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Thank you for visiting the VivoPoint website (the “Platform”), owned and operated by VivoAquatics Inc. (“VivoAquatics”). VivoAquatics is an industry-leading provider of innovative water management solutions.

It is important that you carefully read and understand this Terms of Use. Terms of Use is a legal and binding agreement between you and VivoAquatics. By clicking the “accept” button after being presented with this Terms of Use and/or using the Platform, you expressly acknowledge that you have read this Terms of Use and agree to all of its provisions. This Terms of Use sets forth your rights and obligations with respect to your use of the Platform and any communications, information, and/or data of any kind provided through the Platform.

IF YOU DO NOT AGREE TO THIS TERMS OF USE, YOU ARE NOT AUTHORIZED TO USE THE PLATFORM AND YOU MUST PROMPTLY CEASE USING IT.

You hereby waive any rights or requirements under any laws or regulations in any jurisdiction which require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent such waiver is permitted under applicable law.

WHILE WE ENABLE END USERS OF THE PLATFORM TO PERFORM REMOTE WATER MANAGEMENT, WE ARE NOT RESPONSIBLE FOR MONITORING SUCH EVENTS AND WE MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY OR ACCURACY OF INFORMATION PROVIDED THORUGH THE PLATFORM. IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANYONE ELSE FOR ANY DECISION MADE OR ACTION TAKEN BY YOU IN RELIANCE OF THIS INFORMATION.

YOU ACCEPT THAT WE ARE NOT RESPONSIBLE FOR, AND WE EXPRESSLY DISCLAIM, ALL LIABILITY THAT MAY RESULT FROM ANY INFORMATION PROVIDED BY VIVOAQUATICS, WHETHER ONLINE OR OFFLINE. VIVOAQUATICS DOES NOT SPONSOR, ENDORSE, RECOMMEND OR APPROVE ANY PARTICULAR COURSE OF ACTION TAKE AFTER INFORMATION IS RECEIVED.

1. Using the Platform.
  1. Registration. Your registration will be completed internally by one of our team members.
  2. Internet Access. When using the Platform on your mobile, laptop or desktop device (your “Device”), you acknowledge and agree that you are responsible for (i) maintaining continuous Internet access for your Device through a Wi-Fi or LTE data communication network and (ii) any Internet connection and telecommunications fees and charges that you incur.
  3. Your Device. VivoAquatics is not responsible for the operation of your Device. You are responsible for ensuring the system functions of your Device are in working order when accessing the Platform, including, but not limited to, sound reception, screen display operation and quality and camera features of your Device.
  4. Your Communications. You are responsible for all communications, verbal and non-verbal, that you submit in connection with your use of the Platform and the content of all information contained in such communications (“Submitted Content”). You are responsible for ensuring that (a) all Submitted Content is original and accurate, and (b) none of the Submitted Content is (i) a falsehood or misrepresentation; (ii) offensive, unlawful, obscene, defamatory, libelous, threatening, harassing, hateful or racially or ethnically offensive. You grant VivoAquatics a perpetual, irrevocable, non-terminable, transferrable, worldwide, royalty-free, sublicensable, fully paid-up, non-exclusive and transferable license to use, record, store and reproduce the Submitted Content and to distribute the Submitted Content to its Customer, the property owner (“Licensee”).
2. License Grant and Restrictions.

2.1 License Grant. Subject to the terms and conditions of this Terms of Use, VivoAquatics hereby grants you a limited, non-exclusive, personal, non-sublicensable, non-assignable license to access and use the Platform.

2.2 Use Restrictions. You may not access or use the Platform in any way that is not expressly permitted by this Terms of Use. You may not: (a) cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Platform; (b) sell, assign, rent, lease, or grant rights in the Platform, including, without limitation, through sublicense, to any other person or entity; or (c) use the Platform for any unlawful, prohibited, abnormal or unusual activity as determined by VivoAquatics in its sole discretion.

2.3 Violation of this Terms of Use. You acknowledge and agree that you are solely responsible, and VivoAquatics has no responsibility or liability to you or any other person or entity for, any breach by you of this Terms of Use or for the consequences of any such breach.

3. Termination.

3.1 Termination by VivoAquatics. VivoAquatics may, at its option, terminate your access to and use of the Platform immediately if it determines you are in breach of or otherwise acting inconsistently with this Terms of Use.

3.2 No Liability for Termination. You agree that VivoAquatics shall not have any liability whatsoever for any damage, loss or expenses of any kind that you may suffer as a result of any termination of your access to our use of the Platform (including, without limitation, damage, loss or expenses), whether or not VivoAquatics is aware of any such damage, loss or expenses.

4. Communications with VivoAquatics.

We use email, telephone, and chat messaging to communicate with you. Additionally, we may contact you via the Platform. For contractual purposes, you (1) consent to receive communications from us in an electronic form via the email address you have submitted, messaging through the Platform or through chat messaging; and (2) agree that all of the Terms of Use, agreements, notices, policies, and other communications that we provide to you electronically satisfy any legal requirement that those communications would satisfy if they were on paper. This section does not affect your non-waivable rights.

5. Intellectual Property.

5.1 Trademarks. The VivoPoint and VivoAquatics name and logo are trademarks and service marks of VivoAquatics. You do not have the right to use any of VivoAquatics’ trademarks, service marks or logos and your unauthorized use of any of these may be a violation of federal and state trademark laws.

5.2 Ownership. You acknowledge and agree that VivoAquatics, or its licensors, owns all right, title and interest in and to the Platform, including all intellectual property, industrial property and proprietary rights recognized anywhere in the world at any time and that the Platform is protected by U.S. and international copyright laws. Further, you acknowledge that the Platform may contain information that VivoAquatics has designated as confidential and you agree not to disclose such information without VivoAquatics prior written consent.

6. User Content.

6.1 User Content. VivoAquatics may provide you with interactive opportunities through the Platform, including, by way of example, the ability to send and post video and photographs. You represent and warrant that you are the owner of, or otherwise have the right to provide, all User Content that you submit, post and/or otherwise transmit (“Make Available”) through the Platform. You hereby grant VivoAquatics a perpetual, irrevocable, transferable, fully paid, royalty-free, non-exclusive, worldwide, fully sublicenseable right and license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works, distribute and/or otherwise use the User Content in connection with VivoAquatics’ business and in all forms now known or hereafter invented (“Uses”), without notification to and/or approval by you. You agree not to use the Platform in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that VivoAquatics is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive or illegal messages or transmissions that you may receive as a result of using the Platform.

6.2 You agree that any submission of any ideas, suggestions, and/or proposals to VivoAquatics through its suggestion, feedback, forum, or similar pages (“Feedback”) is at your own risk and that VivoAquatics has no obligations (including without limitation, obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback and you hereby grant to VivoAquatics a perpetual, irrevocable, transferable, fully paid, royalty-free, non-exclusive, worldwide, fully sublicenseable right and license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works, distribute and/or otherwise use such Feedback.

7. Privacy Policy.

By accepting this Terms of Use or using the Platform, you represent that you have read and consent to our Privacy Policy in addition to this Terms of Use. If at any point you do not agree to any portion of the Privacy Policy, you must immediately stop using the Platform. By using the Platform, you agree to the then-current versions of this Terms of Use and Privacy Policy, which will be posted on the Platform.

8. Location.

The Platform is operated by VivoAquatics in the United States. If you choose to access or use the Platform from a location outside of the United States, you do so on your own initiative, and you are responsible for compliance with applicable local laws.

9. User Age.

This Platform is not intended for use by people under 13 years of age. We will not knowingly collect information from minors in the United States or elsewhere with or without the consent of their parents or guardians. Personal registration information submitted by a person under the age of 13 will not be accepted. Any general information provided by a person under the age of 13 and gathered (for example, through the use of cookies) during his or her visit may be used as indicated in this).

10. Disclaimer of Warranties.

10.1 YOU UNDERSTAND AND AGREE THAT THE PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, MAY NOT BE FUNCTIONAL ON CERTAIN DEVICES AND/OR IN CERTAIN COMPUTING ENVIRONMENTS AND VIVOAQUATICS SHALL HAVE NO OBLIGATION TO CORRECT ANY BUGS, DEFECTS OR ERRORS IN THE PLATFORM OR TO OTHERWISE SUPPORT, DEVELOP OR MAINTAIN THE PLATFORM.

10.2 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, VIVOAQUATICS EXPRESSLY DISCLAIMS ALL WARRANTIES INCLUDING, WITHOUT LIMITATION, WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.

10.3 VIVOAQUATICS MAKES NO REPRESENTATION OR WARRANTY AS TO THE ACCURACY, COMPLETENESS, TIMELINESS, CORRECTNESS OR RELIABILITY OF ANY INFORMATION MADE AVAILABLE THROUGH, OR THE PERFORMANCE OF, THE PLATFORM.

10.4 VIVOAQUATICS DOES NOT REPRESENT OR WARRANT THAT (a) YOU WILL BE ABLE TO ACCESS OR USE THE PLATFORM AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; (b) THAT OPERATION OF THE PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (c) YOUR USE OF THE PLATFORM WILL MEET YOUR REQUIREMENTS; (d) DEFECTS IN THE OPERATION OF THE PLATFORM WILL BE CORRECTED OR (e) THE PLATFORM IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimers may not apply to you.

11. Limitation of Liability.

11.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, VIVOAQUATICS AND ITS AFFILIATES, LICENSEES, LICENSORS AND BUSINESS PARTNERS (COLLECTIVELY, THE “RELATED PARTIES”) SHALL NOT BE LIABLE TO YOU UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR:

ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING LOSS OF PROFITS, USE, DATA OR GOODWILL, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE PLATFORM, EVEN IF VIVOAQUATICS OR THE RELATED PARTIES HAVE BEEN ADVISED OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES OR DAMAGES;

THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY; OR

THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE ANY MATERIALS, INFORMATION OR DATA GENERATED, COLLECTED, PROCESSED OR MAINTAINED BY OR THROUGH YOUR USE OF THE PLATFORM.

11.2 WITHOUT LIMITING THE FOREGOING, IN NO CASE SHALL THE LIABILITY OF VIVOAQUATICS OR ANY OF THE RELATED PARTIES EXCEED ONE HUNDRED DOLLARS ($100).

Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the liability of VivoAquatics and the Related Parties shall be limited to the fullest extent permitted by law.

12. Indemnification.

You agree to defend, indemnify and hold VivoAquatics and the Related Parties harmless from and against any and all claims, demands, liabilities damages and losses including, without limitation, reasonable attorneys’ fees, resulting from or arising out of (a) your use of the Platform; or (b) your breach of this Terms of Use.

13. Dispute Resolution.

13.1 This is a Class Action Waiver. In the interest of resolving disputes between you and VivoAquatics in the most expedient and cost effective manner, you and VivoAquatics agree that every dispute arising in connection with these Terms will be resolved by binding individual arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and can be subject to very limited review by courts. While the parties will be permitted to engage in discovery or exchange of non-privileged information relevant to the dispute, arbitration may allow for more limited discovery allowed for in court. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, the Platform, or your relationship with us, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms.

YOU AND VIVOAQUATICS AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION.

Unless both you and VivoAquatics agree, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding. The court may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim.

Any arbitration between you and VivoAquatics shall be conducted by a single arbitrator, governed by JAMS pursuant to its Comprehensive Arbitration Rules & Procedures (collectively, “JAMS Rules”), as modified by these Terms, and administered by JAMS. The JAMS Rules and fee information are available at www.jamsadr.org or by calling JAMS at 1-800-352-5267. The arbitrator is bound by these arbitration terms. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrabilty of this Section 13.

13.2 Notice. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or if we do not have a physical address on file for you, by electronic mail (“Notice”).

VivoAquatics’ address for Notice is:

  1. VivoAquatics Inc.
  2. Attn: Legal
  3. 245 W Foothill Blvd.
  4. Monrovia CA, 91016

The Notice must: (1) Describe the nature and basis of the claim or dispute; and (2) Set forth the specific relief sought (“Demand”). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within thirty (30) days after the Notice is received, you or VivoAquatics may commence an arbitration proceeding.

13.3 Opt Out. You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above by submitting a request here. The notice must be sent within thirty (30) days of your creating an account with VivoAquatics or the effective date of the first set of Terms containing a Dispute Resolution and Arbitration section, whichever is later; otherwise, you shall be bound to arbitrate disputes in accordance with the terms of these paragraphs. If you opt out of these arbitration provisions, VivoAquatics also will not be bound by them.

14. Governing Law; Jurisdiction.

This Terms of Use is governed by California law, without regard to conflict of laws principles. You and VivoAquatics agree that the state and federal courts located in the County of Los Angeles, California will have exclusive jurisdiction of all disputes arising out of or related to this Terms of Use or your access to or use of the Platform or the Platform and agree to submit to the personal jurisdiction and venue of these courts. Notwithstanding the foregoing, VivoAquatics shall be allowed to apply for equitable remedies (including injunctions) in any jurisdiction.

15. General.

15.1 Assignment. The rights granted to you under this Terms of Use may not be assigned without VivoAquatics’ prior written consent, and any attempted unauthorized assignment by you shall be null and void.

15.2 Severability. If any part of this Terms of Use is determined to be invalid or unenforceable, then that portion shall be severed, and the remainder of the Terms of Use shall be given full force and effect.

15.3 Attorneys’ Fees. The prevailing party shall be entitled to recover from the other party all the reasonable costs, attorneys’ fees and other expenses incurred by such prevailing party in any legal action relating to this Terms of Use.

15.4 No Waiver. Our failure to enforce any provision of this Terms of Use shall in no way be construed to be a waiver of such provision, nor in any way affect our right to enforce the same provision at a later time. An express waiver by VivoAquatics of any provision, condition or requirement of this Terms of Use shall not be understood as a waiver of your obligation to comply with the same provision, condition or requirement at a later time.

15.5 Equitable Remedies. You acknowledge and agree that VivoAquatics would be irreparably damaged if the terms of this Terms of Use were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to any breach of this Terms of Use, in addition to such other remedies as we may otherwise have available to us under applicable laws.

15.6 Entire Agreement. This Terms of Use, including the documents referenced in this Terms of Use, constitutes the entire agreement between you and VivoAquatics with respect to the Platform and supersedes any and all prior agreements between you and VivoAquatics relating to the Platform.

16. Contact Us.

If you have any questions or comments relating to the Platform or this Terms of Use, you can submit a question though our Platform, send an email to at support@VivoPoint.com, or call customer service at (855) 389-7378.

17. When were these Terms last updated?

August 7, 2019