“Application” means the Service and all related web application computer software, “online” or electronic documentation, associated media, and printed materials.
“Customer Data” means all electronic data or information submitted by Customer to CBI.
“Service” means the online, Web-based automated database management service and inspection applications, including associated offline components and the graphical user interface of such and as may be provided to Users via online access, but limited to object code, created and provided by CBI and known as MS4 Web, CGPInspect, MS4Inspect, MSGPInspect, or other such services, including their upgrades and updates.
“Users” mean Customer’s employees, consultants, contractors, or agents who are authorized to use the Service and have been supplied user identifications and passwords by Customer (or by CBI at Customer’s request).
2.1 Provision of Service. CBI shall make the Service available to Customer pursuant to the terms and conditions set forth in this Agreement.
2.2 Limited Grant of License. Subject to the provisions of this Agreement, CBI grants to Customer a personal, non-assignable, non-transferable, non-sublicenseable, nonexclusive license to use the Service during the term of this Agreement solely for Customer’s internal business purposes in the United States. CBI grants to Customer use of the Service according to the product’s normal functions and capabilities. The license granted hereby is intended to allow for the use of this Service by Users for compliance assistance activities associated with a single National Pollutant Discharge Elimination System (“NPDES”) or equivalent Municipal Storm Water Discharge Permit. The Service may be accessed from one or more computers and by one or more Users as defined by the Customer. Upon accessing the Service, Users agree and consent to the terms and conditions of this Agreement and the Company’s end user licensing agreement (the “EULA”). Company reserves the right to modify the EULA at any time and without notice to Customer or Users.
3. Use of the Service.
3.1 CBI Responsibilities. CBI shall:
a. provide the Service as delineated in the Quote;
b. maintain the security and integrity of the Service and the Customer Data; and
c. use commercially reasonable efforts to make the Service available 99.5% of the calendar month, Monday through Friday 5 AM to 8 PM CST, except for: (i) planned downtime (of which CBI shall give at least 48 hours’ notice and which CBI shall schedule to the extent reasonably practicable outside the previously stated times.; or (ii) downtime caused by circumstances beyond CBI’s reasonable control, including acts of God, computer or telecommunications failures or delays involving hardware or software not within CBI’s control, and network intrusions or denial of service attacks, but only to the extent unavailability results notwithstanding the exercise by CBI of reasonable care and due diligence to avoid or mitigate the same in anticipation of or in response to such causes. If Service is not available as provided for in this paragraph, it shall entitle the Customer to terminate this Agreement for cause.
4. Fees & Payment.
4.1 User Fees. Customer controls the number of Users with access to the Service as specified in the Quote or by order form selection for an online purchase. Customer acknowledges and agrees to pay the annual or monthly user license fee originally or subsequently agreed upon.
4.2 Invoicing & Payment. Customer will pay by credit card in advance on a recurring monthly basis or once per year. If customer cannot pay by credit card customer will be invoiced monthly or annually in advance for the use of the Service. Invoicing will begin upon commencement of Service. Payments on all invoices shall be due within thirty (30) days of Customer’s receipt.
4.3 Suspension of Service. If Customer’s account is thirty (30) days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, CBI reserves the right to suspend the Service provided to Customer, without liability to CBI, until such amounts are paid in full.
4.4 Taxes. The Service is provided online (via Web access) by CBI and shall be deemed by the Parties as provided from CBI’s address. Unless otherwise stated, CBI’s fees do not include any local, state, federal or foreign sales, use, or similar taxes, levies or duties of any nature (“Taxes”). Customer is responsible for paying all Taxes related to the services described herein. If CBI has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides CBI with a valid tax exemption certificate authorized by the appropriate taxing authority.
5. Limitation of Liability.
5.1 Limitation of Liability. IN NO EVENT SHALL CBI’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE GREATER OF $500 OR THE AMOUNTS PAID BY OR DUE FROM CUSTOMER HEREUNDER.
5.2 Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES, INCLUDING ITS OFFICERS, DIRECTORS OR EMPLOYEES, BE LIABLE TO THE OTHER PARTY, ITS AGENTS, OR OFFICERS, EMPLOYEES, REPRESENTATIVES, SUBCONTRACTORS, AFFILIATES OR PRINCIPALS OR TO ANY THIRD PARTIES FOR ANY INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES.
6. Term & Termination.
6.1. Term. The Quote or Order Form specifies the term of this Agreement.
6.2. Termination. A Party may terminate this Agreement upon thirty (30) days’ written notice to the other Party. Upon termination of this Agreement, Customer shall immediately cease all use of the Service and any license granted by this Agreement shall be terminated and revoked. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to CBI prior to the effective date of termination.
6.3. Return of Customer Data. Upon request by Customer, CBI will make available to Customer a file of Customer Data at time of termination. After thirty (30) days following termination of this Agreement CBI shall have no obligation to maintain or provide any Customer Data.
7. General Provisions.
7.1. Relationship of the Parties. Each Party is an independent entity and is not a partner, agent, principal, or employee of the other Party.
7.2. Assignment. Customer may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of CBI. This Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
7.3. Statutory Terms. As required by Chapter 2270, Government Code, CBI hereby verifies that it does not boycott Israel and will not boycott Israel through the term of this Agreement. For purposes of this verification, “boycott Israel” means refusing to deal with, terminating business activities with, or otherwise taking any action that is intended to penalize, inflict economic harm on, or limit commercial relations specifically with Israel, or with a person or entity doing business in Israel or in an Israeli-controlled territory, but does not include an action made for ordinary business purposes.
7.4. Entire Agreement. This Agreement including the Quote and the EULA constitute the entire agreement between the Parties as to its subject matter, and supersede all previous and contemporaneous agreements, proposals or representations, written or oral, concerning the subject matter of this Agreement. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the Party against whom it is to be asserted. In the event of any conflict between the provisions of any agreements, these Standard Terms and Conditions shall prevail to the extent of any inconsistency.