WasteWiser Terms and Conditions
Terms and Conditions
October 1, 2021
1. Contractual Relationship.
These Terms and Conditions ("Terms") govern your access or use, from within the United States and its territories and possessions, of the applications, websites, content, products, and services (the "Services," are available in North America, the United States and its territories and possessions by WasteWiser™ and its parents, subsidiaries, representatives, affiliates, officers and directors (collectively, "WasteWiser™"). Please read these terms carefully, as they constitute a legal agreement between you and WasteWiser™. In these Terms, the words "including" and "include" mean "including, but not limited to."
By accessing or using the Services, you confirm your agreement to be bound by these Terms. If you do not agree to these Terms, you may not access or use the Services. These Terms expressly supersede prior agreements or arrangements with you. WasteWiser™ may immediately terminate these Terms or any Services with respect to you, or generally cease offering or deny access to the Services or any portion thereof, at any time for any reason.
IMPORTANT: PLEASE REVIEW THE ARBITRATION AGREEMENT SET FORTH BELOW CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH WASTEWISER™ ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION. BY ENTERING THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.
Supplemental terms may apply to certain Services, such as policies for a particular event, program, activity or promotion, and such supplemental terms will be disclosed to you in separate, specific disclosures (e.g., a particular webpage on www.WasteWiser.com) or in connection with the applicable Service(s). Supplemental terms are in addition to, and shall be deemed a part of, the Terms for the purposes of the applicable Service(s). Supplemental terms shall prevail over these Terms in the event of a conflict with respect to the applicable Services.
WasteWiser™ may amend the Terms from time to time. Amendments will be effective upon WasteWiser’s™ posting of such updated Terms at this location or in the amended policies or supplemental terms on the applicable Service(s). Your continued access or use of the Services after such posting confirms your consent to be bound by the Terms, as amended. If WasteWiser™ changes these Terms after the date you first agreed to the Terms (or to any subsequent changes to these Terms), you may reject any such change by providing WasteWiser™ written notice of such rejection within 30 days of the date such change became effective, as indicated in the "Effective" date above. This written notice must be provided either (a) by mail or hand delivery to our corporate address: WasteWiser™, 250 Avenida Juan Ponce de Leon, Piso 3, San Juan, PR, 00918, or (b) by email from the email address associated with your Account to: email@example.com. In order to be effective, the notice must include your full name, the business’ full name as reflected in your subscription enrollment, and clearly indicate your intent to reject changes to these Terms. By rejecting changes, you are agreeing that you will continue to be bound by the provisions of these Terms as of the date you first agreed to the Terms (or to any subsequent changes to these Terms). By rejecting changes, you further acknowledge that WasteWiser™ reserves the right to terminate your services upon your rejection of additional terms.
WasteWiser’s™ collection and use of information in connection with the Services is described in WasteWiser’s™ Privacy Statement.
2. Arbitration Agreement.
By agreeing to the Terms, you agree that you are required to resolve any claim that you may have against WasteWiser™ on an individual basis in arbitration, as set forth in this Arbitration Agreement. This will preclude you from bringing any class, collective, or representative action against WasteWiser™, and also preclude you from participating in or recovering relief under any current or future class, collective, consolidated, or representative action brought against WasteWiser™ by someone else.
2.1 Agreement to Binding Arbitration Between You and WasteWiser.
You and WasteWiser™ agree that any dispute, claim or controversy arising out of or relating to (a) these Terms or the existence, breach, termination, enforcement, interpretation or validity thereof, or (b) your access to or use of the Services at any time, whether before or after the date you agreed to the Terms, will be settled by binding arbitration between you and WasteWiser™, and not in a court of law.
You acknowledge and agree that you and WasteWiser™ are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Unless both you and WasteWiser™ otherwise agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding. However, you and WasteWiser™ each retain the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.
2.2 Rules and Governing Law.
The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the AAA’s Consumer Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "AAA Rules") then in effect, except as modified by this Arbitration Agreement. The AAA Rules are available at www.adr.org or by calling the AAA at 1-800-778-7879.
The parties agree that the arbitrator ("Arbitrator"), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether the Terms are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.
Notwithstanding any choice of law or other provision in the Terms, the parties agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. ("FAA"), will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties that the FAA and AAA Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and AAA Rules are found to not apply to any issue that arises under this Arbitration Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the Territory of Puerto Rico.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration - Consumer Arbitration Rules at www.adr.org or by calling the AAA at 1-800-778-7879). The Arbitrator will be either (1) a retired judge or (2) an attorney specifically licensed to practice law in the Territory of Puerto Rico and will be selected by the parties from the AAA's roster of consumer dispute arbitrators. If the parties are unable to agree upon an Arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the Arbitrator in accordance with the AAA Rules.
2.4 Location and Procedure.
Unless you and WasteWiser™ otherwise agree, the arbitration will be conducted in person regardless of the county, state, or jurisdiction where you reside. If your claim does not exceed $50,000, then the arbitration will be conducted solely on the basis of documents you and WasteWiser™ submit to the Arbitrator, unless you request a hearing or the Arbitrator determines that a hearing is necessary. If your claim exceeds $50,000.00, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the Arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
2.5 Arbitrator's Decision.
The Arbitrator will render an award within the time frame specified in the AAA Rules. Judgment on the arbitration award may be entered in any court having competent jurisdiction to do so. The Arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant's individual claim. An Arbitrator’s decision shall be final and binding on all parties. An Arbitrator’s decision and judgment thereon shall have no precedential or collateral estoppel effect. The prevailing party will be entitled to an award of attorneys' fees and expenses, to the extent provided under applicable law.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.
Notwithstanding the provisions in Section 1 above, regarding consent to be bound by amendments to these Terms, if WasteWiser™ changes this Arbitration Agreement after the date you first agreed to the Terms (or to any subsequent changes to the Terms), you may reject any such change by providing WasteWiser™ written notice of such rejection within 30 days of the date such change became effective, as indicated in the "Effective" date above. This written notice must be provided either (a) by mail or (b) hand delivery to our registered agent for service of process. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to this Arbitration Agreement. By rejecting changes, you are agreeing that you will arbitrate any dispute between you and WasteWiser™ in accordance with the provisions of this Arbitration Agreement as of the date you first agreed to the Terms (or to any subsequent changes to the Terms).
2.8 Severability and Survival.
If any portion of this Arbitration Agreement is found to be unenforceable or unlawful for any reason, (a) the unenforceable or unlawful provision shall be severed from these Terms; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of the Arbitration Agreement or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement; and (c) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration.
3. The Services.
WasteWiser™ provides service to different categories of customers: (a) Subscribers who use Owl™ Monitors and receive data from WasteWiser™. The term(s) “customers” and “subscribers” shall collectively refer to all customers or subscribers for any uses of WasteWiser™ products; (b) Providers who bid on and provide services to Subscribers with or without WasteWiser™ as an agent as third-parties to services provided by WasteWiser™ to Subscribers; (c) Data Users who purchase data from WasteWiser™ relating to Subscriber, Provider, Advertiser, and/or Licensors’ provision of services received and/or performed by WasteWiser™; (d) Advertisers who use information, ad placement, or similar services from WasteWiser™; (e) Licensors who use information to manage commercial waste brokerages services; and (f) Services shall collectively refer to all described uses of WasteWiser™ products and services.
All categories of Subscribers waive any claims related to provision of services or challenges to Owl™ Monitor uses, including installations on dumpsters – whether subscriber is a service subscriber, provider (hauler) subscriber, or subscription member only employing data.
The Services comprise hardware, applications, and related services (each, an "Application"), which enable users to manage commercial waste services, schedule collections, provide logistics support, verify charges for services, verify accountability for service delivery, and/or request and/or cancel and/or alter the level(s) of services and/or to purchase certain goods, including through third-party Providers of such services and goods through WasteWiser™ as its/their agent, or certain of WasteWiser’s™ affiliates ("third-party Providers"), or WasteWiser’s™ Licensees, or directly through WasteWiser™ as users’ exclusive agent. You hereby authorize WasteWiser™ to act as your exclusive agent and in your stead as your representative to obtain, manage, verify, or request information on your behalf with regard to Services provided by WasteWiser™. In certain instances, the Services may also include an option to receive collection, logistics and/or delivery services for an upfront price, subject to acceptance by the respective third-party Providers. Unless otherwise agreed by WasteWiser™ in a separate written agreement with you, the Services are made available solely for your commercial use. You acknowledge that your ability to obtain collection, logistics, and/or delivery services through the use of the services does not establish WasteWiser™ as a provider of collection, logistics or delivery services, as a waste collection equipment provider, waste hauler, or transportation carrier, and that WasteWiser™ functions solely as your authorized and exclusive agent for information related services, Owl™ Monitoring, and accountability related to the services provided for commercial collection by third party providers and/or subscribers/customers own personnel.
Subject to your compliance with these Terms, WasteWiser™ grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to: (a) access and use the Applications on your business and/or personal equipment solely in connection with your use of the Services; and (b) access and use any content, information and related materials that may be made available through the Services, in each case solely for your business and/or personal use. Any rights not expressly granted herein are reserved by WasteWiser™ its affiliates, agents, subsidiaries, holding companies and/or WasteWiser's™ licensors.
You may not: (a) remove any copyright, trademark or other proprietary notices from any portion of the Services; (b) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services except as expressly permitted by WasteWiser™; (c) decompile, reverse engineer or disassemble the Services except as may be permitted by applicable law; (d) link to, mirror or frame any portion of the Services; (e) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Services or unduly burdening or hindering the operation and/or functionality of any aspect of the Services; or (f) attempt to gain unauthorized access to or impair any aspect of the Services or its related systems or networks.
3.3 Provision of the Services.
You acknowledge that portions of the Services may be made available under WasteWiser’s™ various brands or request options associated with collection or logistics, including various services currently provided by "WasteWiser™" and the logistics request products currently referred to as "WasteWiser™." You also acknowledge that the Services may be made available under such brands or request options by or in connection with: (a) certain of WasteWiser’s™ subsidiaries, providers, or affiliates; or (b) independent third-party Providers, including collection companies and/or holders of similar permits, authorizations, franchises, and/or licenses.
3.4 Third-Party Services and Content.
The Services and all rights therein are and shall remain WasteWiser’s™ property. Neither these Terms nor your use of the Services convey or grant to you any rights: (a) in or related to the Services except for the limited license granted above; or (b) to use or reference in any manner WasteWiser’s™ company names, logos, product and service names, trademarks or services marks or those of WasteWiser’s™ licensors.
4. Access and Use of the Services.
4.1 User Accounts.
In order to use most aspects of the Services, you must register for and maintain an active user account ("Account"). You must be at least 18 years of age, or the age of legal majority in your jurisdiction (if different than 18), to obtain an Account. Account registration requires you to submit to WasteWiser™ certain information, such as your name, business name (where applicable), address, mobile phone number, all required service information, as well as at least one valid payment method supported by WasteWiser™. You agree to maintain accurate, complete, and up-to-date information in your Account. Your failure to maintain accurate, complete, and up-to-date Account information, including having an invalid or expired payment method on file, may result in your inability to access or use the Services. You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times. Unless otherwise permitted by WasteWiser™ in writing, you may only possess one Account.
4.2 User Requirements and Conduct.
The Service is not available for use by persons under the age of 18. You may not authorize third parties to use your Account, and you may not allow persons under the age of 18 to contract for or receive collection or logistics services from Third-Party Providers. You may not assign or otherwise transfer your Account to any other person or entity without written approval by WasteWiser™. You agree to comply with all applicable laws when accessing or using the Services, and you may only access or use the Services for lawful purposes (e.g., no uses in violation of Federal, State, or local laws or ordinances). You may not in your access or use of the Services cause nuisance, annoyance, inconvenience, or property damage, whether to the Third-Party Provider or any other party.
4.3 Text Messaging, E-mail, and Telephone Calls.
You agree that WasteWiser™ may contact you by telephone, e-mail, or text messages (including by an automatic telephone dialing system) at any of the phone numbers provided by you or on your behalf in connection with a WasteWiser™ account, including for marketing purposes. You understand that you are not required to provide this consent as a condition of purchasing any property, goods or services. You also understand that you may opt out of receiving text messages from WasteWiser™ at any time. You expressly authorize and permit WasteWiser™ on your behalf and at your instruction, to contact any Third-Party Provider to inform them, per your selection(s) of WasteWiser™ services, of notices related to the provision of their services on your behalf.
4.4 User Provided Content.
WasteWiser™ may, in WasteWiser’s™ sole discretion, permit you from time to time to submit, upload, publish or otherwise make available to WasteWiser™ through the Services textual, audio, and/or visual content and information, including commentary and feedback related to the Services, initiation of support requests, and submission of entries for competitions and promotions ("User Content"). Any User Content provided by you remains your property. However, by providing User Content to WasteWiser™, you grant WasteWiser™ a worldwide, perpetual, irrevocable, transferable, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit in any manner such User Content in all formats and distribution channels now known or hereafter devised (including in connection with the Services and WasteWiser’s™ business and on third-party sites and services), without further notice to or consent from you, and without the requirement of payment to you or any other person or entity. Your consent to allow WasteWiser™ use of User Content is in perpetuity and shall not require additional permissions or grants of access from you.
You represent and warrant that: (a) you either are the sole and exclusive owner of all User Content or you have all rights, licenses, consents and releases necessary to grant WasteWiser™ the license to the User Content as set forth above; and (b) neither the User Content, nor your submission, uploading, publishing or otherwise making available of such User Content, nor WasteWiser’s™ use of the User Content as permitted herein will infringe, misappropriate or violate a Third-Party's intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
Further you agree that any User Content generated or created by you shall not contain any intellectual property, trademarks, copyrights, pricing information, trade secret or other proprietary information relating to WasteWiser™ or its affiliated third parties without the express written permission of WasteWiser™ or Third-Party providers.
You agree to not provide User Content or posts that are defamatory, libelous, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive, as determined by WasteWiser™ in its sole discretion, whether or not such material may be protected by law. WasteWiser™ may, but shall not be obligated to, review, monitor, or remove User Content or posts at WasteWiser’s™ sole discretion and at any time and for any reason, without notice to you. WasteWiser™ will not be responsible for libelous or slanderous materials posted on WasteWiser™ websites as posts or User Content and you specifically indemnify WasteWiser™ from any allegations and/or legal actions made or taken as a result of posts created, posted, reposted, or otherwise authored by you on such site(s) which may violate any applicable law or either the letter or spirit of this Agreement or upon the reasonable request of any Third-Party.
4.5 Posting and Communication Restrictions.
You will not post, transmit to other users, communicate any content (or links thereto), or otherwise engage in any activity on or through the Services, that: (a) is intended to or tends to abuse, harass, threaten or intimidate any other users of the Services; (b) is defamatory, intentionally inaccurate, abusive, obscene, profane, offensive, sexually charged, or otherwise objectionable or unlawful; (c) infringes the intellectual property right of WasteWiser™ or any Third-Party including copyright in and to content (e.g., music, movies, videos, photographs, images, software, literary works, etc.); (d) contains video, audio photographs, or images of another person; (e) promotes or enables illegal or unlawful activities, such as instructions on how to make or buy illegal weapons or drugs, violate someone’s privacy, harm or harass another person, steal someone else’s identity, create or disseminate computer viruses, or circumvent copy-protect devices; (f) is false or misrepresentative or otherwise intended to defraud, swindle or deceive other users of the Services; (g) contains viruses, ransomware, time bombs, trojan horses, cancelbots, worms or other harmful, or disruptive codes, components or devices; (h) promotes or solicits involvement in or support of a political platform, religion, cult, or sect; (i) disseminates another person’s personal information without his or her permission, or collects or solicits another person’s personal information for commercial or unlawful purposes; (j) is off-topic, meaningless, or otherwise intended to annoy or interfere with others’ enjoyment of the Services; (k) impersonates, or otherwise misrepresents affiliation, connection or association with, any person or entity; (l) solicits gambling or engages in any gambling or similar activity; (m) uses scripts, bots or other automated technology to access the Services; (n) uses the Services for chain letter, junk mail or spam e-mails; (o) is in any way used for or in connection with spamming, spimming, phishing, trolling, or similar activities.
4.6 No False Information.
You will not provide inaccurate, misleading or false information to WasteWiser™ or to any other user. If information provided to WasteWiser™ or another user subsequently becomes inaccurate, misleading or false, you will promptly notify WasteWiser™ of such change.
4.7 No Advertising or Commercial Solicitation.
You will not advertise or solicit any user to buy or sell any products or services on or through the Services. You may not transmit any chain letters, junk or spam e-mail to other users or other unsolicited commercial messages. Further, you will not use any information obtained from the Services in order to contact, advertise to, solicit, or sell to any user or provider without their prior explicit consent. If you breach the terms of this subsection and send or post unsolicited bulk email, "spam" or other unsolicited communications of any kind through the Services, you acknowledge that you will have caused substantial harm to WasteWiser™.
4.8 No Harassment of WasteWiser™ Employees, Affiliates, Subscribers, or Agents.
You will not harass, annoy, intimidate or threaten any WasteWiser™ employees, affiliates, subscribers, or agents engaged in providing any portion of the Services to you.
4.9 Social Media.
4.10 Network Access and Devices.
You are responsible for obtaining the data network access necessary to use the Services. Your mobile network's data and messaging rates and fees may apply if you access or use the Services from your device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and Applications and any updates thereto. WasteWiser™ does not guarantee that the Services, or any portion thereof, will function on any particular hardware or devices. In addition, the Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.
4.11 Non-Disclosure of Confidential Information.
For the purposes of this Agreement, the term “Confidential Information” shall mean anything disclosed by WasteWiser™ to Users unless specifically identified as NOT Confidential. Confidential Information shall include but not be limited to all information and documentation of a party that: (a) has been marked “confidential” or with words of similar meaning, at the time of disclosure by such party; (b) if disclosed orally or not marked “confidential” or with words of similar meaning, was subsequently summarized in writing by the disclosing party and marked “confidential” or with words of similar meaning; or (c) should reasonably be recognized as confidential information of the disclosing party.
The term “Confidential Information” does not include any information or documentation that was: (a) already in the possession of the receiving party without an obligation of confidentiality; (b) developed independently by the receiving party, as demonstrated by the receiving party, without violating the disclosing party’s proprietary rights; (c) obtained from a source other than the disclosing party without an obligation of confidentiality; or, (d) publicly available when received, or thereafter became publicly available (other than through any unauthorized disclosure by, through, or on behalf of, the receiving party).
The parties agree to hold all Confidential Information in strict confidence and not to copy, reproduce, sell, transfer, or otherwise dispose of, give or disclose such Confidential Information to third parties other than employees, agents, or subcontractors of a party who have a need to know in connection with this Agreement or to use such Confidential Information for any purposes whatsoever other than the performance of this Agreement. The parties agree to advise and require their respective employees, agents, and subcontractors of their obligations to keep all Confidential Information confidential. The receiving party may disclose Confidential Information of the other party, including Subscriber Data, to the extent such disclosure is required by law or order of a court of other governmental authority; provided that the receiving party shall use reasonable efforts to promptly notify the disclosing party prior to such disclosure to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure.
Each party acknowledges that breach of its obligation of confidentiality may give rise to irreparable injury to the other party, which damage may be inadequately compensable in the form of monetary damages. Accordingly, a party may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available.
4.12 Data Privacy and Information Security.
Without limiting WasteWiser’s™ obligation of confidentiality as described herein, WasteWiser™ shall establish and maintain a data privacy and information security program, including physical, technical, administrative, and organizational safeguards, that is designed to: (a) ensure the security and confidentiality of the Subscriber Data; (b) protect against any anticipated threats or hazards to the security or integrity of the Subscriber Data; (c) protect against unauthorized disclosure, access to, or use of the Subscriber Data; (d) ensure the proper disposal of Subscriber Data; and, (e) ensure that all employees, agents, and subcontractors of WasteWiser™, if any, comply with all of the foregoing.
Each party may use the other party’s name or mark, identify the business relationship between parties and/or share business metrics, such as WasteWiser’s™ service benefits, on their respective websites and/or marketing materials. WasteWiser™ maintains the right, at its own expense, to adhere, at most, a branded 5 inch by 15 inch, or smaller or equivalently sized, decal to the exterior of each Owl™ Monitored dumpster.
You understand that use of the Services may result in charges to you for the services or goods you receive ("Charges"). WasteWiser™ will receive and/or enable your payment of the applicable Charges for services or goods obtained through your use of the Services. Charges will be in addition to applicable taxes where required by law. Charges may include other applicable fees, tolls, franchise fees, and/or surcharges including a booking fee, municipal taxes, special district surcharges, or processing fees for split payments.
All Charges and payments will be enabled by WasteWiser™ using the preferred payment method designated in your Account, after which you will receive a receipt by email. If your primary Account payment method is determined to be expired, invalid or otherwise not able to be charged, you agree that WasteWiser™ may use a secondary payment method in your Account, if available. Charges paid by you are final and non-refundable, unless otherwise determined by WasteWiser™.
As between you and WasteWiser™, WasteWiser™ reserves the right to establish, remove and/or revise Charges for any or all services or goods obtained through the use of the Services at any time in WasteWiser’s™ sole discretion. WasteWiser™ will use reasonable efforts to inform you of Charges that may apply, provided that you will be responsible for Charges incurred under your Account regardless of your awareness of such Charges or the amounts thereof.
In certain cases, with respect to Third-Party Providers, Charges you incur will be owed directly to Third-Party Providers, and WasteWiser™ will collect payment of those charges from you, on the Third-Party Provider’s behalf as their limited payment collection agent, and payment of the Charges shall be considered the same as payment made directly by you to the Third-Party Provider. In such cases, you retain the right to request lower Charges from a Third-Party Provider for services or goods received by you from such Third-Party Provider at the time you receive such services or goods, and Charges you incur will be owed to the Third-Party Provider. WasteWiser™ will respond accordingly to any request from a Third-Party Provider to modify the Charges for a particular service or good. This payment structure is intended to fully compensate a Third-Party Provider, if applicable, for the services or goods obtained in connection with your use of the Services. In all other cases, Charges you incur will be owed and paid directly to WasteWiser™ or its affiliates, where WasteWiser™ is solely liable for any obligations to Third-Party Providers. In such cases, you retain the right to request lower Charges from WasteWiser™ for services or goods received by you from a Third-Party Provider at the time you receive such services or goods, and WasteWiser™ will respond accordingly to any request from you to modify the Charges for a particular service or good.
5.1 Property Damage, Repairs, or Claims.
You shall be responsible for the cost of repair for normal wear and tear damage to, or necessary cleaning of, dumpsters, gates, and/or enclosures for service Owl™ Monitor and access.
6. Disclaimers; Limitation of Liability; Indemnity.
The services are provided "as is" and "as available." WasteWiser™ disclaims all representations and warranties, express, implied, or statutory, not expressly set out in these terms, including the implied warranties of merchantability, fitness for a particular purpose and non-infringement. In addition, WasteWiser™ makes no representation, warranty, or guarantee regarding the reliability, timeliness, quality, suitability, or availability of the services or any services or goods requested through the use of the services, or that the services will be uninterrupted or error-free. WasteWiser™ does not guarantee the quality, suitability, safety or ability of third-party providers. You agree that the entire risk arising out of your use of the services, and any service or good requested in connection therewith, remains solely with you, to the maximum extent permitted under applicable law.
6.2 Limitation of liability.
WasteWiser™ shall not be liable for indirect, incidental, special, exemplary, punitive, liquidated, or consequential damages, including lost profits, lost data, personal injury, or property damage related to, in connection with, or otherwise resulting from any use of the services, regardless of the negligence (either active, affirmative, sole, or concurrent) of WasteWiser™, even if WasteWiser™ has been advised of the possibility of such damages.
WASTEWISER™ SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF: (a) YOUR USE OF OR RELIANCE ON THE SERVICES OR YOUR INABILITY TO ACCESS OR USE THE SERVICES; OR (b) ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND ANY THIRD-PARTY PROVIDER, EVEN IF WASTEWISER™ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WASTEWISER™ SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND WASTEWISER’S™ REASONABLE CONTROL. YOU ACKNOWLEDGE THAT THIRD-PARTY PROVIDERS PROVIDING COLLECTION AND WASTE RELATED SERVICES REQUESTED THROUGH SOME REQUEST PRODUCTS MAY OFFER SERVICES AND MAY NOT BE PROFESSIONALLY LICENSED OR PERMITTED.
The services may be used by you to request and schedule Owl™ Monitor data, collection services, repairs, transportation, goods, or logistics services with third-party providers, but you agree that WasteWiser™ has no responsibility or liability to you related to any goods and/or services provided to you by third-party providers other than as expressly set forth in these terms.
The limitations and disclaimer in this section do not purport to limit liability or alter your rights as a consumer that cannot be excluded under applicable law. Because some states or jurisdictions do not allow the exclusion of or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, WasteWiser’s™ liability shall be limited to the extent permitted by law. This provision shall have no effect on WasteWiser’s™ choice of law provision set forth below.
You agree to indemnify and hold WasteWiser™ and its affiliates and their officers, directors, employees, and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys' fees), arising out of or in connection with: (a) your use of the Services or services or goods obtained through your use of the Services; (b) your breach or violation of any of these Terms; (c) WasteWiser’s™ use of your User Content; or (d) your violation of the rights of any Third-Party, including Third-Party Providers.
7. Other Provisions.
7.1 Choice of Law.
These Terms are governed by and construed in accordance with the laws of the Territory of Puerto Rico, without giving effect to any conflict of law principles, except as may be otherwise provided in the Arbitration Agreement above or in supplemental terms applicable to your region. However, the choice of law provision regarding the interpretation of these Terms is not intended to create any other substantive right to non-residents of Puerto Rico to assert claims under Puerto Rico law whether that be by statute, common law, or otherwise. These provisions, and except as otherwise provided in Section 2 of these Terms, are only intended to specify the use of Puerto Rico law to interpret these Terms and the forum for disputes asserting a breach of these Terms, and these provisions shall not be interpreted as generally extending Puerto Rico law to you if you do not otherwise reside in Puerto Rico. The foregoing choice of law and forum selection provisions do not apply to the arbitration clause in Section 2 or to any arbitrable disputes as defined therein. Instead, as described in Section 2, the Federal Arbitration Act shall apply to any such disputes.
7.2 Claims of Copyright Infringement.
Claims of copyright infringement should be sent to WasteWiser™ as identified in paragraph 1 above.
WasteWiser™ may give notice by means of a general notice on the Services, electronic mail to your email address in your Account, telephone or text message to any phone number provided in connection with your account, or by written communication sent by first class mail or pre-paid post to any address connected with your Account. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email or telephone). You may give notice to WasteWiser™, with such notice deemed given when received by WasteWiser™, at any time by first class mail or pre-paid post to our registered agent for service of process, c/o WasteWiser™.
You may not assign these Terms without WasteWiser’s™ prior written approval. WasteWiser™ may assign these Terms without your consent to: (a) a subsidiary or affiliate; (b) an acquirer of WasteWiser’s™ equity, business or assets; or (c) a successor by merger. Any purported assignment in violation of this section shall be void. No joint venture, partnership, employment, or agency relationship exists between you, WasteWiser™ or any Third-Party Provider as a result of this Agreement or use of the Services. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. WasteWiser’s™ failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by WasteWiser™ in writing. This provision shall not affect the Severability and Survivability section of the Arbitration Agreement of these Terms.
8. WasteWiser™ Terms of Service.
8.1 Exclusive Use.
Your account is for your personal use only. You may not authorize others to use your account, and you may not assign or otherwise transfer your account to any other person or entity, except if previously agreed to by us. You acknowledge that WasteWiser™ is not responsible for Third-Party access to your account that results from theft or misappropriation of your usernames and passwords.
8.2 Reverse Engineering and Non-Interference.
In addition to any WasteWiser™ information or documents containing information that constitute a “trade secret” as that term is defined in the Uniform Trade Secrets Act as of September 16, 2015, the following will be deemed trade secrets of WasteWiser™ and you will treat the following as our trade secrets to the extent they have not been made public by us: (a) all source code, data and configuration files within or comprising our Services or used to receive content from, or deliver content to the Services, and all documentation relating thereto; (b) all financial information relating to WasteWiser™ or its affiliates; and (c) all Service plans of WasteWiser™ or its affiliates. By consenting to the terms of this Agreement, you acknowledge and agree that such information has independent economic value due to it not being generally known or available to others, and that WasteWiser™ takes reasonable measures to protect the confidentiality and secrecy of such information. You agree not to, and warrant and represent that you will not, engage in any activity, assist any Third-Party in engaging in any activity, or attempt in any way, or assist any Third-Party in attempting in any way, to: (d) discover or use any trade secrets of WasteWiser™ without WasteWiser’s™ prior written consent; (e) reverse engineer or otherwise discover any source code utilized by our Services or any client or other software provided by us; or (f) breach, discover, circumvent, disable or otherwise compromise any security, encryption, password protection, or other feature or mechanism used by us or our Services to protect the Services or any data, hardware, software or server used in connection with it.
8.3 Linking, crawling and framing.
You agree not to, and warrant and represent that you will not assist any Third-Party in engaging in any activity or attempting in any way, to reproduce, in whole or in part, any content provided by the Services through any method (including without limitation, through copying, caching or framing), unless such access is expressly permitted in a written agreement executed by WasteWiser™.
9. Proprietary Rights.
9.1 Ownership of Proprietary Information.
You hereby acknowledge and agree that WasteWiser™ is the owner or licensee of highly valuable proprietary information accessible on or through the Services, including without limitation, the services matching system, waste delivery profiles, and our service analysis and pricing information (collectively, "Confidential Information"). WasteWiser™ and/or its affiliates own and hereby retain all proprietary rights in the Services, including but not limited to, all Confidential Information.
9.2 No Use of Confidential Information.
You will not post, copy, modify, transmit, disclose, show in public, create any derivative works from, distribute, make commercial use of, or reproduce in any way any (a) Confidential Information or (b) other copyrighted material, trademarks, or other proprietary information accessible via the Services, without first obtaining the prior written consent of the owner of such proprietary rights.
9.3 Other Users' Information.
Other Registered Users may post information, which has copyright protection whether or not it is identified as copyrighted. You agree that you will not copy, modify, publish, transmit, distribute, perform, display, commercially use, or sell any WasteWiser™ or third-party proprietary information available via the Services.
9.4 License to Posted or Accessed Content.
By posting information or content to any public area of the Services, or making it accessible to us by linking your WasteWiser™ account to any of your social network accounts (e.g. via Continue with Facebook or Google) subject to applicable privacy laws as they relate to any information contained therein, you automatically grant, and you represent and warrant that you have the right to grant, to WasteWiser™ and its affiliates and users, an irrevocable, perpetual, non-exclusive, fully-paid, worldwide license to use, reproduce, perform, publicly display, modify and distribute such information and content, and to prepare derivative works of, or incorporate into other works, such information and content, and to grant and authorize sub-licenses of the foregoing. From time to time, we may create, test or implement new features or programs on the Services in which you may voluntarily choose to participate or may be a part of a test group with special access, in accordance with the additional terms and conditions of such features or programs. By your participation in such features or programs, you grant us the rights and waive certain other rights stated in this subsection in connection with the additional terms and conditions (if any) of such features or programs.
10. User Information.
10.1 Privacy Statement.
10.2 Disclosure by Law.
10.3 Use of Anonymous Information for Research.
11. Links to Third-Party Web Sites / Dealings with Advertisers and Sponsors.
12. Disclaimer of Warranty.
12.1 No Warranties or Conditions.
This section will apply to the maximum extent permitted by applicable law and subject always to clause 6, 7, 13, and 14 (limitations of liability) herein. WasteWiser™ provides the services on an "as is" and "as available" basis and makes no and disclaims all representations, warranties and conditions of any kind, whether express, implied, statutory, collateral or otherwise with respect to the services (including all content and information contained therein), including any implied warranties of merchantability, fitness for a particular purpose or non-infringement. WasteWiser™ does not represent or warrant that your use of the services will be secure, uninterrupted, always available, free of errors, viruses, bugs or other harmful components, or will meet your requirements, or that any defects in the services will be corrected. WasteWiser™ disclaims liability for, and no representation, warranty or condition is made with respect to, the connectivity and availability of the services. Without limiting the foregoing, you acknowledge and agree that no software or website can be entirely secure or free of risk of security breaches or attacks by third parties, and that we make no warranty or representation that our services will be secure or free from data breaches or cyber-attacks.
12.2 Third-Party Content.
Opinions, advice, statements, offers, or other information or content made available through the services, but not directly by WasteWiser™, are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content. WasteWiser™ does not: (a) guarantee the accuracy, completeness or usefulness of any information provided on or accessed via the services, or (b) adopt, endorse or accept responsibility for the accuracy or reliability of any opinion, advice, or statement made by any party other than WasteWiser™. To the fullest extent permitted by law, under no circumstances will WasteWiser™ be responsible for any loss or damage resulting from anyone's reliance on information or other content posted on the services, or transmitted to or by any users.
12.3 Beta Features.
From time to time, WasteWiser™ may offer new "beta" features or tools with which its users may experiment on the Services. Such features or tools are offered solely for experimental purposes and without any representation, warranty or conditions of any kind, and may be modified or discontinued at WasteWiser’s™ sole discretion. The provisions of this Disclaimer of Warranties and Conditions section apply with full force to such features or tools.
13. Limitation of Liability.
13.1 Limitation of Damages and Aggregate Liability.
To the maximum extent permitted by applicable law, in no event will WasteWiser™ be liable for any incidental, special, consequential or indirect damages arising out of or relating to the use or inability to use the services, including, without limitation, damages for loss or corruption of data or programs, service interruptions and procurement of substitute services, even if WasteWiser™ knows or has been advised of the possibility of such damages. To the maximum extent permitted by applicable law, under no circumstances will WasteWiser’s™ aggregate liability, in any form of action whatsoever in connection with this agreement or the use of the services or the site, exceed the price paid by you for your account, or, if you have not paid WasteWiser™ for the use of any services, the amount of $25.00 USD or its equivalent.
13.2 No Liability for non-WasteWiser™ Actions.
To the maximum extent permitted by applicable law, in no event will WasteWiser™ be liable for any damages whatsoever, whether punitive, exemplary, direct, indirect, general, special, compensatory, consequential, and/or incidental, arising out of or relating to the conduct of you or anyone else in connection with the use of the services, including without limitation, bodily injury, death, emotional distress, and/or any other damages resulting from services, communications, or meetings with registered providers of the services. This includes any claims, losses or damages arising from the conduct of users who have registered under false pretenses or who attempt to defraud or harm you.
13.3 Information Verification.
WasteWiser™ may but is not required to use various ways of verifying information that users have provided. However, none of those ways are perfect, and you agree that WasteWiser™ will have no liability to you arising from any incorrectly verified information.
To the maximum extent permitted by law, you agree to indemnify, defend and hold harmless WasteWiser™ and its affiliates and/or related entities, whether direct or indirect, current, former or future, and its and their respective current, former or future officers, directors, employees, agents, successors and assigns and related third parties (each an “Indemnified Party”), for any claims, causes of action, debts, damages, losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any Third-Party claim that (a) your use of or inability to use the Services, (b) any user postings made by you, (c) your violation of any terms of this Agreement or your violation of any rights of a Third-Party, or (d) your violation of any applicable laws, rules or regulations, except to the extent caused by any unlawful or negligent act or omission by WasteWiser™. WasteWiser™ reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with WasteWiser™ in asserting any available defenses. An Indemnified Party may participate in the defense by counsel of its own choosing, at its own cost and expense. You shall not settle any claim that adversely affects an Indemnified Party or imposes any obligation or liability on an Indemnified Party without the Indemnified Party’s prior written consent.
To the maximum extent permitted by law, you hereby release each indemnified party from all damages (whether direct, indirect, incidental, consequential or otherwise), losses, liabilities, costs and expenses of every kind and nature, known and unknown, arising out of or in connection with disputes between you and third parties concerning the services or this agreement. In connection with the foregoing release which substantially states: “a general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his settlement with the debtor.”
15. Communication and Privacy.
16. Term and Termination.
This Agreement will become effective upon your acceptance of the Agreement by your use of the Services and will remain in effect in perpetuity unless terminated hereunder.
Subscriber shall be responsible for and shall pay to WasteWiser™ the fees set forth in the Service Agreement/Service Contract, subject to the terms and conditions contained in this Agreement. Any sum due to WasteWiser™ for the Services for which payment is not otherwise specified in the invoice or in the Service Agreement shall be due and payable on the date of the invoice. Any terms and conditions set forth in any Subscriber purchase order shall be for convenience only and shall not be binding upon the parties.
WasteWiser™ reserves the right to immediately suspend or terminate your access to any of the Services, without notice, for any reason or no reason. We also reserve the right to remove your account information or data from our Services and any other records if your account and/or access to the Services is terminated. In the event your access to any of the Services is suspended due to a material breach of this Agreement, you agree that all fees then paid to WasteWiser™ by you will be nonrefundable.
The term of this Agreement shall begin on the date of execution of the Service Agreement and shall continue for the duration specified in the Service Agreement, the “Initial Term”. Following the Initial Term, this Agreement shall automatically renew for recurring one (1) year terms, each a “Renewal Term” and together with the Initial Term, the “Term”, until such time as a Subscribing party provides the other party with written notice of termination.
WasteWiser™ reserves the right to suspend delivery of the Services if Subscriber fails to timely pay any undisputed amounts due to WasteWiser™ under this Agreement, but only after WasteWiser™ notifies Subscriber of such failure and such failure continues for thirty (30) days after such notice.
Either party may terminate this Agreement immediately if the other party materially breaches any of its duties or obligations hereunder and such breach is not cured, or the breaching party is not diligently pursuing a cure to the non breaching party’s sole satisfaction, within forty-five (45) calendar days after written notice of the breach by the non-breaching party.
If either party (a) files for bankruptcy, (b) is declared insolvent, or is the subject of any proceedings related to its liquidation, insolvency or the appointment of a receiver or similar officer for it, (c) makes an assignment for the benefit of all or substantially all of its creditors, or (d) enters into an agreement for the composition, extension or readjustment of substantially all of its obligations, then the other party may, by giving written notice to the first party, terminate this Agreement as of a date specified in such notice; provided, however, that neither party shall have the right to terminate this Agreement so long as the other continues to perform without interruption or a noticeable diminution in its performance hereunder.
In order to provide continuous service, WasteWiser™ automatically renews all paid subscriptions for the services on the date such subscriptions expire unless you cancel at least 60 days before the end of your current term. We always communicate renewal periods to you, before you finalize the purchase of your subscription, upon confirmation of purchase, and if applicable in your jurisdiction, in an email reminder at least 90 days prior to the effective renewal date. By entering into this agreement, you acknowledge that your account will be subject to the above-described automatic renewals. In connection with any renewal, you agree and authorize us to charge you applicable charges, including applicable installment fees, sales or other related taxes to which your subscription may be subject and which may vary from time to time. In all cases, if you do not wish your account to renew automatically, please follow the directions set out under "Cancellations” contained in paragraph 18 herein.
Except as otherwise stated in these terms of service, you may cancel your registration or subscription to any Service at any time during the term of such registration or subscription or any renewal period. In such case, your subscription will terminate at the end of the subscription term for which you have paid, and you will not receive any refund for any unused days of such subscription term. If you purchase a subscription on an installment payment basis, cancellation will not affect your obligation to pay the total contractual amount due on your subscription. You will continue to be charged the scheduled payments until the remaining balance is paid in full. You may cancel your subscription by visiting: https://www.wastewiser.com/my/home
19. Governing Law & Venue.
Unless prohibited by local law, this Agreement is governed by the laws of Puerto Rico, without giving effect to any principles of conflicts of laws. Notwithstanding the foregoing, this Agreement shall be governed by the Federal Arbitration Act. Nothing in this Agreement is intended to limit a party’s right to seek equitable relief at any time. If the Arbitration Agreement is held to be unenforceable, you agree that any claims or disputes that you have against us must be resolved in the Federal or Territorial Courts located in Puerto Rico to the extent permissible by applicable law. For the sake of clarity, the choice of Puerto Rico law shall not exclude, limit or supersede a consumer’s rights or remedies under mandatory consumer protection laws in the jurisdiction where the consumer resides.
20. General Provisions.
20.1 Right to Seek Injunction.
Violation of this Agreement may cause WasteWiser™ irreparable harm, and therefore agree that WasteWiser™ will be entitled to seek extraordinary relief in court, including but not limited to temporary restraining orders, preliminary injunctions and permanent injunctions without the necessity of posting a bond or other security, in addition to and without prejudice to any other rights or remedies that WasteWiser™ may have for a breach of this Agreement.
21. Revision Date.
This Agreement was last revised on September 1, 2020.
Copyright © 2020 WasteWiser™, All Rights Reserved. WasteWiser™ and other marks, colors, and images are registered and common law trademarks of WasteWiser™ and or its entities and affiliates and other trademarks and brands are the property of their respective owners.
22. Owl™ Monitor and Services.
This Agreement governs the use by Customer of Owl™ Monitors and the services provided in connection therewith, collectively the “Services” during the “Term” (as defined herein) of this Agreement.
Subscriber or WasteWiser™ shall install and maintain the Owl™ Monitor(s). If Subscriber desires WasteWiser™ to install Owl™ Monitors, Subscriber will provide access to its facilities including, but not limited to, dumpsters owned, rented, leased, and or serviced on behalf of Subscriber, for the installation and maintenance of the Owl™ Monitor subject to a previous agreement with WasteWiser™. In any eventuality, subsequent to installation of Owl™ Monitor(s), Subscriber recognizes WasteWiser’s™ exclusive access to perform remote Owl™ Monitoring, updates, firmware adjustments, data access, and collection contracting to provide the Subscriber the Services outlined herein.
WasteWiser™ hereby grants to Subscriber a nonexclusive, non-assignable, royalty-free, worldwide right to access and use the Services solely for its internal business operations subject to the terms of this Agreement during the Term. WasteWiser™ shall provide bug fixes, corrections, and modifications, of the Services to ensure: (a) the functionality of the Services is available to Authorized Users (as defined below); and (b) the functionality of the Services in accordance with the description, representations and warranties set forth herein.
23. Authorized Users.
WasteWiser™ grants Subscriber a nonexclusive, non-assignable, royalty-free, and worldwide right for Authorized Users (each, an “Authorized User”) to access and use the Services. Subscriber shall be solely responsible for the acts and omissions of the Authorized Users when using the Services and WasteWiser™ shall not be liable for any loss of data or functionality caused directly or indirectly by an Authorized User.
WasteWiser™ will require Subscriber to enroll with a user name(s) and password(s) (“Log-In Information”) to access and use the Services. Services information can only be used by Authorized User(s) and cannot be transferred, disseminated, and/or shared without written consent from WasteWiser™. Subscriber(s) are responsible for maintaining the confidentiality of the Log-In Information and are responsible for all activities occurring under such Log-In Information. Subscriber shall take reasonable steps to prevent unauthorized access to the Services, including without limitation by protecting its Log-In Information and Subscriber shall immediately notify WasteWiser™ of any unauthorized use of an Authorized User’s Log-In Information or any other breach of security with respect to Log-In Information.
24. Control and Location of Owl™ Monitor and Services.
The method and means of installing and maintaining the Owl™ Monitor and providing the Services shall follow guidelines required by WasteWiser™ to ensure the ability to accurately and reliably collect and transmit information to meet reporting needs of Subscriber.
Subscriber shall not, and shall not permit anyone to: (a) copy or republish the Services, (b) make the Services available to any person other than Authorized Users, (c) use or access the Services to provide service bureau, timesharing or other computer hosting services to third parties, (d) modify or create derivative works based upon the System, (e) remove, modify or obscure any copyright, trademark or other proprietary notices contained in the software used to provide the Services or on the Owl™ Monitor, (f) reverse engineer, decompile, or disassemble the System, or (g) access the System in order to build a similar product or competitive product.
WasteWiser™ may upgrade, modify, replace, or reconfigure the Services at any time provided that any such revision shall not materially reduce the functionality of the Services. If WasteWiser™ adds new functions or new features to the Services, such functionality or new features shall be available to Subscriber; provided that additional fees may be applicable for such increased functionality or new features.
Authorized Users may request technical support regarding the Services via electronic mail at WasteWiser.com twenty-four (24) hours per day, seven (7) days per week. WasteWiser™ shall respond to such requests within twenty-four (24) hours. WasteWiser™ will use commercially reasonable efforts to keep the Services available via website access on a twenty-four (24) hours per day, seven (7) days per week basis, subject to occasional scheduled downtime for maintenance purposes during non-working hours and downtime for unforeseen maintenance and service upgrades for short periods of time.
25. Subscriber Responsibilities.
Subscriber shall provide commercially reasonable information and assistance to WasteWiser™ to enable WasteWiser™ to deliver the Services. Such information and assistance shall include, but not be limited to: (a) access to Subscriber’s software system(s) to the extent necessary to install and deploy the Services if required; (b) WasteWiser’s™ ability to deliver Services in the manner provided in this Agreement depends upon the accuracy and timeliness of Subscriber’s information and assistance; (c) portal access and log-in information for Subscribers’ waste vendors’ invoicing. Subscriber agrees to provide the necessary electric service, wiring, computer Owl™ Monitor, and communication lines, including broadband internet service, as required to access the Services. If any dumpster(s) onto which Owl™ Monitor will be installed is (are) not owned by Subscriber, Subscriber is responsible for obtaining permission for the installation of the Owl™ Monitor.
26. Representations and Warranties.
Each of Subscriber and WasteWiser™ represent and warrant that (a) it is a business duly incorporated, validly existing, and in good standing under the laws of its State or Territory of incorporation; (b) it has all requisite corporate power and authority to execute, deliver, and perform its obligations under this Agreement; and (c) the execution, delivery, and performance of this Agreement has been duly authorized by it and this Agreement constitutes the legal, valid, and binding agreement of it and is enforceable against it in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganizations, moratoriums, and similar laws affecting creditors’ rights generally and by general equitable principles.
Subject to the limited rights granted herein, WasteWiser™ and/or its parents, and affiliates shall own all right, title and interest, including all copyright, patent, trademark, trade secret rights, and other intellectual property rights therein, in (a) the System, (b) any deliverables provided by WasteWiser™ to Subscriber in connection with the System, and (c) any modifications, derivatives, updates, releases, and versions of the System and such deliverables, and all copies, in any form, of all or any part thereof (“WasteWiser™ Property”), even if suggestions made by Subscriber or based upon input from Subscriber or any person permitted access to the WasteWiser™ Property are incorporated into subsequent versions of the WasteWiser™ Property.
28. Subscriber Data.
“Subscriber Data” shall mean the data collected, used, processed, stored, or generated as the result of Subscriber’s use of the Services. Subscriber Data shall remain the sole and exclusive property of WasteWiser™.
Subject to the terms of this Agreement, Subscriber hereby grants to WasteWiser™ a limited, non-exclusive license to copy, collect, process, store, generate, and display the Subscriber Data to the extent necessary to provide the Services and to monitor and improve the performance of the System. WasteWiser™ may use, reproduce, sell, publicize, or otherwise exploit Aggregate Data in any way, in its sole discretion. “Aggregate Data” refers to Subscriber Data that is aggregated and anonymized with all personally identifiable information regarding Subscriber removed.
As a part of the Services, WasteWiser™ shall maintain a backup of Subscriber Data for an orderly and timely recovery of such data in the event that the Services are interrupted.
In the event of any act, error or omission, negligence, misconduct, or breach by WasteWiser™ that compromises or is suspected to compromise the security, confidentiality, or integrity of Subscriber Data or the physical, technical, administrative, or organizational safeguards put in place by WasteWiser™ that relate to the protection of the security, confidentiality, or integrity of Subscriber Data, WasteWiser™ shall, as applicable: (a) notify Subscriber as soon as practicable; and (b) cooperate with Subscriber in investigating the occurrence; and (c) perform or take any other actions required to comply with applicable law as a result of the occurrence.
29. Disclaimers; Indemnification; Limitation of Liability.
Except as explicitly set forth herein, the system is delivered “as is,” and WasteWiser™ makes no representations or warranties, whether express, implied, statutory, or otherwise, including, without limitation, the implied warranties of fitness for a particular purpose, merchantability, title and non-infringement. Subscriber acknowledges that subscriber is responsible for determining the appropriateness of the system for subscriber’s intended application and use. WasteWiser™ does not warrant that the system will operate error free and will not be liable for corruption or erasure of subscriber data transmitted or received or stored on any third-party or internet service provider system which is beyond its control. WasteWiser™ will not be liable to subscriber for any claims, losses or damages which may be suffered by subscriber resulting from the loss of subscriber data, inability to access the internet, or inability to transmit or receive information, caused by delays, non-delivery, or service interruptions due to circumstances not in the direct control of WasteWiser™ such as, but not limited to, subscriber’s Owl™ Monitor capabilities, telecommunications failures or internet service provider limitations or failures.
30. Mutual Indemnification.
Subject to the limitations set forth in this Section 31, each party agrees to indemnify and save harmless the other party, its officers, directors, agents, and employees from and against any and all liabilities, damages, losses, expenses, claims, demands, suits, fines or judgments (each a “Claim” and collectively, the “Claims”), including, reasonable attorneys’ fees, costs, and expenses incidental thereto, arising from (a) any breach of their respective representations or warranties or covenants under this Agreement; or (b) bodily injury (including death) or damage to tangible personal or real property; provided however the foregoing indemnity set forth in Section shall not apply to the extent that the applicable Claim results from the acts or omissions of any of the party seeking indemnification.
31. Proprietary Rights Indemnification.
Subscriber agrees to indemnify, defend, and hold harmless WasteWiser™ from and against any and all Claims, including reasonable attorneys’ fees, costs, and expenses incidental thereto, which may be suffered by, incurred by, accrued against, charged to, or recoverable from Subscriber, by reason of any Claim arising out of or relating to the Services infringing or misappropriating any patent, copyright, trade secret, trademark, or other proprietary right. WasteWiser™ shall have no liability for any claim based on any modification of the Services not authorized by WasteWiser™, or use of the Services other than in accordance with the terms of this Agreement. If any Claim is made, or in WasteWiser’s™ reasonable opinion is likely to be made, WasteWiser™ may, at its sole option and expense, procure for Subscriber the right to continue use of the Services, modify the Services in a manner that does not materially impair the functionality, or terminate this Agreement and repay to Subscriber prepaid fees for Services not yet provided as of the date of termination.
32. Indemnification Procedures.
A party seeking indemnification under this section shall (a) promptly notify the other party of the Claim, provided that failure to give or delay in giving such notice shall not relieve the indemnifying party of any liability it may have to the other party except to the extent that the defense of the Claim is prejudiced thereby; (b) give the indemnifying party sole control of the defense and settlement of the Claim; and (c) reasonably cooperate with the indemnifying party in defending against or settling a Claim; provided, however, that the indemnifying party shall reimburse such party for all reasonable out-of-pocket costs incurred by the other party (including, without limitation, reasonable attorneys’ fees and expenses) in providing such cooperation.
33. Limitation of Liability.
Notwithstanding any other provision set forth herein, neither party shall be liable for any indirect, incidental, special, and / or consequential damages, including without limitation damages for lost profits, data, or use of the system, incurred by either party or any third-party in connection with this agreement; provided, however, that the foregoing exculpation of liability shall not apply with respect to damages incurred as a result of the willful misconduct of a party. Neither party’s aggregate liability for damages under this agreement, whether based on an action or claim in contract, equity, negligence, tort, or otherwise for all events, acts, or omissions under this agreement shall not exceed the fees paid or payable under this agreement during the twelve (12) months preceding the date of the claim.
34. Relationship of Parties.
The parties are independent contractors under this Agreement and no other relationship is intended, including a partnership, franchise, joint venture, agency, employer/employee, fiduciary, master/servant relationship, or other special relationship. Neither party shall act in a manner which expresses or implies a relationship other than that of independent contractor, nor bind the other party.
35. Force Majeure; Excused Performance.
Neither party shall be liable for delays or any failure to perform the Services or this Agreement due to causes beyond its reasonable control. Such delays include, but are not limited to, fire, explosion, flood or other natural catastrophe, governmental legislation, acts, orders, or regulation, strikes or labor difficulties, to the extent not occasioned by the fault or negligence of the delayed party. Any such excuse for delay shall last only as long as the event remains beyond the reasonable control of the delayed party. However, the delayed party shall use its best efforts to minimize the delays caused by any such event beyond its reasonable control. The delayed party must notify the other party promptly upon the occurrence of any such event, or performance by the delayed party will not be considered excused pursuant to this section, and inform the other party of its plans to resume performance.
36. No Waiver.
The failure of either party at any time to require performance by the other party of any provision of this Agreement shall in no way affect that party’s right to enforce such provisions, 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.
All notices, requests, demands and other communications hereunder shall be effective if in writing and delivered personally or sent by facsimile, electronic mail, Federal Express or other priority delivery service, or by certified or registered mail, postage prepaid, to the applicable party at the addresses indicated on the signature page of this Agreement. Unless otherwise specified herein, such notices or other communications shall be deemed effective (a) on the date delivered, if delivered personally, (b) two (2) business days after being sent, if sent by Federal Express or other priority delivery service, (c) on the date of delivery if delivered sent by facsimile or electronic mail during normal business hours of the recipient and on the next business day if after normal business hours of the recipient, and (d) five (5) business days after being sent, if sent by registered or certified mail. Either party may specify another address by giving notice as provided in this Section 11.5 to the other party. A copy of all notices sent to WasteWiser™ shall be sent to WasteWiser, c/o JACS LLC, 53 Calle Palmeras, Suite 601, San Juan, PR 00901.
38. Assignment of Agreement.
Neither party may assign its rights or obligations hereunder without the prior consent of the other party; provided however that, a party may assign this Agreement in connection with a merger or acquisition of the assigning party, to an entity that acquires all or substantially all of the assigning party’s assets or its business that is the subject hereof, or to any subsidiary or parent company.
39. Counterparts; Facsimile.
If not otherwise executed via WasteWiser’s™ web ordering portal interface during purchase or as a condition precedent to engaging in the use of WasteWiser’s™ website at www.wastewiser.com, this Agreement may otherwise be executed in two or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument and shall become binding when one or more counterparts, individually or taken together, shall bear the signatures of all the parties. Each counterpart may be delivered by facsimile transmission or e-mail (as a .pdf, .tif or similar attachment), which transmission shall be deemed delivery of an originally executed counterpart hereof.
40. Entire Agreement; Amendment.
This Agreement and its attached exhibits constitute the entire agreement between the parties and supersede any and all previous representations, understandings, or agreements between Subscriber and WasteWiser™ as to the subject matter hereof. Regardless of the preceding sentence, the parties understand and agree that any non-disclosure agreement entered by the parties prior to the Effective Date shall remain in full force and effect. Any waiver, amendment or other modification of any provision of this Agreement will be effective only if in writing and signed by the parties.
If for any reason a court of competent jurisdiction finds any provision of this Agreement to be unenforceable, that provision of the Agreement will be enforced 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.
42. Subscriber Information.
42.1 Subscriber Agreement.
The installation of Owl™ Monitor and deployment of the Services is dependent upon the delivery of the Subscriber Information listed in the Subscriber Agreement between the Subscriber and WasteWiser™.
42.2 Effect of Delayed or Inaccurate Subscriber Information.
The installation and deployment of the Minimum Commitment may be paused or delayed if the Subscriber Information is inaccurate, out of date, or incorrect, if there is a delay in providing such Subscriber Information, or if the Subscriber Information is not provided in the template and format provided below. In such event, WasteWiser™ will install and deploy the Services to the maximum extent of the Minimum Commitment possible. For example, if the location information for some dumpsters is inaccurate, WasteWiser™ may install Owl™ Monitors in those dumpsters for which the location information is accurate while Subscriber updates the location information for the other dumpsters. The Deployment Date shall be the first day the Services are accessible to Subscriber even if the entire Minimum Commitment is not installed and deployed. WasteWiser™ shall notify Subscriber of such Deployment Date and the first Installment Term shall begin on such Deployment Date. Such policy will apply if Subscriber expands the Minimum Commitment to any additional geographic areas or additional dumpsters.
42.3 Subscriber Contact Person.
Subscriber’s contact person shall be capable of answering technical questions regarding Subscriber’s software systems and functionality and shall have the authority to authorize and/or implement changes to Subscriber’s software systems.