BY CLICKING TO ACCEPT OR AGREE TO THESE TERMS OR BY ACCSESING OR USING THE CURBCYCLE PLATFORM, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER/OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE CURBCYCLE PLATFORM AND DELETE IT FROM YOUR MOBILE DEVICE.
- License Grant. Subject to the terms of this Agreement, Company grants you a limited, non-exclusive, and nontransferable license to:
- download, install, and use the CurbCycle Platform on a single mobile device owned or otherwise controlled by you (“Mobile Device”) strictly in accordance with the CurbCycle Platform’s documentation, and strictly in accordance with the instructions of a third party of which you are an employee or independent contractor (“Employer”) in order to provide pick up services for waste and other discarded objects (“Pickup Service”).
- License Restrictions. Licensee shall not:
- copy the CurbCycle Platform, except as expressly permitted by this license;
- modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the CurbCycle Platform;
- reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the CurbCycle Platform or any part thereof;
- remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the CurbCycle Platform, including any copy thereof;
- rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the CurbCycle Platform, or any features or functionality of the CurbCycle Platform, to any third party for any reason, including by making the CurbCycle Platform available on a network where it is capable of being accessed by more than one device at any time; or
- remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the CurbCycle Platform.
- Relationship of Parties. The relationship between the parties under this Agreement is that of licensor and licensee of the CurbCycle Platform. You further agree and acknowledge that:
- Your Employer has entered into a separate Service Provider Agreement with Company, and that your access to and use of the CurbCycle Platform is pursuant to your Employers instructions and rights to use the CurbCycle Platform under that Service Provider Agreement.
- This Agreement is not an employment agreement, nor does it create an employment relationship, independent contractor relationship, or other service relationship between you and Company, nor does it create a joint venture, partnership, or agency relationship between you and Company. You have no authority to bind Company and you undertake not to hold yourself out as an employee, agent or authorized representative of Company.
- Company does not direct or control you generally or in your use of the CurbCycle Platform, including in connection with your provision of Pickup Services, your acts or omissions, or your operation and maintenance of any vehicles or equipment used during Pickup Services. You and your Employer retain the sole right to determine when, where, and how you utilize the CurbCycle Platform, and which Pickup Services are performed.
- Your Responsibilities. As a user of the CurbCycle Platform, you acknowledge and agree that:
- You shall not use any information provided by the CurbCycle Platform for any reason other than for the purposes of fulfilling Pickup Services as instructed by your Employer. As between Company, you, and your Employer, you acknowledge and agree that: (a) you and your Employer shall be responsible for determining the most effective, efficient and safe manner to perform each instance of Pickup Services; (b) you and your Employer shall be responsible for providing all necessary equipment, tools and other materials, at your own expense, necessary to perform Pickup Services; and (c) you and your Employer are responsible for the acquisition, cost and maintenance of any Mobile Device as well as any necessary wireless data plan.
- You and your Employer shall have the sole responsibility for any obligations or liabilities to third parties that arise from your provision of Pickup Services. You acknowledge and agree that you and your Employer are solely responsible for taking such precautions as may be reasonable and proper regarding any of your own acts or omissions or any acts or omissions of a third party.
- While using the CurbCycle Platform to Provide Pickup Services, you shall: (a) comply with all laws, regulations, and other requirements applicable to you that are necessary to provide the Pickup Services; (b) possess the appropriate and current level of training, expertise and experience to provide Pickup Services in a professional manner with due skill, care and diligence; and (c) maintain high standards of professionalism, service and courtesy.
- You are responsible for securely maintaining a username, password, or other account details that allow access to and use of the CurbCycle Platform. These account details shall be used only by you and only upon your Employer’s instruction.
- Reservation of Rights. You acknowledge and agree that the CurbCycle Platform is provided under license, and not sold, to you. You do not acquire any ownership interest in the CurbCycle Platform under this Agreement, or any other rights thereto other than to use the CurbCycle Platform in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. Company reserves and shall retain its entire right, title, and interest in and to the CurbCycle Platform, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.
- Geographic Restrictions. The Content and Services are based in the state of Indiana in the United States and provided for access and use only by persons located in the United States. You acknowledge that you may not be able to access all or some of the Content and Services outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access the Content and Services from outside the United States, you are responsible for compliance with local laws.
- Updates. Company may from time to time in its sole discretion develop and provide CurbCycle Platform updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Mobile Device settings, when your Mobile Device is connected to the internet either: (a) the CurbCycle Platform will automatically download and install all available Updates; or (b) you may receive notice of or be prompted to download and install available Updates. You shall promptly download and install all Updates and acknowledge and agree that the CurbCycle Platform or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the CurbCycle Platform and be subject to all terms and conditions of this Agreement.
- Third-Party Materials. The CurbCycle Platform may display, include, or make available third-party content (including data, information, CurbCycle Platforms, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third-Party Materials”). You acknowledge and agree that Company is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Company does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions.
- Term and Termination. The term of Agreement commences when you install the CurbCycle Platform or acknowledge your acceptance and will continue in effect until terminated by you or Company as set forth in this Section 11. You may terminate this Agreement by deleting the CurbCycle Platform and all copies thereof from your Mobile Device. Company may terminate this Agreement at any time without notice if it ceases to support the CurbCycle Platform, which Company may do in its sole discretion. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement. Upon termination: (a) all rights granted to you under this Agreement will also terminate; and (b) you must cease all use of the CurbCycle Platform and delete all copies of the CurbCycle Platform from your Mobile Device and account. Termination will not limit any of Company’s rights or remedies at law or in equity.
- Disclaimer of Warranties. THE CURBCYCLE PLATFORM IS PROVIDED TO LICENSEE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE CURBCYCLE PLATFORM, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE CURBCYCLE PLATFORM WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, CURBCYCLE PLATFORMS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
- EXCLUSION OF DAMAGES. IN NO EVENT WILL COMPANY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF USE OF THE CONETNT AND SERVICES; (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d) COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL OR REPUTATION; OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF COMPANY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED $100. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- Indemnification. You agree to indemnify, defend, and hold harmless Company and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, arising from or relating to: (a) your use or misuse of the CurbCycle Platform; (b) your performance of Pickup Services at the instruction of and for the benefit of your Employer; (c) any claim by a third party directly or indirectly related to your provision of Pickup Services; or (d) your breach of this Agreement.
- Export Regulation. The CurbCycle Platform may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the CurbCycle Platform to, or make the CurbCycle Platform accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the CurbCycle Platform available outside the US.
- Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
- Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of Ohio without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or related to this Agreement or the CurbCycle Platform shall be instituted exclusively in the federal courts of the United States or the courts of the State of Ohio in each case located in Cincinnati and Hamilton County. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
- Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE CURBCYCLE PLATFORM MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
- Entire Agreement. This Agreement, including any documents incorporated by reference herein, constitute the entire agreement between you and Company with respect to your use of the CurbCycle Platform as a field operator, and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to your use of the CurbCycle Platform as a field operator.
- Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.