Aquatik Studios Terms & Conditions

Aquatik Studios Terms of Service   These Terms of Service (“Terms”) are a binding agreement between you (“you” or “Customer”) and Aquatik Esports, LLC (“Aquatik”) (each individually referred to as a “Party,” collectively the “Parties”). Please read these Terms carefully before accepting them and signing up for the Aquatik Studios Services.  These Terms are effective on the date that you accept them and sign up for the Aquatik Studios Services (the “Effective Date”). WE RESERVE THE RIGHT TO MODIFY OR AMEND THESE TERMS FROM TIME TO TIME, AND YOUR CONTINUED USE OF THE SERVICES FOLLOWING NOTICE OF CHANGES TO THESE TERMS MEANS YOU ACCEPT THOSE CHANGES.

1. The Services. Aquatik provides development and production services to gaming developers (the “Services”) pursuant to these Terms. Aquatik may utilize (i) its subsidiaries and affiliates (“Affiliates”) or (ii) third parties (“Subcontractors”) to perform the Services, provided that Aquatik requires such Affiliates or Subcontractors to comply with these Terms. Aquatik will remain responsible for all Services performed hereunder by its Affiliates and Subcontractors.
2. Intellectual Property.
   • In performing the Services, Aquatik may create certain Deliverables. “Deliverables” means (i) all work product and all other content, items, deliverables or milestones set forth in the applicable Statement of Work to be performed or delivered by Aquatik as part of the Services under the applicable Statement of Work; and (iii) all other output and materials delivered by Aquatik in performance of the Services. Where applicable, the Deliverables are deemed a “Work Made For Hire” within the meaning of the United States Copyright Act, 17 U.S.C. § 101. To the extent that the Deliverables do not meet the definition of “Work Made For Hire” under U.S. copyright law, Aquatik irrevocably assigns, transfers and conveys, and will cause its personnel to assign, transfer and convey to Customer without further consideration, all of their rights, title, and interest in and to such Deliverables, including all Intellectual Property Rights therein and relating thereto, and any works in progress, free and clear of any liens or encumbrances. Aquatik agrees that, if the Customer is unable because of Aquatik’s unavailability, dissolution, or for any other reason, to secure Aquatik’s signature with respect to any Deliverables, including, without limitation, for the purpose of applying for or pursuing any application for any United States or foreign patents or mask work or copyright registrations covering the Deliverables assigned to the Customer herein, then Aquatik hereby irrevocably designates and appoints the Customer and its duly authorized officers and agents as Aquatik’s agent and attorney-in-fact, to act for and on Aquatik’s behalf to execute and file any papers and oaths and to do all other lawfully permitted acts with respect to such Deliverables to further the prosecution and issuance of patents, copyright and mask work registrations with the same legal force and effect as if executed by Aquatik. This power of attorney shall be deemed coupled with an interest, and shall be irrevocable.
   • All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how, trade dress, trade names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all Deliverables will be owned exclusively by Customer.
   • All Intellectual Property Rights in all techniques, processes, integrations, documents, data, know-how, methodologies, software, and other materials provided by or used by Aquatik in performing the Services and developed or acquired by Aquatik prior to or independently of this Agreement (collectively, “Pre-Existing Materials”) will be owned exclusively by Aquatik. Aquatik grants to Customer, a worldwide, irrevocable, non-exclusive, perpetual, transferrable, assignable, royalty-free, right and license for Customer to use, execute, reproduce, display, perform, distribute, sub-license, copy and prepare derivative works of Pre-Existing Materials incorporated into the Deliverables.
3. All non-public, confidential or proprietary information of either party (“Confidential Information”), including, but not limited to, information about such party’s business affairs, products, services, methodologies, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, disclosed by one party (“Disclosing Party”) to the other party (“Receiving Party”), whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, or otherwise learned by the Receiving Party in connection with this Agreement is confidential, solely for use in performing this Agreement, and may not be disclosed to any third parties unless authorized by the Disclosing Party in writing. Notwithstanding the foregoing, Aquatik may disclose Customer Confidential Information to those of its personnel, affiliates, and third-party service providers with a need to know such Confidential Information for the purposes of this Agreement, provided such parties maintain Customer Confidential Information subject to the terms of this Agreement. The Receiving Party will protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care. Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of the Receiving Party’s breach of this Agreement; (b) is obtained by the Receiving Party on a non-confidential basis from a third-party that was not legally or contractually restricted from disclosing such information; (c) the Receiving Party establishes by documentary evidence, was in its possession prior to the Disclosing Party’s disclosure hereunder; (d) was or is independently developed by the Receiving Party without using any of the Disclosing Party’s Confidential Information; or (e) is required to be disclosed under applicable federal, state or local law, regulation or a valid order issued by a court or governmental agency of competent jurisdiction. Each Party shall notify the other Party promptly upon discovering an actual or reasonably suspected unauthorized disclosure of the other Party’s Confidential Information within its possession or control.
4. Data Privacy; Security.
   • Data collection and use, including the collection and use of personal information, is governed by Aquatik’s Privacy Policy, which is incorporated into and is a part of these Terms.
   • Aquatik implements and maintains commercially reasonable technical, physical and organizational security measures intended to protect and safeguard the data that is provided to Aquatik by or on behalf of Customer under these Terms (“Customer Data”). In the event that Aquatik becomes aware of any breach of security with respect to Customer’s Customer Data, Aquatik shall: (i) provide notice of the security breach to Customer; (ii) conduct an investigation to learn the cause of such security breach; and (iii) take all steps reasonably necessary to remedy the event and to prevent such security breach from reoccurring.
5. Service Plans; Payment.
   • Aquatik offers three monthly Services plans, Common, Uncommon, and Rare, in addition to an enterprise plan, Epic. Descriptions of the Common, Uncommon, and Rare plans in addition to the features and the scope of services within each plan are available at https://www.aquatikstudios.com/pricing. For information about our Epic plan, please contact us. Customer agrees to pay Aquatik the fees set forth at https://www.aquatikstudios.com/pricing for the applicable service plan Customer selects. The fees for each service plan are payable by Customer on a month-to-month basis with no annual commitment.
   • Aquatik offers certain add-on services to enhance the Services, including but not limited to branded tournaments, partner acquisition, launch parties, and Aquatik’s Kontrol Media Services (collectively “Add-On Services”). If Customer elects to add any Add-On Services to the Services, Customer agrees to pay any applicable add-on fees associated with such add-on services as set forth at https://www.aquatikstudios.com/pricing.
   • Aquatik reserves the right to change its fees (including fees for Add-On Services) and service plans in its sole and absolute discretion, and will provide Customer with advanced notice before changes take effect. Beginning on the Effective Date, Aquatik will charge the applicable fees to Customer’s credit card on file every thirty (30) days. Customer may increase its service plan (g. Common to Uncommon, or Rare to Epic) in the middle of a monthly billing cycle, and in such case Aquatik will charge Customer a prorated amount of fees. Customer is not permitted to decrease its service plan (e.g. Uncommon to Common, or Epic to Rare) in the middle of a monthly billing cycle. In the event Customer desires to decrease its service plan, such changes will take effect at the beginning of the next monthly billing cycle.
6. Representations and Warranties.
   • Each Party represents and warrants to the other Party that: (i) it has the full right, power, and authority to enter into this Agreement; (ii) when executed and delivered by such party, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable in accordance with its terms; and (iii) it will comply with all applicable laws.
   • Aquatik represents and warrants to Customer that it will perform the Services in a professional and workmanlike manner in accordance with commercially reasonable industry standards for similar services and in compliance with all applicable laws, and will devote adequate resources to meet its obligations under these Terms (“Limited Warranty”). Aquatik also represents and warrants that neither the Deliverables nor the Services will infringe on any third party rights. Aquatik’s initial liability and Customer’s initial remedy for breach of the Limited Warranty will be re-performance of the affected Services. Should Aquatik re-performance not be reasonably approved by Customer, Customer shall be entitled to cancel its service plan and terminate these Terms.
   • EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 6, THE SERVICES AND DELIVERABLES ARE PROVIDED “AS IS” WITHOUT ANY OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7. Limitations of Liability.
   • IN NO EVENT WILL AQUATIK OR ITS PARENTS, AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, ATTORNEYS OR AGENTS (“REPRESENTATIVES”) BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, LIQUIDATED, EXEMPLARY OR INCIDENTAL DAMAGES, OR FOR CLAIMS FOR LOST PROFITS, LOST REVENUES OR LOSS OF USE, ARISING FROM OR RELATED TO THE PERFORMANCE OF THE SERVICES OR THE SUBJECT MATTER OF THESE TERMS, REGARDLESS OF THE FORM OF ACTION, WHETHER IN AN ACTION IN CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, OR OTHERWISE, EVEN IF AQUATIK IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
   • IN NO EVENT WILL AQUATIK OR ITS REPRESENTATIVES’ LIABILITY FOR ANY CLAIMS TO CUSTOMER OR TO ANY THIRD PARTY ARISING FROM OR RELATED TO THE PERFORMANCE OF THE SERVICES OR THE SUBJECT MATTER OF THESE TERMS EXCEED THE FEES PAID BY CUSTOMER TO AQUATIK FOR THE SERVICES GIVING RISE TO THE CLAIM.
   • THIS SECTION SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THESE TERMS.
8. Customer will indemnify, defend, and hold harmless Aquatik and its officers, directors, employees, agents, Affiliates, successors, and permitted assigns against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and costs, incurred by it (collectively, “Losses”), relating to any third-party claim arising out of or occurring in connection with (a) Customer’s willful, fraudulent or grossly negligent acts or omissions, or (b) Customer’s violations of applicable law.
9. Term; Termination; Survival.
   • Unless otherwise agreed to by the parties, these Terms shall commence on the Effective Date and continue on a month-to-month basis until terminated in accordance with this Agreement. Customer may terminate this Agreement at any time and such termination will be effective on the first day of the month after such termination. All fees paid to Aquatik are non-refundable.
   • Either party may terminate this Agreement for the other party’s breach of any of its obligations under this Agreement that remains uncured for a period of thirty (30) days after the non-breaching party has provided written notice to the breaching party.
   • After the expiration or termination of these Terms, Aquatik shall ensure it has provided Customer with all Deliverables, works in process, writings, documents, and work product prepared by Aquatik in performing the Services under these Terms, or destroy such materials in the sole discretion of Customer. If Company requests that such materials be destroyed, Aquatik agrees that Aquatik will provide written verification that such materials have been destroyed.
   • All provisions of these Terms that by their nature are intended to extend beyond the termination of these Terms for any reason shall survive the termination of these Terms.
10. • Governing Law and Venue. These Terms will be governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule that would cause the application of laws of any other jurisdiction. Any legal suit, action, or proceeding arising out of or related to these Terms or the Services provided hereunder will be instituted exclusively in the state or federal courts in Naples, Florida, and each Party irrevocably: (a) submits to the exclusive jurisdiction of such courts; and (b) waives any objection to such courts based on venue or inconvenience.
    • Compliance with Laws. Each party shall comply with all applicable laws, rules and regulations relating to its performance under these Terms.  Without limiting the generality of the foregoing, Customer shall comply with all applicable import and export laws and regulations related to the Service for the country where the Service is used by Customer as well as with all applicable United States export laws (collectively, the “Export Laws“). Customer shall not, and shall not permit any third party to: (i) export or transmit the Service, directly or indirectly, in violation of Export Laws, including to a country subject to a U.S. embargo; (ii) access or use the Service in violation of any Export Laws; (iii) provide access to the Service across international boundaries except in compliance with any Export Laws, including those of the originating country.
    • Independent Contractors. Both parties shall be, and shall act as, independent contractors. Neither party shall have authority to create any obligation or make any commitments on the other party’s behalf.
    • All notices under these Terms will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
    • Use of Names. Neither party may use the names, trademarks, trade names, service marks, insignia, or logos (“Marks“) of the other party without such other party’s prior written consent.  Notwithstanding the foregoing, Aquatik may publicly refer to Customer as a customer of Aquatik online, verbally, and in its marketing materials.    
    • These Terms are not assignable by Customer except with Aquatik’s prior written consent, and any such assignment in violation hereof is void.  Aquatik may transfer and assign any of its rights and obligations under these Terms without consent.
    • Force Majeure. No delay, failure, or default by Aquatik, will constitute a breach of these Terms to the extent it results of causes beyond the reasonable control of Aquatik, including acts of war, terrorism, weather, acts of God or nature, strikes, labor disputes, riots, civil disorder, embargo, internet outage, health crisis, endemic, pandemic, earthquake or the like.
    • Neither party shall be deemed to have waived any of its rights under these Terms by lapse of time or by any statement or representation other than by an authorized representative in an explicit signed, written waiver.  No waiver of a breach of these Terms by either party will constitute a waiver of any other breach of these Terms.
    • In the event a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and if the foregoing is not possible, such provision shall be severed from the Terms.  All remaining provisions shall continue in full force and effect.
    • Entire Agreement. These Terms constitute the entire agreement between the parties with regard to the subject matter herein and supersede all prior or contemporaneous negotiations, discussions, understandings or agreements between the parties.  Neither party has relied upon any such prior or contemporaneous communications.  Any amendment or modification to these Terms must be in writing and signed by the authorized representatives of both parties to be effective.