THE FOLLOWING IS A LICENSE AGREEMENT (HEREINAFTER THE “AGREEMENT”) BETWEEN YOU, THE END-USER LICENSEE (HEREINAFTER “YOU”), AND THE LICENSOR, American Water Chemicals, INC., (HEREINAFTER THE “COMPANY”). AS USED IN THIS AGREEMENT, “APPLICATION” MEANS, COLLECTIVELY, ANY AND ALL WEB-BASED APPLICATIONS AND MODULES OF THE COMPANY FOUND ON www.awcproton.com including, but not limited to, the proton software, THAT ARE USED TO DETERMINE OPTIMUM DOSAGES OF WATER CHEMICALS TO BE ADDED TO FEED WATER IN THE TREATMENT OF REVERSE OSMOSIS EQUIPMENT. BY ACCESSING OR OTHERWISE USING THIS WEBSITE AND RELATED APPLICATION, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT USE OR ACCESS THIS WEBSITE AND RELATED APPLICATION.
WHEREAS, you acknowledge that if you are acting on behalf of your employer, you are authorized to accept these terms and conditions on its behalf (such employer being hereinafter referred to as “you”); and
WHEREAS, the Company is engaged in a highly competitive business; and
WHEREAS, the Company has made a significant investment to create a set of formulas and calculations to determine the optimum dosage of their water chemical products; and
WHEREAS, the dosages are based on proprietary and confidential modeling calculations that take water quality, temperature and system configuration into account; and
WHEREAS, the Company’s formulas and calculations used to determine the optimum dosage of water chemical products are closely guarded by the Company and are considered trade secrets; and
WHEREAS, the Company recognizes that information that is input into the Application by you may represent confidential information and/or trade secrets; and
WHEREAS, the Company and you wish to utilize the Application to facilitate business between each; and
WHEREAS, in using the Application the Company and you will have access to and become familiar with information that is considered to be confidential and trade secrets; and
WHEREAS, in order to induce the Company to allow access to the Application and to induce you to use the Application, you are willing to enter into this Agreement; and
WHEREAS, you agree that you have read and understand this Agreement; and
WHEREAS, the Company is only willing to allow you to use this Application if you enter into this Agreement.
NOW THEREFORE, for and in consideration of the mutual promises contained herein and your use of the Application, the sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound, covenant and agree as follows:
1. ACKNOWLEDGEMENTS. The acknowledgements contained in this Agreement are true and correct and are incorporated herein by reference.
2. MEANING OF YOU. If the person accessing the Application is an individual using it for his or her own purposes, “you” means the person using this Application. If the person accessing the Application is doing so in furtherance of the purposes of another person, including an organization (whether or not the employer or the person) then “you” means both the person accessing this Application and the other person, including an organization. No person accessing the Application for another may do so unless the person accessing the Application is authorized to bind the other person, including an organization. The definition of “you” and the possessive “your” are interchangeable.
3. SCOPE OF PERMITTED USE. The Application is for your individual use, solely for internal use by you for your business, or for your own personal use. You may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, sublicense, transfer, assign, rent, sell or otherwise convey any information, software, products or services obtained from the Application without the prior written consent from the Company. You may not disassemble, decompile or otherwise reverse engineer all or any portion of the Application.
4. LICENSE. Company hereby grants to you a nontransferable and nonexclusive license to use the Application in accordance with the terms and conditions of this Agreement. The license authorizes you to use the Application in connection with the input of feed water data for determining the type and concentration of water chemicals to be added to the feed water necessary to keep the reverse osmosis equipment operating efficiently. You agree that you are licensing the Application for this stated purpose, and not for any other use, including, but not limited to, determination of the proprietary formulations, and calculations of the Company.
5. CURRENT AND SUBSEQUENT VERSIONS. You acknowledge that the Application, including the related documentation and any new releases, modifications, and enhancements thereto, belong to the Company, and that the Company retains all right, title, and interest in and to the Application. You further acknowledge that the Application and information related thereto constitute valuable trade secrets of the Company. You agree to comply with the terms and conditions of this Agreement and agree to treat the Application as the confidential and proprietary information of the Company.
6. NO WARRANTY; LIMITATION OF LIABILITY.
6.1. The Company does not guarantee service results or represent or warrant that the Application will be completely error free. THE APPLICATION IS PROVIDED BY COMPANY “AS IS.” THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY NATURE, EXPRESS, IMPLIED OR OTHERWISE, OR ARISING FROM TRADE OR CUSTOM, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.
6.2. You shall be responsible for the supervision, management and control of your use of the Application. You hereby indemnify and hold harmless Company and its affiliates (the “Indemnified Parties”) against any loss, liability, damages, costs, fines or expenses suffered or incurred by the Indemnified Parties at any time as a result of any claim, action or proceeding arising out of or related to your use, operation or implementation of the Application or its output. For purposes of this Agreement, “affiliate” means any Company division or subsidiary or any other affiliated entity involved in the manufacture or wholesale distribution of the Company’s products.
6.3. The Indemnified Parties shall not be responsible, and you shall have no recourse against the Indemnified Parties, for any loss, liability, damages, costs or expenses that may be suffered or incurred at any time by you as a result of your reliance upon or use of the Application, or as a result of any claim, action or proceeding against you arising out of or relating to the use of the Application, or as a result of your defense of any such claim, action or proceeding.
6.4. COMPANY SHALL NOT BE LIABLE FOR DAMAGES OF ANY KIND, INCLUDING GENERAL, DIRECT, SPECIAL, INCIDENTAL, AND CONSEQUENTIAL DAMAGES, RESULTING FROM OR ARISING OUT OF THIS AGREEMENT OR YOUR USE OF THE APPLICATION. YOU VOLUNTARILY WAIVE AND RELEASE ANY AND ALL CLAIMS FOR DAMAGES, INDEMNITY, OR REIMBURSEMENT AGAINST THE COMPANY RELATED TO YOUR USE OF THE APPLICATION.
7. TERMINATION. Company may immediately terminate your license at any time, without notice to you, whereupon you shall destroy all output results in your actual or construction possession that were obtained through the use of the Application.
8. ACKNOWLEDGMENT OF TRADE SECRETS AND CONFIDENTIAL BUSINESS INFORMATION. You and the Company acknowledge that:
8.1. the Company has a proprietary interest in the Application in that it contains confidential business information and trade secrets in the form of formulas and calculations created by the Company that are used to determine the optimum dosage of water chemical products in the maintenance of reverse osmosis equipment; and
8.2. feed water data input into the Application by you may constitute confidential information or a trade secret; and
8.3. both parties to this Agreement have an interest in maintaining their respective confidential business information and trade secrets; and
8.4. access to and use of the Application results in disclosure by both parties to this Agreement of valuable information, the disclosure of which to non-parties would cause the non-disclosing party to suffer significant monetary losses and to incur other significant damages.
9. CONFIDENTIAL INFORMATION. Any information shared between the parties through use of the Application shall be deemed “Confidential Information”, unless either party gives prior written notice to the other party to the contrary. “Confidential Information” shall include, but is not limited to, calculations and output from the Application, and any dosages, pricing, and/or printouts related thereto.
10. Excepted Confidential Information. The parties agree that information shall not be deemed to be Confidential Information, and the parties shall have no obligation with respect to such information which: (i) was in the public domain at the time it was disclosed or subsequently becomes in the public domain without breach by the receiving party of this Agreement or its agents; (ii) was known to the receiving party at the time of disclosure as substantiated by contemporaneous written documentation, with the burden on the receiving party to show by clear and convincing evidence that it knew such information at the time of disclosure; (iii) is disclosed on a non-confidential basis with prior written approval of the other party hereto; (iv) was independently developed by the receiving party as substantiated by contemporaneous written documentation, with the burden on the receiving party to show by clear and convincing evidence that it independently developed such information, or; (v) becomes known to the receiving party, on a non-confidential basis, from a source other than the other party hereto that is not prohibited from disclosing the same by legal, contractual or fiduciary obligation.
11. Purpose of Disclosure. Use of the Application requires you to input your feed water data to the Application, which in turn applies the Company’s confidential and proprietary formulas and calculations used to determine the optimum dosage of water chemical products to be added to your feed water to maintain the efficiency of your reverse osmosis equipment. The determination of the optimum dosage of water chemicals is the “Purpose of Disclosure” between the parties to this Agreement.
12. Non-Disclosure and Use. The parties to this Agreement agree that:
12.1. the Proton software shall only be used by you in purchasing products from the Company, and shall not be used to purchase similar products from third-parties or otherwise determine the Company’s pricing or dosage calculations; and
12.2. neither receiving party shall disclose to any third party or use any Confidential Information disclosed to it by the other except as necessary in the fulfillment of the Purpose of Disclosure; and
12.3. both parties will take all reasonable measures to maintain the confidentiality of all Confidential Information of the other party in its possession or control, which will in no event be less than highest degree of care it uses to maintain the confidentiality of its own information of similar importance; and
12.4. each receiving party shall have license to use a disclosure in furtherance of Purpose of Disclosure; and
12.5. the parties agree that the Application is not to be used by any individual or third party that is in commercial competition with the Company and that such use would constitute a breach of this Agreement and a misappropriation under Florida’s Uniform Trade Secrets Act; and
12.6. the Purpose of Disclosure shall only be used by you in purchasing products from the Company, and shall not be used to purchase similar products from third-parties or otherwise determine the Company’s pricing or dosage calculations; and
12.7. you agree that you are not in commercial competition with the Company; and
12.8. neither a receiving party nor its agents may use Confidential Information in a manner that constitutes direct or indirect commercial competition with the disclosing party; and
12.9. parties agree not to use any Confidential Information as a basis upon which to develop or have a third party develop a competing or similar product; and
12.10. disclosure of Confidential Information shall not be construed as evidencing any intent by a party to purchase or sell any products or services of the other party nor as an encouragement to expend funds in development or research efforts; and
12.11. the obligations of the parties herein shall be effective without limitation in time and, the obligation not to disclose shall not be affected by bankruptcy, receivership, assignment, attachment or seizure procedures, whether initiated by or against the parties, nor by the rejection of any agreement between the parties, by a trustee of either party in bankruptcy, or by either party as a debtor-in-possession or the equivalent of any of the foregoing under local law; and
12.12. you will not provide access to the Application to any third party; and
12.13. nothing contained in this Agreement shall be construed as granting any rights, by license or otherwise, to the receiving party to any of the disclosing party’s Confidential Information except as expressly set forth in this Agreement; and
12.14. the parties understand that the continued confidentiality of the Confidential Information is critical to the disclosing party and essential to the continued good will and ultimate success and profitability of the disclosing party and that such confidential disclosures of Confidential Information in a manner inconsistent with this Agreement will cause the disclosing party irreparable harm and that the remedy at law of the disclosing party for any actual or threatened breach of this Agreement will be inadequate and that the disclosure party shall be entitled, as a matter of right, to specific performance hereof or injunctive relief, by temporary injunction or other appropriate judicial remedy, writ or order, in addition to any damages that the disclosing party may be legal entitled to recover.
13. DAMAGES. In the event that damages sustained by the Company are the result of a wrongful breach of this Agreement by you, it is agreed that the amount of $500,000.00 will be paid by you as liquidated damages, and not as a penalty or forfeiture, where the actual amount of damage cannot be or would be difficult to determine with reasonable certainty. It is also provided that this provision as to liquidated damages will be cumulative and therefore supplementary to any other remedy existing by law, equity or statute.
14.1. No modification, waiver, amendment, discharge, or change of this Agreement shall be valid unless the same is in writing and signed by the parties against whom the enforcement of such modification, waiver, amendment, discharge, or change is sought.
14.2. This Agreement shall be construed in accordance with the laws of the State of Florida.
14.3. Any and all litigation arising in connection with this Agreement shall be heard in a state court of competent jurisdiction in Lee County, Florida.
14.4. All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine, neuter, singular or plural as the identity of the persons or entity may require.
14.5. In the event of any dispute as to the precise meaning of any term contained herein, the principals of construction and interpretation that written documents be construed against the party preparing the same shall not be applicable.
14.6. If any provision or any portion of any provision of this Agreement, or the application of any such provision or portion thereof to any person or circumstance, shall be held invalid or unenforceable, the remaining portion of such provision and the remaining provisions of this Agreement or the application of such provision held invalid or unenforceable to persons or circumstances other than those to which it is held invalid or unenforceable, shall not be affected thereby
14.7. In connection with any litigation arising out of this Agreement, the prevailing party shall be entitled to recover all costs incurred, including a reasonable attorney=s fee.
14.8. The parties hereto shall, at any time and from time to time following the execution hereof, execute and deliver all such further instruments and take all such further action as may be reasonably necessary or appropriate in order to carry out more effectively the purposes of this Agreement.
14.9. Every covenant, term, and provision of this Agreement shall be construed simply according to its fair meaning and shall not be strictly construed for or against any party.
14.10. All titles or captions contained in this Agreement and in any exhibit annexed hereto are for convenience only and shall not be deemed a part of this Agreement and shall not affect the meaning or interpretation of this Agreement.
Nothing contained in this Agreement shall create a contractual relationship with, or a cause of action in favor of, a third party against either you or the Company.
IF YOU DO NOT AGREE TO ALL OF THE FOREGOING TERMS AND CONDITIONS, LOG OFF THIS APPLICATION NOW. YOUR USE OF THE APPLICATION CONSTITUTES YOUR AGREEMENT, FOR YOU AND YOUR COMPANY, TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.