Wittaya Aqua International: Terms of Service

WITTAYA AQUA INTERNATIONAL INC. (“COMPANY” / “WE” / “US”) OWNS AND OPERATES THE SOFTWARE-AS-SERVICE PRODUCTION MANAGEMENT PLATFORM THAT ALLOWS CUSTOMERS TO MEASURE AND INCREASE FARMING OPERATIONAL EFFICIENCY THROUGH AGGREGATION AND ANALYSIS OF VOLUME DATA COLLECTED BY AQUACULTURE OPERATIONS (THE “PLATFORM”) AND THE WEBSITE LOCATED AT https://wittaya-aqua.ca/" (THE “WEBSITE”). THESE TERMS OF SERVICE APPLY TO ALL INDIVIDUALS WHO USE THE PLATFORM, WEBSITE OR THE SERVICES, AS DEFINED BELOW (“USERS”) (INCLUDING ALL OF THE CONTENT ON OR AVAILABLE THROUGH THIS PLATFORM).

PLEASE READ THESE TERMS OF USE CAREFULLY. BY USING THIS WEBSITE OR PLATFORM YOU INDICATE YOUR ACCEPTANCE OF THESE TERMS OF USE (“TERMS”). IF YOU DO NOT ACCEPT THESE TERMS, THEN DO NOT USE THE PLATFORM, WEBSITE OR ANY CONTENT OR SERVICES. THESE TERMS OF USE MAY BE AMENDED OR UPDATED BY COMPANY FROM TIME TO TIME WITHOUT NOTICE. THE TERMS OF USE MAY HAVE CHANGED SINCE YOUR LAST VISIT TO THIS WEBSITE, AND IT IS YOUR RESPONSIBILITY TO REVIEW THESE TERMS OF USE FOR ANY CHANGES. YOUR USE OF THE PLATFORM, WEBSITE OR SERVICES AFTER ANY AMENDMENTS OR UPDATES OF THESE TERMS OF USE SHALL SIGNIFY YOUR ASSENT TO AND ACCEPTANCE OF SUCH REVISED TERMS.

1. DEFINITIONS & INTERPRETATION

1.1 In this Agreement the following terms have the following meanings:

(a) “Affiliate” of a party means any corporation or other legal entity that such party directly or indirectly controls, is controlled by, or is under common control with. In this context, a party “controls” a corporation or other entity if it or any combination of it and/or its Affiliates owns more than fifty percent (50%) of the voting rights for the board of directors or other mechanism of control for such corporation or other entity;

(b) “Business Days” means any day, other than Saturday, Sunday or any statutory or civic holiday observed in Toronto, Ontario;

(c) “Confidential Information” means any business, marketing, technical, scientific or other information disclosed by either party (including their Affiliates) which, at the time of disclosure is designated as confidential (or like designation), is disclosed in circumstances of confidence, or would be understood by the parties (or their Affiliates), exercising reasonable business judgment, to be confidential;

(d) “Documentation” means the technical publications prepared and delivered to Licensee with the Platform relating to the installation and operation of the Platform or other Company software products, such as reference, user, installation, systems administrator and technical guides and release notes;

(e) “End User” means an individual authorized by Licensee to use the Platform on behalf of Licensee;

(f) “Order Form” means an executed order form in relation a subscription to the Platform referencing this Agreement;

(g) “Term” has the meaning given in Section 4.1 of this Agreement;

(h) “Training Data” means any data that is used to train an algorithm, provided it is anonymized with the effect that there is no personal information contained in the Training Data and the Training Data does not in any way identify Licensee or End Users or include Licensee Confidential Information and it is not possible to reverse engineer such data to determine Licensee’s Confidential Information or that such data relates to Licensee.

2. LICENSE TERMS

2.1 Disclaimer. The services being provided to Licensee and the information on the Platform is for information purposes only and does not constitute farming or professional advice. Company will not be liable to Licensee for any losses or damages, including loss of profits, animal loss or any other losses resulting from Licensee’s use of the Platform. LICENSEE ASSUMES ALL RISKS IN RESPECT TO ITS USE OF THE PLATFORM AND ANY DECISIONS MADE BASED ON INFORMATION, ANALYSIS OR RECOMMENDATIONS OF THE PLATFORM.

2.2 License Grant: The license granted under this section entitles Licensee to a non-exclusive, non-transferable, worldwide, non-sublicensable license to access and use the Platform beginning on the Platform Access Date and continuing for the Term for Licensee’s internal business purposes and in accordance with any volume limits or other restrictions as communicated by Company to Licensee.

2.3 Evaluation License Grant. If Licensee registers for a free trial of the Platform, then, subject to these Terms, Company grants Licensee a limited, personal, non-transferable, non-sub-licensable, internal license to use the Platform for non-production, evaluation purposes during the applicable Trial Period. For the purposes of these Terms, “Trial Period” means the time starting from Licensee’s registration to use a free trial of the Platform until the earlier of (i) the end of the free trial period for which Licensee registered (which trial period shall be thirty (30) days unless otherwise stated on the registration page for the free trial version of the Platform), or (ii) the start date of any paid subscription for the Platform ordered by Licensee. Licensee will not be entitled to receive any support from Company for the free, trial subscription for the Platform. Company may terminate the Trial Period for any free trial of the Platform at any time in Company’s sole discretion and may accept or decline any request for a free trial version of the Platform in Company’s sole discretion. NOTWITHSTANDING ANY OTHER PROVISIONS IN THESE TERMS, ACCESS TO THE FREE TRIAL VERSION OF THE PLATFORM IS ON AN “AS-IS” BASIS WITHOUT ANY REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS OF ANY KIND. Additional terms and conditions applicable to the free trial version of the Platform may appear on the applicable registration page. Any such additional terms and conditions are incorporated into these Terms by reference.

2.4 License Restrictions. Licensee acknowledges and agrees that Company and its licensors shall retain all right, title, and interest (including all Intellectual Property rights) in, to, and under the Platform. Licensee also agrees that it shall not:

(a) rent, lease, sell, resell, assign, loan or otherwise transfer the Platform or any of Licensee’s rights and obligations under this Agreement or otherwise provide to any third party any portion of the Platform or Confidential Information or know-how, except as explicitly permitted herein;

(b) modify, translate, create derivative works, adapt, merge, reverse engineer, disassemble, decompile or in any other manner attempt to decode the Platform (except to the extent that the foregoing restriction is expressly prohibited by applicable law notwithstanding a contractual obligation to the contrary); if the foregoing provision is prohibited by applicable law, Licensee will provide Company with advance written notification of (i) its intention to decompile, disassemble or otherwise reverse engineer the Platform, and (ii) the nature of the work involved.

(c) access or use the Platform in order to (i) build a competitive product or service or any form of derivative works based on the Platform, or (ii) copy any ideas, features, functions or graphics of the Platform; or

(d) remove or destroy any copyright notices or other proprietary markings contained on or in the Platform.

2.5 Audit Rights. Company shall have the right to use the capabilities of the Platform and third-party services to confirm the number of users using the Platform and Licensee’s compliance with this Agreement.

2.6 Software Platform Delivery. Company shall (a) use commercially reasonable efforts to maintain the security and integrity of the Platform; and (b) use commercially reasonable efforts to make Platform available twenty-four (24) hours a day, seven (7) days a week, except for: (i) planned downtime; or (ii) any unavailability caused by circumstances beyond Company’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Company employees), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within Company’s possession or reasonable control, and denial of service attacks.

3. PROPRIETARY RIGHTS AND CONFIDENTIALITY

3.1 Reservation of Rights. Licensee acknowledges that the Platform (and any information incorporated therein or provided in respect thereto) and any technology therein constitutes Confidential Information, contains trade secrets and is subject to copyright, patent and other intellectual property rights belonging to Company and its licensors. Licensee acknowledges and agrees that title in and rights to the Platform and Training Data and Statistical Data, including all related intellectual property rights, remains exclusively with Company and its licensors. Licensee’s rights to the Platform are strictly limited to those expressly granted in this Agreement, and no other rights are granted to Licensee.

3.2 Work Product. All right, title and interest in and to any developments, customizations, enhancements or modifications made to Platform (including the Platform) (“Work Product”) will vest in and belong to Company exclusively unless otherwise expressly stated in a Purchase Order. Any upgrades, updates or other Work Product will be licensed to Licensee on a non-exclusive, non-transferable, royalty-free worldwide basis to be used to the extent required to exercise the licenses granted in Section 2 and 3 of this Agreement.

3.3 Licensee Data. As between Licensee and Company, Licensee owns and retains ownership of all data uploaded to the Platform by or on behalf of Licensee (“Licensee Data”). Licensee hereby grants Company a limited, worldwide, royalty-free, and non-exclusive license to use, collect, store, access, process, distribute and transmit Licensee Data during the Term in order to: (a) provide the Platform in accordance with the terms of this Agreement, (b) create Training Data, and (c) create marketing data. Company shall make available to Licensee for export the Licensee Data during the Term and for a period of 30 days thereafter.

3.4 Analytics. Licensee acknowledges and agrees that Company compiles and analyzes Licensee Data to create useful, aggregated information about licensee service delivery and performance and accordingly Company requires the right to generate data about the use and operation of the Platform, from reports generated pursuant to this Agreement and raw Licensee Data (“Statistical Data”). Licensee hereby grants Company a perpetual, worldwide, non-exclusive, royalty-free license to create Statistical Data from Licensee Data and combine it in whole or in part with data derived through the use of the Platform and with other data at Company’s discretion. For the avoidance of doubt, Statistical Data will not include any raw Licensee Data, including any personal information, and will not be distributed in a manner which identifies Licensee. Company shall have exclusive ownership of any Statistical Data and the exclusive right to use the same for any purpose without restriction.

3.5 Suggestions. Company shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual, unrestricted license to use and/or incorporate into the Software any suggestions, enhancement requests, recommendations or other feedback provided by Licensee or its end users relating to the operation of the Platform, provided such feedback does not include any Confidential Information or Licensee Data.

3.6 Protection of Confidential Information. Each party shall maintain in confidence all Confidential Information of the other party and shall use such Confidential Information only for the purpose of exercising its rights and fulfilling its obligations under this Agreement and shall not disclose any Confidential Information of the other party to any third party except as expressly permitted hereunder or make any unauthorized use thereof. Each party shall treat Confidential Information of the other party with the same degree of care against disclosure or unauthorized use as it affords to its own information of a similar nature, or a reasonable degree of care, whichever is greater. Each party further agrees not to remove or destroy any proprietary or confidential legends or markings placed upon any documents or other materials containing Confidential Information of the other party. Each party shall be entitled to provide Confidential Information to contractors of that party that have agreed to confidentiality obligations at least as protective as those contained herein. The obligations of confidence set forth in this Agreement shall extend to any Affiliates that have received Confidential Information and shall also cover Confidential Information disclosed by any Affiliate.

3.7 Exemptions. Neither party shall be bound by obligations restricting disclosure and use set forth in this Agreement with respect to Confidential Information, or any part thereof, which: (a) was lawfully known or received by the receiving party prior to disclosure without any obligation of confidentiality; (b) was lawfully generally publicly known prior to its disclosure, or becomes generally publicly known other than through a breach of this Agreement; (c) was disclosed to the receiving party by a third party, provided such third party, or any other party from whom such third party receives such information, is not in breach of any confidentiality obligation in respect of such information; or (d) is independently designed and developed by the receiving party without any violation of any Intellectual Property or other rights of the other party.

3.8 Compelled Disclosure. If a receiving party is compelled pursuant to legal, judicial, or administrative proceedings, or otherwise required by law, to disclose Confidential Information of a disclosing party, the receiving party shall use reasonable efforts to (a) seek confidential treatment for such Confidential Information, and (b) provide prior written notice to the disclosing party to allow the disclosing party to seek protective or other court orders.

4. TERM AND TERMINATION.

4.1 Term. This Agreement shall commence upon Licensee’s first access to the Platform (the “Platform Access Date”) and shall continue indefinitely until this Agreement is terminated in accordance with Section 2.3 or 4.2 (the “Term”).

4.2 Termination. Licensee is free to stop using the Platform at any time. Company reserves the right to terminate Licensee’s access to the Platform by providing notice to Licensee if (a) Licensee is in material breach of this Agreement; (b) Licensee uses the Platform in a manner that would cause a real risk of loss or harm to Company or other users of the Platform; or (c) at any time for any reason if Licensee is using the Platform on a free trial. Company reserves the right to terminate or suspend Licensee’s access to the Platform without notice where (a) Licensee is in material breach of this Agreement; (b) providing notice to Licensee would cause Company legal liability or compromise Company’s ability to provide the Platform to its other users; or (c) where the law prohibits Company from providing notice. Furthermore, either of the Parties may terminate this Agreement in the event the other party makes an assignment for the benefit of creditors, files a voluntary bankruptcy petition, acquiesces to any involuntary bankruptcy petition, is adjudicated bankrupt, or ceases to do business. This Agreement shall automatically terminate upon the Effective date of any Subscription Agreement entered into between Licensee and Company.

4.3 Effect of Termination. Upon the termination of this Agreement, all rights or licenses granted hereunder to Licensee will terminate. Licensee and its permitted users must cease all use of the Platform and Licensee shall uninstall any instances of the Platform from its systems and destroy or return any Documentation or other Confidential Information in Licensee’s possession or control.

4.4 Survival. The provisions of Sections 1, 2.1, 2.5, 3, 4, 5, 6, and 7 shall survive termination or expiration of this Agreement.

5. WARRANTIES AND DISCLAIMERS.

5.1 Mutual Warranties. Each party represents and warrants to the other that: (a) it has full power and authority to enter into this Agreement, and to perform its obligations under this Agreement; (b) this Agreement has been duly authorized, executed and delivered by the party and constitutes a legally enforceable agreement of the party; and (c) this Agreement is not limited or restricted by, and is not in conflict with, any commercial arrangements, obligations, contract, agreement or other instrument to which the representing party is either bound or subject.

5.2 DISCLAIMER. EXCEPT AS OTHERWISE PROVIDED HEREIN, THE PLATFORM, DOCUMENTATION AND SERVICES PROVIDED BY COMPANY UNDER THIS AGREEMENT ARE PROVIDED ON AN “AS IS” BASIS. COMPANY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED, STATUTORY, BY USAGE OF TRADE, COURSE OF DEALING, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHTABLE QUALITY, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. COMPANY DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM OR DOCUMENTATION SHALL MEET ANY OR ALL OF LICENSEE’S OR ITS LICENSEES’ PARTICULAR REQUIREMENTS, THAT THE PLATFORM WILL OPERATE ERROR FREE OR UNINTERRUPTED OR THAT ALL ERRORS OR DEFECTS IN THE PLATFORM CAN BE FOUND OR CORRECTED.

6. INDEMNIFICATION AND LIMITATION OF LIABILITY.

6.1 Licensee Indemnification. Licensee agree to indemnify, defend and hold harmless Company, its shareholders, members, principals, partners, owners, transferees, directors, managers, officers, employees, servants, successors, agents, attorneys, distributors, vendors, suppliers and representatives (collectively, the “Company Parties”) from and against any and all third-party claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to reasonable legal fees) arising from: (i) Licensee’s use of and access to the Platform and Services; and (ii) Licensee’s violation of any of the terms of this Agreement.

6.2 LICENSEE WAIVER, RELEASE, AND DISCHARGE. LICENSEE HEREBY WAIVES, RELEASES, AND IRREVOCABLY DISCHARGES the Company Parties from any and all actions, causes of action, liabilities, suits, debts, obligations, dues, accounts, bonds, covenants, contracts, claims, demands, indemnities, losses, costs (including professional fees), damages and proceedings whatsoever, whether in law or in equity, which Licensee has ever had or may hereafter have, whether known or unknown, including but not limited to, liability arising from any acts or omissions of any kind, misconduct, negligence or fault of the Licensee Parties or of a third party, which cause any death, disability, personal injury, or property damage to Licensee or a third party during Licensee’s use of the Platform and Services.

6.3 LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, INDIRECT, RELIANCE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS) WHETHER ARISING FROM CONTRACT (INCLUDING FUNDAMENTAL BREACH), TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY OF LIABILITY. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF COMPANY UNDER THIS AGREEMENT, REGARDLESS OF THE BASIS OF LIABILITY OR THE FORM OF ACTION (INCLUDING FUNDAMENTAL BREACH, TORT, NEGLIGENCE, MISREPRESENTATION, OR OTHER CONTRACTUAL OR TORT CLAIM), EXCEED THE GREATER OF CDN$500.00 OR THE TOTAL PAYMENTS MADE BY LICENSEE TO COMPANY WITHIN THE TWELVE (12) MONTHS PRECEDING A CLAIM.
THE DISCLAIMER OF REPRESENTATIONS, WARRANTIES AND CONDITIONS AND LIMITATION OF LIABILITY CONSTITUTE AN ESSENTIAL PART OF THIS AGREEMENT. LICENSEE ACKNOWLEDGES THAT BUT FOR THE DISCLAIMER OF REPRESENTATIONS, WARRANTIES AND CONDITIONS AND LIMITATION OF LIABILITY, NEITHER COMPANY NOR ANY OF COMPANYS SUPPLIERS WOULD GRANT THE RIGHTS GRANTED IN THIS AGREEMENT.

7. GENERAL PROVISIONS

7.1 Publicity. During the Term, upon written consent of the Licensee, Company may disclose that Licensee is a customer of Company on its website and other similar promotional materials.

7.2 Independent Contractors. The parties are independent contractors. Neither party shall be deemed to be an employee, agent, Licensee, joint venturers or legal representative of the other for any purpose and neither shall have any right, power or authority to create any obligation or responsibility on behalf of the other. Any use of the term “partner” or “partnering” or similar terminology (except as used in the immediately preceding sentence of this Section) does not mean or refer to a legal partnership, but instead means or refers to a co-operative business or contractual relationship.

7.3 Force Majeure. Except for payment obligations, neither party shall be responsible for its failure to perform to the extent due to unforeseen circumstances or causes beyond its control, including but not limited to acts of God, wars, terrorism, riots, embargoes, acts of civil or military authorities, fires, floods, accidents, or strikes (each a “Force Majeure Event”), provided that such party gives the other party prompt written notice of the failure to perform and the reason therefore and uses its reasonable efforts to limit the resulting delay in its performance.

7.4 Subcontractors. Company may subcontract the performance of any Professional Services or obligations under this Agreement without the prior written consent of Licensee provided that Company shall remain responsible for the acts or omissions of its subcontractors performing duties on its behalf under this Agreement.

7.5 Notices. If any notice or other communication is required or permitted to be given to Company hereunder, such notice or communication shall be in by email to: info@wittaya-aqua.ca. With the exception of notices given under Section 7.15, all notices to Licensee shall be sent to the email address provided by Licensee to access the Platform or that associated with Licensee’s Platform account.

7.6 No Waiver. No delay or failure in exercising any right under this Agreement, or any partial or single exercise of any right, will constitute a waiver of that right or any other rights under this Agreement. No consent to a breach of any express or implied term set out in this Agreement constitutes consent to any subsequent breach, whether of the same or any other provision.

7.7 Rights and Remedies. There are no third-party beneficiaries to this Agreement. Except as specifically provided in this Agreement, the rights and remedies provided herein and all other rights and remedies available to either party at law or in equity are, to the extent permitted by law, cumulative and not exclusive of any other right or remedy now or hereafter available at law or in equity, neither asserting a right nor employing a remedy shall preclude the concurrent assertion of any other right or employment of any other remedy.

7.8 Severability. If the application of any provision of this Agreement to any particular facts or circumstances is held to be invalid or unenforceable by an arbitrator or court of competent jurisdiction, then (a) the validity and enforceability of such provision as applied to any other particular facts or circumstances and the validity of other provisions of this Agreement shall not in any way be affected or impaired thereby, and (b) such provision shall be enforced to the maximum extent possible so as to effect the intent of the parties and shall be reformed without further action by the parties to the extent necessary to make such provision valid and enforceable.

7.9 Assignment. Neither party may assign this Agreement, any interest herein or any rights hereunder without the prior written consent of the other party, except that Company may assign this Agreement to any party that acquires all or substantially all of its related business by merger, sale of stock or assets, or otherwise or to an Affiliate of Company. Subject to the foregoing limits on assignment, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and permitted assigns.

7.10 Export. The Platform and related information may be subject to export and import controls under the regulations of Canada and other countries, and Licensee shall comply with all export and import control regulations, as applicable. Licensee shall not use the Platform for any purposes prohibited by export laws, including, without limitation, nuclear, chemical or biological weapons proliferation. Licensee shall be responsible for procuring all required permissions for any subsequent export, import or use of the Platform.

7.11 Governing Law and Venue. This Agreement is governed by the laws of the Province of Ontario, Canada. No choice of laws rules of any jurisdiction shall apply to this Agreement. The courts of Toronto, Ontario will have exclusive jurisdiction to resolve any dispute arising under this Agreement. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded.

7.12 Interpretation. Any agreement or schedule referred to herein means such agreement or schedule as amended, supplemented and modified from time to time to the extent permitted by the applicable provisions thereof and by this Agreement. References to any statute or regulation means such statute or regulation as amended at the time and includes any successor statute or regulation. Unless otherwise stated, references to recitals, articles, sections, paragraphs, schedules and appendices will be references to recitals, articles, sections, paragraphs, schedules and appendices of this Agreement. The parties agree that this Agreement will be fairly interpreted in accordance with its terms without any strict construction in favor of or against either party and that ambiguities will not be interpreted against the party that drafted the relevant language. If there is any conflict or inconsistency between the terms in the various parts of this Agreement, the sections in the schedules shall prevail over those in the body of the Agreement.

7.13 Entire Agreement. This Agreement, including any Order Form and schedules incorporated by reference into this Agreement and/or executed by both parties, constitute the entire agreement between the parties on the subject matter hereof and supersedes all prior agreements, communications and understandings of any nature whatsoever, oral or written. No preprinted terms or conditions of any purchase order submitted by Licensee to Company shall be of any contractual effect between the parties. This Agreement may not be modified or waived orally and may only be modified in a writing signed by duly authorized representatives of each party.

7.14 Counterparts; Facsimile Signatures. The parties agree to accept faxed signatures as valid and binding in the execution of this Agreement. This Agreement may be executed in counterparts each of which shall be deemed an original but all of which together shall constitute one and the same instrument.

7.15 Modifications. Company reserves the right, at its own discretion, to change, modify, add or remove all or any portion of these Terms at any time. Company shall provide notice of such change by posting the effective date in the top portion of these Terms. Licensee’s continued use of the Platform following any change to these Terms shall constitute Licensee’s acceptance of such change.

7.16 English Language. It is the express wish of the parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglaise.