enable access to Service upon payment of all past due balances (including GC's standard re-activation fee).
5. Rate Changes. GC reserves the right to change its standard rate schedule for the Service from time to time, provided that no such change will be effective until the Renewal Term at least 30 days after GC has given Customer written or digital notice of change, and provided that increases in fees do not exceed 20% in any one year. Such written notice may be in the form of a posting on GC's support web site and issued in advance to customers.
6. Increasing Authorized Users. Customer may request additional users to be added to the Agreement by making the request in writing or via electronic mail to GC or by purchasing licenses online. Upon receipt of the fees for the additional Users, GC will enable access for the additional users, and charge Customer’s credit card accordingly. Unless otherwise agreed by the Parties, the fee charged for additional users will be based upon the fee schedule effective at the time such additional user(s) are granted access.

9. Ownership of Software. GC retains title and full ownership rights to the Software, including all modifications, enhancements and future releases. Licensor (or its third-party licensors, if applicable) will retain all rights, title, and interest in and to the Software, Service, Licensor information and all legally protectable elements or derivative works thereof. Licensor may place copyright and/or proprietary notices, including hypertext links, within the Services. Customer may not alter or remove these notices without Licensor's written permission. Customer may not have the right to, and agrees not to, attempt to restrain Licensor from using any skills or knowledge of a general nature acquired during the course of providing the Service, Software and Consulting Services, including information publicly known or available or that could reasonably be acquired in similar work performed for another Licensor customer.

10. Customer Representation and Ownership of Data. Customer represents and warrants that its Customer information does not and will not include anything that infringes the copyright, patent, trade secret, trademark or any other intellectual property right of any third party or otherwise violates any other right of any third party. All Customer information shall be exclusively owned by Customer. Customer shall have the ability to export its data at any time using the Software’s tools and reports. Within thirty (30) days after termination, GC may destroy any copies of Customer information in its possession or maintain any Customer information that it is required to maintain under applicable laws or regulations. Under no circumstances shall GC be Customer’s record keeper.

11. Indemnity. Customer will indemnify, defend, and hold Licensor harmless from and against any and all costs, liabilities, losses and expenses (including, but not limited to, reasonable attorneys' fees) resulting from any claim, suit, action or proceeding brought by any third party against Licensor arising out of or relating to Customer's breach of its representations or warranties hereunder or its use of the Software and Services.

12. Warranty; Disclaimers.

1. Limited Warranty for Services. Licensor shall use reasonable commercial efforts consistent with prevailing industry standards to maintain the security of the Service and minimize errors and interruptions in the Service, provided that:

   (i) Customer uses the Service and the Software strictly in accordance with the Documentation,

   (ii) Customer pays all amounts due under this Agreement and is not in default of any provision of this Agreement, and

   (iii) Customer makes no changes (nor permits any changes to be made other than by or with the express approval of Licensor) to the Software or Service. In addition, Customer acknowledges that the Service may be temporarily unavailable for scheduled maintenance, for unscheduled emergency maintenance, or because of other causes beyond Licensor's reasonable control. Licensor will not be liable to Customer as a result of these temporary service interruptions.

2. DISCLAIMER OF WARRANTIES FOR SERVICES AND SOFTWARE. NEITHER LICENSOR NOR ITS SUPPLIERS OR SERVICE PROVIDERS WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, NOR DO THEY MAKE ANY WARRANTY ABOUT THE RESULTS THAT MAY BE OBTAINED BY USING THE SOFTWARE OR SERVICE, EXCEPT AS EXPRESSLY AND UNAMBIGUOUSLY PROVIDED IN SECTION
3. THE SOFTWARE AND SERVICE ARE PROVIDED "AS IS" AND LICENSOR, ITS SUPPLIERS AND SERVICE PROVIDERS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OR A PARTICULAR PURPOSE, INFORMATIONAL CONTENT, SYSTEM INTEGRATION, ENJOYMENT AND NON-INFRINGEMENT.

13. LIMITATION OF LIABILITY

1. EXCLUSION OF DAMAGES AND LIMITS ON LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR OTHERWISE, LICENSOR, ITS OFFICERS, EMPLOYEES, AFFILIATES, REPRESENTATIVES, CONTRACTORS, SUPPLIERS, LICENSORS AND SERVICE PROVIDERS WILL NOT BE RESPONSIBLE UNDER ANY CONTRACT OR THEORY OF RECOVERY (INCLUDING NEGLIGENCE, STRICT LIABILITY OR OTHERWISE) FOR ANY: (i) ERRORS OR INTERRUPTIONS OF USE, LOSSES, INACCURACY OR CORRUPTION OF DATA, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, BUSINESS INTERRUPTIONS OR LOST OPPORTUNITIES; (ii) INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (iii) LOSSES CAUSED BY EVENTS BEYOND LICENSOR'S REASONABLE CONTROL (INCLUDING, WITHOUT LIMITATION, THE DISCLOSURE OF CONFIDENTIAL OR OTHER CUSTOMER INFORMATION OR DATA); AND (iv) AMOUNTS THAT, IN THE AGGREGATE, EXCEED THE FEES PAID BY CUSTOMER TO LICENSOR FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE FIRST ALLEGED ACT OR OMISSION THAT GAVE RISE TO THE LIABILITY.

14. Term; Termination; Suspension.

1. Term. The Term of this Agreement shall be for the period specified on customer's online registration (the “Initial Term”), which shall automatically renew for additional periods of equal duration (“Renewal Term(s)”), unless either party provides written notice of intent not to renew at least thirty (30) days prior to the end of the Term then in effect.
2. Termination. This Agreement may be terminated as follows: (i) Customer may terminate this Agreement at any time by notifying Licensor in writing and paying all fees for the Services for the remainder of the then current term.

   (ii) Either party may terminate this Agreement immediately by written notice if the other party materially breaches this Agreement and fails to cure its breach after receipt of written notice with (A) 15 days in the case of nonpayment of any fees, or (B) 30 days in the case of all other breaches.

   (iii) Either party may terminate this Agreement immediately by written notice if the other party (A) becomes insolvent, (B) makes an assignment for the benefit of creditors, (C) files or has filed against it a petition in bankruptcy or seeking reorganization, (D) has a receiver appointed, or (E) institutes a proceeding for liquidation or winding up. In the case of involuntary proceedings, a party will only be in breach if the applicable petition or proceeding has not been dismissed within 90 days.

3. Effect of Termination. With 7 days of expiration or earlier termination of this Agreement, Customer shall pay to Licensor all fees up to and including the date of termination. Customer acknowledges and agrees that following termination of this Agreement, Licensor may immediately deactivate Customer’s account. Furthermore, unless otherwise agreed-upon by the Parties in writing, Licensor shall remove or overwrite all applicable content from Licensor's systems following the effective date of termination or cancellation, in accordance with Licensor's standard procedures. Provided Customer has paid to Licensor any amounts owing under this Agreement, Licensor shall either for a period of thirty (30) days termination of this Agreement (1) grant Customer reasonable access to the Service for the sole purpose of Customer retrieving Customer Data or (2) transfer all Customer Data to other media for delivery to Customer at Customer's sole cost and expense. Customer agrees that Licensor shall not be liable to Customer or to any third party for any termination of Customer access to the Service or deletion of Customer Data, provided that Licensor is in compliance with the terms of this Section. Notwithstanding the foregoing, nothing shall preclude Licensor from maintaining one copy of Customer Data if required by law.
4. Suspension for Ongoing Harm. Customer agrees that Licensor may, with reasonably contemporaneous telephone or electronic mail notice to Customer, suspend Customer’s access to the Service if Licensor reasonably concludes that Customer’s use of the Service is causing immediate and ongoing harm to Licensor or others. Licensor will use commercially reasonable efforts to resolve the issues causing the suspension of Service. Customer agrees that Licensor will not be liable to Customer or to any third party for any suspension of the Service under such circumstances as described in this Section.

15. Miscellaneous.

1. Audit Rights. Customer shall (i) promptly provide written notice to Licensor if the number of users exceeds the authorized users designated in its online registration, and (ii) simultaneously pay Licensor for any additional users. During normal business hours or at any time the Software or Service is being used, Licensor or its authorized representatives may, upon reasonable advance notice, audit and inspect Customer's use of the Software and Service and/or Customer's compliance with this Agreement.
2. Assignment. This Agreement will be binding upon and insure to the benefit of the parties to this Agreement and their respective successors and permitted assigns, provided that neither this Agreement nor any license hereunder may be assigned by Customer (whether by operation of law or otherwise) without Licensor's prior written consent. Notwithstanding the foregoing, Licensor may assign all or any part of its rights and obligations under this Agreement to (i) any entity resulting from any merger, consolidation or other reorganization of Licensor, (ii) any operating entity controlling Licensor, or owned or controlled, directly or indirectly, by Licensor, (iii) any affiliate of Licensor, or (iv) any purchaser of all or substantially all of the Licensor's assets.
3. Force Majeure. Neither party may be held liable for any damages or penalty for delay in the performance of its obligations hereunder (other than Customer's obligation to make payments under this Agreement) when the delay is due to the elements, acts of God or other causes beyond its reasonable control.
4. Arbitration. The parties agree that all disputes arising out of or relating to the formation, performance or alleged breach of this Agreement will be determined and settled by binding arbitration to take place exclusively in accordance with the commercial rules of the American Arbitration Association. Any award rendered shall be final and binding on the parties, and may be entered as a judgment by any court of competent jurisdiction. The prevailing party shall be entitled to recover its costs of arbitration (including reasonable attorneys' fees), which will be made a part of the arbitrator's award. Notwithstanding the foregoing, in the event irreparable injury is shown, either party may obtain injunctive relief exclusively in the appropriate state or federal in San Mateo County, California . Any litigation between the parties, including litigation to enforce an arbitration award, will take place exclusively in the appropriate state or federal court in San Mateo County, California.
5. Severability. A determination that any provision of this Agreement is invalid or unenforceable will not affect the validity or enforceability of any other part of this Agreement. Similarly, a determination that any provision is invalid or unenforceable in one application will not affect the validity or enforceability of the same provision in other contexts. To the extent possible, this Agreement shall be construed to give meaning to every provision.
6. Waiver and Modification. A party's waiver of any breach or its failure to enforce any term of this Agreement may not be deemed a waiver of any other breach or of its right to enforce the same term or others in the future. Any waiver, amendment, supplementation or other modification or supplementation of any provision of this Agreement will be effective only if in writing and signed by both parties.
7. Governing Law. This Agreement will be governed by and construed in accordance with the substantive laws of the United Sates and the State of California, without regard to or application of California's conflicts of law rules. This Agreement will not be governed by the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act, the application of which are expressly excluded.
8. Notices. Any notice or other communication required or permitted hereunder shall be in writing and shall be deemed to have been given if personally delivered, transmitted by facsimile (with mechanical confirmation of transmission), email or deposited in the United States mail, registered or certified, postage prepaid, addressed to the parties' addresses set forth below. Notices given in the manner provided for in this Section 15.h. shall be deemed effective on the third day following deposit for deliveries within the United States, or on the day of transmission or delivery if given by facsimile, email or by hand. Notices must addressed to the parties hereto at the physical or email addresses set forth below, unless the same shall have been changed by notice in accordance herewith.

   
   To Licensor:
   Licensor
   GARRATT CALLAHAN
   50 Ingold Road
   Burlingame, CA 94010
   
   Attn: Legal Notices
   Phone: 650-984-5126
   Fax: 650-692-6098
   Email: legal@g-c.com

   To Customer:

   At the address provided in its online registration, unless changed in writing by Customer by notification to Licensor at the address above.

   Authorized Representative: The person designated in Customer's online registration.

9. Relationship of Parties. This Agreement will not be construed as creating any agency, partnership, joint venture or any other form of legal association between the parties and each party is an independent contractor
10. Attorneys' Fees. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover its costs and attorney fees.
11. Construction. This Agreement shall be deemed the joint work product of the parties and may not be construed against either party as drafter. Captions are for convenience only and may not be construed to define, limit or affect the construction or interpretation of this Agreement.
12. Entire Agreement. This Agreement, including Exhibits and any order form or Statement of Work, constitutes the entire agreement between the parties with respect to the subject matter of this Agreement, and supersedes and replaces all prior or contemporaneous writing or oral statements, understandings or agreements. Except where otherwise set forth in the main body of this Agreement, in the event of a conflict between an Exhibit or Statement of Work and the main body of this Agreement, the terms of the main body of this Agreement will prevail.

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