AquaClusters Service Agreement

AquaClusters is a group of free-of-charge and paid web-based services provided by AquaFold, Inc. (AquaFold) that establish a collaborative environment for issue tracking, component management, document sharing and forums for your software development projects. AquaClusters services are provided from the territory of the United States of America, State of California, Santa Clara County.

Initiation

You must accept the terms of this agreement in order to use the AquaClusters service. You can accept the terms of this agreement (a) by clicking the “accept” option in the user interface where this option is made available by AquaFold, or (b) by actually using AquaClusters, in which case AquaFold will treat use of AquaClusters as acceptance of the terms of this User Agreement.

For purchasing paid services offered you must accept price, payment terms and agree to pay the fees and taxes as they become due.

You may not use AquaClusters and accept the terms of this User Agreement if (a) you are younger than 13 years of age, or (b) you are a person barred from receiving services from AquaFold under the laws of the United States or other countries including the country in which you are resident or from which you use AquaClusters.

If you are at least 13 years of age but younger than 18 years of age, your parent or legal guardian must expressly consent to your use of AquaClusters.

If you accept terms of this User Agreement, you agree to retain a local copy of it for your records.

Service Use Rights from AquaFold

Upon accepting the terms of this User Agreement AquaFold gives you personal, non-exclusive, non-assignable, rights to use AquaClusters in a manner permitted by this User Agreement.

You may not assign your rights to use AquaClusters or otherwise transfer any part of your rights to use AquaClusters to a third party.

You are not permitted to modify, create a derivative work, reverse engineer or attempt to extract the source code of AquaClusters.

AquaFold may revoke your rights to use AquaClusters for any reason without prior notice to you. In such case your use of AquaClusters will be terminated and access to a part or all of the information associated with your use of AquaClusters will be prevented.

Establishing User Accounts

You can have limited access to AquaClusters without establishing an account with AquaFold.

In order to use most of the functionality of AquaClusters, you agree to register and establish an account with the AquaClusters Service. You agree to provide accurate and current registration information and receive a personal password for accessing your account information and AquaClusters.

AquaFold collects personal information for account registration and during usage of AquaClusters. Please refer to the AquaFold Privacy Policy for information about privacy and data protection practices at AquaFold.

In order to comply with the Privacy Policy of AquaFold, you assume responsibility for keeping confidentiality of your password, reporting to AquaFold all unauthorized activity that may occur through your account and updating your registration information if necessary to maintain its accuracy.

You must establish a user account for purchasing and using paid services with AquaClusters.

You agree not to share use of your account with any person. AquaFold may revoke your AquaClusters service use rights if a person other than you accesses your account.

User account cannot be transferred to another person.

Account User Name and Account Image Guidelines

You agree that for account user name you may not select names of other individuals, abusive, offensive or vulgar words and expressions.

You agree that if you choose to upload an account image, you may use images that uniquely identify your account. You agree not to use images of other individuals, real and fictional characters available in the public domain, images of people, animals or objects available in the public domain unless the image is a unique artwork created by you or for you.

AquaFold reserves right to remove or replace user names and account images if they fail to meet these guidelines.

Use of AquaClusters

You agree to use AquaClusters in compliance with all applicable state, federal or local laws and report to AquaFold any activity you deem unlawful or that may violate the terms of this User Agreement.

You agree to use AquaClusters solely for the purposes it is designed for and are permitted by this User Agreement.

You agree to access AquaClusters, its data and documents only through the interface provided by AquaFold.

Payments for Paid Services

If you purchase any paid services with AquaClusters, you agree to AquaFold storing your credit or debit card information. You also agree to pay the applicable fees and related taxes for those paid services (including, without limitation, recurrent fees) as they become due, and to reimburse AquaFold for all collection costs and interest for any overdue amounts. In the event of using AquaClusters service from outside the USA, you agree that you are solely responsible for paying all taxes, fees and duties specific to your country of residence including but not limited to Value Added Taxes, Withholding Taxes, Sales Taxes, Import Taxes, Customs Duties. If the US or foreign laws require AquaFold to collect taxes, duties and fees related to AquaClusters paid services, the amount of such taxes duties and fees shall be added to the invoice and become due when the payment for AquaClusters services becomes due. Your obligations to pay outstanding balances continue after the date that your services are cancelled either by you or AquaFold. All fees and charges are not refundable. Recurrent fees cover the entire period for which the fees are designated, and prorated refunds will not be issued for these partial periods if services are cancelled by you. No refunds are issued for partially used periods of recurrent services.

Basis of Charging for Paid Services

Charges for AquaClusters Paid Services are calculated on the basis of the usage of the Charging Factors. Charging Factors include, but not limited to the ability to create private projects, maximal number of allowed private projects, maximal number of users in the organization and the storage allowance for the organization. AquaFold reserves rights to change Charging Factors for AquaClusters paid services. AquaFold reserves rights to change the methods of measurement and calculation of the Charging Factors usage.

Currently effective Charging Factors for AquaClusters Paid services are described at the Payment Plan Selection web page of the AquaClusters system website. Methods of measurement and calculation of the usage of the Charging Factors are described in the AquaClusters user manual.

User Content

All information that you may access or create through your use of AquaClusters, such as text notes, computer files, computer programs and links to external internet resources is referred to as the “Content”.

If you create and submit your Content to AquaClusters, you agree to the following rules:

1. your Content is not unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, racially, ethnically or otherwise objectionable;
2. your Content is not harmful to minors in any way;
3. your Content does not include any malicious or potentially harmful or destructive software or code;
4. you possess appropriate rights to submit your Content to AquaClusters;
5. by submitting your Content to AquaClusters you do not violate any third party rights, including intellectual property rights;
6. by submitting your Content to AquaClusters you comply with third party licenses that may apply to your Content;

You agree that AquaFold may, but does not take obligation to review Content submitted by you to AquaClusters and may modify, refuse or delete all or part of the Content.

You agree that the Content presented to you as a part of your use of AquaClusters is the responsibility of the person or organization who originated this Content. AquaFold assumes no responsibility for any consequences, including loss or damage, from your use of the Content presented to you.

Copyright and Content Ownership

AquaFold claims no intellectual property rights over the Content you provide to AquaClusters.

Public and Private Resource Locations with AquaClusters

AquaClusters provides ways of posting and storing Content either in private or public resource locations. Multiple private and public locations can be established by users of AquaClusters.

Private resource location with AquaClusters is identified with an Organization Descriptor and a Project Descriptor within “project” resource locator of AquaClusters. Organization Descriptor and Project Descriptor are strings of alphanumeric symbols chosen by the user that established the private resource location. Every private resource location with AquaClusters must have a unique Organization Descriptor. The Project Descriptor of a private resource location must be unique only within the corresponding Organization Descriptor.

Example of the Internet URL (Unified Resource Locator) used in AquaClusters for accessing a private resource location established for organization called “My Company” and a project called “My Project”

https://www.aquaclusters.com/app/home/project/mycompany/myproject/

Public resource location with AquaClusters is identified with a Project Descriptor within “public” Organization Descriptor of AquaClusters. Project Descriptor is a unique string of alphanumeric symbols chosen by the user that established the public resource location. Organization Descriptor for all public resource locations within AquaClusters cannot be chosen by users and remains “public” for all public resource locations. Every public resource location in AquaClusters must have a unique Project Descriptor.

Example of the Internet URL (Unified Resource Locator) used in AquaClusters for accessing a public resource location established for a project called “My Public Project”

https://www.aquaclusters.com/app/home/project/public/mypublicproject/

Where /public/ is the public Organization Descriptor and /mypublicproject/ is the Project Descriptor.

Users must have an account with AquaClusters in order to establish public or private resource locations.

Content in Private Resource Locations with AquaClusters

Ability to establish private resource locations, post, view, share and modify content in the private resource locations may be subject to purchasing paid services with AquaClusters.

Content in the private resource locations can be accessed, posted, viewed, shared and modified only by users that are explicitly granted permissions to do so. Users must establish an account with AquaClusters in order to be able to receive permissions to access, post, view and share content in the private resource of AquaClusters. Such permissions can be given only by means of the user interface of AquaClusters.

Maximum amount of data users can post to private resource location of AquaClusters and maximum number of users can be granted permissions to access, post, view and share Content in the private resource location may be limited according to the terms of the paid service required for establishing the private resource location.

AquaFold employs security measures designed for the protection of the Content posted to the private resource. However, you understand that the technical processing and transmission of the Content by means of electronic communications is fundamentally necessary to use of AquaClusters. You agree that AquaFold is not responsible for any electronic communications and/or Content which are lost, altered, intercepted or stored without authorization during the transmission of any data whatsoever across networks not owned and/or operated by AquaFold.

In order to establish a private resource location you must select a unique Organization Descriptor. AquaFold cannot guarantee availability of certain alphanumeric combinations used for Organization Descriptors. AquaFold reserves right at our sole discretion to revoke and replace Organization Descriptor used by you for establishing a private location with AquaClusters.

If you established a private resource location within AquaClusters, you can grant or revoke other users permissions to access, post, view, share and modify Content in this private resource location.

You understand and agree that all Content posted to a private location can be viewed by all users that received permissions to access this private location.

You can receive and accept permissions from other users to access, post, view, share and modify Content in a private location established by this user. You understand and agree that all content posted by you can be accessed and viewed by all users that have permissions to access the same private location. You also understand and agree that your permissions to access a private resource location established by another user can be revoked at the discretion of this user. In the case that your permissions are revoked you will no longer be able to access and view Content in this private resource location, including the Content posted by you.

You understand and agree that it is your responsibility to negotiate property rights for the Content you post to the private resource location with the user who established this private resource location prior to accepting permissions to access this private resource location. AquaFold cannot be liable for any loss, damage or dispute arising from your permissions to access content in a private resource location revoked by another user.

Public Resource Location Content License from You

Unless otherwise stated in the conditions of paid service, you give AquaFold a perpetual, irrevocable, worldwide, royalty-free, assignable, non-exclusive license to reproduce, adapt, modify, translate, make derivative works, transfer to external business entities, organizations or individuals, publish, publicly display, distribute, remove and delete any Content which you submit to a public resource location with AquaClusters. You hereby further warrant that you possess all rights sufficient to provide the above license to AquaFold.

Resource Location Type Change Is Not Permitted

You understand and agree that the type of resource location, either private of public, once established cannot be changed.

AquaClusters Resource Locations Ownership and Transfer

AquaFold reserves perpetual rights for all possible alphanumerical combinations that can be used for identification of resource locations in the www.aquaclusters.com domain, including but not limited to the Organization Descriptor and Project Descriptor required for establishing private and public resource locations within AquaClusters. AquaFold grants you temporary license to use available alphanumeric combinations for the Organization Descriptor and the Project Descriptor.

You understand and agree that a particular alphanumeric combination for Organization Descriptor or Project Descriptor may not be available at the moment of registration, or can be revoked and replaced at any time with another combination chosen by AquaFold.

Termination of this agreement immediately discontinues your license to use selected alphanumeric combinations for Organization Descriptor and Project Descriptor.

You may transfer your license for using selected alphanumeric combination for Organization Descriptor and Project Descriptor to another user according to the following procedure.

1. The user you wish to transfer your Organization Descriptor and Project Descriptor to must establish an account with AquaClusters;
2. The user you wish to transfer your license to must send AquaFold a written request to acquire the Organization Descriptor and Project Descriptor in question.
3. You must send AquaFold a written consent to transfer the Organization Descriptor and Project Descriptor in question to another user, and your consent must include a new available alphanumerical combination(s) for the Organization Descriptor and Project Descriptor you will be using for your Content after the transfer.

Copyright Policy

By submitting your Content to AquaClusters you agree that to the best of your knowledge you do not distribute any copyrighted materials or any proprietary information without consent of the owner of such proprietary rights.

In response to alleged copyright infringements AquaFold follows the procedures stated in the Digital Millennium Copyright Act (DMCA).

In the event you believe information accessible at AquaClusters constitutes copyright infringement, send a written notification according to the AquaFold DMCA Notification Procedure.

You agree that you have no rights to use, refer to or reproduce any of the trademarks, trade names, logos or other distinctive brand features of AquaFold or any third party entities which appear on AquaClusters.

User-to-User Communication and Information Sharing

AquaClusters offers various forms of information exchange and sharing between users. Information, connections, recommendations, comments, documents and other materials you post may be seen and used by other AquaClusters users or visitors of the AquaClusters website. AQUAFOLD IS NOT RESPONSIBLE FOR A USER’S MISUSE OR MISAPPROPRIATION OF ANY CONTENT OR INFORMATION YOU POST IN ANY AQUACLUSTERS SERVICES INTENDED FOR INFORMATION SHARING AND PUBLICLY OPENED COMMUNICATIONS.

We do not allow anonymous content in the online services provided by AquaFold. User name and user account image in the online services, including AquaClusters service are always associated with the content you create and share using sharing functions. Scope of sharing depends on your account settings. Some settings allow public sharing of your content, in which case your user name and account image may become available to any Internet user, indexed and listed by the search engines or third party web sites. If you wish to limit sharing your user name and account image, use appropriate account settings that limit the scope of sharing. If you wish to prevent sharing your account name and account image, do not create any post content with the online services. You may still use the services for viewing content created and shared by other users.

If you do not wish to provide personally identifiable information for enrollment to online services, do not use your name as the user name and do not upload your photograph.

Default settings of AquaClusters allow newly created account page that contains user name, account image and list of projects associated with this account to be accessible from the Internet. However upon creation there are no hypertext links exist to this page. It can be discovered and accessed by any Internet user only if the exact page URL knowingly or unknowingly is entered in the web browser.

You may choose to make some or all of your information available for other AquaClusters users or to any Internet users through the Connections, Recommendations, Public Profile and other information sharing functionality of AquaClusters controlled by you via the User Interface of AquaClusters. You agree that you are solely responsible for using information sharing functions available through the User Interface in the way that fits your purposes. Using these functions constitutes the fact that you understand which information will be shared and the scope of sharing.

YOU AGREE THAT USING INFORMATION SHARING FUNCTIONS CONTROLLABLE VIA USER INTERFACE OF AQUACLUSTERS WILL BE TREATED BY AQUAFOLD AS THE EXPLICIT CONSENT FROM YOU TO TRANSFER YOUR INFORMATION, INCLUDING PERSONALLY IDENTIFIABLE INFORMATION TO EXTERNAL INDIVIDUALS OR NON-AFFILIATED WITH AQUAFOLD BUSINESS ENTITIES.

You are solely responsible for your interactions with other Users. AquaFold may limit the number of connections you may have to other Users and may, in certain circumstances, prohibit you from contacting other Users through use of the Services or otherwise limit your use of the Services. AquaFold reserves the right, but has no obligation, to monitor disputes between you and other members and to restrict, suspend, or close your account if AquaFold determines, in its sole discretion, that doing so is necessary to enforce this Agreement.

Third Parties

AquaClusters may provide links to third party websites. You are responsible for evaluating whether you want to access or use a third party website. You should review any applicable terms and/or privacy policy of a third party website before using it or sharing any information with it, as you may be providing the third party website operator permission to use your information in ways we would not.

Service Availability

You understand and agree that use of AquaClusters is provided “AS IS” and “AS AVAILABLE”.

AquaFold does not represent or warrant that:

1. your use of AquaClusters will meet your requirements;
2. your use of AquaClusters will be uninterrupted, timely, secure or free from error;
3. any information obtained as a result of using AquaClusters will be accurate or reliable;
4. defects in the operation or functionality of AquaClusters will be corrected.

Term and Termination

This User Agreement shall remain in full force until AquaFold or you terminate it according to the terms of this User Agreement.

You may terminate this User Agreement at any time, without reason and prior notice to AquaFold by (a) following instruction at the “Profile” page of AquaClusters; or (b) sending written request to AquaFold.

Only AquaFold or the party paying for your services may terminate your access to the paid services with AquaClusters.

As a result of termination by either party you will not be able to use AquaClusters and retrieve materials associated with your prior use of the AquaClusters Service.

In the event of termination of this agreement by you, AquaFold will retain all payments made in advance for unused paid services.

Any breach or delinquency of your payment obligations or unauthorized use of the AquaClusters Technology or service will be deemed a material breach of this Agreement. AquaFold may, in its sole discretion, terminate your account or use of AquaClusters and this Agreement if you breach or otherwise fail to comply with this Agreement. You agree and acknowledge that AquaFold has no obligation to retain your Content, and AquaFold may delete such Content, if you have materially breached this Agreement, including, but not limited to, failure to pay outstanding Fees, and such breach has not been cured within 30 days of payment.

AquaFold may terminate this User Agreement at any time without reason and prior notice to you.

In the event of termination of this agreement by AquaFold (other than by reason of breach of this agreement), AquaFold will return within 90 days the remainder of payments made in advance for unused paid services.

​In the e​vent of ​terminat​ion of t​his agre​ement by​ either ​party (o​ther tha​n by rea​son of b​reach of​ this ag​reement)​, you ag​ree and ​acknowle​dge that​ AquaFol​d has no​ obligat​ion to r​etain th​e Conten​t, and m​ay delet​e such C​ontent ​immediat​ely aft​er termi​nation o​f the ag​reement.​ In addi​tion, Aq​uaFold m​ay delet​e at any​ time co​ntent of​ any pub​lic reso​urce loc​ation.

Even after termination of the User Agreement the Content you provided to private resource locations not established by you will remain stored by AquaFold, and the terms of the Public Resource Location Content License from You will remain in full force.

Changes to the Service Agreement

AquaFol​d rese​rves t​he rig​ht to​ make ch​anges to​ this Us​er Agree​ment fro​m time t​o time ​without ​notice.​ When th​ese chan​ges are ​made, Aq​uaFold w​ill make​ a new c​opy of t​he User ​Agreemen​t availa​ble on​ the Aqu​aCluster​s websi​te.

You understand and agree that if you use AquaClusters after the date on which the User Agreement has been modified, your use of AquaClusters will indicate acceptance of the new terms and AquaFold will treat your use as acceptance of the updated User Agreement.

Indemnity

YOU AGREE TO INDEMNIFY, HOLD HARMLESS, AND DEFEND AQUAFOLD AND EACH OF AQUAFOLD'S ADVERTISERS, LICENSORS, SUPPLIERS, OFFICERS, DIRECTORS, INVESTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS AND OTHER CONTRACTORS (COLLECTIVELY, "AQUAFOLD INDEMNIFIED PARTIES") FROM ANY AND ALL THIRD PARTY CLAIMS, CAUSES OF ACTIONS, PROCEEDINGS, LIABILITIES, DAMAGES, OR OTHER DEMANDS ("CLAIMS") (INCLUDING BUT NOT LIMITED TO, REASONABLE ATTORNEYS' FEES, ACCOUNTING EXPENSES, AND LEGAL COSTS), ARISING FROM OR RELATED TO (A) YOUR (OR ANY USER OF YOUR ACCOUNT) ACCESS TO OR USE OF AQUACLUSTERS, INCLUDING, WITHOUT LIMITATION, YOUR OR OTHER'S ACCESS OF CONTENT OR OTHER MATERIALS AVAILABLE BY MEANS OF AQUACLUSTERS OR THIRD-PARTY WEB SITES, OR YOUR PURCHASING OF GOODS OR SERVICES FROM THIRD PARTIES; (B) YOUR VIOLATION OF THESE TERMS OR BREACH OF THESE TERMS, INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATION OR WARRANTY CONTAINED IN THESE TERMS; OR (C) YOUR CONTENT OR PROVISION TO AQUACLUSTERS OF INFORMATION OR ANY OTHER PRODUCTS, POSTINGS, OFFERINGS, DATA OR MATERIALS. AQUAFOLD INDEMNIFIED PARTIES WILL HAVE THE RIGHT, BUT NOT THE OBLIGATION, TO PARTICIPATE, THROUGH COUNSEL OF THEIR CHOICE, IN ANY DEFENSE BY YOU OF ANY CLAIM AS TO WHICH YOU ARE REQUIRED TO DEFEND, INDEMNIFY OR HOLD HARMLESS THE AQUAFOLD INDEMNIFIED PARTIES (“INDEMNIFIED CLAIM”). YOU MAY NOT SETTLE ANY INDEMNIFIED CLAIM WITHOUT THE PRIOR WRITTEN CONSENT OF THE CONCERNED AQUAFOLD INDEMNIFIED PARTIES.

Disclaimer of Warranties

ALL PRODUCTS, SERVICES, INFORMATION, CONTENT OR ANY OTHER MATERIALS OR ITEMS PROVIDED ON OR VIA AQUACLUSTERS ARE PROVIDED "AS IS" AND "AS AVAILABLE", WITHOUT WARRANTY OR CONDITIONS OF ANY KIND, INCLUDING BUT NOT LIMITED TO, EXPRESS OR IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. AQUAFOLD DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY PRODUCTS, SERVICES OR INFORMATION ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH AQUACLUSTERS OR ANY LINKED WEB SITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND AQUAFOLD WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF CONTENT, PRODUCTS, SERVICES OR INFORMATION. AS WITH THE PURCHASE OF A PRODUCT, SERVICE OR INFORMATION THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.

AQUAFOLD DOES NOT WARRANT THAT AQUACLUSTERS SERVICES WILL BE TIMELY, UNINTERRUPTED, OR SECURE. SCHEDULED AND PREVENTIVE MAINTENANCE, AS WELL AS REQUIRED AND EMERGENCY MAINTENANCE WORK MAY TEMPORARILY INTERRUPT SERVICES OR ACCESS TO AQUACLUSTERS. WE DO NOT ASSUME RESPONSIBILITY FOR DELETION, MIS-DELIVERY, OR FAILURE TO STORE ANY USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.

YOU AGREE THAT YOUR USE OF AQUACLUSTERS WILL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, AQUAFOLD AND EACH OF ITS ADVERTISERS, LICENSORS, SUPPLIERS, OFFICERS, DIRECTORS, INVESTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS AND OTHER CONTRACTORS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED IN CONNECTION WITH AQUACLUSTERS, YOUR USE THEREOF, THE ACCURACY OR COMPLETENESS OF AQUACLUSTERS CONTENT, THE CONTENT OF ANY WEB SITE LINKED TO AQUACLUSTERS OR THE SERVICES, PRODUCTS, INFORMATION OR ANY OTHER ITEMS OR MATERIALS OFFERED AND ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (A) ERRORS, MISTAKES OR INACCURACIES OF CONTENT AND MATERIALS, (B) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF AQUACLUSTERS, (C) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM AQUACLUSTERS, (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO, ON OR VIA AQUACLUSTERS BY ANY THIRD PARTY, AND/OR (F) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE ON OR VIA AQUACLUSTERS.

AQUAFOLD RESERVES THE RIGHT TO CHANGE ITS WARRANTY POLICY SET FORTH HEREIN AT ANY TIME BY UPDATING THESE TERMS.

Limitation of Liability

TO THE EXTENT PERMITTED BY APPLICABLE LAW, AQUAFOLD WILL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, OR ANY OTHER DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION, DAMAGES RESULTING FROM: (A) RELIANCE ON AQUACLUSTERS MATERIALS, (B) LOSS OF USE, DATA, PROFITS, GOODWILL AND/OR OTHER INTANGIBLE LOSSES (INCLUDING WITHOUT LIMITATION THE INABILITY TO USE AQUACLUSTERS SERVICES, UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA, STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON AQUACLUSTERS), OR (C) DELAYS OR BUSINESS INTERRUPTIONS ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF AQUACLUSTERS), WHETHER BASED ON BREACH OF CONTRACT, WARRANTY BREACH, TORT, OR OTHERWISE, ARISING FROM YOUR USE OF AQUACLUSTERS, EVEN IF AQUAFOLD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, AQUAFOLD'S LIABILITY AND THE LIABILITY OF EACH OF ITS OFFICERS, DIRECTORS, INVESTORS, EMPLOYEES, AGENTS, ADVERTISERS, LICENSORS, SUPPLIERS, SERVICE PROVIDERS AND OTHER CONTRACTORS TO YOU OR ANY THIRD PARTIES UNDER ANY CIRCUMSTANCE IS LIMITED TO THE AMOUNT CUSTOMER ACTUALLY PAID TO AQUAFOLD PURSUANT THIS AGREEMENT FOR ANY AND ALL INJURIES, DAMAGES, LOSSES, EXPENSES OR CLAIMED EXPENSES (INCLUDING ATTORNEY FEES), ARISING OUT OF THIS USER AGREEMENT FROM ANY CAUSE OR CAUSES. YOU ACKNOWLEDGE AND AGREE THAT AQUAFOLD WOULD BE UNWILLING TO MAKE AVAILABLE AQUACLUSTERS ABSENT THE FOREGOING LIMITATIONS OF LIABILITY, WHICH FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.

Disputes with AquaFold, Consent to Jurisdiction and Forum Selection

YOU UNDERSTAND THAT ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.

Except for the right of AquaFold to apply to a court for injunctive relief or other such provisional remedy to prevent irreparable harm, the Parties agree that, with respect to any dispute arising out of or related to this Agreement, or the breach thereof, and if the dispute cannot be settled through negotiation, the parties first will attempt in good faith to settle the dispute by mediation administered by the American Arbitration Association under its Commercial Mediation Procedures before resorting to arbitration, litigation, or some other dispute resolution procedure. If a mediator cannot be agreed upon by the parties, each party shall designate a mediator and those mediators shall select a third mediator who shall act as the neutral mediator, assisting the parties in attempting to reach a resolution.

If the mediation is unsuccessful, the parties agree that the dispute shall be decided by binding arbitration under the Commercial Arbitration Rules issued by the American Arbitration Association, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The parties agree that the locale of the arbitration shall be in Santa Clara County, State of California, the decision of the arbitrator shall be final and the costs and fees (other than attorneys' fees) associated with the mediation or arbitration shall be shared equally by the parties. Each party shall be responsible for its attorneys’ fees associated with the mediation or arbitration.

In the event of litigation or to compel arbitration or to enforce an arbitration award under this Section, or to obtain an injunction under this Section, the parties hereby irrevocably consent and submit to the exclusive personal jurisdiction and venue of the state and federal courts located in Santa Clara County, California. The terms and the relationship between you and AquaFold shall be governed by the laws of the State of California without regard to its conflict of law provisions. You agree the UN Convention on Contracts for the International Sale of Goods shall not apply.

Statute of Limitations

You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the AquaClusters Services or the Service Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.

Assignment

In its sole discretion, AquaFold may assign this Service Agreement, in whole or in part, by providing notice to you should AquaFold ever file for bankruptcy or in the event of a sale, merger, acquisition or other transfer of all or substantially all of AquaClusters or AquaFold. You may not assign this User Agreement, in whole or in part, to any other party.

Entire Agreement

This Agreement constitutes the entire agreement between you and AquaFold and supersedes all prior communications, understandings and agreements relating to the subject matter hereof, whether oral or written.

Ambiguities

You agree that you and your counsel have participated fully in the review and revision of this User Agreement. Any rule of construction to the effect that ambiguities are to be resolved against AquaFold shall not apply in interpreting this User Agreement. The language in this User Agreement shall be interpreted as to its fair meaning and not strictly for or against any party.