ChemREADY Terms and Conditions

Water Management Services Terms and Conditions

The Water Treatment Program is intended to promote system efficiency through only the minimization of piping and equipment corrosion, scale formation, system wide microbial fouling, and microbial induced corrosion. The sole purpose and scope of minimizing these factors is to aid in preservation of assets, minimization of energy and water consumption, reduction of maintenance costs, and to achieve optimal heat transfer. The Water Treatment Program excludes health-based considerations including those more appropriately addressed through an ASHRAE 188 Water Safety Management Plan or other pathogen-based monitoring program such as Legionella testing.

ChemREADY is a Division of Zinkan Enterprise, Inc, a business in Ohio, hereto after referred to as “ChemREADY”.

  1. Client Responsibilities. The Client agrees to provide, for the use of the Contractor and associates in providing Services, the following information, services and resources:
  • System specifications for any systems that the Contractor is involved in maintaining for water quality treatment and standards. It is not the responsibility of the Contractor at any time to provide this information or confirm the specifications accuracy. In the event no specifications are provided, the treatment program will adhere to Contractor’s program of treatment for the type of equipment being treated.
  • Access to systems being serviced, included, but not limited to, sample points, keys, key cards, access codes and any other tools or resources needed to gain access to the property, facility and specific room(s) where the system(s) are located.
  • Accept chemical and equipment deliveries at the facility and move said chemicals and equipment to predesignated storage areas within the facility for the Contractor to access.
  • Maintain Chemical levels at dosing station in between service visits to ensure proper treatment is maintained.
  • Perform weekly water testing on the equipment.
  • Implementation of any recommendations indicated in service reports, verbal communications, or written communications. It is the NOT the responsibility of the Contractor to provide any quotes or implement any recommendations.
  • Cooling Towers require annual cleanings for proper treatment. Client is responsible for the cleaning of any and all cooling towers and must purchase the recommended cleaning chemicals from Contractor, separate from this Agreement, and at an added cost to Client.  Contractor shall provide written price quote(s) for any additional expenses for Client approval prior to services being rendered above and beyond the scope of this agreement.
  • Steam Boilers require annual inspections where they are opened and internal components are exposed. In order for Contractor to perform inspection, Client will notify Contractor a minimum of 30 days in advance any time a boiler serviced under this agreement is to be opened for inspection. Contractor reserves the right to  charge an additional fee  if the inspection is scheduled with less than a 30 day notice, is scheduled on a weekend, holiday, or outside of normal operating hours.  If Client elects to perform any inspection at any time without Contractor, Contractor is not responsible for remediation of any scale, corrosion, deposits or other system contamination concerns.
  • Agrees NOT to allow employees or other subcontractors to make adjustments to chemicals or dosing equipment provided by the Contractor unless otherwise specified by the Contractor. (NOTE:  Any increases in chemical usage or damages to equipment caused by the Client or its affiliates making said adjustments or changes will be billed separately from this agreement at a rate to be determined by the Contractor.  Contractor shall provide written price quote(s) for any additional expenses for Client approval prior to services being rendered above and beyond the scope of this agreement.)
  1. Contractor Responsibilities.
  • This Agreement includes onsite testing (as outlined below), chemical dosage monitoring and calibration and annual visit for inspections performed by others. Contractor is NOT responsible for events or treatment that occurs in between visits.
  • This Agreement does NOT include, nor is the Contractor responsible for, any cost relative to the replacement or repairs to equipment outlined in Exhibit A below, testing reagent kits or the services by any other party other than as outlined in this agreement, which may occur before, during or after the Term.
  • This Agreement does NOT include any costs associated with increased requests or usage rates of chemical products due to any and all such circumstances that would prevent Zinkan from providing proper system treatment and operations, at minimum, based upon AWWA Standards currently published. Examples such as a closed loop system having a leak and therefore requiring increased chemical usage rates to compensate for the leak would be charged at an additional cost to Client, based upon the recommendations of Zinkan Enterprise and its representatives.
  • Systems operating on a seasonal basis will be serviced only while in operation, although the monthly billing reflects all systems. If abnormal conditions cause these systems to be in operation longer than normal, they will be serviced on an “as usual” basis regardless of the time period and at no extra cost to the customer.
  • The Agreement does NOT provide any responsibility or warranty for the operation, or continuous treatment of the equipment listed in this Agreement while we are not present. The Contractor is only providing recommendations, delivery of chemicals for treatment and testing treatment levels at the interval specified. As such, no warranty or responsibility for treatment or lack thereof is provided by the Contractor for the continued use or implementation of treatment.
  1. Systems to be Service. For the consideration specified below Contractor agrees to service in a professionally acceptable manner, with materials conforming to industry standards.
  2. Reimbursement of Expenses
  • The Contractor will be reimbursed from time to time for all reasonable and necessary expenses incurred by the Contractor in connection with providing Services hereunder. Contractor shall provide written price quote(s) for any additional expenses for Client approval prior to services being rendered above and beyond the scope of this agreement.
  • The Contractor will furnish invoices separate from the monthly billing services for any and all additional expenses incurred.
  • The minimum invoice amount for Reimbursement of Expenses will be $75.00 per event.
  1. Confidential Information.
  • Confidential information refers to any data or information relating the Client, whether business or personal, which would reasonably be considered to be private or proprietary to the Client and that is not generally known and where the release of that Confidential Information could reasonably be expected to cause harm or the Client.
  • All written and oral information and materials disclosed or provided by the Client to the Contractor and by the Contractor to the Client is considered Confidential Information, regardless of whether it was provided before or after the date of this Agreement.
  1. Binding Obligations. In providing the Services under this Agreement it is expressly agreed that the Contractor is acting as an independent contractor for the Client and not as an employee. The Contractor and Client acknowledge that this Agreement does not create a partnership or joint venture between them, and is exclusively an Agreement for service(s).
  2. Indemnification. Except to the extent paid in settlement from any applicable insurance policies, and to the extent permitted by applicable law, each Party agrees to indemnify and hold harmless the other Party, and its respective affiliates, officers, agents, employees, and permitted successors and assigns against any and all claims, losses, damages, liabilities, penalties, punitive damages, expenses, reasonable legal fees and costs of any kind or amount whatsoever, which result from or arise out of any act or omission of the indemnifying party, its respective affiliates, officers, agents, employees, and permitted successors and assigns that occurs in connection with this Agreement,  This indemnification will survive the termination of this Agreement.
  3. Right to Cure. If a party defaults under any of this Agreement’s terms, the non-defaulting party will give to the defaulting party a written notice of the default. The defaulting party has thirty (30) days after receipt of this notice to cure the default. Only if the defaulting party fails to cure the default within this time period, may the non-defaulting party exercise those remedies granted under this Agreement or applicable law.
  4. Insurance. The Contractor will maintain general liability insurance that would be considered reasonable in the industry of the Contractor, based upon the risk associated with said Contractors characteristics of Agreements.
  5. Amendments. Any amendment or modification of this Agreement of additional obligations assumed by either Party in connection with this Agreement will only be binding if evidenced in writing and signed by each Party on this Agreement.

Ackumen™ Terms and Conditions

Ackumen™ DIGITAL Licensing Agreement

This Ackumen™ Digital Licensing Agreement (this “Agreement”), as may be updated from time to time, is entered into and made effective as of the date when this Agreement is reviewed, acknowledged, and agreed to electronically by an authorized representative of Customer (the “Effective Date”), between ChemREADY as Division of Zinkan Enterprises, Inc, an Ohio corporation with a principal address of 1919 Case Pkwy N, Twinsburg, OH 44087 (“ChemREADY”) and the customer agreeing to these terms (“Customer”). ChemREADY and Customer may be referred to individually as a “Party” and collectively as the “Parties.”

 

  1. Definitions. The following terms shall have the meanings ascribed to them in this Section:
    • (a)   “Authorized User(s)” means Customer’s employees or independent contractors who are authorized to access and use the Platform on behalf of Customer.
    • (b)   “Confidential Information” means any and all non-public information, materials, know how, data, information, trade secrets, business plans, processes, financial information, marketing plans, reports, forecasts, and technical or commercial information that is owned by a Party (the “Disclosing Party”) and is provided to the other Party (the “Receiving Party”), including any and all non-public information regarding, related to, arising from or associated with this Agreement or the activities contemplated hereby, and the existence, terms, and conditions of this Agreement.
    • (c)    “Customer Location(s)” means those Customer-owned locations where Products will be installed and Customer provided access to and use of the Platform and, if applicable, where a Water Treatment Program and/or Water Safety Management Plan is provided.
    • (d)   “Documentation” means the user manuals, instructions, and functional specifications that describe the functionality of the Platform and that are provided to Customer by ChemREADY in any form or medium, and any updates of the foregoing.
    • (e)    “Fees” means, collectively, the Setup Fee (if any), the Subscription Fee.
    • (f)     “Platform” means ChemREADY’s proprietary, cloud-based remote process monitoring system and related mobile or web-based downloadable application currently known as ChemREADY Ackumen™ and all modules offered as features provided in connection therewith.
    • (g)    “Product(s)” means certain hardware, sensors, and other similar products that are installed by ChemREADY or at the direction of ChemREADY at Customer Locations for the purposes of interacting with Customer equipment, collecting Product Data, and/or use in the Water Treatment Program.
    • (h)    “Product Data” means the measurements, data, information, and other variables that are generated through use of the Products with Customer equipment, including without limitation, tank level, chemical name, chemical consumption, service log, sensor data, Customer process data, and process flow data.
    • (i)     “Recommendations” means any recommendations, plans, reports, opinions, data analytics, identification of trends, insights, diagnostics, or other information provided by ChemREADY to Customer in connection with this Agreement, including but not limited to the Water Treatment Program, WSMP, and/or any other Services provided in connection with this Agreement.
    • (j)     “Services” means certain professional services related to the installation, control, and maintenance of the Products, wherein such professional services are performed by ChemREADY or its designee, and include without limitation training, support, maintenance, engineering, and other professional services.
    • (k)     “Setup Fee” means the fees related to the installation and setup of the Products by ChemREADY or its designees, including without limitation any Services provided in connection therewith.
    • (l)      “Subscription Fee” means the amount payable by Customer to ChemREADY for access to and use of the Products, Platform and Water Treatment Program. Subscription Fee also includes the amount payable by Customer to ChemREADY for services related to the Water Safety Management Plan, if such services are elected by Customer.
    • (m)    “Water Treatment Program” includes all chemicals, test kits, reagents, Recommendations, Products, and those services listed in Section 3(c) to minimize corrosion, scale, deposition, and microbial fouling of the building water systems for the purposes outlined in Section 3(a).
    • (n)     “Water Safety Management Plan” or “WSMP” means those services listed in Section 3 of Annex 1 in relation to the creation of a Water Safety Management Plan.
  2. Platform, Products, and Services.
    • License Grant. Subject to Section 2(d), ChemREADY hereby grants Customer a limited, personal, non-transferable, non-sublicenseable, non-exclusive license during the Term to (i) access and use the Platform; (ii) permit the use of the Platform by Authorized Users; and (iii) use the Products, in each case solely in accordance with the terms and conditions of this Agreement and solely in connection with Customer’s internal business operations. Customer agrees that its license to use the Platform, the Products, and any additional software or services is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written comments made by ChemREADY with respect to future functionality or features. Customer agrees that it shall provide and maintain, at its sole cost and expense, all hardware, software, Internet access, and other materials necessary to permit Customer’s and its Authorized Users’ access to and use of the Platform. Upon termination of this Agreement, Customer shall cease all use of the Platform and the Products and, at Customer’s expense, return all Products to ChemREADY in the substantially same condition as when initially installed, ordinary wear and tear excepted, in the manner requested by ChemREADY.
    • Authorized Users. Each Authorized User must agree to the terms of ChemREADY’s Terms of Use, available at www.GetChemREADY.com, prior to accessing and using the Platform. Customer acknowledges and agrees that, as between ChemREADY and Customer, Customer is solely responsible and liable for, and ChemREADY hereby disclaims all liability with respect to, all acts and omissions of any Authorized User that accesses or uses the Platform and such Authorized User’s compliance with the terms of this Agreement. Customer shall immediately notify ChemREADY of any suspected theft, loss, or fraudulent use of any Authorized User’s account name or password or violations of this Agreement by an Authorized User. Upon receipt of such notice from Customer, ChemREADY shall have the right in its sole discretion to terminate or suspend (pending resolution of such violation to ChemREADY’s satisfaction) such Authorized User’s access to and use of the Platform.
    • Maintenance and Repairs. Customer shall maintain the Products in reasonably good condition, ordinary wear and tear excepted. Customer may elect to maintain the Products at ChemREADY’s non-binding guidance and direction from time to time; provided, that any decision to repair or replace a Product shall be in the sole discretion of Customer. If any Products are lost, stolen, destroyed, or damaged while such Product is under Customer’s control, Customer shall promptly notify ChemREADY of the foregoing, and ChemREADY or its designee shall repair or replace such Product at Customer’s sole cost and expense. Any support and maintenance related to the Platform shall be provided by ChemREADY or its designee. This Agreement sets forth ChemREADY’s entire obligation with respect to support and maintenance of the Platform and the Products.
    • Restrictions. Customer shall not lease, grant a security interest in, assign, or otherwise transfer any right, title, or interest in or to the Products without ChemREADY’s prior written consent. Any action in violation of the foregoing sentence shall be null and void. In addition, Customer shall not, and shall not permit any Authorized User or third party to: (i) translate, adapt, modify, copy, update, revise, enhance, or otherwise alter or create derivative works of the Platform or the Products or any software or firmware therein or of any Documentation; (ii) sublicense the Platform to any third party or otherwise allow any other person or entity to access or use the Platform other than Authorized Users; (iii) reverse engineer, disassemble, decompile, or modify in any way (or attempt to reverse engineer, disassemble, decompile, or modify) any part of the Platform or the Products or any software or firmware therein, or otherwise attempt to gain access to the source code of the Platform, in whole or in part; (iv) bypass or breach any security device or protection used by the Platform or use the Platform other than by an Authorized User; (v) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Platform or ChemREADY’s provision of services to any third party, in whole or in part; (vi) access the Platform or Products in order to (1) build a competitive product or service, (2) copy any proprietary ideas, features, or functions thereof, and/or (3) send or store viruses, worms, time bombs, Trojan horses, and other harmful or malicious code, files, scripts, agents, or programs; (vii) interfere with or disrupt the integrity or performance of the Platform or Products; (viii) use the Platform or Products in connection with any illegal or unlawful activity or in a manner that causes, results in, encourages, solicits, or publicizes a crime or illegal or unlawful activity; (ix) without ChemREADY’s prior written approval in each instance, transfer, transport, or otherwise move any Product once installed without the assistance of ChemREADY or its designee; (x) remove, alter, or obscure any proprietary notice or legend of ChemREADY, its suppliers, or licensors upon any and all copies of the Platform, Products, or Documentation; or (xi) modify, distribute, or extract any portion of any Recommendations or otherwise provide any copy of the Recommendations to any other person or entity without ChemREADY’s prior written consent. If ChemREADY has reasonable grounds to believe that Customer is in violation of this Section 2(d), ChemREADY may immediately suspend or terminate this Agreement and Customer’s ability to access and use the Platform or use the Products.
    • Services. Within thirty (30) days of the Effective Date (or as may otherwise be agreed upon in writing by the Parties), ChemREADY will provide Customer with all Services reasonably necessary to install and utilize the Products for use in connection with Customer equipment in accordance with the terms and conditions of this Agreement. Any additional Services shall be set forth in one or more service requests and shall be performed for the fees set forth therein.
    • Customer Obligations. Customer shall provide ChemREADY with any and all information and assistance, including without limitation access to Customer Locations and equipment, as reasonably requested by ChemREADY, in order to install, control, and maintain the Products as well as to facilitate the performance of the Services. Customer acknowledges that ChemREADY’s ability to perform the Services is dependent upon Customer’s full and timely cooperation with ChemREADY, as well as the accuracy and completeness of any information and data Customer provides to ChemREADY. ChemREADY may adjust the delivery and performance schedule agreed upon by the Parties, if any, due to any act, omission, or failure by Customer to provide such information and assistance. ChemREADY shall not be liable for any costs, expenses, or liabilities resulting from the acts or omissions of Customer or resulting from Customer’s failure to fulfill any of its obligations under this Agreement. Upon ChemREADY’s reasonable request and during normal business hours, Customer shall permit ChemREADY personnel or its designee to enter any Customer premises for the purpose of inspecting the Products and Customer existing equipment, performing maintenance on the Products, and collecting any Product Data.
    • Non-Exclusivity. Nothing herein shall restrict or prohibit ChemREADY from performing the same or similar services for any third party.
  3. Water Treatment Program.
    • Purpose. The ChemREADY Water Treatment Program is intended to promote system efficiency through the minimalization of piping and equipment corrosion, scale formation, system wide microbial fouling, and microbial induced corrosion. The sole purpose and scope of minimizing these factors is to aid in preservation of asset value, minimization of energy and water consumption, reduction of maintenance costs, and to achieve optimal heat transfer. This Water Treatment Program excludes health-based considerations including those more appropriately addressed through an ASHRAE 188 Water Safety Management Plan or other pathogen-based monitoring program such as Legionella testing.
    • Scope. Customer is responsible for the building water systems at the Customer Locations. Customer may engage ChemREADY to provide the ChemREADY Water Treatment Program for the systems at the Customer Locations pursuant to this Agreement and for the purposes provided herein. Other than the systems at the Customer Locations, the Water Treatment Program does not include any systems, including without limitation, potable water systems and/or domestic water systems (such as showers, faucets, mains, distribution, ice machines, water fountains, decorative fountains, misting systems, pools, spas, irrigation, hot water systems, fish ponds, aquariums, vending machines, coffee machines, and bottled water machines).
    • Services. As part of the Water Treatment Program, ChemREADY or its designee will provide periodic supervisory on-site service visits to the Customer Locations, and, during those visits, ChemREADY may provide the following services: (i) test the water and/or fluids common to the water systems at the Customer Locations for the purposes outlined in Section 3(a); (ii) clean, calibrate, and adjust conductivity control and chemical feed equipment, as required; (iii) maintain chemical treatment inventory; (iv) deliver chemicals to the point of use and add the chemical treatment ChemREADY deems necessary to achieve the purposes outlined in Section 3(a); (v) report results and make Recommendations regarding treatment via the Platform. In addition to the foregoing, ChemREADY will provide control Recommendations for each system as appropriate, providing either a control range, minimum value, or maximum value for each pertinent parameter. The Parties agree that the control Recommendations provided by ChemREADY may vary from those provided by an equipment manufacturer or mechanical contractor as site specific considerations and operating conditions may require. ChemREADY will also provide an annual review of testing results, system efficiencies, and the Water Treatment Program’s overall performance, if requested.
    • WSMP. If Customer elects to engage ChemREADY to assist in the creation of a WSMP for the Customer Location(s), then the terms and conditions of Annex 1 shall apply, which are incorporated herein by reference, in addition to all other terms contained in this Agreement.
    • Products. To achieve the goals outlined in Section 3(a) (and, where applicable, Section 1 of Annex 1) ChemREADY will provide the water treatment services and/or Products elected by Customer for the applicable Customer Location(s). The specified services and Products provided are based upon known system operating conditions and parameters at the time of this Agreement. The Parties acknowledge that conditions may arise within the system that may require additional water treatment services or Products which may be ordered following Customer’s verbal consent or purchase order with the corresponding charges invoiced to Customer. ChemREADY will provide safety information on all Products used by ChemREADY under this Agreement at Customer’s request.
    • Equipment. ChemREADY or its designee will assess the functionality of any existing Customer equipment needed to administer the Water Treatment Program (and WSMP as applicable) and recommend but not perform any service, repair, or replacement as needed. ChemREADY will provide the Products needed to administer the Water Treatment Program. Costs for the Products will be payable by Customer. ChemREADY or its designee will perform upon Customer’s request installations of the Products related only to administration of its Water Treatment Program (such as replacing a pump or controller). ChemREADY will not undertake any mechanical changes to Customer’s existing equipment. Customer will service, repair, and/or install any replacement to the Customer’s existing equipment, or Customer will arrange to have its existing equipment serviced, repaired, and/or replacements installed by the manufacturer or other qualified contractor. All equipment warranties will be from the manufacturer.
    • System Status. ChemREADY will conduct an on-site assessment prior to the initiation of the Water Treatment Program (and WSMP as applicable) and share those results with Customer. The Parties acknowledge that this assessment may provide limited information as the system internals may be obstructed from view and latent defects may be undetectable. To the best of their ability, Customer will provide ChemREADY with accurate and complete information about the water handling systems at the Customer Location(s), schematics of the systems and water flow, identification of all dead legs or other system irregularities that impede water treatment, unusual system issues, past microbiological issues or incidents of disease, end point uses, current start up and shut down procedures, and other similar items. Customer acknowledges that incomplete, inaccurate, or incorrect information will impact the effectiveness of the Water Treatment Program (and WSMP as applicable). ChemREADY is not responsible for consequences arising from conditions pre-existing the Water Treatment Program, the development of the WSMP (as applicable), or issues arising from incomplete, inaccurate, or incorrect information provided by Customer.
    • Customer’s Obligations. The success of any water treatment program depends on diligent application of the program in compliance with recommendations made by the water treatment provider (or, as applicable, HC INFO as it relates to a WSMP). Customer makes the following representations: (i) Customer represents that the systems at the Customer Location(s) are in good condition with adequate water flow and velocity to allow water treatment chemicals to be effective; (ii) Customer remains responsible for maintaining and operating the water systems at the Customer Location(s) in a safe and prudent manner, including routine maintenance, cleaning and repair as recommended by the equipment manufacturer, mechanical contractor, or ChemREADY, at Customer’s expense. ChemREADY will not be responsible for losses due to mechanical failure/leakage; (iii) Customer will provide ChemREADY reasonable access to the system(s) and to the Customer Location(s) during normal working hours for site visits; (iv) Customer will notify ChemREADY once installation of Products is complete and allow ChemREADY to review and approve, prior to use, the installation of the Products required to administer the Water Treatment Management Program (or WSMP as applicable); (v) Customer will comply with written Recommendations by ChemREADY (or, as applicable, HC INFO as it relates to a WSMP) regarding treatment and testing (if necessary) of the systems at the Customer Location(s); (vi) Customer will notify ChemREADY of any increase in hours of operation of the equipment at the Customer Location(s); (vii) Customer will notify ChemREADY of any renovations or modifications to the building; (viii) to the extent the systems at the Customer Location(s) are not operated continuously on a year-round basis or “laid up” or “winterized,” Customer is responsible for proper shutdown, cleaning, flushing, passivation, and start-up consistent with the manufacturer’s guidelines. Customer may request that ChemREADY provide these services through a written Change in Scope (as defined in Section 3(i)); (ix) Customer agrees to notify ChemREADY of any changes or conditions coming to its attention so that ChemREADY may respond accordingly and for the purpose of achieving the objectives specified in Section 3(a) (and, where applicable, Section 1 of Annex 1).
    • Changes in Scope. Any addition to the scope of work contemplated by this Agreement (a “Change in Scope”) shall be made in writing. If there is a Change in Scope, Customer and ChemREADY will discuss good faith adjustments to the fees to account for the additional work.
    • Other Services Available. ChemREADY provides other water treatment products, services, and equipment, such as passivation, start-up, cleaning, and disinfection services and other related services. These services are not included in this Agreement and are available upon request.
    • Legionella Bacteria. The safe level for Legionella bacteria is currently unknown and the scientific consensus is that complete prevention of Legionella bacteria is neither realistic nor practical. Accordingly, neither the ChemREADY Water Treatment Program nor the WSMP covered in this Agreement are represented to prevent or control Legionella bacteria to a safe level but may assist in the minimization of Legionellosis risk. Customer agrees and understands that Legionella and other bacteria present inherent risks in Customer’s building water systems. Due to the nature of such bacteria and its ability to rapidly reappear and colonize, neither ChemREADY, a Water Safety Management Plan, a Legionella Testing Program, or a Water Treatment Program can be represented to completely prevent the presence of Legionella or other waterborne bacteria or pathogens in Customer’s systems. Due to individual host susceptibility, the ubiquitous nature of Legionella, and the lack of a known safe level, incidences of disease or injury may occur despite an appropriate water treatment program, water safety management plan, or the implementation of other minimization efforts. Recommended control measures may help minimize such risks, but no claim, express or implied, is made that such risks will be prevented or eliminated. No program can guarantee that Customer’s systems will be free from Legionella, Pseudomonas, other waterborne bacteria, or related health risks. Accordingly, Customer acknowledges and accepts that ChemREADY disclaims any warranties or representations relating to water system biohazards, waterborne pathogens, or any risks arising therefrom. Customer agrees that ChemREADY shall not be liable for any risks associated with waterborne pathogens in Customer’s building water systems.
    • Disclaimers. ChemREADY warrants that all services performed related to its Water Treatment Program and/or WSMP (as applicable) will be performed in accordance with the general standards and practices of the industry in existence at the time the services are performed. In reporting the test results contemplated by Section 3 or Annex 1 of this Agreement, ChemREADY does not warrant that the reported levels of Legionella pneumophila within any given environmental sample are safe or that they are reflective of the levels of Legionella pneumophila within the Customer’s water system(s) at any location or time other than the moment and location at which the sample was obtained. ChemREADY has no responsibility for the maintenance, operation, or safety of Customer’s water system(s) or Customer’s compliance with applicable laws and regulations related to the management and operation of Customer’s water system(s) and expressly disclaims any liability arising from Customer’s maintenance or operation of its water system(s) or its failure to comply with any laws or regulations related to such maintenance or operation, including but not limited to compliance with the Centers for Medicare and Medicaid Services, “Requirement to Reduce Legionella Risk in Healthcare Facility Water Systems to Prevent Cases and Outbreaks of Legionnaires’ Disease (LD).” ChemREADY further expressly disclaims any liability for damages arising from conditions that existed prior to the inception of its water treatment program (or creation of a WSMP as applicable). ChemREADY is not responsible for any damages due to customer’s failure to properly clean, operate, or maintain ITS equipment.
    • Indemnification. Subject to the provisions of Section 8(c), each Party will defend, indemnify, and hold harmless the other Party, its affiliates, and their respective officers, directors, employees, agents, and successors and assigns from and against any and all third-party claims and all resulting damages, liabilities, losses, and expenses (including reasonable attorneys’ fees and expenses) to which any such indemnified Party may become subject as a result of or to the extent arising out of or related to any intentional or negligent acts or omissions of the indemnifying Party or its employees, agents, or other independent contractors.
  4. Fees and Expenses.
    • Fees. The Platform, Products, ChemREADY Water Treatment Program, and, as applicable, WSMP shall be provided, and the Services shall be performed, for the Fees. At any time during the Term of this Agreement, but in no event more than once per calendar year, ChemREADY may adjust the Fees upon notice to Customer, and such adjustment to the Fees shall take effect within thirty (30) days from the date of such notice.
    • Payment. The Subscription Fee shall be due and payable by Customer to ChemREADY immediately on the Effective Date and on a monthly basis thereafter until the termination of this Agreement. Except as otherwise set forth in this Agreement, ChemREADY shall send invoices via email or electronically, and Customer shall pay all invoices within thirty (30) days of the invoice date. All invoices past due will accrue a late fee of one and one-half percent (1.5%) per month, or the maximum amount allowed by law, whichever is less, on the total amount of such invoices. Without limiting the foregoing sentence, if Customer’s account is sixty (60) days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, ChemREADY reserves the right to terminate this Agreement upon written notice to Customer without further obligation or liability to Customer. ChemREADY shall be entitled to reimbursement by Customer of any reasonable expenses, including attorneys’ fees, and any other fees reasonably incurred in collecting any payments due hereunder, whether through negotiation, settlement or the bringing of any action to collect the same.
    • Taxes. Customer shall pay or shall reimburse ChemREADY for all sales taxes and other taxes, however characterized by the taxing authority, based upon the fees or other charges under this Agreement or otherwise incurred on account of Customer’s receipt of or use of the Services, except for any taxes based upon ChemREADY’s income or assets.
    • Expenses. Customer shall reimburse ChemREADY for any out-of-pocket expenses incurred in connection with the performance of the Services as set forth in a service request, including without limitation any expenses identified in an invoice.
  5. Intellectual Property.
    • Confidential Information. All Confidential Information provided by the Disclosing Party to the Receiving Party is the sole and exclusive property of the Disclosing Party. For purposes of this Agreement Customer hereby grants ChemREADY a worldwide, non-exclusive, royalty-free right and license to access, utilize, reproduce, create derivative works of, display, and distribute any such Customer Confidential Information in connection with ChemREADY’s provision of the Platform to Customer and its Authorized Users and performance of its obligations under this Agreement.
    • Product Data. All Product Data, including the analytics of such Product Data, generated by or resulting from use of the Products is the sole and exclusive property of Customer. For purposes of this Agreement, Customer hereby grants ChemREADY a perpetual, worldwide, non-exclusive, royalty-free right and license to access, utilize, reproduce, analyze, create derivative works of, display, and distribute any such Product Data in connection with ChemREADY’s business and performance of its obligations under this Agreement, including without limitation the use of any Product Data in connection with ChemREADY’s proprietary software and services and to make any Recommendations under this Agreement, and ChemREADY shall exclusively own all new data created or derived therefrom (subject to ChemREADY’s and its third party licensors’ obligations with respect to such Product Data).
    • ChemREADY Intellectual Property. Except for any rights expressly set forth in this Agreement, no other rights or licenses are granted by ChemREADY to Customer. ChemREADY (or its third party licensors, as applicable) retains sole and exclusive ownership of, and all intellectual property rights in and to, the Platform, Products, the Water Treatment Program and any WSMP (as applicable), the Services, the Recommendations (excluding any Product Data or Third Party Intellectual Property contained therein) and all other ChemREADY intellectual property, as well as all derivative works, customizations, or enhancements thereto (collectively, “ChemREADY Intellectual Property”). ChemREADY reserves all rights, title, and interests in and to the ChemREADY Intellectual Property.
    • Third Party Licensors. The Platform, Products, Water Treatment Program and/or WSMP (as applicable), Services, and Recommendations may operate or interface with, use, or rely upon software, know-how, technology, or other intellectual property which is not proprietary to ChemREADY and is licensed to ChemREADY by third parties (“Third Party Licensors”), but for which ChemREADY has the necessary rights to license or otherwise use for the purposes of this Agreement (“Third Party Intellectual Property”). Customer agrees that: (i) Customer and its Authorized Users will use any such Third Party Intellectual Property only in accordance with this Agreement; (ii) no Third Party Licensor makes any warranties or representations of any kind, either express or implied, to Customer concerning the Third Party Intellectual Property or the Platform, Products, Water Treatment Program, WSMP, Services, or Recommendations; and (iii) no Third Party Licensor will have any obligation or liability to Customer as a result of this Agreement or Customer’s use of such Third Party Intellectual Property in connection with this Agreement.
    • Suggestions. To the extent any ideas, suggestions, enhancements, recommendations, or other feedback is provided by Customer or any Authorized User to ChemREADY (collectively, “Suggestions”), Customer hereby grants ChemREADY a perpetual, worldwide, transferable, sublicensable, irrevocable, royalty-free right and license to use, modify, and incorporate into the Platform, Products, Water Treatment Program, WSMP, and/or Services any such Suggestions.
  6. The Receiving Party shall: (i) maintain the Confidential Information in strict confidence using a commercially reasonable degree of care; (ii) limit dissemination to those employees, agents, or subcontractors who reasonably require use or access to such Confidential Information in order to perform under this Agreement; (iii) not disclose such Confidential Information to any other person except as otherwise expressly permitted in this Agreement or as may be agreed to in writing by the Disclosing Party; and (iv) use such Confidential Information only to the extent necessary to perform this Agreement. To the extent the Receiving Party discloses, or provides access to, Confidential Information to any employee, agent, or subcontractor in order to perform under this Agreement, the Receiving Party shall enter into a written agreement with such employee, agent, or subcontractor containing confidentiality and protection obligations for the Confidential Information at least as stringent as those set forth in this Agreement. The Receiving Party shall notify the Disclosing Party promptly of any disclosure or threat of disclosure of any Confidential Information not in accordance with this Agreement. If the Receiving Party is compelled to disclose any Confidential Information by order of a court of competent jurisdiction, any such disclosure shall not be a breach of this Agreement; provided, that the Receiving Party first gives the Disclosing Party prompt written notice of such required disclosure in order to permit the Disclosing Party to seek all applicable governmental or judicial protection available.
    • Customer’s Use of Professional Judgment. Customer acknowledges and agrees that any and all Recommendations provided under this Agreement will be based, in whole or in part, on Product Data and/or samples, data, documents, or other information provided by Customer and, therefore, is dependent on the accuracy of such information. ChemREADY will rely on generally accepted standards and practices of the industry in making any Recommendations and will, further, use its reasonable, professional judgment in determining what information will be reviewed and relied upon in making any Recommendations. However, ChemREADY, its employees, agents, and subcontractors are not responsible for the accuracy, completeness, or integrity of such information and assume no liability relating to the same. Accordingly, Customer acknowledges and agrees that any Recommendations provided under this Agreement are not a substitute for Customer’s fully informed analysis or judgment. Customer may accept or reject any Recommendations, and Customer shall be ultimately and solely responsible for all decisions and actions resulting from or relating to any Recommendations made under this Agreement.
    • Customer’s Use of Recommendations. ChemREADY does not represent that any Recommendations will be suitable for reuse by Customer or for use by any person other than Customer. Any such use or reuse shall be at Customer’s sole risk.
    • DISCLAIMERS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, The Platform, Products, water treatment program, water safety management plan, SERVICES, RECOMMENDATIONS, and all other materials and information provided by ChemREADY are provided “as Is” and “with all faults,” and ChemREADY makes no warranties of any kind, whether express OR implied, and specifically disclaims all implied warranties, including WITHOUT LIMITATION any warranties of merchantability, accuracy, results, noninfringement, or fitness for a particular purpose, or that the operation of the Platform or Products will be uninterrupted or error-free or that all errors will be corrected. ChemREADY MAKES NO WARRANTIES REGARDING THE ACCURACY OR COMPLETENESS OF ANY INFORMATION PROVIDED IN CONNECTION WITH OR RESULTS OBTAINED THROUGH USE OF THE Products OR OF THE RECOMMENDATIONS. Customer acknowledges and agrees that the Products provided hereunder are solely a conduit for any Product Data. ChemREADY SHALL HAVE NO LIABILITY FOR ANY CLAIM ARISING FROM ANY USE OF SUCH INFORMATION, RESULTS OR any RECOMMENDATIONS. In no event shall ChemREADY be liable for the non-performance of any chemicals supplied by a third party; provided, that The Parties shall agree to a mechanism to evaluate the non-performance of any such chemicals that impedes upon ChemREADY Process optimization activities.
    • Customer Indemnification. Customer agrees to indemnify, defend, and hold harmless ChemREADY, its affiliates, and their respective officers, directors, employees, agents, and successors and assigns (collectively, the “ChemREADY Indemnitees”) from and against any and all third-party claims and all resulting damages, liabilities, losses, and expenses (including reasonable attorneys’ fees and expenses) to which any ChemREADY Indemnitee may become subject to as a result of or to the extent arising out of or related to (i) the Product Data; (ii) Customer’s use of the Platform or Products not in accordance with this Agreement; (iii) any breach of Section 2(d); (iv) Customer’s use of the Products in connection with the Customer’s equipment; or (v) Customer’s failure to strictly comply with any Recommendation or other guidance or instruction of ChemREADY.
    • ChemREADY Indemnification. ChemREADY agrees to indemnify, defend, and hold harmless Customer, its affiliates, and their respective officers, directors, employees, agents, and successors and assigns (collectively, the “Customer Indemnitees”) from and against any and all third-party claims and all resulting damages, liabilities, losses, and expenses (including reasonable attorneys’ fees and expenses) to which any Customer Indemnitee may become subject to as a result of or to the extent arising out of or related to any claim that the Platform or Products, or Customer’s use thereof in accordance with this Agreement, infringes, misappropriates, or violates the intellectual property or proprietary rights of a third party (each, an “IP Claim”). To the extent an IP Claim is or may be brought by a third party, ChemREADY may, at its sole option and expense: (i) obtain for Customer the right to continue using the Platform or Products consistent with the terms of this Agreement; (ii) modify the Platform or Products so that it is non-infringing and in compliance with this Agreement; (iii) replace the Platform or Products with a non-infringing alternative of equivalent functionality; or (iv) if (i)-(iii) are commercially unreasonable, terminate this Agreement and issue a refund for any prepaid fees depreciated on a straight-line basis over a sixty (60) month period. The foregoing remedies for an IP Claim state ChemREADY’s sole liability, and Customer’s sole and exclusive remedy, for any IP Claims.
    • Indemnification Process. Indemnification under this Section 8 and under Section 3(m) is conditioned upon the Party seeking such indemnification (the “Indemnified Party”): (i) promptly notifying the Party obligated to provide indemnification (the “Indemnitor”) of the existence of any claim (together with copies of any applicable documents or other relevant information); (ii) provide the Indemnitor with reasonable assistance and cooperation in connection with the defense of the claim, in each case at the Indemnitor’s sole expense; and (iii) allow the Indemnitor to control the claim and any related settlement negotiations; provided that the Indemnified Party shall have the right to participate in such claim or settlement negotiations with counsel at its selection and at its sole expense. The Indemnitor may not consent to entry of any judgment or enter into any settlement that imposes liability or obligations on the Indemnified Party or diminishes the Indemnified Party’s rights without first obtaining the Indemnified Party’s express written consent.
  1. Limitation of Liability. IN NO EVENT SHALL ChemREADY HAVE ANY LIABILITY TO Customer FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY EVEN IF ChemREADY IS ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. in no event shall ChemREADY’s AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED the total fees paid or payable under this Agreement in the twelve (12) months preceding the event giving rise to the claim.
    • Term. This Agreement shall commence on the Effective Date and shall continue for an initial term of twelve (12) months. Thereafter, this Agreement shall remain in effect for so long as Customer pays the Subscription Fees set forth herein, unless earlier terminated as permitted in Sections 2(d)8(b), or 10(b) of this Agreement.
    • Termination. This Agreement may be terminated immediately upon written notice by either Party if: (i) the other Party is in material breach of its obligations hereunder and has not cured such breach within thirty (30) days after notice requesting cure of the breach; or (ii) upon the filing or institution of bankruptcy, reorganization, liquidation, or receivership proceedings, or upon an assignment of a substantial portion of the assets for the benefit of creditors by the other Party; provided, that in the case of any involuntary bankruptcy proceedings, such right to terminate shall only become effective if the Party consents to the involuntary bankruptcy or such proceeding is not dismissed within ninety (90) days after the filing thereof.
    • Effect of Termination; Survival. Subject to Section 5(b), upon expiration or termination of this Agreement, each Party shall immediately return or destroy all Confidential Information (as defined in this Agreement) then in its possession, and each Party shall certify in writing that all such Confidential Information has been returned or destroyed. Upon expiration or termination of this Agreement, all provisions of this Agreement that, by their nature should survive, shall survive, including without limitation: Section 1 (Definitions); Section 2(d) (Restrictions); Section 4 (Fees and Expenses); Section 5 (Intellectual Property); Section 6 (Confidentiality); Section 7 (Disclaimers); Section 8 (Indemnification); Section 9 (Limitation of Liability); Section 10(c) (Effect of Termination; Survival); and Section 11 (Miscellaneous) as well as, to the extent applicable, Section 3(k) (Legionella Bacteria), Section 3(l) (Disclaimers), and Section 3(m) (Indemnification).
    • Injunctive Relief. The Parties acknowledge and agree that the remedy at law for any breach of Section 2(d)Section 5, or Section 6 shall be inadequate and that the non-breaching Party shall be entitled to seek injunctive relief against any such breach or threatened breach, without posting any bond or showing of irreparable harm, in addition to any other remedy available to it.
    • Assignment. The rights and obligations under this Agreement are personal to each Party and shall not be assignable or transferable by either Party, in whole or in part, without the prior written consent of the other Party, which consent shall not be unreasonably withheld, conditioned, or delayed; provided, however, that ChemREADY may assign or transfer its rights and obligations under this Agreement without the prior written consent of Customer if (i) to an affiliate or (ii) pursuant to a merger, change in control, reorganization, or sale of all or substantially all of ChemREADY’s assets or business. Subject to the foregoing, this Agreement shall inure to the benefit of and be binding upon the successors and assigns of the Parties hereto. Any assignment or transfer in contravention of this Section shall be null and void.
    • Notices. All notices, consents, waivers, and other communications provided under this Agreement shall be in writing and shall be deemed received and effective (i) upon delivery if by hand; (ii) on the date of receipt or refusal of receipt if by certified mail, postage prepaid, return receipt requested; or (iii) on the first business day following deposit if by a nationally recognized overnight courier. The sender shall address all notices, requests, demands, or other communications to the recipient at the addresses provided by a Party to the other Party. Any notice addressed to ChemREADY shall include a copy sent to: ChemREADY Laboratories International, Inc., 1256 North McLean Boulevard, Memphis, Tennessee 38108, Attn: General Counsel.
    • Independent Contractors. The Parties understand and agree that this Agreement does not make either Party an agent or legal representative of the other Party for any purpose whatsoever. No Party is granted, by this Agreement or otherwise, any right or authority to assume or create any obligation or responsibilities, express or implied, on behalf of or in the name of the other Party, or to bind the other Party in any manner whatsoever. The Parties expressly acknowledge that (i) ChemREADY is an independent contractor with respect to the Parties in all respects, and (ii) the Parties are not partners, joint ventures, employees, or agents of or with each other.
    • Headings; Construction; Good Faith. The headings in this Agreement are for convenience only, are not to be construed as part of this Agreement, and shall not limit, characterize, or in any way affect the interpretation of this Agreement. This Agreement shall not be construed as if it had been prepared by one of the Parties, but rather as if both Parties had prepared the same. Further, each Party agrees that, in its respective dealings with the other Party under or in connection with this Agreement, it shall act in good faith.
    • Governing Law; Venue. This Agreement shall be governed by and construed under the laws of the State of Tennessee and the United States of America without regard to any conflicts of laws principles that would require the application of any other law. Jurisdiction and venue for any action concerning this Agreement shall be in the state Chancery Court or federal court having jurisdiction over Shelby County, Tennessee, United States of America, and the Parties expressly agree to commence action, claim, or proceeding arising out of or related to this Agreement solely and exclusively therein.
    • Force Majeure. Except for Customer’s payment obligations under this Agreement, the inability of any Party to commence or complete its obligations under this Agreement resulting from events beyond the Party’s reasonable control, including delays caused by strikes, insurrection, acts of God, war, government actions, epidemic or pandemics, or other similar causes (each, a “Force Majeure Event”) that shall have been timely communicated to the other Party, shall extend the period for the performance of the obligations for the period equal to the period(s) of any such delays(s); provided, that such Party shall continue to perform to the extent feasible in view of such Force Majeure Event.
    • Severability. If any provision of this Agreement is found to be invalid, illegal, or unenforceable by a court of competent jurisdiction, such holding shall not affect the enforceability of any other provisions hereof, and the court shall modify, limit, or interpret such provision so as to render it valid and enforceable to the full extent allowed by law. However, if such provision is not susceptible of such reformation and thus is finally held to be invalid, illegal, or unenforceable, then such invalidity, illegality, or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein.
    • Amendments; Waiver. This Agreement may be unilaterally altered or amended by ChemREADY, from time to time at ChemREADY’s discretion, provided that ChemREADY shall provide notice of any such amendment to Customer by posting such notice at the following website address: www.ChemREADYdigitalwater.com. Rights hereunder will not be waived, except by a writing executed by the authorized representative(s) of the Party or Parties to be charged with such amendment or waiver. The Parties agree that no failure or delay by either Party in exercising any right, power, or privilege hereunder shall operate as a waiver, nor shall any single or partial exercise thereof preclude any further exercise of any right, power, or privilege.
    • Authority. The Parties represent that they have full corporate power and authority to enter into and perform this Agreement, and the Parties know of no contract, agreement, promise, or undertaking that would prevent the full corporate execution and performance of this Agreement, and the Persons executing this Agreement on behalf of the Parties are duly authorized to do so and have the authority to bind such Parties.
    • No Third-Party Beneficiaries. This Agreement is entered into solely between, and may be enforced only by, ChemREADY, Customer, and their permitted successors and assigns; and except as expressly set forth in this Agreement, this Agreement shall not be deemed to create any rights in third parties, including without limitation, suppliers and customers of a Party, or to create any obligations of a Party to any such third parties.
    • Entire Agreement; Counterparts. This Agreement constitutes the entire understanding of the Parties and supersedes any prior agreements or understandings, written or oral, between the Parties with respect to the subject matter hereof. All exhibits, schedules, and annexes attached hereto are hereby incorporated and made a part of this Agreement. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original. A facsimile or electronic copy of a signature shall be as binding as an original signature.

ANNEX 1

WATER SAFETY MANAGEMENT PLAN

TERMS AND CONDITIONS

If Customer elects to engage ChemREADY to assist in the creation of a Water Safety Management Plan for any Customer Location(s), the following terms and conditions shall apply, in addition to those contained in the Agreement:

 

  1. ChemREADY is pleased to assist in the development of a Water Safety Management Plan (“WSMP”) which is intended to aid your facility in minimizing the risk of waterborne pathogens. This program will be guided by the current ANSI/ASHRAE 188 Standard entitled, Legionellosis: Risk Management for Building Water Systems as well as ASHRAE Guideline 12-2020 entitled, Managing the Risk of Legionellosis Associated with Building Water Systems, which provides guidance in the implementation of ASHRAE 188. An ASHRAE 188-compliant Water Safety Management Plan is a facility-specific document that describes building water systems, identifies hazards, designates control measures, and assigns verification and validation schedules with appropriate corrective actions. While WSMPs are designed to improve water safety, they do not guarantee elimination of all health-related risks. In addition, recommended practices do not guarantee water quality within the assessed systems. State and local regulations may override specific recommendations.
  2. HC Info. Legionella science is evolving. Accordingly, ChemREADY has engaged, HC Information Resources Inc. (hereinafter  referred to as “HC INFO”) to develop and implement a WSMP for the Customer Location(s). This team will work to identify locations and situations of increased risk for Legionella growth and transmission, develop control strategies, and finalize a detailed WSMP for the Customer Location(s). Customer approves the disclosure of information relevant to the development and implementation of the WSMP to HC INFO.
  3. ChemREADY will provide the following services for the WSMP with the assistance and/or guidance of the Customer:
  • A facility risk assessment will be conducted as required by ASHRAE 188 to determine relevant building characteristics including any devices or factors which could increase risk for legionellosis. ASHRAE 188 requires this survey for compliance to be conducted annually and any time renovations or modifications are made to the building. A survey of the Customer Location(s) for water flow, points of use, and identification of potential hazards will be conducted.
  • A review of existing water diagrams and data possessed by Customer which are relevant to legionellosis risk will be conducted.
  • The building information and water systems will be documented and described with a summary of control locations and validation points.
  • Control limits will be established and monitored to demonstrate that the system is operating within the prescribed control limits. These monitoring methods and minimum monitoring frequencies should be employed, and the actions documented to demonstrate proper management and control of legionella in the system.
  • A Water Safety Management Program Team (the “Program Team”) will be created and include individuals designated by the Customer who are responsible for developing, implementing, and maintaining the WSMP.
  • The Program Team will designate a response plan and corrective action in response to a positive legionella test result or infection.
  • The WSMP will be verified and validated on an ongoing basis to confirm proper implementation.
  • The Program Team will maintain documentation to memorialize monitoring, compliance with control limits, corrective actions, and WSMP validation, as appropriate.
  • Legionella Testing. Legionella testing may assist in the validation of the WSMP. Such testing may also be a necessary corrective action as part of the WSMP. As needed, ChemREADY will obtain the agreed upon number of environmental samples from Customer’s water system(s) in the quantities requested by and in accordance with the methods prescribed and directed by ChemREADY. ChemREADY shall properly store and transport the environmental samples to the approved HC INFO laboratory for testing. Customer acknowledges that the frequency at which samples are to be taken as specified in the WSMP are subject to change. Customer agrees to pay all corresponding costs. Customer approves ChemREADY to perform the necessary testing for each environmental sample.
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