Last Updated: 11/22/2023
These SewerAI Terms of Service (the “Agreement”) set forth the terms and conditions pursuant
to which SewerAI Corporation (“SewerAI”) will provide you or the entity that you represent
(“You”) with the right to access and use the SewerAI Platform or other Services.
To access and use the SewerAI Platform, You must click “I Agree” where indicated in the
SewerAI Platform user registration process. BY CLICKING “I AGREE” IN CONNECTION
WITH THIS AGREEMENT, BY ELECTRONICALLY OR MANUALLY SIGNING THIS
AGREEMENT, OR BY OTHERWISE ACCESSING OR USING THE SERVICES, YOU
SIGNIFY YOUR AGREEMENT TO ALL TERMS, CONDITIONS, AND NOTICES
CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO
THOSE TERMS, CONDITIONS AND NOTICES, YOU MAY NOT ACCESS OR USE THE
SERVICES.
SewerAI reserves the right to revise any portion of this Agreement in its sole discretion at any
time and without prior notice to You by updating this posting. Thus, You should visit this page
periodically for changes. If You disagree with any changes to this Agreement, Your sole remedy
is to discontinue Your use of the Services. Your continued use of any of the Services after a
change has been posted constitutes Your acceptance of the change.
1. Definitions. As used in this Agreement, each of the following terms will have the
meanings attributed to them as follows:
“Affiliate” means, with respect to a Party, any entity that, directly or indirectly, controls, is
controlled by, or is under common control with that Party; and “control” means the direct or
indirect possession of the power to direct or cause the direction of the management and policies
of another entity, whether through the ownership of voting securities, by contract or otherwise.
“Aggregate Data” means all aggregate and statistical information or analyses collected by
SewerAI relating to Your use of the Services.
“AI Service” means SewerAI’s proprietary service, currently branded as “AutoCode”, that scans
Your Content for issues and defects applying artificial intelligence algorithms and creates a
Report identifying those issues and defects.
“Authorized User” means Your employees and the employees of Your subcontractors that have
been assigned a unique username-password combination to access and use the Services.
“Confidential Information” means all technical, business, financial and other information of a
Party that derives economic value, actual or potential, from not being generally known to others,
including, without limitation, any technical or non-technical data, designs, methods, techniques,
drawings, processes, products, inventions, improvements, methods or plans of operation,research and development, business plans and financial information of that Party. The
Confidential Information of SewerAI will include, without limitation, the SewerAI Property and
any pricing and Fee information set forth any Order. Your Confidential Information will include,
without limitation, Your Content. Confidential Information does not include information that the
receiving Party can document: (i) has entered the public domain through a source other than the
receiving Party and through no fault of the receiving Party; (ii) was rightfully known to the
receiving Party without a confidentiality obligation prior to the commencement of the Services;
(iii) is disclosed to the receiving Party by a third party that has no confidentiality obligation; or
(iv) is developed by the receiving Party independently of and without reference to any
Confidential Information.
“Fees” means the SewerAI fees for the Services, as set forth in each Order.
“Intellectual Property Rights” means patent rights (including patent applications and invention
disclosures), design rights, copyrights, rights in database, moral rights, trademarks, service
marks, trade secrets, know-how, rights in or relating to confidential information and any other
intellectual property right (whether registered or unregistered) recognized in any country or
jurisdiction in the world, now or later existing, and whether or not perfected, filed or recorded
including all rights of reversion and rights to any applications and pending registrations and the
right to sue for and recover damages for past infringements.
“Order” means a written order for the Services that You accept online or You mutually execute
with SewerAI.
“Party” means each of SewerAI and You. Both SewerAI and You are referred to as the
“Parties”.
“Reports” means any report of NASSCO PACP, LACP or MACP codes that SewerAI generates
and provides to You or Authorized Users based on the analysis of Your Content.
“Services” means: (a) the SewerAI Platform; (b) the AI Service; (c) support and maintenance
services to be provided by SewerAI pursuant to Section 2.4; (d) any professional services, such
as analyzing Your Content as a service, specified in an Order and provided by SewerAI; and (e)
any other services performed by SewerAI under this Agreement.
“SewerAI API” means SewerAI’s proprietary application program interface and associated
services, if any, through which You may access the SewerAI Platform.
“SewerAI API Materials” means documentation, code, and other materials, if any, that
SewerAI provides or makes available to You relating to use of the SewerAI Platform and
SewerAI API.
“SewerAI Metadata” means any information and observations resulting from SewerAI’s
inspection and analysis of Your Content, including any information and observations generated
by the AI Service. For clarity, however, SewerAI Metadata does not include the NASSCO
PACP, LACP or MACP codes set forth in Reports, which You own.
“SewerAI Platform” means the SewerAI’s proprietary hosted platform, currently branded as
“Pioneer” that: (a) allows Authorized Users to upload, store, label and stream Your Content,
including sewer inspection videos; (b) allows Authorized Users to push Your Content to the AI
Service for analysis; (c) allows Authorized Users to review any report generated by the AI
Service and input additional labels and data; (d) generates 3D model(s) of specified
infrastructure depicted in Your Content; and (e) provides other related services.
“SewerAI Property” means: (a) the SewerAI Platform; (b) the AI Service; (c) SewerAI
Metadata; (d) any 3D models of specified infrastructure depicted in Your Content that are
generated by the SewerAI Platform; (e) the SewerAI API and SewerAI API Materials; (f) any
Confidential Information of SewerAI; and (g) Aggregate Data.
“Term” has the meaning set forth in Section 10.1.
“Upgrades” means any upgrades, updates, revisions, corrections, modifications improvements,
bug fixes, patches, maintenance releases, versions, and enhancements to the SewerAI Platform
that SewerAI makes generally available to its customers at no additional charge during the Term,
excluding any beta versions of the foregoing.
“Your Content” means any videos of sewer lines and any other data, labels, text, graphics,
images, video clips, audio recordings, or other content or information that You, Your
subcontractors or their respective Authorized Users upload into the SewerAI Platform or
otherwise make available to SewerAI in connection with the Services, provided that Your
Content will not include any SewerAI Metadata.
“Your Property” means: (a) Your Content; (b) any Reports that SewerAI provides to You; and
(c) Your Confidential Information.
2. Services.
2.1. Provision of Services. SewerAI will host and provide to You the SewerAI Platform
and other Services in accordance with this Agreement and each Order. SewerAI’s personnel
performing the Services may be either SewerAI employees or subcontractor personnel. SewerAI
will be responsible for any acts or omissions of SewerAI’s employees or subcontractors that
cause SewerAI to be in breach of this Agreement. If SewerAI makes a SewerAI API available
for use by its customers in its sole discretion, SewerAI will provide You with any SewerAI API
Materials necessary for You to access the SewerAI Platform via the SewerAI API; provided,
however, that SewerAI will have no obligation to provide any SewerAI API. You agree to
cooperate reasonably with SewerAI’s efforts to provide the Services, and SewerAI will not be
responsible for any delays in providing the Services to the extent caused by Your failure to
cooperate or to provide any assistance specified in the applicable Order.
2.2. Your Account and Authorized Users. In the event You subscribe to the SewerAI
Platform in an Order, SewerAI will establish in the SewerAI Platform any necessary accounts for
the number of Authorized Users specified in the Order. For the avoidance of doubt, login
credentials will be associated with named Authorized Users, and You must not: (a) exceed thetotal number of Authorized Users purchased in the Order; or (b) allow Your employees or
subcontractors to share account credentials to circumvent the limit on the number of Authorized
Users purchased in the Order. In the event You desire to transfer an Authorized User login to a
new employee or subcontractor, SewerAI will assist You with the transfer. Authorized Users of
the SewerAI Platform will have the ability to use the SewerAI Platform to upload Your Content,
review and export Your Content and SewerAI Metadata, input labels and other information
regarding Your Content, manage Your account, and otherwise use the functionalities described in
the user documentation that SewerAI makes available to You. In addition, in the event You
subscribe to the SewerAI Platform in an Order, You may request that SewerAI provide a limited-
access guest login to other third parties whom You may authorize to view and export Your
Content and SewerAI Metadata, provided that guest login users will not be permitted to use other
features or functionalities of the SewerAI Platform. You agree to keep Your account information
confidential and not to share it with any third party other than Authorized Users. You are fully
responsible for all activities that occur under Your account and for maintaining up-to-date and
accurate information (including without limitation valid contact information) with respect to
Your account.
2.3. Ability to Download Data. In the event You subscribe to the SewerAI Platform in an
Order, at any time during Your subscription period, You will have the ability to download any of
Your Content, Reports and databases of Report content then stored in the SewerAI Platform.
Except as otherwise expressly provided in Section 10.4, You will not have the ability to
download Your Content, Reports and databases of Report content following any expiration or
termination of Your subscription period, and SewerAI will have the right to delete any of Your
Content, Reports and databases of Report content in its sole discretion following expiration or
termination of Your subscription period.
2.4. SewerAI Support and SewerAI Platform Upgrades. SewerAI will use commercially
reasonable efforts to keep the SewerAI Platform operational on a continuous basis during the
term of this Agreement, exclusive of downtime necessary for scheduled and emergency
maintenance. SewerAI will provide support to You during the hours of 9 a.m. to 5 p.m. Pacific
Time, Monday through Friday (excluding national holidays), for all technical support issues
relating to the SewerAI Platform. At SewerAI’s sole discretion, SewerAI will make Upgrades
available to You when generally available and at no additional charge. For the avoidance of
doubt, SewerAI reserves the right to offer certain enhancements and optional services for the
SewerAI Platform for an additional charge, in SewerAI’s sole discretion.
3. Licenses.
3.1. Licenses to SewerAI Platform and SewerAI Metadata. Subject to the terms and
conditions of this Agreement, SewerAI hereby grants to You a non-exclusive, non-sublicensable
(except as expressly permitted under this Agreement), non-transferable (except as expressly
permitted under this Agreement) revocable license: (a) during the subscription period set forth in
each Order that includes a subscription to the SewerAI Platform, to access and use the SewerAI
Platform, user documentation, SewerAI API (if provided by SewerAI) and the SewerAI API
Materials (if provided by SewerAI) for the purposes described in Section 2.2; and (b) on a
perpetual basis, to use any SewerAI Metadata that You download from the SewerAI Platformduring Your subscription period or that SewerAI otherwise makes available to You in connection
with the Services. You may permit the number of Authorized Users authorized under Your Order
to exercise the foregoing rights, provided that: (i) any Authorized Users who are subcontractors
will only exercise those rights in the course of performing services for You; and (ii) You must
ensure that all Authorized Users comply with this Agreement and You will be liable for any
breach of this Agreement caused by any Authorized Users. If Your Order includes a subscription
to the SewerAI Platform, You may also permit guest login users to access and use the SewerAI
Platform as described in Section 2.2 with respect to those users, provided that You must ensure
that all guest login users comply with this Agreement and You will be liable for any breach of
this Agreement caused by any guest login users.
3.2. Restrictions on Use of SewerAI Property. You will not attempt to interfere with or
disrupt any of the SewerAI Property. Except as expressly authorized under the Agreement, You
must not: (a) reverse engineer, disassemble, reconstruct, decompile, copy, or create derivative
works of the SewerAI Platform, AI Service or other SewerAI Property, or use the SewerAI
Platform or AI Service for the purpose of creating a competing service; (b) copy, modify, transfer
or distribute any portion of the SewerAI Platform, AI Service or other SewerAI Property; (c)
rent, lease, or provide access to the SewerAI Platform, AI Service or other SewerAI Property on
a service bureau basis; or (d) violate any usage limitations set forth in the Order. You will use
the SewerAI Property solely for authorized and legal purposes and will not use the SewerAI
Property to violate any applicable laws or regulations.
3.3. License to Your Content. Subject to the terms and conditions of this Agreement, You
hereby grant SewerAI an irrevocable, perpetual, non-exclusive, royalty-free, non-transferable
(except as expressly permitted under this Agreement), non-sublicensable (except as expressly
permitted under this Agreement), worldwide license to reproduce, store, display and use any of
Your Content (including without limitation any header data or metadata included in Your
Content): (a) to provide the Services to You; (b) for other commercial purposes such as product
development and improving products and services, testing and troubleshooting; and (c) to
conduct sales and marketing to You. SewerAI will have the right to permit its subcontractors to
exercise the foregoing rights, provided that SewerAI will be responsible for any breach of this
Agreement caused by any subcontractors. SewerAI will also have the right to permit third-party
sublicensees to exercise the rights granted in subsection (b), provided that the data is aggregated
with data of other SewerAI customers and does not identify You as the owner of the data.
4. Proprietary Rights.
4.1. SewerAI Property; Trademarks. Except for the limited license granted in this
Agreement, as between the Parties, all right, title, and interest in and to any SewerAI Property,
including without limitation any Intellectual Property Rights in the Sewer AI Property, but
excluding any of Your Property, are and will remain the exclusive property of SewerAI and its
licensors. SewerAI reserves all rights in and to all the SewerAI Property and nothing contained
in this Agreement will be construed as conveying any right or license in the SewerAI Property,
by implication, estoppel, or otherwise. “AUTOCODE” and “PIONEER” are trademarks and
service marks owned by SewerAI, and SewerAI reserves all right in those trademarks and
service marks.
4.2. Use of Aggregate Data and SewerAI Metadata. You understand and agree that
SewerAI owns the Aggregate Data, SewerAI Metadata and 3D models of Your infrastructure
generated and will have the right to use that data for product development, conducting sales and
marketing to You and for other commercial purposes in its sole discretion; provided, however,
that SewerAI will only share that data with third parties if that data is anonymized and
aggregated with data of other SewerAI customers.
4.3. Third-Party Property. SewerAI may use certain content of NASSCO, Esri and other
third-party licensors to provide the Services. Any of that content remains the property of
NASSCO, Esri or SewerAI’s other licensors as applicable. NASSCO, PACP®, MACP®, and
LACP®, and associated logos are the trademarks and service marks of NASSCO. The Esri
Partner Network emblems are the licensed trademarks and service marks of Environmental
Systems Research Institute, Inc. Any other third-party trademarks, services marks and logos
displayed in the Services are the trademarks of their respective owners.
4.4. Your Property. Except for the limited license granted in this Agreement, as between
the Parties, all right, title, and interest in and to any of Your Property, including without
limitation any Intellectual Property Rights in Your Property, are and will remain the exclusive
property of You and Your licensors.
4.5. Responsibility for Your Content. You are responsible for all of Your Content, including
for the accuracy, legality and integrity of that content, and You must obtain in advance all
consents, approvals, licenses, and permissions necessary to upload Your Content to the Services.
You must not upload to the Services, or permit any third party to upload, any content that
violates third-party privacy, publicity, or intellectual property rights; violates applicable laws,
regulations or industry standards; or contains hate speech or material that is violent, obscene,
pornographic, abusive, defamatory, offensive, or otherwise not reasonably related to the
Services. Without limiting any of SewerAI’s other rights and remedies, SewerAI will have the
right (but not the obligation) in its sole discretion to remove from the Services any content that
violates this Agreement or any of SewerAI’s policies and procedures, or is otherwise
objectionable. YOU MUST NOT CAUSE TO BE UPLOADED TO THE SERVICES ANY
CONTENT FOR WHICH YOU DO NOT HAVE ALL NECESSARY OWNERSHIP RIGHTS,
LICENSES, CONSENTS OR PERMISSIONS.
5. Payment Obligations.
5.1. Fees and Payment. You must pay SewerAI the Fees set forth in each Order. SewerAI
will invoice You in accordance with the payment schedule set forth in each Order. You will pay
each invoice in accordance with the payment schedule set forth in each Order. In the event of
early termination of this Agreement, You will pay any Fees then accrued and payable for
Services performed through the effective date of termination. Except as otherwise expressly
provided in this Agreement, all Fees are non-refundable. Except as otherwise provided in the
Order, all amounts billed to You will be expressed in, and You will make all payments in, United
States dollars. You will pay all amounts due without any set-off, counterclaim, deduction or
withholding (except for any deduction or withholding required by law). SewerAI may, at itsoption, apply money You owe to SewerAI against any money SewerAI owes to You. You and
SewerAI will use good faith efforts to resolve any disputed invoiced amounts or charges.
5.2. Taxes. You will bear all local, state and federal sales, use, gross receipts, excise,
import or export, value added or similar taxes, duties, fees, assessments or levies (“Taxes”), if
any, legally imposed in connection with the Fees paid hereunder. SewerAI will separately state
on each applicable invoice, and You must pay, any Taxes; provided, however, that You will not
be responsible for taxes on SewerAI’s net income, profits, business assets, or ad valorem
personal property.
5.3. Remedies for Non-Payment. In addition to any other remedies available to SewerAI,
including any remedies set forth in the applicable Order, in the event that You fail to pay any
invoiced amounts when due: (a) SewerAI will have the right to immediately suspend or block
Your access to the Services until full payment of those amounts is received; and (b) You must
pay a late charge equal to the lesser of 1.5% per month (pro-rated if necessary) or the maximum
amount permitted under applicable law, on any past due balance, and that late charge will accrue
beginning on the day after the amount is due.
6. Confidentiality, Data Security and Data Privacy.
6.1. Confidentiality. The Party receiving Confidential Information agrees: (i) to hold and
maintain in strict confidence the Confidential Information and not to disclose it to any third party
other than its employees and subcontractors who have a need to know and have executed
confidentiality agreements with the receiving Party no less protective of the Confidential
Information than this Section; (ii) to protect the Confidential Information from disclosure with
the same degree of care it uses to protect its own proprietary information similar in nature, but in
no event less than a reasonable degree of care; (iii) not to use any Confidential Information for
any purpose other performing its obligation or exercising its rights under this Agreement; (iv) to
return or destroy Confidential Information promptly upon the disclosing Party’s written request.
For clarity, nothing in this Section 6 will restrict or limit SewerAI’s rights to use Your Content
as provided in Section 3.3. Either Party may disclose Confidential Information in response to a
valid order of a court or other governmental body, but only to the extent of and for the purposes
of that order; provided, however, that the receiving Party agrees to immediately inform the
disclosing Party in writing of the existence, terms, and circumstances surrounding the request or
order. The receiving Party acknowledges that the unauthorized disclosure or use of Confidential
Information may cause irreparable harm to the disclosing Party, which harm cannot be
compensated by damages alone. Therefore, in addition to all other rights and remedies at law
and in equity, the disclosing Party may seek an injunction to prevent a violation of the
obligations of confidentiality.
6.2. Data Security and Privacy. SewerAI will maintain a data security program that
includes physical, technical, and managerial procedures that are up-to-date and generally
accepted in SewerAI’s industry to prevent unauthorized use or disclosure of Your Property stored
in the Services. SewerAI will have the right to suspend Your access to the Services on an
emergency basis: (a) in the event that SewerAI detects any actual or apparent theft, unauthorized
access or use of the Services, or other malicious activity by You or any third party; and (b) tomaintain data integrity within the Services. The parties must each comply with all applicable
privacy laws and regulations relating to the protection of personal data. You hereby consent to
SewerAI’s use of personal data of your employees obtained from third-party sources for the
purpose of providing the Services to You. In addition, You hereby consent to SewerAI’s use of
any Business Card Data (defined below) that You provide to SewerAI: (i) for the purpose of
providing the Services to You; and (ii) in any additional manner described in the SewerAI
privacy policy governing the Services. “Business Card Data” means any business contact
information of Authorized Users, guest login users, Your employees or Your subcontractors (i.e.,
name, title, company/organization, business email, business phone number, and business
address).
7. Representations And Warranties; Disclaimer.
7.1. Representations and Warranties. Each Party represents and warrants as of the
Effective Date and at all times throughout the Term: (a) it has the full corporate right, power and
authority to enter into this Agreement and to perform its obligations hereunder; (b) the execution
of this Agreement by that Party and performance of its obligations hereunder comply with all
applicable laws, rules and regulations (including privacy, export control and obscenity laws); (c)
when executed and delivered, this Agreement will constitute a legal, valid and binding obligation
of that Party, enforceable against it in accordance with its terms; and (d) neither the execution
nor performance of this Agreement will violate any agreement to which it is a party or by which
it is otherwise bound. You further represent and warrant to SewerAI throughout the Term that:
(i) You have all consents, approvals, licenses, and permissions necessary for You to perform all
of Your obligations under this Agreement, to provide Your Content to the Services, and to grant
the licenses You have granted in this Agreement; and (ii) Your Content does not violate any
applicable laws, including without limitation any privacy laws, and does not infringe or
misappropriate any Intellectual Property Right, publicity or privacy right or other proprietary
right of any third party.
7.2. Accuracy of Services.
(a) Accuracy of Reports. SewerAI warrants that any Reports it delivers to You through the AI
Service will be accurate to the extent of the accuracy of Your Content provided for analysis by
the AI Service; provided, however, that: (i) SewerAI does not warrant accuracy in excess of the
accuracy warranted by the manufacturer of the camera used to collect Your Content; and (ii) if
the photographer who captured the underlying imagery of Your infrastructure failed to capture
that imagery in accordance with the capture best practices set forth on SewerAI’s website,
SewerAI does not warrant the accuracy of the Report and may not be able to use that imagery to
generate a Report.
(b) Accuracy of 3D Models. SewerAI warrants that any 3D models it delivers to You through the
SewerAI Platform will be accurate to the extent of the accuracy of Your Content used to generate
those models; provided, however, that: (a) SewerAI does not warrant accuracy in excess of the
accuracy warranted by the manufacturer of the camera used to collect Your Content; (b) if the
photographer who captured the underlying imagery for a 3D model failed to capture that imagery
in accordance with the capture best practices set forth on SewerAI’s website, SewerAI does notwarrant the accuracy of that 3D model and may not be able to use that imagery to generate a 3D
model; and (c) SewerAI does not warrant, and is not responsible for, inaccurate measurements or
other inaccurate metadata that Authorized Users generate through the improper use of a
generated 3D model. In the event of any breach of the warranty set forth in this Section 7.2, as
Your sole remedy and SewerAI’s sole liability, SewerAI will promptly re-create the 3D model(s)
in a manner that corrects the inaccuracy.
(c) Sole Remedy and Disclaimer. In the event of any breach of any warranty set forth in this
Section 7.2, as Your sole remedy and SewerAI’s sole liability, SewerAI will promptly use
commercially reasonable efforts to re-create the Report or the 3D model(s), as applicable, in a
manner that corrects the inaccuracy. The Services, including the Reports and 3D models, are
tools and are intended only to assist You with Your design, analysis, simulation, estimation,
testing and other activities, and the Services, Reports and 3D models are not a substitute for Your
professional judgment or Your own independent design, analysis, simulation, estimation and
testing, including those with respect to materials specifications, stress, safety and utility. It is
Your responsibility to determine whether the use of a Report or 3D model is appropriate for Your
purposes. You are solely responsible for Your (including Authorized Users’) use of the Services
and any results produced by the Services, including any Report or 3D model. You are also
responsible for establishing adequate, independent procedures for verifying the reliability,
accuracy, completeness, compliance with applicable legal requirements, and other characteristics
of any Report or 3D model. You further acknowledge that the Services, Reports and 3D models
may not achieve the results You desire. SEWERAI WILL NOT BE LIABLE OR
RESPONSIBLE IN ANY MANNER WHATSOEVER FOR YOUR USE OF ANY REPORTS
OR 3D MODELS GENERATED BY THE SERVICES, INCLUDING ANY RESULTS
OBTAINED FROM THAT USE OR ANY EXPENSES OR DAMAGES RESULTING FROM
THAT USE.
7.3. Warranty Disclaimer. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN
THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR
WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO ANY ITEMS
OR SERVICES PROVIDED HEREUNDER, INCLUDING, WITHOUT LIMITATION, ANY
IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE OR ARISING BY USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF
PERFORMANCE, AND EACH PARTY HEREBY DISCLAIMS THE SAME. EXCEPT AS
OTHERWISE SET FORTH IN SECTION 7.2, SEWERAI DOES NOT REPRESENT OR
WARRANT THAT THE SERVICES OR DOCUMENTATION WILL MEET YOUR NEEDS
OR REQUIREMENTS, THAT ANY CONTENT GENERATED BY THE SERVICES WILL BE
ACCURATE, COMPLETE OR RELIABLE, THAT USE OF THE SERVICES WILL BE
UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, OR THAT ANY
DEFECTS IN THE SERVICES OR DOCUMENTATION WILL BE CORRECTED.
8. Indemnification.
8.1. SewerAI Indemnification. SewerAI, at its own expense, will indemnify, defend and
hold harmless You, Your Affiliates and their respective directors, officers, employees,
representatives and agents (collectively, the “Your Indemnitees”) from and against any claim,demand, action, class action, investigation or other proceeding (“Claims”), including but not
limited to all damages, losses, liabilities, penalties, fines, judgments, costs and expenses
(including attorneys’ fees) arising therefrom (“Losses”), brought by any third party against any
of Your Indemnitees to the extent that the Claim is based on, or arises out of: (a) any third-party
allegation that the Services (excluding any of Your Content hosted in the Services), when used
by You in accordance with this Agreement, violate applicable law or infringe or violate the
Intellectual Property Rights of any third party; or (b) the fraud, gross negligence or willful
misconduct of SewerAI or its employees or subcontractors.
8.2. Additional Obligations of SewerAI. In addition to the indemnification obligations of
SewerAI set forth in Section 8.1 above, in the event the use of any Service is, or SewerAI
believes is likely to be, held to infringe any Intellectual Property Right, SewerAI must at its sole
option and expense: (a) replace or modify the Service so it is non-infringing (provided, that the
replaced or modified Service is substantially equivalent); (b) obtain for You a license to continue
using the Service in accordance with this Agreement; or (c) terminate the applicable Order and
refund to You the pro-rata amount of any unused Fees prepaid by You under that Order. YOU
AGREE, AS A MATERIAL TERM OF THE AGREEMENT, THAT SECTION 8.1 AND THIS
SECTION 8.2 SET FORTH YOUR EXCLUSIVE REMEDIES WITH RESPECT TO
INFRINGEMENT OF ANY OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS BY
ANY PORTION OF THE SEWERAI PROPERTY AND THAT SEWERAI WILL HAVE NO
INFRINGEMENT LIABILITY TO YOU EXCEPT AS PROVIDED IN THIS SECTION.
8.3. Your Indemnification. You, at Your own expense, will indemnify, defend and hold
harmless SewerAI, its Affiliates and their respective directors, officers, employees,
representatives and agents (collectively, the “SewerAI Indemnitees”) from and against any
Claim, including but not limited to any Losses arising therefrom, brought by any third party
against any SewerAI Indemnitee to the extent that the Claim is based on, or arises out of: (a) the
conduct of Your business; (b) Your Content; (c) any breach or purported breach of Your
obligations, representations or warranties under this Agreement; or (d) the fraud, gross
negligence or willful misconduct of You, Authorized Users or Your employees or subcontractors.
8.4. Indemnification Procedures. The obligations of each Party (the “Indemnitor”) under
this Agreement to defend, indemnify and hold harmless the other Party and its Affiliates, and
their respective directors, officers, employees, representatives and agents (each, an
“Indemnitee”) will be subject to the following: (a) the Indemnitee must provide the Indemnitor
with prompt notice of the Claim giving rise to the obligation; provided, however, that any failure
or delay in giving that notice will only relieve the Indemnitor of its obligation to defend,
indemnify and hold the Indemnitee harmless to the extent it reasonably demonstrates that its
defense or settlement of the Claim was adversely affected thereby; (b) the Indemnitor will have
sole control of the defense and of all negotiations for settlement of the Claim; provided, however,
that the Indemnitor must not settle any Claim unless the settlement completely and forever
releases the Indemnitee from all liability with respect to the Claim or unless the Indemnitee
consents to the settlement in writing (which consent will not be unreasonably withheld); and (c)
the Indemnitee must cooperate with the Indemnitor in the defense or settlement of any Claim;
provided, however, that the Indemnitee will be reimbursed for all reasonable out-of-pocket
expenses incurred in providing any cooperation requested by the Indemnitor. Subject to clause(b) above, the Indemnitee may participate in the defense of any Claim in which the Indemnitee is
involved at its own expense.
9. Limitation of Liability.
9.1. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER SEWERAI, NOR
ITS AFFILIATES OR LICENSORS WILL BE LIABLE, UNDER ANY CONTRACT,
NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR
ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR
EXEMPLARY DAMAGES. IN NO EVENT WILL THE TOTAL LIABILITY OF SEWERAI,
ITS AFFILIATES OR ITS LICENSORS UNDER THIS AGREEMENT EXCEED THE TOTAL
FEES PAID OR PAYABLE TO SEWERAI HEREUNDER THE RELEVANT ORDER DURING
THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE THE CAUSE
OF ACTION AROSE.
9.2. WITHOUT LIMITING THE GENERALITY OF SECTION 9.1, IN NO EVENT
WILL SEWERAI HAVE ANY LIABILITY OR OBLIGATION, INCLUDING FOR ANY
INDEMNIFICATION, DEFENSE, LOSSES OR SETTLEMENTS UNDER SECTION 8: (A)
EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7.2, ARISING OUT OF THE
ACCURACY, COMPLETENESS OR RELIABILITY OF ANY SERVICE, SEWERAI
METADATA, REPORT OR 3D MODEL; OR (B) WITH RESPECT TO ANY OF THE
FOLLOWING AS DETERMINED BY A TRIER OF FACT: (I) ANY FAULT APPORTIONED
TO YOU OR A THIRD PARTY; OR (II) ANY ACT OR OMISSION, FOR WHICH SEWERAI
IS NOT DIRECTLY RESPONSIBLE. WITHOUT LIMITATION, YOU WILL BE
RESPONSIBLE UNDER SECTION 8.3 FOR ANY INDEMNIFICATION, DEFENSE,
LOSSES OR SETTLEMENTS APPORTIONED TO YOU BY A TRIER OF FACT.
10. Term and Termination.
10.1. Term. This Agreement will become effective on the Effective Date and, unless earlier
terminated in accordance with this Agreement, will continue in full force and effect for the
subscription and service period set forth in each Order.
10.2. Termination for Cause. Either Party may terminate this Agreement by written notice to
the other Party if: (a) the other Party commits a material breach of this Agreement and that
breach remains uncured for thirty (30) days following written notice of breach by the terminating
Party; provided, however, that SewerAI may immediately terminate the Agreement without
refund, upon written notice to You, in the event that: (i) You violate Section 3.2; or (ii) You fail
to pay any amount owed under an Order within ten (10) days after the due date; (b) an applicable
law or an applicable government or court order prohibits performance of any part of this
Agreement; or (c) a petition in bankruptcy is filed against the other Party and is not dismissed
within sixty (60) days, or the other Party’s business is suspended, insolvent, or a receiver is
appointed for the other Party’s property or business, or any arrangement is made by or on behalf
of the other Party for the benefit of its creditors.10.3 Termination for Convenience. Either Party may terminate this Agreement for
convenience upon at least ninety (90) days prior written notice to the other Party.
10.4. Effect of Expiration or Termination; Survival. Upon the expiration or termination of
this Agreement for any reason: (a) You will immediately cease all access to and use of the
Services; (b) all licenses granted hereunder will immediately terminate (except for any license
expressly stated to be perpetual) and SewerAI will immediately cease providing Services to You,
except as set forth in Section 2.3; (c) You must, within thirty (30) days of expiration or
termination, pay to SewerAI all outstanding accrued and payable amounts owed by You to
SewerAI under this Agreement; and (d) Sections 1, 2.3, 3.2, 3.3, 4, 5.3, 6, 7.2(c), 7.3, 8, 9, 10.4
and 11 will survive. In the event that You terminate this Agreement for convenience pursuant to
Section 10.3, You must additionally pay to SewerAI all amounts that would have become
payable under the Order through the end of the then-current annual service period. In the event
that You subscribe to the SewerAI Platform in an Order and You terminate this Agreement for
cause pursuant Section 10.2, You will have the ability to download any of Your Content, Reports
and databases of Report content then stored in the SewerAI Platform for a period of one hundred
eighty (180) days following the effective date of termination; provided, however, that SewerAI
will have the right to delete any of Your Content, Reports and databases of Report content in its
sole discretion following the end of that time period. Neither Party will be liable for exercising
any termination right in accordance with this Agreement. Except as expressly provided,
expiration or termination of this Agreement will not release either Party from any liability or
obligation that had already accrued as of the effective date of expiration or termination, and the
expiration or termination will not constitute a waiver or release of, or otherwise be deemed to
prejudice or adversely affect, any rights, remedies or claims, whether for damages, injunctive
relief, or otherwise, that a Party may have hereunder at law, in equity or otherwise or that may
arise out of or in connection with that expiration or termination.
11. Miscellaneous.
11.1. Notice to United States Government End Users. If You are the U.S. Government or if
You are a contractor or subcontractor (at any tier) of the U.S. Government and are accessing the
Services for use by the U.S. Government or in connection with any contract or other transaction
with the U.S. Government, You acknowledge that by using the Services and all associated
software and technology of SewerAI qualify as commercial computer software and that any
associated documentation qualifies as commercial computer software documentation within the
meaning of the applicable acquisition regulations. The terms and conditions of this Agreement
are fully applicable to the Government’s use of the Services and associated software and
documentation, and will supersede any conflicting terms or conditions, unless otherwise
prohibited by federal law or regulation.
11.2. Compliance with Law. You represent and warrant that: (a) You are not located in,
domiciled in, a resident of, controlled by the government of, or organized under the laws of a
country or region that is subject to a U.S. Government embargo (currently, Crimea, Cuba, Iran,
North Korea, Syria and Venezuela); and (b) You are not on or, directly or indirectly, owned, in
whole or part, by any person or persons on the U.S. Treasury Department’s List of Specially
Designated Nationals and Blocked Persons or any other U.S. government list of parties withrespect to which transactions are forbidden or restricted. You must not export, re-export, import,
or transfer any good, service or other item that You received from SewerAI or Your right to
access the Services in violation of U.S. law or in any manner that is forbidden for U.S. citizens,
including, without limitation, transfer to a country or region that is subject to a U.S. government
embargo, and You must not assist or facilitate others in doing any of the foregoing. You
acknowledge that it is Your responsibility to comply with any and all applicable export and
import and economic sanctions laws.
11.3. Force Majeure. SewerAI will not be liable to You for any default or delay in the
performance of any of its obligations under this Agreement if the default or delay is caused,
directly or indirectly, by any cause beyond SewerAI’s reasonable control.
11.4. Assignment. Neither Party may assign this Agreement or any of its rights or obligations
hereunder without the prior written consent of the other Party, which consent will not be
unreasonably withheld or delayed. Notwithstanding the foregoing, without securing that prior
consent, either Party will have the right to assign this Agreement and the obligations hereunder
to any Affiliate or to any successor of that Party by way of merger, consolidation, reorganization
or in connection with the acquisition of at least a majority of the business and assets of the
assigning Party relating to the Agreement. This Agreement will be binding on, and will inure to
the benefit of, the authorized successors and assigns of the Parties. Any attempt to assign other
than in accordance with this provision will be null and void.
11.5. Notice. Any notice required or permitted to be given by SewerAI under this Agreement
must be in writing and must be delivered to the email address You provided in connection with
ordering any Services, by means of a service notice within Your account, or via registered mail
return receipt requested or an internationally recognized courier addressed to the address You
provided in connection with ordering any Services. Any notice required or permitted to be given
by You under this Agreement must be sent to SewerAI via registered mail return receipt
requested or an internationally recognized courier to SewerAI Corporation, 227 Bliss Ct., Walnut
Creek, CA 94598, USA. Any notice will be deemed to have been given when sent.
11.6. Independent Contractors. The Parties acknowledge that the relationship of You and
SewerAI is that of independent contractors and that nothing contained in this Agreement will be
construed to place You and SewerAI in the relationship of principal and agent, master and
servant, partners or joint venturers.
11.7. Dispute Resolution. If any dispute arises under this Agreement, each Party must submit
the dispute for resolution by a level of employee or officer with decision-making authority. If the
dispute cannot be resolved in thirty (30) days, either Party may pursue all available remedies at
law or in equity.
11.8. Governing Law; Venue. This Agreement will be interpreted in accordance with the laws
of the state of California, USA without reference to its conflict of law provisions. Any litigation,
suit or other proceeding regarding the rights or obligations of the parties hereunder will be
conducted exclusively before the state and federal courts in and for Santa Clara County,
California, USA, and the parties specifically consent to Santa Clara County, California, USA, asthe exclusive venue for any litigation, suit or other proceeding. This Agreement will not be
governed by the United Nations Convention on Contracts for the International Sale of Goods or
the Uniform Computer Information Transactions Act, the application of which is expressly
excluded.
11.9. Entire Agreement. This Agreement, together with any Orders, embodies the entire
agreement between the Parties with respect to the subject matter hereof, and supersedes all prior
agreements and understandings between the Parties relating to the subject matter hereof. For
avoidance of doubt, the Parties agree that no terms in any form purchase order, invoice, or other
document that either Party may deliver, or imposed by any governmental acquisition regulation,
whether or not signed by the other Party, will be deemed to modify or amend the terms of this
Agreement and any additional or inconsistent terms will automatically be deemed unacceptable
to and rejected by both Parties, and, consequently, null and void and of no force and effect.
11.10. Amendment; Waiver. Except as otherwise provided in the introductory section of this
Agreement, no amendment of any provision of this Agreement will be effective unless set forth
in a writing signed by a representative of You and SewerAI, and then only to the extent
specifically set forth that writing. No course of dealing on the part of either Party, nor any
failure or delay by either Party with respect to exercising any of its rights, powers or privileges
under this Agreement or law will operate as a waiver of those rights, powers or privileges. No
waiver by either Party of any condition or the breach of any provision of this Agreement in any
one or more instances will be deemed a further or continuing waiver of the same or any other
condition or provision.
11.11. Severability. If any term of this Agreement or part of this Agreement not essential to the
commercial purpose of this Agreement is held to be illegal, invalid or unenforceable, it is the
intention of the Parties that the remaining terms or part of this Agreement will constitute their
agreement with respect to the subject matter of this Agreement and all remaining terms or parts
of this Agreement will remain in full force and effect. To the extent legally permissible, any
illegal, invalid or unenforceable provision of this Agreement will be replaced by a valid
provision which will implement the commercial purpose of the illegal, invalid or unenforceable
provision.
11.12. Customer List. Unless You notify SewerAI in writing that You do not wish for SewerAI
to list Your name and logo, SewerAI will have the right to include, on its website and sales
collateral, Your name and Your logo (if any) in lists that identify customers of the Services,
provided that Your name and logo will not be more prominently featured than references to any
other customers.
11.13. Headings. The headings contained in this Agreement are for convenience of reference
only and are not intended to have any substantive significance in interpreting this Agreement.
