End User License Agreement

Last Updated July 1, 2022
This End User License Agreement (“Agreement”) forms a legal agreement between you (including, if applicable, any legal entity which you represent or act for) (“End User”, “You”, or “Your”) and Aquabyte, Inc. (“,” “We,” “Our” or “Us”) and sets forth the terms and conditions governing Your access to and use of the Service (as defined below). If you are entering into this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind such company or entity to this Agreement, in which case the term “End User,” “You,” or “Your” shall refer to such entity. By clicking through these terms online upon downloading the Software, or by entering into an Order Form (as defined below), or by using the Service or Software, You agree that you have read, understood, and agree to be bound by this Agreement, as may be amended by Aquabyte from time to time. Aquabyte may provide you with notice of material changes to this EULA. Your continued use of the Services and/or Software constitutes your acceptance to the amended terms. This Agreement shall apply to any order form, sales quotation, proposal, purchase order, or other ordering document that references this Agreement (each an “Order Form”), as may be applicable.

Definitions

“Authorised User”: Client’s employees or other persons with a required need to use the Product Package in order to perform their duties for the Client.

“Aquabyte Materials”: The Hardware, Software, Statistics, Generated Data, and associated Know-How and documentation.

“Agreement“: These general terms and conditions and the Order Confirmation.

“Agreement Period“: Duration of the Agreement as specified in the Order Confirmation and any new contract periods.

“Client“: The legal entity listed in the Order Confirmation.

“Client Data“: Raw data collected specifically in connection with the Client’s use of the Product Package, for instance, Client information obtained via video recordings of the number of dead fish and fish meal quantity.

“Confidential information“: Any non-public, proprietary information the parties obtain in relation to the Agreement and the performance of the Agreement. .

“Critical Error“: a major error in the Product Package of great significance to the Client, which cannot reasonably be circumvented and which substantially limits the Client’s ability to use the Product Package, e.g., the Software cannot be used.

“Force Majeure event”: Extraordinary circumstances beyond the control of the parties that prevent the parties from fulfilling their obligations under the Agreement, such as environmental impact causing very limited visibility in the water (e.g. algae growth), natural disasters, fire, floods, war, strikes, earthquakes, public injunctions, epidemics and prohibitions. A Force Majeure incident does not include circumstances that the parties should reasonably be expected to avoid or overcome the consequences of.

“Generated Data“: All information and data generated by Aquabyte via analyses and reports of the Client Data.

“Hardware“: All hardware the Client shall use and receive pursuant to the Order Confirmation, including the underwater camera and winch. This includes hardware required as a minimum to use the camera, such as attachments, cables, power cabinets and antennas.

“Intellectual Property Rights“: Patents, copyrights, trade secrets, trademarks and designs, as well as any applications for patents, copyrights, trade secrets, trademarks and designs and the right to submit such applications, intellectual property, software, databases, corporate secrets, Repairs, Know-how and similar rights that may be obtained under Norwegian or other country’s law.

“Know-how“: Any knowledge, information, data and experience related to the Product Package.

“Order Confirmation“: Order Confirmation signed by the Client when ordering Aquabyte’s Product Package. By signing the Order Confirmation the Client accepts the terms and conditions of the Agreement.

“Personal Data“: The term shall have the meaning as provided by applicable privacy law.

“Product Package”: The Product Package as defined in the Order Confirmation, including any Hardware and Software products noted therein, or otherwise provided by Aquabyte to Client.

“Repairs“: Repairs, modifications and/or developments of the Product Package.

“Software”: Aquabyte’s cloud-based software which, inter alia, is used to generate Client Data analyses and reports. The Software is available to the Client via Aquabyte’s web portal.

“Statistics”: De-identified, aggregated information related to the Client’s use of Aquabyte’s Product Package which is collected and processed by Aquabyte.

“Updates“: Any update and modification of the Software. Updates do not include services offered by Aquabyte as additional services to the Product Package.

LICENCE TO THE SOFTWARE AND HARDWARE

During the Agreement Period, Aquabyte grants the Client and its Authorised Users a non-exclusive, non-transferable and non-sublicensable licence to use the Software and Hardware during the Agreement Period for purposes related to the Client’s aquaculture activities.

Each Authorised User will be provided with a user identity including user name and password. The Client is responsible for ensuring safety and confidentiality of its account information. The number of Authorised Users may not exceed the number stated in the Order Confirmation. If Aquabyte suspects that an Authorised User is using the Product Package for other purposes than the Client’s aquaculture activities, or is otherwise in violation of this Agreement, Aquabyte, in its discretion, may terminate the Authorised User’s access to the Product Package or bill Client for those overages at a pro-rated amount for the remainder of the applicable Agreement Period, based on Aquabyte’s then-current standard pricing. Such termination is in addition to other claims Aquabyte may have towards the Client. Client shall be liable for the acts and omissions of its Authorised Users.

Except as otherwise expressly provided in this Agreement, Client shall not (and shall not permit any third party to): (a) sublicense, sell, resell, transfer, assign, distribute, share, lease, rent, make any external commercial use of, outsource, use on a timeshare or service bureau, or use in an application service provider or managed service provider environment, or otherwise generate income from the Aquabyte Hardware and Software; (b) copy the Aquabyte Software onto any public or distributed network, except for an internal and secure cloud computing environment; (c) cause the decompiling, disassembly, or reverse engineering of any portion of the Aquabyte Software or Hardware or attempt to discover any source code or other operational mechanisms of the Aquabyte Software or Hardware (except where such restriction is expressly prohibited by law without the possibility of waiver, and then only upon prior written notice to Aquabyte); (d) copy, modify, adapt, translate or create derivative works based on all or any part of the Aquabyte Software or Hardware; (e) use any third party software other than with the Aquabyte Software as provided; (f) modify any proprietary rights notices that appear in the Aquabyte Materials or components thereof; (g) publish the results of any Generated Data obtained from the Software; (h) use the Aquabyte Materials in violation of any applicable laws and regulations (including any export laws, restrictions, national security controls and regulations and Intellectual Property laws); (i) use the Aquabyte Materials to violate, or encourage others to violate, the rights of third parties, including rights of privacy or otherwise use the Aquabyte Materials apart from the specific uses specified herein; (j) use the Aquabyte Materials to perform any fraudulent activity; (k) intentionally interfere with or damage operation of the Aquabyte Hardware and Software, including by uploading or disseminating viruses or other malicious code, or (l) import to the Software or Hardware any materials, data or other content that is unlawful. Client shall indemnify, defend and hold Aquabyte harmless from any third party claims, liabilities, losses and damages, including reasonable legal expenses, relating to or arising from breach of the restrictions and/or obligations in this Agreement.

Leasing of hardware

Pursuant to the Order Confirmation, the Product Package is offered via a bank financed leasing program. This entails that the camera and winch portion of the Hardware are leased to the Client during the Agreement Period. The leasing program terms are governed by the agreement between the Client and the relevant financial institution.

Property rights – General

Except as expressly stated in the Agreement, this Agreement does not alter the property rights or rights of disposal held by the parties prior to the conclusion of the Agreement. Aquabyte and its suppliers own and shall retain all proprietary rights, including all Intellectual Property Rights, in and to the Aquabyte Materials. Client acknowledges that the rights granted under this Agreement do not provide Client with title to or ownership of the Aquabyte Materials. The Aquabyte Materials are protected by all relevant Intellectual Property Rights and applicable laws and are the property of Aquabyte or its third party licensors. Except as expressly authorized by Aquabyte, Client may not make use of the Aquabyte Materials. Aquabyte reserves all rights to the Aquabyte Materials.

Property rights – Data

Client Data. Client is the owner of the Client Data. Client hereby gives Aquabyte a non-exclusive, perpetual right to use the Client Data in connection with the Client’s use of the Product Package, including Client Data analyses and modifications in order to establish the Generated Data, and in connection with establishing the Statistics or other de-identified uses. The Client Data shall be considered Client’s Confidential Information and never sold to third parties.

Generated Data. Aquabyte is the owner of the Generated Data. Aquabyte grants Client a non-exclusive, non-sublicensable, non-transferrable and perpetual right to use the Generated Data for purposes related to the Client’s aquaculture activities. Aquabyte does not make any warranties or guarantees relating to the content of the Generated Data, including information accuracy.

Statistics. Aquabyte is the owner of the Statistics, and may use the Statistics for any purpose, including sharing the de-identified Statistics, e.g., via publications, public documents and reports.

Updates

Aquabyte may during the Agreement Period and at its own discretion and without prior notice perform Updates on the Product Package. Updates may include function or technical modifications to the Software, including as required in order to comply with national standards and requirements, to protect the safety of the Software, and for environmental, health or safety purposes. The Client undertakes to contribute to such Updates.

Additional client obligations

The Client is responsible for having the necessary power supply, network infrastructure, internet connection, including necessary bandwidth and other services or equipment required to use Aquabyte’s Product Package

To ensure best performance of the Product Package, Client agrees to strictly follow the User Manual and any directions, advice or instructions from Aquabyte regarding proper use of the Product Package. Client agrees to treat the Product Package with the utmost care. Customer shall be responsible for the costs of repair or replacement for any damage it causes to the Hardware.

Payment

Client shall pay fees as described in the Order Confirmation. Except as otherwise stated in the Order Confirmation, fees are due within 15 days of the invoice date. Except for termination for breach, all payment obligations are non-cancellable and all amounts paid are non-refundable. The fees are exclusive of any taxes, levies, or duties imposed by taxing authorities, if any, and Client shall be responsible for payment of all such taxes, levies or duties, excluding taxes based on Aquabyte’s income. Client shall pay interest on any payments not received by the due date at a rate of the lesser of 1.5% per month or the maximum amount allowed by law.

Service level

Aquabyte agrees to fix any Critical Errors, as determined in its sole discretion, in the Software or Hardware. In such a case, Aquabyte agrees to repair or substitute, in its discretion, all or parts of the non-conforming Hardware and/or Software within a commercially reasonable time frame. This is Client’s sole remedy for Critical Errors in the Hardware or Software.

Aquabyte is not required to fix any errors or defects due to one or more of the following circumstances:

• (a) modifications or combinations made by the Client without approval from Aquabyte;
• (b) errors and defects that are due to negligent or intentional actions by the Client;
• (c) Client’s erroneous use, including any violation of Aquabyte’s Instruction and User Manual, failing to contribute to Updates or otherwise failing to follow any of Aquabyte’s instructions on use;
• (d) errors and defects caused by Force Majeure;
• (e) cases where the Client does not assist Aquabyte in rectifying or repairing the Product Package;
• (f) any errors or failures in Client’s operating systems, hardware and/or third party software not provided by Aquabyte, e.g., failure of cloud providers;
• (g) incorrect data or data entry by the Client;
• (h) camera obstructions preventing capture of useable imagery; or
• (i) failure of camera to be in proper position per User Manual or Aquabyte employee instructions.

EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE PRODUCT PACKAGE, INCLUDING ALL AQUABYTE MATERIALS, AND DATA ARE PROVIDED ‘AS IS’ AND AQUABYTE AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE WITH RESPECT THERETO, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGMENT, OR THE CONTINUOUS, UNINTERRUPTED, ERROR-FREE, VIRUS-FREE ACCESS TO THE PRODUCT PACKAGE. AQUABYTE EXPRESSLY DISCLAIMS ANY WARRANTY AS TO THE ACCURACY OR COMPLETENESS OF ANY INFORMATION OR DATA ACCESSED OR USED IN CONNECTION WITH THIS AGREEMENT. AQUABYTE DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND LIABILITY WITH RESPECT TO ANY RELATIONSHIP CLIENT MAY HAVE WITH A THIRD PARTY FINANCIAL INSTITUTION.

limitation of liability

LIMITATION OF INDIRECT LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND NO MATTER THE THEORY OF LIABILITY, AQUABYTE SHALL NOT BE LIABLE TO THE CLIENT OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES. INDIRECT LOSSES INCLUDE, BUT ARE NOT LIMITED TO, LOST PROFITS OF ANY KIND, LOSSES DUE TO DATA LOSS, LOST SAVINGS OR CLAIMS FROM THIRD PARTIES, INCLUDING CLAIMS FROM A THIRD PARTY SUPPLIER AS A RESULT OF CLIENT’S BREACH OF THIRD PARTY TERMS.

LIMITATION OF DAMAGES AMOUNT. TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND NO MATTER THE THEORY OF LIABILITY, AQUABYTE’S TOTAL LIABILITY TOWARDS THE CLIENT OR ANY THIRD PARTY WHICH ARISES FROM OR IS RELATED TO THIS AGREEMENT OR AQUABYTE’S PRODUCT PACKAGE, MAY UNDER NO CIRCUMSTANCES EXCEED THE TOTAL FEES THE CLIENT HAS PAID TO AQUABYTE DURING THE 12 MONTHS PRIOR TO THE DATE OF THE CLAIM.

Data protection

The parties undertake to process the Personal Information they receive in connection with the Agreement in accordance with applicable privacy law.

REPRESENTATIONS AND WARRANTIES

Each party represents and warrants that it has the right to enter into this Agreement and any Order Confirmation, and doing so will not interfere with its contractual obligations to any third party, and the executed Agreement or Order Confirmation shall constitute a valid binding obligation of such party.

transfer of rights and obligations

The Client may transfer its rights and obligations under this Agreement only upon written approval from Aquabyte. The requirement for written approval from Aquabyte also applies if the transfer is to the Client’s subsidiary or another company within the Client’s group, or if the Client demerges into several companies, as well as if the Client merges with another company.

confidentiality

Each Party (each a “disclosing party” when disclosing information or 
a “receiving party” when receiving information) shall treat all Confidential Information confidential, and shall not make Confidential Information known to any third parties without written approval from the other Party, except as expressly provided herein. The Parties undertake to ensure that the Confidential Information is only shared with employees, agents, or contractors (“Representatives”) with the need to know such information in order to perform the obligations under this Agreement, provided that such Representatives are bound by written confidentiality obligations at least as protective as the those set forth in this Agreement and the receiving party is liable for the acts and omissions of its Representatives in breach of this Agreement. For the avoidance of doubt, the Aquabyte Materials are the Confidential Information of Aquabyte. The Client Data is Confidential Information of Client.

Each party shall implement organizational, technical and administrative measures to ensure that Confidential Information is not made available to third parties.

Aquabyte is entitled to verify Client’s information relating to such measures and general compliance with this Agreement, including the right, upon prior notice to Client, to access and review Client’s records relating to this Agreement. Client agrees to participate with Aquabyte in connection with such review, including promptly providing any requested information.

The duty of confidentiality under this item shall not prevent the communication of information which the Parties are obligated to share pursuant to law or regulations. To the extent legally permissible, the other Party shall be notified before such information is shared.

The duty of confidentiality shall survive termination of the Agreement.

Client support

Provided that the Client complies with the terms and conditions of the Agreement, Aquabyte will, to a reasonable extent, offer its Clients free general technical support via telephone from 08.00 to 16.00 CET Monday to Friday, with the exception of local and national holidays. For Critical Errors, Aquabyte offers client support by telephone and, if Aquabyte deems it necessary, on-site support.

Requirements to written communication

All notifications, claims and other communication between the parties related to this Agreement shall be made in writing to the email addresses mentioned in the Order Confirmation.

duration and termination

Duration. The duration of the Agreement follows from the Agreement Period as stated in the Order Confirmation. The Product Package, including each Software and Hardware product provided in the Order Confirmation, shall automatically renew for additional Agreement Periods of the same duration and at a price equal to the then-current list price; excluding any first-time installation fees, items sold at no cost and/or other discounts containing the words “one-time”, and unless either party requests termination by written notice at least thirty (30) days prior to the end of the then-current term (such notice must be provided by Client to orders@Aquabyte.com).

Termination. Each Party may terminate this Agreement if the other party is in material breach of the Agreement and is unable to remedy such material breach no later than 30 days after written notice of the breach. A circumstance is considered a material breach, inter alia, if the Client fails to pay the fee with the addition of interest on overdue payment within 30 (thirty) calendar days after due date.

Obligations that apply at termination of the Agreement. Upon termination of the Agreement, the Client shall promptly return all material belonging to Aquabyte, including all Hardware and any associated documentation. The Client is also obliged to immediately cease using and delete any Software belonging to the Company. Outstanding payment obligations and any other sections which by their nature naturally survive termination are maintained after termination of the Agreement. In addition to Aquabyte’s rights hereunder, Aquabyte may, in its discretion, immediately suspend use of the Product Package if Client is in breach of this Agreement.

FORCE MAJEURE

If the fulfilment of the Parties’ obligations (except for payment) under this Agreement is prevented due to a Force Majeure event, the other party may not invoke remedy for breach.

In the event of a Force Majeure event, the Parties may only terminate the agreement with the counterparty’s consent or if the Force Majeure event is assumed to last longer than 90 (ninety) days, calculated from the time the event occurs. The Parties may not invoke any other claims towards each other because of termination of the Agreement pursuant to this provision. Each party shall give prompt notice of any Force Majeure event.

Governing law and legal venue

This Agreement is governed by Delaware law.

Any disputes related to this Agreement, including the interpretation, formation, validity, construction, performance, breach or termination of this Agreement, shall be resolved by binding international arbitration in accordance with the JAMS International Arbitration Rules and Procedures then in effect. Arbitration shall be held before one arbitrator. The arbitrator may grant injunctions or other relief in connection with such dispute, and the decision of the arbitrator shall be final and binding. The language of arbitration shall be English. Arbitration shall be conducted in New York, New York USA unless otherwise agreed to by the parties.

Notwithstanding anything to the contrary, Aquabyte may, in addition to any right or remedy available, petition for equitable relief in order to protect its Intellectual Property rights in any court of competent jurisdiction.

General

The parties understand that this Agreement may be translated in other languages, and agree that in the event of a conflict in interpretation between the translations, the English version shall prevail. This Agreement, together with the Order Confirmation or any exhibits and appendices thereto, is the entire Agreement between the parties and supersedes any prior agreements, whether written or oral, with respect to the subject matter herein. No provision of this Agreement may be waived unless in writing signed by the waiving party and a waiver of one provision shall not be deemed a waiver of another provision. To the extent any of the provisions or subparts thereof are held to be invalid, that provision or sub-part shall be severed, and the remainder of the Agreement shall continue in full force and effect.