THE FOLLOWING TERMS AND CONDITIONS BY AND BETWEEN CAN I RECYCLE THIS, INC., A CORPORATION DULY ORGANIZED UNDER THE LAWS OF THE STATE OF GEORGIA WITH PRINCIPAL OFFICES LOCATED AT 1409 OAK GROVE, ATHENS, GA, 30607 (HEREINAFTER "CIRT") AND THE OTHER PARTY ENTERING IN THESE TERMS AND CONDITIONS PURSUANT TO AN ORDER FORM OR OTHERWISE (“SUBSCRIBER”). THIS AGREEMENT IS A SUPPLEMENT TO TERMS AND CONDITIONS SET FORTH IN AN ORDER FORM GOVERNING SUBSCRIBER’S PROCUREMENT OF ONE OR MORE CIRT PRODUCTS OR SERVICES. THE ORDER FORM(S), THIS AGREEMENT, AND THE EXHIBITS AND ATTACHMENTS HERETO, CONSTITUTE A LEGAL CONTRACT BETWEEN SUBSCRIBER AND CIRT.
1. Incorporation of Definitions and Exhibits: For the purposes of this Agreement, all definitions set forth in Exhibit A (the 'Definitions Exhibit') attached hereto shall be deemed incorporated herein by reference and are an integral part of this Agreement. Any reference in this Agreement to a term defined in the Definitions Exhibit shall have the meaning ascribed to it in the Definitions Exhibit, unless the context otherwise requires. In the event of any inconsistency between a definition in the main body of this Agreement and the Definitions Exhibit, the definition in the Definitions Exhibit shall prevail. This Agreement shall be further governed by the general practice provisions set forth in Exhibit B – General Practices.
2. Scope: To the extent that Subscriber is an individual, Subscriber agrees and understands that by accepting these terms and conditions through a “click on” or similar mechanism, they are legally bound to uphold all obligations hereof personally. In furtherance of the foregoing, Subscriber hereby waives all claims to any data or information associated with any CIRT Module, including, without limitation, CIRT Check™. For the avoidance of doubt, individual Subscriber’s are not entitled to receive Subscriber Data and are expressly not entitled to Subscriber Data upon termination of this Agreement. Accordingly, the provisions set forth in Section 13(c) hereof do not apply to individuals. All other terms and conditions apply.
3. Authorizations; Usage Restrictions. CIRT grants Subscriber a non-exclusive, revocable authorization to use the CIRT Module(s) and the Materials on the Network in accordance with the terms and conditions of this Agreement. CIRT reserves all rights in the Service not expressly granted hereby. Subscriber may not modify, adapt, translate, reverse engineer, decompile, disassemble, or create derivative works based on any component of the Service. Subscriber further agrees and understands that its authorization to use any CIRT Module(s) are limited to use on the Network only and on no other computers or networks unless expressly stipulated in an Order Form or duly executed Addendum to this Agreement.
4. Confidentiality. Subscriber agrees and understands that both parties during the term of this Agreement may be required to exchange Confidential Information, subject to the following terms set forth in Section 4.1 and 4.2:
4.1 Obligations. The recipient will only use the disclosing party's Confidential Information to exercise the recipient’s rights and fulfill mutual obligations under the Agreement, and will use reasonable care to prevent unauthorized disclosure. The recipient may disclose Confidential Information only to authorized Contractors, employees, agents, or professional advisors on a “need to know” basis provided they have agreed in writing (or in the case of professional advisors are otherwise bound) to keep Confidential Information confidential.
4.2. Required Disclosure. Notwithstanding any provision to the contrary in this Agreement, the recipient may also disclose Confidential Information to the extent required by applicable law provided that the recipient uses commercially reasonable efforts to (a) promptly notify the disclosing party before any such disclosure of its Confidential Information, and (b) comply with the disclosing party's reasonable requests regarding its efforts to oppose the disclosure.
5. Privacy Protection. By utilizing the Service, Subscriber acknowledges and agrees that CIRT shall only collect, process, and store personal data as necessary for the satisfying its obligations hereunder. Authorized Users personal information will not be disclosed, sold, or shared with third parties without explicit consent, except as required by law. CIRT will use commercially reasonable efforts to prevent unauthorized access to the Service and promptly notify Subscriber of any known or suspected data breaches. Subscriber has the right to access, rectify, or delete personal data and may contact CIRT for any privacy-related concerns.
6. Title & Ownership. As between (i) Subscriber and any other user and (ii) CIRT, CIRT retains all title and all ownership and intellectual property rights relating to the Service provided hereunder. Title and all ownership and intellectual property rights in and to the content accessed through the Service is the property of the applicable content owner and may be protected by law. This Agreement gives neither Subscriber nor any other user any rights to content not owned by it, and Subscriber agrees that it shall not distribute or otherwise use any third-party content without the express permission of the content owner. Except as expressly provided in this Agreement, all right, title and interest in and to the Service remains with CIRT and its licensors and suppliers.
7. Warranties. CIRT represents and warrants that, to the best of its knowledge, the CIRT Modules and Materials do not infringe upon any United States patent, copyright or trade secret of any third party.
8. Disclaimer of Other Warranties. During the term of this Agreement, CIRT shall provide the Services on an as-is and as-available basis. EXCEPT AS SET FORTH IN SECTION 7 (Warranties), TO THE MAXIMUM EXTENT PERMITTED BY LAW, CIRT EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND WITH RESPECT TO THE SERVICE, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. No CIRT dealer, distributor, officer, agent or employee is authorized to make any warranty on CIRT’s behalf.
9. Risk of Use; Limitation of Liability. Because software is inherently complex and may not be completely free of errors, Subscriber is advised to verify its work and make contingency copies of all data manipulated, rendered, or maintained by the Service. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), UNLESS SUCH DAMAGES ARISE FROM THE CRIMINAL OR WILLFUL CONDUCT OF THE OTHER PARTY OR ITS EMPLOYEES, AGENTS OR CONTRACTORS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL CIRT’S LIABILITY IN CONNECTION WITH THIS AGREEMENT EXCEED THE GREATER OF (A) AMOUNTS PAID BY SUBSCRIBER TO SUBSCRIBER DURING THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR (B) ONE HUNDRED DOLLARS ($100).
10. Term. This Agreement shall be effective until use of all CIRT Modules have been terminated in accordance with the terms and conditions set forth in their respective Order Forms.
11. Termination. Either party may terminate this Agreement if the other party breaches a material provision of this Agreement and fails to cure the breach within thirty (30) days (or such other period as may be mutually agreed upon by the parties in writing) after receiving a notice of the breach from the non-defaulting party. Any termination of this Agreement for any reason shall terminate the authorizations to use the Service and services granted hereunder.
12. Actions Upon Termination. Upon expiration or termination of this Agreement for any reason, CIRT shall disable Subscriber’s Authorized User(s)’ access to the Service. The parties further agree that, upon expiration or termination of use of any CIRT Module (as set forth in the respective Order Form) for any reason, including, without limitation, termination of this Agreement:
a) Subscriber shall promptly destroy all copies of the CIRT Module(s) and related Materials authorized under the terminated Order that are in its possession and shall certify their destruction in writing to CIRT;
b) CIRT shall promptly disable the terminated CIRT Module(s) on the Network;
c) Subscriber shall promptly notify CIRT in writing if Subscriber desires to receive a copy of Subscriber’s Data housed in the terminated CIRT Module at the time of expiration or termination. Subscriber’s Data shall be provided in such format(s) as CIRT shall determine and in a timeframe that is mutually agreeable. If Subscriber desires to receive the data in a format other than the format determined by CIRT, then, upon CIRT’s written agreement, CIRT shall provide the data in the alternate format requested by Subscriber; provided however, that CIRT may charge Subscriber its standard hourly rates for the time required to provide the data in such format; and
d) CIRT shall invoice Subscriber for any amounts owed to CIRT, if applicable, and provide refunds in accordance with the terms and conditions of the terminated Order(s).
13. Transfer & Distribution. This Agreement and the rights granted herein are intended for Subscriber only. Subscriber agrees not to rent or lease the Service (or any component thereof) to any third party. Except for a sale or discontinuation of a CIRT Module or an assignment of substantially all of either party’s assets, neither party may assign or transfer this Agreement or any part thereof, to a third party, without first obtaining the express written consent of the other, which shall not be unreasonably withheld.
14. Relationship. The relationship between Subscriber and CIRT shall be that of independent contractors, and neither CIRT nor Subscriber, nor any of their respective officers, employees, or agents shall be held or construed to be partners, joint venturers, fiduciaries, employees or agents of the other or have the ability to bind the other contractually. No partnership relationship is created by this Agreement and it is understood that neither party has any obligation to enter into any further agreements with the other or to purchase or sell goods or services to the other party.
15. Governing Law. This Agreement and its performance shall be governed by the substantive laws of the State of Georgia, without giving effect to its law of conflicts.
16. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, such provision shall be modified and enforced to the maximum extent permitted by law, and such determination shall not affect the validity or enforceability of the remaining provisions of this Agreement.
17. Notices. Any notice required or permitted to be made or given by either party under this Agreement shall be made in writing and delivered by hand or by certified mail, postage prepaid, addressed to such addresses as a party shall designate by written notice given to the other party.
18. Force Majeure. In no event shall either party be liable for interruption or delays in transmission or errors or defects in transmission or failure to transmit resulting from causes beyond its’ control, including, without limitation, acts of God or failure of any Internet infrastructure provider, including the organizations that the parties engage to provide Internet access to the Service.
19. Headings. The headings used in this Agreement are included for convenience only and will not affect or limit the interpretation of this Agreement.
20. Survival. The provisions of Sections 4 (Confidentiality), 6 (Title & Ownership), 8 (Disclaimer of Other Warranties), 9 (Risk of Use; Limitation of Liability), 12 (Actions Upon Termination), 14 (Relationship), 15 (Governing Law), 19 (Headings), this Section 20 (Survival), Section 21 (Free Services), and Section 22 (Entire Agreement) shall survive any expiration or termination of this Agreement for any reason.
21. Free Services. From time to time, CIRT may make available certain functionality or services for free as part of the Service (“Free Services”). Free Services are intended for evaluation purposes and are made available as a courtesy. Accordingly, notwithstanding anything herein to the contrary, CIRT: (a) disclaims all liability arising in connection with the Free Services to the maximum extent permitted by law, (b) provides all Free Services as-is without warranty of any kind, (c) may discontinue provision of Free Services at any time in its sole discretion. You acknowledge that CIRT would not make available Free Services without the foregoing terms and limitations.
22. Entire Agreement. This Agreement, including the Order Forms, Exhibits and mutually executed Addenda hereto, contains the complete agreement and supersedes all prior agreements and understandings between Subscriber and CIRT concerning the subject matter hereof. The parties hereto specifically exclude the provisions of the United Nations Convention on Contracts for the International Sale of Goods from this Agreement and any transaction that may be implemented in connection with this Agreement.
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Exhibit A - Definitions
1. “Agreement” refers to these “CIRT Terms and Conditions”, including all exhibits, attachments, and amendments thereto, and all Orders placed via duly execute Order Forms. No amendment or modification is authorized unless executed in writing by authorized representatives of both parties.
2. Anniversary Date shall mean the annual date that Subscriber’s obligation pay CIRT for all CIRT Modules in use by Subscriber arises. The Anniversary Date is first established on the date Subscriber is first given access to the first CIRT Module procured or thirty (30) days from the Effective Date of the first Order placed with CIRT (whichever is earlier), it being understood that each subsequent anniversary thereof shall also be an “Anniversary Date”.
3. API Call (Application Programming Interface Call) refers to the act of one software program or application making a request to another through an Application Programming Interface (API) to access or utilize specific functionalities, services, or data. Each instance of communication initiated by a software program with an API, regardless of its nature or purpose, is considered a distinct API Call. The terms and conditions governing API Calls are outlined in the Order Form governing limitations, restrictions, and any associated fees or charges for API usage.
4. “Authorized User” shall mean i) a Subscriber employee, or ii) a Subscriber Contractor that has entered into a written agreement with Subscriber to comply with the confidentiality provisions of this Agreement, provided that each of them has been granted explicit access to the CIRT Module(s) by Subscriber.
5. "CIRT Module" shall refer to software installed on the Network for Subscriber’s use per the terms and conditions of this Agreement and an applicable Order Form. A CIRT Module may consist of i) a required component (“Required Component”), ii) one or more optional components (“Optional Component (s)”), and/or iii) the Materials. Subscriber understands that certain Optional Components will not function without the presence of a Required Component.
6. "Confidential Information" means information that one party (discloser) discloses to the other party (recipient) under this Agreement, and that is marked as confidential or would normally under the circumstances be considered confidential information. It does not include information that is independently developed by the recipient, is rightfully given to the recipient by a third party without confidentiality obligations, or becomes public through no fault of the recipient. Subject to the preceding sentence, Subscriber Data and Credentials are considered Subscriber’s Confidential Information, and the CIRT Module(s) and Materials are considered CIRT Confidential Information.
7. "Credentials" shall mean the codes used by Authorized Users to access the CIRT Module(s) on the Network; for example, Credentials may consist of the user’s email address and password. CIRT reserves the right to change the format of Credentials at any time with reasonable advance written notice to Subscriber.
8. "Effective Date" shall mean the date on which Subscriber executes an applicable Order Form.
9. "Materials" shall mean any documentation, instructions, help guides, tutorials and other information that aid in the use of (or provide further information about) the Service which is i) available to Authorized Users via the Service or ii) provided in printed or electronic form to Subscriber for distribution to Authorized Users.
10. “Network” shall mean the computer network, computers and related hardware and software used by CIRT to make the Service and other CIRT services available to Authorized Users or other subscribers via the Internet or similar CIRT approved communications mechanism(s). Subscriber agrees and understands that the Network is a shared environment that is not dedicated to Subscriber’s sole use.
11. “Order” shall mean an order placed with CIRT by Subscriber for a CIRT product or service, including CIRT Module(s) via an Order Form.
12. “Order Form” is a legally binding contract that describes the CIRT Module(s) procured by Subscriber pursuant to terms and conditions stipulated in the Order Form that incorporate this Agreement by reference, and any exhibits and attachments hereto. In the event of a conflict between this Agreement and any term or condition set forth in an Order Form, the terms set forth in the Order Form shall govern.
13. The "Service" shall refer, collectively or individually, to the Network, the CIRT Modules, the Materials, any other software programs used to provide the Service or any related support, implementation, upgrade, error correction, telephone assistance or similar services and access to the CIRT Module(s) via the Network, as further described in Order Form(s), exhibits and/or addenda that may be executed pursuant to this Agreement.
14. “Subscriber Contractor” shall mean a third-party to whom Subscriber intends to give access to the CIRT Module(s) in the same manner that it grants such access to Subscriber’s employees, provided that said third-party has executed an appropriate document 1) acknowledging its work-for-hire status and undertaking obligations of confidentiality respecting such work, and 2) which enforce the confidentiality obligations of Subscriber to CIRT hereunder. Subscriber Contractors shall expressly exclude third parties that offer software products or hosted services that are competitive with those offered by CIRT.
15. "Subscriber’s Data" shall mean all data input into any CIRT Module(s)’ database by Subscriber (or by CIRT on Subscriber’s behalf) and expressly excludes the Materials or other data owned by CIRT or its licensors.
1.1
Exhibit B – General Practices
This Exhibit B – General Practices, is intended by the parties as an exhibit to the CIRT Terms and Conditions. Capitalized terms not defined in this Exhibit B – General Practices, shall have the meanings ascribed to them in the CIRT Terms and Conditions.
1. Technical Requirements. Subscriber understands that it must obtain access to the Internet (or other CIRT approved transmission mechanism) and procure the systems specified in any Order Form hereto at its own cost and expense to access and use the Service.
2. Acceptable Conduct/Law. Recognizing the global nature of the Internet, Subscriber shall comply with all applicable international, federal, state and local rules regarding online conduct and acceptable content. Subscriber shall also comply with all applicable laws regarding the transmission of data exported from the United States and the countries in which Authorized Users reside, and (without limiting the generality of the foregoing) will not use the Service for any illegal activity nor shall Subscriber knowingly partake in any of the following:
i. Post or transmit any message anonymously or under a false name or permit any other person to do so;
ii. Post or transmit any message which is libelous or defamatory or which discloses private or personal matters concerning any person;
iii. Post or transmit any message, data, image or program which is indecent, obscene or pornographic;
iv. Post or transmit any message, data, image or program that would violate the property rights, including intellectual property rights, or the privacy or publicity rights of others (including, without limitation, unauthorized copyrighted text, images or programs, trade secrets or other confidential or proprietary information, and trademarks or service marks used in an infringing fashion);
v. Post or transmit any file which contains viruses, worms, "Trojan horses," or any other contaminating or destructive features;
vi. Post or transmit any message which is harmful, threatening, abusive or hateful;
vii. Impersonate another person; or
viii. Collect information about others, including e-mail addresses, without such others' consent.
3. Denial of Access. Subscriber agrees and understands that CIRT, in its sole discretion, may prevent access to the Network by any individual, including Authorized Users, if CIRT justifiably believes that the individual poses a security threat to the Network or any component of any CIRT product or service available on the Network (“Denial of Access”). SUBSCRIBER ACKNOWLEDGES AND AGREES THAT SUCH TERMINATION OR DENIAL OF ACCESS SHALL NOT CONSTITUTE A BREACH OF THIS AGREEMENT AND THAT CIRT SHALL HAVE NO LIABILITY TO SUBSCRIBER OR ANY THIRD PARTY FOR SUCH TERMINATION OR ANY RELATED INTERRUPTION OF SERVICE OR DENIAL OF ACCESS.
4. General Practices. Subscriber acknowledges that CIRT may, but is not obligated to, establish general practices and limits concerning use of the Service, including but not limited to the maximum size of any files that may be received on the Service and the maximum disk space that will be allotted on the Network to Subscriber's Data. Subscriber agrees and understands that CIRT has no responsibility or liability for Subscriber’s deletion of or failure to store any data and other communications or other content maintained in or transmitted to or by the Service. Subscriber further acknowledges that CIRT reserves the right to change these general practices and limits at any time, in its sole discretion, upon reasonable advanced written notice to Subscriber.
5. CIRT Contractors. CIRT may retain third parties (“CIRT Contractors”) to furnish services in connection with its obligations under this Agreement, in its sole discretion, provided, however, that all third parties who perform any services under this Agreement shall execute an appropriate document acknowledging their work-for-hire status and undertaking obligations of confidentiality respecting such work, which enforce the confidentiality obligations of CIRT to Subscriber.
6. Subscription, Setup and Other Fees.
6.1 Invoicing: CIRT shall invoice Subscriber for any fees due (including, without limitation, annual subscription fees) as specifically set forth in each Order Form for the following year’s use of the given CIRT Module(s).
6.2 Payment: Subscriber shall pay the fees set forth in the Order Forms hereto within thirty (30) days following receipt of an invoice from CIRT.
6.3 Prepayment Obligation: Notwithstanding the foregoing, Subscriber agrees and understands that in the event Subscriber procures additional CIRT Modules at any time while there is an active subscription for the first procured CIRT Module, subscription fees for subsequent CIRT Modules (“Subsequent Modules”) shall be prepaid by Subscriber for one full year of service at the time any Subsequent Module is procured, provided however, the payment obligation for all CIRT Modules shall be reconciled to the Anniversary Date of the first procured CIRT Module. In furtherance of the foregoing, CIRT's annual invoice to Subscriber shall reflect a credit for any unused portions of any prepaid fees for Subsequent Modules as of the Anniversary Date.
6.4 No Third-Party Payments: Subscriber acknowledges and agrees that all setup, subscription and other fees set forth in any Order Form shall be collected directly from Subscriber by CIRT and not from any third party, including CIRT distributors, dealers, or agents unless expressly authorized by CIRT in writing.
6.5 Taxes: All fees charged by CIRT for use of any CIRT Module or component of the Service are exclusive of all taxes and similar fees now in force or enacted in the future imposed on the transaction and/or the delivery of any part of the Service. Subscriber agrees to pay all foreign, federal, state and local taxes applicable to Subscriber's access to, or use or receipt of, the Service, except for taxes based on CIRT's net income. CIRT may, as directed by law or at its option, include such taxes in the fees charged to Subscriber, in which event Subscriber shall remit payment for such taxes to CIRT.
6.6 Fee Changes; Late Fees: Subscriber agrees and understands that CIRT may change fees at any time and from time to time by providing Subscriber with at least 60 days prior written notice. Subscriber agrees to pay all costs (including attorneys' fees), if any, incurred by CIRT in collecting overdue fees from Subscriber, and to pay a late charge on any overdue fees at a rate equal to the lesser of 1.5% per month or the maximum allowed under applicable law.
6.7 Tampering: Subscriber shall not willfully engage in any activity that is intended to bypass mechanisms in the Service used to track activity (or data) that are used to determine CIRT’s fees to Subscriber and any attempt to do so will constitute a material breach of this Agreement.
