EFFECTIVE AS OF: 12/01/2020
IF YOU DO NOT AGREE TO THESE TERMS, OR IF YOU DO NOT HAVE THE REQUISITE AUTHORITY OR CAPACITY TO ENTER INTO THEM, DO NOT CLICK THE “ACCEPT” BUTTON OR CHECK ANY BOX TO ACCEPT THESE TERMS, AND YOU MUST NOT ACCESS, OR USE THE PLATFORM. YOU AGREE AND ACKNOWLEDGE THAT DOWNLOADING, ACCESSING OR USING ANY PORTION OF THE PLATFORM OR SERVICES IN ANY MANNER CONSTITUTES YOUR ACCEPTANCE OF THESE TERMS IN THEIR ENTIRETY.
1. Definitions. Unless otherwise defined herein, the capitalized terms used herein are defined in this Section.
“Account” means Customer’s dedicated access to the Platform, through which Customer is able to utilize the Platform’s features, upload and manage Customer Data, request Services, and receive and manage Compilations.
“Add-On BinBars” means any number of BinBars provided by WasteWizer to Customer for its use in connection with the Services, such BinBars being provided in excess of the BinBarss included as part of Customer’s Subscription.
“Affiliate” means an entity that directly or indirectly controls, is controlled by or is under common control with an entity.
“Billing Period” means the specific period of time that is a billing interval for an active Subscription. The Billing Period is set forth in the Order Form.
“BinBar” means the WasteWizer hardware that is placed under containers and transmits weight and fullness data back to the Platform.
“Customer Data” means any content, data, information, or material that is recorded by, submitted to, or stored by the Services.
“Derivative Works” means any suggestions, contributions, enhancements, improvements, additions, modifications, data, charts, analytics, research, or other works based on, referring to, or derived from the Platform or other WasteWizer Materials.
“Documentation” means the materials, the user documentation, and any other operating, training, and reference manuals relating to the use of the Services, as supplied by WasteWizer to Customer, as well as any Derivative Works thereof, as updated from time to time.
“End Users” means the Customer’s employees, agents, and individual third parties who are authorized by Customer and approved by WasteWizer to use the Platform, each having an individual Account to access the Platform.
“Feedback” means feedback, suggestions, and ideas that Customer or End Users provide to WasteWizer concerning improvements or enhancements to the Platform.
“Fees” means all amounts due by Customer under these Terms.
“Helpdesk Services” means the customer support services provided by WasteWizer in connection with the Platform.
“Intellectual Property Rights” means all industrial and other intellectual property rights comprising or relating to: (i) patents; (ii) trademarks; (iii) internet domain names, whether or not trademarks, registered by any authorized private registrar or governmental authority, web addresses, web pages, website and URLs; (iv) works of authorship, expressions, designs and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software and firmware, application programming interfaces, architecture, files, records, schematics, data, data files, and databases and other specifications and documentation; (v) trade secrets; (vi) integrated circuit layouts, mask works, topographies and the like; and (vii) all industrial and other intellectual property rights, and all rights, interests and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, these rights or forms of protection under the laws of any jurisdiction throughout in any part of the world.
“Marks” means service marks, trademarks, trade names, logos, and any modifications to the foregoing.
“Materials” means data, materials, pictures, documentation, audio, video, artistic works, writings, and other works of authorship.
“Platform” means the cloud-based software, software applications and other technologies provided by WasteWizer to Customer under these Terms.
“Push-Pull Ttool” means the WasteWizer hardware that is used to insert and remove the BinBar from underneath the container.
“Order Form” means the ordering document specifying the particulars of Customer’s Subscription, access to the Platform, Services, Fees, and other commercial terms. Each Order Form may be a document executed by the Parties and attached hereto (whether on the Effective Date or thereafter), or a webpage or portal on WasteWizer’s website that provides such ordering functionality and references these Terms.
“Services” means the Platform, the BinBar(s), the Push-Pull Tool(s), and the Helpdesk Services that may be offered and provided by WasteWizer to Customer, as updated from time to time.
“Subscription” means a Platform access and a defined scope of Services provided by WasteWizer to Customer on a recurring basis under these Terms. The Subscription level applicable to Customer shall be set forth in the Order Form.
“Third Party” means any entity – whether authorized by statute or otherwise – or natural person that is not WasteWizer or Customer.
“Update” means provide periodic updates, upgrades, new releases, adaptations, bug fixes, patches, workarounds and other error corrections in connection with the Platform that WasteWizer makes generally available free of charge to its customers with Subscriptions to the Platform.
2.1 General. WasteWizer shall provide the Platform and accompanying Services in accordance with Customer’s Subscription, enabling Customer to gather container weight data from a BinBar and to transmit such data to the Platform allowing Customer to further create, produce, manage, and share Customer Data and WasteWizer’s Services, including as may be set forth on an Order Form.
2.2 Platform Use. The Platform’s functionality allows Customer the ability to: (i) upload Customer Data to the Platform via a BinBar and on its own; and (ii) review, manage, and amend the Customer Data that it has uploaded. Subject to Customer’s compliance with the terms of these Terms, including timely payment of Fees, WasteWizer hereby grants to Customer a non-exclusive, non-transferable, non-assignable, revocable, limited license to access and use the Platform and associated Services, solely through its End Users and solely during the Subscription Term (as defined herein below). Customer shall be provided rights to access and use the Platform, through its End Users, for the duration of the Subscription Term, provided that each such End User is duly registered for his or her own individual Account. Customer shall be responsible for the actions and omissions of its End Users.
2.3 Platform Maintenance. Customer acknowledges that certain maintenance activities involving the Platform may be necessary or appropriate, from time to time, including development and deployment of Updates. In most instances, the WasteWizer infrastructure is designed to support Updates by the WasteWizer engineering and support teams without the need to interrupt the uptime of the Platform. Where such maintenance activities are not reasonably anticipated to materially impact Customer’s use of the Platform, WasteWizer will have no obligation to provide notice to Customer regarding such maintenance activities, although WasteWizer generally endeavors to inform Customer, at least twenty-four (24) hours in advance of the same, if WasteWizer reasonably determines that maintenance activities will require an unavailability or outage of the Services in excess of fifteen (15) consecutive minutes. WasteWizer will use commercially reasonable efforts to perform routine scheduled maintenance during non-business hours. Customer acknowledges and agrees that WasteWizer may develop and provide Updates in its sole discretion. WasteWizer has no obligation to develop any Updates at all or for particular issues, and WasteWizer expressly disclaims any liability for not doing so.
2.4 Helpdesk Services. Unless otherwise set forth in Customer’s specific Subscription level, or unless otherwise agreed to by WasteWizer and Customer, WasteWizer will provide Helpdesk Services in connection with its Platform and Services to Customer and End Users solely via email. Furthermore, unless otherwise set forth in Customer’s specific Subscription level, or unless otherwise agreed to by WasteWizer and Helpdesk Services will be provided during WasteWizer’s normal business, which are generally Monday through Friday, 9:00am through 5:00pm US Eastern Time, exclusive of US federal holidays.
2.5 Additional Services. Subject to Customer’s compliance with the terms of these Terms, including timely payment of Fees, during the Subscription Term, Customer will have the ability to request Services from WasteWizer. The specific Services available to Customer shall correspond to the Subscription level purchased by Customer. To the extent the same is expressly set forth in an Order Form, Customer may be provided the option to receive or purchase additional customizations or enhancements to the Services (the “Additional Services”). The delivery of and fees for the Additional Services will be as set forth in the applicable Order Form.
2.6 Instructions from End Users. Customer acknowledges and agrees that, in connection with any Services, WasteWizer shall have the right to take instructions from, and rely upon information provided by, any Customer End User registered in connection with Customer’s Account, and any such End User shall be deemed to have the necessary authority to act on Customer’s behalf in connection with the Platform and Services, expressly to include, but not limited to, Customer’s authorization of Fees, Additional Services, and Add-On BinBars.
3. The BinBar. Subject to Customer’s compliance with the terms of these Terms, including timely payment of Fees, during the Subscription Term, WasteWizer will supply to Customer one or more BinBars unless otherwise set forth in the Order Form.
3.2 Use of BinBars. Each BinBar and Push-Pull Tool is provided to Customer solely for Customer’s use in connection with the Platform and the Services, to assist Customer in generating Customer Data. Customer acknowledges and agrees that it will solely use the Push-Pull Tool for installation and removal of a BinBar. WasteWizer shall have no liability whatsoever for Customer’s use, installation, or removal of a BinBar if Customer does not use the Push-Pull Tool to install and remove a BinBar. Customer acknowledges and agrees that BinBars are not sold to Customer but provided for Customer’s temporary use during the Subscription Term. Customer agrees to utilize BinBars that it receives for the purpose of creating Customer Data for use with the Platform and the Services. Customer agrees to utilize all BinBars provided by WasteWizer hereunder only within the United States of America, and Customer must not remove them outside of the United States of America for any reason without WasteWizer’s written permission in advance of such removal.
(a) To receive BinBars pursuant to the Subscription level selected by Customer, Customer must provide WasteWizer with (i) the mailing address to which BinBars will be shipped; and (ii) the address of the location where such BinBars are expected to be stored. To avoid delays and issues with shipping, Customer agrees to promptly update WasteWizer of any changes to Customer’s shipping address for BinBars.
(c) In the event that any BinBar in use with Customer is damaged during the shipping process to Customer, Customer must note the damage with the carrier at the time of delivery, and further notify WasteWizer. Customer is responsible for inspecting each BinBar that it receives for damage before accepting the delivery thereof from the carrier; if Customer does not note damage at the time of delivery (unless it is latent), then Customer shall be responsible for repair or replacement costs.
(d) In the event that any equipment that is included as part of a BinBar is defective or begins to malfunction, Customer may request a replacement thereof from WasteWizer. WasteWizer may ship to Customer the individual piece of equipment or an entire replacement BinBar, at WasteWizer’s sole discretion. WasteWizer will also provide shipping instructions (including those related to labeling and packaging) for return of defective or malfunctioning equipment, and Customer agrees to comply with such instructions. In the event that, upon inspection, WasteWizer determines that malfunction is the result of Customer-caused damage to the equipment (except due to Normal Wear and Tear), then Customer shall be responsible for repair or replacement costs of such equipment.
3.4 Ownership of BinBars. Customer expressly acknowledges and agrees that each BinBar made available for Customer use is, and shall remain, the sole and exclusive property of WasteWizer in all events. WasteWizer expressly reserves all right, title, and interest in and to all BinBars provided to Customer, and WasteWizer shall have the right to take actions it deems necessary to ensure return or recompense for each BinBar, including without limitation, perfecting WasteWizer’s security interest in each BinBar. Upon WasteWizer’s request, Customer shall cooperate with WasteWizer to complete any document reasonably necessary to perfect WasteWizer’s security interest in each BinBar. Customer agrees that it shall not, at any time, sell, transfer, lend, lease, trade, pledge, hypothecate, encumber, file liens involving, whether voluntarily or otherwise, any BinBar provided to Customer by WasteWizer hereunder.
3.5 Return of BinBars.
(a) Upon termination of these Terms for any reason, Customer must return to WasteWizer all BinBars in Customer’s possession within fifteen (15) days thereof.
(b) In the event of a cancellation or downgrade of a particular Subscription, Customer must return to WasteWizer all BinBars in connection with that Subscription within fifteen (15) days: (i) after the last day of the cancelled Subscription; or (ii) following a downgrade in a Subscription, which results in a reduction in the number of BinBars available to Customer at the new Subscription level (except to the extent such new Subscription level permits the retention of one or more BinBars by the Customer).
(c) In the event of a voluntary request by Customer to return an Add-On BinBar, Customer must return to WasteWizer the Add-On BinBar subject to return within fifteen (15) days of the return date provided by WasteWizer. In WasteWizer’s sole discretion, Add-On BinBars requested to be returned and not timely returned shall continue to incur Fees to account for the Customer’s on-going retention or omission to return the Add-On BinBars, as may be appropriate, or else shall incur the requisite Holdover BinBar Rental Fee (as defined below) and related costs, fees and expenses as set forth in Section 3(d) below.
(d) In the event that Customer fails to return a BinBar as set forth in this Section 4, WasteWizer reserves the right to charge Customer a rental fee for each BinBar at a rate of four hundred dollars ($400) per month (the “Holdover BinBar Rental Fee”), which amount may be amended by WasteWizer at any time in WasteWizer’s sole discretion, with advance notice to Customer. Customer shall be responsible for reimbursing WasteWizer for all costs, fees, and expenses (including without limitation, attorneys’ fees) that may arise in the course of collecting Holdover BinBar Rental Fee amounts and in WasteWizer seeking return of BinBars from Customer.
4. Intellectual Property Rights.
4.2 For WasteWizer. All title, ownership rights, and Intellectual Property Rights in and to the Services, all WasteWizer Marks, and all Feedback (and all Derivative Works and copies thereof) are and will remain owned exclusively by WasteWizer. Customer will not assert or cause any other party (including, without limitation, any User) to assert any right, title, or interest in or to the Services, any WasteWizer software or the Intellectual Property Rights owned by WasteWizer. These Terms are not a sale and except as set forth in these Terms, does not give Customer any rights of ownership in, or related to, the Services, any WasteWizer software or the Intellectual Property Rights owned by WasteWizer.
4.4 Content. The role of WasteWizer is only to provide Customer with the Services and access to the Platform. Customer shall be solely and exclusively responsible for Customer Data that it may use in conjunction with its use of the Platform and/or the Services. Accordingly, Customer is solely and exclusively responsible for ensuring that (i) it has all of the rights, licenses, and privileges that are required for all Customer Data that it posts, publishes, transmits, or otherwise makes available through the use of the Platform (whether such content is utilized by/for Customer itself, or by/for its clients), and (ii) no portion of the Customer Data is unlawful or infringes upon the rights of any Third Party. At no time shall WasteWizer be responsible for any Customer Data that Customer uploads to, or that is transmitted through, the Platform, or otherwise provided to WasteWizer. WasteWizer shall have the right, in its sole discretion, to restrict, limit, or reject the posting, publication, use, storage, or transmission of any Customer Data via the Platform and to remove any Customer Data that has previously been uploaded or transmitted. WASTEWIZER MAKES NO REPRESENTATIONS WHATSOEVER ABOUT ANY CUSTOMER DATA UTILIZED, UPLOADED, OR TRANSMITTED BY CUSTOMER, ITS END USERS, OR OTHERWISE.
4.5 Limited License. Customer grants WasteWizer (and its successors, assigns and affiliates) a non-exclusive, perpetual, royalty free, fully paid up, worldwide, non-transferable, non-sublicensable license to access and use Customer Data in order to provide the Services to Customer and as necessary to monitor and improve the Services. WasteWizer will not: (i) disclose Customer Data except as compelled by law or as expressly permitted in writing by you, or (ii) access Customer Data except to provide the Services as described herein or prevent or address service or technical problems, or at your request in connection with customer support matters. WasteWizer may also incorporate Customer’s name, logo and trademark or service mark in a list of WasteWizer’s customers for its own marketing and promotional purposes.
5. Fees and Payment Terms.
6. Customer Obligations.
6.5 Compliance with Law. Both Parties represent and warrant that they will observe and comply with all applicable laws in connection with their performance under these Terms. Customer will notify WasteWizer, promptly and without any undue delay, of any discovered unauthorized use of the Platform or any other breach of security that is known or reasonably suspected by Customer. WasteWizer may suspend the Services, upon notice and a reasonable opportunity to cure, in the event of a material violation by Customer of any obligation contained in this Section 6, until such violation ceases, and WasteWizer receives reasonable assurances that such violation will not continue. If WasteWizer believes, in its sole discretion, that the WasteWizer Platform or Services are being used for criminal activity, in a manner that violates the legal rights of WasteWizer, WasteWizer’s customers, any user or other Third Party, or is experiencing an actual data loss or data misappropriation, or that the continued operation of the WasteWizer Systems places the WasteWizer Systems in potential danger of data loss, data breach, or catastrophic failure, then WasteWizer may effect such suspension prior to the giving of such notice to Customer.
7. Non-Disclosure; Confidentiality; Data Protection.
7.1 Disclosure. Each Party may disclose to the other party certain Confidential Information of such Party or of such Party’s associated companies, distributors, licensors, suppliers, or customers. For purposes of these Terms, “Confidential Information” means information, that is of value to its owner and is treated as confidential (including all information which is subject to treatment as a ‘trade secret’ under applicable law); the “Disclosing Party” refers to the Party disclosing Confidential Information hereunder, whether such disclosure is directly from the Disclosing Party or through the Disclosing Party’s employees or agents; and “Recipient” refers to the Party receiving any Confidential Information hereunder, whether such disclosure is received directly or through Recipient’s employees or agents.
7.2 Requirement of Confidentiality.
(a) The Recipient agrees to hold all Confidential Information disclosed by to the Recipient by the Disclosing Party in confidence and not to, directly or indirectly, copy, reproduce, distribute, manufacture, duplicate, reveal, report, publish, disclose, cause to be disclosed, or otherwise transfer the Confidential Information disclosed by the Disclosing Party to any Third Party, or utilize the Confidential Information disclosed by the Disclosing Party for any purpose whatsoever other than as expressly contemplated by the Agreement.
(b) Customer acknowledges that the Platform and Documentation, as well as all each Order Form issued in connection with these Terms, are the Confidential Information of WasteWizer.
(c) With regard to all Confidential Information, the obligations in this Section 7.2 shall continue for the Term of the Agreement and for a period of three (3) years thereafter; provided, however, that, with respect to any Confidential Information which is a trade secret under applicable law, the obligations shall continue in perpetuity for so long as such information is considered a trade secret.
(d) The foregoing obligations shall not apply if and to the extent that: (i) the Recipient establishes that the information communicated was publicly known at the time of the Recipient’s receipt or has become publicly known other than by a breach of these Terms; (ii) prior to disclosure hereunder was already in the Recipient’s possession without restriction as evidenced by appropriate documentation; (iii) subsequent to any disclosure hereunder, the information is obtained by the Recipient on a non-confidential basis from a Third Party who has the right to disclose such information; or (iv) was developed by the Recipient without any use of any of the Confidential Information as evidenced by appropriate documentation. Notwithstanding anything to the contrary herein, if the Recipient is ordered by an administrative agency or other governmental body of competent jurisdiction to disclose the Confidential Information, then the Recipient may disclose the requested Confidential Information; provided, however, that, the Recipient shall first notify the Disclosing Party prior to disclosure, if allowed by law, in order to give the Disclosing Party a reasonable opportunity to seek an appropriate protective order or waive compliance with the terms of these Terms and shall disclose only that part of the Confidential Information which the Recipient is required to disclose.
7.3 Return of Materials. Upon the request of the Disclosing Party or upon the expiration or termination of the Agreement, the Recipient shall promptly destroy or deliver to the Disclosing Party its Confidential Information and any notes, extracts or other reproductions in whole or in part relating thereto, without retaining any copy thereof. Notwithstanding the foregoing, the Recipient shall be permitted to retain such copies of Confidential Information as may be reasonably necessary for legal or recordkeeping purposes, including such copies as are embedded in the automated backup of electronic data processing systems.
7.4 Data Use. Customer hereby acknowledges and agrees that WasteWizer has a perpetual and irrevocable right to use and evaluate all Feedback for WasteWizer’s own purposes. Customer hereby acknowledges and agrees that WasteWizer has a perpetual and irrevocable right to use all Feedback and may use the Feedback without accounting or compensation to Customer. Customer will not provide any Feedback unless Customer has all rights necessary to do so. Customer hereby assigns to WasteWizer Customer’s entire right, title and interest (including, without limitation, all patent rights, design rights, copyrights and trade secrets) in any modifications or improvements to the Services which Customer may propose or make, either alone or jointly with WasteWizer. Customer agrees that any Customer Data may be used for the purposes of analysis, including statistical analysis, trend analysis, creation of data models, and creation of statistical rules; provided that such analysis shall be performed solely by WasteWizer and such analysis shall be performed only in conjunction with data derived by WasteWizer from WasteWizer’s performance of services for other customers, input by other WasteWizer customers or obtained from party data sources. The results of such analysis (“De-identified Data”) may be used by WasteWizer for any lawful internal purpose, including for the purposes of improving the Services, evaluating trends across the Services, product development, marketing, optimizing the performance or metrics of the Services, audit requirements, and/or complying with, and monitoring Customer’s compliance with, applicable law.
7.5 Protection of Customer’s Proprietary Information. WasteWizer agrees to use its best efforts in accordance with industry best practices to implement administrative, physical and technical safeguards necessary to ensure the security, confidentiality and integrity of Customer’s Confidential Information and other proprietary information. Except as otherwise provided herein, WasteWizer shall only use Customer’s Confidential Information to the extent required for the proper delivery of the Services, including as necessary or appropriate to prevent technical problems (e.g., to resolve issues related to technical support).
8. Limited Warranty; Disclaimer of Warranties.
8.3 Disclaimer of Warranties. WITHOUT LIMITING THE FOREGOING, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, THE IMPLIED WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE ARE EXPRESSLY EXCLUDED AND DISCLAIMED. NO WARRANTY IS MADE THAT USE OF THE PLATFORM OR SERVICES WILL BE TIMELY, ERROR FREE OR UNINTERRUPTED, THAT ANY NON-MATERIAL ERRORS OR DEFECTS IN THE PLATFORM OR SERVICES WILL BE CORRECTED, THAT THE SYSTEMS THAT MAKES THE PLATFORM AND SERVICES AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS – INCLUDING BUT NOT LIMITED TO ANY SYSTEMS MAINTAINED BY AN INTERNET SERVICE PROVIDER – OR THAT THE PLATFORM WILL OPERATE IN COMBINATION WITH HARDWARE, SOFTWARE, SYSTEMS OR DATA NOT PROVIDED OR RECOMMENDED BY WASTEWIZER, OR THAT THE PLATFORM FUNCTIONALITY WILL MEET CUSTOMER’S REQUIREMENTS. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE PLATFORM IS ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSE.
8.4 No Warranties for Third Party Services. WASTEWIZER MAKES NO REPRESENTATION OR WARRANTY REGARDING ANY PRODUCTS OR SERVICES OFFERED OR PROVIDED BY ANY THIRD PARTY. ANY AND ALL SUCH THIRD-PARTY PRODUCTS AND/OR SERVICES ARE PROVIDED “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS.”
9. Limitation of Liability.
9.1 Exclusions of Liability. Except in connection with and to the extent of any breach of a Party’s obligations of confidentiality or any indemnification obligations hereunder, in no event shall either Party, its affiliates, licensors or suppliers, or any of their officers, directors, employees, shareholders, agents or representatives be liable to the other Party, or any other person or entity for any indirect, special, incidental, exemplary or consequential damages or loss of goodwill under or in any way relating to these Terms or resulting from the use of or inability to use the deliverables or the performance or non-performance of any Services, including the failure of essential purpose, even if such Party has been notified of the possibility or likelihood of such damages occurring, and whether such liability is based on any legal or equitable theory, including, but not limited to, contract, tort, negligence, strict liability, products liability or otherwise.
9.2 Maximum Liability. Except for claims arising (i) in connection with and to the extent of any breach of a Party’s obligations of confidentiality hereunder, (ii) in connection with a Party’s obligations of indemnification pursuant to Section 10, or (iii) in connection with contractual payment obligations hereunder, in no event shall either Party’s liability for any damages to the other Party, or to any other person or entity, regardless of the form of action, whether based on contract, tort, negligence, strict liability, products liability or otherwise, exceed the pro rata portion of Fees received by WasteWizer from Customer applicable to the six (6) month period immediately preceding the events giving rise to such action.
10.1 WasteWizer Indemnification.
(a) WasteWizer shall indemnify, defend, and hold harmless Customer and its officers, directors, employees and Affiliates and End Users against any Third Party claims, actions or proceedings arising out of or in connection with, and to the extent caused by any infringement by the Platform against any patent, copyright, or trademark, or the misappropriation of any trade secret (except for claims which are specifically excluded under the terms of Section 10.1(b)). If any part of the Platform becomes, or, in WasteWizer’s opinion, is likely to become, the subject of any claim of infringement, WasteWizer may, at its sole option, (x) obtain for Customer the right to continue using the Platform; (y) replace or modify the affected portion of the Platform so that it becomes non-infringing while providing substantially equivalent functionality; or (z) if such remedies are not available on commercially reasonable terms as determined by WasteWizer, terminate the license to use the Services for the affected portion of the Platform, and promptly refund any pre-paid (but unearned) Subscription Fees for the affected portion of the Platform.
(b) Notwithstanding any terms contained in Section 10.1(a), WasteWizer shall have no liability for infringement claims if the alleged infringement is based on or arises from (i) the combination or use of the Platform with software or other materials not provided or recommended (in writing) for use by WasteWizer, (ii) the modification of the Platform by anyone other than WasteWizer, (iii) the use of the Platform not in accordance with the Documentation, Materials, or the Agreement, or (iv) the use of other than the then most current version of the Platform, if the use of the most current version of the Platform would have eliminated the infringement, and Customer was notified of and given a reasonable opportunity to use the most current version thereof.
10.2 Customer Indemnification. Customer will indemnify, defend, and hold harmless WasteWizer against all claims, actions or proceedings, arising out of any claim that: (i) any Customer software, Marks, Content, or Materials directly provided by Customer or its End Users or inputted into the Platform, or the permitted use of the same by WasteWizer, infringes or violates any Third Party patent, copyright or trade secret right; (ii) Customer’s unauthorized use or reproduction of the Platform or any Services; or (iii) Customer’s violation of Section 7 of these Terms.
10.3 Indemnification Obligations. The indemnification provided in Sections 10.1 and 10.2 is conditioned on (i) the party to be indemnified (the “Indemnified Party”) giving the indemnifying party (the “Indemnifying Party”) prompt written notice of such claim; (ii) the Indemnified Party providing its full cooperation in the defense of such claim, if requested by the Indemnifying Party; and (iii) the Indemnified Party granting the Indemnifying Party the sole authority to defend or settle the claim; provided, however, that any settlement does not deprive the Indemnified Party of any future rights. The Indemnified Party may engage legal counsel to monitor, but not control, any such claim at the Indemnified Party’s expense.
11. Term and Termination; Pausing Subscription.
11.1 Agreement Term. The Agreement shall commence on the Effective Date and continue in effect until terminated in accordance herewith (the “Term”).
11.2 Subscription Term. Customer may have the opportunity to purchase one or more Subscriptions during the Term of these Terms. Each Subscription shall commence on the Subscription Start Date set forth in the corresponding Order Form and shall continue in effect until for the period of time prescribed in the Order Form, until it is terminated in accordance herewith (the “Initial Subscription Term”). Upon the expiration of the Initial Subscription Term of a Subscription, unless otherwise set forth in that Subscription shall be renewed automatically for a subsequent period equal to the Initial Subscription Term, unless a different renewal period is set forth in the Order Form or any amendments thereto (each, a “Renewal Subscription Term” and together with the Initial Subscription Term, the “Subscription Term”).
11.3 Agreement Termination. Without prejudice to any other remedies and in addition to any other termination rights herein, the Parties shall have the right to terminate the Agreement as provided below:
(a) By either Party if the other Party commits a material breach of these Terms and such breach remains uncured thirty (30) days after written notice of such breach is delivered to such other Party;
(b) By either Party if the other Party makes an assignment for the benefit of creditors, or commences or has commenced against it any proceeding in bankruptcy, insolvency, or reorganization pursuant to bankruptcy laws, laws of debtor’s moratorium or similar laws;
(c) By WasteWizer, if WasteWizer reasonably determines that further provision of the Services would be (or would present a substantial risk) in contravention of any applicable law or rule of any self-regulatory organization;
(d) By WasteWizer if any amounts hereunder which are due and owing and not reasonably in dispute remain unpaid for more than fifteen (15) days following written notice of such unpaid amounts being delivered to Customer;
(e) By either Party, upon notice, in the event of any documented verbal or written abuse (including threats of abuse or retribution) by any employee, officer, agent, or representative of the other Party that is directed toward any employee, officer, agent, or representative of such Party; provided that prior notice and a reasonable opportunity to address and reasonably remediate the same shall be provided before any such termination notice may be served effectively hereunder;
(f) By either Party, upon the non-renewal by either Party of all of Customer’s Subscriptions in accordance herewith; or
(g) By Customer, for convenience, upon providing WasteWizer with at least thirty (30) days’ advance written notice and payment to WasteWizer of a Termination Fee. The Parties hereto acknowledge and agree that any sum payable as a Termination Fee shall each give rise to liquidated damages and is not a penalty. The Parties further acknowledge that (i) the amount of loss or damages likely to be incurred by WasteWizer is incapable or is difficult to precisely estimate, (ii) the amounts specified bear a reasonable proportion and are not plainly or grossly disproportionate to the probable loss likely to be incurred by WasteWizer, and (iii) the Parties are sophisticated business parties and have and negotiated these Terms at arm’s length. As used in these Terms, a “Termination Fee” shall be an amount equal to the sum total of: (x) all Fees that have been earned by WasteWizer and that are due and payable to WasteWizer by Customer hereunder up to and including the desired date of termination; and (y) forty percent (40.0%) of all of the Fees, in aggregate, payable (or to be payable) by Customer to WasteWizer under these Terms during the remainder of the Term hereof.
11.4 Subscription Termination.
(a) Either Party may terminate a Subscription by electing not to renew it by providing the other Party with sixty (60) days’ advance written notice (or thirty (30) days’ advance written notice in the case of month-to-month Subscriptions) prior to the conclusion of the Subscription Term then in effect. WasteWizer may, but is not obligated to, provide Customer with the ability to submit a non-renewal request, or to automatically decline Subscription renewal, through Customer’s Account.
(b) Terminating one (1) Subscription in accordance with this Section shall not terminate any other Subscription or these Terms.
(c) All Subscriptions shall automatically terminate upon termination of these Terms pursuant to Section 11.3 hereof.
11.5 Effect of Termination.
(a) Upon expiration or termination of these Terms for any reason, all access, rights, and licenses granted by WasteWizer hereunder to Customer and all End Users will immediately cease, and any monies owed by Customer to WasteWizer shall become due and payable. Upon any expiration or termination of these Terms, WasteWizer shall make Customer Data and Compilations available to it for a period of at least thirty (30) days.
(b) Upon expiration or termination of these Terms or a Subscription, as applicable, all BinBars shall be returned to WasteWizer by Customer in accordance with the requirements of Section 34 hereof.
11.6 Survival. Termination of these Terms or any Subscription will not affect the provisions that, by their nature, are intended to survive the termination hereof, including without limitation, provisions: (a) regarding each Party’s treatment of Confidential Information; (b) regarding each Party’s Intellectual Property Rights; (c) relating to the payments of Fees; (d) regarding indemnification provisions; and (e) the provisions limiting or disclaiming a Party’s liability, all of which shall expressly survive such termination.
12.1 Authority.** Each Party represents and warrants that it has the legal power and authority to enter into the Agreement. When executed and delivered by both Parties, the Agreement will constitute the legal, valid and binding obligations of such Party, enforceable against such Party in accordance with its terms.
12.2 Governing Law. The interpretation and enforcement of these Terms, and any dispute related to these Terms or the Services, will be governed by and construed and enforced in accordance with the laws of State of Georgia, without regard to conflict of law rules or principles (whether of Georgia or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. You agree that we may initiate a proceeding related to the enforcement or validity of our Intellectual Property Rights in any court having jurisdiction. With respect to any other proceeding under these Terms, the federal and state courts located in Fulton County, Georgia will have exclusive jurisdiction. Customer waives any objection to venue in such courts.
12.3 International Conventions.** The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply in any respect to these Terms or the Parties hereunder.
12.4 No Conflicts.
(a) In the event of any conflict between the content in these Terms or an Order Form (if any), the Order Form will control, unless the Order Form expressly states otherwise.
(b) Notwithstanding the content of any Customer Order Form or any other document or record, whether in writing or electronic, relating to the subject matter of these Terms, the terms of the Agreement shall govern and any conflicting, inconsistent, or additional terms contained in such documents shall be null and void.
12.5 Communications; Notices. All communications and notices which are required or otherwise provided under the Agreement shall be in writing and shall be deemed given when delivered (i) by hand, (ii) by registered or certified mail, postage prepaid, return receipt requested; (iii) by a nationally recognized overnight courier service; or (iv) by electronic mail (with read receipt or other tracking mechanism to confirm receipt), to the respective addresses set forth on the first Order Form of these Terms and Conditions, as each may be amended by the Parties by written notice to the other Party in accordance with this Section 12.5.
12.6 Assignment.** Neither Party may assign its rights and obligations under the Agreement without the prior written consent of the non-assigning Party, which, in the case of any proposed assignment to affiliates or successors in interest, shall not be unreasonably withheld, conditioned or delayed. Any assignment in violation of this Section 12.6 shall be void and of no effect. *Notwithstanding the foregoing*, WasteWizer may assign these Terms to any Third Party acquiring all or substantially all of WasteWizer’s equity or assets pursuant to a merger, sale, reorganization, or consolidation with that Third Party without Customer’s consent. WasteWizer may further delegate its obligations, in whole or in part, to any of its Affiliates without Customer’s consent. The Agreement shall be binding upon and inure to the benefit of the Parties and their successors and permitted assigns.
12.7 Severability.** In case any one or more of the provisions of these Terms should be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby.
12.8 Entire Agreement.** The Agreement constitutes the entire agreement between the Parties concerning the subject matter hereof and supersedes all written or oral prior agreements or understandings with respect thereto. All Schedules attached to the Agreement or subsequently added hereto by mutual consent of the Parties are incorporated into these Terms for all purposes.**
12.9 Waiver.** No failure or delay by a Party to exercise any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
12.10 Modifications to Services and Platform. WasteWizer reserves the right, in its sole discretion, to make any changes to the Services and the Platform that it deems necessary or useful to: (i) maintain or enhance (ii) the quality or delivery of WasteWizer’s services to its customers, (iii) the competitive strength of or market for WasteWizer’s services, or (iii) the Services’ cost efficiency or performance; or (iv) comply with applicable law; provided that no such changes have the effect of materially degrading the functionality of the Platform.
12.11 Force Majeure. Neither Party shall be in default in the performance of its obligations under these Terms if such performance is prevented or delayed by reasons of force majeure (the “Force Majeure”), which includes, without limitation, the following: (i) acts of God, flood, fire, wind, storm, drought, earthquake or other natural disaster; (ii) epidemic or pandemic; (iii) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; (iv) nuclear, chemical or biological contamination or sonic boom; (v) any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary license or consent; (vi) collapse of buildings, breakdown of plant or machinery, fire, explosion or accident; (vii) any labor or trade dispute, materials or transport, strikes, industrial action or lockouts; (viii) interruption or failure of utility service; or (ix) for any other cause, whether similar or dissimilar to those enumerated, that is beyond the reasonable control and without the fault or negligence of the Party whose performance is affected.
12.12 No Third-Party Beneficiaries. The Agreement is personal to the Parties and no Third Parties shall be considered beneficiaries hereof, for any purposes.**