(a) These terms and conditions (collectively, these “Terms”) for the Services (as defined below) govern the provision of the Services by BINNED, Corp, a Texas corporation (“Binned” or “us”), to you (“Customer” or “you”).
2. Services. Subject to and in accordance with these Terms, Binned shall provide certain trash bin cleaning services to Customer as described in the Order Confirmation (collectively, the “Services”).
3. Performance Dates. Subject to the limitations set forth in Section 15 below, Binned shall use commercially reasonable efforts to meet any performance dates specified in the Order Confirmation; however, Customer acknowledges that any such dates shall be estimates only, and not guarantees. In addition, Customer acknowledges and agrees that if the Services are unable to be performed on such dates due to Customer’s failure to observe or perform any duty, covenant or obligation under this Agreement, it shall be Customer’s responsibility to immediately contact Binned at firstname.lastname@example.org to reschedule. Such rescheduled Services are not guaranteed to be performed in that month if notice of Customer’s desire to reschedule is not received by Binned within three (3) days from the original date of the performance of the Services for that month.
4. Customer’s Obligations. Customer shall:
(a) fully cooperate with Binned in all matters relating to the Services and provide such access to Customer’s premises, if necessary and as may reasonably be requested by Binned, for the purposes of performing the Services;
(b) respond promptly to any Binned request to provide direction, approvals, authorizations or decisions that are reasonably necessary for Binned to perform Services in accordance with the requirements of this Agreement;
(c) provide such customer materials or information as Binned may request to carry out the Services in a timely manner and ensure that such Customer materials or information are complete and accurate;
(d) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start;
(e) with respect to the account Customer creates and maintains on the Binned website, provide to Binned accurate, current and complete account information, maintain and promptly update, as necessary, such account information, maintain the security of such account credentials, be responsible for the acts or omissions of any third party who has authority to access or use the Binned website on your behalf, and immediately notify us if you discover or otherwise suspect any security breaches related to the Binned website or your account;
(f) immediately inspect all Services you receive from us for any damage or other issues upon completion; and
(g) ensure that all trash bins subject to the Services are placed at the curb and are completely empty.
You acknowledge and agree that Binned employees, agents or designees will only perform the Services with respect to trash bins that are placed on the curb and are completely empty. Notwithstanding any of the foregoing to the contrary and subject to the provisions of Sections 26 and 27, Binned employees, agents and/or designees, may nonetheless, in their sole discretion, choose to enter upon your property or premises for the sole purpose of retrieving trash bins that have not been placed at the curb in order to perform the Services, and Customer hereby grants Binned and its employees, agents, and designees, a license to enter upon your property and premises in order to retrieve any such trash bins (the “License”).
5. Customer’s Acts or Omissions. If Binned’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants or employees, Binned shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
6. Changes to the Services.
(a) Customer acknowledges that from time to time, it may be convenient or necessary for Binned to change the scope, method or performance of the Services. If Binned wishes to so change the scope, method or performance of the Services (the “Change”), it shall submit details of the Change to the Customer in writing, such as by posting notice of the Change to the Binned website, or by sending Customer an email (the “Notification”). The Notification shall also include, to the extent applicable, the following information:
(b) Customer shall have seven (7) days from the date of the Notification within which to cancel the Services in accordance with the cancellation policy outlined in Section 9 below, (as may be updated or supplemented on the Binned website or pursuant to the Binned Documents). If after seven (7) days, Customer has not submitted a cancellation request, Customer agrees to be bound by and pay the increased Fees or other charges for the Services arising from the Change and waives all rights to any refunds, prorations, or other compensation arising from the Change; however, Customer may still cancel the Services thereafter in accordance with the cancellation policy set forth in Section 9 below (as may be updated or supplemented on the Binned website or pursuant to the Binned Documents). If you choose to cancel the Services due to a Change and your billing date falls within the above-described seven (7) day period, you may still be charged for the Services for the current month and/or the succeeding month; however, you may contact us at email@example.com to request a refund of such charges.
(c) Notwithstanding Section 6(a) and Section 6(b), Binned may, from time to time, change the Services without the consent of Customer provided that such changes do not materially affect the nature or scope of the Services, or the Fees or any performance dates set forth in the Order Confirmation and Customer hereby agrees to be bound by any such changes.
7. Fees and Expenses; Payment Terms; Interest on Late Payments.
(a) In consideration of the provision of the Services by Binned and the rights granted to Customer under this Agreement, Customer shall pay the fees and amounts set forth in the Order Confirmation (collectively, the “Fees”) on the dates and in the manner specified therein as may be supplemented or modified from time to time by Binned.
(b) To the extent applicable, Customer hereby authorizes the payment of the Fees to Binned and hereby agrees to be bound by the Credit Card Authorization / Auto-Debit Agreement attached hereto as Exhibit A and incorporated herein for all purposes.
(c) In the event any payment in respect of the Fees is not received by Binned for any reason on or before seven (7) days after the payment date specified in the Order Confirmation (as may be modified or supplemented by Binned), Binned may, in its sole discretion, elect any one or more of the following remedies:
8. Taxes. Customer shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Customer hereunder.
9. Cancellation Policy. You may cancel your subscription to receive the Services at any time by contacting firstname.lastname@example.org. Cancellations must be received at least ten (10) days before your next billing cycle date in order to ensure a cancellation request is processed timely and does not result in a charge for the following month’s Services. Cancellation requests placed after ten (10) days before your next billing date may result in a charge to you for the following month’s Services and any Services that have been charged due to a failure of notifying us ten (10) days before your next billing cycle cannot be cancelled or refunded; however, you will still receive the Services on your regularly-scheduled date for Services in the following month. You will be responsible for all charges (including any applicable taxes and other charges incurred with respect to the Services), if you fail to notify Binned of your cancellation within ten (10) days of your next billing cycle. Notwithstanding a cancellation of the Services we may nonetheless still send you promotional communications about Binned, unless you opt out of receiving those communications by following the unsubscribe instructions provided therein.
10. Confidential Information.
(a) All non-public, confidential or proprietary information of Binned, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (collectively, “Confidential Information”), disclosed by Binned to Customer, whether disclosed orally or disclosed or accessed in written, electronic (e.g. posted to the Binned website or sent via electronic mail) or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the provision of the Services and this Agreement is confidential, and shall not be disclosed or copied by Customer without the prior written consent of Binned. Confidential Information does not include information that is:
in the public domain;
known to Customer at the time of disclosure; or
rightfully obtained by Customer on a non-confidential basis from a third party.
(b) Binned shall be entitled to injunctive relief for any violation of this Section 10.
11. Performance of the Services; Refunds.
(a) Binned represents and warrants to Customer that it shall perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations in accordance with this Agreement.
(b) Customer acknowledges and agrees that: (i) Binned uses the OASIS 904 brand of air freshener (the “Deodorizer”) to eliminate odors in the trash bins and (ii) it may be necessary for Binned to use various de-greasers or other chemical cleaning products to completely clean a bin and Customer hereby consents to Binned’s use of the Deodorizer and any such de-greasers or other chemical cleaning products in connection with the Services unless we are notified otherwise in accordance with this Section 11(b). It is Customer’s sole responsibility to request that we not use the Deodorizer, or certain other chemicals or cleaning products in connection with the Services, as well as to inform us of any other special instructions (e.g., the existence of gates or other obstructions impeding our access to trash bins, or the exact location of such trash bins, etc.) by utilizing the text box marked “Special Instructions” during the checkout process. Customer may also request that the Deodorizer and/or any other chemical cleaning products not be used by sending an email to email@example.com. While we cannot guarantee your requested changes will be implemented in the same month your request is made, we will endeavor to implement the changes in the month following your request. Binned is not responsible for any issues or claims that may result from your failure to notify us of any special requests, including, without limitation, that certain cleaning products not be used for health reasons. Notwithstanding the foregoing, Customer hereby acknowledges that Binned adds a certain amount of chlorine to the water it uses to perform the Services in order to avoid buildup of algae or other organisms in its tanks and reservoirs and, as such, Customer may not request that Binned discontinue such use.
(c) If you are dissatisfied with the Services for any reason, please contact us at firstname.lastname@example.org within seven (7) days of the date you received the Services with which you are unsatisfied. Depending on the circumstances, we may, in our sole discretion, re-perform the Services at our expense, provide you a full or partial refund of the Services for that month, or provide you with Credits (defined below), as we deem appropriate. We cannot guarantee a refund or Credits if your request is received later than seven (7) days after the date you received the Services with which you are unsatisfied.
(d) Subject to our disclaimer set in Section 26 below, if any trash bins are damaged during the completion of the Services due to our gross negligence, please contact us at email@example.com within seven (7) days of the date you received the Services. Depending on the circumstances, we may, in our sole discretion, repair or replace the trash bin at our expense, provide you with a full or partial refund of the Services for that month, or provide you with Credits. We may require photographic documentation of any damaged trash bin before we provide you with a refund, repair, replacement, or Credits, as we deem appropriate. Determinations made by Binned regarding the cause of damage are final and non-appealable and Customer agrees to be bound by such determinations.
(e) THE REMEDIES SET FORTH IN SECTIONS 11(b) and 11(c) SHALL BE THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND BINNED’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 11(a).
12. Credits; Coupons; Referrals.
(a) In certain circumstances, we may provide you with credits of promotional value that can be applied to your monthly payment for the Services (“Credits”). Credits may only be redeemed for the type of Service for which they were issued, are promotional in nature, are not transferable, and are not redeemable for cash or other property. Credits only remain available if you maintain both a valid Binned account and an active subscription for the Services. That means that if you cancel the Services, any outstanding Credits associated with your cancelled subscription will immediately expire. You may only redeem Credits after they are applied to your Binned account. If for some reason you believe that there is a discrepancy regarding your Credit balance, please contact us at firstname.lastname@example.org. All decisions regarding your Credit balance will be determined in our sole discretion and are final.
(b) From time to time, Binned may run certain promotional events, including, but not limited to the use of certain discount coupon codes (any such promotional program, a "Coupon Program"). All aspects of the Coupon Program, including without limitation, availability, the amount of discount associated therewith, and applicability to the cost of the Services, are all subject to the sole discretion of Binned, and may be cancelled, modified, or revised without notice to you. In addition, all Coupon Programs are subject to the following restrictions:
(i) The Coupon Program is applicable to existing customers only (i.e. you must maintain both a valid Binned account and an active subscription for the Services), cannot be applied retroactively to past orders or payments, and is limited to one use per household;
(ii) There are no substitutions, transfers, re-sales, refunds or cash value associated with any coupon or discount code, or any other aspect of a Coupon Program;
(iii) The Coupon Program and any discounts or credits associated therewith may not be combined with any other promotional or programs, but may be used with the Referral Program (defined below); provided that such application shall in no event result in any money due to you from Binned;
(iv) The Coupon Program and any discounts or credits associated therewith are not applicable to any taxes for the Services;
(v) The Coupon Program and any discounts or credits associated therewith do not apply to any Services that are refunded;
(vi) Violation of any restrictions set forth herein shall automatically invalidate any discounts or credits associated with the Coupon Program;
(vii) You are responsible for safeguarding and securing any code and no codes will be replaced or refunded if lost or stolen;
(viii) The Coupon Program is void where prohibited by law; and
(ix) Cancellation of your account with Binned is an automatic forfeiture of any discounts or credits associated with the Coupon Program.
(c) In addition to the Coupon Program, Binned may from time to time also engage in a referral program whereby Binned will waive one (1) month of the Services (up to a maximum of three (3) months total for any twelve (12) month period) may be earned by referring customers to Binned who actually sign up for and pay for the Services as verified by Binned (the "Referral Program"). All aspects of the Referral Program, including without limitation, availability, the amount the discount associated therewith, and applicability to the cost of the Services, are all subject to the sole discretion of Binned, and may be cancelled, modified, or revised without notice to you. In addition, all Coupon Programs are subject to the following restrictions:
(i) The Referral Program is applicable to existing customers only (i.e. you must maintain both a valid Binned account and an active subscription for the Services), cannot be applied retroactively to past orders or payments, and is limited to one household;
(ii) There are no substitutions, transfers, re-sales, refunds or cash value associated with any aspect of the Referral Program;
(iii) The Referral Program and any discounts or credits associated therewith may not be combined with any other promotions or programs, but may be used with the Coupon Program; provided that such application shall in no event result in any money due to you from Binned;
(iv) The Referral Program and any discounts or credits associated therewith are not applicable to any taxes for the Services;
(v) The maximum amount of discounts or credit you may receive with respect to your participation in the Referral Program is three (3) months in a calendar year;
(vi) Any discounts or credits may only be earned after payment in full of three (3) months of the Service, and for those participating in the Yearly Program, the discounts or credits shall be applied when you prepay for the Services for the next succeeding twelve (12) month period;
(vii) The Referral Program and any discounts or credits associated therewith do not apply to any Services that are refunded;
(viii) Violation of any restrictions set forth herein shall automatically invalidate any discounts or credits associated with the Referral Program; and
(ix) The Referral Program is void where prohibited by law; and
(x) Cancellation of your account with Binned is an automatic forfeiture of any discounts or credits associated with the Referral Program.
13. Termination. In addition to any remedies that may be provided under this Agreement, Binned may, in its sole discretion, terminate this Agreement for any reason with immediate effect upon written notice (which notice may be by electronic email or by posting to the Binned website) to Customer, including, without limitation, if Customer:
(f) fails to pay any amount when due under this Agreement and such failure continues for seven (7) days after the payment date specified in the Order Confirmation (as may be modified, amended or supplemented by Binned)
(g) has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part; or
(h) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
14. Waiver. No waiver by Binned of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Binned. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
15. Force Majeure. Binned shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Binned including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown, or power outage (any of the foregoing, an “Unavoidable Delay”). In the case of an Unavoidable Delay, we will nonetheless endeavor to service your Order as soon as reasonably possible. In some cases, performance of the Services may occur prior to or after the scheduled service date. If timely performance of the Services is not feasible, we may, in our sole discretion, cancel the Services for the period so affected and issue you Credits or a refund, as we deem appropriate.
16. Assignment. Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Binned. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement.
17. Relationship of the Parties. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
18. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
19. Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule (whether of the State of Texas or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Texas.
20. Submission to Jurisdiction. The parties hereby irrevocably submit generally and unconditionally for themselves and in respect of their property to the jurisdiction of any state court, or any United States federal court, sitting in the City of El Paso, El Paso County, Texas, over any suit, action or proceeding arising out of or relating to the Services, this Agreement, or the transactions contemplated hereby. The parties further hereby irrevocably waive, to the fullest extent permitted by law, any objection that said party may now or hereafter have to the laying of venue in any such court and any claim that any such court is an inconvenient forum.
21. Notices. To the fullest extent permitted by law, Customer hereby consents to receive all notices, requests, consents, claims, demands, waivers and other communications hereunder from Binned via electronic communications (which shall include without limitation: email, posting of notices to the Binned website, or SMS/text messaging, collectively, the “Electronic Communications”). Such Electronic Communications may also include notices about your account (e.g., payment authorizations, password changes and other transactional information). Customer agrees that such Electronic Communications will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. In addition, Customer further hereby irrevocably waives any objection, whether legal or otherwise, that it may now or hereafter have to receiving the Electronic Communications. You should maintain copies of the Electronic Communications from us by printing a paper copy or saving an electronic copy. We may also send you promotional communications via email, including, but not limited to, newsletters, special offers, surveys and other news and information we think will be of interest to you. You may opt out of receiving these promotional emails at any time by following the unsubscribe instructions provided therein. Please note that message and data rates may apply with respect to SMS/text messaging.
22. 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.
23. Survival. Provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Taxes, Survival, No Third-Party Beneficiaries, Compliance with Laws, Confidentiality, Governing Law, Indemnity, Disclaimers, Limitation of Liability; Release, Binding Arbitration, Waiver of Jury Trial, Submission to Jurisdiction.
24. Amendment and Modification. This Agreement may be amended modified, or supplemented in whole or in part by Binned by posting a notice and details of such amendment, modification or supplement on the Binned website or to the Binned Documents or by submitting the same to Customer via email. We reserve the right to change any and all Binned website content and the Binned Documents and to modify, suspend or stop providing access to the Binned website (or any features or functionality of the Binned website) at any time without notice and without obligation or liability to you. Reference to any products, services, processes or other information by trade name, trademark, manufacturer, supplier, vendor or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof, or any affiliation therewith, by us.
25. Indemnity. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS BINNED, AND OUR PAST, PRESENT AND FUTURE EMPLOYEES, OFFICERS, DIRECTORS, CONTRACTORS, ATTORNEYS, CONSULTANTS, EQUITYHOLDERS, SUPPLIERS, VENDORS, SERVICE PROVIDERS, PARENT COMPANIES, SUBSIDIARIES, AFFILIATES, AGENTS, REPRESENTATIVES, PREDECESSORS, SUCCESSORS AND ASSIGNS (ANY ONE OF THE FOREGOING, INDIVIDUALLY, A “BINNED PARTY”, AND COLLECTIVELY, THE “BINNED PARTIES”), FROM AND AGAINST ALL ACTUAL OR ALLEGED THIRD-PARTY CLAIMS, DAMAGES, AWARDS, JUDGMENTS, LOSSES, LIABILITIES, OBLIGATIONS, PENALTIES, INTEREST, FEES, EXPENSES AND COSTS OF EVERY KIND AND NATURE WHATSOEVER, WHETHER KNOWN OR UNKNOWN, FORESEEN OR UNFORESEEN, MATURED OR UNMATURED, OR SUSPECTED OR UNSUSPECTED, IN LAW OR EQUITY, WHETHER IN TORT (INCLUDING WITHOUT LIMITATION, PERSONAL INJURY OR WRONGFUL DEATH), CONTRACT, OR OTHERWISE (COLLECTIVELY, “CLAIMS”), REGARDLESS OF WHETHER SUCH CLAIMS ARE FOUNDED IN WHOLE OR IN PART UPON THE ACTUAL OR ALLEGED NEGLIGENCE OF ANY BINNED PARTY, THAT ARE CAUSED BY, ARISE OUT OF, OR ARE IN ANY WAY RELATED TO: (A) THE PERFORMANCE OF THE SERVICES AND ANY OTHER TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, (B) ANY USE OR MISUSE OF THE BINNED WEBSITE OR THE SERVICES BY YOU OR ANY THIRD PARTY YOU AUTHORIZE TO ACCESS OR USE THE BINNED WEBSITE OR THE SERVICES, (C) ANY USER CONTENT OR INFORMATION (PERSONAL OR OTHERWISE) YOU CREATE, POST, SHARE OR STORE ON OR THROUGH THE BINNED WEBSITE OR OUR PAGES OR FEEDS ON THIRD PARTY SOCIAL MEDIA PLATFORMS, (D) ANY FEEDBACK YOU PROVIDE, (E) ANY BREACH OR VIOLATION OF ANY PROVISION OF THIS AGREEMENT BY YOU, (F) YOUR VIOLATION OF THE RIGHTS OF ANOTHER, OR (G) THE USE OF THE LICENSE BY ANY BINNED PARTY IN CONNECTION WITH THE SERVICES. YOU AGREE TO IMMEDIATELY NOTIFY BINNED OF ANY THIRD PARTY CLAIMS, COOPERATE WITH THE BINNED PARTIES IN DEFENDING SUCH CLAIMS AND PAY ALL FEES, COSTS AND EXPENSES ASSOCIATED WITH DEFENDING SUCH CLAIMS (INCLUDING, BUT NOT LIMITED TO, ATTORNEYS’ FEES AND EXPENSES, COURT COSTS, COSTS OF SETTLEMENT AND COSTS OF PURSUING INDEMNIFICATION AND INSURANCE). YOU FURTHER AGREE THAT THE BINNED PARTIES SHALL HAVE CONTROL OF THE DEFENSE OR SETTLEMENT OF ANY THIRD PARTY CLAIMS. THIS INDEMNITY IS IN ADDITION TO, AND NOT IN LIEU OF, ANY OTHER INDEMNITIES THAT MAY BE SET FORTH IN A WRITTEN AGREEMENT BETWEEN YOU AND BINNED.
26. Disclaimers. YOU ARE SOLELY RESPONSIBLE FOR, AND ASSUME ALL RISKS RELATED TO, THE PROPER AND SAFE HANDLING, STORAGE, AND USE OF THE TRASH BINS BEFORE AND AFTER COMPLETION OF THE SERVICES. YOU ARE ALSO SOLELY RESPONSIBLE FOR KNOWING ABOUT ANY CLEANING PRODUCT ALLERGIES OR OTHER HEALTH ISSUES YOU MAY HAVE AND VERIFYING THE PRODUCTS AND THEIR CONTENTS BEFORE HANDLING, PREPARING, USING OR COMING INTO CONTACT WITH SUCH PRODUCTS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL BINNED BE RESPONSIBLE FOR ANY HEALTH RELATED CLAIMS, DAMAGES, OR OTHER MATTERS OF ANY KIND THAT MAY AFFECT CUSTOMER OR ANY OTHER MEMBERS OF CUSTOMER’S HOUSEHOLD, ARISING FROM, RELATED TO OR CAUSED BY BINNED’S USE OF ANY CLEANING PRODUCTS (ANY SUCH CLAIMS, DAMAGES OR OTHER MATTERS, “HEALTH CLAIMS”) AND CUSTOMER HEREBY RELEASES ANY AND ALL SUCH HEALTH CLAIMS IT MAY HAVE NOW OR IN THE FUTURE, WHETHER KNOWN OR UNKNOWN, FORESEEN OR UNFORESEEN, AGAINST BINNED AND OUR RESPECTIVE PAST, PRESENT AND FUTURE EMPLOYEES, OFFICERS, DIRECTORS, CONTRACTORS, ATTORNEYS, CONSULTANTS, EQUITYHOLDERS, SUPPLIERS, VENDORS, SERVICE PROVIDERS, PARENT COMPANIES, SUBSIDIARIES, AFFILIATES, AGENTS, REPRESENTATIVES, PREDECESSORS, SUCCESSORS OR ASSIGNS.
WE ATTEMPT TO DISPLAY THE SERVICES AND OTHER MATERIALS AND INFORMATION YOU VIEW ON THE BINNED WEBSITE, INCLUDING PRICING AND CLEANING/DEODORIZING SOLUTION INFORMATION, AS ACCURATELY AS POSSIBLE. HOWEVER, WE DO NOT GUARANTEE THE ACCURACY OF SUCH INFORMATION. IN THE EVENT OF AN ERROR ON THE BINNED WEBSITE IN AN ORDER CONFIRMATION, IN PROCESSING OR COMPLETING AN ORDER OR OTHERWISE, WE RESERVE THE RIGHT TO CORRECT SUCH ERROR AND REVISE YOUR ORDER ACCORDINGLY (INCLUDING CHARGING THE CORRECT PRICE) OR TO CANCEL YOUR ORDER AND ISSUE YOU A REFUND. YOU FURTHER AGREE THAT THE PRODUCTS AND OTHER MATERIALS USED IN CONNECTION WITH THE SERVICES MAY VARY FROM THE PRODUCTS AND MATERIALS DISPLAYED ON THE BINNED WEBSITE DUE TO A NUMBER OF FACTORS, INCLUDING, WITHOUT LIMITATION, SYSTEM CAPABILITIES AND CONSTRAINTS OF YOUR COMPUTER, MANUFACTURING PROCESS OR SUPPLY ISSUES, THE AVAILABILITY AND VARIABILITY OF PRODUCTS, DISTINCT TRASH BIN HANDLING OR OTHER PREPARATION METHODS AND VARIABILITY OF TRASH BIN EQUIPMENT AND APPLIANCES. THE BINNED WEBSITE MAY CONTAIN INFORMATION ABOUT PRODUCTS AND/OR SERVICES THAT ARE NOT AVAILABLE IN EVERY LOCATION. A REFERENCE TO A PRODUCT AND/OR SERVICES ON THE BINNED WEBSITE DOES NOT IMPLY OR GUARANTEE THAT IT IS OR WILL BE AVAILABLE IN YOUR LOCATION OR AT THE TIME OF YOUR ORDER.
EXCEPT FOR THE WARRANTY BY BINNED SET FORTH IN SECTION 11(A), ALL PRODUCTS, SERVICES AND THE BINNED WEBSITE AND CONTENT ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. BINNED DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE BINNED WEBSITE, CONTENT, PRODUCTS AND SERVICES, INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, CUSTOM OR COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, AND ANY WARRANTIES THAT THE BINNED WEBSITE OR THE PRODUCTS OR SERVICES WILL BE FREE AND CLEAR FROM ANY ADVERSE LIEN OR SECURITY INTERESTS.
27. Limitation of Liability; Release. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE BINNED PARTIES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY OR DEATH, LOSS OF REVENUE, INCOME OR PROFITS, LOSS OF USE OR DATA, LOSS OR DIMINUTION IN VALUE OF ASSETS OR SECURITIES, OR DAMAGES FOR BUSINESS INTERRUPTION), OR IN ANY WAY RELATED TO THE ACCESS TO OR USE OF THE BINNED WEBSITE, THE CONTENT THEREON (INCLUDING, BUT NOT LIMITED TO, USER CONTENT, THIRD-PARTY CONTENT AND LINKS TO THIRD-PARTY SITES, AS WELL AS ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE ON ANY INFORMATION OBTAINED FROM ANY BINNED PARTIES, OR FROM EVENTS BEYOND THE BINNED PARTIES’ REASONABLE CONTROL, SUCH AS WEBSITE INTERRUPTIONS, DELETIONS OF FILES OR EMAILS, ERRORS OR OMISSIONS, DEFECTS, BUGS, VIRUSES, TROJAN HORSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO THE BINNED PARTIES’ RECORDS, PROGRAMS OR SYSTEMS), OR THE ORDER CONFIRMATION, RECEIPT OR USE OF ANY PRODUCT OR THE SERVICES, OR OTHERWISE RELATED TO THIS AGREEMENT, IN EACH CASE, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED) OR ANY OTHER LEGAL OR EQUITABLE THEORY, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF THE BINNED PARTIES (JOINTLY) ARISING OUT OF OR IN ANY WAY RELATED TO: (A) BREACH OF CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED) OR ANY OTHER LEGAL OR EQUITABLE THEORY (WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE); (B) THE ORDER CONFIRMATION, OR THE SERVICES; AND (C) ACCESS OR USE OF THE BINNED WEBSITE OR THE CONTENT THEREON, IN EACH CASE, EXCEED THE LESSER OF $500 OR THE AMOUNT YOU PAID TO US IN THE ONE (1) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH YOUR CLAIM AROSE. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IN THE EVENT YOUR REMEDIES HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE, AND THE FOREGOING SHALL CONSTITUTE THE BINNED PARTIES’ SOLE LIABILITY AND OBLIGATION IN RESPECT HEREOF, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), OR ANY OTHER LEGAL OR EQUITABLE THEORY.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU, ON BEHALF OF YOUR HEIRS, EXECUTORS, ADMINISTRATORS, LEGAL AND PERSONAL REPRESENTATIVES, HEREBY RELEASE, WAIVE, ACQUIT AND FOREVER DISCHARGE THE BINNED PARTIES FROM AND AGAINST, AND COVENANT NOT TO SUE ANY SUCH BINNED PARTY FOR, ALL CLAIMS AS SUCH TERMS AS DEFINED IN SECTION 25 YOU HAVE OR MAY HAVE ARISING OUT OF OR IN ANY WAY RELATED THE SERVICES OR TO THIS AGREEMENT.
28. Binding Arbitration. Upon the demand of any party, whether made before or after the institution of any judicial proceeding, any Dispute (as defined below) shall be resolved by binding arbitration in accordance with the terms of this Section 28 (the “Arbitration Program”). A “Dispute” shall include any action, dispute, claim, or controversy of any kind (e.g., whether in contract or in tort, statutory or common law, legal or equitable, or otherwise) now existing or hereafter arising between the parties in any way arising out of, pertaining to, or in connection with (i) this Agreement, the Binned website, or the Services, (ii) any past, present, or future incidents, omissions, acts, errors, practices, or occurrences causing injury to either party whereby the other party or its agents, employees, or representatives may be liable, in whole or in part, or (iii) any other aspect of the past, present, or future relationships of the parties including any agency, independent contractor, or employment relationship but excluding claims for workers’ compensation and unemployment benefits. Any party to this Arbitration Program may, by summary proceedings (e.g., a plea in abatement or motion to stay further proceedings), bring any action in court to compel arbitration of any Disputes. Any party who fails or refuses to submit to binding arbitration following a lawful demand by the opposing party shall bear all costs and expenses incurred by the opposing party in compelling arbitration of any Dispute. The parties agree that by engaging in activities with or involving each other as described above, they are participating in transactions within the flow of, involving, or having a nexus to, interstate commerce.
(a) Governing Rules. All Disputes between the parties submitted to arbitration shall be resolved by binding arbitration administered by the American Arbitration Association (the “AAA”) in accordance with, and in the following order of priority: (i) the terms of this Arbitration Program, (ii) the Commercial Arbitration Rules of the AAA, (iii) the Federal Arbitration Act (Title 9 of the United States Code) and (iv) to the extent the foregoing are inapplicable, unenforceable, or invalid, the laws of the State of Texas. The validity and enforceability of this Arbitration Program shall be determined in accordance with this same order of priority. In the event of any inconsistency between this Arbitration Program and such rules and statues, this Arbitration Program shall control. Judgment upon any award rendered hereunder may be entered in any court having jurisdiction; provided, however, that nothing contained herein shall be deemed to be a waiver by any party that is a bank of the protection afforded to it under 12 U.S.C. Section 91 or Section 59.007 of the Texas Civil Practice and Remedies Code.
(b) No Waiver; Preservation of Remedies; Multiple Parties. No provision of, nor the exercise of any rights under, this Arbitration Program shall limit the right of any party, during any Dispute, to seek, use, and employ ancillary or preliminary remedies, judicial or otherwise, for the purposes of obtaining provisional or ancillary remedies such as injunctive relief, sequestration, attachment, garnishment, or the appointment of a receiver from a court having jurisdiction. Such rights can be exercised at any time except to the extent such action is contrary to a final award of decision in any arbitration proceeding. The institution and maintenance of an action for judicial relief or pursuit of provisional or ancillary remedies shall not constitute a waiver of the right of any party, including the plaintiff, to submit the Dispute to arbitration, nor render inapplicable the compulsory arbitration provisions hereof. In Disputes involving indebtedness or other monetary obligations, each party agrees that the other party may proceed against all liable persons, jointly or severally, or against one or more of them, less than all, without impairing rights against other liable persons. Nor shall a party be required to join the principal obligor or any other liable persons (e.g., sureties or guarantors) in any proceeding against a particular person. A party may release or settle with one or more liable persons as the party deems fit without releasing or impairing rights to proceed against any persons not so released.
(c) Statute of Limitations. All statutes of limitation applicable to any Dispute shall apply to any proceeding in accordance with this Arbitration Program.
(d) Arbitrator Powers and Qualifications; Awards; Modification or Vacation of Award. Arbitrators are empowered to resolve Disputes by summary rulings substantially similar to summary judgments and motions to dismiss. Arbitrators shall resolve all Disputes in accordance with the applicable substantive law. Any arbitrator selected shall be required to be a practicing attorney licensed to practice law in the State of Texas and shall be required to be experienced and knowledgeable in the substantive laws applicable to the subject matter of the Dispute. With respect to a Dispute in which the claims or amounts in controversy do not exceed $500,000.00, a single arbitrator shall be chosen and shall resolve the Dispute. In such case, the arbitrator shall be required to make specific, written findings of fact, and shall have authority to render an award up to but not to exceed $500,000.00, including all damages of any kind whatsoever, including costs, fees and expenses. A Dispute involving claims or amounts in controversy exceeding $500,000.00, shall be decided by a majority vote of a panel of three arbitrators (an “Arbitration Panel”), the determination of any two of the three arbitrators constituting the determination of the Arbitration Panel, provided, however, that all three arbitrators on the Arbitration Panel must actively participate in all hearings and deliberations. Arbitrators, including any Arbitration Panel, may grant any remedy or relief deemed just and equitable and within the scope of this Arbitration Program and may also grant such ancillary relief as is necessary to make effective any award. Arbitration Panels shall be required to make specific, written findings of fact and conclusions of law, and in such proceedings before an Arbitration Panel only, the parties shall have the additional right to seek vacation or modification of any award of an Arbitration Panel that is based in whole, or in part, on an incorrect or erroneous ruling of law by appeal to a federal or state court of appeals, following the entry of judgment on the award in federal or state district court, as appropriate. For these purposes, the award and judgment entered by the federal or state district court shall be considered to be the same as the award and judgment of the Arbitration Panel. All requirements applicable to appeals from any federal or state district court judgment shall be applicable to appeals from judgments entered on decisions rendered by Arbitration Panels. The appellate courts shall have the power and authority to vacate or modify an award based upon a determination that there has been an incorrect or erroneous ruling of law. The appellate court shall also have the power to reverse and/or remand the decision of an Arbitration Panel. Subject to the foregoing, the determination of an Arbitrator or Arbitration Panel shall be binding on all parties and shall not be subject to further review or appeal except as otherwise allowed by applicable law.
(e) Other Matters and Miscellaneous. To the maximum extent practicable, the AAA, the arbitrator (or the Arbitration Panel, as appropriate), and the parties shall take any action necessary to require that an arbitration proceeding hereunder shall be concluded within 180 days of the filing of the Dispute with the AAA. Arbitration proceedings hereunder shall be conducted in El Paso County, Texas. Arbitrators shall be empowered to impose sanctions and to take such other actions as they deem necessary to the same extent a judge could pursuant to the Federal Rules of Civil Procedure, the Texas Rules of Civil Procedure, and applicable law. With respect to any Dispute, each party agrees that all discovery activities shall be expressly limited to matters directly relevant to the Dispute and any arbitrator, Arbitration Panel, and the AAA shall be required to fully enforce this requirement. This Arbitration Program constitutes the entire agreement of the parties with respect to its subject matter and supersedes all prior discussions, arrangements, negotiations, and other communications on dispute resolution. The provisions of this Arbitration Program shall survive any termination, amendment, or expiration of this Agreement, unless the parties otherwise expressly agree in writing. To the extent permitted by applicable law, arbitrators, including any Arbitration Panel, shall have the power to award recovery of all costs and fees (including, without limitation, attorney’s fees, administrative fees, and arbitrator’s fees) to the prevailing party. This Arbitration Program may be amended, changed, or modified only by the express provisions of a writing which specifically refers to this Arbitration Program and which is signed by all the parties hereto. If any term, covenant, condition or provision of this Arbitration Program is found to be unlawful, invalid, or unenforceable, such illegality, invalidity, or unenforceability shall not affect the legality, validity, or enforceability of the remaining parts of this Arbitration Program, and all such remaining parts hereof shall be valid and enforceable and have full force and effect as if the illegal, invalid, or unenforceable part had not been included. The captions or headings in this Arbitration Program are for convenience of reference only and are not intended to constitute any part of the body or text of this Arbitration Program. Each party agrees to keep all Disputes and arbitration proceedings strictly confidential, except for disclosures of information required in the ordinary course of business of the parties or by applicable law or regulation. To the maximum extent permitted by law, this Arbitration Program modifies and supersedes any and all prior agreements for arbitration between the parties.
29. WAIVER OF JURY TRIAL. TO THE EXTENT THAT THE FOREGOING ARBITRATION PROVISIONS ARE NOT APPLICABLE TO ANY PARTICULAR DISPUTE OR ACTION TO BE TAKEN BY BINNED, EACH PARTY HERETO RECOGNIZES THAT IN MATTERS RELATED TO THE SERVICES, THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY, IT MAY BE ENTITLED TO A TRIAL IN WHICH MATTERS OF FACT ARE DETERMINED BY A JURY (AS OPPOSED TO A TRIAL IN WHICH SUCH MATTERS ARE DETERMINED BY A FEDERAL OR STATE JUDGE). EACH OF THE UNDERSIGNED ALSO RECOGNIZES THAT ONE OF THE REMEDIES AVAILABLE TO IT IN ANY TRIAL MAY, UNDER CERTAIN CIRCUMSTANCES, BE THE RIGHT TO RECEIVE DAMAGES IN EXCESS OF THOSE ACTUALLY SUSTAINED BY IT. IN THE PAST IN SOME INSTANCES, SUCH DAMAGES HAVE EQUALED OR EXCEEDED THE AMOUNT OF ACTUAL DAMAGES. EACH OF THE UNDERSIGNED AGREES THAT IT DOES HEREBY GIVE UP ITS RIGHTS TO TRIAL BY JURY AND TO CLAIM ANY DAMAGES OTHER THAN ACTUAL DAMAGES. SPECIFICALLY, EACH PARTY HERETO AGREES AS FOLLOWS:
(A) TO THE MAXIMUM EXTENT ALLOWED BY LAW, EACH OF THE UNDERSIGNED HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY REGARDING ANY LITIGATION DIRECTLY OR INDIRECTLY, AT ANY TIME ARISING OUT OF, UNDER, OR IN CONNECTION WITH THE SERVICES, THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY;
(B) TO THE MAXIMUM EXTENT ALLOWED BY LAW, EACH OF THE UNDERSIGNED HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY SUCH LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES;
(C) EACH OF THE UNDERSIGNED HEREBY CERTIFIES THAT NEITHER ANY REPRESENTATIVE NOR ANY AGENT OF BINNED NOR BINNED’S COUNSEL HAS REPRESENTED, EXPRESSLY OR OTHERWISE, OR IMPLIED THAT BINNED WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS. EACH OF THE UNDERSIGNED ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO OR BECOME A PARTY TO THIS TRANSACTION BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS HEREIN; AND
(D) THE FOREGOING WAIVER OF RIGHTS RELATED TO DAMAGES SHALL NOT APPLY IN ANY TRANSACTION SUBJECT TO THE TEXAS DECEPTIVE TRADE PRACTICES ACT OR GOVERNED BY CHAPTERS 345, 347 AND 348 OF THE TEXAS FINANCE CODE.
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WHEN YOU REGISTER FOR THE SERVICES, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT (A) BINNED (OR OUR THIRD-PARTY PAYMENT PROCESSOR) IS AUTHORIZED TO CHARGE YOU ON A MONTHLY BASIS FOR THE SERVICES (IN ADDITION TO ANY APPLICABLE TAXES AND OTHER CHARGES) UNTIL YOU CANCEL THE SERVICES IN ACCORDANCE WITH OUR CANCELLATION POLICY, (B) THE AMOUNT YOU ARE CHARGED AND THE NUMBER OF TRASH BINS YOU HAVE SERVICED EACH MONTH MAY VARY DEPENDING ON THE PREFERENCES YOU SELECT, AND (C) YOUR SUBSCRIPTION REGARDING THE SERVICES SHALL BE CONTINUOUS UNTIL YOU CANCEL THEM IN ACCORDANCE WITH OUR CANCELLATION POLICY OR WE SUSPEND OR STOP PROVIDING ACCESS TO THE BINNED WEBSITE OR THE SERVICES IN ACCORDANCE WITH THIS AGREEMENT.