These SewerAI Terms of Service (the “Agreement”) set forth the terms and conditions pursuant to which SewerAI Corporation (“SewerAI”) will provide you or the entity that you represent (“You”) with the right to access and use the SewerAI Platform and/or other Services.
To access and use the SewerAI Platform, You must click “I Agree” where indicated in the SewerAI Platform user registration process. BY CLICKING “I AGREE” IN CONNECTION WITH THIS AGREEMENT, BY ELECTRONICALLY OR MANUALLY SIGNING THIS AGREEMENT, OR BY OTHERWISE ACCESSING OR USING THE SERVICES, YOU SIGNIFY YOUR AGREEMENT TO ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO SUCH TERMS, CONDITIONS AND/OR NOTICES, YOU MAY NOT ACCESS OR USE THE SERVICES.
SewerAI reserves the right to revise any portion of this Agreement in its sole discretion at any time and without prior notice to You by updating this posting. Thus, You should visit this page periodically for changes. If You disagree with any changes to this Agreement, Your sole remedy is to discontinue Your use of the Services. Your continued use of any of the Services after a change has been posted constitutes Your acceptance of the change thereafter.
1. Definitions. As used herein, each of the following terms shall have the meanings attributed to them as follows:
“Affiliate” means, with respect to a Party, any entity that, directly or indirectly, controls, is controlled by, or is under common control with such Party; and “control” means the direct or indirect possession of the power to direct or cause the direction of the management and policies of another entity, whether through the ownership of voting securities, by contract or otherwise.
“Aggregate Data” means all aggregate and statistical information or analyses collected by SewerAI relating to Your use of the Services.
“AI Service” means SewerAI’s proprietary service, currently branded as “AutoCode”, that scans Your Content for issues and defects applying artificial intelligence algorithms and creates a report of SewerAI Metadata identifying such issues and defects.
“Authorized User” means Your employees and the employees of Your subcontractors that have been assigned a unique username-password combination to access and use the Services.
“Confidential Information” means all technical, business, financial and other information of a Party that derives economic value, actual or potential, from not being generally known to others, including, without limitation, any technical or non-technical data, designs, methods, techniques, drawings, processes, products, inventions, improvements, methods or plans of operation, research and development, business plans and financial information of such Party. The Confidential Information of SewerAI shall include, without limitation, the SewerAI Property and any pricing and Fee information set forth any Order. Your Confidential Information shall include, without limitation, Your Content. Confidential Information does not include information that the receiving Party can document: (i) has entered the public domain through a source other than the receiving Party and through no fault of the receiving Party; (ii) was rightfully known to the receiving Party without a confidentiality obligation prior to the commencement of the Services; (iii) is disclosed to the receiving Party by a third party that has no confidentiality obligation; or (iv) is developed by the receiving Party independently of and without reference to any Confidential Information.
“Fees” means the SewerAI fees for the Services, as set forth in each Order.
“Intellectual Property Rights” means patent rights (including patent applications and invention disclosures), design rights, copyrights, rights in database, moral rights, trademarks, service marks, trade secrets, know-how, rights in or relating to confidential information and any other intellectual property right (whether registered or unregistered) recognized in any country or jurisdiction in the world, now or hereafter existing, and whether or not perfected, filed or recorded including all rights of reversion and rights to any applications and pending registrations and the right to sue for and recover damages for past infringements.
“Order” means a written order for the Services that You accept online or You mutually execute with SewerAI.
“Party” means each of SewerAI and You. Both SewerAI and You are referred to as the “Parties”.
“Services” means: (a) the SewerAI Platform; (b) the AI Service; (c) support and maintenance services to be provided by SewerAI pursuant to Section 2.4; (d) any professional services, such as analyzing Your Content as a service, specified in an Order and provided by SewerAI; and/or (e) any other services performed by SewerAI under this Agreement.
“SewerAI API” means SewerAI’s proprietary application program interface and associated services, if any, through which You may access the SewerAI Platform.
“SewerAI API Materials” means documentation, code, and other materials, if any, that SewerAI provides or makes available to You relating to use of the SewerAI Platform and/or SewerAI API.
“SewerAI Metadata” means any information and labels input in the SewerAI Platform and/or generated by the AI Service through the analysis of Your Content, including without limitation any generated report of sewer issues and defects.
“SewerAI Platform” means the SewerAI’s proprietary hosted platform, currently branded as [“Inspection Management Platform”] that: (a) allows Authorized Users to upload, store, label and stream Your Content, including sewer inspection videos; (b) allows Authorized Users to push Your Content to the AI Service for analysis; (c) allows Authorized Users to review any report generated by the AI Service and input additional labels and data; and (d) provides other related services.
“SewerAI Property” means: (a) the SewerAI Platform; (b) the AI Service; (c) SewerAI Metadata; (d) the SewerAI API and SewerAI API Materials; (e) any Confidential Information of SewerAI; and (f) Aggregate Data.
“Term” has the meaning set forth in Section 10.1.
“Upgrades” means any upgrades, updates, revisions, corrections, modifications improvements, bug fixes, patches, maintenance releases, versions, and enhancements to the SewerAI Platform that SewerAI makes generally available to its customers at no additional charge during the Term, excluding any beta versions thereof.
“Your Content” means any videos of sewer lines and any other data, labels, text, graphics, images, video clips, audio recordings, or other content or information that You, Your subcontractors or their respective Authorized Users upload into the SewerAI Platform or otherwise make available to SewerAI in connection with the Services, provided that Your Content shall not include any SewerAI Metadata.“Your Property” means: (a) Your Content; and (b) Your Confidential Information.
2.1. Provision of Services. SewerAI shall host and provide to You the SewerAI Platform and/or other Services in accordance with this Agreement and each Order. SewerAI’s personnel performing the Services may be either SewerAI employees or subcontractor personnel. SewerAI shall be responsible for any acts or omissions of SewerAI’s employees or subcontractors that cause SewerAI to be in breach of this Agreement. If SewerAI makes a SewerAI API available for use by its customers in its sole discretion, SewerAI will provide You with any SewerAI API Materials necessary for You to access the SewerAI Platform via the SewerAI API; provided, however, that SewerAI will have no obligation to provide any SewerAI API. You agree to cooperate reasonably with SewerAI’s efforts to provide the Services, and SewerAI will not be responsible for any delays in providing the Services to the extent caused by Your failure to cooperate or to provide any assistance specified in the applicable Order.
2.2. Your Account and Authorized Users. In the event You subscribe to the SewerAI Platform in an Order, SewerAI will establish in the SewerAI Platform any necessary accounts for the number of Authorized Users specified in the Order. For the avoidance of doubt, login credentials will be associated with named Authorized Users, and You shall not: (a) exceed the total number of Authorized Users purchased in the Order; or (b) allow Your employees or subcontractors to share account credentials to circumvent the limit on the number of Authorized Users purchased in the Order. In the event You desire to transfer an Authorized User login to a new employee or subcontractor, SewerAI will assist You with such transfer. Authorized Users of the SewerAI Platform will have the ability to use the SewerAI Platform to upload Your Content, review and export Your Content and SewerAI Metadata, input labels and other information regarding Your Content, manage Your account, and otherwise use the functionalities described in the user documentation that SewerAI makes available to You. In addition, in the event You subscribe to the SewerAI Platform in an Order, You may request that SewerAI provide a limited-access guest login to other third parties whom You may authorize to view and export Your Content and SewerAI Metadata, provided that guest login users will not be permitted to use other features or functionalities of the SewerAI Platform. You agree to keep Your account information confidential and not to share it with any third party other than Authorized Users. You are fully responsible for all activities that occur under Your account and for maintaining up-to-date and accurate information (including without limitation valid contact information) with respect to Your account.
2.3. Ability to Download Data. In the event You subscribe to the SewerAI Platform in an Order, at any time during Your subscription period, You will have the ability to download any of Your Content and/or SewerAI Metadata then stored in the SewerAI Platform. You will not have the ability to download Your Content or SewerAI Metadata following any expiration or termination of Your subscription period, and SewerAI will thereafter have the right to delete any of Your Content or SewerAI Metadata in its sole discretion.
2.4. SewerAI Support and SewerAI Platform Upgrades. SewerAI will use commercially reasonable efforts to keep the SewerAI Platform operational on a continuous basis during the term of this Agreement, exclusive of downtime necessary for scheduled and emergency maintenance. SewerAI shall provide support to You during the hours of 9 a.m. to 5 p.m. Pacific Time, Monday through Friday (excluding national holidays), for all technical support issues relating to the SewerAI Platform. At SewerAI’s sole discretion, SewerAI shall make Upgrades available to You when generally available and at no additional charge. For the avoidance of doubt, SewerAI reserves the right to offer certain enhancements and optional services for the SewerAI Platform for an additional charge, in SewerAI’s sole discretion.
3.1. Licenses to SewerAI Platform and SewerAI Metadata. Subject to the terms and conditions of this Agreement, SewerAI hereby grants to You a non-exclusive, non-sublicensable (except as expressly permitted under this Agreement), non-transferable (except as expressly permitted under this Agreement) revocable license: (a) during the subscription period set forth in each Order that includes a subscription to the SewerAI Platform, to access and use the SewerAI Platform, user documentation, SewerAI API (if provided by SewerAI) and the SewerAI API Materials (if provided by SewerAI) for the purposes described in Section 2.2; and (b) on a perpetual basis, to use any SewerAI Metadata that You download from the SewerAI Platform during Your subscription period or that SewerAI otherwise makes available to You in connection with the Services. You may permit the number of Authorized Users authorized under Your Order to exercise the foregoing rights, provided that: (i) any Authorized Users who are subcontractors shall only exercise such rights in the course of performing services for You; and (ii) You shall ensure that all Authorized Users comply with this Agreement and You will be liable for any breach of this Agreement caused by any Authorized Users. If Your Order includes a subscription to the SewerAI Platform, You may also permit guest login users to access and use the SewerAI Platform as described in Section 2.2 with respect to such users, provided that You shall ensure that all guest login users comply with this Agreement and You will be liable for any breach of this Agreement caused by any guest login users.
3.2. Restrictions on Use of SewerAI Property. You will not attempt to interfere with or disrupt any of the SewerAI Property. Except as expressly authorized under the Agreement, You shall not: (a) reverse engineer, disassemble, reconstruct, decompile, copy, or create derivative works of the SewerAI Platform, AI Service or other SewerAI Property, or use the SewerAI Platform or AI Service for the purpose of creating a competing service; (b) copy, modify, transfer or distribute any portion of the SewerAI Platform, AI Service or other SewerAI Property; (c) rent, lease, or provide access to the SewerAI Platform, AI Service or other SewerAI Property on a service bureau basis; or (d) violate any usage limitations set forth in the Order. You will use the SewerAI Property solely for authorized and legal purposes and will not use the SewerAI Property to violate any applicable laws or regulations.
3.3. License to Your Content. Subject to the terms and conditions of this Agreement, You hereby grant SewerAI an irrevocable, perpetual, non-exclusive, royalty-free, non-transferable (except as expressly permitted under this Agreement), non-sublicensable (except as expressly permitted under this Agreement), worldwide license to reproduce, store, display and use any of Your Content (including without limitation any header data or metadata included in Your Content): (a) to provide the Services to You; (b) for other commercial purposes such as product development and improving products and services, testing and troubleshooting; and (c) to conduct sales and marketing to You. SewerAI will have the right to permit it subcontractors to exercise the foregoing rights, provided that SewerAI will be responsible for any breach of this Agreement caused by any such subcontractors. SewerAI will also have the right to permit third-party sublicensees to exercise the rights granted in subsection (b), provided that such data is aggregated with data of other SewerAI customers and does not identify Company as the owner of such data.
4. Proprietary Rights.
4.1. SewerAI Property; Trademarks. Except for the limited license granted herein, all right, title, and interest in and to any SewerAI Property, including without limitation any Intellectual Property Rights therein, but excluding any of Your Property, are and will remain the exclusive property of SewerAI and its licensors. SewerAI reserves all rights in and to all the SewerAI Property and nothing contained in this Agreement shall be construed as conveying any right or license in such SewerAI Property, by implication, estoppel, or otherwise. “AutoCode” and “[Inspection Management Platform]” are trademarks owned by SewerAI.
4.2. Use of Aggregate Data and SewerAI Metadata. You understand and agree that SewerAI owns the Aggregate Data and SewerAI Metadata generated and will have the right to use such data for product development, conducting sales and marketing to You and for other commercial purposes in its sole discretion; provided, however, that SewerAI shall only share Aggregate Data and/or SewerAI Metadata with third parties if such data is anonymized and aggregated with data of other SewerAI customers.
4.3. Third-Party Property. SewerAI may use certain content of NASSCO, Esri and other third-party licensors to provide the Services. Any such content remains the property of NASSCO, Esri or SewerAI’s other licensors as applicable. NASSCO, PACP®, MACP®, and LACP®, and associated logos are the trademarks and service marks of NASSCO. The Esri Partner Network emblems are the licensed trademarks and service marks of Environmental Systems Research Institute, Inc. Any other third-party trademarks, services marks and logos displayed in the Services are the trademarks of their respective owners.
4.4. Your Property. Except for the limited license granted herein, all right, title, and interest in and to any of Your Property, including without limitation any Intellectual Property Rights therein, are and will remain the exclusive property of You and Your licensors.
4.5. Responsibility for Your Content. You are responsible for all of all of Your Content, including for the accuracy, legality and integrity of such content, and You shall obtain in advance all consents, approvals, licenses, and permissions necessary to upload Your Content to the Services. You shall not upload to the Services, or permit any third party to upload, any content that violates third-party privacy, publicity, or intellectual property rights; violates applicable laws, regulations or industry standards; or contains hate speech or material that is violent, obscene, pornographic, abusive, defamatory, offensive, or otherwise not reasonably related to the Services. Without limiting any of SewerAI’s other rights and remedies, SewerAI shall have the right (but not the obligation) in its sole discretion to remove from the Services any such content that violates this Agreement or any of SewerAI’s policies and procedures, or is otherwise objectionable. YOU SHALL NOT CAUSE TO BE UPLOADED TO THE SERVICES ANY CONTENT FOR WHICH YOU DO NOT HAVE ALL SUCH NECESSARY OWNERSHIP RIGHTS AND/OR LICENSES, CONSENTS OR PERMISSIONS.
5. Payment Obligations.
5.1. Fees and Payment. You shall pay SewerAI the Fees set forth in each Order. SewerAI shall invoice You in accordance with the payment schedule set forth in each Order. You will pay each invoice in accordance with the payment schedule set forth in each Order. In the event of early termination of this Agreement, You will pay any Fees then accrued and payable for Services performed through the effective date of termination. Except as otherwise expressly provided in this Agreement, all Fees are non-refundable. Except as otherwise provided in the Order, all amounts billed to Customer shall be expressed in, and Customer shall make all payments in, United States dollars. Customer shall pay all amounts due without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). Company may, at its option, apply money received from the Customer against any money then due to Customer. Company and Customer shall use good faith efforts to resolve any disputed invoiced amounts or charges.
5.2. Taxes. You shall bear all local, state and federal sales, use, gross receipts, excise, import or export, value added or similar taxes, duties, fees, assessments or levies (“Taxes”), if any, legally imposed in connection with the Fees paid hereunder. SewerAI shall separately state on each applicable invoice, and You shall pay, any Taxes; provided, however, that You shall not be responsible for taxes on SewerAI’s net income, profits, business assets, or ad valorem personal property.
5.3. Remedies for Non-Payment. In addition to any other remedies available to SewerAI, including any remedies set forth in the applicable Order, in the event that You fail to pay any invoiced amounts when due: (a) SewerAI will have the right to immediately suspend or block Your access to the Services until full payment of such amounts is received; and (b) You shall pay a late charge equal to the lesser of 1.5% per month (pro-rated if necessary) or the maximum amount permitted under applicable law, on any past due balance, and such charge shall accrue beginning on the day after such amount is due.
6. Confidentiality, Data Security and Data Privacy.
6.1. Confidentiality. The Party receiving Confidential Information agrees: (i) to hold and maintain in strict confidence the Confidential Information and not to disclose it to any third party other than its employees and subcontractors who have a need to know and have executed confidentiality agreements with the receiving Party no less protective of the Confidential Information than this Section; (ii) to protect the Confidential Information from disclosure with the same degree of care it uses to protect its own proprietary information similar in nature, but in no event less than a reasonable degree of care; (iii) not to use any Confidential Information for any purpose other performing its obligation or exercising its rights under this Agreement; (iv) to return or destroy Confidential Information promptly upon the disclosing Party’s written request. For clarity, nothing in this Section 6 will restrict or limit SewerAI’s rights to use Your Content as provided in Section 3.3. Either Party may disclose Confidential Information in response to a valid order of a court or other governmental body, but only to the extent of and for the purposes of such order; provided, however, that the receiving Party agrees to immediately inform the disclosing Party in writing of the existence, terms, and circumstances surrounding the request or order. The receiving Party acknowledges that the unauthorized disclosure or use of such Confidential Information may cause irreparable harm to the disclosing Party, which harm cannot be compensated by damages alone. Therefore, in addition to all other rights and remedies at law and in equity, the disclosing Party may seek an injunction to prevent a violation of the obligations of confidentiality.
7. Representations And Warranties; Disclaimer.
7.1. Representations and Warranties. Each Party represents and warrants as of the Effective Date and at all times throughout the Term: (a) it has the full corporate right, power and authority to enter into this Agreement and to perform its obligations hereunder; (b) the execution of this Agreement by such Party and performance of its obligations hereunder comply with all applicable laws, rules and regulations (including privacy, export control and obscenity laws); (c) when executed and delivered, this Agreement will constitute a legal, valid and binding obligation of such Party, enforceable against it in accordance with its terms; and (d) neither the execution nor performance of this Agreement will violate any agreement to which it is a party or by which it is otherwise bound. You further represent and warrant to SewerAI throughout the Term that: (i) You have all consents, approvals, licenses, and permissions necessary for You to perform all of Your obligations under this Agreement, to provide Your Content to the Services, and to grant the licenses You have granted herein; and (ii) Your Content does not violate any applicable laws, including without limitation any privacy laws, and does not infringe or misappropriate any Intellectual Property Right, publicity or privacy right or other proprietary right of any third party.
7.2. Warranty Disclaimer. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO ANY ITEMS OR SERVICES PROVIDED HEREUNDER, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ARISING BY USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE, AND EACH PARTY HEREBY DISCLAIMS THE SAME. SEWERAI DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR DOCUMENTATION WILL MEET YOUR NEEDS OR REQUIREMENTS, THAT ANY CONTENT GENERATED BY THE SERVICES WILL BE ACCURATE, COMPLETE OR RELIABLE, THAT USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, OR THAT ANY DEFECTS IN THE SERVICES OR DOCUMENTATION WILL BE CORRECTED.
8.1. SewerAI Indemnification. SewerAI, at its own expense, will indemnify, defend and hold harmless You, Your Affiliates and their respective directors, officers, employees, representatives and agents (collectively, the “Your Indemnitees”) from and against any claim, demand, action, class action, investigation or other proceeding (“Claims”), including but not limited to all damages, losses, liabilities, penalties, fines, judgments, costs and expenses (including attorneys’ fees) arising therefrom (“Losses”), brought by any third party against any of Your Indemnitees to the extent that such Claim is based on, or arises out of: (a) any third-party allegation that the Services (excluding any of Your Content hosted therein), when used by You in accordance with this Agreement, violate applicable law or infringe or violate the Intellectual Property Rights of any third party; or (b) the fraud, gross negligence or willful misconduct of SewerAI or its employees or subcontractors.
8.2. Additional Obligations of SewerAI. In addition to the indemnification obligations of SewerAI set forth in Section 8.1 above, in the event the use of any Service is, or SewerAI believes is likely to be, alleged or held to infringe any Intellectual Property Right, SewerAI shall at its sole option and expense: (a) replace or modify the Service so it is non-infringing (provided, that the replaced or modified Service is substantially equivalent); (b) obtain for You a license to continue using the Service in accordance with this Agreement; or (c) terminate the applicable Order and refund to You the pro-rata amount of any unused Fees prepaid by You under such Order. YOU AGREE, AS A MATERIAL TERM OF THE AGREEMENT, THAT SECTION 8.1 AND THIS SECTION 8.2 SET FORTH YOUR EXCLUSIVE REMEDIES WITH RESPECT TO INFRINGEMENT OF ANY OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS BY ANY PORTION OF THE SEWERAI PROPERTY AND THAT SEWERAI SHALL HAVE NO INFRINGEMENT LIABILITY TO YOU EXCEPT AS PROVIDED IN THIS SECTION.
8.3. Your Indemnification. You, at Your own expense, will indemnify, defend and hold harmless SewerAI, its Affiliates and their respective directors, officers, employees, representatives and agents (collectively, the “SewerAI Indemnitees”) from and against any Claim, including but not limited to any Losses arising therefrom, brought by any third party against any SewerAI Indemnitee to the extent that such Claim is based on, or arises out of: (a) the conduct of Your business; (b) Your Content; (c) any breach or purported breach of Your obligations, representations and/or warranties under this Agreement; or (d) the fraud, gross negligence or willful misconduct of You, Authorized Users or Your employees or subcontractors.
8.4. Indemnification Procedures. The obligations of each Party (the “Indemnitor”) under this Agreement to defend, indemnify and hold harmless the other Party and its Affiliates, and their respective directors, officers, employees, representatives and agents (each, an “Indemnitee”) shall be subject to the following: (a) the Indemnitee shall provide the Indemnitor with prompt notice of the claim giving rise to such obligation; provided, however, that any failure or delay in giving such notice shall only relieve the Indemnitor of its obligation to defend, indemnify and hold the Indemnitee harmless to the extent it reasonably demonstrates that its defense or settlement of the claim or suit was adversely affected thereby; (b) the Indemnitor shall have sole control of the defense and of all negotiations for settlement of such claim or suit; provided, however, that the Indemnitor shall not settle any claim unless such settlement completely and forever releases the Indemnitee from all liability with respect to such claim or unless the Indemnitee consents to such settlement in writing (which consent shall not be unreasonably withheld); and (c) the Indemnitee shall cooperate with the Indemnitor in the defense or settlement of any such claim or suit; provided, however, that the Indemnitee shall be reimbursed for all reasonable out-of-pocket expenses incurred in providing any cooperation requested by the Indemnitor. Subject to clause (b) above, the Indemnitee may participate in the defense of any claim or suit in which the Indemnitee is involved at its own expense.
9. Limitation of Liability.
9.1. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER SEWERAI, NOR ITS AFFILIATES OR LICENSORS SHALL BE LIABLE, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES. IN NO EVENT SHALL THE TOTAL LIABILITY OF SEWERAI, ITS AFFILIATES OR ITS LICENSORS UNDER THIS AGREEMENT EXCEED THE TOTAL FEES PAID OR PAYABLE TO SEWERAI HEREUNDER THE RELEVANT ORDER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.
9.2. WITHOUT LIMITING THE GENERALITY OF SECTION 9.1, IN NO EVENT WILL SEWER AI HAVE ANY LIABILITY OR OBLIGATION, INCLUDING FOR ANY INDEMNIFICATION, DEFENSE, LOSSES OR SETTLEMENTS UNDER SECTION 8: (A) ARISING OUT OF THE ACCURACY, COMPLETENESS OR RELIABILITY OF ANY SERVICE OR SEWERAI METADATA; OR (B) WITH RESPECT TO ANY OF THE FOLLOWING AS DETERMINED BY A TRIER OF FACT: (I) ANY FAULT APPORTIONED TO YOU OR A THIRD PARTY; OR (II) ANY ACT OR OMISSION, FOR WHICH SEWER AI IS NOT DIRECTLY RESPONSIBLE. WITHOUT LIMITATION, YOU SHALL BE RESPONSIBLE UNDER SECTION 8.3 FOR ANY INDEMNIFICATION, DEFENSE, LOSSES OR SETTLEMENTS APPORTIONED TO YOU BY A TRIER OF FACT.
10. Term and Termination.
10.1. Term. This Agreement shall become effective on the Effective Date and, unless earlier terminated in accordance with this Agreement, shall continue in full force and effect for the subscription and/or service period set forth in each Order.
10.2. Termination for Breach. Either Party may terminate this Agreement by written notice to the other Party if the other Party commits a material breach of this Agreement and such breach remains uncured for thirty (30) days following written notice of breach by the terminating Party; provided, however, that SewerAI may immediately terminate the Agreement without refund, upon written notice to You, in the event that: (a) You violate Section 3.2; or (b) You fail to pay any amount owed under an Order within ten (10) days after the due date.
10.3. Effect of Expiration or Termination; Survival. Upon the expiration or termination of this Agreement for any reason: (a) You will immediately cease all access to and use of the Services, except for the limited purpose of obtaining a copy of Your Content and SewerAI Metadata as set forth in Section 2.3; (b) all licenses granted hereunder will immediately terminate (except for any license expressly stated to be perpetual) and SewerAI will immediately cease providing Services to You, except as set forth in Section 2.3; (c) You shall, within thirty (30) days of expiration or termination, pay to SewerAI all outstanding accrued and payable amounts owed by You to SewerAI under this Agreement; and (d) Sections 1, 2.3, 3.2, 3.3, 4, 5.3, 6, 7.2, 8, 9, 10.3 and 11 shall survive. Neither Party will be liable for exercising any termination right in accordance with this Agreement. Except as expressly provided, expiration or termination of this Agreement shall not release either Party from any liability or obligation that had already accrued as of the effective date of expiration or termination, and the expiration or termination shall not constitute a waiver or release of, or otherwise be deemed to prejudice or adversely affect, any rights, remedies or claims, whether for damages, injunctive relief, or otherwise, which a Party may have hereunder at law, in equity or otherwise or which may arise out of or in connection with such termination.
11.1. Notice to United States Government End Users. If You are the U.S. Government or if You are a contractor or subcontractor (at any tier) of the U.S. Government and are accessing the Services for use by the U.S. Government or in connection with any contract or other transaction with the U.S. Government, You acknowledge that by using the Services and all associated software and technology of SewerAI qualify as commercial computer software and that any associated documentation qualifies as commercial computer software documentation within the meaning of the applicable acquisition regulations. The terms and conditions of this Agreement are fully applicable to the Government’s use of the Services and associated software and documentation, and shall supersede any conflicting terms or conditions, unless otherwise prohibited by federal law or regulation.
11.2. Compliance with Law. You represent and warrant that: (a) You are not located in, domiciled in, a resident of, controlled by the government of, or organized under the laws of a country or region that is subject to a U.S. Government embargo (currently, Crimea, Cuba, Iran, North Korea, Syria and Venezuela); and (b) You are not on or, directly or indirectly, owned, in whole or part, by any person or persons on the U.S. Treasury Department’s List of Specially Designated Nationals and Blocked Persons or any other U.S. government list of parties with respect to which transactions are forbidden or restricted. You shall not export, re-export, import, or transfer any good, service or other item that You received from SewerAI or Your right to access the Services in violation of U.S. law or in any manner that is forbidden for U.S. citizens, including, without limitation, transfer to a country or region that is subject to a U.S. government embargo, and You shall not assist or facilitate others in doing any of the foregoing. You acknowledge that it is Your responsibility to comply with any and all applicable export and import and economic sanctions laws.
11.3. Force Majeure. SewerAI shall not be liable to You for any default or delay in the performance of any of its obligations under this Agreement if such default or delay is caused, directly or indirectly, by any cause beyond SewerAI’s reasonable control.
11.4. Assignment. Neither Party may assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other Party, which consent will not be unreasonably withheld or delayed. Notwithstanding the foregoing, without securing such prior consent, either Party shall have the right to assign this Agreement and the obligations hereunder to any Affiliate or to any successor of such Party by way of merger, consolidation, reorganization or in connection with the acquisition of at least a majority of the business and assets of the assigning Party relating to the Agreement. This Agreement shall be binding on, and shall inure to the benefit of, the authorized successors and assigns of the Parties. Any attempt to assign other than in accordance with this provision shall be null and void.
11.5. Notice. Any notice required or permitted to be given by SewerAI under this Agreement shall be in writing and shall be delivered to the email address You provided in connection with ordering any Services, by means of a service notice within Your account, or via registered mail return receipt requested or an internationally recognized courier addressed to the address You provided in connection with ordering any Services. Any notice required or permitted to be given by You under this Agreement must be sent to SewerAI via registered mail return receipt requested or an internationally recognized courier to SewerAI Corporation, 227 Bliss Ct., Walnut Creek, CA 94598, USA. Any such notice will be deemed to have been given when sent.
11.6. Independent Contractors. The Parties acknowledge that the relationship of You and SewerAI is that of independent contractors and that nothing contained in this Agreement shall be construed to place You and SewerAI in the relationship of principal and agent, master and servant, partners or joint venturers.
11.7. Dispute Resolution. If any dispute arises under this Agreement, each Party shall submit the dispute for resolution by a level of employee or officer with decision-making authority. If the dispute cannot be resolved in thirty (30) days, either Party may pursue all available remedies at law or in equity.
11.8. Governing Law; Venue. This Agreement shall be interpreted in accordance with the laws of the state of California, USA without reference to its conflict of law provisions. Any litigation, suit or other proceeding regarding the rights or obligations of the parties hereunder shall be conducted exclusively before the state and federal courts in and for Santa Clara County, California, USA, and the parties specifically consent to Santa Clara County, California, USA, as the exclusive venue for any such proceeding. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act, the application of which is expressly excluded.
11.9. Entire Agreement. This Agreement, together with any Orders, embodies the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior agreements and understandings between the Parties relating to the subject matter hereof. For avoidance of doubt, the Parties agree that no terms in any form purchase order, invoice, or other document that either Party may deliver, or imposed by any governmental acquisition regulation, whether or not signed by the other Party, shall be deemed to modify or amend the terms of this Agreement and any such additional or inconsistent terms shall automatically be deemed unacceptable to and rejected by both Parties, and, as such, null and void and of no force and effect.
11.10. Amendment; Waiver. Except as otherwise provided in the introductory section of this Agreement, no amendment of any provision of this Agreement shall be effective unless set forth in a writing signed by a representative of You and SewerAI, and then only to the extent specifically set forth therein. No course of dealing on the part of either Party, nor any failure or delay by either Party with respect to exercising any of its rights, powers or privileges under this Agreement or law shall operate as a waiver thereof. No waiver by either Party of any condition or the breach of any provision of this Agreement in any one or more instances shall be deemed a further or continuing waiver of the same or any other condition or provision.
11.11. Severability. If any term of this Agreement or part hereof not essential to the commercial purpose of this Agreement shall be held to be illegal, invalid or unenforceable, it is the intention of the Parties that the remaining terms hereof or part hereof shall constitute their agreement with respect to the subject matter hereof and thereof and all such remaining terms, or parts thereof, shall remain in full force and effect. To the extent legally permissible, any illegal, invalid or unenforceable provision of this Agreement shall be replaced by a valid provision which will implement the commercial purpose of the illegal, invalid or unenforceable provision.
11.12. Customer List. Unless You notify SewerAI in writing that You do not wish for SewerAI to list Your name and logo, SewerAI will have the right to include, on its website and sales collateral, Your name and Your logo (if any) in lists that identify customers of the Services, provided that Your name and logo shall be no more prominently featured than references to any other customers.
11.13. Headings. The headings contained in this Agreement are for convenience of reference only and are not intended to have any substantive significance in interpreting this Agreement.