WATER WISE SYSTEM SAAS AGREEMENT
LICENSE, SUPPORT, AND SERVICES AGREEMENT
This License, Support, and Services Agreement (the “Agreement”) is entered into by and between Wakaru Consulting Lda, a Portuguese limited liability company and the entity that has accepted the proposal (“Customer”) to use the Water Wise System. The date of the Agreement corresponds to the date the Proposal was accepted and duly signed (“Effective Date”).
1. Definitions.
Defined terms shall have the meanings ascribed to them here.
1.1. "Confidential Information" means (a) any information in any other form that relates to a party’s business operations, financial condition, customers, products, services or technical knowledge, including, without limitation, a party’s business plans, personally-identifiable customer information, technology-related information, the terms and conditions of this Agreement and all information communicated to a party that reasonably should have been understood by the receiving party, because of confidentiality or similar legends, the circumstances of disclosure or the nature of the information itself, to be proprietary and confidential to the disclosing party; (b) any Licensed Materials provided to Customer by Wakaru; (c) Water Wise System Technology; and (d) Customer Materials.
1.2. “Customer	Materials” means Customer’s data, systems, modes of operation or other non-public material that is confidential or proprietary to Customer and provided to Wakaru for use in connection with the Software or Services.
1.3. “Documentation” means any documentation and training materials provided to Customer with or in support of the Software, including e-learning, video and slideshow materials.
1.4. “Water Wise System Technology” means Water Wise System’s technology used to provide Software and/or Services to Customer, including without limitation software tools, user interfaces, algorithms, software, architecture, class libraries, objects and documentation, network designs, know-how, trade secrets and any related Intellectual Property Rights (whether owned by Water Wise System or licensed to Water Wise System from a third party) and derivatives, improvements, enhancements or extensions during or after the Term of this Agreement made by or for Water Wise System whether or not in connection with the Services provided to Customer.
1.5. "Intellectual Property Rights" means any patent, copyright, trademark, trade secret, trade dress, inventions, discoveries, technology, know-how, confidential and proprietary information, or other intellectual or industrial property rights or proprietary rights arising under the laws of any jurisdiction.
1.6. “Licensed Materials” means the Software and Documentation, collectively.
1.7. “Proposal” means the proposal presented by Wakaru to Customer containing the general description of the Software, the Services to be performed, the terms and purposes of the Software License and the Fees applicable.
1.8. “Services” means professional services performed by Wakaru for Customer as described in the Proposal.
1.9. “Software” means Water Wise System’s proprietary software for monitoring, analyzing, predicting, generating alarms concerning abnormal events in water networks, supporting control and command centers operators, engineering, operational and field service teams, water losses and non-revenue water program managers in their decision making process, including the source code and object code of the Software, as generally described in the Proposal.
2. Software License.
2.1. Grant. Subject to the terms of this Agreement, Wakaru grants to Customer a limited, nonexclusive, nontransferable, nonsublicensable license during the Term to access and use the Licensed Materials solely for the purposes set forth in the Proposal.
2.2. Additional Restrictions on Use. Customer shall not, and shall not permit any third party to (a) modify or otherwise create any derivative work of any part of the Licensed Materials, or (b) permit any parent, subsidiaries, affiliated entities or third parties to use the Licensed Materials for any purpose, (c) sell, license, sublicense, distribute, assign or otherwise transfer to a third party the Licensed Materials or any copy thereof, in whole or in part, without Wakaru’s prior written consent, (d) interfere with the Licensed Materials in any way, (e) use the Licensed Materials for improper or malicious purposes, (f) introduce into or transmit through the Software any virus, worm, trap door, back door, timer, clock, counter or other limiting routine, (g) remove, obscure or alter any copyright notice, trademark or other proprietary notice affixed to or contained within the Licensed Materials, or (h) engage in or permit any other action that is inconsistent with the terms and conditions of this Agreement or applicable law.
2.3. Copies. Except as may be specifically permitted in the Proposal, Customer shall not directly or indirectly copy or reproduce the Licensed Materials.
2.4. No Reverse Engineering. Customer shall not cause or permit the disassembly, decompilation or reverse engineering of the Software or otherwise attempt to gain access to the source code of the Software.
 2.5. Reservation of Rights. Wakaru reserves to itself all rights not otherwise expressly granted in this Section 2.
3. Delivery of Services. Subject to timely payment of the License and Service Fees, Wakaru agrees to provide the Services described in the Proposal. Wakaru shall use commercially reasonable efforts to perform such Services within the relevant timeframes, such timeframes representing estimates and not guarantees of the time it will take Water Wise System to perform such Services.
4. Payment; Taxes.
4.1. Fees. In consideration for the license granted by Wakaru, and the Services provided under this Agreement, Customer shall pay Wakaru the License and Service Fees in the amounts and in the manner set forth in the Proposal. Customer shall pay to Wakaru the License and Service Fees within thirty (30) calendar days following the date of Wakaru’s invoice. Any amounts not paid when due shall accrue interest at the lesser of one and one-half percent (1.5%) per month, or the maximum rate allowed by law, whichever is less. After the Initial Term, the License and Service Fees shall be increased annually at a rate not to exceed the lesser of the Consumer Price Index increase for the previous calendar year or five percent (5%). If Customer’s payment obligations hereunder are more than forty (40) days in arrears, Wakaru shall have the right to suspend and/or terminate the license(s), the Services, or Customer’s rights under this Agreement until full payment is made to Wakaru.
4.2. Taxes. Customer shall, in addition to the other amounts payable under this Agreement, pay all applicable customs, duties, sales, use, value added or other taxes, federal, state or otherwise, however designated, which are levied or imposed by reason of the transactions contemplated by this Agreement, excluding only taxes based on Wakaru’s net income. Customer agrees to hold Wakaru harmless from all claims and liability arising from Customer’s failure to report or pay any such taxes, duties or assessments.
5. Ownership. Wakaru or its licensors own and shall retain all proprietary rights, including all patent, copyright, trade secret, trademark and other intellectual property rights, in and to the Licensed Materials, Water Wise System Technology, and any enhancements, updates, upgrades or other modifications thereto made by any entity (“Derivatives”). Customer acknowledges that the license granted under this Agreement does not provide Customer with title to or ownership of the Licensed Materials, Water Wise System Technology or Derivatives, but only a right of limited use under the terms and conditions of this Agreement.
6. Customer’s Obligations for Services. Customer shall provide Wakaru with the Customer Materials necessary and required for Wakaru to provide the Services. Customer acknowledges and agrees that Wakaru may use Customer Materials for the purpose of improving the Software and Services. Customer will designate up to two (2) contact person(s) (or such other replacement individual as Customer may designate in writing) who shall be the sole contacts for the coordination and receipt of the Services set forth in the Proposal. If Wakaru is unable to contact any designated contact person through the specified means for a period of time and such contact would be necessary for performing the Services, Wakaru may refuse to perform services until Wakaru is able to contact a designated contact person, in which case any response times set forth in the Proposal will be suspended for such period of time.
7. Warranties.
7.1. Warranties. Each party represents and warrants to the other party that it (a) has the authority, rights and ability necessary for it to enter into this Agreement and perform its obligations under this Agreement without restrictions or prohibitions, including but not limited to prior contractual obligations, and (b) is not subject to any bankruptcy or insolvency proceeding under federal or state statutes.
7.2. Water Wise System Limited Warranty. Wakaru warrants to Customer that for the duration of the Term, the Software as delivered will perform substantially in accordance with the Documentation. Wakaru’s sole liability and Customer’s exclusive remedy under this limited warranty shall be, at Wakaru’s election, to correct any failure to conform to the above warranties, to replace the defective software with conforming software, or to accept return of the Licensed Materials and refund the License and Service Fees paid to Wakaru by Customer after the date on which the Software became non-conforming. These remedies are available only if Customer promptly notifies Wakaru in writing upon discovery of the non-conformity within the warranty period, and Customer provides reasonable amount(s) of relevant information to permit Wakaru to duplicate the conditions that gave rise to the non-conformity so that Wakaru is able, to confirm that such non-conformity exists. This limited warranty shall not apply if the Software has been (a) altered or modified other than by Wakaru or as permitted by Wakaru; or (b) used, adjusted, installed, or operated other than in accordance with the Documentation or with an application or in an environment that is not recommended. Wakaru is not responsible for failures due to problems with the internet, Customer’s network or the connectivity thereto.
7.3. Disclaimer of Any Other Warranties.
EXCEPT FOR THE EXPRESS, LIMITED WARRANTIES PROVIDED IN THIS SECTION 7, WATER WISE SYSTEM MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE LICENSED MATERIALS, SERVICES, OR WATER WISE SYSTEM TECHNOLOGY AND WAKARU DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.
8. Confidential Information.
8.1. Confidential Information. Each party ("Recipient") acknowledges that in the course of Wakaru performing the Services each party may have access to certain Confidential Information of the other party ("Discloser").
8.2. Duties. Recipient shall maintain the Confidential Information as confidential, and will not use it in any way, for itself or for any third party, except as required to achieve the purposes of this Agreement, nor disclose to any third party (except to Recipient’s employees, consultants, contractors, attorneys, accountants and other advisors (collectively, "Representatives") who have a need to know such Confidential Information for purposes of Recipient's performance of its obligations under this Agreement, are obligated under a confidentiality agreement with requirements no less protective than those contained herein and who have been informed of and are obligated to comply with the confidential nature of such information and of the terms of this Agreement. Recipient shall be responsible for any breach of this Agreement by any of its Representatives, and agrees, at its sole expense, to take reasonable measures to restrain its Representatives from prohibited or unauthorized disclosure or use of any of Discloser's Confidential Information and will take reasonable precautions to protect the confidentiality of such information, at least as stringent as it takes to protect its own Confidential Information, but in no case less than reasonable care.
8.3. Exceptions. Confidential Information shall not include any information that (a) is known to Recipient prior to receipt from Discloser other than as a result of Recipient’s breach of any legal obligation; (b) becomes known (independently of disclosure by Discloser) to Recipient directly or indirectly from a source having the legal right to disclose such Confidential Information; (c) is or becomes publicly known, except through a breach of this Agreement by Recipient. In the event Confidential Information is required to be disclosed by Recipient to comply with applicable laws or governmental regulations, Recipient shall give Discloser reasonable prior written notice of such disclosure sufficient to permit Discloser to contest such disclosure and Recipient shall take reasonable and lawful actions to avoid and/or minimize the extent of such disclosure.
8.4. Proprietary Information. The Disclosing Party is and shall remain the exclusive owner of Confidential Information and all Intellectual Property Rights therein. No license or conveyance of any such rights to the Recipient is granted or implied under this Agreement.
8.5. Additional Obligations of Customer. Customer acknowledges that the Licensed Materials contain proprietary trade secrets of Wakaru and, shall use and access the Licensed Materials only as permitted under this Agreement. Customer shall assist Wakaru in identifying and preventing any unauthorized use, copying or disclosure of the Licensed Materials or any portion thereof, or any of the source code, algorithms or logic contained therein. Customer shall permit only authorized users to access and use the Licensed Materials and, shall ensure that the Licensed Materials are used in accordance with the terms, and subject to the confidentiality obligations, of this Agreement. Without limiting the foregoing, Customer shall advise Wakaru immediately if Customer learns or has reason to believe that any person to whom Customer has given access to the Licensed Materials has violated or intends to violate the confidentiality of the Licensed Materials or the proprietary rights of Wakaru, and Customer will, at Customer’s expense, cooperate with Wakaru in seeking injunctive or other equitable relief in the name of Customer or Wakaru against any such person. Customer acknowledges that any violation by it of the provisions of Sections 2, 5 or 8 of this Agreement will immediately give rise to continuing irreparable injury to Wakaru inadequately compensable in damages at law, and Wakaru is entitled to obtain immediate injunctive relief against the violation, breach or threatened breach of any of the foregoing provisions. The foregoing shall be in addition to and without prejudice to or limitation on any other rights Wakaru may have under this Agreement, at law or in equity.
8.6. Additional Obligations of Wakaru. Wakaru represents and warrants that Customer Materials shall be stored and maintained using commercially reasonable security measures to protect Customer Materials from unauthorized use and disclosure. If Customer provides third party data to Wakaru that may be necessary for operation or optimization of the Software or for Wakaru’s provision of the Services, Wakaru shall treat such data as Confidential Information subject to the security measures set forth above.
9. Indemnification.
9.1. By Customer. Customer will indemnify, defend and hold harmless Wakaru and its officers, directors, employees, and agents from and against any and all costs, damages, settlements, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys' fees and court costs) (collectively, “Losses”) of any kind whatsoever arising out of Customer’s use or disclosure of the Licensed Materials other than as permitted under this Agreement, including without limitation any third party claim, suit, action, or proceeding ("Claim") for infringement of any proprietary or Intellectual Property Right arising from such unpermitted use.
9.2. By Wakaru. Wakaru will defend Customer, its officers, directors, employees, and agents from and against any third party Claim alleging that the Licensed Materials, or any part thereof, infringes upon any intellectual property rights of any third party and, subject to Section 10, indemnify Customer for Losses finally awarded by a court of competent jurisdiction against Customer as a result of such Claim. If a claim described in this Section may be or has been asserted, Customer will permit Wakaru, at Wakaru’s sole option and expense, to: (a) procure for Customer the right to continue using the affected Licensed Materials, (b) replace or modify the Licensed Materials with products of equivalent functionality, or (c) accept the return of the Licensed Materials and refund to Customer on a pro rata basis the License and Service Fee for the remainder of the applicable Term, with this Agreement to automatically terminate upon transmission or dispatch by Wakaru of such refund. Wakaru shall have no obligation to Customer under this Section if the infringement claim results from (d) a correction or modification of the Licensed Materials not provided by Wakaru, (e) the failure to promptly install an update if installation of such update would have avoided the infringement, (f) the combination of the Licensed Materials with software or materials not owned or controlled by Wakaru, (g) use of the Licensed Materials in a way which is not permitted by this Agreement, and/or (h) any breach of this Agreement or any negligent, willful or fraudulent act or omission by Customer, its employees, agents or sub-contractors. Customer acknowledges and agrees that the foregoing states the entire liability of Wakaru regarding any infringement or alleged infringement of any intellectual property rights arising from Customer’s use of the product.
9.3. Notice; Control. With respect to any Claim or Losses for which a party (“Indemnified Party”) seeks indemnification from the other party (“Indemnifying Party”), the Indemnifying Party’s indemnification obligations under this Section 9 shall be conditioned upon: (a) the Indemnified Party providing the Indemnifying Party with prompt written notice of the existence of any Claim or Losses; (b) the Indemnified Party’s reasonable cooperation with the investigation and/or defense of the Claim and/or Losses; and (c) with respect to indemnification of Claims under Section 9.2 only, the Indemnified Party providing the Indemnifying Party with sole control of the defense and settlement of the Claim, provided that the Indemnifying Party shall not settle any Claim without the Indemnified Party's prior written consent, which consent shall not be unreasonably withheld or delayed.
10. Limitations of Liability.
10.1. EXCEPT IN THE EVENT OF EITHER PARTY’S BREACH OF ITS OBLIGATIONS UNDER SECTION 8 OR FULFILLMENT OF ITS INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY’S TOTAL LIABILITY ARISING UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID BY CUSTOMER TO WATER WISE SYSTEM HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
10.2. EXCEPT IN THE EVENT OF A BREACH OF A PARTY’S OBLIGATIONS UNDER SECTION 8 OR FULFILLMENT OF ITS INDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, OR OTHER INDIRECT DAMAGES, OR FOR LOST PROFITS, REVENUE, OR DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES ARISING OUT OF THIS AGREEMENT, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY ACKNOWLEDGES THAT THE AMOUNTS PAYABLE HEREUNDER ARE BASED IN PART ON THESE LIMITATIONS, AND FURTHER AGREES THAT THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
11. Term and Termination.
11.1. Effective Date and Term. This Agreement and the license granted hereunder shall be effective as of the Effective Date and, unless earlier terminated in accordance with this Section 11, shall continue for the Initial Term agreed in the Proposal. This Agreement shall be renewed automatically as agreed in the Proposal. (“Renewal Term”), unless one party provides the other party written notice of its intent not to renew ninety (90) days prior to the expiration of the then-current term. The Initial Term and any Renewal Terms shall be collectively referred to as the “Term.”
11.2. Termination. Either party shall have the right to terminate this Agreement in the event: (a) the other party fails to comply with any of the terms and conditions of this Agreement and such default has not been cured within thirty (30) days after written notice of such default to the other party, provided that such default is curable; or (b) the other party terminates or suspends its business, makes an assignment for the benefit of creditors, or has wound up or liquidated, voluntarily or otherwise. Customer shall have the right to terminate this Agreement by providing Wakaru with written notice of its intent to terminate ninety (90) days prior to the end of any billing cycle.
11.3. Effect of Termination. The rights and obligations of Wakaru and Customer in Sections 4.1 (for unpaid amounts), 4.2, 5, 7.3, 8, 9, 10, 11, and 12 shall survive termination of this Agreement. Within five (5) days after termination of this Agreement, Customer shall return to Wakaru or destroy, at Customer’s expense, the Licensed Materials, including all copies thereof, and deliver to Wakaru a certification in writing signed by an officer of Customer that the Licensed Materials and all copies thereof have been returned or destroyed, as requested by Wakaru, and their use discontinued. Each party shall return the other party’s Confidential Information and Wakaru shall return all Customer Materials.
12. General.
12.1. Assignment. This Agreement shall be binding upon and inure to the benefit of the parties hereto, and their respective successors and permitted assigns. Neither party shall assign or otherwise transfer this Agreement or any rights or obligations hereunder, in whole or in part, whether by operation of law or otherwise, without the other party’s prior written consent, such consent not to be unreasonably withheld or delayed. Customer specifically agrees that it shall not be unreasonable for there to be no consent to an assignment to an entity owned (fully or partially) by a competitor of Wakaru. Any purported transfer, assignment or delegation without such prior written consent will be null and void and of no force or effect.
12.2. Entire Agreement. This Agreement and the Proposal represents the entire agreement between the parties and supersedes all prior agreements and understandings with respect to the matters covered by such Agreement. Customer agrees that it has not entered into this Agreement based on any representations, other than those contained herein or in the Proposal. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing signed by the party to be charged.
12.3. Delays. Neither party shall be responsible for failure to fulfill any of its obligations under this Agreement due to causes beyond its reasonable control; provided, however, that if such obligations are left unfulfilled for thirty (30) calendar days or more, the non-delayed party may elect to terminate this Agreement without further cost or liability to either party.
12.4. Governing Law; Jurisdiction. This Agreement shall in all respects be governed by the laws of Portugal. The parties hereby agree that all disputes arising out of this Agreement shall be subject to the exclusive jurisdiction of and venue in the courts of Lisbon, Portugal. Customer hereby consents to, and waives defenses of, the personal and exclusive jurisdiction and venue of these courts. Notwithstanding the foregoing, Wakaru may seek an injunction to protect its proprietary rights and confidential information in any jurisdiction.
12.5. Severability. If any of the provisions of this Agreement is held by a court of competent jurisdiction to be invalid under any applicable statute or rule of law, such provision shall, to that extent, be deemed omitted, and the remaining portions of this Agreement shall remain in full force and effect.
12.6. Waiver. The waiver of one breach or default or any delay in exercising any rights shall not constitute a waiver of any subsequent breach or default.
12.7. Notices. All notices permitted or required under this Agreement shall be in writing and shall be deemed to have been sufficiently given when: (a) delivered in person; (b) mailed by first class, registered or certified mail, postage prepaid, or by reputable overnight carrier, to the address of the party specified in this Agreement or in the Proposal or such other address as either party may specify in writing; or (c) delivered via email, with receipt electronically confirmed, to the email address as either party may specify in writing. Such notices shall be deemed to have been given upon receipt.
12.8. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.
12.9. Headings. The headings are for convenience and shall not be used to construe this Agreement.
12.10. No Agency; Independent Contractors. Nothing contained in this Agreement shall be deemed to imply or constitute that either party is the agent or representative of the other party, or that both parties are joint ventures or partners for any purpose.