Smarter Sorting Customer Agreement

BY EXECUTING THIS CUSTOMER AGREEMENT (“AGREEMENT”) OR EXECUTING AN ORDER INCORPORATING THIS AGREEMENT BY REFERENCE, THE CUSTOMER IDENTIFIED WITHIN THIS AGREEMENT OR ON SUCH ORDER, RESPECTIVELY (THE “CUSTOMER”) ACCEPTS AND AGREES TO THIS AGREEMENT. THIS AGREEMENT CONSTITUTES A LEGAL AGREEMENT BETWEEN CUSTOMER AND WASTE REPURPOSING INTERNATIONAL, INC. D/B/A SMARTER SORTING, A DELAWARE CORPORATION, WITH A BUSINESS ADDRESS LOCATED AT 4845 PEARL EAST CIRCLE, SUITE 118, PMB 90866, BOULDER CO 80301 (“SMARTER SORTING”). BY USING ANY SMARTER SORTING SERVICES, CUSTOMER IS AGREEING TO THIS AGREEMENT. BE SURE TO OCCASIONALLY CHECK BACK FOR UPDATES TO THIS AGREEMENT.

1. Definitions

“Account” refers to an account created by or for Customer for its Users’ access the Services.

“Affiliate” means any entity that controls, is controlled by or is under common control with a party. For purposes of this definition, 'control' means at least fifty percent (50%) of the capital, assets, voting stock, profits, interests, or similar participation rights are owned or controlled, directly or indirectly by an entity under this definition.

“Classifications” means the underlying classifications and attributes generated by the Classification Engine from Product Information, including but not limited to regulatory, hazmat, packaging, recyclability, and ingredient classifications. The set of Classifications provided by Smarter Sorting, and the rules governing them, may change over time.

“Classification Engine” means the Smarter Sorting software which analyzes Customer Data and Product Information and generates the Classifications.

“Customer Documentation” means any accompanying documentation made available to Users by Smarter Sorting for use with the Services, including any documentation available online.

“Effective Date” means the date of the last signature by Customer and Smarter Sorting executing this Agreement or the applicable Order incorporating this Agreement. For clarity, any data provided by Customer to Smarter Sorting and Customer’s usage of Smarter Sorting’s Services in advance of the Effective Date shall also be governed by this Agreement.

“Order” means an ordering document that is entered into between Customer and Smarter Sorting.

“Packaging Reports” means a regulatory-formatted report, including the underlying Classifications presented in the form, structure, and scope required by a specific regulatory program (for example, an EPR program). Packaging Reports are derived from, but distinct from, the Classifications themselves. The set of Packaging Reports provided by Smarter Sorting, and the formats and rules governing them, may change over time.

“Platform” means the Smarter Sorting user interface accessible through Smarter Sorting (or other documented endpoints), and API-based services through which Users can access certain Smarter Sorting Services for accessing, providing, and using the Customer Data, Smarter Sorting Data, and Classifications and Packaging Reports, together with any updates and improvements thereto.

“Product Information” means the details and descriptions of products and their packaging, including UPC/Barcode, product name, brand name, product category, FDA status, EPA registration, Safety Data Sheets, Ingredients List, Article Information Sheet, Technical Data Sheet, product images, packaging component descriptions, packaging materials and material specifications, component weights and dimensions, recyclability designations, and other product attributes such as consumer size/quantity, item form, and intended use.

“Customer Data” means the data Customer collects, processes, provides, shares or stores with Smarter Sorting directly or via third parties, including (a) Product Information, (b) information about Customer, and (c) information about a Customer’s UPC inventory lists, product suppliers (supplier names, supplier contacts, associated products), custom business rules and other Customer-specific identifiers (such as item number, department number, etc.).

“Services” means the Smarter Sorting products and services that are ordered by Customer pursuant to an Order, including, as applicable, access to or use of the Platform.

“Smarter Sorting Data” means all data, records, Classifications, Packaging Reports, Product Information or attributes, business rules, and materials that, as part of Customer’s and its Users’ use of the Services are (a) provided to Customer or its Users or (b) accessed by Customer or its Users.

“Subscription Term” means the period of time set forth in the applicable Order during which Customer is authorized to use the Services.

“User” means Customer’s and Customer’s Affiliates’ employees, contractors, consultants, partners, collaborators, and agents (including any third party to whom Customer has outsourced all or part of its operations, disaster recovery, or hosting services) who are authorized by Customer to use the Service for Customer’s internal business purposes in accordance with this Agreement. “User” shall not include any person who Customer knows is associated with any competitors of Smarter Sorting.

“User Information” means any information regarding Customer’s Users relating to an identified or identifiable natural person.

2. Grant of Rights; Restrictions

(a) Subject to and conditioned upon Customer’s compliance with this Agreement, Smarter Sorting grants to Customer a limited, non-exclusive, non-transferable (except as permitted via Section 17 of this Agreement), non-sub licensable license during the applicable Subscription Term to authorize Users to access, view, and use pages within the applicable Services and Smarter Sorting Data solely for Customer’s internal business purposes, only in the form found within the Services, and only in accordance with the applicable Order and Documentation.

(b) Customer’s access to and use of the Services is subject to the Smarter Sorting Privacy Policy available at https://www.smartersorting.com/legal/privacy-policy, any additional terms, requirements, or usage or other policies relating to the Services posted or otherwise made available to Customer by Smarter Sorting (collectively, “Additional Terms”). The Additional Terms are part of this Agreement and are hereby incorporated by reference, and Customer agrees to be bound by the Additional Terms.

(c) Customer agrees that Customer will not (and will not allow any User or third party to) (i) copy, modify, adapt, translate or otherwise create derivative works of the Services, including the Platform or the Documentation; (ii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Platform or other Services; (iii) rent, lease, sell, assign or otherwise transfer rights in or to the Platform, the Documentation or other Services; (iv) remove any proprietary notices or labels on the Platform or placed by the Services; (v) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Platform or other Services; or (vi) use Customer Data or Smarter Sorting Data for purposes other than (A) generating, viewing, and downloading Classifications and Packaging Reports, (B) validating formulation data or product attributes, unless expressly permitted otherwise in writing or via an Order. Customer represents and warrants that it will comply with all applicable laws and regulations in Customer’s use of and access to the Documentation, Platform, Classifications and Packaging Reports, and other Services.

(d) Customer is only authorized to use or permit Users to use the Platform for the purposes of accessing and using the Services. Customer agrees to use the Platform only for purposes that are lawful and permitted by this Agreement. Customer specifically agrees not to access (or attempt to access), or systematically retrieve data from, any part of the Platform or other Services through the use of scripts, bots, web crawlers or similar automated means without the express prior written consent of Smarter Sorting. Gathering data from the Platform or other Services through harvesting or automated means that are not enabled or approved through the Platform itself is strictly prohibited. Customer agrees that Customer will not engage in any activity that interferes with or disrupts the Platform or interferes with any other party's use of the Platform. Customer agrees not to engage in any conduct in connection with its or its User’s use of the Platform that is anti-competitive, deceptive or otherwise in violation of any law including those governing competition or trade practices. Customer further agrees not to tamper with the Platform or its functionality. Customer shall not post or transmit any information, file or software that contains a virus, worm or any other potentially contaminating or destructive information, data or feature.

3. Account; Creation

(a) In registering for an Account, Customer must: (i) provide information about Customer as prompted by the registration form (the “Registration Data”) including the account manager’s name and business contact information; and (ii) maintain and promptly update the Registration Data.

(b) It is Customer’s responsibility to prevent unauthorized access to Customer’s account and to ensure that its Users’ passwords, usernames, logins or single sign-on authentications, as applicable, are not disclosed to, or misused by, others. Customer is fully responsible for all activities that occur under Customer’s account, whether or not Customer authorized the particular use or User, and regardless of Customer’s knowledge of such use. Customer agrees to notify Smarter Sorting immediately of any unauthorized use of Customer’s account or password or any other similar breach of security.

(c) Smarter Sorting’s staff may, from time to time, access Customer’s account in order to maintain, support or improve the Services, including to provide assistance with technical or billing issues.

4. Fees and Taxes

(a) Fees. All fees are as set forth in the applicable Order and unless otherwise specifically stated in the Order, all payments to Smarter Sorting are due within 30 days of date of the invoice. If Customer has specified credit/debit card or direct withdrawal from a bank account as an applicable payment mechanism under this Agreement, Customer grants Smarter Sorting the right to charge the credit/debit card or debit the bank account provided to Smarter Sorting for all fees incurred under this Agreement. All payments are non-refundable. Any outstanding balance becomes immediately due and payable upon termination of this Agreement and any collection expenses (including attorneys’ fees) incurred by Smarter Sorting (or other related entities) will be included in the amount owed by Customer. If payment of any fee is overdue, Smarter Sorting may suspend, at Smarter Sorting's sole discretion, (a) Customer’s Use of the Services and any support until such delinquency is corrected and (b) the use of Customer Data permitted parties within the Services. Non-payment or late payment of undisputed fees is a material breach of this Agreement. To the extent permitted by applicable law, Customer shall pay interest on any overdue balance at the rate of 1½% per month or the maximum permitted by law, whichever is less.

(b) Taxes. If Customer is required to pay any withholding tax, charge or levy in respect of any payments due to Smarter Sorting hereunder, payments will be made without right of set-off or chargeback. Customer is responsible for the payment of taxes in connection with this Agreement that are imposed by law on Customer as the buyer of the Services, which may include, but are not limited to, sales, use, excise, value-added, business, service, goods and services, consumption, and other similar taxes or duties. Smarter Sorting will be responsible for the payment of all taxes in connection with this Agreement that are imposed by law on Smarter Sorting as the seller or provider of the Services. Each party will be responsible for its own income taxes, gross receipts taxes, employment taxes, and property taxes. To the extent Smarter Sorting is required to collect taxes for which Customer is responsible, Smarter Sorting will identify such taxes as separate line items on affected invoices. Each party will provide to the other party any resale exemption, multiple points of use certificates, treaty certification and other exemption information reasonably requested by the other party from time to time.

5. Product Information

Customer represents and warrants that it shall provide Smarter Sorting with accurate, complete, up-to-date Customer Data and Product Information, including but not limited to the elements of Product Information reasonably necessary for Smarter Sorting to generate the Classifications and Packaging Reports identified in the applicable Order, which may include packaging component descriptions, materials and material specifications, component weights and dimensions, recyclability designations, ingredients, Safety Data Sheets (“SDSs”), and other regulatory documentation; and (b) any additional product or packaging data that the applicable regulatory program(s) require Customer to disclose. Customer is responsible for maintaining current and accurate Product Information and Customer Data in the Platform. Failure to provide timely, accurate, and complete Product Information or other Customer Data may result in Customer’s liability for improper Classifications and Packaging Reports. If any of the Product Information or Customer Data that Customer provides to Smarter Sorting changes, including if the ingredients that go into a product change or there is an update to a product SDS, Customer must update Customer’s Product Information as soon as reasonably possible after it changes. Customer may update Customer’s Product Information by logging into the Platform or contacting Customer Support at support@smartersorting.com. When Customer registers its products in the Platform, Customer may be asked to confirm at various points in the process that the Product Information Customer is providing is accurate, whether it is provided by Customer and by a third-party data provider on Customer’s behalf. For example, we may ask Customer to check a box to confirm that the ingredients Customer enters reflect all ingredients that are regulated in the State of California, or to confirm that all CAS numbers and weights are accurate. Regardless of whether we ask Customer to confirm Customer’s Product Information, Customer remains responsible for the Product Information and the accuracy and completeness thereof.

6. Customer Data; Aggregated Data

(a) Customer acknowledges and agrees that all information, data, data records, databases, text, software, photographs, images, graphics, videos, messages, scripts, tags and other materials accessible through the Services, whether publicly posted or privately transmitted, are the sole responsibility of the person or entity from which it originated. This means that Customer, and not Smarter Sorting, is entirely responsible for Customer Data, and other users of the Services, and not Smarter Sorting, are similarly responsible for all such items that they upload, post, email, transmit or otherwise make available through the Services. In the event that such data is provided by Smarter Sorting from a third-party source, it is provided to Customer on an “AS-IS” basis without any warranties, including but not limited to any warranties regarding its accuracy or validity, and it is the Customer’s sole responsibility to validate and approve any such data before use.

(b) Customer retains ownership of any intellectual property rights that Customer holds in any Customer Data; however, subject to Smarter Sorting’s obligations in Section 8 (Confidential Information), Customer grants to Smarter Sorting a non-exclusive, worldwide license, for the duration of the Subscription Term and any period during which Smarter Sorting is required to retain Customer Data, to use, host, store, reproduce, modify, and create derivative works of such Customer Data solely as reasonably necessary to (i) provide the Services to Customer, (ii) generate Classifications and Packaging Reports for Customer, and (iii) share Classifications and Packaging Reports with regulatory authorities and other third parties expressly authorized in writing by Customer or in the applicable Order. The portions of this license reasonably necessary for Smarter Sorting to comply with its own legal, regulatory, and recordkeeping obligations (including retention of Classifications and Packaging Reports) survive termination or expiration of this Agreement; all other portions terminate on expiration or termination. Smarter Sorting’s rights to use Anonymized Data are governed solely by Section 6(e). Notwithstanding the foregoing, some of Smarter Sorting’s Services may (i) offer Customer ways to access and remove certain Customer Data, and/or (ii) offer Customer ways to narrow the scope of Smarter Sorting’s use of certain Customer Data, including allowing Customer to apply certain restrictions on the sharing of Customer Data and to classify such Customer Data as confidential within the Platform.

(c) Customer represents, warrants, and covenants that Smarter Sorting may rely upon and process all Product Information. In addition, Customer represents and warrants that the Product Information is either: (a) owned or licensed by Customer or that (b) Customer has all rights necessary to provide the license to Customer Data in Section 6(b) of this Agreement. To Customer’s knowledge, Customer Data does not infringe on the intellectual property rights of any third party. Customer agrees that in the event that any of the Product Information is inaccurate, Smarter Sorting will not be liable for any performance or alleged non-performance of Services. Customer further represents and warrants that it will independently validate and approve any data provided by Smarter Sorting from a third-party source before use of such data.

(d) Third Party Data Warehouses and Data Syndication Services. Many customers utilize 3rd party data warehouses and data syndication services (such as One World Sync, Salsify, SPS, GS1 and others) as repositories for, and distributors of, their product data for the purposes of sales enablement, transportation enablement, safety and compliance, marketing information and other such uses. Smarter Sorting, where possible, seeks to lessen the burden of additional data entry on the part of its Customers by accessing the data from these third-party data warehouses and data syndication services and by retrieving the data on behalf of the supplier to assist the supplier in registering its products and entering its Product Information. Customer hereby grants permission to Smarter Sorting to access Customer Data from these sources, including any third-party data warehouse and data syndication services that Customer contracts with, or may contract with, in the future, for these purposes. Smarter Sorting may identify other data providers that may help facilitate the registration of Customer products and completion of Customer’s Product Information. Customer agrees to provide such additional written authorizations and confirmations as may be needed to facilitate the access and use of Product Information on Customer’s behalf in accordance with this Agreement.

(e) As used herein, "Anonymized Data" means Customer Data that has been anonymized in a manner that does not reveal any personal information and cannot reasonably be used to (i) identify Customer, (ii) identify Customer’s Users or (iii) identify Customer’s organization or its customers or vendors as the source of such data. Customer acknowledges and agrees that Smarter Sorting may collect or generate Anonymized Data in connection with providing Customer with access to or use of the Services, and Customer hereby grants Smarter Sorting and its service providers a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made Anonymized Data (in any form and any medium, whether now known or later developed) for any lawful purpose.

7. Information Security

Smarter Sorting has implemented and will maintain reasonable administrative, physical, and technical security measures consistent with applicable law and current prevailing security practices that are intended to protect against the loss, misuse, unauthorized access, alteration or disclosure of Customer Data and User Information. Such additional measures will include compliance with the Privacy Policy. Smarter Sorting shall notify Customer of any security breach involving User Information or Customer Data as soon as practical after Smarter Sorting becomes aware of such breach. As soon as practical, Smarter Sorting will provide additional information detailing the specifics of the breach, root cause analysis, and any User Information or Customer Data that may have been compromised. All such information security reports shall be “Confidential Information” as defined in Section 8.

8. Confidential Information

“Confidential Information” means any and all non-public confidential and/or proprietary information, regardless of whether it is in tangible form, disclosed or accessed by either party that the disclosing party has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary within thirty (30) days of disclosure to the other party, including but not limited to Customer Data that has been identified as confidential via the Platform; provided, however, that a disclosing party’s business plans, strategies, technology, research and development, current and prospective customers, billing records, and products or services shall be deemed Confidential Information of the disclosing party even if not so marked or identified. Smarter Sorting’s Confidential Information includes, without limitation, Customer Data, Smarter Sorting Data, the Smarter Sorting Services and this Agreement. All Customer Data shall be treated as publicly available information unless Customer identifies Customer Data as being confidential at the time that it is provided to Smarter Sorting. Except as permitted by this Agreement, neither party will (a) make any use of the other party’s Confidential Information; (b) acquire any right in the other party’s Confidential Information; (c) disclose any of the other party’s Confidential Information to a third party; or (d) refuse to promptly return or destroy the other party’s Confidential Information upon request. Notwithstanding the foregoing, this Section 8 will not apply to any information that the receiving party can demonstrate: (a) is or becomes publicly available or a part of the public domain through no fault of its own; or (b) was in the possession of the receiving party at the time of its disclosure by the disclosing party as evidenced by files existing at the time of disclosure; (c) was disclosed by recipient with the prior written approval of discloser; (d) was independently developed by recipient without any use of discloser's Confidential Information; or (e) became known to recipient, without restriction, from a source other than discloser without breach of this Agreement by recipient and otherwise not knowingly in violation of discloser's rights. Each party will use reasonable measures to protect the confidentiality and value of the other party’s Confidential Information. Notwithstanding any provision of this Agreement, either party may disclose the other party’s Confidential Information, in whole or in part (i) to its employees, officers, directors, consultants and professional advisers (e.g., attorneys, auditors, financial advisors, accountants and other professional representatives) who have a need to know and are legally bound to keep such Confidential Information confidential by confidentiality obligations or, in the case of professional advisors, are bound by ethical duties to keep such Confidential Information confidential consistent with the terms of this Agreement. Further, either party may disclose the other party’s Confidential Information to the extent required by law or by order of a court or governmental agency after providing notice to the other party, and providing such party with the opportunity to seek a protective order. In the event of actual or threatened breach of the provisions of this Section 8, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waving any other rights or remedies available to it. Each party shall promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.

9. Intellectual Property

(a) Smarter Sorting and its licensors own and retain all right, title, and interest, including all intellectual property rights, in and to the Service and Smarter Sorting Data, including any improvements, modifications, and enhancements to it. Except for the rights expressly granted in this Agreement, Customer shall acquire no other rights, express or implied, in or to the Services, and all rights not expressly provided to Customer hereunder are reserved by Smarter Sorting and its licensors. All copies of the Service and Smarter Sorting Data provided or made available hereunder are licensed, not sold.

(b) Smarter Sorting grants to Customer a limited license to use, host, store, reproduce, modify, create derivative works, communicate, share with third parties, including but not limited to applicable government and regulatory entities, and distribute Classifications and Packaging Reports solely for its internal business use and for required reporting purposes. Except for Customer Data and except as set forth in the previous sentence, Customer does not have and will not acquire any right, title and interest in and to the Services or Smarting Services Data or any intellectual property rights which subsist therein (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Nothing created under this Agreement is a joint work. For the sake of clarification this provision shall include any customization of the Services.

(c) Notwithstanding anything to the contrary in this Agreement, certain Smarter Sorting Data may be provided to Customer via the Platform pursuant to a separate agreement or license between Smarter Sorting and a third-party data provider (including but not limited to Customer Data) (“Third-Party Data”) and such Third-Party Data may be subject to additional license or use restrictions. Such additional license or use restrictions may be provided to Customer via the Platform and Customer agrees to use any such Third-Party Data solely in accordance with such terms.

(d) Marketing Support. Customer hereby grants to Smarter Sorting a nonexclusive, worldwide, royalty-free, fully paid up, non-sub licensable (except to contractors performing services on behalf of Customer or Smarter Sorting), nontransferable (except as set forth in Section 17) right and license to copy, display and otherwise use Customer’s trademarks, service marks, trade names, image, character, logos, domain names and other distinctive brand features or other identification (“Trademarks”) in connection with its performance hereunder and otherwise in connection with providing services to retailers and other third-parties using the Services. Customer agrees that Smarter Sorting may publish a brief description of its relationship with Customer as a licensee of the Services or Smarter Sorting Customer, including by identifying Customer and using Customer’s name or logo, on any of Smarter Sorting's websites, client lists, press releases, or other marketing materials.

10. Suggestions

If Customer elects to provide or make available to Smarter Sorting any suggestions, comments, ideas, improvements or other feedback relating to the Services (“Suggestions”), Customer hereby grants to Smarter Sorting and its service providers a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license, to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise grant rights in Customer’s Suggestions in any form and any medium (whether now known or later developed), without credit or compensation to Customer.

11. Indemnification

(a) Customer will indemnify, defend and hold harmless Smarter Sorting, at Customer’s expense, from any and all third-party claims, actions, proceedings, and suits (“Claims”) brought against Smarter Sorting or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, reasonable attorneys’ fees and other litigation expenses) (“Losses”) incurred by Smarter Sorting or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (i) use of the Services in violation of Sections 2(c), 2(d), 5, 8, or 9(c) of this Agreement, (ii) any breach by Customer of its confidentiality obligations under Section 8 of this Agreement, (iii) Customer’s or its Users’ violations of applicable laws, rules or regulations in connection with the Services, and (iv) any representations and warranties made by Customer concerning any aspect of the Services, the Platform or Classifications and Packaging Reports. Smarter Sorting will provide Customer with written notice of any claim, suit or action from which Customer must indemnify Smarter Sorting. Customer will cooperate as fully as reasonably required in the defense of any claim. Smarter Sorting reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by Customer.

(b) Smarter Sorting will indemnify, defend and hold Customer harmless, at its expense, from and against any Claims brought against Customer or any of Customer’s officers, directors, employees, agents or affiliates, and all Losses incurred by Customer or any of Customer’s officers, directors, employees, agents or affiliates to the extent arising out of any (a) actual or alleged infringement, violation or misappropriation of any third-party’s rights arising out of Customer’s authorized use of the Services strictly in accordance with this Agreement (each, a “User Claim”). Notwithstanding the foregoing, Smarter Sorting will have no obligation hereunder or otherwise with respect to any infringement claim based upon: (a) any use of the Services not expressly permitted under this Agreement; (b) any use of the Services in combination with products, equipment, software, or data not made available by Smarter Sorting if such infringement would have been avoided without the combination with such other products, equipment, software or data; or (c) any modification of the Services or Platform by a User. If Smarter Sorting receives prompt notice of a User Claim that, in Smarter Sorting’s reasonable opinion, is likely to result in an adverse ruling, then Smarter Sorting may (a) obtain a right for User to continue using the Service at issue; (b) modify the Services to make it non-infringing; (c) replace the Services with a non-infringing version; or (d) provide a reasonable depreciated or pro rata refund of amounts pre-paid for the allegedly infringing Services. This Section 11 states Smarter Sorting’s entire liability and User’s sole and exclusive remedies for all User Claims.

12. Disclaimer of Warranties

(a) EXCEPT AS EXPRESSLY STATED HEREIN, CUSTOMER’S USE OF THE SERVICES ARE AT CUSTOMER’S SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SMARTER SORTING EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED OR ARISING FROM STATUTE, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

(b) SMARTER SORTING MAKES NO WARRANTY OR REPRESENTATION THAT: (i) THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS; (ii) ACCESS TO THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (iii) THE INFORMATION, CALCULATIONS AND ANY RESULTS THAT MAY BE OBTAINED FROM ACCESS TO OR USE OF THE SERVICES WILL BE ACCURATE, RELIABLE, CURRENT OR COMPLETE. CUSTOMER ACKNOWLEDGES AND AGREES THAT CUSTOMER IS SOLELY RESPONSIBLE FOR VERIFYING THE ACCURACY AND COMPLETENESS OF ALL CUSTOMER DATA SUBMITTED TO OR OBTAINED FROM THE SERVICES BEFORE TAKING ANY ACTION BASED UPON SUCH CUSTOMER DATA.

13. Limitation of Liability

SMARTER SORTING’S TOTAL LIABILITY UNDER THIS AGREEMENT, TO CUSTOMER OR ANYONE CLAIMING ON BEHALF OF OR THROUGH CUSTOMER, SHALL BE LIMITED TO THE AMOUNT OF FEES PAID HEREUNDER FOR THE PARTICULAR SERVICE GIVING RISE TO THE CLAIM DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTHS. EXCEPT FOR INDEMNIFICATION OBLIGATIONS, BREACHES OF CONFIDENTIALITY, GROSS NEGLIGENCE OR FRAUD, IN NO EVENT WILL EITHER CUSTOMER OR SMARTER SORTING BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ANY DAMAGE OR LOSS RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH THE PLATFORM OR FROM LOSS OF DATA, PROFITS, USE, BUSINESS, BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, HOWEVER CAUSED. THIS LIMITATION OF LIABILITY WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE.

14. U.S. Government Rights

If the use of the Service is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), in accordance with 48 C.F.R. 227.7202-4 (for Department of Defense (DOD) acquisitions) and 48 C.F.R. 2.101 and 12.212 (for non-DOD acquisitions), the Government’s rights in the Platform, including its rights to use, modify, reproduce, release, perform, display or disclose the Platform or Documentation, will be subject in all respects to the commercial license rights and restrictions provided in this Agreement.

15. Term and Termination

(a) Unless otherwise terminated in accordance with this Section 15, this Agreement will remain in effect until the Subscription Term for which the Service is granted under this Agreement has expired. Either party may terminate this Agreement and any Order incorporating this Agreement if the other party materially breaches this Agreement and fails to cure such breach within 30 days of receiving written notice thereof.

(b) In the event that there are no outstanding Orders, either party may terminate this Agreement for convenience upon thirty (30) days’ notice.

(c) Upon any termination of this Agreement, Smarter Sorting will stop providing the Services, and Customer shall (a) immediately stop accessing the Service and promptly (but in no event later than thirty (30) days following termination) destroy all copies of Smarter Sorting Data (including but not limited to all Classifications and Packaging Reports and Third-Party Data), Smarter Sorting Confidential Information, and Customer Data, and Customer shall certify such destruction upon Smarter Sorting’s request, except that Customer may retain copies of Classifications, Packaging Reports, and related Customer Data to the extent required by applicable law or regulation (including extended producer responsibility recordkeeping requirements), subject to Customer’s continuing confidentiality obligations under Section 8.

In the event of any termination (a) Customer will not be entitled to any refunds of any usage fees or any other fees, (b) Smarter Sorting may, in its sole discretion, suspend or cease the use of Customer Data by third parties within the Services, and (c) any outstanding balance for Services rendered through the date of termination will be immediately due and payable in full. Notwithstanding the foregoing, in the event that this Agreement is terminated for convenience by either party, any outstanding Order will remain valid and enforceable pursuant to the terms of this Agreement until the expiration of the Subscription Term for the applicable Order.

16. Modifications; Entire Agreement

(a) Smarter Sorting reserves the right, in its sole and absolute discretion, to update or change any portion of this Agreement at any time. Unless Smarter Sorting indicates otherwise within an update to this Agreement, any changes to this Agreement will be effective immediately upon posting of such updated terms at this location. Customer’s continued access to or use of the Services after Smarter Sorting posts such updated terms, constitutes Customer’s acceptance of the changes and consent to be bound by the Agreement as amended. If Customer does not agree to the amended Terms of Service, Customer must stop accessing and using the Services.

(b) This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the Service (including, but not limited to, any prior versions of this Agreement.)

17. Miscellaneous, Applicable Law

Smarter Sorting will be excused from performance under this Agreement to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control. If any provision of this Agreement is held to be unenforceable for any reason, such provision will be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect. This Agreement will be governed by and construed under the laws of the State of Delaware without reference to its conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act do not apply to this Agreement. The Platform is controlled by U.S. Export Regulations, and it may not be exported to or used by embargoed countries or individuals. Any notices to Smarter Sorting must be sent to: Waste Repurposing International, Inc., 4845 Pearl East Circle, Suite 118, PMB 90866, Boulder CO 80301, with a copy to Head of Finance Megan Nufer at megan.nufer@smartersorting.com, via first class or air mail or overnight courier, and are deemed given upon receipt. A waiver of any default is not a waiver of any subsequent default. Customer may not assign or otherwise transfer any of Customer’s rights in this Agreement without Smarter Sorting's prior written consent, and any such attempt is void. Smarter Sorting may freely transfer or assign this Agreement. The relationship between Smarter Sorting and Customer is not one of a legal partnership relationship, but is one of independent contractors. This Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto.

18. Survival

Sections 2(c), 4, 5, 6, 8, 9, 10, 11, 12, 13, 15(c), 16(b), and 17, shall survive any termination or expiration of this Agreement.