INTERNET SALES TERMS AND CONDITIONS
MARICOPA TRASH CAN-ITIZER CLEANING & DEODORIZING SERVICES
PLEASE READ THIS DOCUMENT CAREFULLY! IT CONTAINS VERY IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS AS A USER AND CUSTOMER AT AND THROUGH THIS INTERNET SITE AND RELATED INTERNET SITES, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT MAY APPLY TO YOU.
These Terms and Conditions (these “Terms”), together with any documents referenced herein, contain all of the terms and conditions that apply to access to the ordering, purchase and receipt of trash bin cleaning and deodorizing services and related materials (collectively, the “Services”) by those persons (each, a “Customer”) ordering Services and those employees and end users of Customer duly authorized and identified by Customer, and approved by Maricopa Trash Can-itizer, to access, use and utilize the Services (collectively, “Customer Personnel”) at and through the Internet website, https://www.maricopacanitizer.com/, and related websites (collectively, the “Site(s)”), as provided by the Site(s)’ proprietor, Valenzuela Family Ventures LLC, an Arizona limited liability company, dba Maricopa Trash Can-itizer (“MTC”). By clicking “I accept” and also by placing an order at or through the Site(s), or any of them, by paying for and receiving any Services, and by utilizing the Site(s) in connection therewith, Customer, freely, voluntarily and with full authority and capacity to do so, agrees to be bound by and accepts these Terms. If you (as a Customer) do not agree to be bound by all of these Terms, please do not order, purchase or pay for any Services, or use or utilize the Site(s) in connection therewith. MTC reserves the right to cancel your Customer Account, and the Customer Account for each of your Customer Personnel, and to discontinue making the Site(s) and all features thereat available to you, as Customer, and to each of your Customer Personnel, should you, as Customer, violate any of these Terms.
Scope of Services.
Basic Description of Services. Generally, the Services MTC shall provide to Customer shall consist of trash bin cleaning, deodorizing and sanitation services at certain locations designated by Customer or Customer Personnel, and providing Customer certain related materials regarding the products used to perform such Services, each as set forth in a purchase order (each, an “Order”, and collectively, the “Orders”) provided by Customer to MTC and accepted by MTC in connection with these Terms. The Orders, solely upon MTC’s acceptance and confirmation of each such Order at and through the Site(s), automatically shall be incorporated herein and integrated herewith by this reference without the need for any amendment of these Terms. In the event of any conflict or inconsistency between these Terms and the terms of any Order, these Terms shall govern and take precedence.
Additional Services. When authorized in writing by Customer, including by verifiable electronic mail by any person with actual or apparent authority to do so on behalf of Customer, MTC shall furnish other additional services that may be required or needed by Customer and agreeable to MTC, whereupon the compensation referenced in Section 4, below, shall be equitably adjusted accordingly without the need to amend these Terms. Additional Services shall be commemorated in additional Orders, which shall be accepted and confirmed by MTC, and which shall then be incorporated in and integrated with these Terms by reference, as set forth in Section 1(a), above.
Priority of Terms. In the event of any conflict or inconsistency between these Terms and any materials at any of the Site(s), these Terms shall govern and take precedence.
Subcontractors and Sub-Consultants. MTC shall have full control over the means and methods of performance and provision of the Services. In connection therewith, MTC shall have the right, but not the obligation, in its sole discretion, to enter into written subcontract agreements and sub-consulting agreements with persons or entities of MTC’s choice (collectively, the “MTC Subs”, and each an “MTC Sub”), any of which may or may not be affiliated or commonly controlled with MTC. Upon request by Customer, MTC shall within a reasonable time inform and update Customer as to which of the Services are performed by MTC Subs, as well as the identity of the corresponding MTC Subs.
Excluded Services. MTC is not an environmental engineer or environmental remediator, and as such, MTC’s services are limited to basic cleaning, deodorizing and sanitation services. The Services shall not contain any independent environmental analysis, environmental remediation or hazardous waste removal, it being understood and agreed that Customer is solely and exclusively responsible for such activities as applicable.
Services Non-Exclusive. Customer acknowledges and agrees that these Terms are non-exclusive and that MTC may perform similar or non-similar work or services for or on behalf of other parties engaged in the same or other businesses.
2. Terms Subject to Change.
a. General Terms Subject to Change. These Terms may change without prior notice at any time, in MTC’s sole discretion, including, but not limited to, the protocols for use of the Site(s), access to the Services at and through the Site, pricing of the Services, availability of the Services, availability of the Site(s), materials made available at or through the Site(s) in connection with or in relation to the Services, including without limitation features of the Services, descriptions, and other e-commerce related information and/or functionality. MTC reserves the right, its sole discretion, to discontinue the Site(s), or any of them (including Services available thereat), and/or modify the contents of the Site(s). Customer agrees MTC will not be liable to Customer for any such discontinuance or modification of the Site(s), or any of them (including features of Services), provided that once an Order is made, processed, confirmed and paid for, MTC shall provide the Services that are the subject of such Order under the terms set forth in such Order, and MTC shall continue to make the Site(s) and Services available as provided in such Order and as otherwise provided in these Terms. MTC may update the Site(s) and Services from time to time in MTC’s sole and absolute discretion, and any Order shall be subject to such updating.
b. Price and Payment Terms Subject to Change. MTC reserves the right, in its sole discretion, to change the price(s) of the Services, and each of them, at any time, such price(s) are subject to change each time Customer or any Customer Personnel accesses the order page for Services at the Site(s). In addition, all payment terms are similarly subject to change by MTC. Unless and until Customer or any Customer Personnel places an Order at the Site(s) for Services through a corresponding Customer Account (as defined under Section 3(c)(i), below) and such Order is accepted and confirmed as provided under Section 4(a), below, Customer and Customer Personnel shall have no expectations as to price or payment terms based on previous access to and receipt of information at the Site(s).
c. Duration of Terms. Except as otherwise set forth in this Section 2, and except as otherwise previously terminated in accordance with Section 11, below, these Terms shall remain in full force and effect immediately upon Customer’s initial access to the Site(s) and establishment of the Customer Account and shall continue in full force and effect for successive periods of one (1) year, each, unless MTC or Customer provides notice of intent to terminate at least thirty (30) days prior to the expiration of the then-applicable one (1) year period. Upon termination, any Order that has been accepted and confirmed by MTC shall be honored by both MTC and Customer in accordance with the terms of such Order, unless MTC has terminated the Customer Account and Customer’s access to the Services for cause or otherwise due to Customer’s violation of these Terms, in which case MTC need not so honor such Order. Otherwise, the provisions of Section 11, below, shall apply to any termination of these Terms.
3. Use, Operation and Maintenance of Site(s).
Responsibilities of MTC. MTC shall exercise reasonable efforts to maintain the Site(s), or cause reasonably qualified third party contractors to do the same, in condition and operating order, and in any event with respect to third-party tools and applications to cause the appropriate third party(s) to so maintain. MTC shall not be responsible for any inaccessibility of Customer or Customer Personnel due to scheduled maintenance and upgrades of the Site(s), or any corresponding Internet servers or software. MTC shall use reasonable efforts to ensure that any period of inaccessibility shall not exceed 48 hours. In the event that the Site(s) become inaccessible, or their operation deviates materially from that provided in these Terms and any applicable confirmed and accepted Order, and such deviation can be replicated by Customer, then Customer shall give written notification of the inaccessibility or the deviation, and in the case of deviations, sufficient information to permit replication and analysis. Upon receipt of notice from the Customer of any inaccessibility or deviation, MTC shall use reasonable efforts to diagnose the cause of the inaccessibility or deviation. Upon completion of the diagnosis, MTC shall advise Customer of the cause of the inaccessibility or deviation and shall use efforts that it considers to be reasonable in its sole discretion, without charge, to restore access to and use of the Site(s) or avoid the deviation. Notwithstanding the foregoing, MTC shall have no obligation to resolve any inaccessibility or deviation caused by (i) modification of the Site(s) or any features or content thereof by anyone other than MTC or an MTC Sub, (ii) use of the Site or Services for any purpose other than intended, (iii) misuse or incorrect use of the Site(s), or (iv) malfunction of any Customer computer or any telecommunications services or equipment not under the control of MTC. Subject to the requirements of this Section 3(a), any inaccessibility exceeding such 48-hour period that is caused by any act or omission of MTC or any circumstances within MTC’s control shall result in a corresponding equitable deduction in the fees paid by Customer. MTC shall, or shall cause reasonably qualified third party contractors to, provide Customer and Customer Personnel reasonable technical support during MTC’s business hours. MTC shall implement, or with respect to third-party tools and applications MTC shall cause the appropriate third party(s) to implement, the data archive procedures resident in the Site(s) at regular intervals, and Customer acknowledges that the liability for loss, destruction or damage to any data Customer or any Customer Personnel may store in or at any such Site(s) is limited pursuant to these Terms. As between MTC and Customer, MTC has the sole right and responsibility to maintain and update the logical and physical organization and structure of the databases and associated files within the Site(s). In connection therewith, MTC, in its sole discretion, shall have authority and access at all times these Terms are in effect to set up, utilize and administer third-party tools and applications for and on behalf of Customer and all Customer Personnel, as well as to make administrative setting changes in all technology platforms and services used and operated by or on behalf of Customer, each as they relate to the Services and Site(s).
Security. MTC shall, or shall cause reasonably qualified third party contractors to, establish and maintain commercially reasonable security measures designed to protect Customer and Customer Personnel from any security breaches at or through the Site(s). However, MTC shall not under any circumstances be responsible for any security breaches caused by, arising from, resulting from or attributable to any factor other than MTC’s reckless conduct or intentional misconduct. Specifically, among other things, MTC shall have no responsibility for any security breaches caused by, arising from, resulting from or attributable to any features employed by any third party hosting company or third party contractor, it being understood and agreed that neither Customer nor any Customer Personnel may under any circumstances hold MTC responsible or liable therefor and that Customer and Customer Personnel’s recourse therefor shall be limited to the appropriate third party hosting company or companies or third party contractor, and MTC hereby assigns to Customer and Customer Personnel MTC’s rights as to such third party for such purposes.
Responsibilities of Customer.
Customer shall either create, or be assigned, a unique username as directed or approved by MTC, which may but is not required to give Customer the opportunity to formulate unique passwords for the individual Customer Personnel whom Customer authorizes to access and use the Site(s) through a single account assigned to each Customer (the “Customer Account”). As a condition precedent for any of the Customer Personnel to obtain a password and have access to the Services, such Customer Personnel shall be identified by Customer and approved by MTC, and such Customer Personnel must sign off on these Terms and acknowledge their enforceability as to such Customer Personnel in the same manner as these Terms are enforceable as to Customer. Customer shall also have the opportunity to change, or to require Customer Personnel to change, such passwords from time to time in accordance with MTC’s security policies and protocols, which MTC shall make known to Customer with reasonable updates, which policies and protocols are incorporated herein and integrated herewith by this reference, with the understanding that in the event of any conflict or inconsistency between these Terms and any such policies or protocols, these Terms shall govern and take precedence. Customer acknowledges and agrees that Customer and all Customer Personnel authorized by Customer to access and use the Site(s) shall be responsible for maintaining the confidentiality of the username and passwords, and Customer shall be liable for any consequences that may result from their disclosure, including but not limited to any resulting access to, use of, or modification of the Site(s), and access to, integrity of and loss of Customer’s data and/or Customer Personnel data or of Customer Content defined in Section 3(c)(ii), below. Customer agrees to accept full responsibility for all activities that occur under the corresponding Customer Account, username and/or any corresponding password. MTC reserves the right to refuse service, terminate accounts, or remove or edit content, including without limitation Customer Content, in its reasonable discretion. Customer’s username, account and password(s) are non-transferable, except upon written agreement by MTC, in MTC’s sole and absolute discretion, and may not under any circumstances be shared except as expressly set forth in this Section 3(c)(i). Customer agrees to (A) maintain all equipment necessary for Customer’s access to and use of the Site(s), Services and Customer Account; (b) maintain the security of Customer’s account identification, username, password(s), Customer Content and any other confidential information relating to the Customer Account; and (c) take responsibility for all charges resulting from use the Customer Account, including without limitation those pertaining to any unauthorized use prior to Customer notifying MTC of such unauthorized use and taking the legal steps to prevent its further occurrence by contacting MTC to change Customer’s username and password(s).
Customer shall maintain a copy of all Customer Content in an accessible way prior to termination of the Customer Account and access by Customer and Customer Personnel to the Site(s) and Services. Any Customer Content uploaded to the Site(s) shall be for the sole use by Customer, each applicable Customer Personnel and MTC; provided that MTC will not share any such Customer Content with any other customer or any third party except as authorized under these Terms (which authorization hereby automatically includes sharing with all MTC Parties and MTC Subs, as reasonably necessary to perform the Services under these Terms), or as reasonably necessary to operate and maintain the Site(s) as required under these Terms; and provided further that upon termination of the Customer Account and access by Customer and Customer Personnel to the Site(s) and Services, Customer and Customer Personnel shall have no further ability to access or use the Site(s) or any data Customer may have stored thereat. MTC shall retain all Customer Content stored at the Site(s) for a period of ninety (90) days after termination of the Customer Account and access by Customer and Customer Personnel to the Site(s) and Services, and so long as Customer has paid all amounts due to MTC in accordance with Section 4, below, MTC shall during such ninety (90) day period work with Customer to transfer such Customer Content, together with any as yet untransferred Customer Content, to other site(s), system(s) and/or platform(s), as requested and designated by Customer. The compensation owed by Customer to MTC shall be equitably adjusted upward and accordingly increased for MTC’s services, based on the rates and services set forth in the corresponding Order(s). Upon the expiration of such ninety (90) day period, Customer agrees that MTC may purge all Customer Content from the Site(s); provided that if reasonably necessary to complete the transfer requested and designated by Customer, MTC and Customer may mutually agree to extend such ninety (90) day period, provided the transfer has commenced and proceeds diligently to completion.
Customer may elect to have certain Customer Content transferred to other site(s), system(s) and/or platform(s) without terminating the Customer Account or access by Customer or any Customer Personnel to the Site(s) and Services, in which event Customer shall so notify MTC in writing, whereupon MTC shall work reasonably with Customer to transfer such Customer Content and Customer Materials to other site(s), system(s) and platform(s), as requested and designated by Customer. The compensation owed by Customer to MTC shall be equitably adjusted upward and accordingly increased for MTC’s services, based on the rates and services set forth in the Corresponding Order(s). MTC shall endeavor to complete such transfer within ninety (90) days; provided that if reasonably necessary to complete such transfer, MTC and Customer may mutually agree to extend such ninety (90) day period, provided the transfer has commenced and proceeds diligently to completion. Upon completion of any such transfer, MTC shall immediately cease to have any duties or responsibilities with respect to the Customer Content under these Terms, except for those that would otherwise survive termination of the Customer Account and access by Customer and Customer Personnel to the Site(s) and Services, even as these Terms otherwise remain in effect.
Customer shall designate one or more appropriately qualified employees, agents or representatives of Customer as authorized point(s) of contact of Customer to work in cooperation with MTC to perform and implement the Services. Such designated point(s) of contact shall have sufficient authority to obtain and transfer to MTC in a timely manner all end Customer Content, customer data, materials, proprietary content files, and other information as reasonably necessary to operate and maintain the Site(s) and to perform implement the Services as to Customer, and to assure cooperation from Customer and Customer Personnel.
Customer acknowledges that certain aspects, features and functions of the Site(s) shall reside in one or more third-party hosting companies’ computing environment(s), which comprise both servers and telecommunications services, and that certain uses of the capabilities offered by the Site(s), may render the Site(s) or features thereof inaccessible or may impair the performance of the computing environment(s) for Customer, Customer Personnel and/or MTC’s other customers. In the event of any such use by Customer, MTC shall notify Customer, and Customer and Customer Personnel shall be obligated to put an immediate stop to such use, and Customer will notify MTC, in writing, that such use has ceased. In the event of Customer’s failure to put an immediate stop to such use, MTC reserves the right to suspend or terminate the Customer Account and access by Customer and any of the Customer Personnel to the Site(s) and Services. In the meantime, in the event of any damage or delay suffered by Customer that is caused by, arising from or resulting from any acts or omissions of any third-party hosting company or contractor, as opposed to MTC or an MTC Sub, Customer agrees that MTC shall not be liable or responsible for such damage or delay, and Customer agrees that its sole recourse in connection with such damage or delay shall be such third-party hosting company or contractor and/or said hosting company or contractor’s insurers or sureties. MTC hereby assigns to Customer any and all rights of MTC as to MTC’s relationship with such hosting company or contractor for such purpose.
MTC grants to Customer and each of the Customer Personnel authorized to use and utilize the Services a limited license to access and make personal use of the Site(s), features thereof and content thereat, solely as needed to order, purchase, receive and utilize the Services set forth in these Terms and the accepted and confirmed Orders incorporated in and integrated with these Terms, and to enforce any rights, duties or obligations under these Terms or any such Order. This license does not include any resale or commercial use of the Site(s) or any features thereof or content thereat; any collection and use of any materials posted by MTC at any of the Site(s), or any listings, descriptions, features, qualifications or related information of MTC at the Site(s); any derivative use of the Site(s), any features thereof or content thereat; any downloading or copying of account information for the benefit of another; or any use of data mining, robots, cookies or similar data gathering and extraction tools. Customer and Customer Personnel shall have the ability to post certain limited content at the Site(s) upon prompting. Neither Customer nor any of the Customer Personnel may resell, sublicense, assign or otherwise allow the use of the Site(s) by or for the benefit of any other person, entity or group without the express written approval of MTC.
viii. Customer shall remain solely responsible for all errors or problems in Customer Content impacting the Site(s) or Services or the performance or effectiveness thereof, maintaining and providing any necessary operating environments in which Customer and any of the Customer Personnel utilize the Site(s) or Services, errors caused by third party software or hardware or the configuration of such items as they relate to such access, utilization or application, and interruptions in access to the Site(s) or Services or other downtime attributable to any internet provider, personal computing equipment or logistics features of Customer or any of the Customer Personnel.
ix. Other than page caching, neither Customer nor any of the Customer Personnel is authorized to download or modify the Site(s), any content at the Site(s), or any portion thereof. Unless otherwise authorized in writing by MTC, neither Customer, nor any of the Customer Personnel, nor any other third-party is authorized to deep link to any web page contained at the Site(s) (i.e., no links are permitted under any circumstances from third-party websites to any page of the Site(s) other than a Site’s home page). Such links are expressly prohibited. In addition, neither Customer, nor any of the Customer Personnel, nor any third party may link any Site’s home page in such a manner as to create a reasonable possibility or likelihood of confusion by users of a third party website as to the true ownership or sponsorship of any of the Site(s) and/or as to the existence or lack thereof of some affiliation or other relationship between MTC and the third party and/or its website.
x. Neither Customer nor any of the Customer Personnel may post or transmit at or through any of the Site(s) any content, item or material, or otherwise access or utilize the Site(s), in any way, in any manner that violates or infringes in any way upon the rights of others, which is unlawful, misleading, threatening, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane, confidential or proprietary to third parties, or otherwise objectionable, which encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law, which is inconsistent with the non-religious and non-political purposes of the Site(s), or which contains advertising or any solicitation with respect to products or services, each as determined by MTC in its sole discretion. Customer and each of the Customer Personnel are also prohibited from using any of the Site(s) or Services in any way that restricts or inhibits any other user or customer of the Site(s) or Services from using or enjoying the Site(s) or Services. Also, customers shall not use any of the Site(s) or Services for any illegal purpose, including but not limited to, uses in violation of the CAN-SPAM Act of 2003, or in violation of any privacy laws.
xii. MTC may enact, implement and enforce reasonable rules of use as promulgated and amended from-to-time by MTC in its reasonable discretion regulating the use of the Site(s) by Customer and Customer Personnel, and Customer agrees to be bound by and to bind each of the Customer Personnel to such rules. In the event of any conflict or inconsistency between these Terms and such rules, these Terms shall govern and take precedence. Breach of such rules or this section may result in the offending information being removed by MTC, or MTC’s termination of the Customer Account and/or access by Customer and/or any Customer Personnel to the Site(s) and Services.
Materials Posted by Others.
i. Customer understands and acknowledges that MTC cannot, does not and will not monitor all material posted or transmitted by customers, users and third party information providers at the Site(s). Although MTC has no obligation to review or remove any such content in general, MTC reserves the right to remove any content posted at the Site(s) at any time for any reason in its reasonable discretion, including without limitation copyrighted content or other proprietary information of any kind that has been posted or linked to without the express permission of the owner of that material. Decisions in such regard shall be made by MTC in its reasonable discretion after actual notice of such posting and in no event or circumstance shall be construed as giving rise to any duty or obligation to review or remove in the future.
ii. The Site(s) contain information, data, software, photographs, graphs, videos, typefaces, graphics, audio and other material (collectively, “Site Content”). MTC does not control the Site Content supplied by parties other than MTC or any MTC Subs. Any opinions, advice, statements, services, offers, and/or other information that constitute part of Site Content expressed or made available by third parties and not by MTC or any MTC Subs are those of the respective authors or distributors and not of MTC or any MTC Sub. In many instances, the Site Content available through the Site(s) represents the opinions and judgments of the respective party or user not under contract with MTC. Unless clearly, expressly and unequivocally indicated elsewhere, MTC does not necessarily endorse, support, sanction, encourage, verify, or agree with the comments, opinions, suggestions, statistics or statements posted by parties other than MTC anywhere at the Site(s) or elsewhere in connection with the Services. Neither MTC, nor any MTC Party nor any MTC Sub, makes any warranties with respect to any of the data featured or mentioned on or at the Site(s) with the Services unless provided directly by MTC or an MTC Sub as actually authorized by MTC. Any information or material placed online by parties other than MTC, including advice and opinions, are the views and responsibility of those who post the materials, and do not necessarily represent the views of MTC or any MTC Party. Under no circumstances shall MTC or any MTC Party be liable for any loss, damage or harm caused by Customer’s or any of the Customer Personnel’s reliance on information obtained through the Site(s) or Services unless provided directly by MTC or by an MTC Sub with MTC’s actual authorization. It is the responsibility of the Customer to evaluate the information, opinion, advice or other Site Content available through the Site(s) and not provided directly by MTC or an MTC Sub. Customer agrees that MTC is not responsible, and shall have no liability to Customer or any of the Customer Personnel, with respect to any information or materials posted by any party other than MTC or an MTC Sub with MTC’s actual authorization, including without limitation defamatory, offensive or illicit material, or material that violates these Terms, and Customer, for itself and for all Customer Personnel, accordingly unconditionally releases MTC, all MTC Parties and all MTC Subs from any and all liabilities and claims related to such information and materials posted by third parties that are not MTC Subs actually authorized by MTC.
iii. With the use of the Site(s), Customer and Customer Personnel might have the ability to link to other, non-MTC Internet content and to upload their own non-MTC provided content, programs and materials at the Site(s) for use by Customer and Customer Personnel. Customer shall be solely responsible for obtaining access authorization from any and all content sources Customer chooses to utilize that are not MTC or an MTC Sub, and Customer shall indemnify and hold MTC, all MTC Parties and all MTC Subs harmless from any and all costs, expenses, injuries, damages and claims that are attributable to any use of content, programs and materials uploaded or linked by or through Customer or any of the Customer Personnel and not directly by MTC or an MTC Sub. MTC has no control over such third-party sites or the content within them. MTC cannot and does not guarantee, represent or warrant that the content contained in such third-party sites is accurate, legal or inoffensive. MTC does not endorse the content of any third-party site, nor does MTC warrant that such third-party sites will not contain viruses or otherwise impact Customer and/or Customer Personnel’s computers. MTC does not assume any responsibility or liability for the actions, product, services, and content of all these and any other third parties. If Customer or any of the Customer Personnel chooses to link to or use a third-party website, Customer and such Customer Personnel should carefully review such third party’s privacy statement and other terms and conditions of use. By using the Site(s) to search for or link to any third-party site, Customer agrees and understands that Customer may not make any claim against MTC or any of the MTC Parties for any damages or losses, whatsoever, resulting from Customer’s use of or access to the Site(s) to obtain search results or to link to any third-party site.
a. Compensation for Services. For access to and use of the Site(s) and Services, Customer shall provide to MTC compensation for the Services as defined and referenced in each Order accepted and confirmed by MTC. Initial payment or an initial deposit, as dictated in such Order, must be received by MTC as a condition precedent to MTC’s acceptance and confirmation of an Order, and MTC shall not under any circumstances be bound to any Order unless and until such payment or deposit is received by MTC, and MTC then accepts and confirms the corresponding Order. If Customer signs up for a recurring Service, and cancels after the initial cleaning, MTC has the right to bill the credit card on file for the price difference of a one-time cleaning service.
a.1. Unable to Render Services. In the event that MTC is unable to render Services and the client did not notify MTC (i.e. trash bins are not curbside, client is out of town and failed to call the office in advance to reschedule, etc.) MTC has the right to retain payment for Services that were unable to be rendered and charge an additional ten dollar ($10) Trip Charge to compensate for time and fuel at MTC’s discretion.
a.2. Automatic Billing. All recurring Services must be set-up on automatic billing to avoid service interruptions due to non-payment.
a.3. Cancellations and Rescheduling of Recurring Services. In the event that the Client needs to cancel or reschedule a scheduled service, the client will be responsible to call/text the MTC office 480.999.0445 to avoid a trip charge from being assessed to their account. If the client goes more than four weeks off their regular schedule, the Client must pay a service price difference, accordingly, to get back on their regular schedule (i.e. Monthly Service price plus $7 if more than 4 weeks from last service, Bi-Monthly Service price plus $10 if more than 4 weeks from last service, & Quarterly Service price plus $13 if more than 4 weeks from last service, so on and so forth.) The price difference amount can vary depending on the last service date and the service plan the Client signed up for. If the Client does not communicate with MTC and cancels or skips 2 or more concurrent cleanings, MTC will assume the Client no longer wants to continue recurring services and MTC has the right to cancel the Client’s schedule without notice. The Client will then be responsible for contacting MTC to restart service and the Client will be responsible for paying any associated fees or remaining balances from prior services before a new schedule is created. If the Client goes more than 3 months from receiving a recurring service, the Client will be responsible to pay the full amount ($55.98) of an initial cleaning fee to get back on their regular schedule. Last but not least, if the Client would like to pause their recurring services (i.e snowbirds, trash cans don’t smell during the winter months, etc.) the Client is responsible to contact the office of MTC to make those arrangements.
b. Timing and Manner of Payment. Timing of payments shall be as set forth in each corresponding Order. Customer(s) shall make payment for the total amount invoiced, except as otherwise approved by MTC in its sole discretion. Such payment shall be directed to MTC in person or else by mail at the address set forth in the corresponding Order, to the attention of Maricopa Trash Can-itizer. In the event any payment amount is not received by MTC within thirty (30) calendar days after such payment is due, Customer shall owe to MTC a late fee in the amount of twenty five dollars ($25) and not paid for each month it remains unpaid, which Customer acknowledges is a reasonable estimate of otherwise difficult to calculate damages and administrative costs associated with untimely payment. In the event any payment is not received by MTC within thirty (30) calendar days after such payment is due, MTC may but is not obligated to deactivate the Site(s) as to Customer and any or all Customer Personnel as a non-exclusive remedy for default under these Terms, such remedy to be in addition to MTC’s right to terminate the Customer Account and access by Customer and/or any Customer Personnel to the Site(s) and Services, and to exercise any other right or remedy at law or in equity. In the event of any deactivation, Customer must pay to MTC a reactivation fee of $100.00, together with all amounts due and owing under invoices to date, in order to regain access to the Site(s) and reestablish the Customer Account.
c. Effect of Payment. Except as provided in these Terms, any payment to MTC under these Terms shall operate as a release of any claims which Customer may be entitled to make in relation to Services that are covered by such payment.
5. Independent Contractor. No relationship of employment is created by these Terms, it being understood that in agreeing to these Terms and providing Services hereunder, MTC is at all times acting and performing solely as an independent contractor. Neither MTC nor Customer is authorized to be the agent or legal representative of the other for any purpose whatsoever. Neither MTC nor Customer shall have the authority or power to make any commitments of any responsibility expressed or implied in the name of the other or to assume or create any obligation or shall be liable for any acts or omissions of the other. All employment, insurance and tax matters and filings shall be handled accordingly.
6. Confidentiality and Intellectual Property. In connection with these Terms and each of the Orders, and Customer and Customer Personnel’s access to, and purchase, use and utilization of, the Site(s) and Services as set forth in these Terms and in each Order, MTC might provide, and Customer and/or Customer Personnel might receive, certain confidential and proprietary information concerning one or more businesses, endeavors, operations, products, materials and/or services of MTC (collectively, the “MTC Items”), which MTC deems to be highly proprietary and valuable.
a. Scope of Confidentiality Protection. For the purpose of this Section 6, “MTC Confidential Information” shall include all information, whether written or oral, that is prepared, uniquely known and/or provided by MTC, any member of MTC, and/or any affiliate, parent, subsidiary, principal, member, officer, director, employee, agent, representative, predecessor, successor or assign of any of them that is not Customer or a Customer Party defined below (collectively, the “MTC Parties”, and each an “MTC Party”), including without limitation that related to prospective development of the MTC Items, or any of them, descriptions, compositions and features of the MTC Items, or any of them, operational, logistical, financial, physical, legal and other practical requirements for the MTC Items, or any of them, expected financial gains to be realized from the MTC Items, or any of them, identities of parties potentially involved with the MTC Items, or any of them, including without limitation actual and prospective vendors, contractors, consultants, distributors, suppliers, and other business partners of MTC related to the MTC Items, or any of them, prospective impacts of the MTC Items, or any of them, and other information related to the MTC Items, or any of them, or MTC’s ongoing or prospective involvement with the MTC Items, or any of them, which is not readily available to the public. For the purpose of this Section 6, “MTC Confidential Information” shall also mean (i) the contents of these Terms, with the understanding that the existence of these Terms and Customer’s general obligation of confidentiality under this Section 6 may and should be disclosed to all third parties who seek or might receive any MTC Confidential Information, (ii) all terms, conditions and features related to Customer and Customer Personnel’s access to, or purchase, receipt, use or utilization, of the Site(s) and Services as set forth in these Terms and in any Order, (iii) all MTC Intellectual Property, as defined in Section 6(b), below, (iv) non-public information related to any and all MTC Items developed, performed or generated by or for MTC or any of the MTC Parties, and (v) proprietary information relating to the business, operations, methodologies, technologies, personnel, vendors, financial condition or procedures of MTC or any of the MTC Parties, including without limitation any such information concerning cleaning, deodorizing and sanitation materials and methods, which is not generally known to the public, and which, under all of the circumstances, ought reasonably to be treated as confidential and/or proprietary. MTC Confidential Information shall include any information, whether or not labeled “confidential”, which by its nature could be deemed to be confidential, sensitive, privileged and/or proprietary information of MTC or any of the MTC Parties. Customer shall disclose MTC Confidential Information solely as necessary to access, use and utilize the Site(s) and Services, as set forth in these Terms and in any applicable Order, and Customer shall consider and utilize MTC Confidential Information solely for such purposes. MTC Confidential Information may be disclosed orally, visually, and in written form (including but not limited to electronic or other media).
b. MTC Intellectual Property. All intellectual property rights in any way related to any MTC Confidential Information provided by or through MTC or any of the MTC Parties to Customer is hereby acknowledged to remain in the exclusive ownership and control of MTC, the applicable MTC Party, or the applicable licensor thereof (the “MTC Licensor”), as appropriate, and any rights to or interests in such Intellectual Property, or any permutation or derivation thereof, or any improvement thereto, are hereby fully disclaimed, waived and renounced by Customer in favor of MTC, the applicable MTC Party, or the applicable MTC Licensor, as appropriate, subject to the limited license provided in Section 3(c)(vii), above. For the purposes of this Section 6(b), “MTC Intellectual Property” means all intellectual property owned, licensed (as licensee) or otherwise prepared for the benefit of MTC and/or any of the MTC Parties, arising from or in respect of, or that might arise from or relate to, the following, whether protected, created or arising under the laws of the United States or any other jurisdiction, whether or not registered with any governmental authority: (i) all patents and applications therefor, including continuations, divisionals, continuations-in-part, reexaminations, or reissues of patent applications and patents issuing thereon (collectively, “Patents”), (ii) all trademarks (registered or common law marks), service marks, trade names, service names, brand names, trade dress rights, logos, domain names, Internet URL addresses, corporate names and general intangibles of a like nature, together with the goodwill associated with any of the foregoing, and all applications, registrations and renewals thereof (collectively, “Marks”), (iii) all copyrights and registrations and applications therefor, works of authorship and mask work rights (collectively, “Copyrights”), (iv) all discoveries, concepts, ideas, research and development, know-how, formulae, inventions, compositions, cleaning, deodorizing and sanitation methods and equipment, manufacturing and production processes and techniques, technical data, data compilations, text information and materials, graphics, procedures, designs, drawings, specifications, databases, and other proprietary and confidential information, whether or not displayed, maintained or accessed on, at or through the Site(s), including without limitation survey question lists, equipment lists, software and hardware information, product lists, vendor lists, user lists, customer lists, supplier lists, pricing and cost information, and business and marketing plans and proposals of MTC and/or any of the MTC Parties, in each case excluding any rights in respect of any of the foregoing that comprise or are protected by Marks, Copyrights or Patents, (v) all software, including all source code and open source code, and all related documentation; (vi) all artwork, designs, images, photographs or other content displayed, illustrated or otherwise used on or in connection with MTC’s websites, including without limitation the Site(s), or any websites of any of the MTC Parties, or otherwise used in connection with MTC or any MTC Items, and (vii) all other technology and know-how uniquely in the possession of MTC and/or any of the MTC Parties.
c. Restrictions Regarding MTC Intellectual Property. Neither Customer, nor any affiliate, parent, subsidiary, principal, officer, director, employee, agent, representative, predecessor, successor, assign, legal or financial advisor, contractor or consultant of Customer (including without limitation any Customer Personnel), in any event excluding MTC, any applicable MTC Party or any applicable MTC Licensor (collectively, the “Customer Parties”, and each a “Customer Party”), may apply for a right in any MTC Intellectual Property, or use or utilize any MTC Intellectual Property for any purpose other than that provided under Section 3(c)(vii), above, except upon the express written consent of an actually authorized representative of MTC in MTC’s sole and absolute discretion, whether or not any MTC Intellectual Property has been issued, registered, or in any other way afforded any rights by the United States Patent and Trademark Office, the United States Copyright Office, or other similar administrative agency. To the extent Customer or any Customer Party may claim any rights, direct, derivative or otherwise, related to any MTC Intellectual Property, other than the limited license provided under Section 3(c)(vii), above, Customer hereby disclaims, and shall cause each Customer Party to disclaim, such rights, and hereby assigns, and shall cause each Customer Party to assign, such rights to MTC. Customer agrees to execute and to cause each Customer Party to execute, and in the alternative hereby grants to MTC, and shall cause each Customer Party to grant to MTC, power of attorney to execute and record in Customer’s stead, and in each Customer Party’s stead as applicable, any and all documentation, including without limitation disclaimers and assignments of MTC Intellectual Property rights, as necessary to document publicly, legally, and officially the exclusive ownership of all MTC Intellectual Property by MTC, the applicable MTC Party, or the applicable MTC Licensor, as appropriate. Neither Customer, nor any third party, may market, utilize, reuse or redistribute any MTC Intellectual Property, except as authorized hereunder or except as approved in writing by an actually authorized representative of MTC. With the exception of the limited license under Section 3(c)(vii), above, no license or other right of any kind in any MTC Intellectual Property is granted or otherwise provided to Customer, to any Customer Party or to any third-party in relation to these Terms or Customer’s use of the Site(s) or Services, or any of them. Neither Customer nor any Customer Party may frame or utilize any framing techniques to enclose any MTC Intellectual Property or MTC Confidential Information. Neither Customer nor any Customer Party may use any metatags or other hidden text utilizing MTC Intellectual Property. Any unauthorized use terminates the permission or license granted by MTC under Section 3(c)(vii), above, whereupon MTC may but is not obligated to terminate the Customer Account and access by Customer and any Customer Personnel to the Site(s) and Services. The Site(s) contain copyrighted material, trademarks and other proprietary information, which may include text, software, photos, video, graphics, music and sound. MTC owns a copyright in the selection, coordination, arrangement and enhancement of such content, as well as in the content original to it. Neither Customer nor any Customer Party may modify, publish, transmit, participate in the transfer or sale, create derivative works, or in any way exploit, any Site Content, in whole or in part. Except as otherwise expressly permitted under copyright law or expressly allowed herein, no copying, redistribution, retransmission, publication or commercial exploitation of downloaded material will be permitted without the express written permission of MTC. In the event of any permitted copying, redistribution or publication of copyrighted material, no changes in or deletion of author attribution, trademark legend or copyright notice shall be made.
d. Restrictions Regarding Disclosure of MTC Confidential Information to Third Parties. Customer shall, and shall cause each Customer Party to, hold MTC Confidential Information, whether delivered before or after the date hereof, in strict confidence and shall refrain from and cause each Customer Party to refrain from: (i) providing, copying, disclosing, divulging or otherwise making available any MTC Confidential Information to any other person or entity without the prior written consent of an actually authorized representative of MTC, in MTC’s sole discretion; and (ii) removing or permitting to be removed from such MTC Confidential Information any notice indicating the confidential nature of, or MTC’s proprietary right in and to the MTC Confidential Information. Customer shall, and shall cause each Customer Party to, exercise at least the same degree of care and protection with respect to MTC Confidential Information that Customer or such Customer Party, as applicable, would exercise with respect to Customers (or such Customer Party’s) own confidential, sensitive, privileged and/or proprietary information, which in no event shall be less than the highest level of care for the industry. Customer shall, and shall cause each Customer Party to, take all precautions necessary to ensure that the MTC Confidential Information shall not be, or permitted to be, shown, copied or disclosed to other parties, except as expressly provided in this Section 6. In the event of written consent to disclose MTC Confidential Information to any other party, including without limitation Customer Personnel, Customer shall, and shall cause each Customer Party to, advise that other party of his/her/its obligations with respect to the MTC Confidential Information, and have that party acknowledge in writing that the terms and conditions of this Section 6 may be directly enforced by MTC against him/her/it as a condition to such disclosure. Customer or the Customer Party, as applicable, shall provide an original of such written acknowledgment to MTC, if so requested by MTC. In any event, Customer or such Customer Party, as applicable, shall disclose the MTC Confidential Information to the other only as necessary for the purposes authorized in writing by an actually authorized representative of MTC. In addition, Customer or such Customer Party, as applicable, shall ensure that confidentiality notices are included on copies of MTC Confidential Information so provided and shall account for the return or destruction of the MTC Confidential Information and all reproductions thereof, if so requested by MTC. In any event, MTC consents to disclosure of MTC Confidential Information by Customer to any Customer Party, including without limitation Customer Personnel, or such Customer Party’s employees, contractors, consultants and advisers as necessary for the purposes set forth in Section 3(c)(vii), above, provided such disclosures are subject to the remaining requirements of this Section 6 and Section 14(h), below.
e. Exception for Customer Content. Any proprietary Customer Content that is collected or generated through use or utilization of the Site(s) or Services or any of them, shall be deemed confidential information of Customer, which Customer may freely use and disclose as Customer sees fit. Customer shall be solely responsible for the accuracy, quality, integrity, reliability, appropriateness, legality and intellectual property ownership or right to use all of the Customer Content, and Customer shall have indemnity obligations to MTC therefore and in relation thereto as provided in Section 10, below. Customer represents and warrants that (i) Customer has the appropriate authority, license or other rights to use all such Customer Content and to provide such Customer Content as contemplated in these Terms; (ii) Customer has and will maintain all rights, consents and approvals required to grant to MTC the rights to access, use, adapt, display and modify Customer Content in accordance with this Section 6(e) and will upon MTC’s request provide proof of the same; and (iii) Customer shall not knowingly infringe upon the intellectual or other proprietary rights of any third party. Customer hereby grants to MTC a nonexclusive, irrevocable, transferable, perpetual, worldwide, royalty-free and fully paid-up license to access, use, adapt, display and modify any and all Customer Content that is collected or generated through use and utilization of the Site(s) or Services, or any of them, for any legal purpose, including without limitation to perform MTC’s Services and other obligations under these Terms, to enforce these Terms, to analyze, transfer and use such Customer Content in an aggregated form from which all personally identifiable information has been removed, for purposes of benchmarking system performance, preparing statistics, system metrics and other purposes, and to market the Site(s) and Services and MTC’s other products, services and endeavors, as well as the right to sublicense such rights to any holding provider and other third parties as necessary for MTC to do so or as may be reasonably necessary or appropriate in connection with the operation, maintenance, repair, updating, development, improvement or other activities of and through the Site(s) and performance of services, functions and endeavors by MTC.
f. Ownership of MTC Confidential Information. Subject to the license set forth in Section 3(c)(vii), above, all MTC Confidential Information, including reproductions thereof, shall be deemed to be and remain the exclusive property of MTC (or the applicable MTC Party or MTC Licensor, as appropriate), and no ownership rights of any kind in and to any all MTC Confidential Information are transferred hereby, hereunder or in connection herewith to Customer, any Customer Party or any third party. Customer acknowledges that Customer does not acquire any such ownership rights by accessing and utilizing copyrighted material or otherwise using or utilizing the Site(s) or Services, or any of them. All rights are reserved.
g. Other Exceptions to Confidentiality. The foregoing obligations of confidentiality shall not apply to any MTC Confidential Information, which: (i) is or becomes available to the public through no act or omission of Customer, any Customer Party or any party in violation of the terms and conditions of this Section 6 or any other confidentiality or non-disclosure agreement; (ii) was already known by Customer at the time of the disclosure by MTC, as evidenced by Customer’s written records existing prior to the date of MTC’s disclosure; (iii) is lawfully obtained from a person or entity other than MTC or Customer without any obligation of confidentiality or non-disclosure; (iv) is approved for release by MTC’s written authorization, but only to the extent of such authorization and subject to the further requirements set forth in Section 6(d), above; (v) is required by law or regulation to be disclosed to any person, but only: (A) to the extent and for the purposes of such required disclosure and (B) after first giving MTC reasonable notice of such required disclosure and reasonable opportunity to contest such required disclosure; (vi) is disclosed in response to a valid order of a court or other governmental body or any political subdivisions thereof, but only to the extent of and for the purposes of such order, and only if Customer first promptly notifies MTC of the order and permits MTC to seek an appropriate protective order; or (vii) is developed independently by or for Customer by personnel not having access to any MTC Confidential Information.
h. Reverse Engineering / Independent Development. Notwithstanding any other provision of this Section 6 or these Terms, Customer shall not (and Customer shall not use any third party to), and Customer shall cause each Customer Party not to (and not to use any third party to) reverse engineer, decompile, disassemble, or otherwise attempt to discern the design, structure, internal workings, or other technology incorporated in any MTC Confidential Information.
i. Restrictive Covenant. In consideration of any MTC Confidential Information, which Customer or any Customer Party will receive or have access to, in connection with the Site(s), Services and MTC Items, Customer shall not, and Customer shall cause each Customer Party not to, use or utilize any MTC Confidential Information to: (i) directly or indirectly sell to, solicit or divert, or attempt to sell to, solicit or divert any customer, client or business affiliate of MTC for the purpose of or with the result of (A) competing with MTC with respect to the Site(s) or Services, or any of them, or any similar products, services or endeavors, (B) altering, modifying, diverting or precluding the development of any MTC business relationship involving the Site(s) or Services, or any of them, or any similar products, services or endeavors, or (C) otherwise interfering with business transacted with MTC with respect to the Site(s) or Services, or any of them, or any similar products, services or endeavors; or (b) directly or indirectly solicit or attempt to solicit, encourage, induce or entice MTC’s employees, contractors, suppliers or consultants to terminate or modify their employment, engagement or business relationship with MTC with respect to the Site(s) or Services, or any of them, or any similar products, services or endeavors.
j. Obligation to Notify and Assist. Customer agrees to immediately notify MTC of any unauthorized use or disclosure of any MTC Confidential Information related to Customer or any Customer Party’s possession of such MTC Confidential Information or any other breach of this Section 6 and these Terms, and Customer agrees to cooperate in every reasonable way to help MTC regain possession of any misused or mis-disclosed MTC Confidential Information and prevent (or limit to the extent possible) its further unauthorized use or disclosure.
k. No Warranty. Except as clearly and expressly provided in this Section 6(k) and in Section 8, below, all MTC Confidential Information is provided “as-is, where-is”. MTC makes no warranty, express or implied, regarding the timeliness, accuracy, performance or completeness of any MTC Confidential Information, except to the extent MTC actually knows of or actually discovers any inaccuracies, errors or omissions in such information, in which event MTC hereby warrants that it will promptly either correct or complete such information or report comprehensively and fully all inaccuracies, errors and omissions in such information.
7. Non-Disparagement. To the fullest extent permitted by law, Customer shall not at any time, directly or indirectly through third parties, actively or passively, disparage, question, criticize or otherwise make reference to any of the Site(s) or Services, or to MTC or any MTC Party, or to any actions or failures to act of MTC or any MTC Party, or cause others to do so, if the effect of such action(s) reasonably could be anticipated to result in any harm to or adverse impact upon the reputation, business, interests or relations of MTC or any MTC Party, or to the morale among the work force of MTC or any MTC Party.
8. Limited Warranty and Disclaimers.
a. Limited Warranty. MTC warrants that while these Terms remain in force and effect, MTC will use reasonable efforts to operate and maintain the Site(s) in good working order, to the extent reasonably practicable, and all information provided directly by MTC or the MTC Subs through the Site(s) will be accurate to the best of MTC’s knowledge. MTC further warrants that to the best of its knowledge all Services will be performed by competent, well-trained, appropriately qualified personnel, and MTC will exercise reasonable efforts to ensure that all Services will be performed in accordance with the applicable industry standards and any technical or functional specifications set forth at the Site(s) or in an applicable Order. Notwithstanding any other provision of these Terms, the foregoing warranties shall not apply to the following: (i) any errors or problems caused by any breach of any obligations of Customer or any of the Customer Personnel under these Terms; (ii) any application or modification of the Site(s) or Services in any way other than as expressly provided in these Terms; (iii) any improper use of the Site(s) or Services; (iv) any use of the Site(s) or Services except as expressly provided for in these Terms and the accepted and confirmed Orders; (v) any errors or problems in Customer data, including without limitation Customer Content, impacting the Site(s) or Services or performance or effectiveness thereof; (vi) any failure by Customer or any of the Customer Personnel to maintain and provide any necessary operating environment in which Customer and/or any Customer Personnel use, access, apply or utilize the Site(s) or Services; (vii) any errors caused by third-party software or hardware (other than that originated by an MTC Sub, for which MTC assigns any warranties provided by the MTC Sub in connection therewith as Customer’s sole and exclusive remedy, and for which Customer’s sole recourse shall be against such MTC Sub and not in any event or under any circumstance against MTC) or the configuration of such items as they relate to such access, utilization or application; or (viii) any interruptions in access to the Site(s) or Services or other downtime attributable to any Internet provider of Customer or any Customer Personnel.
b. Exclusive Remedy. In the event of any failure by MTC or by the Site(s) to perform, in any material respect, in accordance with the warranties set forth in Section 8(a), above, the only liability of MTC to Customer, and Customer’s sole and exclusive remedy, shall be to terminate the Customer Account and any pending Orders with thirty (30) calendar days prior written notice to MTC, within which time MTC may cure such failures to avoid such termination, and if MTC does not cure such failures within such thirty (30) calendar day period, or in the event a cure is not possible or practicable within such thirty (30) calendar day period if MTC does not commence a cure within such period and diligently continue it to completion, Customer may proceed with such termination, at which point Customer and Customer Personnel shall stop using the Site(s) and Services, and any related liability shall be as limited under Section 9, below.
c. Disclaimers. NOTWITHSTANDING ANYTHING IN THESE TERMS TO THE CONTRARY, EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6(k) AND SECTIONS 8(a) AND 8(b), ABOVE, MTC DOES NOT MAKE ANY OTHER REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SITE(S) OR SERVICES, OR ANY OTHER SERVICES, PRODUCTS, PROGRAMS, FEATURES OR DATA PROVIDED BY OR THROUGH MTC. THE LIMITED WARRANTIES SET FORTH HEREIN IN SECTIONS 6(k) AND 8(a), ABOVE, ARE EXCLUSIVE AND IN LIEU OF, AND CUSTOMER HEREBY DISCLAIMS AND WAIVES, ALL OTHER REPRESENTATIONS AND WARRANTIES OF MTC AND ALL MTC SUBS AND MTC PARTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, GOOD WORKMANSHIP, AND NON-INFRINGEMENT OF ANY THIRD PARTY RIGHTS OR ANY RIGHTS OF CUSTOMER. THE SITE(S) AND SERVICES, AND ALL OTHER SERVICES, PRODUCTS, PROGRAMS, FEATURES AND DATA PROVIDED BY OR THROUGH MTC ARE OTHERWISE DONE SO TO, FOR AND THROUGH CUSTOMER STRICTLY ON AN “AS IS, WHERE IS” BASIS. WITHOUT LIMITING THE FOREGOING, EXCEPT AS EXPRESSLY WARRANTED BY MTC IN SECTIONS 6(k) AND 8(a), ABOVE, MTC AND ITS LICENSORS DO NOT WARRANT THAT THE SITE(S) OR SERVICES, OR ANY OTHER MATERIAL OBTAINED BY CUSTOMER OR ANY OF THE CUSTOMER PERSONNEL THROUGH THE SITE(S) OR SERVICES, OR ANY OTHER SERVICES, PRODUCTS, PROGRAMS, FEATURES OR DATA PROVIDED BY OR THROUGH MTC, OR ANY USE OR OPERATION THEREOF: (i) WILL MEET THE REQUIREMENTS OR EXPECTATIONS OF CUSTOMER OR ANY CUSTOMER PERSONNEL; (ii) WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (iii) WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (iv) WILL OPERATE IN THE COMBINATIONS THAT CUSTOMER OR ANY OF THE CUSTOMER PERSONNEL MAY SELECT FOR USE, OR THAT ALL ERRORS THEREIN WILL BE CORRECTED; (v) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (vi) WILL GENERATE DATA OR OTHER RESULTS THAT ARE COMPLETE OR USEFUL FOR CUSTOMER’S PURPOSES. IT IS THE RESPONSIBILITY OF CUSTOMER TO EVALUATE THE COMPLETENESS OR USEFULNESS OF ALL DATA AND MATERIALS GENERATED THROUGH THE USE OF THE SITE(S) AND SERVICES FOR CUSTOMER’S PURPOSES. CUSTOMER AGREES THAT NO INCONSISTENT STATEMENT MADE BY A REPRESENTATIVE OR OTHER EMPLOYEE OR AGENT OF MTC WITH RESPECT TO A REPRESENTATION, WARRANTY OR OTHER TERM OR CONDITION OF THESE TERMS OR WITH RESPECT TO THE SITE(S) OR SERVICES, OR ANY OTHER SERVICES, PRODUCTS, PROGRAMS, FEATURES OR DATA PROVIDED BY OR THROUGH MTC, SHALL SUPERCEDE THESE TERMS, AND SPECIFICALLY THE DISCLAIMERS PROVIDED IN THIS SECTION 8(c), WHICH SHALL GOVERN AND TAKE PRECEDENCE IN THE EVENT OF ANY CONFLICT, AMBIGUITY OR QUESTION OF INTERPRETATION. CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT MTC EXERCISES NO CONTROL OVER, AND ACCEPTS NO RESPONSIBILITY FOR, CUSTOMER’S COMPLIANCE WITH ANY LAW OR REGULATION APPLICABLE TO CUSTOMER OR THOSE AUTHORIZED BY CUSTOMER TO USE OR UTILIZE THE SITE(S) AND SERVICES. WITH RESPECT TO CUSTOMER’S RIGHTS AND BENEFITS UNDER THIS AGREEMENT, NO PARTY OTHER THAN CUSTOMER MAY CLAIM TO BE A BENEFICIARY OF THESE TERMS, AND THERE ARE NO THIRD PARTY BENEFICIARIES HERETO.
9. Limitation of Liability.
a. Limitations and Exclusions. IN NO EVENT SHALL MTC BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR LOST PROFITS, LOST BUSINESS, LOST DATA, OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION BUSINESS INTERRUPTION OR LOSS OF PRODUCTION) FOR ANY CLAIM IN ANY MANNER ARISING OUT OF OR IN CONNECTION WITH OR IN ANY MANNER RELATED TO THESE TERMS, WHETHER BASED ON CONTRACT (INCLUDING BUT NOT LIMITED TO BREACH OF WARRANTY) OR TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EXCEPT WHERE MTC’S ACTS AND OMISSIONS HAVE CONSTITUTED RECKLESS CONDUCT, WILLFUL MISCONDUCT OR INTENTIONAL WRONGDOING. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THESE TERMS OR ANY ACCEPTED AND CONFIRMED ORDERS, IN NO EVENT SHALL MTC BE RESPONSIBLE OR LIABLE FOR (i) ANY CORRUPTION, DAMAGE, LOSS OR MISTRANSMISSION OF DATA; (ii) THE SECURITY OF DATA DURING TRANSMISSION VIA ANY INTERNAL NETWORKS OR EQUIPMENT OF CUSTOMER OR ANY OF THE CUSTOMER PERSONNEL OR VIA PUBLIC TELECOMMUNICATIONS MEDIA OR FACILITIES; (iii) HARDWARE, SOFTWARE, OR OTHER ITEMS OWNED BY CUSTOMER OR ANY OF THE CUSTOMER PERSONNEL OR THAT ARE THE PROPERTY OF A THIRD PARTY THAT IS NOT AN MTC SUB; OR (iv) ANY OTHER MATTERS OR ITEMS FOR WHICH CUSTOMER IS EXPRESSLY MADE RESPONSIBLE, OR FOR WHICH MTC IS DECLARED NOT TO BE RESPONSIBLE, UNDER THESE TERMS. CUSTOMER IS RESPONSIBLE FOR DETERMINING WHETHER THE SITE(S) AND SERVICES ARE SUITABLE FOR THE INTENDED USES OF CUSTOMER AND CUSTOMER PERSONNEL. CUSTOMER UNDERSTANDS THAT USEAGE MAY NOT BE UNINTERRUPTED AND ERROR-FREE. IF CUSTOMER OR ANY OF THE CUSTOMER PERSONNEL IS A CALIFORNIA RESIDENT, THEN BY ACCEPTING THESE TERMS CUSTOMER IS WAIVING CALIFORNIA CIVIL CODE SECTION 1542, WHICH 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 OR HER SETTLEMENT WITH THE DEBTOR”.
b. Maximum Aggregate Liability. EXCEPT WHERE MTC’S ACTS AND OMISSIONS HAVE CONSTITUTED RECKLESS CONDUCT, WILLFUL MISCONDUCT OR INTENTIONAL WRONGDOING, THE TOTAL AGGREGATE LIABILITY OF MTC UNDER OR IN RELATION TO THESE TERMS, AND THE SITE(S) AND SERVICES, OR ANY OTHER SERVICES, PRODUCTS, PROGRAMS, FEATURES AND DATA PROVIDED BY OR THROUGH MTC, OR ANY OTHER MATTER COVERED BY THESE TERMS, REGARDLESS OF THE FORM OF ACTION, WHETHER ARISING OUT OF BREACH OF CONTRACT (INCLUDING BUT NOT LIMITED TO BREACH OF WARRANTY) OR TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), SHALL IN NO EVENT EXCEED THE TOTAL AMOUNTS ACTUALLY PAID TO DATE BY CUSTOMER UNDER AND IN RELATION TO THESE TERMS. THE LIMITATIONS OF LIABILITY UNDER THIS SECTION 9 SHALL NOT APPLY ONLY TO THE EXTENT SUCH LIABILITY CANNOT BE SO LIMITED OR EXCLUDED BY APPLICABLE LAW. IN JURISDICTIONS WHERE ANY SUCH LIMITATIONS ARE PROHIBITED, THOSE THAT ARE NOT PROHIBITED SHALL REMAIN IN FULL FORCE AND EFFECT, AND THE MAXIMUM DAMAGES AND TOTAL AGGREGATE LIABILITY OF MTC SHALL NOT EXCEED THE STATUTORY MINIMUM OR THE MINIMUM PROVIDED BY APPLICABLE LAW.
c. Acknowledgment. Customer and MTC acknowledge that they have reached agreement on base compensation and other charges set forth in these Terms in reliance on the disclaimers of warranty and limitations and exclusions of liability set forth in these Terms and that the same form an essential basis of the bargain between the Customer and MTC. Sections 8 and 9 of these Terms allocate the risks under these Terms between MTC, on one hand, and Customer, on the other, and are viewed by such parties as an integral part of the business arrangement between them. The pricing and other terms and conditions of these Terms reflect this allocation of risk and the limitations specified herein. Each of Customer and MTC has a duty to mitigate the damages and losses that would otherwise be recoverable from the other pursuant to these Terms (including under any indemnity) by taking appropriate and commercially reasonable actions to reduce or limit the amount of such damages or losses.
10. Indemnity. Subject to the limitations set forth in Sections 8 and 9, above, Customer and MTC, and each of them, shall indemnify, defend, protect and hold each other, and each other's employees, officers, principles, directors, agents, representatives, successors and assigns harmless from and against any and all actions, causes of action, demands, liabilities, losses, damages, injuries, costs, or expenses, of whatever kind in nature, including attorney's fees and reasonable expenses incurred in connection with these Terms, to the extent arising or resulting from, caused by or pertaining to the breach or violation of any duties, obligations or responsibilities under these Terms, or the negligence, willful misconduct or otherwise wrongful conduct of the indemnifying party, or any third party for whom the indemnifying party is legally responsible (in the case of MTC, the MTC Subs; in the case of Customer, all Customer Parties), in relation to these Terms, except to the extent the damage or liability is caused by the breach or violation of any duties, obligations or responsibilities under these Terms, or the negligence, willful misconduct or otherwise wrongful conduct of the indemnified party of any third party for whom the indemnified party is legally responsible (in the case of MTC, the MTC Subs; in the case of Customer, all Customer Parties). Notwithstanding the other provisions in these Terms and the accepted and confirmed Orders, Customer is responsible for ensuring that the Customer Parties, and all of them, comply with the terms, conditions, restrictive covenants and applicable legal requirements related to these Terms, and shall be responsible, jointly and severally, for communication with the Customer Parties, and all of them, in relation thereto. Customer and its signatory under these Terms, and all Customer Parties, including without limitation Customer Personnel, shall therefore be jointly and severally responsible for indemnification under this Section 10 in the event of any failure to do so. Customer and MTC agree to notify each other immediately upon the making of any claim or institution of litigation or dispute resolution proceedings giving rise to any obligation of indemnity under these Terms. Notwithstanding the provisions of this Section 10, no claim or litigation which is based in whole or in part upon allegations arising from activities undertaken pursuant to these Terms shall be settled by the indemnified party without the advance written approval of the indemnifying party, which approval shall not unreasonably withheld or delayed.
11. Termination. MTC or Customer may terminate the Customer Account and any pending Orders for cause upon written notice if the other breaches or defaults in any of its material obligations, duties or responsibilities under these Terms or any applicable Order, and such breach is not cured within thirty (30) calendar days following receipt of written notice thereof, or in the event such breach cannot reasonably be cured within such time period, such cure is not commenced within such thirty (30) calendar day period and diligently continued to completion. In the event the Customer Account and pending Orders are terminated, Customer shall provide payment for all Services provided as of the date of the termination. Customer’s and each of the Customer Personnel’s access codes for the Site(s) and Services shall be terminated immediately upon termination of the Customer Account, and Customer and each of the Customer Personnel shall thereupon have no further ability to access or use the Site(s) or Services. Upon such termination, all Customer data, including the Customer Content, and as yet untransferred Customer Materials stored within the Site(s) shall be preserved for a limited time and transferred as set forth in Subsection 3(c)(iii), above.
12. Applicable Law. All claims and disputes related to these Terms shall be settled in accordance with the Dispute Resolution provisions set forth in Section 13 of these Terms. Interpretation and performance of these Terms shall be in accordance with and pursuant to the substantive laws of the State of Arizona, without regard to principles of conflicts of laws.
13. Dispute Resolution. Any dispute, controversy or claim that may arise under or in relation to these Terms, or any interpretation or enforcement of these Terms, or any transactions or other matters contemplated hereunder (each, a “Dispute”, and collectively, “Disputes”) shall be submitted to a mediator located in the Phoenix, Arizona metropolitan area, or in Maricopa County or Pinal County, Arizona, prior to any arbitration or other action. The mediator’s fees and expenses shall be shared equally by the parties, who agree to exercise their best efforts in good faith to resolve all disputes in mediation. Mediation begins on the date one party sends written notice to the other requesting mediation and presenting in the notice the matter to be mediated. The mediation shall conclude when all parties thereto sign an agreement that resolves the subject of the mediation. If no agreement is reached within sixty (60) calendar days after the date of the original written notice, the mediation is considered unsuccessful. In the event any Dispute cannot be settled by the parties informally or through mediation, the Dispute shall be submitted to binding arbitration before a mutually agreeable arbitrator in the Phoenix, Arizona metropolitan area, or in Maricopa County or Pinal County, Arizona. In the event the parties cannot agree on an arbitrator, the presiding judge of the Superior Court of Pinal County or Maricopa County, Arizona, shall decide who the arbitrator shall be. The arbitrator shall have the discretion to enter any award permissible under applicable law, and such award shall be enforceable exclusively in a state or federal court of competent jurisdiction in the Phoenix, Arizona metropolitan area, or in Maricopa County or Pinal County, Arizona. Customer hereby consents to the personal jurisdiction of such courts located in Maricopa and Pinal County, Arizona, for such purpose. CUSTOMER ALSO HEREBY WAIVES RIGHT TO A JURY TRIAL. Should any arbitration or other legal proceeding concerning any provision of these Terms or the rights and duties of any person or entity in relation hereto be commenced among the parties, or should any party institute any proceeding in a bankruptcy or similar court which has jurisdiction over any party or any or all of such other party's property, the party or parties prevailing in such arbitration or proceeding shall be entitled, in addition to such other relief as may be granted, to a reasonable sum for their attorneys’ fees and court costs in such arbitration or proceeding which fees and costs shall be determined by the arbitrator or court, as the case may be, in such proceeding or in a separate action brought for that purpose.
14. Miscellaneous Provisions.
a. Assignment. None of a party's rights, obligations or claims under or with respect to these Terms or the Services may be assigned, in whole or in part, by such party without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed.
b. Invalid Provisions / Severability. If any provision of these Terms is held to be illegal, invalid or unenforceable under present or future laws, such provision shall be fully severable; these Terms shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part (t)hereof; and the remaining provisions of these Terms shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or its severance from these Terms. Furthermore, in lieu of such illegal, invalid or unenforceable provision, there shall be added automatically as part hereof a provision as similar in terms, but in any event no more restrictive than, such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable.
c. Inconsistency Among Terms. Except as expressly otherwise provided in these Terms, where any provision or term, in whole or in part, of any contract documents related to these Terms conflicts with or is inconsistent with the express provisions of these Terms, then the provisions of these Terms shall control, and the provisions or terms of the related contract documents shall be deemed to be inapplicable and void.
d. Entire Agreement. These Terms, together with all accepted and confirmed Orders and other documents, agreements and undertakings incorporated herein and integrated herewith by reference, represent the entire agreement between MTC and Customer and modify and supersede any prior agreements executed by MTC and Customer with respect to the subject matter hereof. There are no promises, terms, conditions, or obligations between Customer and MTC other than those contained or otherwise referenced (t)herein.
e. Modification. Except as otherwise expressly provided herein, these Terms may not be changed, modified, or amended without the written consent of an actually authorized representative of both MTC and Customer.
f. No Waiver. Failure on the part of MTC to complain of any act or failure to act of another party or to declare another party in default, irrespective of how long such failure continues, shall not constitute a waiver by MTC of its rights hereunder. Any waiver by MTC of any default of another party shall not affect or impair any right arising from any other or subsequent default. Nothing herein shall limit MTC’s remedies and rights under and pursuant to these Terms.
g. Interpretation; Construction. The headings set forth in these Terms are for convenience only and shall not be used in interpreting these Terms. They are not to be construed as a part of these Terms, and they in no way define, limit or amplify the provisions of these Terms. These Terms have been drafted by legal counsel representing MTC, but Customer has had an opportunity to review these Terms and have it reviewed by legal counsel, if desired, and, therefore, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of these Terms.
h. Injunctive Relief. Customer recognizes and agrees that a breach of any of the provisions of Sections 6 and 7 of these Terms will constitute immediate and irreparable harm to MTC’s valuable business relations, for which damages cannot be readily calculated and for which damages and other remedies at law constitute an inadequate remedy. In the event that Customer or any Customer Party attempts or threatens to violate any obligations under such Sections 6 and 7, above, MTC shall have, in addition to any other remedies available to it, the right to injunctive relief enjoining any further breaches by Customer or such Customer Party, as the case may be, and notwithstanding the provisions of Sections 12 and 13, above, MTC shall be entitled to seek such relief in any court of competent jurisdiction in Maricopa or Pinal County, Arizona, without the need to prove damages. Customer hereby consents to the personal jurisdiction of such courts for such purpose and agrees that in the event such relief is granted, Customer shall also pay MTC’s reasonable attorney’s fees in connection with the same.
i. Force Majeure. MTC shall not under any circumstances be liable for any damages or penalty for any delay in performance of, or failure to perform, any obligation hereunder or for failure to give Customer prior notice thereof when such delay or failure is due to the elements, acts of God, government regulation, political instability, acts of war, acts of terrorism, power outages, changes in law, internet disruption, disease, viruses, bacteria, epidemics, pandemics or health threats as declared by a government or health care agency, or other causes beyond MTC’s control.
j. Notices. Any notice to be given under these Terms shall be in writing and shall be deemed to have been given when personally served, when mailed by certified or registered mail, or when submitted by verifiable electronic mail, addressed to the Customer’s address and to MTC’s address as designated on the most recent accepted and confirmed Order or as set forth in connection with the Customer Account, to the attention of those designated therein. The addresses and/or contact points may be changed from time to time by either Customer or MTC by serving notice as provided in this Section 14(j).
k. Survival. The respective rights and obligations of the parties under Sections 1(c), 3(c)(iii), 5 through 10 and 12 through 14 of these Terms, as well as the last two sentences of Section 2(c) and the last three sentences of Section 11 of these Terms, shall survive the termination of the Customer Account and access by Customer and Customer Personnel to the Site(s) and Services.
BY CLICKING AGREEMENT AS PROVIDED AT THE SITE(S), CUSTOMER UNDERSTANDS, ACKNOWLEDGES AND CONFIRMS THAT CUSTOMER AND EACH OF THE CUSTOMER PERSONNEL HAVE READ THESE TERMS TO COMPLETION, FULLY UNDERSTAND ALL PROVISIONS HEREIN, UNDERSTAND THAT CUSTOMER AND EACH OF THE CUSTOMER PERSONNEL HAVE GIVEN UP SUBSTANTIAL RIGHTS BY AGREEING TO THESE TERMS, AND ACCEPT AND AGREE TO BE BOUND BY THESE TERMS FREELY AND VOLUNTARILY, AND WITHOUT ANY UNDUE INFLUENCE. CUSTOMER AND EACH OF THE CUSTOMER PERSONNEL ACKNOWLEDGE THAT SUCH PARTIES HAVE RECEIVED VALUABLE CONSIDERATION IN RELATION TO THEIR ACCEPTANCE OF AND AGREEMENT TO BE BOUND BY THESE TERMS, WHICH CUSTOMER AND EACH OF THE CUSTOMER PERSONNEL UNDERSTAND TO BE A PREREQUISITE TO THEIR ABILITY TO ORDER, PURCHASE, RECEIVE AND PARTICIPATE IN ANY SERVICES, TO USE AND UTILIZE THE SITE(S). FINALLY, CUSTOMER AND EACH OF THE CUSTOMER PERSONNEL UNDERSTAND THAT THESE TERMS, TOGETHER WITH THE PROVISIONS AND CONDITIONS OF EACH CORRESPONDING ORDER AND ANY DOCUMENTS INCORPORATED (T)HEREIN AND INTEGRATED (T)HEREWITH BY REFERENCE, SHALL BE OF FULL FORCE AND EFFECT AS TO ANY AND ALL SUCH ACTIVITIES, WITHOUT REGARD TO THE DATE OR TIMING OF ANY SUCH ACCESS, PARTICIPATION, PURCHASE, USE OR UTILIZATION. CUSTOMER CERTIFIES THAT CUSTOMER AND EACH OF THE CUSTOMER PERSONNEL ARE AT LEAST 18 YEARS OF AGE AND OF SOUND MIND AND FULL CAPACITY TO ENTER INTO AND BE BOUND BY THESE TERMS.
BY CLICKING AGREEMENT AS PROVIDED AT THE SITE(S), CUSTOMER HEREBY UNDERSTANDS, ACKNOWLEDGES AND CONFIRMS THAT AT ALL RELEVANT AND APPLICABLE TIMES, ALL REPRESENTATIONS, WARRANTIES AND COVENANTS OF CUSTOMER PROVIDED IN THESE TERMS ARE ACCURATE AND COMPLETE, MTC SHALL HAVE THE RIGHT TO RELY ON THE SAME IN FULL.