Last updated: December 5, 2022
BY EXECUTING THIS SUPPLIER AGREEMENT (“AGREEMENT”) OR EXECUTING AN ORDER INCORPORATING THIS AGREEMENT BY REFERENCE, THE SUPPLIER WITHIN THIS AGREEMENT OR ON SUCH ORDER, RESPECTIVELY (THE “SUPPLIER”) ACCEPTS AND AGREES TO THIS AGREEMENT. THIS AGREEMENT CONSTITUTES A LEGAL AGREEMENT BETWEEN SUPPLIER AND WASTE REPURPOSING INTERNATIONAL, INC. D/B/A SMARTER SORTING, A DELAWARE CORPORATION, WITH A BUSINESS ADDRESS LOCATED AT 1007 PEARL STREET, SUITE 210, BOULDER, CO 80302 (“SMARTER SORTING”). BY USING ANY SMARTER SORTING SERVICES, SUPPLIER IS AGREEING TO THIS AGREEMENT. BE SURE TO OCCASIONALLY CHECK BACK FOR UPDATES TO THIS AGREEMENT.
“Account” refers to an account created by or for Supplier for its User’s access the Services.
“Affiliate” means any entity that controls, is controlled by or is under common control with a party. For purposes of this definition, 'control' means at least fifty percent (50%) of the capital, assets, voting stock, profits, interests, or similar participation rights are owned or controlled, directly or indirectly by an entity under this definition.
“Classifications” or “Product Classifications” means the classifications created by the Classification Engine from the Product Information. The set of Classifications provided by Smarter Sorting, and the rules governing these classifications, may change over time.
“Classification Engine” means the Smarter Sorting software which analyzes the Supplier Data and generates the Classifications.
“Documentation” means any accompanying documentation made available to Users by Smarter Sorting for use with the Services, including any documentation available online.
“Effective Date” means the date of the last signature by Supplier and Smarter Sorting executing this Agreement or the applicable Order incorporating this Agreement. For Clarity, any data provided by supplier to Smarter Sorting and Supplier’s usage of Smarter Sorting’s services in advance of the Effective Date shall also be governed by this Agreement.
“Order” means an ordering document that is entered into between Supplier and Smarter Sorting.
“Platform” means the Smarter Sorting user interface accessible through smartersorting.com (or other documented endpoints), and API-based services through which Users can access certain Smarter Sorting Services for accessing, providing, and using the Supplier Data, Smarter Sorting Data, and Classifications, together with any updates and improvements thereto.
“Product Information” means the details and descriptions of products, including UPC/Barcode, Safety Data Sheets, Ingredients List, Article Information Sheet, Technical Data Sheet, UN38.3 Test Summary, Inner Packaging Volume, and attributes such as Chemicals and Percent Composition or Composition Range, Flashpoint, Boiling Point, pH, Intended Use, and Phase.
“Retailer Data” means the data a third-party retailer collects, processes, provides, shares or stores with Smarter Sorting including (a) Product Information, (b) information about retailer, and (c) information about a retailer’s UPC inventory lists, product suppliers (supplier names, supplier contacts, associated products), custom business rules and other retailer-specific identifiers (such as item number, department number, etc.).
“Services” means the Smarter Sorting products and services that are ordered by Supplier pursuant to an Order, including, as applicable, access to or use of the Platform.
“Smarter Sorting Data” means all data, records, product classifications, product information or attributes, business rules, and materials that, as part of Supplier’s and its Users’ use of the Services are (a) provided to Supplier or its Users or (b) accessed by Supplier or its Users.
“Subscription Term” means the period of time set forth in the applicable Order during which Supplier is authorized to use the Services.
“Supplier Data” means the data Supplier collects, processes, provides, shares or stores using the Services including (a) the Product Information, (b) information about Supplier, and (c) information about a retailer’s UPC inventory lists, product suppliers (supplier names, supplier contacts, associated products), custom business rules and other retailer-specific identifiers (such as item number, department number, etc.). Supplier Data does not include User Information, Retailer Data, or Smarter Sorting Data.
“User” means Supplier’s and Supplier’s Affiliates’ employees, contractors, consultants, partners, collaborators, and agents (including any third party to whom Supplier has outsourced all or part of its operations, disaster recovery, or hosting services) who are authorized by Supplier to use the Service for Supplier’s internal business purposes in accordance with this Agreement. “User” shall not include any person who Supplier knows is associated with any competitors of Smarter Sorting.
“User Information” means any information regarding Supplier’s Users relating to an identified or identifiable natural person.
The words “include” and “including” mean “including but not limited to.”
2. Grant of Rights; Restrictions
(a) Subject to and conditioned upon Supplier’s compliance with this Agreement, Smarter Sorting grants to Supplier a limited, non-exclusive, non-transferable (except as permitted via Section 17 of this Agreement), non-sublicensable license during the applicable Subscription Term to authorize Users to access, view, and use pages within the applicable Services and Smarter Sorting Data solely for Supplier’s internal business purposes, only in the form found within the Services, and only in accordance with the applicable Order and Documentation.
(c) Supplier agrees that Supplier will not (and will not allow any User or third party to) (i) copy, modify, adapt, translate or otherwise create derivative works of the Services, including the Platform or the Documentation; (ii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Platform or other Services; (iii) rent, lease, sell, assign or otherwise transfer rights in or to the Platform, the Documentation or other Services; (iv) remove any proprietary notices or labels on the Platform or placed by the Services; (v) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Platform or other Services; or (vi) use Retailer Data or Smarter Sorting Data for purposes other than (A) generating, viewing, and downloading Classifications, (B) validating formulation data or product attributes, unless expressly permitted otherwise in writing or via an Order. Supplier represents and warrants that it will comply with all applicable laws and regulations in Supplier’s use of and access to the Documentation, Platform, Classifications, and other Services.
(d) Supplier is only authorized to use or permit Users to use the Platform for the purposes of accessing and using the Services. Supplier agrees to use the Platform only for purposes that are lawful and permitted by this Agreement. Supplier specifically agrees not to access (or attempt to access), or systematically retrieve data from, any part of the Platform or other Services through the use of scripts, bots, web crawlers or similar automated means without the express prior written consent of Smarter Sorting. Gathering data from the Platform or other Services through harvesting or automated means that are not enabled or approved through the Platform itself is strictly prohibited. Supplier agrees that Supplier will not engage in any activity that interferes with or disrupts the Platform or interferes with any other party's use of the Platform. Supplier agrees not to engage in any conduct in connection with its or its User’s use of the Platform that is anti-competitive, deceptive or otherwise in violation of any law including those governing competition or trade practices. Supplier further agrees not to tamper with the Platform or its functionality. Supplier shall not post or transmit any information, file or software that contains a virus, worm or any other potentially contaminating or destructive information, data or feature.
3. Account; Creation
(a) In registering for an Account, Supplier must: (i) provide information about Supplier as prompted by the registration form (the “Registration Data”) including the account manager’s name and business contact information; and (ii) maintain and promptly update the Registration Data.
(b) It is Supplier’s responsibility to prevent unauthorized access to Supplier’s account and to ensure that its Users’ passwords, usernames, logins or single sign-on authentications, as applicable, are not disclosed to, or misused by, others. Supplier is fully responsible for all activities that occur under Supplier’s account, whether or not Supplier authorized the particular use or User, and regardless of Supplier’s knowledge of such use. Supplier agrees to notify Smarter Sorting immediately of any unauthorized use of Supplier’s account or password or any other similar breach of security.
(c) Smarter Sorting’s staff may, from time to time, access Supplier’s account in order to maintain, support or improve the Services, including to provide assistance with technical or billing issues.
4. Fees and Taxes
(a) Fees. All fees are as set forth in the applicable Order and unless otherwise specifically stated in the Order, all payments to Smarter Sorting are due within 30 days of date of the invoice. If Supplier has specified credit/debit card or direct withdrawal from a bank account as an applicable payment mechanism under this Agreement, Supplier grants Smarter Sorting the right to charge the credit/debit card or debit the bank account provided to Smarter Sorting for all fees incurred under this Agreement. All payments are non-refundable. Any outstanding balance becomes immediately due and payable upon termination of this Agreement and any collection expenses (including attorneys’ fees) incurred by Smarter Sorting (or other related entities) will be included in the amount owed by Supplier. If payment of any fee is overdue, Smarter Sorting may suspend, at Smarter Sorting’s sole discretion, (a) Supplier’s Use of the Services and any support until such delinquency is corrected and (b) the use of Supplier Data by retailers and other third parties within the Services. Non-payment or late payment of undisputed fees is a material breach of this Agreement. To the extent permitted by applicable law, Supplier shall pay interest on any overdue balance at the rate of 1 ½% per month or the maximum permitted by law, whichever is less.
(b) Taxes. If Supplier is required to pay any withholding tax, charge or levy in respect of any payments due to Smarter Sorting hereunder, payments will be made without right of set-off or chargeback. Supplier is responsible for the payment of taxes in connection with this Agreement that are imposed by law on Supplier as the buyer of the Services, which may include, but are not limited to, sales, use, excise, value-added, business, service, goods and services, consumption, and other similar taxes or duties. Smarter Sorting will be responsible for the payment of all taxes in connection with this Agreement that are imposed by law on Smarter Sorting as the seller or provider of the Services. Each party will be responsible for its own income taxes, gross receipts taxes, employment taxes, and property taxes. To the extent Smarter Sorting is required to collect taxes for which Supplier is responsible, Smarter Sorting will identify such taxes as separate line items on affected invoices. Each party will provide to the other party any resale exemption, multiple points of use certificates, treaty certification and other exemption information reasonably requested by the other party from time to time.
5. Product Information
Supplier represents and warrants that it shall provide Smarter Sorting with accurate, complete, up-to-date Supplier Data and Product Information, including but not limited to (a) all ingredients as listed on Supplier’s publicly available ingredients list or Supplier’s Safety Data Sheet; and (b) ingredients that require disclosure per a regulatory authority contained in a product or product component with the percentage range of each ingredient, data and information from Safety Data Sheets (“SDSs”), and United Nations 38.3 documentation (“UN 38.3”) for lithium battery products. Supplier is responsible for maintaining current and accurate Product Information and Supplier Data in the Platform. Failure to provide timely, accurate, and complete Product Information or other Supplier Data may result in Supplier’s liability for improper Classifications. If any of the Product Information or Supplier Data that Supplier provides to Smarter Sorting changes, including if the ingredients that go into a product change or there is an update to a product SDS, Supplier must update Supplier’s Product Information as soon as reasonably possible after it changes. Supplier may update Supplier’s Product Information by logging into the Platform or contacting Customer Support at firstname.lastname@example.org. When Supplier registers its products in the Platform, Supplier may be asked to confirm at various points in the process that the Product Information Supplier is providing is accurate, whether it is provided by Supplier and by a third party data provider on Supplier’s behalf. For example, we may ask Supplier to check a box to confirm that the ingredients Supplier enters reflect all ingredients that are regulated in the State of California, or to confirm that all CAS numbers and weights are accurate. Regardless of whether we ask Supplier to confirm Supplier’s Product Information, Supplier remains responsible for the Product Information and the accuracy and completeness thereof.
6. Supplier Data; Aggregated Data
(a) Supplier acknowledges and agrees that all information, data, data records, databases, text, software, photographs, images, graphics, videos, messages, scripts, tags and other materials accessible through the Services, whether publicly posted or privately transmitted, are the sole responsibility of the person or entity from which it originated. This means that Supplier, and not Smarter Sorting, is entirely responsible for Supplier Data, and other users of the Services, and not Smarter Sorting, are similarly responsible for all such items that they upload, post, email, transmit or otherwise make available through the Services. In the event that such data is provided by Smarter Sorting from a third-party source, it is provided to Supplier on an “AS-IS” basis without any warranties, including but not limited to any warranties regarding its accuracy or validity, and it is the Supplier’s sole responsibility to validate and approve any such data before use.
(b) Supplier retains ownership of any intellectual property rights that Supplier holds in any Supplier Data; however, subject to Smarter Sorting’s obligations in Section 8 (Confidential Information), Supplier grants to Smarter Sorting a perpetual, irrevocable, worldwide license to use, host, store, reproduce, modify, create derivative works, communicate, publish, publicly perform, publicly display, share with third parties, including but not limited to third-party retailers, and distribute such Supplier Data to operate, promote, and improve our Services, and to develop new products and services. This license survives any termination or expiration of any Subscription Term for all Orders or other termination or expiration of this Agreement. Notwithstanding the foregoing, some of Smarter Sorting’s Services may (i) offer Supplier ways to access and remove certain Supplier Data, and/or (ii) offer Supplier ways to narrow the scope of Smarter Sorting’s use of certain Supplier Data, including allowing Supplier to apply certain restrictions on the sharing of Supplier Data and to classify such Supplier Data as confidential within the Portal.
(c) Supplier represents, warrants, and covenants that Smarter Sorting may rely upon and process all Product Information. In addition, Supplier represents and warrants that the Product Information is either (a) owned or licensed by Supplier or that (b) Supplier has all rights necessary to provide the license to Supplier Data in Section 6(b) of this Agreement. To Supplier’s knowledge, Supplier Data does not infringe on the intellectual property rights of any third party. Supplier agrees that in the event that any of the Product Information is inaccurate, Smarter Sorting will not be liable for any performance or alleged non-performance of Services. Supplier further represents and warrants that it will independently validate and approve any data provided by Smarter Sorting from a third-party source before use of such data.
(d) Third Party Data Warehouses and Data Syndication Services. Many suppliers utilize 3rd party data warehouses and data syndication services (such as One World Sync, Salsify, SPS, GS1 and others) as repositories for, and distributors of, their product data to retailers for the purposes of sales enablement, transportation enablement, safety and compliance, marketing information and other such uses. Smarter Sorting, where possible, seeks to lessen the burden of additional data entry on the part of the suppliers by accessing the data from these third-party data warehouses and data syndication services and by retrieving the data on behalf of the supplier to assist the supplier in registering its products and entering its Product Information. Supplier hereby grants permission to Smarter Sorting to access Supplier Data from these sources, including any third party data warehouse and data syndication services that Supplier contracts with, or may contract with, in the future, for these purposes. Smarter Sorting may identify other data providers that may help facilitate the registration of Supplier products and completion of Supplier’s Product Information. Supplier agrees to provide such additional written authorizations and confirmations as may be needed to facilitate the access and use of Product Information on Supplier’s behalf in accordance with this Agreement.
(e) As used herein, "Anonymized Data" means Supplier Data that has been anonymized in a manner that does not reveal any personal information and cannot reasonably be used to (i) identify Supplier, (ii) identify Supplier’s Users or (iii) identify Supplier’s organization or its customers or vendors as the source of such data. Supplier acknowledges and agrees that Smarter Sorting may collect or generate Anonymized Data in connection with providing Supplier with access to or use of the Services, and Supplier hereby grants Smarter Sorting and its service providers a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made Anonymized Data (in any form and any medium, whether now known or later developed) for any lawful purpose.
7. Information Security.
8. Confidential Information.
“Confidential Information” means any and all non-public confidential and/or proprietary information, regardless of whether it is in tangible form, disclosed or accessed by either party that the disclosing party has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary within thirty (30) days of disclosure to the other party, including but not limited to Supplier Data that has been identified as confidential via the Platform; provided, however, that a disclosing party’s business plans, strategies, technology, research and development, current and prospective customers, billing records, and products or services shall be deemed Confidential Information of the disclosing party even if not so marked or identified. Smarter Sorting’s Confidential Information includes, without limitation, Retailer Data, Smarter Sorting Data, the Smarter Sorting Services and this Agreement. All Supplier Data shall be treated as publicly available information unless Supplier identifies Supplier Data as being confidential at the time that it is provided to Smarter Sorting. Except as permitted by this Agreement, neither party will (a) make any use of the other party’s Confidential Information; (b) acquire any right in the other party’s Confidential Information; (c) disclose any of the other party’s Confidential Information to a third party; or (d) refuse to promptly return or destroy the other party’s Confidential Information upon request. Notwithstanding the foregoing, this Section 8 will not apply to any information that the receiving party can demonstrate: (a) is or becomes publicly available or a part of the public domain through no fault of its own; or (b) was in the possession of the receiving party at the time of its disclosure by the disclosing party as evidenced by files existing at the time of disclosure; (c) was disclosed by recipient with the prior written approval of discloser; (d) was independently developed by recipient without any use of discloser's Confidential Information; or (e) became known to recipient, without restriction, from a source other than discloser without breach of this Agreement by recipient and otherwise not knowingly in violation of discloser's rights. Each party will use reasonable measures to protect the confidentiality and value of the other party’s Confidential Information. Notwithstanding any provision of this Agreement, either party may disclose the other party’s Confidential Information, in whole or in part (i) to its employees, officers, directors, consultants and professional advisers (e.g., attorneys, auditors, financial advisors, accountants and other professional representatives) who have a need to know and are legally bound to keep such Confidential Information confidential by confidentiality obligations or, in the case of professional advisors, are bound by ethical duties to keep such Confidential Information confidential consistent with the terms of this Agreement. Further, either party may disclose the other party’s Confidential Information to the extent required by law or by order of a court or governmental agency after providing notice to the other party, and providing such party with the opportunity to seek a protective order. In the event of actual or threatened breach of the provisions of this Section 8, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party shall promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.
9. Intellectual Property
(a) Smarter Sorting and its licensors own and retain all right, title, and interest, including all intellectual property rights, in and to the Service and Smarter Sorting Data, including any improvements, modifications, and enhancements to it. Except for the rights expressly granted in this Agreement, Supplier shall acquire no other rights, express or implied, in or to the Services, and all rights not expressly provided to Supplier hereunder are reserved by Smarter Sorting and its licensors. All copies of the Service and Smarter Sorting Data provided or made available hereunder are licensed, not sold.
(b) Except for Supplier Data, Supplier does not have and will not acquire any right, title and interest in and to the Services or Retailer Data or any intellectual property rights which subsist therein (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Nothing created under this Agreement is a joint work. For the sake of clarification this provision shall include any customization of the Services.
(c) Notwithstanding anything to the contrary in this Agreement, certain Smarter Sorting Data may be provided to Supplier via the Platform pursuant to a separate agreement or license between Smarter Sorting and a third-party data provider (including but not limited to Retailer Data) (“Third-Party Data”) and such Third-Party Data may be subject to additional license or use restrictions. Such additional license or use restrictions may be provided to Supplier via the Platform and Supplier agrees to use any such Third-Party Data solely in accordance with such terms.
(d) Marketing Support. Supplier hereby grants to Smarter Sorting a nonexclusive, worldwide, royalty-free, fully paid up, nonsublicensable (except to contractors performing services on behalf of Supplier or Smarter Sorting), nontransferable (except as set forth in Section 17) right and license to copy, display and otherwise use Supplier’s trademarks, service marks, trade names, image, character, logos, domain names and other distinctive brand features or other identification (“Trademarks”) in connection with its performance hereunder and otherwise in connection with providing services to retailers and other third-parties using the Services. Supplier agrees that Smarter Sorting may publish a brief description of its relationship with Supplier as a licensee of the Services or Smarter Sorting Supplier, including by identifying Supplier and using Supplier’s name or logo, on any of Smarter Sorting' websites, client lists, press releases, or other marketing materials.
If Supplier elects to provide or make available to Smarter Sorting any suggestions, comments, ideas, improvements or other feedback relating to the Services (“Suggestions”), Supplier hereby grants to Smarter Sorting and its service providers a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license, to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise grant rights in Supplier’s Suggestions in any form and any medium (whether now known or later developed), without credit or compensation to Supplier.
(a) Supplier will indemnify, defend and hold harmless Smarter Sorting, at Supplier’s expense, from any and all third-party claims, actions, proceedings, and suits (“Claims”) brought against Smarter Sorting or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, reasonable attorneys’ fees and other litigation expenses) (“Losses”) incurred by Smarter Sorting or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (i) use of the Services in violation of Sections 2(c), 2(d) or 5 of this Agreement, (iii) Supplier’s or its Users’ violations of applicable laws, rules or regulations in connection with the Services, (iv) any representations and warranties made by Supplier concerning any aspect of the Services, the Platform or Classifications. Smarter Sorting will provide Supplier with written notice of any claim, suit or action from which Supplier must indemnify Smarter Sorting. Supplier will cooperate as fully as reasonably required in the defense of any claim. Smarter Sorting reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by Supplier.
(b) Smarter Sorting will indemnify, defend and hold Supplier harmless, at its expense, from and against any Claims brought against Supplier or any of Supplier’s officers, directors, employees, agents or affiliates, and all Losses incurred by Supplier or any of Supplier’s officers, directors, employees, agents or affiliates to the extent arising out of any (a) actual or alleged infringement, violation or misappropriation of any third-party’s rights arising out of Supplier’s authorized use of the Services strictly in accordance with this Agreement (each, a “User Claim”). Notwithstanding the foregoing, Smarter Sorting will have no obligation hereunder or otherwise with respect to any infringement claim based upon: (a) any use of the Services not expressly permitted under this Agreement; (b) any use of the Services in combination with products, equipment, software, or data not made available by Smarter Sorting if such infringement would have been avoided without the combination with such other products, equipment, software or data; or (c) any modification of the Services or Platform by a User. If Smarter Sorting receives prompt notice of a User Claim that, in Smarter Sorting’s reasonable opinion, is likely to result in an adverse ruling, then Smarter Sorting may (a) obtain a right for User to continue using the Service at issue; (b) modify the Services to make it non-infringing; (c) replace the Services with a non-infringing version; or (d) provide a reasonable depreciated or pro rata refund of amounts pre-paid for the allegedly infringing Services. This Section 11 states Smarter Sorting’s entire liability and User’s sole and exclusive remedies for all User Claims.
12. DISCLAIMER OF WARRANTIES
EXCEPT AS EXPRESSLY STATED HEREIN, SUPPLIER’S USE OF THE SERVICES ARE AT SUPPLIER’S SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SMARTER SORTING EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED OR ARISING FROM STATUTE, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
SMARTER SORTING MAKES NO WARRANTY OR REPRESENTATION THAT: (i) THE SERVICES WILL MEET SUPPLIER’S REQUIREMENTS; (ii) ACCESS TO THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (iii) THE INFORMATION, CALCULATIONS AND ANY RESULTS THAT MAY BE OBTAINED FROM ACCESS TO OR USE OF THE SERVICES WILL BE ACCURATE, RELIABLE, CURRENT OR COMPLETE. SUPPLIER ACKNOWLEDGES AND AGREES THAT SUPPLIER IS SOLELY RESPONSIBLE FOR VERIFYING THE ACCURACY AND COMPLETENESS OF ALL SUPPLIER DATA SUBMITTED TO OR OBTAINED FROM THE SERVICES BEFORE TAKING ANY ACTION BASED UPON SUCH SUPPLIER DATA.
13. LIMITATION OF LIABILITY
SMARTER SORTING’S TOTAL LIABILITY UNDER THIS AGREEMENT, TO SUPPLIER OR ANYONE CLAIMING ON BEHALF OF OR THROUGH SUPPLIER SHALL BE LIMITED TO THE AMOUNT OF FEES PAID HEREUNDER FOR THE PARTICULAR SERVICE GIVING RISE TO THE CLAIM DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTHS. EXCEPT FOR INDEMNIFICATION OBLIGATIONS, BREACHES OF CONFIDENTIALITY, GROSS NEGLIGENCE OR FRAUD, IN NO EVENT WILL EITHER SUPPLIER OR SMARTER SORTING BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ANY DAMAGE OR LOSS RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH THE PLATFORM OR FROM LOSS OF DATA, PROFITS, USE, BUSINESS, BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, HOWEVER CAUSED. This limitation of liability will apply regardless of the form of action, whether in contract, tort (including negligence), strict liability, or otherwise.
14. U.S. Government Rights
If the use of the Service is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), in accordance with 48 C.F.R. 227.7202-4 (for Department of Defense (DOD) acquisitions) and 48 C.F.R. 2.101 and 12.212 (for non-DOD acquisitions), the Government’s rights in the Platform, including its rights to use, modify, reproduce, release, perform, display or disclose the Platform or Documentation, will be subject in all respects to the commercial license rights and restrictions provided in this Agreement.
15. Term and Termination
(a) Unless otherwise terminated in accordance with this Section 15, this Agreement will remain in effect until the Subscription Term for which the Service is granted under this Agreement has expired. Either party may terminate this Agreement and any Order incorporating this Agreement if the other party materially breaches this Agreement and fails to cure such breach within 30 days of receiving written notice thereof.
(b) In the event that there are no outstanding Orders, either party may terminate this Agreement for convenience upon thirty (30) days’ notice.
(c) Upon any termination of this Agreement, Smarter Sorting will stop providing the Services, and Supplier shall (a) immediately stop accessing the Service and promptly (but in no event later than thirty (30) days following termination) destroy all copies of Smarter Sorting Data (including but not limited to all Classifications and Third-Party Data), Smarter Sorting Confidential Information, and Retailer Data, and Supplier shall certify such destruction upon Smarter Sorting’s request. In the event of any termination (a) Supplier will not be entitled to any refunds of any usage fees or any other fees, (b) Smarter Sorting may, in its sole discretion, suspend or cease the use of Supplier Data by retailers and other third-parties within the Services, and (c) any outstanding balance for Services rendered through the date of termination will be immediately due and payable in full. Notwithstanding the foregoing, in the event that this Agreement is terminated for convenience by either party, any outstanding Order will remain valid and enforceable pursuant to the terms of this Agreement until the expiration of the Subscription Term for the applicable Order.
16. Modifications; Entire Agreement.
(a) Smarter Sorting reserves the right, in its sole and absolute discretion, to update or change any portion of this Agreement at any time. Unless Smarter Sorting indicates otherwise within an update to this Agreement, any changes to this Agreement will be effective immediately upon posting of such updated terms at this location. Supplier’s continued access to or use of the Services after Smarter Sorting posts such updated terms, constitutes Supplier’s acceptance of the changes and consent to be bound by the Agreement as amended. If Supplier does not agree to the amended Terms of Service, Supplier must stop accessing and using the Services.
(b) This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersede and cancel all previous written and oral agreements and communications relating to the Service (including, but not limited to, any prior versions of this Agreement.
17. Miscellaneous, Applicable Law
Smarter Sorting will be excused from performance in this Agreement to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control. This Agreement. If any provision of this Agreement is held to be unenforceable for any reason, such provision will be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect. This Agreement will be governed by and construed under the laws of the State of Delaware without reference to its conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act do not apply to this Agreement. The Platform is controlled by U.S. Export Regulations, and it may not be exported to or used by embargoed countries or individuals. Any notices to Smarter Sorting must be sent to: Waste Repurposing International, Inc., 1007 Pearl Street, Suite 210, Boulder, CO 80302, with a copy to Chief Financial Officer at email@example.com, via first class or air mail or overnight courier, and are deemed given upon receipt. A waiver of any default is not a waiver of any subsequent default. Supplier may not assign or otherwise transfer any of Supplier’s rights in this Agreement without Smarter Sorting ‘s prior written consent, and any such attempt is void. Smarter Sorting may freely transfer or assign this Agreement. The relationship between Smarter Sorting and Supplier is not one of a legal partnership relationship, but is one of independent contractors. This Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto.
Sections 2(c), 4, 5, 6, 8, 9, 10, 11, 12, 13, 15(c), 16, and 17, shall survive any termination or expiration of this Agreement.