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This Software as a Service Agreement (“Agreement”) is entered into effective as of today (the “Transaction Date”) by and between WASTELINQ, LLC, a Texas limited liability company having a place of business at 8901 Jameel Road, Ste. 180, Houston, TX 77040 (hereinafter the “Company”) and the Subscriber (hereinafter the “Customer”).
WHEREAS, Company is in the business of providing software solutions, among other things; and
WHEREAS, Customer desires to use certain Company software solutions, subject to the terms of this Agreement;
NOW, THEREFORE, in consideration of the mutual promises set forth herein, the parties hereby agree as follows:
1. Agreement Definitions
Software as a service consists of system administration, system management, and/or system monitoring activities that Company performs for Company Programs, and includes the right to use the Company Programs, support services for such Company Programs, as well as any other services provided by Company, as defined in the Order Form (collectively, the “Service”). The term “Order Form” refers to the ordering document(s) signed by the parties that accompanies and incorporates this Agreement, including electronic order forms. The term “Company Program(s)” refers to the software product(s) owned and/or distributed by Company to which Company grants Customer access as part of the Service, including Program Documentation, and any Company Program updates provided as part of the Service. The term “Program Documentation” means, at any time, the current user documentation in any form or media as delivered together with the Service by Company for use in connection with Service. The term “Users” shall mean those individuals authorized by Customer to use the Service, as defined in the Order Form. The term “Customer Data” refers to the data provided by Customer that resides in Customer service environment. Customer’s access to the Service shall be enabled via username(s) and password(s) (“Credentials”) selected by Customer. An “Account” is a single point of entry via the user interface through which Customer accesses and uses the Service.
2. Right Granted
For the duration of the Service term defined in the Order Form, Customer have the nonexclusive, non-assignable, limited right to use the Service within the United States solely for Customer’s internal business operations and subject to the terms of this Agreement. Customer may allow Users to use the Service for this purpose and Customer is responsible for Users compliance with this Agreement.
Customer acknowledge that Company has no delivery obligation and will not ship copies of the Company Programs to Customer as part of the Service. Customer agrees that Customer does not acquire under this Agreement any license to use the Company Programs specified in the Order Form in excess of the scope and/or duration of the Service. Upon the end of this Agreement or the Service thereunder, Customer’s right to access or use the Company Programs specified in the Order Form and the Service shall terminate.
3. Ownership and Restrictions
Customer retains all ownership and intellectual property rights in and to Customer Data. Company or its licensors retain all ownership and intellectual property rights to the Service and Company Programs. Company retains all ownership and intellectual property rights to anything developed and delivered under this Agreement. Certain Company Programs may either contain third party software components or may be third party software products to which certain specific terms for third party software apply. Customer’s right to use such third party technology is governed by the terms of the third party technology license agreement specified by Company and not under this Agreement.
Customer may not:
The rights granted to Customer under this Agreement are also conditioned on the following:
Except where Company has actual notice of loss, theft or unauthorized use of Customer’s Credentials i) Customer is responsible for all activity occurring in Customer’s Account(s) and, ii) Company shall have the right, without further inquiry, to rely on the provision of Customer’s Credentials as sufficient to authenticate Customer’s use of the Service. To the extent that Customer wishes to purchase from Company services other than the Service (collectively, “Additional Services”), such Additional Services and the arrangements for their provision shall be set forth in a separate amendment to this Agreement duly executed by the parties. Customer agrees not to use or permit use of the Service, including by uploading, emailing, posting, publishing or otherwise transmitting any material, for any purpose that may: i) menace or harass any person or cause damage or injury to any person or property, ii) involve the publication of any material that is false, defamatory, harassing or obscene, iii) violate privacy rights or promote bigotry, racism, hatred or harm, iv) constitute unsolicited bulk e-mail, “junk mail”, spam” or chain letters, v) constitute an infringement of intellectual property or other proprietary rights, or vi) otherwise violate applicable laws, ordinances or regulations. In addition to any other rights afforded to Company under this Agreement, Company reserves the right to remove or disable access to any material that violates the foregoing restrictions. Company shall have no liability to Customer in the event that Company takes such action. Customer agrees to defend and indemnify Company against any claim arising out of a violation of Customer’s obligations under this subsection.
Customer shall pay to Company the fees described in this Agreement, including any applicable Order Form. All fees due under this Agreement are non-cancellable and the sums paid non-refundable. Customer agree to pay any sales, value-added or other similar taxes imposed by applicable law that Company must pay based on the Service Customer ordered, except for taxes based on Company’s income. Fees for Service(s) listed in an Order Form are exclusive of taxes and expenses. Fees shall be payable in U.S. dollars by credit card. All amounts are due at time of order. By completing the transaction, Customer agrees that Payment Method may be processed by WASTELINQ, LLC. Confirmation will be sent to the e-mail address provided at sign up. Payments will be processed directly by Cielo e-Merchant Solutions using Secure Socket Layer (SSL) technology. By using WASTELINQ’s online merchant services, Customer accepts and consents to data being transmitted to the Service Provider for the sole purpose of offering and administering the online payment. Customer agrees that Customer has not relied on the future availability of any Service, programs or updates in entering into the payment obligations in the Order Form; however, the preceding does not relieve Company of its obligation to deliver Service that Customer has ordered per the terms of this Agreement. Customer warrants that Customer is 18 years of age or older, has the appropriate authority to validly accept the Online Payment Terms, is able to meet any and all obligations related to these terms, that the credit card used in connection with this Agreement is issued in Customer’s name and that Customer is authorized to use the card, that Customer will pay the credit card issuer all charges incurred in the use of the Service, and that payment information supplied is true and correct.
5. Customer Obligations
Policies. Customer’s use of the Service is subject to Company policies currently detailed at https://wastelinq.com/legal/, which link is subject to change from time to time, as determined by Company (“Company’s Website”). Company may change such policies (each a “SLA Policy”) to add or modify restrictions on Customer use of the Service, provided that the changes are reasonable and consistent with hosting industry norms. If Company makes a change to a SLA Policy a revised version will be posted to Company’s Website. The revised SLA Policy will become effective as to Customer on the first to occur of: i) the first day of a renewal term for the Service that begins at least thirty (30) days after the time that the revised SLA Policy has been posted, or ii) execution of a new or additional agreement that incorporates the revised SLA Policy by reference, or iii) thirty (30) days following written notice by Company of the revision to the SLA Policy. If compliance with the revised SLA Policy would adversely affect use of the Service, and Customer gives a written notice of objection no later than thirty (30) days following the date that the revised SLA Policy would otherwise have become effective as to Customer, Company will not enforce the revision as to Customer until sixty (60) days following the date the revision would otherwise have become effective as to Customer and Customer will continue to be subject to the prior version. During the sixty (60) day period, Customer may elect to terminate the Agreement on these grounds by giving written notice, and Customer will not be charged an early termination fee (if any) for a termination on these grounds. If Customer does not elect to terminate during the sixty (60) day period, then the revised SLA Policy will become effective as to Customer as of the end of the sixty (60) day period. If Customer terminates the Service under this subsection, Company may decide to waive that change as to Customer and keep this Agreement in place for the remainder of the term.
Security Precautions. Customer agrees to use reasonable security precautions in connection with use of the Service. Customer must comply with the laws applicable to use of the Service and with the SLA Policy. Customer must cooperate with any reasonable investigation by Company of Service outages, security problems, and suspected breach of the Agreement.
Customer also agrees to:
Company will provide Support only to Customer administrative or technical contacts listed on Customer’s account. Company will not provide Support directly to Customer end users unless specifically agreed in writing. Customer is responsible for understanding the regulatory requirements applicable to Customer’s business and for selecting and using those Service in a manner that complies with the applicable requirements.
Company is not responsible to Customer or any third party for unauthorized access to Customer Data or the unauthorized use of the Service. Customer is responsible for the use of the Service by any Customer employee, any person Customer authorizes to use the Service, any person to whom Customer has given access to the Service, and any person who gains access to Customer Data or the Service as a result of Customer failure to use reasonable security precautions, even if such use was not authorized by Customer.
Customer represents and warrants that Customer is not on the United States Department of Treasury, Office of Foreign Asset Controls list of Specially Designated National and Blocked Persons and is not otherwise a person to whom Company is legally prohibited to provide the Service. Customer may not use the Service as prohibited by law, nor may Customer provide administrative access to the Service to any person (including any natural person or government or private entity ) that is located in or is a national of any country that is embargoed or highly restricted under United States export regulations.
Company may suspend Service without liability if: i) Company reasonably believe that the Service is being used in violation of this Agreement; ii) Customer does not cooperate with Company reasonable investigation of any suspected violation of this Agreement; ii) there is an attack on the Service or the Service is accessed or manipulated by a third party without Customer consent, iv) Company is required by law, or a regulatory or government body to suspend Service, or v) there is another event for which Company reasonably believe that the suspension of Service is necessary to protect the Company network or other Company customers. Company will give Customer advance notice of a suspension under this paragraph of at least eight (8) business hours unless Company determines in reasonable commercial judgment that a suspension on shorter or contemporaneous notice is necessary to protect Company or its other customers from imminent and significant operational, legal, or security risk.
6. Warranties, Disclaimers and Exclusive Remedies
Company warrants for the first thirty (30) days of the initial term of the Service, that the Service will materially conform to its Program Documentation, provided that it is properly used in the operating environment specified by Company. If the Service does not conform, Customer shall notify Company in writing, and Company will attempt to make the Service perform as warranted. If, after thirty (30) days from notice by Customer of the non-conformity received within the warranty period as defined above, Company has not provided a conforming Service, Customer’s exclusive remedy and Company’s entire liability for any breach of such warranty is for Customer to terminate the non-conforming Service within five (5) days after such thirty (30) day period and obtain a refund of fees paid for such Service hereunder.
COMPANY DOES NOT GUARANTEE THAT THE SERVICE WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT COMPANY WILL CORRECT ALL SERVICE ERRORS. CUSTOMER ACKNOWLEDGES THAT COMPANY DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS INCLUDING FOR HARDWARE, SYSTEMS, NETWORKS, ENVIRONMENTS OR FOR MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT.
If a third party makes a claim against either Customer or Company (“Recipient” which may refer to Customer or Company depending upon which party received the Material), that any information, design, specification, instruction, software, service, data, or material (“Material”) furnished by either Customer or Company (“Provider” which may refer to Customer or Company depending on which party provided the Material), and used by the Recipient infringes a copyright or a patent of the United States, the Provider, at its sole cost and expense, will defend the Recipient against the claim and indemnify the Recipient from the damages, liabilities, costs and expenses finally awarded by a court of competent jurisdiction to the third party claiming infringement or the settlement agreed to by the Provider, if the Recipient does the following:
If the Provider believes or it is determined that any of the Material may have violated a third party’s intellectual property rights, the Provider may choose to either modify the Material to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable to the Provider, the Provider may end the license for, and require return of, the applicable Material and refund any unused, prepaid fees the Recipient may have paid to the other party for such Material. If such return materially affects Company’s ability to meet its obligations under the relevant order, then Company may, at its option and upon thirty (30) days prior written notice, terminate the order. The Provider will not indemnify the Recipient if the Recipient alters the Material or uses it outside the scope of use identified in the Provider’s user documentation or Service policies or if the Recipient uses a version of the Materials which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Material which was provided to the Recipient. The Provider will not indemnify the Recipient to the extent that an infringement claim is based upon: i) any information, design, specification, instruction, software, data, or material not furnished by the Provider, or ii) any Material from a third party portal or other external source that is accessible to Customer within or from the Service (e.g., a third party Web page accessed via a hyperlink).
Company will not indemnify Customer to the extent that an infringement claim is based upon the combination of any Material with any products or Service not provided by Company. Company will not indemnify Customer for infringement caused by Customer’s actions against any third party if the Service as delivered to Customer and used in accordance with the terms of this Agreement would not otherwise infringe any third-party intellectual property rights. Company will not indemnify Customer for any infringement claim that is based on: i) a patent that Customer was made aware of prior to the effective date of this Agreement (pursuant to a claim, demand, or notice); or ii) Customer’s actions prior to the effective date of this Agreement. This section provides the parties’ exclusive remedy for any infringement claims or damages.
8. Limitation of Liability
EXCEPT WITH RESPECT TO CLAIMS REGARDING VIOLATION OF COMPANY’S INTELLECTUAL PROPERTY RIGHTS, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS (EXCLUDING FEES UNDER THE AGREEMENT), DATA, OR DATA USE. COMPANY’S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR CUSTOMER’S ORDER, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO COMPANY FOR THE SERVICES UNDER THE ORDER THAT IS THE SUBJECT OF THE CLAIM IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. ANY DAMAGE IN CUSTOMER’S FAVOR AGAINST COMPANY SHALL BE REDUCED BY ANY REFUND OR CREDIT RECEIVED BY CUSTOMER UNDER THE AGREEMENT AND ANY SUCH REFUND AND CREDIT SHALL APPLY TOWARDS THE LIMITATION OF LIABILITY.
“Confidential Information” means all information disclosed by one party to the other, that the recipient should reasonably understand to be confidential including: i) for Customer, all Customer Data, ii) for Company, unpublished prices, Services, and other terms of service, infrastructure designs, and other proprietary information or technology, and iii) for both parties, information that is marked or otherwise conspicuously designated as confidential. Information that is independently developed by one party, without reference to the other’s Confidential Information, or that becomes available to one party other than through violation of the Agreement or applicable law, shall not be “Confidential Information” of the other party.
Each party acknowledges that it may have access to Confidential Information of the other party. The receiving party shall not disclose the Confidential Information to any person, firm or enterprise, except to the receiving party employees, or independent contractors, who have signed confidentiality agreements with the receiving party no less protective of the Confidential Information than the terms of this Agreement. Receiving party shall be responsible for any improper disclosure of Confidential Information by any person to whom receiving party has disclosed the Confidential Information, and the receiving party will be liable for all losses resulting from such breach.
Each party shall retain all rights, title and interest in and to its Confidential Information. This Agreement in no way shall be construed to grant or convey to either party any rights in and to the other party’s Confidential Information.
A disclosure of any portion of Confidential Information, either i) in response to a valid order by a court or other governmental body, or ii) otherwise as required by law, shall not be considered to be a breach of this Agreement or a waiver of confidentiality for other purposes; provided, however, that receiving party shall provide prompt prior written notice thereof to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent such disclosure.
10. Term; Termination
This Agreement commences on the Effective Date and shall remain in effect until the date specified in the Order Form (the “Term”).
Either party may terminate this Agreement: i) for material breach upon thirty (30) days prior written notice, provided that the breaching party has the opportunity to cure the material breach within such thirty (30) days; ii) immediately if the other party is insolvent, is unable to pay its debts as they become due, or if a voluntary or involuntary bankruptcy proceeding is brought by or against such party, or a receiver or assignee of a party is appointed for the benefit of creditors; or iii) immediately if the other party breaches its confidentiality obligations pursuant to this Agreement.
In addition to its other rights and remedies, Company reserves the right, without liability to Customer, to immediately suspend all or any portion of the Service: i) if Customer failure to make payment for Service under this Agreement hereof is not cured within ten (10) days of notice from Company, or ii) if Customer violates any provision within Sections 2 or 3 of this Agreement.
Upon termination or expiration of this Agreement, Company shall have no further obligation to provide any Service under this Agreement. At Customer’s request, and for a period of up to thirty (30) days after the termination of the applicable Order Form, Company may permit Customer to access the Service solely to the extent necessary for Customer to retrieve a file of Customer’s data then in the Service environment. Customer agrees and acknowledges that Company has no obligation to retain Customer’s data and that Customer’s data may be irretrievably deleted after thirty (30) days following the termination of the Order Form. Provisions, which by their nature should reasonably survive the termination of this Agreement, shall so survive.
All written notices required hereunder shall be in English and shall be deemed to have been given (i) the date delivered in person or by reputable express courier service, (ii) three (3) days after sending the notice if sent by certified or registered mail, (iii) the date sent by confirmed facsimile, addressed to the parties at their addresses in the Order Form, or at such other address as either party may designate to the other by notice served as hereby required.
If to Company:
P.O. Box 918
Terrell, TX 75160
12. Governing Law
This Agreement shall be construed, without regard to principals of conflicts of law, in accordance with the laws of the State of Texas, and any proceeding arising between the parties in any manner pertaining or related to this Agreement shall be held in Harris County, Texas. The parties irrevocably waive all rights to trial by jury for any such litigation between them.
Notwithstanding the foregoing, Company may, in its sole discretion, bring any claim or dispute (including but not limited to seeking injunctive relief and/or equitable remedies) arising out of, or in connection with the validity, interpretation and/or performance of this Agreement before any courts and or administrative authorities having jurisdiction over the subject matter of any such claim or dispute. The Uniform Computer Information Transactions Act does not apply to this Agreement or orders placed under it.
Customer shall not subcontract, assign, delegate or otherwise transfer (including without limitation, by way of merger or contribution) any or all of its rights, duties, benefits or obligations under this Agreement, or sublicense the Service to any third party without Company’s prior written approval. Any approved transfer of the Service to another country may be subject to an adjustment in price, as prices are specific to each country or region. This Agreement shall be binding upon, and inure to the benefit of Company and its successors and assigns. Company may assign, delegate or otherwise transfer (including without limitation, by way of merger or contribution), any of its rights or obligations hereunder and/or otherwise subcontract any of its obligations hereunder, in whole or in part, to any third party, without Customer’s consent.
14. Force Majeure
Neither party shall be liable for any delay or failure to perform its obligations hereunder due to (a) force majeure (including, without limitation, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, civil unrest, terrorism, governmental action, labor conditions, earthquakes, or any other cause beyond the reasonable control of either party), or (b) any material condition beyond such party’s reasonable control (whether foreseeable or not); provided however, that this paragraph shall not apply to any breach of confidentiality obligations or for failure to timely pay any amounts owed hereunder.
Headings are inserted solely for the convenience of reference and shall not constitute part of this Agreement nor shall they affect the meaning or effect of any term or provision.
16. Independent Contractors; Beneficiaries
In performing their obligations under this Agreement, the parties shall be independent contractors, and neither shall have the authority to bind the other. No partnership, joint venture, or other business organization is created by this Agreement.
17. No Waiver
The failure of either party at any time to require performance by the other of any provision of this Agreement shall in no way affect that party’s right to enforce such provision, nor shall the waiver by either party of any breach of any provision of this Agreement be taken or held to be a waiver of any further breach of the same provision or any other provision.
If any provision of this Agreement is held to be unenforceable, the enforceability of the remaining provisions shall not be impaired and such remaining provisions shall be construed to best give effect to the parties’ intentions.
19. Service Tools/Statistical Information
Company may use tools, scripts, software, and utilities (collectively, the “Tools”) to monitor and administer the Service and to help resolve Customer’s service requests. Customer agrees that i) except as set forth in the following paragraph, Customer may not access or use the Tools, and ii) Customer will not use the Tools at any time following termination of this Agreement. If Company provides Customer with access to or use of any Tools in connection with the Service, Customer’s right to use such Tools is governed by the license terms that Company specifies for such Tools; however, if Company does not specify license terms for such Tools, Customer shall have a non-transferable, non-exclusive, limited right to use such Tools solely to facilitate Customer’s administration and monitoring of Customer’s Service environment, subject to the terms of this Agreement. Any such Tools are provided by Company on an “as is” basis and Company does not provide technical support or offer any warranties for such Tools. Customer’s right to use such Tools will terminate upon the earlier of Company’s notice, the end of the Service term, or the date that the license to use such Tools ends under the license terms specified for such Tools.
Company may compile statistical information related to the performance of the Service, and may make such information publicly available, provided that such information does not incorporate Customer’s Data and/or identify Customer’s confidential information or include Customer’s company’s name. Company retains all intellectual property rights in such statistical information.
20. Customer Reference
Customer agrees i) that Company may identify Customer as a recipient of Service and use Customer’s logo in sales presentations, marketing materials and press releases, and ii) to develop a brief customer profile for use by Company on Company’s website for promotional purposes.
21. Company Logo
Customer acknowledges that Company markings (including but not limited to logos and word marks) may appear throughout the Service and documents generated from the Service (including but not limited to labels, manifests, bills of lading, and waste profiles). Customer shall not remove or modify any Company markings or any notice of Company’s or its licensors’ proprietary rights from the Service and documents generated from the Service.
22. Entire Agreement
This Agreement including the documents referenced herein constitutes the entire agreement between Company and Customer concerning its subject matter, and supersedes any prior communication regarding the subject matter of this Agreement. This Agreement shall not be modified except by written agreement signed on behalf of Company and Customer by their authorized officers. In the event of a conflict between the terms of this Agreement and any SLA Policy, the terms of this Agreement shall be controlling. In the event of a conflict between the terms of this Agreement and any policy on this site, this Agreement shall be controlling but solely with respect to the subject matter of the Agreement.
23. Electronic Signature Agreement
By selecting the “I Accept” button, Customer is signing this Agreement electronically. Customer agrees that their electronic signature is the legal equivalent of their manual signature on this Agreement. By selecting “I Accept” Customer consents to be legally bound by this Agreement’s terms and conditions. Customer further agrees that their use of a key pad, mouse or other device to select an item, button, icon or similar act/action, or to otherwise provide WASTELINQ, LLC instructions via its website, or in accessing or making any transaction regarding any agreement, acknowledgement, consent terms, disclosures or conditions constitutes their signature (hereafter referred to as “E-Signature“), acceptance and agreement as if actually signed by them in writing.
Customer also agrees that no certification authority or other third-party verification is necessary to validate their E-Signature and that the lack of such certification or third-party verification will not in any way affect the enforceability of their E-Signature or any resulting contract between Customer and WASTELINQ, LLC. Customer also represents and warrants that they are authorized to enter into this Agreement for all persons who own or are authorized to access the Customer’s accounts and that such persons will be bound by the terms of this Agreement. Customer further agrees that each use of their E-Signature constitutes their agreement to be bound by the terms and conditions of the Disclosures and Agreements as they exist on the date of the Customer’s E-Signature.