TERMS AND CONDITIONS FOR HACH SERVICES

1. BY ACCESSING THE HACH CLAROS SERVICES DESCRIBED HEREIN (“SERVICES”) YOU (THIS TERM TO BE UNDERSTOOD AS ANY PERSON OR ENTITY DEPLOYING THE SERVICES, HEREINAFTER COLLECTIVELY OR SEVERALLY (AS THE CONTEXT REQUIRES) REFERRED TO AS “CUSTOMER”) AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS DO NOT ACCESS THE SERVICES.

These Terms and Conditions shall supersede any conflicting terms and conditions of Customer.  HACH’s commencement of provision of Services shall not be construed as acceptance of a Customer order containing or referencing Customer terms and conditions. 

2. LIMITED LICENSE

For as long as the Services are provided, HACH grants Customer a non-exclusive, non-transferable, non-sublicensable, limited, revocable license to access Customer’s Web Page through HACH’s network, solely for (a) Customer's internal business operations and (b) accessing Customer Data (as per the definition thereof provided in Section 5 after) retrieved from Customer’s Monitoring Sites by the Sensor Equipment.  HACH grants no rights other than those described herein, and HACH reserves and retains (in its name and/ or on behalf of its licensors) all title, copyright and other proprietary rights in the Services and the Customer’s Web Page, including all updates, custom modifications and derivatives, all of which shall become the property of HACH or its licensors.  For a definition of the terms “Customers Web Page”, “Customers Monitoring Sites” and “Sensor Equipment” used hereinabove refer to the Description of Services provided in Section 8 hereof.

3. SERVICES

Restrictions and Requirements.  Customer shall be responsible for all activities that occur under its Authorized Customer User accounts.  Customer shall:  (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services, and notify HACH promptly of any such unauthorized use; (iii) adhere to all Customer requirements set forth in the Description of Services; and (iv) comply with all applicable local, state, federal, and foreign laws when using the Services and, if using the Services outside of the United States, not use the Services in a manner that would violate any federal or state laws of the United States if conducted therein.

Use Guidelines: Customer shall and shall cause its Administrative and Authorized Customer Users to use the Services solely for its own internal business purposes as contemplated by these Terms and Conditions and shall not permit use of the Services by any third party. Without limitation, Customer shall not:  (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third party, other than as contemplated by these Terms and Conditions; (b) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (c) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violating third party privacy rights; (d) send or store material containing software viruses, worms, Trojan Horses or other harmful computer code, files, scripts, agents or programs; (e) interfere with or disrupt the integrity or performance of the Services, the data contained therein or the web page of other HACH customers; (f) attempt to gain unauthorized access to the Services, its related systems or networks or the web page or data of other HACH customers; or (g) cause or permit the reverse engineering, disassembly or decompilation of the Services or of Customer’s Web Page.  Customer shall not (h) modify, copy or create derivative works based on the Services or HACH technology; (i) create Internet "links" to or from the Services, or "frame" or "mirror" any content forming part of the Services, other than on Customer's own, fully controlled intranets or otherwise for its own internal business use for the purposes set forth in the Agreement; or (j) disassemble, reverse engineer, or decompile the Services or HACH technology, or access it in order to (I) build a competitive product or service, (II) build a product or service using similar ideas, features, functions or graphics of the Service, or (III) copy any ideas, features, functions or graphics of the Service.

4. ACCEPTABLE USE POLICY (AUP)

Customer agrees to comply with and cause its employees, officers and agents to comply with the Use Guidelines as per Section 3 hereinabove and HACH’s Acceptable Use Policy (“AUP”) as communicated to Customer from time to time. If Customer does not comply with the AUP, HACH may restrict, suspend, refuse access and/or, following a prior notice and cure period of no less than ten (10) calendar days, restrict or suspend access.

5. OWNERSHIP AND USE OF SENSOR DATA

Customer represents and warrants that it has sufficient rights to transmit, store, copy, and use all data and software provided by Customer (“Customer Materials”) and used by Customer with the Services. Customer will obtain all necessary consents to allow HACH to use and process Customer Materials as set forth in these Terms and Conditions. Customer is responsible for evaluating the sufficiency of the security provided by HACH under these Terms and Conditions to its own satisfaction. In respect of data that is measured, captured, processed or transmitted by Customer´s Webpage, Customer´s Monitoring Site and/ or Sensor Equipment (“Sensor Data”), Customer  authorizes HACH and grants HACH a non-exclusive, worldwide, royalty-free, perpetual, revocable license to use, compile, distribute, display, store, process, reproduce, and create derivative works of Sensor Data (i) as needed for provision of the Services and/ or operation and maintenance of the Sensor Equipment or any other HACH device or other device provided by Customer to HACH as part of HACH’s standard administration of the Services, or for operation or maintenance of the Customer Webpage, specifically to view, store, copy, and delete any information sent to, from, or stored on the Customer Web Page, and (ii) to use and exploit the Sensor Data for use in a aggregated, unidentifiable form together with similar data furnished by third parties, solely to facilitate marketing, sales, technical support, and R&D activities of HACH and its affiliates and/ or to create new data products.

Customer will provide and maintain all hardware, software and network connectivity needed to access the internet and the Services, and Customer will use best efforts to ensure that such hardware, software and network connectivity will at all times meet the minimum standards set forth in the Description of Services. HACH shall not be liable for any non-availability of Services due to insufficient hardware, software or network connectivity provided by Customer.

6. NON-DISCLOSURE OF INFORMATION; HACH PRIVACY POLICY

”Customer Data” means confidential and proprietary information of Customer.  HACH acknowledges that it may have access to Customer Data in the course of providing the Services and agrees to protect Customer Data against unauthorized use, using commercially reasonable efforts and care. Subject to the authorization and license granted in respect of Sensor Data as per Section 5 hereinabove, HACH also agrees to hold Customer Data in confidence and not to release or give access to Customer Data to any third party unless such individual or entity has a need for such knowledge to perform Services under the Agreement.  Subject to the authorization and license granted in respect of Sensor Data as per Section 5 hereinabove, HACH further agrees not to make use of Customer Data for its own benefit or for the benefit of any third parties, other than for the performance of the Agreement.  Notwithstanding the foregoing, HACH may retain beyond the term of the Services Customer Data for the purpose of analysis and research and to aggregate it with that of other HACH customers for statistical analysis, trends or other industry-related purposes so long as such use does not result in the identification of Customer or Customer personnel. Customer acknowledges that, subject to the limitations provided in this Section 8 and in accordance with its Privacy Policy available at https://ie.hach.com/privacypolicy, HACH may transfer Customer Data to, or process at, HACH affiliates and/ or third parties located in the United States, the European Economic Area, or any other jurisdiction worldwide. Customer acknowledges that it has read, understands, and agrees to Hach’s Privacy Policy.

“HACH Confidential Information” means these Terms and Conditions, any technical information regarding the Services including without limitation any information regarding information technology, system architecture, algorithms, source code, methods, equipment, as well as any financial data, marketing and sales information, concerning HACH or its  affiliates, licensors, or third parties.  Customer agrees to hold HACH Confidential Information in confidence and agrees not to release such information to any individual whether employee, subcontractor or subcontractor employee, unless such individual has a need for such knowledge for the performance of the Services.  Customer further agrees not to make use of HACH Confidential Information for its own benefit or for the benefit of any third parties other than as specifically required in the performance of these Terms and Conditions.

The above limits on disclosure do not include information which the receiving Party can prove (A) is or becomes generally known through no fault by the receiving Party; (B) is learned by it from a third party entitled to disclose the information; (C) is already known to it prior to receiving it from the disclosing Party; or (D) is independently developed by it. 

In the event of any breach of these confidentiality obligations, each Party acknowledges that the disclosing Party would be irreparably injured and shall be entitled to seek equitable relief, including injunctive relief and specific performance, in any court of competent jurisdiction.  Such remedies shall not be deemed to be the exclusive remedies for a breach of the Agreement.

Upon expiration or termination of the Agreement for whatsoever reason, HACH Confidential Information shall be returned to HACH or shall be permanently destroyed.  The terms of this Section 6 shall survive the expiration or termination of these Terms and Conditions.

7. REPRESENTATIONS AND WARRANTIES

HACH warrants that the Services will be performed in a professional and workmanlike manner and will be of a quality conforming to general standards of care and to Description of Services appended to the Agreement.

HACH DOES NOT GUARANTEE THE AVAILABILITY OF THE SERVICES AT ALL TIMES OR THAT ACCESS WILL BE UNINTERRUPTED OR ERROR FREE.  HACH MAY INTERRUPT, LIMIT, SUSPEND OR TERMINATE THE SERVICES FROM TIME TO TIME FOR MAINTENANCE, UPGRADES OR ANY REASONABLE PURPOSE PROVIDED THAT WHEN PRACTICABLE HACH WILL USE COMMERCIALLY REASONABLE EFFORTS TO NOTIFY CUSTOMER IN ADVANCE.

CUSTOMER’S EXCLUSIVE REMEDY AND HACH’S ENTIRE LIABILITY FOR ANY BREACH OF THIS WARRANTY SHALL BE RE-PERFORMANCE OF THE NON-CONFORMING SERVICE.

HACH MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.

Customer in its name and on behalf of its Administrator and each Authorized Customer User represents and warrants to HACH that: (A) has the right to permit HACH to access its Monitoring Sites and surrounding areas for of the Sensor Equipment for installation, repair and maintenance purposes; (B) its Administrator and Authorized Customer Users will comply with all terms and conditions and policies for use of the Services.

Customer shall and hereby agrees to defend, indemnify and hold HACH and its affiliates, suppliers and licensors harmless from and against any and all claims, losses, damages, liabilities, obligations, judgments, causes of action, costs, charges and expenses (including without limitation, reasonable attorneys’ and consultants’ fees and such fees and penalties as any third party licensors may impose) arising out of or in connection with: (i) any civil and/or criminal suit alleging that HACH had no right or authority to access the Monitoring Sites; (iv) any Customer and/or Administrator or Authorized User negligence, recklessness or willful misconduct; or (iii) any violation of, or non-compliance with applicable laws.

8. DESCRIPTION OF SERVICES

HACH will provide Customer with one or more of the following Services depending on Customer’s agreed order:

8.1 If Customer has ordered CLAROS Services, HACH will provide Customer with remote access to status and measurement information as well as access to interactive step-by-step maintenance guidance for their CLAROS enrolled HACH Analytical Instrumentation through HACH CLAROS, including products associated under Instrument Management, Data Management and Process Management. HACH will provide and maintain a Customer specific web page on HACH’s CLAROS web site (“Customer’s Web Page”), accessible only by Customer, Customer’s Administrator, Authorized Customer Users, and HACH, through which Customer may interact with CLAROS enrolled analytical instrumentation. All services described in this chapter here after are subject to the assumption that the Analytical Instrumentation is enrolled in HACH’s Services and connected with HACH’s CLAROS Server through the Internet. HACH agrees to make Sensor specific status information, proactive Maintenance Notifications, and Workflows for typical sensor specific Maintenance Tasks available to Customer through Customer’s Web Page. HACH agrees to make all live Measurement Data accessible to Customer through Customer’s Web Page. HACH agrees to enable Sensor Configuration through Customer’s Web Page.

Subject to all limitations of liability contained herein, HACH will endeavor to provide Customer with access to Customer’s Web Page twenty-four (24) hours a day, Monday through Sunday, excluding periods of routine planned maintenance and upgrade services (the “Routine Window”) and emergency services.  Such periods are subject to change upon notice to Customer.  HACH shall provide maintenance and upgrades to the Services, including Customer’s Web Page, during the Routine Window unless deferral of such maintenance or upgrades would materially and adversely affect the performance or security of the Services, HACH’s network, data center or other customers.  HACH shall endeavor to perform such maintenance or upgrades in such a manner so as to not adversely impact Customer’s use of the Services.  To the extent possible, HACH shall notify Customer as far in advance as practicable of any maintenance or upgrades outside the Routine Window.

Currently HACH employs Microsoft’s AZURE platform to host the customer’s data.  HACH maintains responsibility for the customer’s data, but the customer agrees that the level of service is determined by Microsoft and is beyond the direct control of HACH.  The AZURE Service Level Agreement (“SLA”) is available here: https://azure.microsoft.com/support/legal/sla/.  HACH incorporates this document by reference, and the customer agrees that the AZURE SLA regarding the service level apply.  HACH reserves the right to change the terms upon ten (10) days written notice, unless objected to by Customer.

Customer Responsibilities

Analytical Instrumentation:  Selection of the appropriate measurement technology, correct installation and appropriate operation and maintenance of the analytical instrumentation is critical to obtaining accurate data.  These are solely the responsibility of Customer.

Connectivity to Internet:  Access to and interaction with the Enrolled Analytical Instruments through Customer’s Web Page requires these instruments to communicate with CLAROS Server through the Internet. The instrumentation’‘s connectivity to the Internet is solely the responsibility of Customer.

Peripheral Equipment: Devices required to access to Customer’s Web Page (e.g. Smart Phones, Tablets, Laptops, and PC’s) and their access to the Internet are solely the responsibility of Customer.

Customer Administrator:  Customer agrees to designate a single individual (its “Administrator”) who shall be Customer’s agent in designating those employees of Customer who may, through unique Passwords, Customer IDs or other security means, access Customer’s Web Page and Customer Data.  Each Customer employee authorized to access Customer’s Web Page and to whom a unique Password or Customer ID is assigned and issued shall be an “Authorized Customer User.”  The Administrator shall be responsible for the relationship between HACH and each Authorized Customer User.  Only the Administrator may contact HACH to update Authorized Customer User profiles, approve new and close Authorized Customer User accounts.  HACH shall issue and provide to each Administrator all security certificates, passwords and Customer identifications (collectively “Passwords and Customer IDs”) for distribution to Authorized Customer Users.  Customer shall keep full and accurate records of all issued, active and inactive passwords and Customer IDs.  The right to use passwords or Customer IDs terminates immediately upon the earlier of termination of the engagement or an Authorized Customer User authorization to access Services.  Customer is responsible for issuing, administering, updating and ensuring that proper security measures are in effect with respect to all Passwords and Customer IDs.  Customer is solely responsible for monitoring, supervising and terminating, when appropriate, its Authorized Customer User access to Services.  The use of Passwords and Customer IDs constitutes acts of Customer and HACH may rely upon the instructions, consent given and all action taken, without verifying the identity or authority of any person accessing Services by means of such Passwords and Customer IDs.  Although each Authorized Customer User is personally responsible for its use of Services, Customer’s Web Page and Customer Data, Customer is responsible for ensuring that its 

Administrator and each Authorized Customer User is aware of and complies with these Terms and Conditions. 

8.2  RTC SERVICES.  If Customer has ordered RTC Services, HACH will remotely monitor Customer Sensor Equipment and review certain Sensor Data to provide guidance on and to optimize Customer´s RTC (Real Time Control) Services, i.e., HACH Sensor Equipment directly connected to the RTC module. HACH remote Services include: plant and RTC performance monitored remotely with active feedback on warnings and errors; quick support on HACH Sensor Equipment for technical defects or issues with remote troubleshooting from dedicated HACH Technical Support experts; access to on-going HACH Technical support for RTC solutions; preventive maintenance reminders; review and recommendations on likely adjustments of the RTC settings; software updates (when necessary); back-up of the system and Sensor Data storage.

Remote connectivity is achieved via TeamViewer©.

Customer agrees to permit HACH to connect to and to access the Customer RTC system to be able to deliver these Services. If Customer would like HACH to apply any settings changes to the RTC Services resulting from recommendations made during remote access sessions, Customer must sign an RTC Change Request Form.

Customer Responsibilities

Analytical Instrumentation:  Selection of the appropriate measurement technology, correct installation and appropriate operation and maintenance of the analytical instrumentation is critical to obtaining accurate data.  These are solely the responsibility of Customer.

Connectivity to Internet:  Remote access to and interaction with the RTC system requires the RTC modules to communicate through the Internet. Connectivity to the Internet is solely the responsibility of Customer.

9. INTELLECTUAL PROPERTY

Customer acknowledges that any and all intellectual property rights embodied in the Services, including without limitation any copyrights, patents or patent applications, trademarks and service marks shall vest in HACH. Customer shall refrain from taking out or applying for any kind of registration or protection of such intellectual property. Customer agrees that HACH owns all algorithms associated with the Services. The information contained in or otherwise associated with the design and operation of the Services are the proprietary and confidential information of HACH (and its licensors), and HACH (and its licensors) deems the information to be a trade secret. Customer are licensing the right to access and use the Services in accordance with the terms of these Terms and Conditions and are not acquiring any claim or right of ownership in the Services or any intellectual property associated with it. Customer will treat the information contained in the Services as the proprietary and confidential information of HACH.

10. LIMITATION OF LIABILITY
    • Subject to the provisions in Section 10.2, HACH’s liability for damages shall be limited as follows:

• HACH´s AGGREGATE LIABILITY IN RESPECT OF THE PROVISION OF THE SERVICES SHALL NOT EXCEED THE LOWER OF (a) AN AMOUNT OF USD 100´000 OR (b) AN AMOUNT EQUAL TO THE AMOUNT OF FEES PAYABLE TO HACH ON AN ANNUAL BASIS;
• IN NO EVENT SHALL HACH, ITS AFFILIATES, SUPPLIERS, OR SUBCONTRACTORS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR USE, OR FOR CORRUPT OR UNAVAILABLE CUSTOMER DATA, OR COSTS OF PROCURING SUBSTITUTE GOODS OR SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND CONDITIONS, AND INCURRED BY CUSTOMER OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT, WARRANTY, TORT OR STRICT LIABILITY, EVEN IF HACH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. .

10.2    Aforesaid limitation of liability shall not apply to (i) any damages caused by willful misconduct, (ii) damages to life or health, or (iii) where liability cannot be excluded under applicable statutory law.

10.3    Customer shall take all reasonable measures to prevent data loss and other damages, including without limitation by way of back-up copies of Customer Data on a regular basis and security checks for viruses, malware and other disruptive programs within Customer's IT System. Customer is responsible for the use of the Services by any of Customer’s employees, by any person or entity to whom Customer has given access to the Services, or any person who gains access to Customer Data or the Services as a result of Customer’s failure to use reasonable security precautions, even if that use was not authorized by Customer.

10.4    THE FOREGOING DISCLAIMERS AND LIMITATIONS SHALL SURVIVE TERMINATION OR EXPIRATION OF THESE TERMS AND CONDITIONS