Waterfluence LLC (“We” or “Us” or “Our”) provides a website at
www.waterfluence.com (“Website”) that permits authorized people (“Users”)
to view water use information (“Information”) and receive services (collectively the “Service”).
The Information includes, in part, comparisons of a landscape site’s historical
water use to a budget benchmark to improve irrigation efficiency.
1.2 License. Subject to the terms of this Agreement, We grant you a non-transferable, non-exclusive, and revocable license to use the Service.
1.3 Certain Restrictions. The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Service; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Service; (c) you shall not access the Service in order to build a similar or competitive service; and (d) no part of the Service may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update, or other addition to functionality of the Service shall be subject to the terms of this Agreement. All copyright and other proprietary notices on any Service content must be retained on any copies.
1.4 Modification. We reserve the right, at any time, to modify, suspend, or discontinue the Service without notice. You agree that We will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Service.
1.5 Ownership You acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Service are owned by Us. The provision of the Service does not transfer to you or any third party any rights, title or interest in or to such intellectual property rights. We reserve all rights not granted in this Agreement.
1.6 Recommendations. You may receive recommendations from Us to help you manage or reduce your water use (“Recommendations”). Recommendations are provided as a convenience to you and are based on data and automated processes which We believe to be reliable but which may not be accurate in every instance. You should conduct whatever investigation you deem appropriate with respect to any Recommendations, and apply your own judgment and common sense (or seek assistance from appropriate professionals) in deciding how to respond. You may rely on Recommendations only at your own risk, and under no circumstances will We be liable for any resulting losses or damages resulting from errors or delay in providing Recommendations.
2. Landscape Field Survey
We provide landscape field surveys whereby Our irrigation expert visits a location to diagnose irrigation problems and provide recommendations for improving the irrigation system. If you accept a landscape field survey, you agree: (a) Our irrigation expert may physically access your site for the purpose of conducting the field survey; (b) you will make a good-faith effort to meet or have one of your representatives meet our irrigation expert at the survey site location at mutually agreed upon day and time; and (c) to share site Information with the water utility / district / service provider (“Water Service Provider”) sponsoring the field survey for administrative and evaluation purposes.
3. User Contributions
For any information or materials you provide to Us regarding the Service (“User Contributions”), you hereby assign Us the right to use them in any manner We deem appropriate. We may treat any User Contributions you provide as non-confidential and non-proprietary.
4. Acceptable Use Policy
4.1 You agree not to use the Service to: (a) upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer system or data; (b) send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (c) harvest, collect, gather or assemble information or data regarding other users, including email addresses, without their consent; (d) interfere with or disrupt servers or networks connected to the Service or violate the regulations, policies or procedures of such networks; (e) attempt to gain unauthorized access to the Service, other computer systems or networks connected to or used together with the Service, through password mining or other means; (f) harass or interfere with another User’s use and enjoyment of the Service; (g) conduct or promote any illegal activities; (h) impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity.
4.2 We reserve the right (but have no obligation) to investigate and/or take appropriate action against you in our sole discretion (including terminating your Account and/or reporting you to law enforcement authorities) if you violate the Acceptable Use Policy or any other provision of this Agreement or otherwise create liability for us or any other person. In order to cooperate with legitimate governmental requests, subpoenas or court orders, or to protect our business and customers, We may access and disclose any information We consider necessary or appropriate, including without limitation your Information, username and password if applicable, IP address and traffic information, and usage history.
YOU AGREE TO INDEMNIFY AND HOLD HARMLESS US, OUR AFFILIATES, LICENSORS AND WATER SERVICE PROVIDERS, AND OUR AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, LICENSORS, SUPPLIERS, SUCCESSORS AND ASSIGNS FROM AND AGAINST ANY CLAIMS, LIABILITIES, DAMAGES, JUDGMENTS, AWARDS, LOSSES, COSTS, EXPENSES OR FEES (INCLUDING REASONABLE ATTORNEYS' FEES) ARISING OUT OF OR RELATING TO YOUR USE OF OUR SERVICE OR YOUR VIOLATION OF THIS AGREEMENT.
6. Third Party Content, Sites & Ads
If the Website contains links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third party websites linked to this Website, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.
THE SERVICE, AND ANY THIRD PARTY SITE OR THIRD PARTY SERVICES, ARE PROVIDED AS-IS AND AS AVAILABLE AND WE (AND OUR WATER SERVICE PROVIDERS AND SUPPLIERS) EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SITE OR SERVICES, OR ANY THIRD PARTY SITE OR THIRD PARTY SERVICES: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C) WILL BE ACCURATE, RELIABLE, COMPLETE, LEGAL, OR SAFE.
YOU ACKNOWLEDGE THAT YOUR USE OF OUR SERVICE PROVIDED ONLINE MAY BE INTERRUPTED BY CIRCUMSTANCES BEYOND OUR CONTROL INVOLVING THIRD PARTIES, INCLUDING WITHOUT LIMITATION COMPUTER, TELECOMMUNICATIONS, NETWORK, INTERNET SERVICE PROVIDER OR HOSTING FACILITY FAILURES OR DELAYS INVOLVING HARDWARE, SOFTWARE, NETWORKS, OR POWER SYSTEMS NOT WITHIN OUR POSSESSION OR DIRECT CONTROL, AND NETWORK INTRUSIONS OR DENIAL OF SERVICE ATTACKS (COLLECTIVELY, “THIRD PARTY ACTS”). WE AND OUR WATER SERVICE PROVIDERS SHALL NOT BE RESPONSIBLE OR OTHERWISE LIABLE FOR ANY THIRD PARTY ACTS, INCLUDING, WITHOUT LIMITATION, ANY DELAYS, FAILURES, OR SECURITY BREACHES AND DAMAGES RESULTING FROM OR DUE TO ANY THIRD PARTY ACTS, INCLUDING ANY LOSS OR MISAPPROPRIATION OF YOUR PERSONAL INFORMATION OR OTHER DATA.
SOME JURISDICTIONS DO NOT ALLOW CERTAIN EXCLUSIONS OF WARRANTIES, SO IF THE LAW OF SUCH A JURISDICTION APPLIES TO YOU IT IS POSSIBLE THAT NOT ALL OF THE ABOVE EXCLUSION MAY APPLY TO YOU.
8. Limitation On Liability
IN NO EVENT SHALL WE (AND OUR WATER SERVICE PROVIDERS AND SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM THIS AGREEMENT OR YOUR USE OF, OR INABILITY TO USE, THE SERVICE, OR ANY THIRD PARTY SITE OR THIRD PARTY SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SERVICE, PAYMENT SERVICES, AND ANY THIRD PARTY SITE AND THIRD PARTY SERVICES ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY LOSSES, INCLUDING ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA RESULTING THEREFROM. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR (AND OUR SUPPLIERS’) CUMULATIVE LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) TWENTY U.S. DOLLARS ($20) OR (B) AMOUNTS YOU HAVE PAID US IN THE PRIOR 12 MONTHS (IF ANY). THE FOREGOING LIMITATION OF LIABILITY PROVISIONS SHALL APPLY NOTWITHSTANDING ANY CONFLICTING PROVISIONS OR ANY FAILURE OF ESSENTIAL PURPOSE WITH RESPECT TO A LIMITATION OF LIABILITY.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
9. Term And Termination
SUBJECT TO THIS SECTION, THIS AGREEMENT WILL REMAIN IN FULL FORCE AND EFFECT WHILE YOU USE THE SERVICE. WE MAY (A) SUSPEND YOUR RIGHTS TO USE THE SERVICE OR (B) TERMINATE THIS AGREEMENT, AT ANY TIME FOR ANY REASON AT OUR SOLE DISCRETION, INCLUDING FOR ANY USE OF THE SERVICE IN VIOLATION OF THIS AGREEMENT. UPON TERMINATION OF THIS AGREEMENT, YOUR RIGHT TO ACCESS AND USE THE SERVICE WILL TERMINATE IMMEDIATELY. WE WILL NOT HAVE ANY LIABILITY WHATSOEVER TO YOU FOR ANY TERMINATION OF THIS AGREEMENT. EVEN AFTER THIS AGREEMENT IS TERMINATED, THE FOLLOWING PROVISIONS OF THIS AGREEMENT WILL REMAIN IN EFFECT: SECTIONS 2, 3, 4, 5, 6, 8, 9, 10, 11.2, 11.3.
10. Electronic Communications
11.2 Governing Law. This Agreement shall be governed by the laws of the State of California without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction. You agree to submit to the personal jurisdiction of the state courts and federal courts located within San Francisco, California for the purpose of litigating all claims or disputes relating to this Agreement, and you shall not file a claim or dispute elsewhere. Notwithstanding the foregoing, We may seek injunctive or other equitable relief to protect our intellectual property rights in any court of competent jurisdiction, in which case you agree to submit the personal jurisdiction of such court(s).
11.3 Entire Agreement. This Agreement constitutes the entire agreement between you and us regarding the use of the Service. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word “including” means including without limitation. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to Us is that of an independent contractor, and neither party is an agent or partner of the other. This Agreement, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Our prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of this Agreement shall be binding upon assignees.