Last updated March 17, 2016
These terms govern your use of our products and services ("Services"). The Services are provided by Waterwheel Software, Inc. ("Waterwheel", we, us), with its mailing address at PO Box 1173, Los Altos California 94023.
Additional terms are available with some of our Services. Those additional terms become part of your agreement with us if you use those Services. By using our Services, you are agreeing to these terms.
You may view, download for caching purposes only, and print pages and other content from our Services for your own personal use, subject to the restrictions set out below and elsewhere in these terms and conditions.
You may not republish or redistribute our Services (including republication on another website).
You may not sell, rent or sub-license our Services or reproduce, duplicate, copy or otherwise exploit our material for a commercial purpose without our prior written consent.
You may not edit or otherwise modify our material.
You may not use our Services in any way that causes, or may cause, damage to our Services or impairment of the availability or accessibility of our Services, or in any way which is unlawful, illegal, fraudulent or harmful, or in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
You may not use our Services to copy, store, host, transmit, send, use, publish or distribute any material which consists of (or is linked to) any spyware, computer virus, Trojan horse, worm, keystroke logger, rootkit or other malicious computer software.
You may not use our Services to transmit or send unsolicited commercial communications.
You may not conduct any systematic or automated data collection activities (including without limitation scraping, data mining, data extraction and data harvesting) on or in relation to our Services without Waterwheel's express written consent.
You may not reverse-engineer our Services.
You may not, if you are our direct competitor, access our Services without our prior written consent for purposes of monitoring their availability, performance, functionality or any other benchmarking or competitive purpose.
Your content means material (including without limitation data, text, images, audio material, video material and audio-visual material) that you submit to the Services for whatever purpose.
Your Content may not be illegal or unlawful, must not infringe any third party's legal rights, and must not be capable of giving rise to legal action whether against you or Waterwheel or a third party (in each case under any applicable law).
You may not submit any content to the Services that is or has ever been the subject of any threatened or actual legal proceedings or other similar complaint.
Waterwheel reserves the right to edit or remove any material submitted to or stored on Waterwheel's servers, or hosted or published using our Services.
Notwithstanding Waterwheel's rights under these terms and conditions in relation to Your Content, Waterwheel does not undertake to monitor the submission of such content to or the publication of Your Content using our Services.
"Confidential Information" means information disclosed by one of us to the other that is marked as confidential or would normally be considered confidential under the circumstances. Your Content is your Confidential Information.
Each party will: (a) protect the other party's Confidential Information with the same standard of care it uses to protect its own Confidential Information; and (b) not disclose the Confidential Information, except to affiliates, employees and agents who need to know it and who have agreed in writing to keep it confidential. Each party (and any affiliates' employees and agents to whom it has disclosed Confidential Information) may use Confidential Information only to exercise rights and fulfill its obligations under this agreement, while using reasonable care to protect it. Each party is responsible for any actions of its affiliates' employees and agents in violation of this section.
Confidential Information does not include information that: the recipient of the Confidential Information already knew; becomes public through no fault of the recipient; was independently developed by the recipient; or was rightfully given to the recipient by another party.
Each party may disclose the other party's Confidential Information when required by law but only after it, if legally permissible: uses commercially reasonable efforts to notify the other party; and gives the other party the chance to challenge the disclosure.
Intellectual Property Rights
This agreement does not grant you or us any rights, implied or otherwise, to each other's content or any of the other's intellectual property. You own all intellectual property Rights in your data, Waterwheel owns all intellectual property rights in the Services.
Modifying and terminating our Services
We may add or remove functionalities or features and we may suspend or discontinue a Service. If we discontinue a Service, where reasonably possible, we will give you reasonable advance notice and a chance to get Your Content out of that Service.
You can stop using our Services at any time.
Your Waterwheel account
You may need a Waterwheel account to use some of our Services.
Your organization may specify one or more users who will have the right to access and administer your organization's user account(s) ("Organization Administrator"). You agree that Waterwheel's responsibilities do not extend to the internal management or administration of the Services for your organization and that Waterwheel is merely a data-processor.
Waterwheel and your Organization Administrator may access Your Content and may disable your Waterwheel account without notice or explanation.
You will use commercially reasonable efforts to prevent unauthorized use of the Services and to terminate any unauthorized use. You will promptly notify Waterwheel of any unauthorized use of, or access to, the Services of which it becomes aware.
Waterwheel provides technical support by email and, when we are available, by phone.
We reserve the right to charge users of our free Services $50 per quarter-hour for technical support.
OTHER THAN AS EXPRESSLY SET OUT IN THESE TERMS OR ADDITIONAL TERMS, NEITHER WATERWHEEL NOR ITS SUPPLIERS OR DISTRIBUTORS MAKE ANY SPECIFIC PROMISES ABOUT THE SERVICES. WE DONT MAKE ANY COMMITMENTS ABOUT THE CONTENT WITHIN THE SERVICES, THE SPECIFIC FUNCTIONS OF THE SERVICES, OR THEIR RELIABILITY, AVAILABILITY, OR ABILITY TO MEET YOUR NEEDS. WE PROVIDE THE SERVICES AS IS.
SOME JURISDICTIONS PROVIDE FOR CERTAIN WARRANTIES, LIKE THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. TO THE EXTENT PERMITTED BY LAW, WE EXCLUDE ALL WARRANTIES.
Liability for our Services
WHEN PERMITTED BY LAW, WATERWHEEL AND WATERWHEEL'S SUPPLIERS AND DISTRIBUTORS WILL NOT BE RESPONSIBLE FOR LOST PROFITS, REVENUES, OR DATA, FINANCIAL LOSSES OR INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES.
TO THE EXTENT PERMITTED BY LAW, THE TOTAL LIABILITY OF WATERWHEEL AND ITS SUPPLIERS AND DISTRIBUTORS FOR ANY CLAIMS UNDER THESE TERMS, INCLUDING FOR ANY IMPLIED WARRANTIES, IS LIMITED TO THE AMOUNT YOU PAID US TO USE THE SERVICES (OR, IF WE CHOOSE, TO SUPPLYING YOU THE SERVICES AGAIN).
IN ALL CASES, WATERWHEEL AND ITS SUPPLIERS AND DISTRIBUTORS WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE.
By using our Service, you agree that the exclusions and limitations of liability set out in these terms and conditions are reasonable. If you do not think they are reasonable, do not use our Services.
You indemnify Waterwheel and undertake to keep Waterwheel indemnified against any losses, damages, costs, liabilities and expenses (including without limitation legal expenses and any amounts paid by Waterwheel to a third party in settlement of a claim or dispute on the advice of Waterwheel's legal advisers) incurred or suffered by Waterwheel arising out of any breach by you of any provision of these terms and conditions.
Organization use of our Services
If you are using our Services on behalf of an organization, that organization accepts these terms. It will hold harmless and indemnify Waterwheel and its affiliates, officers, agents, and employees from any claim, suit or action arising from or related to the use of the Services or violation of these terms, including any liability or expense arising from claims, losses, damages, suits, judgments, litigation costs and attorneys fees.
You agree that Waterwheel may include your name in a list of customers, online or in promotional materials.
Either party may terminate this agreement if: the other party is in material breach of the agreement and fails to cure that breach within thirty days after receipt of written notice; or the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety days.
If this Agreement terminates, then: the rights granted by one party to the other will cease immediately (except as set forth in this Section); Waterwheel will provide you access to, and the ability to export, Your Content for a commercially reasonable period of time at Waterwheel's then-current rates for the applicable Services; after a commercially reasonable period of time, Waterwheel will delete Your Content; and (iv) upon request each party will promptly use commercially reasonable efforts to return or destroy all other Confidential Information of the other party.
About these terms
Waterwheel may revise these terms and conditions from time-to-time. Revised terms and conditions will apply to the use of our Services from the date of the publication of the revised terms and conditions. Please check this page regularly to ensure you are familiar with the current version.
If you do not agree to the revised terms for a Service, you should discontinue your use of that Service.
If there is a conflict between these terms and the revised terms, the revised terms will control for that conflict.
Waterwheel may transfer, sub-contract or otherwise deal with Waterwheel's rights and/or obligations under these terms and conditions without notifying you or obtaining your consent.
You may not transfer, sub-contract or otherwise deal with your rights and/or obligations under these terms and conditions.
If any provision of these terms is, or is found to be, unenforceable under applicable law, that will not affect the enforceability of the other provisions of these terms.
Law and jurisdiction
The laws of California, U.S.A., excluding Californias conflict of laws rules, will apply to any disputes arising out of or relating to these terms or our Services. All claims arising out of or relating to these terms or our Services will be litigated exclusively in the federal or state courts of San Francisco County, California, USA, and you and Waterwheel consent to personal jurisdiction in those courts.
Contact us by email at email@example.com.
Additional terms and conditions for Services with fees
Payments must be in U.S. dollars.
Delinquent payments may bear interest at the rate of one-and-one-half percent per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. Customer will be responsible for all reasonable expenses (including attorneys' fees) incurred by Waterwheel in collecting such delinquent amounts, except where such delinquent amounts are due to Waterwheel's billing inaccuracies. If you do not pay Waterwheel delinquent fees within thirty days, Waterwheel will suspend your use of the Services. The duration of this suspension will be until you pay all outstanding fees.
You will pay Waterwheel for the Services without any reduction for taxes. If Waterwheel is obligated to collect or pay taxes, they will be billed to you unless you provide a valid tax exemption certificate authorized by the appropriate taxing authority.
If you require a purchase order number on your invoice, inform us and we will include your purchase order number on invoices following receipt. If you do not provide a purchase order number: you waive any purchase order requirement, Waterwheel will invoice you without a purchase order number, and you agree to pay invoices without a purchase order number referenced. Any terms and conditions on a purchase order are null and void.
You may elect one of the following options for Tracker 8 billing and payment:
Both plans give you access to the most current Tracker 8 release and unlimited technical support via email and technical support by phone when we're available. Technical support includes over-the-web training but doesn't include custom coding or on-site training.
Fees paid with either plan are non-refundable.
If you are a new Tracker 7 customer, you may elect (a) the Monthly Plan described above (b) the Annual Plan described above or you may elect to pay the license and software maintenance and technical support fees in our price list.
Waterwheel provides a variety of consulting Services, including but not limited to small and large software development projects and on-site training.
Before proceeding with a project, we will discuss its scope and fees with you. At your request, we will document that scope and those fees in a letter or contract.
In all cases, Waterwheel retains ownership of and Intellectual Property Rights to any code written on your behalf. You agree that Waterwheel may incorporate all such code in its Services, as it sees fit.