Software as a Service Subscription Agreement
By allowing Users to log into this website and utilize the product(s) and service(s) of Water Walkers, Inc., and by the Subscriber(s) and User(s) logging into this website, the Subscriber(s) and User(s) acknowledges that they have read and agree to the following terms of service (“Terms of Service” or “Agreement”) between the Subscriber, User, and Water Walkers, Inc., a California corporation (“Water Walkers”), whose mailing and billing address is P.O. Box 124, Anacortes, WA 98221. Individually Subscriber, User, and Water Walkers shall be deemed a Party and collectively referred to as Parties.
1.0 General Terms and Conditions.
1.1 Rights Granted to Subscriber. Subject to the terms of this Agreement, Water Walkers hereby grants to Subscriber a non-sublicensable, non-transferable, non-exclusive subscription to access and use the Services (as hereinafter defined) solely for the limited purposes set forth in this Agreement.
1.2 Definitions. As used in this Agreement:
a. Allergen Feature” means the tool included in the Services for identifying the list of allergens in the Food Allergen Labeling and Consumer Protection Act of 2004 (“FALCPA”).
b. “API” means application programming interfaces provided by Water Walkers as part of the Services, which set forth rules and specifications that Third-Party Modules may utilize to access Subscriber Data in accordance with this Agreement.
c. “Confidential Information” means information including, but not limited to: all information and data that is proprietary to Water Walkers and not generally known to the public, whether in tangible or intangible form, in whatever medium provided, whether unmodified or modified by any of Water Walkers’ representatives or agents, whenever and however disclosed, including, but not limited to: any and all password or controlled access information provided by Water Walkers, product documentation, and Water Walkers data relating to the other subscribers, licensees, customers, vendors, or affiliates thereof, any information regarding any agents of Water Walkers; any scientific or technical information, invention, design, process, procedure, formula, improvement, technology or method; any designs, development tools, specifications, computer software, source code and programming information (whether or not patentable or registered under copyright or similar statute), object code, flow charts, databases, information and trade secrets (as defined in the Uniform Trade Secrets Act as adopted by the State of California, or any similar federal or other state of relevant jurisdiction); works of authorship or software or materials created by or for the benefit of Water Walkers; and any information that should reasonably be recognized as confidential information of Water Walkers; and any information generated by Water Walkers or by its representatives and/or agents that contains, reflects, or is derived from any of the foregoing. Confidential Information need not be novel, unique, patentable, copyrightable or constitute a trade secret to be Confidential Information as defined herein.
d. “Data” or “Subscriber Data” means any electronic data or information contained in the local Subscriber database, template, or other similar document submitted by Subscriber through the Services.
e. “FALCPA” means the Food Allergen Labeling and Consumer Protection Act.
f. “Fees” means the fees paid by Subscriber in exchange for access to the Services as set forth on the Proposal.
g. “Geographic Scope” means the defined geographic scope, if any, defined in the Proposal or in this Agreement wherein Subscriber and its Users may utilize Water Walker Products and Services under this Agreement.
h. “Global Database” means any electronic manufacturer product information or recipes provided as part of the Service by an entity other than the Subscriber, including, but not limited to, Water Walkers, manufacturers, consultants, USDA and other third party providers.
i. “Proposal” means the written proposal or quote submitted by Water Walkers and accepted by Subscriber.
j. “Security Measures” means commercially reasonable technical, physical and procedural controls to take steps towards protecting Subscriber Data against destruction, loss, alteration, unauthorized disclosure to third parties, whether by accident or otherwise.
k. “Services” means the menu planning tool provided by Water Walkers to Subscriber as more particularly described in the Proposal and known as Health-e Pro Menu Planning.
l. “Subscriber” means the customer as identified by Water Walkers in the signed Proposal entered into between Water Walkers and Subscriber.
m. “Subscription Administrator” means the individual assigned by Subscriber having responsibility for all administrative and billing matters relating to Subscriber’s use of the Service as identified during the purchase and subscription process.
n. “System” means the technology, including hardware and software, used by Water Walkers to provide the Services to Subscriber in accordance with this Agreement.
o. “Term” means the period commencing as of the start date of access to the Services through the date access terminates.
p. “Third-Party Modules” means software developed by a third party that Subscriber and User(s) may use to add functionality to the Water Walkers Product, the use of which software is governed by the applicable terms and conditions specified by such third party.
q. “Third-Party Software” means online, web-based applications and offline software products that are developed by third parties, and may interoperate with the Water Walkers Product, the use of which software is governed by the applicable terms and conditions specified by such third party.
k. “User ID” means the unique identifying name and password assigned to each user to gain access to the Services.
r. “USDA” means United States Department of Agriculture.
s. “User” means one or more person or entity that accesses Water Walkers Product, Water Walkers Technology, Service(s), website(s), or features, whether under Subscriber’s license (“Authorized User”) or through a violation of this agreement by sharing license(s) among multiple Users (“Unauthorized User”).
t. “Water Walkers Product” means the software that Subscriber is subscribing to under the signed Proposal between Water Walkers and Subscriber, as may be renewed, restated, amended, supplemented, or modified from time to time according to this Agreement.
u. “Water Walkers Technology” means (i) the System, (ii) all software, materials, formats, interfaces, information, data, content and all Water Walkers proprietary information and technology used by Water Walkers or provided to Subscriber in connection with the Services, and (iii) all suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Subscriber or learned as a result of Subscriber’s use of the Services.
v. “Water Walker Trademarks” means all names, marks, brands, logos, designs, trade dress, and other designations Water Walkers uses in connection with the Services, software, data, or information, including without limitations the marks: “Water Walkers,” “Health-e Pro,” “Health-e Living,” “Health-e Meal Planner,” or the My School Menus Mobile App logo.
2.0 The Services.
2.1 Subscription. Water Walkers shall make available to Subscriber the Services as more specifically set forth on the Proposal. The terms and conditions of the Proposal, this Agreement, and of any addendum to this Agreement shall govern Subscriber’s use, and Users’ use, of Services, Products, and any new feature(s) or service(s) of Water Walkers that augment or enhance the current Services, including the release of any new services or upgrades to existing Services. If there is a conflict between the terms of the proposal and this Agreement the terms of this Agreement shall control unless the proposal specifically references which provision of this Agreement is replaced or supplemented by the terms of the proposal.
2.2 Service Levels. Subject to the terms of this Agreement, Water Walkers shall use commercially reasonable efforts to:
a. Maintain the security of the Services as set forth in Section 2.4 of this Agreement.
b. Provide regular backups of Subscriber Data; and
c. Make the Services generally available 24 hours a day, 7 days a week, 365 days a year, except for:
1. Downtime for maintenance regarding which Water Walkers will use reasonable efforts to notify Subscriber in advance; and
2. Downtime caused by circumstances beyond Water Walker’s reasonable control, including but not limited to acts of God, acts of government, pandemic, endemic, flood, fire, earthquake, hurricane, tornado, tsunami, civil unrest, riots, acts of terror, strikes or other labor problems, power outage, electricity outage, blackout whether temporary or not, cyber terror, hacking, foreign interference, shortages, telecommunications or network failures or delays, computer failures involving hardware or software not within Water Walkers’ possession or reasonable control, and acts of vandalism.
Subscriber agrees that Subscriber is solely responsible for providing at its own expense all network access to the Services, including, but not limited to, acquiring, installing and maintaining all telecommunications equipment, hardware, software and other equipment as may be necessary to connect to, access and use the Services.
2.3 Security. Water Walkers shall implement Security Measures and maintain the Services at reputable third-party internet service providers and hosting facilities. Water Walkers allows security access to its approved list of authorized and authenticated personnel. However, Subscriber acknowledges and agrees that notwithstanding the Security Measures, use of or connection to the internet provides opportunity for unauthorized third parties to circumvent such precautions and Security Measures and illegally gain access to the Services and Subscriber Data. Accordingly, Water Walkers does not guarantee the privacy, security or authenticity of any information transmitted over or stored in any system connected to the internet.
2.4 Support. During the Subscription Term, and at no additional charge to Subscriber, Water Walkers shall provide technical assistance by e-mail and telephone on use of the Software, the identification of Software problems, and the reporting of Errors. Water Walkers will respond to emails and phone calls from Subscriber’s registered users as identified by Subscriber.
Support is available from Water Walkers Monday through Friday 5 am PT to 4 pm PT excluding the following holidays: New Year's Day; Memorial Day; Independence Day; Labor Day; Thanksgiving Day; and Christmas Day. Additionally, hours may be limited on other national holidays and/or days preceding or following certain holidays.
Water Walkers seeks to do business with Subscriber at the highest level of professionalism and civility. If Subscriber or its representatives or agents engages in conduct toward any representative or agent of Water Walkers that in the sole discretion of Water Walkers is offensive, unprofessional or lacks basic civility, Water Walkers reserves the right to restrict support to email only.
2.5 Third-Party Software; Third-Party Modules; Third-Party Analytics Tools.
a. Third-Party Software. The Water Walkers System utilizes or includes certain Third-Party Software. Subscriber use of the Service, including all Third-Party Software accessible via APIs, is governed by the applicable Third-Party Software terms and conditions.
b. Any use by Subscriber or User of Third-Party Module(s) and any exchange of Data between Subscriber or User and the Third-Party Module provider are subject solely to the applicable agreement and terms of use, if any, between Subscriber and the Third-Party Module provider. Water Walkers does not warrant or support Third-Party Modules.
c. Third-Party Privacy Policies. Subscriber understands and agrees that any of the Subscriber Data exchanged with Third-Party Software or Third-Party Module is governed by that provider’s respective privacy policy.
d. Third Party APIs. Features that interoperate with third party services (such as Google) depend on the continuing availability of the API and program for use with the Water Walkers Product. If a third party ceases to make the API or program available on reasonable terms to Water Walkers, Water Walkers may cease providing such third party features without entitling Subscriber to any refund, credit, or other compensation.
e. Third Party Analytics Tools. Subscriber and User(s) acknowledge that Water Walkers may use third party web analytics tools (such as Google Analytics) that serve cookies or similar tracking technologies through the Water Walkers Products and Services, on end user devices, to collect Usage Data. Subscriber and User(s) will take such measures as are necessary to inform Subscriber’s Users and the people that Subscriber services, such as students, and parents or guardians of minor students, about Water Walkers use of such web analytics tools in connection with the Water Walkers Products and related services. Subscriber and User(s) hereby provide consent to Water Walkers to use cookies or tracking technologies served by those web analytics tools, in a manner that is consistent with industry practice. Subscriber and Users may use a privacy browser such as TOR but the software and Water Walkers Product(s) and Services may lose significant functionality and not work optimally on such a privacy browser. As a courtesy to Subscriber, Subscriber may request marketing materials or communication materials from Health-e Pro, such as Health-e Pro’s Marketing Kit(s), to assist Subscriber in accurately communicating with Subscriber’s Users and the people that Subscriber services, such as students and parents or guardians of minor students about Health-e Pro and the software, Services, and Water Walker Product(s) and important information about privacy, confidentiality, sharing or selling data, and other information.
3.0 Subscriber’s Use of Services.
3.1 Subscriber Access. Water Walkers shall provide the Subscription Administrator a User ID and password for access to the Services. Subscriber shall be responsible for ensuring the administration, security, and confidentiality of its User ID(s). Only Subscriber’s employees, agents and contractors shall be authorized to access the Services. Subscriber shall use commercially reasonable efforts to prevent unauthorized access to or use of the Services. Subscriber shall promptly notify Water Walkers of any unauthorized use or suspected unauthorized use of the Services. Water Walkers reserves the right to log off Subscriber if Subscriber’s use of the Services is inactive for an extended period determined in the sole discretion of Water Walkers.
Subscriber acknowledges, understands, and agrees to train Subscriber’s employees, agents, and contractors that User accounts and passwords are specific to individual Users, and under no circumstances may Subscriber’s employee, agent, or contractor User accounts or passwords be shared among or by different Users. Subscriber’s administrator(s) may reassign a User account during the Subscription Term, if a former User no longer requires a User account.
3.2 Restrictions on Subscriber Data. Subscriber is solely responsible for Subscriber Data and shall not provide, post or transmit any Subscriber Data or any other information, data or material that in any way infringes or violates any intellectual privacy rights, general privacy rights, laws or regulations. Water Walkers reserves the right to take remedial action if Subscriber Data violates the terms of this subsection, but Water Walkers shall have no obligation to review Subscriber Data for violations described herein.
3.3 Use Restrictions. Subscriber is responsible for all activities that occur under Subscriber’s accounts except those by a Water Walkers employee, agent, or through Water Walkers’ System. Subscriber and User(s) shall not directly or indirectly or shall not attempt to directly or indirectly:
a. Knowingly interfere with or disrupt the integrity, operation or performance of the Services, the data contained therein, or the Water Walkers System;
b. Allow a third party to access the Services or transfer to a third party any of Subscriber’s rights under this Agreement, except as otherwise provided in this Agreement, or to otherwise use the Services for the benefit of a third party;
c. Copy, modify, alter in any way, or make derivative works based upon any part of the Water Walkers System;
d. Reverse engineer, disassemble, or decompile any component of the System.
e. Remove or obscure any proprietary notices such as copyright, trademark or patent designations;
f. Use the Services in any manner other than the scope of the permitted use herein.
g. Use the Services in any way for spamming or to transmit chain letters, junk email, bulk communications, or for providing any information or applications in a commercial for-profit business environment. Water Walkers reserves the right to block, filter or delete any such unsolicited communications, without prior notification to Subscriber and without any liability to Subscriber or any other person;
h. Use any Water Walkers domain name as a pseudonymous return email address for any communications that Subscriber transmits from another location or through another service;
i. Upload, post or otherwise transmit any content that Subscriber does not have a right to transmit to the public under any law or under contractual or fiduciary relationships;
j. Upload, post or otherwise transmit any material that is inappropriate or contains software viruses of any other computer code, files or programs designed to interrupt, destroy, limit, or alter the functionality of any computer software, hardware or telecommunications equipment. “Inappropriate” as used in this subsection shall mean posts or materials that are indecent, offensive, malicious, or not appropriate as determined by the sole opinion of the management of Water Walkers.
k. Intentionally or unintentionally violate any applicable local, state, federal or international law or regulation.
l. Permit shared use of any login by a person other than the one registered user of that login.
m. conduct any activity that may degrade performance beyond an acceptable level, including but not limited to: (i) conducting automated functionality tests or load tests on the Water Walkers Product, (ii) creating internet links to the Water Walkers Product, except as agreed upon by the parties through the Online Menus Module and other applicable services and modules, and/or (iii) deploying custom modifications that adversely impact the Water Walkers infrastructure due to incompatible code, inefficient code or architecture practices. If Subscriber or User(s) do any of the foregoing, Water Walkers shall have the right to terminate or suspend Subscriber or User’s account and access to the Service without any refund or credit until Subscriber or User, as applicable, correct such violation to Water Walkers’ satisfaction in Water Walkers’ sole discretion.
At the sole discretion of Water Walkers access of Subscriber may be discontinued without prior notification to Subscriber upon determination of Water Walkers that Subscriber has engaged in any of the foregoing activities set forth in this Subsection 3.3 without any liability to Subscriber. Subscriber’s engagement, or the engagement of any employee, agent, or independent contractor of Subscriber, in any of the activities set forth in Subsection 3.3 shall be deemed an incurable breach of this Agreement.
3.4 Limitations. The Services cannot be used to treat medical conditions, dietary restrictions or allergies. Subscriber may use the Services only to service the Subscriber’s own business, organization, or Geographic Scope. The Services may not be reproduced, transmitted or distributed by Subscriber without the prior written consent of Water Walkers.
4.0 Fees, Payment and Suspension of Service.
4.1 General. As consideration for the subscription to the Services provided by Water Walkers pursuant to this Agreement, Subscriber shall pay Water Walkers the Fees set forth in the Proposal. All Fees will be billed on an annual basis and are due within thirty (30) days after the date of the invoice unless stated otherwise in the Proposal.
4.2 Late Charges/Liquidated Damages. Subscriber agrees that if Subscriber does not timely pay the Fees agreed upon, Water Walkers will incur damages in additional administrative handling and other business aspects that would be difficult or impossible to completely assess. Therefore, Subscriber and Water Walkers agree that 1.5% per month of any installment of Fees not paid on time is a reasonable, good faith attempt to assess such damages and Subscriber agrees to pay such liquidated damages in addition to the Fees due.
4.3 Suspension of Services Pending Full Payment. Upon the failure to pay the Fees set forth in the Proposal on or before the due date, Water Walkers may discontinue Services and suspend all User IDs and subscriber’s access to the Services without prior written notification to Subscriber until such Fees are paid in full. Water Walkers shall not be liable to Subscriber for any damages, costs, or expenses related to Subscriber not having access to Water Walkers Services if Water Walkers has discontinued Services or suspended any or all User IDs and subscriber’s access to the Services under this Section 4.3.
5.0 Term and Termination.
5.1 Term. Unless otherwise specified in a multi-year purchase contract, the Term of this Agreement shall be for a period of twelve (12) months. Thereafter, this Agreement will automatically renew for successive twelve (12)-month Terms, unless one of the parties gives written notice of non-renewal at least thirty (30) days prior to the expiration of the then current Term.
A. Water Walkers may increase the Fees applicable to any renewal Term upon thirty (30) days’ notice given prior to renewal. If Subscriber neither terminates this Agreement as provided herein nor objects in writing to any increase in Fees within ten (10) days prior to the commencement of the renewal Term, then any increase in Fees as noticed by Water Walkers shall automatically apply commencing at the renewal Term.
5.2 Early Termination. Except as otherwise provided in Sections 3.3 and 5.2 of this Agreement, Water Walkers may terminate this Agreement prior to the expiration of the Term upon written notice if Subscriber materially breaches the Agreement and does not cure such breach (if curable) within thirty (30) days after written notice of such breach. Any termination of Subscriber’s access to the Services due to the incurable breach of any provision of this Agreement, or Subscriber’s misappropriation, infringement or other violation of a third party’s intellectual property rights, may be affected in the sole discretion of Water Walkers without prior written notice, and Water Walkers may immediately deactivate or delete Subscriber’s Services account. Water Walkers shall not be liable to Subscriber for any damages, costs, or expenses related to Subscriber not having access to Water Walkers Services if Water Walkers has deactivated or deleted Subscriber’s Services account or limited or restricted Subscriber’s access to Services in any way under this Section 5.2.
Subscriber acknowledges that any Fees paid are earned upon receipt and nonrefundable even upon an early termination of this Agreement.
6.0 Confidential Information.
6.1 Acknowledgments Regarding Confidential Information. Subscriber acknowledges that Subscriber shall only obtain access to Confidential Information through methods approved by Water Walkers for Subscriber, for example, direct access via Water Walkers’ website and other methods of authorized disclosure to Confidential Information of Water Walkers. Subscriber shall access and use Confidential Information solely for the use of the Services as set forth in this Agreement and for no other purpose. Except within the scope of Subscriber’s use as licensed in this Agreement, Subscriber promises not to use, modify, sell, publish, leak, or disclose in any way, any of Water Walkers’ Confidential Information. Such Confidential Information shall not be copied without written permission of Water Walkers and shall be returned to Water Walkers upon termination of this Agreement, and Subscriber shall not retain any written, printed, electronic, digital, or other tangible material containing or related to any information concerning or disclosing any Confidential Information of Water Walkers.
6.2 Public Records. Water Walkers acknowledges that Subscriber may be subject to a State or Local Public Records Act and that Confidential Information may be subject to disclosure as a result of a public records request. In the event of a public records request Subscriber shall notify Water Walkers to allow Water Walkers to redact any proprietary information not subject to the Public Records Act. Water Walkers further acknowledges that Subscriber’s expenditures and contracting documents may be considered public information and may be shared in the regular course of business. Subscriber shall authorize Water Walkers and provide access for Water Walkers to communicate with Subscriber’s legal counsel regarding the extent of the records request and the redactions that Subscriber’s legal counsel requests Water Walkers to make. If Water Walkers receives a notice or order to disclose information to law enforcement or in accordance with an order or warrant then Water Walkers will attempt to provide prompt notice to Subscriber so that Subscriber can take legal action, if desired, to attempt to block the disclosure.
7.0 Ownership and Intellectual Property Rights.
7.1 Water Walkers System and Technology. Subscriber acknowledges that (a) Water Walkers retains all right, title and interest in and to Water Walkers Technology, and (b) Water Walkers Technology, as defined in Section 1.2, is comprised of intellectual property rights owned by or licensed to Water Walkers. Except as otherwise expressly provided in this Agreement, no license or other rights in Water Walkers Technology are granted to Subscriber, and all such rights are expressly reserved by Water Walkers.
7.2 Use of Global Database. Water Waters maintains lists of ingredients and recipes received or submitted from third party providers including manufacturers, consultants, USDA, and others in the Global Database. The Global Database can be used by the Subscriber at Subscriber’s discretion. Water Walkers Inc does not represent or warrant the accuracy of the Global Database. Water Walkers retains all right, title and interest that Water Walkers has in and to the Global Database.
7.3 Use of Aggregate Dataset: Water Walkers may compile or aggregate information or dataset so the resulting information or dataset does not contain information that is personally identifiable to our Subscriber, User(s), and the customers or students that Subscriber services, meaning that the information will not be capable of identifying any one person.
The intent of this compiled or aggregate larger, de-identified information or dataset is to have representative demographic, statistical data. Such data may be used by Water Walkers, our affiliates, and our third-party providers for reasonable commercial purposes including to conduct certain analytical research, marketing, performance tracking, and benchmarking. Water Walkers and our affiliates may compile, aggregate, analyze, share, transfer, sell, license, sublicense, distribute and publish information, data, datasets, reports, compilations, summary or aggregate results relating to metrics constructed from such data for various purposes as disclosed in this Agreement without royalty or compensation to Subscriber, User(s), or Customers.
7.4 Trademarks. Subscriber shall not use or co-brand Subscriber’s applications, products, or material associated with Subscriber’s applications or services with any Water Walkers Trademarks. Subscriber shall not incorporate any Water Walkers Trademarks, logos, fonts, colors, into Subscriber’s trademarks, service marks, company names, internet addresses, domain names, or any other similar designations. Notwithstanding the foregoing Subscriber logos, mark, and mascots used for institutional branding that predate this Agreement are excepted from this section. Water Walkers agrees not to use Subscriber’s Trademarks and/or logos without the express prior written consent of Subscriber.
8.0 Notices; Modification of Functionality of Services.
8.1 Notices. Any notice desired to be sent by Water Walkers or Subscriber may be made by confirmed delivered email, by regular mail, by UPS or Federal Express courier, or by Water Walkers by posting on the Health-e Meal Planner landing page. Notice by email shall be deemed given on the date of confirmed delivery. Notice by regular mail shall be deemed given upon three (3) days after deposit with the United States Postal Service. Notice by national courier shall be deemed delivered on the date of delivery. Notice by posting on the Health-e Meal Planner landing page shall be deemed given upon posting regardless of when Subscriber or Users log in. Electronic notice by email or by posting shall be deemed to be written notice for all purposes. It is the Subscriber’s responsibility to subscribe to Water Walkers e-mail notifications and whitelist domains that are used for email notification including all healthepro.com email addresses.
8.2 Modification of Functionality of the Services. Water Walkers reserves the right to modify the functionality and features of the Services at its sole discretion at any time without notice.
8.3 Additional Services. If Subscriber desires to add Services after the commencement of this Agreement which additional Services are not listed in the Proposal, then Subscriber may request a new Proposal. Upon Subscriber and Water Walkers signing the new Proposal, and Subscriber agreeing to the then current Terms of Service, Subscriber shall pay such additional fees specified by Water.
8.4 Usage Limits. Services and content provided by Water Walkers to Subscriber are subject to usage limits as specified in the Proposal, related documentation contained in the Proposal, and this Agreement. If Subscriber exceeds the usage limit set forth in the Proposal, then Subscriber shall pay additional fees for applicable Services or content in excess of the usage as set forth in the Proposal. Additional costs shall be approved in writing prior to the incurrence of such costs.
9.0 Disclaimer of Warranties.
9.1 General Disclaimers. Subscriber’s use of the Services is at Subscriber’s sole risk. The Services and content are provided on an “as-is” and “as -available” basis. Water Walkers disclaims all express or implied conditions, representations and warranties of any kind including any implied warranty or condition of merchantability or fitness for a particular purpose. Water Walkers makes no representations, warranties, conditions, or guaranties as to the quality, suitability, truth, accuracy, or completeness of any of the Services or content contained on Water Walkers’ website. Water Walkers makes no representations, warranties, conditions or guaranties that (a) the Services will meet Subscriber’s requirements; (b) the Services will be uninterrupted, timely, secure, except for the representations provided in Section 2.4 hereof, or error-free; (c) the results that may be obtained from the use of the Services will be accurate or reliable; (d) the quality of any Services, or data or information, or other material purchased or obtained by Subscriber through the Services will meet Subscriber’s expectations; or (e) any errors in the Services, software, data, or information will be corrected. Any software, data or information delivered pursuant to this Agreement or otherwise obtained through the use of the Services is done at Subscriber’s own discretion and risk and Subscriber is responsible for any damage to Subscriber’s computer system or loss of data, including without limitation any damages resulting from computer viruses or other malicious computer code. Subscriber acknowledges and agrees that the internet is a network of private and public networks, and that (a) the internet is not a secure infrastructure; (b) Water Walkers does not have control over the internet; and (c) Water Walkers shall not be liable for damages under any theory of law related to the continuance of operation of any portion of the internet or possible regulation of the internet that might restrict or prohibit the operation of the Services. No advice or information, whether oral or written, obtained by Subscriber from Water Walkers or through or from the Services will create any representation, warranty, condition or guarantee not expressly stated in this Agreement. Although Water Walkers is proud of its historical uptime, Water Walkers is aware that power outages, cyber terror attacks, internet provider or internet outages can occur. Water Walkers recommends that Subscriber prepare its menus for a certain time frame, for example, for the calendar month, and save that information on the Subscriber’s servers. That way Subscriber would still be able to service its customers or students in the event of a power outage, cyber terror attack, internet provider down time, or internet outage.
9.2 Allergen Limitations and Disclaimers.
(A) Water Walkers does not determine any allergens. Water Walkers is not responsible for the accuracy of the independently compiled nutritional databases upon which the Services are formulated or the identification of the FALCPA Allergens. The effectiveness of the Allergen Feature in identifying the presence of FALCPA Allergens in food which Subscriber plans to serve is limited by many factors, including without limitations, the following:
a. The list of allergens is not inclusive and limited to the nine (9 ) FALCPA Allergens.
b. The Allergen Feature does not identify food sensitivities, intolerances to foods or dietary restrictions followed for medical conditions of anyone served food by Subscriber.
c. Identification of the FALCPA Allergens is dependent on the manufacturer of each product or ingredient in a menu or recipe correctly identifying the attributes of the ingredients in their product or ingredient.
d. The products or ingredients in a planned menu may have been altered by: (i) substitutions, (ii) alterations, (iii) change in supplier, (iv) mislabeling by manufacturer, or (v) failure of Subscriber to update its database.
e. Insufficient information to plan around or accommodate medical conditions or special diets, including but not limited to adverse reactions to any of the FALCPA Allergens or any known or unknown allergen or food sensitivity.
f. Subscriber use of a recipe in the Global Database from another subscriber of the Services that did not identify all the potential allergens.
g. Use of the Allergen Feature by unauthorized employees of Subscriber who are not educated or trained to identify the FALCPA Allergens in a recipe and properly enter that information in the Allergen Feature.
h. The specific allergies or food sensitivities of any individual served by Subscriber.
i. Subscriber: (i) failing to identify a FALCPA Allergen, (ii) mistakenly identifying a FALCPA Allergen, (iii) improperly entering the data in the Allergen Feature, (iv) failing to review every recipe in Subscriber’s Database, or (v) incorrectly indicating in the Allergen Feature whether any FALCPA Allergens are present in each ingredient in each recipe.
(B) SUBSCRIBER AND USER ACKNOWLEDGE THAT THERE IS ROOM FOR ERROR IN MULTIPLE WAYS AND THERE ARE LIMITATIONS TO THE SOFTWARE, SERVICES, AND WATER WALKERS’ PRODUCT(S), INCLUDING BUT NOT LIMITED TO SUBSCRIBER’S EMPLOYEES (1) ARE NOT PROPERLY TRAINED ON IDENTIFYING A FALCPA ALLERGEN, (2) MISTAKENLY IDENTIFY A FALCPA ALLERGEN, (3) IMPROPERLY ENTER THE DATA IN THE ALLERGEN FEATURE, (4) FAIL TO REVIEW EVERY RECIPE IN THE SUBSCRIBER’S DATABASE, AND (5) INCORRECTLY INDICATE IN THE ALLERGEN FEATURE WHETHER ANY FALCPA ALLERGENS ARE PRESENT IN EACH INGREDIENT IN EACH RECIPE. IF USERS HAVE QUESTIONS REGARDING THEIR TRAINING, IDENTIFYING ALLERGENS, ENTERING DATA IN THE ALLERGEN FEATURE, AND REVIEWING RECIPES IN THE SUBSCRIBER’S DATABASE, USERS SHALL PROMPTLY DIRECT THEIR QUESTIONS TO THE APPROPRIATE EMPLOYEE OF SUBSCRIBER. USER SHALL DILIGENTLY COMMUNICATE WITH SUBSCRIBER UNTIL USER IS SATISFIED THAT USER’S QUESTIONS HAVE BEEN ANSWERED AND THAT USER’S NEEDS HAVE BEEN SATISFIED. THE DATA CONTAINED WITHIN THE SERVICES CANNOT BE USED FOR AND DOES NOT PROVIDE MENU PLANNING OR MEDICAL TREATMENT FOR ANYONE WITH A MEDICAL CONDITION, DIETARY RESTRICTION OR FOOD ALLERGY. USE OF THE SERVICES TO PROVIDE MENU PLANNING OR MEDICAL TREATMENT FOR ANYONE WITH A MEDICAL CONDITION, DIETARY RESTRICTION OR FOOD ALLERGY IS A VIOLATION OF THE TERMS OF THIS AGREEMENT. ANY SUBSCRIBER PLANNING FOR OR TREATING MEDICAL CONDITIONS, DIETARY RESTRICTIONS OR A FOOD ALLERGY MUST CONSULT A MEDICAL PROFESSIONAL FOR ASSISTANCE.
9.3 Third-party Sites. In the normal use of the Services, the access site may contain links to third-party websites. Water Walkers does not control, endorse or make any representation of any kind regarding third-party websites or their products or services that may be linked to any webpage accessed by Subscriber during the use of the Services.
10.0 Limitation of Liability. The liability of Water Walkers for damages, regardless of the form of action, shall not exceed the amount of the Fees received by Water Walkers within the past twelve (12) months. In no event shall Water Walkers be liable to Subscriber, User, or anyone else for indirect, special, consequential or punitive damages incurred by Subscriber or any other person or organization including, without limitation, damages for delay, increased expenditures, increased operating costs, loss of revenues, profits, data, goodwill, or use, even if Water Walkers has been advised of the possibility of such damages. Some jurisdictions do not allow the exclusion of certain warranties or the exclusion or limitation of liability for certain types of damages and the disclaimers and limitations in this Agreement may not apply to Subscriber in such a jurisdiction. Subscriber assumes the responsibility for adequate protection and backup of any of its own data and/or its equipment used in connection with the Services and Water Walkers shall not be liable for any of Subscriber’s lost data, rerun time, inaccurate output, work delays, or lost profits resulting from the use of the Services.
11.0 Miscellaneous Provisions.
11.1 Entire Agreement. This Agreement constitutes the entire agreement between Water Walkers and Subscriber with respect to the subject matter of this Agreement and supersedes all prior agreements, oral or written, between Water Walkers and Subscriber with respect to the subject matter of this Agreement.
11.2 No Assignment. Subscriber may not assign or otherwise transfer this Agreement or any rights granted herein without the prior written permission of Water Walkers in the sole discretion of Water Walkers.
11.3 Waiver and Non-Waiver. The failure of any party to this Agreement to exercise or enforce any right or provision of the terms and conditions of this Agreement shall not constitute a waiver of such right or provision. Any waiver of any right or provision of the terms and conditions of this Agreement by or behalf of either party shall be in writing, signed by the party that is waiving such right or provision, and specifying whether this is a one-time waiver or a continuing waiver. If not specified within the written waiver then it is a one time waiver and not a continuing waiver.
11.4 Severability. If any term of this Agreement is to any extent illegal, otherwise invalid, or incapable of being enforced, such term shall be excluded to the extent of such invalidity or unenforceability; all other terms hereof shall remain in full force and effect; and, to the extent permitted and possible, the invalid or unenforceable term shall be deemed replaced by a term that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term.
11.5 Taxes. Fees quoted to Subscriber are exclusive of any and all applicable taxes or governmental fees, which shall be the sole responsibility of Subscriber.
11.6 Survival. The rights and obligations created by Sections 2.5, Section 3.0-3.4, Section 4.0-4.3, Section 5.0-5.2, Section 6.0-6.2, Section 7.0-7.4, Section 8.0-8.4, Section 9.0-9.3, and Section 10.0 of this Agreement shall survive termination of this Agreement.
11.7 Dispute Resolution. Unless otherwise specified in a multi-year purchase contract, any dispute arising out of this Agreement shall be resolved by binding arbitration before a single arbitrator pursuant to JAMS’ Streamlined Arbitration Rules and Procedures, and any award rendered thereto may be entered in any court of competent jurisdiction. The Arbitration shall be held in King County, Washington, and shall provide for only such discovery as the Arbitrator shall allow.
11.8 No Third-Party Rights. Except as specifically provided for in this Agreement, nothing in this Agreement is intended to make any person or entity not a signatory to this Agreement a third-party beneficiary of any right created by this Agreement or by operation of law.
11.9 Applicable Law. Unless otherwise specified in a multi-year purchase contract, this Agreement shall be governed by the laws of the State of Washington. This Agreement is made in the State of Washington, USA, and venue shall be proper only in King County, Washington.
11.10 Headings. All section headings contained in this Agreement are for convenience of reference only, do not form a part of this Agreement, and shall not affect in any way the meaning or interpretation of this Agreement.
11.11 Changed Terms. Water Walkers may propose changes in the terms and conditions of this Agreement by notice to Subscriber as provided in this Agreement. Subscriber’s continued use of the Services after notice from Water Walkers shall be deemed acceptance of the new terms of this Agreement.
11.12 Proposal Incorporated as Terms of Agreement. The Proposal constitutes additional terms and conditions of this Agreement and are incorporated herein by reference as though set forth in full verbatim. If there is a conflict between the Proposal and the terms of this Agreement then this Agreement shall control unless the Proposal specifies in writing what sections of this Agreement the Proposal term is specifically amending or replacing.
12.0 Statutory Exceptions for Public Institutions. If Subscriber is a qualified public educational or government institution, and any part of this Agreement (for example, all or part of the indemnification provisions) is invalid or unenforceable against Subscriber because of applicable local, state or federal law, then that portion of this Agreement shall be deemed invalid or unenforceable and construed in a manner that most closely meets the intent of the Parties as documented in the terms of this Agreement and complies with applicable governing law.
Rev. 10.30.24
