Last Updated: 22th February 2024
This AQUM End User Agreement (the "Agreement") is an agreement between AQUM LTD, ("AQUM") and the entity you represent ("Client").
This Agreement takes effect when you click an I Accept button or, if earlier, when you access or use the System (the "Effective Date"). You represent to us that you are lawfully able to enter into this Agreement on behalf of the Client.
This Agreement governs your download and/or use of the executable code for the AQUM software application, including any update or upgrade thereto (the "System" and the "Service"). This Agreement forms a binding contract between you and AQUM.
1. Grant of License
1.1. During the term of this Agreement, AQUM grants the Client a limited license (with no right to sublicense) to access and use the System solely for the purpose of Client's internal business operations.
1.2. AQUM reserves any and all rights not expressly granted in this Agreement, including, without limitation, any and all rights to the System.
2. Disclaimer of Warranties
AQUM IS PROVIDING THE USE OF THE SYSTEM ON "AS IS" BASIS AND IT EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED TO THE CONDITION, VALUE OR QUALITY OF THE SYSTEM, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SECURITY, ACCURACY, ABSENCE OF VIRUSES OR ANY DEFECT THEREIN, WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. AQUM FURTHER EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT THE USE OF THE SYSTEM WILL BE CONTINUOUS, UNINTERRUPTED OR ERROR-FREE, OR THAT ANY INFORMATION CONTAINED THEREIN WILL BE ACCURATE OR COMPLETE.
3. Warranties and Representations by the Client
3.1. The Client warrants, represents and covenants to AQUM that it shall:
3.2. Not use the System in violation of applicable law or regulations or any third-party rights (including intellectual property rights), or for governmental uses.
3.3. Not use the System to:
3.4 Not use other systems, products or services that infringe upon the patents and other intellectual property rights of AQUM.
4. Consideration
4.1. Following the free trial period (if any), Client shall enter a valid payment method as a condition for further use or access to the System, at the consideration stated in the Client's dashboard.
4.2. Prices are net of any withholding or other taxes and the Client shall be responsible for payment of all such applicable taxes, levies, charges or duties, including sales or use taxes, imposed by any federal, state, or local governmental entity on the Service furnished by AQUM under this Agreement, except for taxes based on AQUM's net income, gross revenue, or employment obligations. If AQUM is obligated by applicable law or regulation to collect and remit any taxes relating to the Service, then AQUM may deduct the appropriate amount from the Client's account.
5. Limitation of Liability
5.1 In no event will AQUM, its affiliates, independent contractors, service providers, and consultants, and its and their directors, members, employees or agents be liable under this Agreement for any direct, consequential, special, indirect or punitive damages or for any loss, profits or revenue (whether in contract, tort, negligence or any other legal theory) in any way relating to this Agreement ("Event"), even if the Client had been informed in advance of the possibility of such damages.
5.2. Aggregated liability of AQUM, its affiliates, independent contractors, service providers, and consultants, and its and their directors, members, employees or agents, whether in contract, warranty, tort (including negligence, whether active, passive or imputed), product liability, strict liability or other theory, arising out of or relating to the use of or inability to use the Service or to this Agreement exceed five hundred dollars ($500).
6. Temporary Suspension
6.1. AQUM in its sole discretion and at any time, may suspend Client's right to access or use the System immediately upon notice to Client, if AQUM determines that Client's use of or registration for the Service:
6.2. Client is in breach of this Agreement, including if Client is delinquent on payment obligations.
7. Disclosure of Information
7.1. AQUM shall have the right, but not the obligation, to monitor Client's use of the System for billing purposes and to verify no misuse or network abuse. AQUM may share the Client's relevant information with any authority in case of a complaint or a lawsuit, if AQUM determines that it is necessary to comply with law, regulation, subpoena or court order.
8. Term and Termination
8.1. This Agreement commences on the Effective Date and shall continue until terminated in accordance with the terms of this Agreement.
8.2. Either party shall have the right to terminate this Agreement immediately at any time by providing the other party an advance written notice until the end of that calendar month. The Agreement will terminate at the end of the calendar month at which the written notice was received, without the party incurring any liability towards the other party by virtue of such termination.
8.3 AQUM shall be entitled to terminate this Agreement immediately for "cause"; by written notice to the Client if:
8.4. Upon termination, any outstanding consideration amounts shall immediately become due and payable, the license granted herein shall be terminated and the Client shall immediately stop using the System.
9. Confidentiality
9.1. Confidential Information means any non-public information disclosed by AQUM, whether or not marked (if not so marked, is of a nature or disclosed under circumstances that a reasonable person would recognize such information as confidential), including, without limitation, the terms of this Agreement including any Insertion Orders and Campaign details, the publishers in AQUM's network, the contents of the Site, individual contact information provided by AQUM, information regarding AQUM's marketing, plans, products, services, and technical environment.
9.2. The Client agrees to protect Confidential Information in the same manner as the Client protects its own (but using no less than a reasonable degree of protection) and shall only disclose Confidential Information to those with a need to know that information, who have agreed in writing to be bound by terms at least as protective as those contained in this Agreement.
9.3. The restrictions in this Section will not apply to Confidential Information if:
9.4. AQUM shall be entitled to seek injunctive or other equitable relief for breach of the confidentiality obligations herein. Such injunctive or equitable relief shall not be the exclusive remedy for any breach of confidentiality, but shall be in addition to all other rights and remedies available at law or in equity.
10. Dispute Settlement and Arbitration Clause
10.1. This Agreement and any controversy, claim or dispute (including non-contractual disputes or claims) arising out of or in connection with its subject matter or formation shall be governed by, construed, and enforced in accordance with United Kingdom law without regard to its conflict of laws rules.
10.2. Any controversy, claim or dispute arising out of or in connection with this Agreement, or the breach, termination or invalidity thereof, shall be finally settled by arbitration administered by the Arbitration Institute of the Stockholm Chamber of Commerce (the "SCC") in accordance with its Arbitration Rules.
10.3. The Rules for Expedited Arbitrations of the SCC shall apply and a sole arbitrator shall be appointed where the amount in dispute does not exceed US$ 2,000,000.
10.4. Where the amount in dispute exceeds US$ 2,000,000, the Arbitration Rules of the SCC shall apply and the Arbitral Tribunal shall be composed of three arbitrators. The amount in dispute includes the claims made in the Request for Arbitration and any counterclaims made in the Answer to the Request for Arbitration.
10.5. The seat of arbitration shall be London and the governing law of the arbitration agreement shall be United Kingdom law.
10.6. The language to be used in the arbitral proceedings shall be English.
10.7. The award shall be final and binding on the Parties. The award may include an order for specific performance or injunctive relief. The Parties hereby acknowledge and agree that the award of monetary damages may not be a satisfactory remedy for a breach of this Agreement, and accordingly such specific performance and/or injunctive relief or similar orders may be a necessary and appropriate remedy.
10.8. The parties expressly agree that leave to appeal under Section 69 or an application for the determination of a preliminary point of law under Section 45 of the Arbitration Act 1996 may not be sought with respect to any question of law arising out of an award or in the course of the proceedings.
10.9. The parties waive their right to any form of appeal, review or recourse to any state court or other legal authority, insofar as such waiver shall not be prohibited under any applicable law.
10.10. The Parties hereby irrevocably waive any defense on the basis of forum non conveniens in any proceedings to enforce an arbitration award rendered by a tribunal constituted pursuant to this Agreement.
11. Miscellaneous
11.1. This Agreement constitutes the entire understanding between the parties with respect to the matters referred to herein.
11.2. All notices or other communications hereunder shall be given by email to addressee on signature below.
11.3. If any provision of this Agreement will be held by a court of competent jurisdiction to be contrary to any law, the remaining provisions will remain in full force and effect as if said provision never existed.
11.4. No failure or delay on the part of any party hereto in exercising any right, power or remedy hereunder shall operate as a waiver thereof.
11.5. This Agreement shall be governed by the laws of the United Kingdom.
11.6. The parties and their respective personnel are and shall be independent contractors and neither party by virtue of this Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.
11.7. AQUM reserves the right to change or modify any of the terms and conditions contained in this Agreement or applicable policies at any time and in its sole discretion. Any changes or modification will be effective immediately upon posting of the revisions on the Site, and the Client waives any right the Client may have to receive specific notice of such changes or modifications. The Client's continued use of the Service following the posting of changes or modifications will confirm its acceptance of such changes or modifications. Therefore, the Client should frequently review this Agreement and applicable policies from time-to-time to understand the terms and conditions that apply to its use of the Service. If the Client does not agree to the amended terms, the Client must stop using the Service.