Terms

Terms and Conditions

Thousands Have Lived
Without Love, Not One Without Water

– H. Auden

Effective Date: November 30, 2019

ABOUT THIS AGREEMENT

The following terms and conditions govern your use of the websites (the “Site(s)”) created by XiO, Inc. or any of its related, affiliated or subsidiary companies (together, “Company,” “we,” “our,” “us,”), and your use of any content, products, services and functionality available at or through our Sites. The Sites are offered subject to the terms and conditions contained herein and in all other rules, policies, and procedures that we may publish through the Sites (collectively, the “Agreement”), including our privacy policy located at https://xiowatersystems.com/terms-of-use/, as it may be updated from time to time pursuant to the terms therein (the “Privacy Policy”), which is incorporated into the Agreement by this reference. PLEASE READ THESE TERMS OF SERVICE, INCLUDING OUR PRIVACY POLICY, CAREFULLY BEFORE USING THE SITES.

ACCESS TO THE SITES IS LIMITED TO UNITED STATES RESIDENTS WHO ARE SIXTEEN

(16) YEARS OF AGE OR OLDER. BY USING THE SITES, YOU HEREBY CONFIRM THAT YOU ARE A RESIDENT OF THE UNITED STATES AGE SIXTEEN (16) OR OLDER.

By accessing or using any part of the Sites, you agree to become bound by the terms and conditions of this Agreement, which form a legally binding contract between you and us. If you do not agree to all the terms and conditions of this Agreement, then you may not access or use any of the Sites.

If you are using the Sites on behalf of an employer or another entity, you represent and warrant that you have the authority and capacity to bind such entity to this Agreement.

The Sites are not targeted to or intended to be used or accessed by children under the age of sixteen (16), and Company does not knowingly obtain information from children without first obtaining parental consent in accordance with applicable laws like the Children’s Online Privacy Protection Act. If you believe we have collected information from your child in error or have questions about our practices relating to children, please notify Attn: General Counsel, 100 Smith Ranch Road, Suite 120, San Rafael, CA, 94903.

ACCEPTABLE USE POLICY

The Sites are only available for access and use by you for lawful purposes. You understand that when using the Sites, you may be exposed to user content provided by third parties, and you agree that we are not responsible for the accuracy, safety, or intellectual property rights in or related to such content. Any action by you that we believe, in our sole and absolute discretion:

  1. violates this Agreement; (b) violates any applicable law, statute, court order, regulation, or ordinance (including, without limitation, those governing export control, consumer protection, unfair or deceptive practices, and false advertising); (c) restricts, inhibits, disrupts, interferes with, limits, or prevents access or use by anyone of the Sites; or (d) through the use of the Sites, abuses, defames, harasses, libels, disparages, or threatens another user of the Sites or any other third party, is strictly forbidden. You also may NOT undertake the following in connection with the Sites:
    • take any action that attempts to impersonate, deceive, or defraud any person or entity;
    • use metatags or any other “hidden text” utilizing any of our or any third party’s product names or trademarks;
    • use any robot, spider, crawler, scraper, bots or other automated means to access or use the Sites;
    • introduce or attempt to introduce software viruses, Trojan horses, worms, backdoors or any other computer codes, files, or programming instruction or set of instructions that are designed or intended to disrupt, disable, harm, interfere, or otherwise adversely affect any computer programs, software, firmware, hardware, mobile devices, wireless devices, computer systems, data, or operations;
    • take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our technical infrastructure;
    • take any action that attempts to gain unauthorized access to, or attempts to compromise the normal functioning operation or security of, any network, system, computing facility, equipment, data, or information of anyone;
    • take any action that discloses or attempts to gain unauthorized access to, email address, or other personal information of anyone, including, without limitation, other end users; or
    • take any action that bypasses or attempts to bypass, or circumvents, or attempts to circumvent, any measures we may use to prevent or restrict access to the Sites or certain features or modules of the Sites.

Without limiting our rights to change, restrict, disable, or terminate the Sites as provided elsewhere under this Agreement, we reserve the right to immediately block or disable your ability to use the Sites, in whole or in part, if, in our sole and absolute discretion, we believe that you have engaged in any of the foregoing activities; that such activities have occurred in association with your device; or if we otherwise believe that your use of the Sites may cause a breach to any applicable laws or contractual obligations.

OUR INTELLECTUAL PROPERTY RIGHTS

All content available through the Sites (including, without limitation, text, design, graphics, logos, icons, images, audio clips, and downloads, as well as the selection, arrangement, and compilation of data thereof) (“Content”) is copyrighted works and exclusively owned by the Company, our affiliates, or our licensors, and is protected under United States and international copyright, patent, trademark, and/or other intellectual property laws. The Company, our affiliates and licensors, as applicable, retain full and complete title to the Content, including all associated intellectual property rights. All suggestions, requests, documents, and feedback you may communicate to us regarding the Sites or Content, and all inventions, improvements, modifications, product or service ideas, and concepts contained therein (collectively, “Feedback”), shall be the exclusive property of the Company. If you provide any Feedback, you acknowledge and agree that: (1) your Feedback does not contain confidential or proprietary information of yours or any other parties; (2) such Feedback does not infringe the intellectual property or other rights of any third parties; and (3) you hereby assign all worldwide rights, title, and interest in, to and under any such Feedback to the Company and agree to execute and deliver any assignments or other instruments or documents that we may request in order to confirm, perfect, record, or enforce our rights with respect to the Feedback. Without limiting the foregoing, you agree and acknowledge that any Feedback you provide may be made available for viewing by other end users, at the Company’s sole discretion.

MOBILE AND INTERNET SERVICES

By using or accessing the Sites from your mobile phone, you understand that your wireless or internet services provider’s standard messaging and/or data rates will apply to these Sites. You hereby represent and warrant that you are the owner or authorized user of any mobile or other wireless device that you use to access the Sites, and that you are authorized to approve all associated messaging and data charges.

THIRD PARTY LINKS AND SITES

We have not reviewed, and cannot review, all the material made available through the Sites, including (a) third party content and software and (b) any applications to which the Sites may be linked (such as Facebook, Google, Pinterest, LinkedIn, or Twitter (collectively, “Third Party Sites”). Certain Third Party Sites include their own terms of use and/or privacy policies governing their use (“Third Party Terms”). You agree and acknowledge that we do not have any control over Third Party Sites, and we shall not be responsible for their contents or their use. Without limiting the generality of the foregoing, we shall not be responsible for or control over any privacy or security practices or any Third Party Site’s collection, storage, use, or disclosure of your information. You are responsible for reading and complying with the Third Party Terms, including, without limitation, any privacy policies, use or service agreements or terms of use, and any other policies of Third Party Sites.

COPYRIGHT AND OTHER INTELLECTUAL PROPERTY INFRINGEMENT

As we ask others to respect our intellectual property rights, we respect the intellectual property rights of others, and require our users and customers to do the same. If you are a copyright owner or an agent thereof and believe that any user content infringes your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing pursuant to 17 U.S.C § 512(c)(3):

    • A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
    • Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Sites or available through our services are covered by a single notification and identification of each such copyrighted work is both impractical and overly burdensome, a representative list of such works at those locations;
    • 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;
    • Your contact information, including email address, postal address, and telephone number;
    • A statement 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
    • 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 owner of an exclusive right that is allegedly infringed.

Our designated Copyright Agent to receive notifications of claimed infringement is:

Attention: General Counsel

XiO, Inc.

100 Smith Ranch Road, Suite 120 San Rafael, CA, 94903

For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to our customer service department. You acknowledge that if you fail to comply with all of the requirements of this Section 6 (Copyright and Other Intellectual Property Infringement), your DMCA notice may not be valid.

UPDATES AND CHANGES

You acknowledge and agree that the form, features and/or nature of the Sites may change from time to time without prior notice to you. We may also cease or discontinue providing the Sites, or support or upgrades for the Sites, at any time at our sole discretion. Such new features and/or services shall be subject to the terms and conditions of the then-current version of this Agreement as well as any additional terms and conditions that we may post on any of our Sites. We may also modify or eliminate services, modules, or features of the Sites, in whole or in part, to all users or only selected users at our sole and exclusive discretion. We reserve the right (and you acknowledge our right), at our sole discretion, to amend or update any part of this Agreement by posting the amended or updated Agreement on any of our Sites or making it available through the Sites. While we may choose to notify you of changes to this Agreement, you are responsible for periodically checking for changes to this Agreement. Your continued use of or access to the Sites following the posting or distribution of any changes to this Agreement constitutes acceptance of those changes; and such amended or updated Agreement will be effective as of the date of its posting on or through any of our Sites.

TERMINATION

We may block or disable your access or use of the Sites at any time, with or without cause, with or without notice, effective immediately. Without limiting the foregoing, we may block or disable your access or use of the Sites, if (a) we believe that you have breached any provision of this Agreement (or have acted in manner which shows that you do not intend to, or are unable to comply with the provisions of this Agreement); (b) we are required to do so by law; (c) we elect to no longer provide the Sites to users in the state or country in which you are resident or from which you use the Sites; or (d) we believe that your use of the Sites may infringe or violate the rights of a third party or subject us or one of our affiliates to civil or criminal liability or reputational harm. All provisions of this Agreement that by their nature should survive termination of this Agreement, including, without limitation, ownership provisions, warranty disclaimers, indemnity, limitations of liability, and miscellaneous terms, shall so survive.

DISCLAIMER OF WARRANTIES

YOU AGREE THAT USE OF THE SITES ARE ENTIRELY AT YOUR OWN RISK. THE SITES ARE PROVIDED ON AN “AS IS” OR “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND. THE COMPANY AND ITS AFFILIATES, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS, AND LICENSORS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SITES AND/OR YOUR

USE THEREOF INCLUDING, WITHOUT LIMITATION, ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY, FREEDOM FROM VIRUSES, FREEDOM FROM BUGS, FREEDOM FROM ERRORS, AND NON- INFRINGEMENT OF INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS. THE COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE SITES AND/OR THEIR CONTENT OR THE CONTENT OF ANY PRODUCTS OR SITES LINKED TO OR INTEGRATED WITH THE SITES AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR (I) ERRORS, MISTAKES, OMISSIONS, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SITES,

(III) ANY UNAUTHORIZED ACCESS TO OR USE OF THE SITES, OUR SERVERS, AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SITES, (V) ANY BUGS, VIRUSES, TROJAN HORSES, MALWARE, ADWARE, AND/OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SITES, (VI) ANY LOSS OR DAMAGE TO CONTENT OR DATA (WHETHER STORED THROUGH THE SITES OR OTHERWISE), OR (VII) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT E- MAILED, IMPORTED, TRANSMITTED, DISTRIBUTED, OR OTHERWISE MADE AVAILABLE VIA THE SITES. THE COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT, SERVICE OR OPPORTUNITY ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SITES, OR ANY HYPERLINKED OR INTEGRATED WEBSITES OR SERVICES, AND THE COMPANY WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING OR ENFORCING ANY TRANSACTION BETWEEN YOU AND ANY THIRD.

LIMITATION OF LIABILITY

UNDER NO CIRCUMSTANCES SHALL THE COMPANY OR ITS AFFILIATES, LICENSORS, DIRECTORS, SHAREHOLDERS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS, OR SUPPLIERS BE LIABLE FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR DAMAGES ARISING FROM YOUR USE OF OR INABILITY TO USE THE SITES) WHATSOEVER, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY OR ANY OF THE FOREGOING PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT THE LIABILITY OF THE COMPANY AND ITS AFFILIATES, LICENSORS, DIRECTORS, SHAREHOLDERS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS, AND SUPPLIERS FOR ANY CLAIM OR SERIES OF CLAIMS IS HEREBY DISCLAIMED TO THE

MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAWS. The foregoing limitations of liability shall apply to the fullest extent permitted by law in the applicable jurisdiction.

REPRESENTATIONS AND WARRANTIES

You represent and warrant that: (a) your use of the Sites will be in strict accordance with this Agreement and with all applicable laws and regulations (including, without limitation, any local laws or regulations in your country, state, city, or other governmental area, regarding online conduct and acceptable content, and all applicable laws regarding the transmission of technical or personal data exported from or into the United States or the country in which you reside, and all applicable laws pertaining to privacy, consumer rights, and unfair or deceptive advertising practices); and (b) your use of the Sites will not infringe or misappropriate the intellectual property rights or any other rights of the Company, its affiliates, or of any other user or third party.

INDEMNIFICATION

To the fullest extent permitted by applicable law, you agree to defend, indemnify, and hold harmless the Company, its affiliates, it licensors, and its and their respective stockholders, directors, officers, employees, representatives, and agents from and against any and all claims, actions, lawsuits, damages, obligations, complaints, demands, allegations, losses, liabilities, costs or debt, and expenses (including, but not limited to, attorneys’ fees) arising out of or related to or in connection with your actual or alleged (a) use of and access to the Sites, (b) violation, breach or default of any term of this Agreement, (c) violation by you of any third party right including, but not limited to, any patent, trademark, service mark, copyright, trade secret, publicity, or privacy right, (d) damage to a third party cause by you or any content which you submit or transmit via the Sites, or (e) violation, breach, or default of any term of an agreement (whether written or oral, and whether implied or express) between you and any third party.

NOTICES

All notices, demands and other communications hereunder shall be in writing and shall be effective upon receipt, provided that we may provide notice to you by posting announcements on any of our Sites or sending an e-mail to you at the e-mail address that is submitted to our mailing list. Any such e-mail notice to you will be deemed given on the day it is sent. Except as specified in the next sentence, all notices to us of a legal nature shall be in writing and shall be sent by certified first-class U.S. mail, return receipt requested, to:

Attention: General Counsel

XiO, Inc.

100 Smith Ranch Road, Suite 120 San Rafael, CA, 94903

All notices regarding copyright or other intellectual property infringement issues shall be sent in accordance with our intellectual property policy described in Section 6 (Copyright and Other Intellectual Property Infringement) above. If you have any questions about this Agreement, or if you need to notify us about a non-legal matter, then please contact us at info@xiowater.com or at the postal address set forth above.

MISCELLANEOUS

  1. Relationship of the Parties. You agree that no joint venture, partnership, employment, or agency relationship exists between you and us or any of our affiliates as a result of this Agreement or any other use of the Sites. This Agreement (including the Privacy Policy and all other operating policies, rules, and procedures posted on any of our Sites from time to time) constitutes the entire agreement between us and you concerning the subject matter hereof, and may only be modified by a written amendment signed by a duly authorized representative of us, or pursuant to the terms set forth in Section 7 (Updates and Changes).
  2. Choice of Law. This Agreement is governed by California law, excluding its conflicts of law rules.
  3. Severability; Waiver, No Assignments. The provisions of this Agreement are severable, and if any portion is determined invalid or unenforceable by a court of competent jurisdiction, the remaining portions will remain valid, enforceable, and in effect to the fullest

extent consistent with applicable law. Any waiver by either party of any term or condition of this Agreement or any breach thereof shall be in writing, executed by the party to be charged, and any such waiver, in any one instance, will not waive such term or condition in any other instance or any subsequent breach thereof. This Agreement is not assignable by you, except by operation of law; we may assign our rights under this Agreement without condition. This Agreement will be binding upon and will inure to the benefit of the parties, their successors, and permitted assigns.

HOW TO CONTACT US

If you have any questions, complaints or claims with respect to the Sites, please contact us by email at info@xiowater.com, call us at [toll-free telephone number], or by regular mail at:

Attention: General Counsel

XiO, Inc.

100 Smith Ranch Road, Suite 120 San Rafael, CA, 94903