THESE ONLINE TERMS AND CONDITIONS ARE A BINDING AGREEMENT (THE “AGREEMENT”) BETWEEN YOU AND ANY COMPANY OR OTHER ENTITY ON WHOSE BEHALF YOU ACT (“CUSTOMER”) AND CRISPYCRETE, LLC (“CRISPYCRETE”). BY PURCHASING PRODUCTS FROM CRISPYCRETE, YOU AGREE TO AND ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT.
DEFINITIONS. Capitalized terms shall have the meaning as set forth in this Section 1 or as otherwise defined in this Agreement.
- “Confidential Information” means information and technical data derived from or disclosed to a Receiving Party or Affiliates of the Receiving Party by the Disclosing Party or its employees, vendors, customers, representatives, Affiliates, agents and other independent contractors during the performance of obligations under this Agreement and which is not generally known to the public, including the Disclosing Party’s customers or competitors or any customers or competitors of any Affiliate of the Disclosing Party. Confidential Information shall include, but is not limited to, the Documentation, Equipment, Materials, and Process.
- “Documentation” means the then-current, generally available, proprietary information related to the Technology, including but not limited to various manuals, pocket books, specifications, and online guides to practice and use the Technology in connection with the Equipment and Materials provided by CrispyCrete.
- “Equipment” means the machinery, equipment, hardware, and components related to the foregoing provided by CrispyCrete which are necessary and/or incidental to the Customer’s use of the Technology.
- “Field of Use” means the use of the Equipment, Materials, and Technology to facilitate the recycling of concrete by the ready-mix concrete manufacturing and production industry.
- “Improvement(s)” means any modification, derivative work, update, enhancement or alteration of the Technology.
- “Intellectual Property Right(s)” mean any and all worldwide rights in the following, whether protected, created, or arising in law: (i) patents, patent disclosures, patent applications, rights in patent improvements, statutory invention registrations, divisions, continuations, continuations-in-part, and extensions, reissues, restorations, and re-examinations of the above, and all rights in the foregoing provided by international treaties or conventions; (ii) copyrights, works of authorship, neighboring rights, mask work rights, database rights, and design rights, whether registered, published, or unpublished, and registrations and applications for registration of them, and all rights in them whether provided by international treaties or conventions or otherwise; (iii) trademarks, service marks, trade names, logos, corporate names, Internet domain names or other indicia of source or origin together with associated goodwill; (iv) rights in trade secrets, proprietary information, and confidential business information (including ideas, research and development, know-how, formulas, compositions, manufacturing and production processes and techniques, technical data, designs, bills of materials and component layouts, drawings, specifications, customer and supplier lists, pricing and cost information, and business and marketing plans and proposals); and (v) all other applications and registrations related to any of the intellectual property rights set forth in clauses (i) – (iv) above.
- “Material(s)” means the chemical formulas, mixtures, solutions, additives, and any other materials or products provided by CrispyCrete which are necessary, integral or incidental to Customer’s proper use of the Technology.
- “Process” means the CrispyCrete process for processing returned concrete as further described in the Documentation.
- “Purchase Order(s)” means a document provided by CrispyCrete to Customer, whether written or electronic, by which Customer orders the Equipment and/or Materials and which is executed by the parties. Each Purchase Order shall incorporate this Agreement by reference, and to the extent applicable, shall reference the Quote.
- “Technology” means, collectively, the Intellectual Property Rights arising out of or related to the Materials, Documentation, Equipment, and Process.
QUOTING, ORDERING, PRICING & PAYMENT.
- Quoting and Purchasing. The description of the Equipment and/or Materials and related pricing are as stated in a quote issued to Customer from CrispyCrete.
- Payment. Customer shall pay CrispyCrete’s invoices in full within thirty (30) days after the date of CrispyCrete’s invoice, with interest accruing thereafter at a rate of three percent (3%) per month, or if greater, the maximum lawful rate. The charges due hereunder are exclusive of taxes, levies, customs and duties, except for those based on CrispyCrete’s net income.
- DELIVERY, RISK OF LOSS AND TITLE. The Equipment and Materials provided by CrispyCrete or its designee hereunder shall be delivered to Customer F.O.B. origin; at which point, risk of loss to the Equipment and Materials shall be transferred from CrispyCrete to Customer. Customer shall pay all related charges and transit insurance.
- License Grant. Subject to the terms and conditions of this Agreement, CrispyCrete hereby grants to Customer during the Term (as defined in Section 10) a limited, revocable, nontransferable, nonsublicensable, non-exclusive, worldwide right and license to use the Technology solely in the Field of Use.
- License Limitations. Except for the limited right and license granted by CrispyCrete under Section 4, this Agreement does not grant to Customer or any other person any right, title or interest in the Technology (including any Intellectual Property Rights related to Improvements, by implication, estoppel, or otherwise). No title to, or ownership of, any Documentation, Technology, or other materials provided to Customer during the course of this Agreement is transferred to Customer. All rights, titles and interests not specifically, and expressly granted by CrispyCrete hereunder are hereby reserved and shall remain the sole and exclusive property of CrispyCrete.
- Reservation of Rights. Subject to the terms and conditions of the license granted to Customer hereunder, CrispyCrete reserves the right to make, use, and offer to sell, sell, and import the Technology. Notwithstanding the character of certain licenses granted in this Agreement, Customer takes such licenses subject to any rights granted to third parties established by agreements entered into by CrispyCrete in effect now and arising during the term of this Agreement and all renewals and extensions thereof.
- License Restrictions. Customer specifically acknowledges that the license to use the Technology granted hereunder shall be subject to its exclusive use with the Materials. Customer will not, and will not permit any third party to: (i) reverse engineer, reverse assemble, decompile, disassemble, or otherwise attempt to derive the proprietary technology (or the underlying ideas, structure, algorithms, or organization) of the Technology, Equipment, or Materials; (ii) provide, lease, or lend the Equipment, Materials, or Documentation to any third party except as expressly authorized hereunder; (iii) use the Equipment with any third party materials or products; (iv) use the Process with any third party materials or products; (v) use the Materials with any third party materials or products; (vi) remove any proprietary notices or labels displayed on the Equipment, Materials, or Documentation; (vii) use the Equipment, Materials, or Documentation to develop an offering or product directly or indirectly competing with an offering or product of CrispyCrete; or (viii) violate any applicable local, state, national, or international law.
- DISCLAIMER. CrispyCrete provides the Equipment, Materials, and Technology “AS IS” and SUPPLIER EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED STATUTORY OR OTHERWISE, CONCERNING THE VALIDITY, ENFORCEABILITY AND SCOPE OF THE TECHNOLOGY, THE ACCURACY, COMPLETENESS, SAFETY, USEFULNESS FOR ANY PURPOSE OR, LIKELIHOOD OF SUCCESS (COMMERCIAL, REGULATORY OR OTHER) OF THE EQUIPMENT, MATERIALS, AND TECHNOLOGY AND ANY OTHER TECHNICAL INFORMATION, TECHNIQUES, METHODS, PRODUCTS, PROCESSES OR PRACTICES AT ANY TIME MADE AVAILABLE BY SUPPLIER INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, SUPPLIER SHALL HAVE NO LIABILITY WHATSOEVER TO CUSTOMER OR ANY OTHER PERSON FOR OR ON ACCOUNT OF ANY INJURY, LOSS OR DAMAGE, OF ANY KIND OR NATURE, SUSTAINED BY, OR ANY DAMAGE ASSESSED OR ASSERTED AGAINST, OR ANY OTHER LIABILITY INCURRED BY OR IMPOSED ON CUSTOMER OR ANY OTHER PERSON, ARISING OUT OF OR IN CONNECTION WITH OR RESULTING FROM THE USE OF OR ANY ERRORS OR OMISSIONS IN ANY EQUIPMENT OR MATERIALS PROVIDED BY SUPPLIER OR ANY ADVERTISING OR OTHER PROMOTIONAL ACTIVITIES CONCERNING ANY OF THE FOREGOING.
- IMPROVEMENTS. Any and all Improvements of the Technology conceived or developed as a result of the license herein granted, without regard to whether the Improvements occur during or after the term of this Agreement, whether the Improvements are made by CrispyCrete or Customer, and whether or not the Improvements are patentable or otherwise proprietary, shall be owned by and become the sole property of CrispyCrete. CrispyCrete, in its sole discretion, shall have the right, but not the obligation, to elect in good faith whether to apply for and attempt to obtain any reasonably available patents in the United States or elsewhere for any such Improvement, or to maintain any such Improvement in confidence as a trade secret.
- CUSTOMER INDEMNIFICATION. Customer shall indemnify, defend and hold harmless CrispyCrete and each of its officers, directors, employees, agents, successors and assigns against all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, (including reasonable attorneys’ fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers) from any third party claim, suit, action or other proceeding related to or arising out of or resulting from (i) a breach of Customer’s obligations set forth in this Agreement; (ii) or the negligence, fraud, or misconduct of Customer or its affiliates; (iii) the use of the Equipment, Materials, and/or Technology, including but not limited to any product liability claims, any strict liability claims, or any claims of death of or injury to any person or damage to any property, regardless of the theory of liability; (iv) the failure of Customer to comply with Applicable Laws (as defined in Section 9); or (iv) any acts or omissions of Customer or its affiliates (each an “Action”).
- LIMITATION OF LIABILITY. EXCEPT FOR CUSTOMER’S INDEMNIFICATION OBLIGATIONS, AND DAMAGES RELATED TO CUSTOMER’S BREACH OF THE LICENSE, NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE OR ENHANCED DAMAGES. EXCEPT FOR CUSTOMER’S INDEMNIFICATION OBLIGATIONS AND DAMAGES RELATED TO CUSTOMER’S BREACH OF THE LICENSE, EACH PARTY’S TOTAL LIABILITY FOR DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, IS LIMITED TO THE TOTAL FEES PAID BY CUSTOMER IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
- COMPLIANCE WITH LAWS. Customer shall be responsible, at its expense, for complying with all applicable laws and regulations of each jurisdiction relevant to the concrete manufacturing and production industry, including laws and regulations related to the Equipment and/or Materials (collectively, the “Applicable Laws”).
TERM AND TERMINATION.
- Term. This Agreement shall commence on the Effective Date and continue for an initial term of five (5) years the (the “Initial Term”), unless terminated earlier in accordance with this Section 10. This Agreement shall automatically renew for additional terms of one (1) year (each, a “Renewal Term”), unless either Party provides written notice of its intent to not renew no later than thirty (30) days prior to the conclusion of the then-current Term. The Initial Term and any Renewal Term(s) may be collectively referred to herein as the “Term”.
Termination for Cause. CrispyCrete shall have the right to terminate this Agreement immediately by giving written notice to Customer if:
- Customer fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than fifteen (15) days after CrispyCrete’s written notice to make such payment, including the payment of interest in accordance with Section 2(B); or
- Customer breaches this Agreement (other than through a failure to pay any amounts due under this Agreement) and, if such breach is curable, fails to cure such breach within thirty (30) days of CrispyCrete’s written notice of such breach.
- Effect of Termination. Upon termination or expiration of this Agreement Customer shall promptly return to CrispyCrete, the original and all copies, in whole or in part, in any form, of the Documentation and any other information disclosed by CrispyCrete under this Agreement. Customer shall not use the Technology upon the termination or expiration of this Agreement. The termination of this Agreement shall not (i) discharge any payment obligations accrued as of the effective date of such termination, even if such obligations are payable after the termination date, or (ii) entitle Customer to a refund of any amounts previously paid to CrispyCrete.
- CONFIDENTIALITY. The Parties acknowledge that, in the course of performance of this Agreement, one Party (the “Disclosing Party”) may find it necessary to disclose or permit access to Confidential Information to the other Party (the “Receiving Party”) and its personnel. Disclosing Party’s disclosure of or provision of access to, Confidential Information to Receiving Party’s personnel is solely for the purposes agreed under this Agreement. Confidential Information disclosed to a Receiving Party will be held in confidence by the Receiving Party and not disclosed to others or used except as expressly permitted under this Agreement or as expressly authorized in writing by the Disclosing Party. Each Party will use the same degree of care to protect the other Party’s Confidential Information as it uses to protect its own information of like nature, but in no circumstances less than reasonable care. Confidential Information may be disclosed by a Receiving Party to those of its employees, agents, and consultants who require it in connection with their duties in performing such Party’s obligations under this Agreement and who are contractually or legally obligated to hold such Confidential Information in confidence and restrict its use consistent with the Receiving Party’s obligations under this Agreement.
- Notices. Any notices permitted or required under this Agreement shall be in writing, and shall be deemed given when delivered: (i) in person, (ii) by overnight courier upon written confirmation of receipt, (iii) by certified or registered mail with proof of delivery, (iv) by facsimile transmission with confirmation of receipt, or (v) by email with confirmation of receipt. Notices shall be sent to the address, facsimile number or email address set forth above, or at such other address, facsimile number or email address as provided to the other party in writing.
- Further Assurances. Each Party shall, and shall cause their respective affiliates to, upon the reasonable request of the other Party, promptly execute such documents and take such further actions as may be necessary to give full effect to the terms of this Agreement.
- Entire Agreement. This Agreement, together with any purchase orders, quotes, and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, between the parties. In case of any conflict between a purchase order or quote and this Agreement, the terms of this Agreement will prevail.
- Governing Law. This Agreement is governed by the laws of the State of Alabama, excluding its conflict of law rules and excluding the U.N. Convention on Contracts for the International Sale of Goods. Any action, suit or other proceeding arising out of or related to this Agreement shall be instituted exclusively in the federal courts of the United States or the courts of the State of Alabama in each case located in the city of Auburn and County of Lee.
- Amendment, Modification, Waiver. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each Party hereto. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the waiving Party. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
- Headings. The headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement.
- Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or other provision is invalid, illegal or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
- Survival. The terms, provisions, representations, and warranties contained in this Agreement whereby their sense and context are intended to survive the expiration or termination of this Agreement, shall so survive the expiration or termination of this Agreement, including, but not limited to, the making of any and all payments due hereunder and Sections 4 (License), 7 (Customer Indemnification), 8 (Limitation of Liability), 11 (Confidentiality), and 12 (Miscellaneous).