End User License Agreement
READ THIS AGREEMENT CAREFULLY
YOU AGREE TO ALL THE TERMS OF THIS AGREEMENT, ON YOUR BEHALF OR THE ENTITY YOU REPRESENT, IF: (1) YOU CLICK THE ‘I ACCEPT’ BUTTON BELOW, AND / OR (2) YOU START USING OR INSTALLING OUR SOFTWARE.
FOR EU RESIDENTS, BY ACCEPTING THE TERMS OF THIS AGREEMENT, AND / OR DOWNLOADING OR USING OUR SOFTWARE, YOU WAIVE ANY RIGHTS THAT YOU MAY HAVE TO A “COOLING OFF PERIOD” IN WHICH OUR SOFTWARE CAN BE RETURNED UNDER THE CONSUMER RIGHTS DIRECTIVE 2011/83/EU AND/OR ANY INCORPORATION OF THE DIRECTIVE INTO THE LAWS OF YOUR COUNTRY OF
RESIDENCE. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT: (i) DO NOT CHECK THE BOX OR CLICK THE BUTTON, AND (ii) DO NOT USE, COPY OR INSTALL OUR SOFTWARE, AND (iii) YOU MUST UNINSTALL OUR SOFTWARE FROM ALL DEVICES THAT YOU OWN
OR CONTROL.
Introduction
In this End User License Agreement (referred to as ‘EULA’), for ease of reference, we will use the following terms: “AKWA”, “our”, “us” or “we” means AKWA Technologies Solutions inc.
By “you,” we mean a customer, purchaser, recipient, other end users, a person who downloads AKWA Software from our web site or from an authorized AKWA Reseller website, the Apple Store or Google Play (referred to as an ‘App Store’ or collectively as ‘App Stores’).
This EULA is a legal document that contains the terms and conditions under which limited use of our Software (referred to as ‘Software’). By Software, we mean any applications, phone “apps”, web platforms, firmware programs, computer files, software code or programs, modified or upgraded versions of such files and programs. This Software is licensed to you by AKWA, and where applicable, by an authorized AKWA reseller.
Disclaimers, exclusions, and limitations of liability under this EULA will not apply to the extent prohibited by applicable laws. There are jurisdictions that don’t allow the exclusion of implied warranties or the exclusion or limitation of incidental or consequential damages or other rights, so certain provisions in this EULA may not apply to you.
1. License grant
AKWA grants you the right to use our Software for your personal or commercial use. As part of this license, you may operate our Software in the manner described in our user documentation. Our Software can be downloaded onto a personal computer or mobile device. AKWA agrees that you can permanently transfer all of your Software user rights to another person, as long as that person agrees to be bound by this EULA, and following such transfer you stop using our Software.
2. Terms and Restrictions
Subject to the terms of this EULA, we grant you a limited and nonexclusive license to install and use our Software, solely if used in conjunction with AKWA products. Once you accept the terms and conditions of this EULA, it remains in effect until terminated. The limited license in this EULA automatically terminates if you fail to comply with any of the terms and conditions outlined in this EULA. Upon such termination, you agree to cease using our Software and immediately uninstall or destroy any files, programs and/or documentation related to our Software, including all copies made or obtained by you.
You also agree not to (i) remove or alter any of our content including, and not limited to trademarks, logo, copyrights, proprietary notices, or labels in the Software; (ii) modify, translate, merge with another program, or reverse engineer our Software; (iii) make yourself interoperability type modifications to our Software, and in the event such changes are required, you need to contact AKWA; (iv) use the Software unlawfully; (v) use our Software to place harmful code, including but not limited to viruses, Trojan horses, key-logging software, worms, or other; (vi) use our Software or documentation to develop a competing software; (vii) sell, rent, lease, sub-license, lend or transfer our Software in any way.
At anytime, you consent to not (i) use our Software with the intent to negatively impact the safety, security, or privacy of other users; (ii) use computer networks with which our Software may interact with to impair usage of our products by others or infringe upon the privacy rights of any authorized user or third party.
You agree that the Software and any additional materials specific to the Software provided under this EULA remain the sole and exclusive property of AKWA.Unauthorized copying of our Software is forbidden.
If you download our Software from an App Store, you are also subject to any terms of use of that App Store, and in the event of any conflict or ambiguity between our EULA and an App Store’s EULA, the App Store’s EULA will govern, but only to the extent necessary to resolve such conflict or ambiguity, and the terms of our EULA will otherwise remain in full force and effect. By using our Software, you also acknowledge and agree that it is your responsibility to understand the terms of this EULA, as well as the terms of use of any App Store.
Our Software may contain links to independent third-party websites (“Linked Sites”) to enhance your experience or to give you access to additional information. Linked Sites are not under our control, and we are not responsible or liable for, and we don’t endorse the content, information or practices of such Linked Sites. You therefore waive and release any legal claims you could have against AKWA with respect to Linked Sites.
In the event of a conflict or inconsistencies between our English and any non-English EULA versions, the English version shall govern, to the extent not prohibited by local law in your jurisdiction.
3. Ownership
The Software and its copyrights and intellectual property rights are the exclusive property of AKWA.
AKWA reserves itself all Software rights not expressly granted to you in this EULA. Our Software (and all its upgraded versions thereof) is licensed to you by AKWA or an authorized AKWA reseller, and all times AKWA remains full owner of the Software. Any suggestions or feedback provided by our partners or users remain our property, and we may use such content without compensating anyone. AKWA users understand that we do not waive our rights to use similar ideas proposed by our partners, any users, or our employees.
4. Software Updates
To improve the performance of our Software, AKWA may develop patches, fix computer bugs, or update / upgrade / modify its Software. The majority of such improvements are automatically installed without providing any notice or asking for user consent. AKWA partners or customers consent to these automatic updates, and if you do not agree to such updates, we ask that you stop using our Software.
If you decide not to download and/or to use an upgrade or update provided by AKWA, you understand that you could put the Software at risk to serious security threats or cause the Software to become unusable or unstable.
5. Termination
Software licenses granted to our customers, and this EULA, are valid and effective on the date you start using our Software, and shall remain active for as long as you use or own our Software. AKWA may terminate this EULA at any time if you fail to comply with any term(s) hereof.
As a customer, you may terminate this EULA effective immediately upon written notice to AKWA. Once this EULA is terminated, you agree to stop using and uninstall our Software, while all our EULA terms remain effective once terminated.
6. Warranty Disclaimer
AKWA provides its Software ‘as is’, and disclaims all warranties and conditions, whether implied or expressed. AKWA does not guarantee any specific results from the use of our Software, and we make no warranties that our Software is error-free, will be uninterrupted, or is free of computer viruses or harmful code. At all times, you use our Software at your own risk and discretion. No oral or written information or advice given by AKWA or an authorized reseller shall create a warranty.
In fact, you are responsible (and AKWA disclaims) for any loss, damage or liability, including to your water or plumbing systems, any objects or peripherals next to our installed products, and this includes moving objects, people or pets normally found in your home, business or any type of real estate, resulting from your use of our Products or Software. AKWA makes no warranty whatsoever with respect to the accuracy of our Software data.
You are also responsible for complying with any safety warnings and precautions that may accompany our products and Software. If you are not comfortable using our Software after reading any safety warnings, you must stop using and remove our Software.
7. Limitations
Nothing in this EULA shall attempt to exclude liability that cannot be excluded under applicable laws. This EULA is not intended to and does not change or exclude any statutory consumer rights that cannot be lawfully changed or excluded. To the extent permitted by applicable laws, in no event: (i) AKWA will be held liable for any damages related to the usage of our Software, and this even if AKWA knew or should have known of the possibility of potential damages arising from the use of its Software; (ii) AKWA and / or its authorized resellers, dealers, suppliers or their respective officers and employees, be liable for any direct or indirect, incidental or consequential damages whatsoever, regardless of the liability theory, arising out of or in any way related to the use of or inability to use our Software, even if AKWA or its business partners and representatives have been advised of the possibility of such damages.
You acknowledge that our Software is not certified for emergency response, and AKWA is not a monitoring emergency notification system designed to dispatch emergency authorities to your premises in the event of an emergency. Unless we explicitly promise a ‘guarantee’, we do not guarantee or promise any water savings caused by the elimination of water drips or leaks, limit property damage, or any types of savings or benefits from the use or our Software or our products.
All Software information is provided “as is” and “as available”. AKWA cannot guarantee that the information you have in hand is correct or up to date. At all times, system status information displayed on our products, including but not limited to information displayed on our AKWA Water Alarm controller, precedes the same information displayed on our Software.
8. Confidentiality
“Confidential Information” describes any disclosed information that AKWA characterizes as confidential at the time of its release, either in written or oral form. This excludes information for which you can demonstrate: (i) it has previously been disclosed to you without restriction on disclosure; (ii) it is generally known in the industry or public domain; (iii) it is disclosed to you by a third party without restriction on disclosure; or (iv) it is developed by you without access to any Confidential Information. At all times, you will preserve and protect Confidential Information, both during the term hereof and for at least 2 years after termination of this EULA, understanding that all AKWA source code is considered confidential in perpetuity.
AKWA customers and users agree to not use, disclose, communicate, distribute or publish Confidential Information to anyone, or any company or any third-parties without prior written consent from AKWA. Upon discovery of any breach of this EULA or any unauthorized use or disclosure of Confidential Information, you shall notify AKWA and you will cooperate with us to recuperate such Confidential Information to prevent its further unauthorized usage.
In the event you are compelled by law to disclose AKWA Confidential Information, prior to such disclosure you agree to: (i) notify AKWA prior to any disclosure to allow us the opportunity to contest such disclosure; (ii) establish the nature of the Confidential Information; (iii) cooperate with AKWA so that we can obtain a protective order limiting or banning disclosure of Confidential Information. If AKWA cannot obtain a protective order, you shall disclose Confidential Information to the appropriate extent needed to comply to applicable laws and legislation.
9. Arbitration
For any disputes or claims arising from the use of our Software, or in conjunction to our EULA, included but not limited to, our Terms and conditions or this Arbitration section, you agree that the outcome will be determined by binding arbitration. Any arbitration shall be confidential, and neither you, AKWA or the arbitrator shall disclose the existence, content or results of any arbitration, except if required by or for purposes of law enforcement or appeal of the arbitration award.
Prior to submitting a claim for arbitration, both parties agree to first notify the other party to try and resolve the dispute. If such dispute is not resolved within 60 days of the initial notification, then that claim can be submitted to arbitration. Both parties also agree that the arbitrator is selected and agreed by both parties, and that arbitrator must be a retired lawyer or judge, with extensive knowledge of applicable laws.
You also agree that the Commercial Arbitration Act in Canada governs the interpretation and enforcement of this section and EULA, and that you waive your trial or class action rights in a court of law. You also understand that without this provision, you would have had a right to litigate a dispute through a court before a jury or judge, and that you have knowingly waived such rights and agree to resolve any disputes through arbitration in accordance with the provisions of this section and EULA. Any arbitration provision shall outlive this EULA and the termination of the usage of our Software.
If AKWA changes this Arbitration section or our EULA (other than coordinate or address changes), you may reject such changes by sending us a written 30 days notice. If you choose to reject a future change, you agree that arbitrated disputes between us are done in accordance with the language of this EULA, as modified by any changes you did not reject.
(a) Arbitration Notice
If you seek arbitration, send us your request by certified mail, with a written Arbitration Notice of your claim (“Notice”) to:
AKWA Technologies Solutions Inc.
646 Chemin du Village, Morin-Heights, QC, Canada
JOR 1HO
If AKWA initiates arbitration, we will send you a written Notice to the email registered in our accounts. Notices must include: (i) the nature and basis of the claim or dispute; (ii) the outcome sought (“Demand”). If no agreement is reached within 30 days after a notice is received, arbitration proceedings may be initiated by either party.
(b) Procedures and fees
To initiate an arbitration process, start by contacting the Canadian Arbitration Association (https://canadianarbitrationassociation.ca). Arbitration will be governed and administered by the Canadian Arbitration Association in Canada (“CAA”) or a mutually agreed arbitration authority. Any arbitrator will be bound by the terms of this EULA. Except for guidelines to protect Confidential Information and Intellectual Property Rights, all issues are decided by the Arbitrator. Unless both parties agree otherwise, arbitration hearings will take place in Montreal, Canada.
You are also responsible for any filing fees and the right to a hearing will be determined by CAA Rules. You may select that the arbitration process is conducted by a telephone hearing, on the basis of documents submitted to the arbitrator, or in- person as established by CAA Rules.
Once the arbitration is completed, an arbitrator shall issue a decision explaining its conclusions on which the award is based. Only if an arbitrator issues you a monetary award, which award is greater than the value of our last written settlement offer made before an arbitrator was selected, then AKWA will pay you a maximum of CDN $10,000. Except as expressly set forth herein, filing, administration and arbitrator fees are governed by CAA Rules.
(c) Claims Only In Individual Capacity
You and AKWA agree that each party may claim against the other, only if the representation is as an individual capacity, and not as a plaintiff or class member, representative or private attorney general proceeding. Unless you and AKWA agree differently, the arbitrator will not consolidate many claims with your own, and will not preside over any class proceedings or forms of it.
The arbitrator may award declaratory relief only in favour of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s claim. If a court of law decides that applicable law precludes enforcement of an individual claim for relief, then only such claim can be severed from arbitration and be brought in courts.
10. Export Compliance
Our Software and related technologies are subject to export or import control laws and regulations in the countries where it will be used and deployed. You agree to indemnify and hold AKWA harmless from any claims, losses, liabilities, damages, cost, fees and expenses arising from or related to any breach by you of your obligations.
11. Data Protection
Each time you purchase our Software, you agree and understand that we store, share, process and use the collected data, internally or with third-party partners (such as freight carriers or credit card processing companies), to process your order. AKWA protects such information in accordance with the practices outlined in our Privacy Policy.
12. Communications
You understand that when you become a customer and user of our Software, that all communications such as agreements, notices or disclosures are in writing, to satisfy any legal requirements, and are in electronic format. The email address you give us at registration or otherwise is also used to send you information about our products and services. If you select to do so, you can also use the opt-out link provided in your emails to opt-out of any marketing material.
13. Notifications
AKWA provides two (2) types of notifications: (1) notifications required by law, and; (2) marketing or optional notices.
AKWA is not responsible for automatic filtering you or your network provider may apply to email notifications. We recommend that you add the “@akwatek.com” URL in your email address book to help ensure you receive email notifications from AKWA.
14. Force Majeure
AKWA cannot be held liable or responsible for any failure to perform, delays in performance caused by acts or events beyond our control, including but not limited to, acts of God, strikes, lock-outs, riots, terrorist attacks, fire, explosion, natural disasters, telecommunications network failures, or network / internet access failures.
15. Confidential Information and Intellectual Property Rights
Our Software and any Confidential Information we provide contain valuable trade secrets and proprietary information, that any actual or threatened breach of this EULA will constitute direct harm to AKWA for which both monetary damages and injunctive relief are an appropriate remedy.
AKWA may seek injunctive or other relief to protect its Confidential Information, trade secrets, proprietary information and intellectual property rights or to prevent loss of data or damage to its servers in any court of competent jurisdiction. Therefore, you must treat the Software like any other material protected by laws and treaties relating to international property rights and in accordance with this Agreement.
16. Severability
If this EULA, or any part of it, becomes illegal, invalid, unenforceable, or prohibited under applicable laws or regulations, such part, and only this part, will not be a part of the contract between us. The remainder of this EULA remains in full force and effect.
17. Expiration
Obligations in Sections 2 to 21 survive any expiration or termination of this EULA.
18. Waiver of rights
Failure or delay by AKWA to enforce provisions of this EULA do not constitute a waiver of our rights against you.
19. Laws and Jurisdiction
You agree to use our Software in compliance with any applicable laws, including laws in the country in which you live or where you downloaded or are using our Software. This EULA is governed by Canadian federal laws, without giving effect to law conflicts provided in the application of other jurisdictions. You hereby agree to submit to the jurisdiction of the province of Quebec (Canada), for the purpose of litigating any claims or disputes, unless it is required to be arbitrated otherwise in this EULA.
20. Assignment
This EULA is binding upon any permitted assignee, and any associated rights or obligations cannot be assigned or transferred by you without our prior written consent. This EULA can be assigned by AKWA without restriction.
21. Indemnity
If AKWA is the subject of a claim, becomes involved in a legal proceeding, or suffers any economic loss or damage as a result of your violation of this EULA, to the extent permitted by law, you will be held responsible for compensating us for the full amount of our loss, including our lawyers’ fees, expenses and court costs, except to the extent that AKWA contributed to the loss or damage.
22. Contact
If you have questions regarding this EULA, fill out the AKWA form at http://akwatek.com/contact, send us an email at info@akwatek.com or contact us by phone at 514 592-3201