These General Terms and Conditions (“Elaqua Terms”) apply tothe website owned, operated, and maintained by or on behalf of Elaqua Marine,Inc. and its affiliates (collectively, “Elaqua” or “we” or “us”) and theproducts (including Elaqua vehicles), content, services data, software, andtools accessed or sold through Elaqua’s website (the “Site”), applications(including mobile applications), vehicles, at Elaqua events, or at Elaqua’sphysical locations (collectively the “Services”). In the event of a conflictbetween these Elaqua Terms and any signed contract between you and Elaqua, orits affiliates, the signed contract shall control to the extent of suchconflict.
THESE ELAQUA TERMS CONTAIN IMPORTANT INFORMATION REGARDINGYOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONSTHAT MIGHT APPLY TO YOU. PLEASE READ THESE ELAQUA TERMS CAREFULLY.
THESE ELAQUA TERMS REQUIRE THE USE OF ARBITRATION ON ANINDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS(SEE THE SECTION ENTITLED “DISPUTE RESOLUTION – ARBITRATION AND CLASS ACTIONWAIVER" BELOW).
BY CREATING A ELAQUA ACCOUNT, USING ELAQUA MOBILEAPPLICATIONS OR ELAQUA WEBSITES, PLACING AN ORDER FOR A ELAQUA VEHICLE OR OTHERPRODUCTS OR SERVICES, INCLUDING CHARGING AND VEHICLE SERVICE FROM ELAQUA YOUACCEPT AND ARE BOUND BY THESE ELAQUA TERMS.
YOU MAY NOT ORDER OR OBTAIN A ELAQUA VEHICLE OR PRODUCTS ORSERVICES FROM ELAQUA IF YOU (A) DO NOT AGREE TO THESE ELAQUA TERMS, (B) ARE NOTTHE OLDER OF (i) AT LEAST 18 YEARS OF AGE OR (ii) LEGAL AGE TO FORM A BINDINGCONTRACT WITH ELAQUA, OR (C) ARE PROHIBITED FROM ACCESSING OR USING THISWEBSITE OR ANY OF THIS WEBSITE'S CONTENTS, GOODS OR SERVICES BY APPLICABLE LAW.
Dispute Resolution – Arbitration Agreement and Class ActionWaiver
To the fullest extent permitted by applicable law and exceptfor small claims or if you choose to opt-out as provided below, you and Elaquaagree to resolve any claims, demands, disagreements, or disputes between uswhether based in contract, tort, statute or otherwise arising from or relatedto these Elaqua Terms or our relationship, including advertising and othercommunications between you and Elaqua, Elaqua Products or Services, and asapplicable, your credit application, or the purchase or condition of a vehicle(a “Dispute”) by binding arbitration conducted by the American ArbitrationAssociation (“AAA”) in accordance with the AAA Consumer Arbitration Rules,unless you and we agree otherwise. For more information on arbitration and toaccess the AAA Consumer Arbitration Rules, please visit: www.adr.org. If the AAA Consumer Arbitration Rules conflictwith this Agreement, then this Agreement shall control. You and we understandthat we are both waiving our rights to go to court (other than small claimscourt, as provided below), to present our claims to a jury and to have claimsresolved by a jury trial, and also that judicial appeal rights, if any, aremore limited in arbitration than they would be in court.
Unless otherwise prohibited by federal or state law orregulation, any arbitration, and any award issued in an arbitration, shall bekept confidential, except to the extent necessary to seek court intervention(such as to enforce an award).
Initial Dispute Resolution Requirement
Most disputes can be resolved without resort to arbitrationor small claims court. For any Dispute, you and we agree that before taking anyformal action to initiate arbitration or a small claims suit we will contactthe other in an attempt to resolve the Dispute. You will contact us atdemands@Elaqua.com and provide a brief, written description of the Dispute andyour contact information (including your Elaqua ID, if you have one). We willcontact you at your contact information on file with Elaqua. You and Elaquaagree to use reasonable efforts to settle any Dispute directly and good faithnegotiations shall be a pre-condition to either party initiating a small claimssuit or arbitration.
Filing a Demand for Arbitration
If the parties do not reach an agreed-upon solution within aperiod of 60 days from the time informal dispute resolution is initiated underthe Initial Dispute Resolution provision above, then either party may initiatebinding arbitration. In order to initiate arbitration, you must file anarbitration demand with AAA. You can find information about AAA and file yourarbitration demand at https://www.adr.org/support. You are also required tosend a copy of the arbitration demand to us and you should send it by email to:arbitration@Elaqua.com.
Fees & Costs
AAA’s Consumer Arbitration Rules will govern the allocationof arbitration fees and costs between you and Elaqua. However, if yourarbitration case filing fee exceeds the filing fee you would pay to file theaction in a court of law, Elaqua will pay the amount of your case filing fee inexcess of the filing fee you would pay in a court of law. The amount we pay maybe reimbursed in whole or in part by decision of the arbitrator if s/he findsthat applicable law allows such reimbursement because your claims werefrivolous or brought in bad faith. You are responsible for your own attorneys'fees unless applicable law provides otherwise.
Arbitration Location and Procedure
Arbitration shall be initiated and take place in the city orcounty of your residence unless you and Elaqua agree otherwise, or, if youreside outside of the United States, in Orange County, California. If yourclaim does not exceed $25,000, then the arbitration will be conducted solely onthe basis of documents you and Elaqua submit to the arbitrator. If your claimexceeds $25,000, you and Elaqua may agree to conduct arbitration byvideoconference or teleconference or conduct a document-only arbitrationwithout any hearing.
This Dispute Resolution – Arbitration and Class ActionWaiver, its subject matter, formation and enforceability will be governed bythe Federal Arbitration Act as interpreted by the federal courts, and not anystate law regarding arbitration. The statute of limitations laws of the Stateof Nevada.
The arbitrator, and not any federal, state, or local courtor agency, shall have exclusive authority to resolve all disputes arising outof or relating to the interpretation, applicability, enforceability, orformation of this Section, including but not limited to any claim that all or anypart of this Section is void or voidable, whether a claim is subject toarbitration or the question of waiver by litigation conduct. However, theparties agree that any issue concerning the validity of the class action waiverbelow must be decided by a court, and an arbitrator does not have authority toconsider the validity of the waiver. The arbitrator shall be empowered to grantwhatever relief would be available to you in your individual capacity in acourt under law or in equity, including public injunctive relief. Thearbitrator's award shall be written and shall be binding on the parties and maybe entered as a judgment in any court of competent jurisdiction.
Class Action Waiver
The parties further agree that the arbitration shall beconducted in each party’s respective individual capacity only and not as aclass action or other representative action, and the parties expressly waivetheir right to file a class action or seek relief on a class basis. YOU ANDELAQUA AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER PARTY ONLY INYOUR OR ITS INDIVIDUAL CAPACITY, NEITHER YOU NOR ELAQUA WILL BE ENTITLED TOJOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CONSUMERS IN COURT OR INARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE,CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. If a court orarbitrator finds this Class Action Waiver provision to be unenforceable as to aparticular class or representative action, then this entire Dispute Resolution– Arbitration and Class Action Waiver Section shall be null and void as to thatclass or representative action, and the action may only be brought in courtrather than in arbitration.
Small Claims Court
Subject to the Initial Dispute Resolution Requirement,either party may bring an individual action in small claims court consistentwith the jurisdictional limits that apply to that forum.
You may opt-out of this Dispute Resolution – Arbitration andClass Action Waiver Section within 30 days from the date you electronicallysign this Agreement (your acceptance of these Elaqua Terms provides yourelectronic signature to this Agreement), by sending an email tooptout@Elaqua.com from the email associated with your Elaqua ID with “Opt-Outof Arbitration” in the subject line and, in the body of the email, your fullname and address. You agree that anyrequest will not apply to subsequent agreements between you and Elaqua unlessthe other agreement provides an option to opt out and you follow therequirements outlined in that agreement.
Except as provided in the Class Action Waiver Section above,if any competent legal authority determines any part of this Dispute Resolution– Arbitration and Class Action Waiver Section is illegal or unenforceable, thensuch part will be eliminated and the remainder of this Dispute Resolution –Arbitration and Class Action Waiver Section will remain in force and effect andthe unenforceable part shall be deemed to be modified solely to the extentnecessary to make it enforceable.
This Dispute Resolution – Arbitration and Class ActionWaiver shall survive the end of this Agreement and/or your relationship withElaqua, including the end of any promotion or contest, opt-out of communicationor other use or participation in any Elaqua Product or Service.
Text Messages, Notifications, and Telephone Calls
By agreeing in writing to these Elaqua Terms, you understandthat by providing your wireless telephone number(s) now or in the future, youconsent to being contacted at those numbers or addresses using prerecordedartificial voice messages and/or automatic telephone dial devices. Youunderstand and agree that providing your wireless telephone number andconsenting to receive calls or texts at that number is not a condition of purchase.You also consent to receiving emails to any email address(es) you provide. Youfurther understand and agree that these communications may contain yournon-public information. You explicitly confirm that this consent covers the useof these contact methods to call or send text messages to the wirelesstelephone number(s) and to send text or email messages to the email address(es)you provide, for which you may incur a charge. You can control permission forcalls or texts by contacting customerservice@Elaqua.com.
When you opt-in to Elaqua Alerts by providing your number orasking us to contact you via text message Elaqua will send you a message toconfirm your signup. The frequency of the Elaqua Alerts varies and is dependenton your requests and the related products and services from Elaqua.
Elaqua uses this service to communicate with you and to sendyou notifications about our products and services including appointments orreminders you have requested.
You may cancel at any time. Just text “STOP” in response tothe message from your mobile phone number and Elaqua will send you a finalmessage confirming your choice. If you text “HELP” we will provide instructionson our service and how to unsubscribe.
Elaqua can deliver messages to the following major mobilephone carriers and most other U.S.-based carriers: AT&T, Verizon Wireless,Sprint, T-Mobile, MetroPCS, U.S. Cellular, Alltel, Boost Mobile, Nextel, VirginMobile. Carriers are not liable for delayed or undelivered messages.
Message and data rates may apply for any messages sent orreceived. Texting “STOP” will only control for that specific number and forthis specific service. If you have other concerns, feedback, or want toexercise other rights you have under the law, such as certain other opt-outrights please email customerservice@Elaqua.com.
You agree to defend, indemnify, and hold harmless Elaqua andits affiliates, successors and assigns, and its and their directors, officers,employees, agents, co-branders or other partners from and against any and allallegations, claims, demands, actions, causes of action, proceedings (whetherthreatened or pending), orders, damages, losses, liabilities, costs andexpenses, including reasonable attorney’s fees and other legal expenses, andjudgments of any kind of nature, incurred by Elaqua arising out of or relatingto your use of the Site and/or Services, your violation of these Elaqua Terms,or your violation of any rights of another.
Limitation of Liability
No Consequential or Indirect Damages. EXCEPT AS OTHERWISEPROVIDED BY APPLICABLE LAW, IN NO EVENT SHALL ELAQUA OR ANY OF ITS AFFILIATES,AND THEIR RESPECTIVE OFFICERS, EMPLOYEES, LICENSORS AND PARTNERS BE LIABLE TOYOU OR ANY THIRD PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY,PUNITIVE OR ENHANCED DAMAGES ARISING OUT OF, RELATING TO, OR IN CONNECTION WITHTHESE ELAQUA TERMS, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE;(B) WHETHER OR NOT A PROPOSED DEFENDANT WAS ADVISED OF THE POSSIBILITY OF SUCHDAMAGES; AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE)UPON WHICH THE CLAIM IS BASED.
Maximum Liability. EXCEPT AS OTHERWISE PROVIDED BYAPPLICABLE LAW, IN NO EVENT SHALL ELAQUA’S OR ANY OF ITS AFFILIATES, OR THEIRRESPECTIVE OFFICERS, EMPLOYEES, LICENSORS AND PARTNERS AGGREGATE LIABILITYARISING OUT OF OR RELATED TO THIS THESE ELAQUA TERMS, WHETHER ARISING OUT OF ORRELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEEDTHE TOTAL OF THE AMOUNTS YOU PAID TO ELAQUA PURSUANT TO THESE ELAQUA TERMS.
This extends to your downloading, UPLOADING OR SUBMISSION ofany materials, data, text, images, video or audio from OR TO this Site,including but not limited to any issues caused by viruses, bugs, or anycomputer system, phone line, hardware, software or program malfunctions, or anyother errors, failures or delays in computer transmissions or networkconnections. In the event of any problem with this Site, you agree that yoursole remedy is to cease using the Site.
Elaqua will not be liable or responsible to you, nor bedeemed to have defaulted or breached these Elaqua Terms, and you will not beliable or responsible to Rivain, nor be deemed to have defaulted or breachedthese Elaqua Terms (except for your failure to meet your payment obligations),for any failure or delay in performance under these Elaqua Terms when and tothe extent such failure or delay is caused by or results from acts orcircumstances beyond our or your reasonable control, including, without limitation,acts of God, flood, fire, earthquake, explosion, governmental actions, war,invasion or hostilities (whether war is declared or not), terrorist threats oracts, riot or other civil unrest, national emergency, revolution, insurrection,epidemic, lockouts, strikes or other labor disputes (whether or not relating toour workforce), or restraints or delays affecting carriers or inability ordelay in obtaining supplies of adequate or suitable materials, materials ortelecommunication breakdown or power outage.
If any competent legal authority determines any part ofthese Elaqua Terms is illegal or unenforceable, then such part will beeliminated and the remainder of these Elaqua Terms will remain in force andeffect and the unenforceable part shall be deemed to be modified solely to theextent necessary to make it enforceable.
Vehicle Wireless Connectivity
Elaqua vehicles are internet connected vehicles that usethird-party wireless carrier services to maintain a wireless internetconnection for various purposes. You hereby acknowledge and agree that youraccess to or use (of any kind or for any purpose) of a Elaqua vehicle and/orany connectivity features of such vehicle is subject to these Elaqua Terms.
Further, with respect to any use, purchase, lease, rental orother access to a Elaqua vehicle, you understand and agree that you: (1) haveno contractual relationship with the underlying wireless service carrier; (2)are not a third party beneficiary of any agreement between Elaqua and theunderlying carrier; (3) that the underlying carrier has no liability of anykind to you, whether for breach of contract, warranty, negligence, strictliability in tort or otherwise; (4) that data transmissions and messages may bedelayed, deleted or not delivered, and 911 or similar emergency calls may notbe completed; and (5) the underlying carrier cannot guarantee the security ofwireless transmissions and will not be liable for any lack of security relatingto the use of the services.
Certain in-vehicle features or Services may require enhancedvehicle wireless connectivity at an additional cost to you. We will notify youof any additional costs associated with such in-vehicle features or Services.You hereby acknowledge and agree that your purchase and/or use of suchin-vehicle features or Services is subject to the Elaqua Payment Terms and anyother terms applicable to such in-vehicle features or Services.
Other Applicable Elaqua Terms
In addition to these Elaqua Terms, your use and/or receiptof the Services may be governed by additional terms. The following additionalterms governing vehicle charging, payments for Services, vehicle service,roadside assistance, vehicle and charger warranty information, your ElaquaMembership, and the FleetOS and Elaqua Energy Cloud business portals areincorporated into and made a part of these Elaqua Terms.
Third Party Partner Terms and Conditions
Elaqua offers the ability to access third party servicesincluding roadside assistance, service, connectivity, charging, and otherproducts and Services via Elaqua vehicles, the Elaqua Apps and the Site. Thesethird-party partners may have their own terms and conditions, including paymentterms and privacy policies. You agree that any use of these products, services,or functionality is subject to these additional legal agreements with thosepartners, where applicable.
Elaqua may permanently terminate or temporarily suspend allor part of your access and rights to the Elaqua Services at any time withoutnotice to You.
Updates to the Terms and Conditions
Elaqua may modify these terms and conditions at any timewith or without notice to You. Your continued use of the Site and/or Serviceswill be deemed as acceptance of any such new terms and conditions.
Choice of Law
These Elaqua Terms, its subject matter and its formation,and any related non-contractual disputes or claims, are governed by the laws ofCalifornia, U.S.A., without regard to choice or conflict of law principles ofany jurisdiction, except as otherwise provided in the Arbitration Agreement or thesupplemental terms applicable to your region or a specific product or service.This Choice of Law provision applies only to the interpretation of these ElaquaTerms and is not intended to create any other substantive right tonon-Californians to assert claims under California law or bring claims inCalifornia courts whether that be by statute, common law, or otherwise. Theseprovisions, and except as otherwise provided in the Arbitration Agreement, areonly intended to specify the use of California law to interpret these ElaquaTerms, and these provisions shall not be interpreted as generally extendingCalifornia law to you if you do not otherwise reside in California. Withrespect to Vehicle purchase or service, the law in the State in which Elaqua islicensed to sell motor vehicles that is nearest to your delivery address or thelocation where you actually purchased your vehicle, if different, shall applyto any transactions with that licensed dealership location.
Elaqua’s Intellectual Property
Elaqua is the owner or the licensee of the Site, includingthe source code, and Elaqua Apps, all content of the Site, and all the materialpublished on the Site, as well any newsletter, updates, emails, and/or socialmedia or informational updates and/or postings (collectively “Content”). Elaquaowns or licenses various trademarks, graphics, logos, designs, page headers,button icons, scripts and service names.
You acknowledge and agree that Elaqua’s (i) patents,copyrights, trademarks, service marks, trade secrets, Content and otherintellectual property (collectively, “Intellectual Property”) are solelyElaqua’s property, and (ii) nothing in these Terms shall confer in you anyright of ownership or license rights in our Intellectual Property or theIntellectual Property of Elaqua’s licensors or suppliers. In addition, youshall not now or in the future contest the validity of our IntellectualProperty. Without limiting the previous sentence, the Services, includingwithout limitation all text, graphics, logos, buttons, icons, images, audioclips, and computer programs, are the property of Elaqua or its licensors orsuppliers, and are protected by U.S. and international copyright, trademark andother laws, regulations or treaties. The compilation (meaning the collection,arrangement, and assembly) of all Content associated with the Services is theexclusive property of Elaqua and protected by U.S. and international copyrightlaw. Any unauthorized reproduction, modification, distribution, transmission,republication, display, or performance of the software or the content throughour Services is strictly prohibited.
Subject to your compliance with these Elaqua Terms, Elaquagrants you a personal, non-exclusive, non-transferable, revocable, limitedlicense to use the Sites and the Services solely for your personal or internaluse and subject to the condition that you do not (and do not allow any thirdparty to) copy, modify, create a derivative work from, reverse engineer,reverse assemble, or otherwise attempt to discover any source code, sell,assign, sublicense, grant a security interest in, or otherwise transfer anyright in or access to the Sites, the Services, or any other content availablevia the Sites or the Services. All rights not expressly granted to you in theseElaqua Terms are reserved and retained by Elaqua.
User Content and Standards
If you provide us with any text, graphics, photos or othermaterials or content (“User Content”), you grant us a non-exclusive, perpetual,transferable, irrevocable, assignable, royalty-free, fully paid up,sub-licensable right and license to use, reproduce, distribute, createderivative works from, publicly perform, display, store, digitally perform,make or deliver digital audio transmissions, encode, transcode, publish (online,through the Services, on any other website(s), as well as through mobilechannels, and offline, in print, radio, television or elsewhere), make, havemade, sell, offer for sale, import and commercialize User Content, or anyportion thereof, in any manner and context, in any way, in any and all medianow known or hereinafter developed and on any device(s), whether or notportable, wired, or wireless, without limitation, throughout the universe. Youfurther agree to waive your right to be identified as the author of UserContent and your right to object to derogatory use or treatment of such UserContent. If Elaqua does decide, in its sole discretion, to attribute UserContent to you, you hereby grant Elaqua the right to use your name (and/or anyuser name), image, likeness, and/or photo with respect to such attribution, andyou waive any claims (including, without limitation, any privacy or publicityrights claims) with respect to such use of your name, image, likeness and/orphotos. You hereby agree to waive all claims of moral rights associated withbeing the author of User Content, and to consent to Elaqua doing all acts thatwould otherwise constitute an infringement of your moral rights, as well aswaive the right to inspect or approve the finished video, photograph, soundtrack, web site, advertising copy or printed matter that may be used inconjunction therewith or to the eventual use in any media that it might beapplied. The rights you grant above are irrevocable during the entire period ofthe protection of your intellectual property rights associated with such UserContent. You agree that Elaqua (i) is not under any obligation, whether ofconfidentiality, attribution or otherwise, and will not be liable for any useor disclosure of any User Content; (ii) is under no obligation to post, displayor otherwise use any User Content; (iii) has no obligation whatsoever toprovide you any compensation for the use or display of your User Content orotherwise from the exercise of the rights granted under this Section, even ifElaqua receives compensation therefrom; (iv) has the right (but not theobligation) to monitor the User Content that you or third parties post, and toalter or remove any such User Content; and (v) has the right to disclose UserContent and the circumstances surrounding its transmission to any third partyin order to operate the Services, to protect ourselves and third parties, andto comply with legal obligations or governmental requests.
You are prohibited from posting any libelous, obscene,defamatory, offensive, hateful, sexually explicit/pornographic, violent,promoting of discrimination, misrepresentative of actual identity, or othermaterials that would violate any laws or be deemed inappropriate by Elaqua. Youshall be solely responsible for your own User Content and the consequences ofposting or publishing it. Elaqua may take any action Elaqua reasonably deemsnecessary to cure or prevent any violation of these standards, includingremoval from this Site. In addition, Elaqua will fully cooperate with lawenforcement authorities requesting us to disclose the identity of any suchindividuals.
You represent and warrant that any information you provideto us, to other users, or to visitors, including but not limited to UserContent, (a) is not false, inaccurate, misleading, obscene or defamatory; (b)is not fraudulent; (c) doesn’t involve the sale of counterfeit or stolen items;(d) doesn’t infringe any third party’s copyright, patent, trademark, tradesecret, rights of publicity or privacy, or other right; (e) is yours or youhave the necessary licenses, rights, consents, and permissions to suchinformation and to grant the rights and licenses to Elaqua under all patent,trademark, trade secret, copyright or other proprietary or intellectualproperty rights in and to any and all such information in the mannercontemplated in these Terms; (f) doesn’t violate any law, statute, ordinance orregulation, including without limitation those governing consumer protection,unfair competition, anti-discrimination or false advertising; and, (g) doesn’tcontain any viruses or any programming that is intended to damage, interferewith, intercept or expropriate any system, data or personal information; and(h) is not intended to circumvent or violate the letter and spirit of theseTerms and the lawful functioning of Elaqua’s websites.
You further represent and warrant that you have the writtenconsent, release, and/or permission of each and every person identified in anyinformation you provide, including but not limited to User Content, to use thename or likeness of such person or, if such persons are minors, the writtenconsent, release, and/or permission of such minor’s parent or legal guardian.
By submitting ideas, suggestions, documents, and/or proposals(“Contributions”) to Elaqua, you acknowledge and agree that: (a) yourContributions don’t contain confidential or proprietary information; (b) Elaquaisn’t under any obligation of confidentiality, express or implied, with respectto the Contributions; (c) Elaqua shall be entitled to use or disclose (orchoose not to use or disclose) such Contributions for any purpose, in any way,in any media now known or later developed and throughout the universe; (d)Elaqua may have something similar to the Contributions already underconsideration or in development; (e) your Contributions automatically becomethe property of Elaqua without any obligation of Elaqua to you; and (f) Elaquais free to use any ideas, concepts, or techniques that you send Elaqua for any purpose,including but not limited to, developing and marketing products thatincorporate such ideas, concepts or techniques; and (g) you aren’t entitled toany compensation or reimbursement of any kind from Elaqua under anycircumstances.
Subject to your compliance with these Elaqua Terms, Elaquagrants you a limited, non-exclusive, non-sublicensable, revocable,non-transferable license to download, install, access and use the Elaqua MobileApplication and/or other applications offered by Elaqua (“Elaqua Apps”) and thecontent available on the Elaqua Apps on your personal or corporate-approveddevice solely in connection with your use of Elaqua’s products or services. Anyrights not expressly granted herein are reserved by Elaqua and Elaqua’slicensors.
You shall not (a) copy the Elaqua Apps, except as expresslypermitted by this license; (b) modify, translate, adapt, or otherwise createderivative works or improvements, whether or not patentable, of the ElaquaApps; (c)reverse engineer, disassemble, decompile, decode, or otherwise attemptto derive or gain access to the source code of the Elaqua Apps or any partthereof; (d)remove, delete, alter, or obscure any trademarks or any copyright,trademark, patent, or other intellectual property or proprietary rights noticesfrom the Elaqua Apps, including any copy thereof; (e)rent, lease, lend, sell,sublicense, assign, distribute, publish, transfer, or otherwise make availablethe Elaqua Apps, or any features or functionality of the Elaqua Apps, to anythird party for any reason, including by making the Elaqua Apps available on anetwork where it is capable of being accessed by more than one device at anytime; or (f)remove, disable, circumvent, or otherwise create or implement anyworkaround to any copy protection, rights management, or security features inor protecting the Elaqua Apps; or (g) use the Elaqua Apps in, or in associationwith, the design, construction, maintenance, or operation of any hazardousenvironments or systems, including any power generation systems; aircraftnavigation or communication systems, air traffic control systems, or any othertransport management systems; safety-critical applications, including medicalor life-support systems, vehicle operation applications or any police, fire, orother safety response systems; and military or aerospace applications, weaponssystems, or environments.
You acknowledge and agree that the availability of theElaqua Apps may be dependent on the third party from which you received theapplicable Elaqua Apps’ license, e.g., the Apple iPhone or Android app stores(“App Store”). You acknowledge and agree that these Elaqua Terms are betweenyou and Elaqua and not with the App Store and that Elaqua is responsible forthe provision of products and services as described in these Elaqua Terms.However, if you downloaded the Elaqua Apps from the Apple App Store, Apple andits subsidiaries are third-party beneficiaries of this agreement. Upon youracceptance of these Elaqua Terms, Apple shall have the right (and will bedeemed to have accepted the right) to enforce these Elaqua Terms against you asa third-party beneficiary thereof. These Elaqua Terms incorporate by referenceApple’s Licensed Application End User License Agreement, for purposes of which,you are “the end-user.” In the event of a conflict in the terms of Apple’sLicensed Application End User License Agreement and these Elaqua Terms, theseElaqua Terms will control.
Elaqua has no obligation to provide you with updates orupgrades to the Elaqua Apps and Services. Elaqua may remove or deprecate all orpart of the features or functionality from the Elaqua Apps and/or Services atits sole discretion and without obligation or notice to you.
Do not use the Elaqua Apps during the operation of anautomobile or any activity which requires your full attention. You must observeall traffic laws and only use the Elaqua Apps while your automobile isstationary and parked.
You acknowledge and agree that the Elaqua Apps are providedunder license, and not sold, to you. You do not acquire any ownership interestin the Elaqua Apps under these Elaqua Terms, or any other rights thereto otherthan to use the Elaqua Apps in accordance with the license granted, and subjectto all terms, conditions, and restrictions, under these Elaqua Terms. Companyand its licensors and service providers reserve and shall retain their entireright, title, and interest in and to the Elaqua Apps, including all copyrights,trademarks, and other intellectual property rights therein or relating thereto,except as expressly granted to you in these Elaqua Terms.
Open Source Software
Software embedded or accessed by the Elaqua MobileApplication may utilize open source software. Please see the Elaqua Open Sourcepages for more information.
Collection and Use of Your Information
You acknowledge that when you download, install, or use theElaqua Apps, Elaqua may use automatic means (including, for example, cookiesand web beacons) to collect information about your mobile device and about youruse of the Elaqua Apps. You also may be required to provide certain informationabout yourself as a condition to downloading, installing, or using the ElaquaApps or certain of their features or functionalities. All information wecollect through or in connection with the Elaqua Apps is subject to the privacypolicy linked in the applicable app. By downloading, installing, using, andproviding information to or through the Elaqua Apps, you consent to all actionstaken by us with respect to your information in compliance with the applicableprivacy policies.
The Site may contain hyperlinks (“links”) to web sitesoperated by persons or entities other than Elaqua (“third-party Web Sites”) orto co-branded web sites operated by a third party, including affiliates(“co-branded web sites”). We provide such links for your reference andconvenience only. A link from Elaqua to a third-party web site does not implyor mean that we endorse the content on that third-party or co-branded web siteor the operator or operations of that web site. You are solely responsible fordetermining the extent to which you use any content at any third party orco-branded web sites to which you might link from the Site. ELAQUA IS NOTRESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES INCURRED AS A RESULT OF ANYDEALINGS WITH ANY THIRD-PARTY WEB SITE OR CO-BRANDED WEB SITE, ANY MERCHANT OROPERATOR OF A THIRD-PARTY WEB SITE OR CO-BRANDED WEB SITE, OR ANY OTHER PERSONWITH WHOM YOU ENGAGE IN ANY TRANSACTION.
In addition, portions of the Site may be electronicallyhosted by other third-party service providers. Elaqua has, unless explicitlyindicated otherwise, no control over the content or functionality of thosesites and resources. Elaqua does not endorse, guarantee, or make anyrepresentations or warranties regarding any other website, content, ormaterials or information accessible from any other website.
Children’s Online Privacy Protection Act
The Site is not designed or intended to collect informationfrom children under the age of 13. Elaqua does not knowingly collect ormaintain any information from children under the age of 13. The Site is notdesigned with the purpose of attracting any person under age 13. To respect theprivacy of children and to comply with the Children's Online Privacy ProtectionAct, if you are under the age of 18, you should only use the Site with theinvolvement of a parent or guardian.
No Reliance on Information
Elaqua’s Site provides no information which can be used forinvestment and/or transactional decisions. The Content is provided forinformation only and is of a general and approximate nature and it is notintended to amount to, nor is, information or advice on which you should rely.In particular, the Content does not constitute professional, financial orinvestment advice. Professional or specialist advice should be obtained beforetaking, or refraining from, any action on the basis of the Content. Elaqua isnot acting, nor is it seeking to act, as a broker or dealer in respect of anysecurities of any companies or the information concerning such companies.
Cautionary Statement Regarding Forward-Looking Statements
Elaqua’s web pages, blog posts, stories, news, updates,posts, press releases, presentations, audio and video files of events (whetherlive or recorded) and other documents, photographs and videos on our websiteand in our social media postings contain, among other things, forward-lookingstatements that reflect management's current expectations, intentions,assumptions, plans and beliefs with respect to future events or plans. Thewords "anticipate," "assume," "believe," “could,”"estimate," "expect," “going forward,” "intend,""may," "plan," "project," “seek,” "should,"“will,” “would,” and similar expressions, identify forward-looking statements(though the absence of such words does not mean that a statement is notforward-looking). Such statements are subject to risks and uncertainties, andmay change over time. These forward-looking statements reflect management’sviews at the time such statements were made and are not guarantees of anyoutcome or result or any future performance, prospects or developments. Elaquaand its management do not intend to (and Elaqua expressly disclaims anyobligation to) update or otherwise revise such forward-looking statements, whetheras a result of new information, future events or otherwise. You are stronglycautioned that reliance on any forward-looking statements involves known andunknown risks and uncertainties, and any or all of our forward-lookingstatements may ultimately be inaccurate or incorrect. Accordingly, you shouldnot place undue reliance on any forward-looking statements, which are currentonly as of the date such statements are made. All forward-looking statements onour website and in our social media postings are qualified by reference to thiscautionary statement section.
THE SITE IS PRESENTED “AS IS” AND NO WARRANTIES OF ANY KIND,EXPRESS OR IMPLIED, ARE MADE REGARDING THE CONTENT OF THE SITE OR ANY MATERIALSPUBLISHED ON THE SITE.
Specifically, without limitation, Elaqua does not warrantthat you will be able to use the Site or that any portion of this Site will befree of viruses, Trojan horses, or other technical defects.
In addition, it is your responsibility to check that theSite’s content is accurate and/or complete. The Site may be updated from timeto time and may change its content at any time. Although Elaqua makesreasonable efforts to update the information on the Site, it makes norepresentations, warranties or guarantees, whether express or implied, that theContent is accurate, complete or up-to-date.
Local Regulatory Restrictions
The Site is not directed at any person in any jurisdictionwhere (by reason of nationality, residence or otherwise) the access to oravailability of the Site is prohibited or which would be subject to anyrestriction, including registration or other requirements within suchjurisdiction. Elaqua reserves the right to limit access to the Site to any suchpersons. Persons who access the Site do so on their own initiative and areresponsible for compliance with applicable law. If in doubt, you should seekindependent legal advice.
Accessing and Using the Site
It is not guaranteed that the Site, or any content on it,will always be available or be uninterrupted. Access to the Site is permittedon a temporary “as is” basis. All or any part of the Site, without notice, maybe suspended, withdrawn, discontinued, removed or changed. Elaqua will not beliable to you if for any reason the Site (or any portion thereof) isunavailable (temporarily or permanently) at any time or for any period.
Third party logos, trademarks, stock images, and inventions are the property of the third party and are subject to their terms and conditions.
You are responsible for making all arrangements necessaryfor you to have access to the Site. You are also responsible for ensuring thatall persons to whom you provide access to the Site are made fully aware ofthese Elaqua Terms and other applicable terms and conditions, and that theycomply fully with them.
You may only use the Site for lawful purposes.
Considerations for Non U.S. Customers
Elaqua’s headquarters are located in the United States, andthe Site is based in the United States. Please be aware that information youprovide to us, or that we obtain as a result of your use of the Site, may beprocessed and transferred to the United States and be subject to United Stateslaw. The privacy and data protection laws in the United States may not beequivalent to such laws in your country of residence. By using the Site, or byproviding us with your information, you consent to this collection, transfer,storage, and processing of information to and in the United States.
Digital Millennium Copyright Act Notice
Elaqua complies with the notice-and-takedown procedures setout in Section 512(c) of the United States Digital Millennium Copyright Act(DMCA), which applies to content reported and removed for violating U.S.copyrights. If you are a copyright owner and believe that any User Contentinfringes upon your copyrights, you may submit a notification pursuant to theDMCA by providing Elaqua’s Copyright Agent with the following information inwriting:
The physical or electronic signature of a person authorizedto act on behalf of the owner of an exclusive right that is allegedlyinfringed;
Identification of the copyrighted work claimed to have beeninfringed, or, if multiple copyrighted works are covered by a singlenotification, a representative list of such works;
Identification of the material that is claimed to beinfringing or to be the subject of infringing activity and that is to beremoved or access to which is to be disabled and information reasonablysufficient to permit Elaqua, the service provider, to locate the material;
Information reasonably sufficient to permit Elaqua tocontact you, such as an address, telephone number, and, if available, an emailaddress;
A statement by you that you have a good faith belief thatuse of the material in the manner complained of is not authorized by thecopyright owner, its agent, or the law; and
A statement, under penalty of perjury, that the informationin the notification is accurate that you’re authorized to act on behalf of theowner of an exclusive right that is allegedly infringed.
You must provide notice of claimed infringement to Elaqua’sdesignated Copyright Agent at: legal@Elaqua.com. You acknowledge that if youfail to comply with all of the requirements of this Section, your DMCA noticemay not be valid.
If you believe that your User Content that was removed (orto which access was disabled) is not infringing, or that you have theauthorization from the copyright owner to post and use the material in yourUser Content, you may send a counter-notice containing the followinginformation to the Copyright Agent at the address(es) listed above:
Your physical or electronic signature;
Identification of the User Content that has been removed orto which access has been disabled and the location at which the User Contentappeared before it was removed or disabled;
A statement that you have a good faith belief that the UserContent was removed or disabled as a result of mistake or a misidentification;and
Your name, address, telephone number, and e-mail address.
If a counter-notice is received by Elaqua’s Copyright Agent,Elaqua may send a copy of the counter-notice to the original complaining partyinforming that person that it may replace the removed User Content or ceasedisabling it in ten (10) business days. Unless the copyright owner files anaction seeking a court order against the User Content provider, member or user,the removed User Content may be replaced, or access to it restored, in ten (10)to fourteen (14) business days or more after receipt of the counter-notice, atElaqua’s sole discretion.