Last Updated: January 14, 2020
THIS NETWORK TERMS OF SERVICE (“AGREEMENT”) ALLOWS YOU, AND THE COMPANY YOU REPRESENT, (TOGETHER, “USER”) TO ACCESS AND USE THE ‘OPEN FOOD AND BEVERAGE COMMERCE NETWORK’ (“SERVICE”) PROVIDED BY Project Waste Not, INC. (“Project Waste Not”). THE SERVICE (AS DEFINED) ALSO INCLUDES ANY ASSOCIATED PRODUCTS AND SERVICES PROVIDED BY PROJECT WASTE NOT (SUCH AS APPLICATION PROGRAM INTERFACES). ACCESS TO, OR USE OF, THE SERVICE CONSTITUTES USER’S AGREEMENT TO THIS AGREEMENT. FOR CONSIDERATION THE PARTIES DEEM SUFFICIENT, THEY HEREBY AGREE TO THE FOLLOWING:
1. THE SERVICE.1.1. Provision of the Service. Project Waste Not will provide User with the Service on a remote, software-as-a-service basis (except as set forth herein). Ancillary instructions or advice provided by Project Waste Not will be deemed part of the “Service”. If agreed to by the parties in a schedule, statement or work, purchase order, letter of engagement, or email, Project Waste Not may also provide User with related specific consulting services (“Consulting Services”). The Service and Consulting Services may be adjusted at any time by Project Waste Not, but if any adjustments that will have a material adverse effect on, User may terminate this Agreement on five (5) days written notice.
1.2. Access to the Service. User may access and use the Service solely for its own business purposes and only in accordance with the terms and conditions of this Agreement and any end user technical documentation provided by Project Waste Not (“Documentation”). If User is given passwords to access Service, User shall keep such password strictly confidential and not share such information with any third party. User shall be responsible for any and all actions taken using User’s accounts and passwords (other than taken by Project Waste Not or any third party acting on Project Waste Not’s behalf). Unless otherwise agreed to by the parties, there are no fees associated with this Agreement. If due, fees are payable within fifteen (15) days from the date of invoice (unless another date is agreed to by the parties in writing). Any results of the Consulting Services will only be used by User in conjunction with User’s authorized use of the Service hereunder.
1.3. General Restrictions. User shall not (and shall not allow any third party to): (a) rent, lease, copy, provide access to, or sublicense any part of the Service to a third party; (b) use any Service to provide or incorporate the Service into any product or service provided to a third party, (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code to the Service (provided that, the foregoing restriction on reverse engineering will not apply to the extent prohibited by applicable law - and then only upon advance notice to Project Waste Not), (d) modify any part of the Service or any Documentation, or create any derivative product or service from any of the foregoing, (e) remove or obscure any proprietary or other notices contained in any part of the Service or (f) publicly disseminate information regarding the performance of the Service (such information is Project Waste Not’s Confidential Information (as defined below). All of the foregoing restrictions will also apply to the Documentation.
1.4. APIs. If Project Waste Not provides User with any application programming interface (“API Package”) then, subject to User’s compliance with this Agreement, Project Waste Not hereby grants User a non-sublicensable, non-transferable, nonexclusive license to, during the term of this Agreement, internally use the API Package for the sole purpose of making User’s own platform interoperable with the Service. For the avoidance of doubt, this license does not authorize incorporation or embodiment of any part of the API Package, or any information contained therein, or any other Project Waste Not intellectual property, in or with any product or service. Any API Package keys provided by Project Waste Not will be protected by User to the same extent as Service passwords are protected in Section 1.2 above. Except as set forth above, no rights are granted with respect to the API Package.
2. DATA; INDEMNITY; PRIVACY.
2.1. Generally. A party’s “Data” means all data it provides hereunder. For example, User’s data is the data it inputs into the Service.
2.2. Rights in Data.
2.2.1. As between the parties, each party shall retain all right, title and interest (including any and all intellectual property rights) in and to its Data. User may use Project Waste Not’s Data internally – solely to access and use the Service as authorized herein. User hereby grants to Project Waste Not a non-exclusive, worldwide, royalty-free right to use, copy store, transmit, modify, create derivative works of and display the User Data to the extent reasonably appropriate to provide the Service to User. The foregoing includes the right of Project Waste Not to disclose User’s Data to third parties that are User’s customers or partners or providers or other members of the distribution channel, and other third parties that help facilitate the Service and related transactions (for example, sharing Data with a payment processor to help facilitate Service related payments). Notwithstanding the foregoing, Project Waste Not may use any data loaded into the Service to help further develop the Service (for example, improve its algorithms). In addition, Project Waste Not may disclose such Data – and use Data for any purposes - but only in an aggregated, anonymized form that does not identify User to any third party.
2.2.2. In addition, User may share data with other users and partners and providers and other members of the distribution channel via the Service. Any information exchanged will only be used for the purposes for which it is disclosed. It will not be used by the recipient for any other purposes (such as competitive purposes). The purpose of disclosure may, for example, be as dictated or allowed by the features or function of the Service as implemented by Project Waste Not. Users that share information with each other are each third party beneficiaries to this Agreement as necessary to enforce it against each other. As a recipient of data, User waives any claims against Project Waste Not in connection with the data or any other user.
2.3. Uploads of User Data. User shall be responsible for providing all User Data to the Service and shall provide such User Data in a format consistent with the technical compatibility requirements set forth in the applicable Service Description (or as otherwise specified by Project Waste Not) (“Technical Requirements”). Errors in loading User Data into the Service due to defective media, erroneous data or failure to meet Technical Requirements may be rejected by the Service or may be referred back to User for resolution and Project Waste Not shall have no responsibility for any related impact on the Service.
2.4. Indemnification by User. User shall indemnify, defend and hold harmless Project Waste Not from and against any and all claims, actions, proceedings, demands, costs, damages, losses, liabilities, settlements, costs and expenses (including attorneys’ fees and costs) arising out of or in connection with: (a) its breach of this Agreement, (b) any User Data (including any third party’s use thereof or reliance thereon), (c) any unauthorized or illegal use by User of the Service, or (d) issues caused by products or services used by User (other than those provided by Project Waste Not).
3. OWNERSHIP. User acknowledges that no intellectual property rights are assigned or transferred to User in connection with this Agreement. User is obtaining only a limited right to access and use the Service, and results of the Consulting Services, as set forth above.
4. TERM; TERMINATION
4.1. Term and Termination. This Agreement will begin on the date User accepts it, and survive until terminated as set forth in this Section. Either party may terminate this Agreement on written notice at any time. Email is sufficient. If User terminates this Agreement, the termination notice must be sent to email@example.com.
4.2. Suspension of Service. If Project Waste Not believes User’s use of the Service may damage or harm Project Waste Not’s systems, networks or services, it may suspend this Agreement and User’s access to, and use of, the Service immediately (without notice).
4.3. Effect of Termination. Upon any expiration or termination of this Agreement, (i) User shall immediately cease any and all use of and access to Service and (ii) each party will return to the other party (or destroy) such other party’s Confidential Information (but Project Waste Not may retain Data to exercise the use rights in the last two sentences of Section 2.2.1). Termination of this Agreement is not an exclusive remedy and the exercise of either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
4.4. Survival. The following Sections shall survive any expiration or termination of this Agreement: 1.3, 2.2 (as set forth in Section 4.3), 3, 4.4, 5, 6, 7, and 9. Notwithstanding the foregoing, Project Waste Not may retain data for its business purposes.
5. DISCLAIMER. THE SERVICE, AND ANY CONSULTING SERVICES, ARE PROVIDED “AS IS”. NEITHER PROJECT WASTE NOT NOR ITS LICENSOR, CONTRACTORS OR PROVIDERS MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
6. LIMITATION ON LIABILITY. NEITHER PARTY SHALL BE LIABLE, UNDER ANY LEGAL OR EQUITABLE THEORY OF LAW, WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT FOR ANY (I) INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE, OR (II) AMOUNTS IN THE AGGREGATE IN EXCESS OF US$5,000.00. THIS SECTION SHALL NOT APPLY TO EITHER PARTY’S BREACH OF SECTION 7, OR USER’S BREACH OF ANY SERVICE USE RESTRICTIONS, OR USER’S BREACH OF ANY DATA USE RESTRICTIONS, OR USER’S INDEMNITY OBLIGATIONS. PROJECT WASTE SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES, AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF PROJECT WASTE NOT. PROJECT WASTE NOT WILL NOT BE LIABLE FOR ANY INFORMATION OR DATA PROVIDED BY ANY THIRD PARTY. PROJECT WASTE NOT WILL NOT BE LIABLE FOR ANY ADJUSTMENTS IT MAKES TO THE SERVICE OR CONSULTING SERVICES (INCLUDING REMOVAL OF ANY FEATURES OR FUNCTION).
7. CONFIDENTIAL INFORMATION. Each party agrees that all code, inventions, know-how, business, technical and financial information it obtains (“Receiving Party”) from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. The API Package is Project Waste Not’s Confidential Information. The terms and conditions of this Agreement shall be deemed Confidential Information of Project Waste Not. The Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (iv) is independently developed by employees of the Receiving Party who had no access to such information; or (v) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law. Notwithstanding the foregoing, Data may be disclosed as contemplated by Section 2.2.
8. PUBLICITY. User agrees that Project Waste Not may use User’s name and logo on Project Waste Not’s web site and in Project Waste Not’s promotional materials (e.g., presentations, ads, data sheets, and press releases) or as part of a general list of Users.
9. GENERAL TERMS.
9.1. Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement except upon the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section will be null and void.
9.2. Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
9.3. Governing Law; Jurisdiction and Venue. This Agreement shall be governed by the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. All disputes will be subject to final and binding arbitration in accordance with the rules and procedures of the Judicial Arbitration and Mediation Service, Inc. The arbitration will take place before three arbitrators selected in accordance with such rules and procedures. To the extent the JAMS streamlined rules and procedures are available, they will apply. The decision of the arbitrators is enforceable in any court. If the arbitrators decide that any claim cannot be arbitrated, the claim will be subject to the exclusive jurisdiction of, and venue in, the state and United States federal courts located in San Francisco, California and both parties hereby submit to the personal jurisdiction of such courts.
9.4. Notice. Any notice or communication required or permitted under this Agreement shall be in writing to the parties at the addresses provided by the parties in writing or at such other address as may be given in writing by either party to the other in accordance with this Section and shall be deemed to have been received by the addressee (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail.
9.5. Amendments; Waivers. Project Waste Not may amend this Agreement at any time. It will provide User with at least thirty (30) days advance notice via writing, email, or Service notice. In such event, User may terminate this Agreement on ten (10) day written notice (but Project Waste Not will have no liability with respect to the amendment or subsequent termination).
9.6. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement.
9.7. Subcontractors. Project Waste Not may use the services of subcontractors for performance of services under this Agreement, provided that Project Waste Not remains responsible for (i) compliance of any such subcontractor with the terms of this Agreement and (ii) for the overall performance of Service as required under this Agreement.
9.8. Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.