TERMS OF USE

IMPORTANT NOTICE: THESE TERMS OF USE CONTAIN A BINDING ARBITRATION PROVISION AND WAIVER OF JURY TRIALS AND CLASS ACTIONS GOVERNING DISPUTES ARISING FROM USE OF THE LAMOTTE SITES AND SERVICES. IT AFFECTS YOUR LEGAL RIGHTS AS DETAILED IN THE MANDATORY ARBITRATION AND WAIVER OF CLASS ACTION SECTION BELOW. PLEASE READ CAREFULLY.

These LaMotte Services Terms of Use (“Terms”) govern access to and use of the LaMotte Company (“LaMotte,” “we” or “us”) website(s) (www.lamotte.com, http://solutions.waterlinkconnect.com, https://ui.waterlinkconnect.com/#/, and http://softwarecenter.lamotte.com) and mobile applications, including LaMotte’s WaterLink Solutions HOME, WaterLink Solutions PRO, and DataMate Web applications, (collectively, the “Site”), and various LaMotte services (the “Services”) by Site visitors (“Site Visitors”), individuals or entities who purchase Services from LaMotte through a Master Services Agreement (“Customers”), Customers’ Authorized Users (as defined below) who submit information to LaMotte on behalf of a Customer, and individuals who create an account (“Account”) on one or more LaMotte Sites (“End Users”). By using the Site or any LaMotte Services, you as a Site Visitor, Customer, Authorized User, or End User, accept these Terms (whether on behalf of yourself or a legal entity you represent). An “Authorized User” of a Customer is an individual natural person, whether an employee, business partner, contractor, or agent of a Customer who is registered or permitted by Customer to use the LaMotte Services subject to these Terms. Customers, Site Visitors, Authorized Users, and End Users may be referred to in these Terms as “you” and “your” as applicable. For the avoidance of doubt, all references to the “Site” in these Terms also includes any LaMotte services offered through the Site.

If you are a Customer and you or your organization are bound by a Master Services Agreement with LaMotte (“MSA Terms”), then these Terms will apply, if at all, only to use of the Site or any LaMotte Services to the extent such use is not already governed by such MSA Terms.
BY ACCESSING, USING, DOWNLOADING, OR UPLOADING ANY INFORMATION FROM OR TO THE SITE, OR USING THE SERVICES, YOU AGREE TO FOLLOW AND BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, YOU ARE NOT AUTHORIZED AND MUST CEASE USING THE SITE AND SERVICES IMMEDIATELY.

Acceptance of Terms.

Please check these Terms periodically for changes. If you do not agree to the Terms, please do not use the Site. By using the Site, you acknowledge that you have read, understood and agree to these Terms. Your continued use of this Site following the posting of any changes to the Terms constitutes acceptance of those changes.
Credentials & Passwords.

You agree that at all times you shall keep confidential, maintain and control all user names and passwords used to limit your, and your access to the Site, and that you are exclusively responsible for all activities that occur in connection with such user names and passwords. You agree to immediately notify LaMotte of any disclosure to, or use of, any such usernames or passwords by any other individual. LaMotte will not be liable for any loss or damage of any kind, under any legal theory, caused by your failure to comply with the foregoing obligations.
Privacy Policy.

Any information, including personal information (e.g., your name, address, telephone number, e-mail address), that you transmit to the Site will be used by us in accordance with our Privacy Policy, which can be found here.
Eligibility; Use of the Site.
1. Eligibility to Use the Site. By using the Site, you represent and warrant that you are 18 years of age or older and competent to agree to these Terms. The Site is not available for use by children under the age of 13.
2. Using the Site on Behalf of a Company or Organization. If you are agreeing to these Terms on behalf of an organization or entity, you represent and warrant that you are competent and authorized to agree to these Terms on that organization or entity’s behalf and bind them to these Terms (in which case, the references to “you” and “your” in these Terms, except for in this sentence, refer to that organization or entity).
3. Limited License. Upon your acceptance of these Terms, we grant you a limited, non-exclusive and non-transferable license to access and use the Site for your non-commercial personal use, or your internal business purposes (where applicable) and only as expressly permitted in these Terms and any applicable MSA Terms. You shall not use or permit use of the Site for any illegal purpose or in any manner inconsistent with the provisions of these Terms or MSA Terms. If you are or become a direct competitor of LaMotte, you may not access or use the LaMotte Services without LaMotte’s explicit, advance, written consent, and then only for the purposes authorized in writing. Without limiting the foregoing, you may not: (1) interfere with others’ use of the Site; (2) impair the Site’s operation or interfere with or disrupt the servers or networks on which it operates; (3) interfere with LaMotte’s exercise of its intellectual property rights; (4) frame or otherwise co-brand the Site or any content on the Site; (5) deep-link to any portion of the Site; or (6) use the Site for any illegal purpose. We reserve the right in our sole discretion to terminate or restrict your use of the Site, without notice, for any or no reason, and without liability to you or any third party. In such event, we may inform your Internet service provider of your activities and take appropriate legal action.
LaMotte Content.

You acknowledge and agree that the Site contains certain information, such as text, graphics, images, videos, links, and other materials (collectively, “LaMotte Content”) that is protected by copyrights, trademarks, service marks, patents, trade secrets, or other proprietary rights and laws. You agree that as between you and LaMotte, LaMotte is the owner of LaMotte Content. You may not reproduce, distribute, republish or retransmit any LaMotte Content or materials posted at the Site except as expressly permitted herein. Except as expressly authorized by LaMotte herein or under MSA Terms, you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit, or create derivative works from such materials or LaMotte Content. Notwithstanding the above, you may print or download one copy of the LaMotte Content or materials on the Site on any single computer for your non-commercialuse, provided you keep intact all copyright and other proprietary notices. Systematic retrieval of data or other LaMotte Content from the Site to create or compile, directly or indirectly, a collection, compilation, database or directory without written permission from LaMotte is prohibited.
Third Party Sites/Information.

The Site may provide links to, or information gathered from, other sites on the Internet. LaMotte makes no representations whatsoever about these sites or this information. Other sites linked to the Site may contain information or material that some people may find inappropriate or offensive. The provision of links to, or information gathered from, other sites on the Internet should not imply LaMotte’s endorsement of any such sites or any association between LaMotte and these other sites’ operators. These sites are not under the control of LaMotte, and you acknowledge that LaMotte, its affiliates, and its licensors are not responsible for the accuracy, legality, decency, copyright compliance, or any other content of, or gathered from, such sites. You also acknowledge that LaMotte, its subsidiaries, its affiliates, and its licensors shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on the content, goods or services available on or through any sites linked to the Site, or your transmission of information, including personal data, to third-parties through such other sites.
Posting Guidelines.

LaMotte may host message boards, chats, and other public forums on the Site and LaMotte’s social media accounts. You agree not to post any (a) defamatory, abusive, profane, threatening, offensive, or illegal materials or information; (b) statements or materials that constitute junk mail, spam or unauthorized advertising, such as links to commercial products or services or any political campaigning; or (c) any information or material protected by copyright, trademark or other proprietary right without the permission of the copyright, trademark, or proprietary right owner. When you post content on the Site or provide information to LaMotte, such as reviews or survey feedback, it belongs to you; however, you grant permission to LaMotte to use that content in connection with our Site. Accordingly, you grant LaMotte a non-exclusive, irrevocable, royalty-free, freely transferable, sublicensable, worldwide right and license to use, host, store, cache, reproduce, publish, display, perform, distribute, transmit, modify, adapt, commercialize, create derivative works of, and otherwise exploit such content in connection with our Site and Services. You represent and warrant that you have all the necessary rights to grant LaMotte the foregoing license for all content you submit in connection with the Site and will indemnify us for any breach of this representation and warranty. For the sake of clarity, the foregoing paragraph does not apply to “End-User Data” (defined below), which is provided by Customers, Authorized Users, and End Users in connection with LaMotte Services.
LaMotte Services.
1. Included Services. LaMotte Services may include the LaMotte WaterLink Solutions HOME (“HOME Services”) and WaterLink Solutions PRO applications (“PRO Services”) (together, the “LaMotte Services”).
2. License to WaterLink Solutions PRO Services. Subject to these Terms and any applicable MSA Terms, LaMotte will provide the PRO Services to Customers as set forth in the applicable MSA Terms, and grants to Customers a limited non-exclusive, non-transferrable right and license during the Term, solely for its internal business purposes to: (a) access and use the PRO Services; and (b) implement, configure, and permit its Authorized Users to access and use the PRO Services up to any applicable limits or maximums.
3. License to LaMotte WaterLink Solutions HOME. Subject to these Terms, LaMotte grants End Users a limited, non-exclusive, non-transferrable right and license during the Term, solely for End User’s personal, non-commercial use to access and use the HOME Services.
Payment Terms for LaMotte Services.
1. Service Levels. The prices, features, and options of the LaMotte Services depend on the service level selected by you, as well as applicable MSA Terms, if any. LaMotte does not represent or warrant that a particular service level or application will be offered indefinitely and reserves the right to change the prices for or alter the features and options in a particular service in accordance with the MSA Terms.
2. No Refunds. Customer will timely pay LaMotte all fees associated with Customer’s use of the PRO Services, including, but without limitation, use by Authorized Users. Charges for pre-paid monthly plans will be billed to Customer in advance in accordance with the MSA Terms. Charges for per-use purchases shall be billed in arrears unless otherwise specified in the MSA Terms.
3. Invoices. LaMotte will provide billing and usage information in a format we choose, which may change from time to time. LaMotte reserves the right to correct any errors or mistakes that it identifies in a previously issued invoice and Customer agrees to notify LaMotte about any billing problems or discrepancies within thirty (30) days after receiving an invoice. If Customer fails to notify LaMotte of any billing discrepancies within thirty (30) days, Customer waives its right to dispute such problems or discrepancies.
Customer and End User Warranties.

You hereby represent and warrant to LaMotte that: (a) you have all requisite rights and authority to use the LaMotte Services under these Terms and to grant all applicable rights herein; (b) you are responsible for all use of the LaMotte Services associated with your Account, and the Accounts of your Authorized Users (if applicable); (c) you are solely responsible for maintaining the confidentiality of your Account name(s) and password(s); (d) you agree to immediately notify LaMotte of any unauthorized use of your Account of which you become aware; (e) you agree that LaMotte will not be liable for any losses incurred as a result of a third party's use of your Account, regardless of whether such use is with or without your knowledge and consent; (f) you will use the LaMotte Services for lawful purposes only and subject to these Terms and any applicable MSA Terms; (g) any information, including documents, that you submit, upload, or send to LaMotte is true, accurate, and correct; and (h) you will not attempt to gain unauthorized access to the Site or the LaMotte Services, other Accounts, computer systems, or networks under the control or responsibility of LaMotte through hacking, cracking, password mining, or any other unauthorized means.
End-User Data.

When you (an End User), upload content to the Site or provide information to LaMotte about yourself or your property, including but not limited to your name, address, and contact information (“End-User Data”), or authorize a LaMotte Customer or Authorized User to submit End-User Data to LaMotte on your behalf, it belongs to you; however, you grant permission to LaMotte to use that End-User Data in connection with our Services and in accordance with our Privacy Policy. Accordingly, you grant LaMotte an irrevocable, royalty-free, freely transferable, sublicensable, worldwide right and license to use, host, store, cache, reproduce, publish, display, distribute, transmit, modify, adapt, create derivative works of, and otherwise exploit such End-User Data solely in connection with providing the LaMotte Services. You represent and warrant that you have all the necessary rights to grant LaMotte the foregoing license for all End- User Data you submit in connection with the LaMotte Services and will indemnify us for any breach of this representation and warranty.
LaMotte Disclaimer of Warranties.

THE SITE, AND ALL CONTENT INCLUDED IN OR AVAILABLE THROUGH THE SITE, INCLUDING, WITHOUT LIMITATION, MATERIALS, INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES, ARE PROVIDED “AS IS” AND “AS AVAILABLE” FOR YOUR USE. THE SITE IS PROVIDED WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. LAMOTTE, ITS AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS COMPLETE, ACCURATE, RELIABLE OR CORRECT; THAT THE SITES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE CONTENT IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM CONTENT ON THE SITE OR FROM OTHER USERS WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. IN ADDITION, ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH YOUR USE OF THE SITES IS DONE AT YOUR OWN DIRECTION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. BECAUSE SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OF CERTAIN WARRANTIES, THESE EXCLUSIONS MAY NOT APPLY TO YOU.
Limitation of Liability.

Under no circumstances shall LaMotte, its affiliates, or its licensors be liable for any consequential damages (including, without limitation, indirect, punitive, incidental or special damages, damages for loss of profits, goodwill, use, data or other intangible losses (even if LaMotte has been advised of the possibility of such damages) including, without limitation, any that result from: (i) the use of, or inability to use, the Site; (ii) your reliance on advice, information, or other content on the Site; (iii) the cost of procurement of substitute goods and services resulting from any goods, data, information or services purchased or obtained or transactions entered into through or from the Site; (iv) unauthorized access to or alteration of your transmissions or data, including End-User Data; (v) statements or conduct of any third party on the Site; or (vi) any other material relating to the Site. LaMotte, its affiliates and its licensors shall only be liable to the extent of actual damages incurred by you, not to exceed the purchase price received by LaMotte for the service giving rise to the liability. This limitation applies whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if LaMotte has been advised of the possibility of such damage. Because some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages LaMotte’s liability in such jurisdictions shall be limited to the extent permitted by law.
Indemnity.

You agree to defend, indemnify and hold LaMotte and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, harmless from any claim or demand, including attorneys’ fees, made by any third party that arise from (a) your access to and use of the Site; (b) violation of these Terms by you or your Authorized Users, as applicable; or (c) infringement of any intellectual property or other right of any person or entity by you. LaMotte reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with LaMotte in asserting any available defenses.
International Use.

LaMotte is headquartered in the United States. Depending on your location and the Services you use, End User Data may be stored and processed by LaMotte in the United States, where United States law applies. Site Visitors, Customers, Authorized Users, and End Users who access the Site from outside the United States are responsible for compliance with local laws, if and to the extent local laws are applicable. You agree to comply will all applicable laws regarding the collection and transmission of End User Data.
Copyright Policy.

LaMotte respects the intellectual property rights of others and expects visitors to its Site to do the same. LaMotte will respond to notices of alleged copyright infringement that comply with applicable law and are properly provided to us. If you believe that your content has been copied in a way that constitutes copyright infringement, please provide contact details to LaMotte using the information below and provide the following: (i) a physical or electronic signature of the copyright owner or a person authorized to act on their behalf; (ii) identification of the copyrighted work claimed to have been infringed; (iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (iv) your contact information, including your address, telephone number, and an email address; (v) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) a statement that the information in the notification is accurate, and, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
LaMotte reserves the right to remove content alleged to be infringing without prior notice and at its sole discretion. LaMotte may also terminate a repeat infringer’s Account. LaMotte’s designated copyright agent for notice of alleged copyright infringement appearing on the Site can be reached at info@lamotte.com.
Mandatory Arbitration, Waiver of Class Actions.

PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
1. Scope. This Section 17 is intended to be interpreted broadly and governs any and all disputes between LaMotte and Site Visitors and End Users, including but not limited to, claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory; claims that arose before these Terms; and claims that may arise after the termination of these Terms (“Claims”). The only disputes excluded from this broad prohibition are the litigation of certain intellectual property disputes as provided below.
2. Pre-Arbitration Procedure. We hope that we can resolve any disputes with you without resorting to arbitration. If you have an issue or a complaint, you agree to contact us at softwaresupport@lamotte.com before taking formal action in accordance with paragraph 18.3. In your contact, please provide a brief, written description of the dispute and your contact information (including your username, if your dispute relates to an Account). LaMotte agrees to use reasonable efforts to address your issue or complaint.
3. Binding Arbitration. If, after engaging in good faith negotiations, we cannot reach an agreed-upon solution with you within sixty (60) days, then either party may initiate binding arbitration as the sole means to resolve Claims (except as provided below) subject to these Terms set forth below. You agree that any and all Claims shall be resolved by binding arbitration in accordance with the Consumer Arbitration Rules, as applicable, of the American Arbitration Association (“AAA”), having an address at 220 Davidson Avenue, 1st Floor, Somerset, New Jersey, 08873, or its successor. Information about AAA, including its rules and procedures, can be found at www.adr.org. If AAA, or its successor, is unable to arbitrate a particular Claim, then that Claim shall be resolved by binding arbitration pursuant to the rules and procedures of an equivalent organization as mutually agreed by the parties. The arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this agreement to arbitrate and the Terms, including but not limited to, any claim that all or any part of this agreement or the Terms is unenforceable. All fees charged by AAA, or its successor, shall be paid in accordance with the fee schedule under the Consumer Arbitration Rules, as applicable. All fees charged by any other equivalent organization as mutually agreed by the parties shall be paid in accordance with the rules and procedures of the equivalent organization. Arbitration awards may be enforced in any court of competent jurisdiction. The provisions of this paragraph shall be governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq., and shall survive settlement. EXCEPT AS MAY BE PROVIDED IN AAA’S CONSUMER DUE PROCESS PROTOCOL THAT ALLOWS CONSUMERS TO FILE CERTAIN CLAIMS IN SMALL CLAIMS COURT, YOU AGREE THAT YOU ARE GIVING UP YOUR RIGHT TO A TRIAL IN COURT, EITHER WITH OR WITHOUT A JURY.
4. Class Action Waiver. You and LaMotte expressly waive the right to file a class action or seek relief on a class basis. YOU AND LAMOTTE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
5. Intellectual Property Exclusion. Notwithstanding the parties’ decision to resolve all disputes through arbitration, LaMotte may bring enforcement actions, validity determinations, requests for emergent relief, including temporary restraining orders or preliminary injunctions, or claims arising from or relating to theft, piracy, or unauthorized use of intellectual property in any state or federal court with jurisdiction or in the U.S. Patent and Trademark Office to protect its intellectual property rights in the Site.
  
  This Mandatory Arbitration, Waiver of Class Actions section shall survive any termination of your use of the Site. For the sake of clarity, this section does not apply to Customers or Customers’ Authorized Users subject to MSA Terms.
Modifications to Service.

LaMotte reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Site or some or all of the content or services offered through the Site, with or without notice. You agree that LaMotte shall not be liable to your or to any third party for any modification, suspension or discontinuance of the Site or some or all of the services offered through it.
Severability and Integration.

These Terms, along with LaMotte’s Privacy Policy and MSA Terms (if applicable), constitutes the entire agreement between you and LaMotte with respect to the Site and supersedes all prior or contemporaneous communications and proposals, whether oral, written, or electronic, between you and LaMotte with respect to the Site. If any part of these Terms is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect.
Contact Information.

If have any questions or should you need any additional information about issues relating to the Site, please contact us at softwaresupport@lamotte.com.

TERMS OF USE

LaMotte Software Center