SaaS Services Agreement

This SAAS SERVICES AGREEMENT (“Agreement”) constitutes a contract between GABSmarts Technology LLC DBA Clean Smarts (“Clean Smarts”), and You. This Agreement includes and incorporates the Definitions and the Terms and Conditions below and contains, among other things, warranty disclaimers, liability limitations and use limitations.

By accepting these Terms and Conditions, or by accessing or using the Services, or authorizing or permitting any Agent or End-User to access or use the Services, You agree to be bound by these Terms and Conditions. If You are entering into these Terms and Conditions on behalf of a company, organization or another legal entity (an “Entity”), You are agreeing to these Terms for that Entity and representing to Clean Smarts that You have the authority to bind such Entity and its Affiliates to these Terms, in which case the terms “You,” “Your” or related capitalized terms herein shall refer to such Entity and its Affiliates. If You do not have such authority, or if You do not agree with these Terms, You must not accept these Terms and may not use the Service.

DEFINITIONS

Account: means any accounts or instances created by or on behalf of You or Your Agents within the Service.

Agent: means an individual authorized to use the Service through Your Account as an agent and/or administrator as identified through a unique login.

Service(s): means only the Clean Smarts mobile application and the Clean Smarts on-demand customer service solution made available by Clean Smarts online via the subscriber login link at https://admin.cleansmarts.com and other web pages designated by Clean Smarts, including, individually and collectively, the applicable Software, Updates, and Documentation.

Site: means any website(s) owned or operated by Clean Smarts.

End-User: means any person or entity other than You or Agents with whom You or Your Agents interact using the Service.

Affiliate: means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise.

TERMS AND CONDITIONS

1. SAAS SERVICES AND SUPPORT

1.1 Subject to the terms of this Agreement, Clean Smarts will use commercially reasonable efforts to provide You the Services in accordance with the Service Level Terms described below. As part of the registration process, You will create a user name and password for Your Account.

1.2 If Services are provided in a Trial Period, such Services will be restricted to non-productive evaluation use. Notwithstanding anything else, in connection with such trial/evaluation use (1) no fees will apply, (2) the Services are provided “AS IS” and no warranty obligations of Clean Smarts will apply, and (3) You may terminate this Agreement and all of its rights hereunder by providing Clean Smarts written notice thereof at any time prior to the end of the Trial Period; otherwise, this Agreement shall continue in effect for the Initial Service Term (subject to earlier termination as provided in the Agreement).

2. RESTRICTIONS AND RESPONSIBILITIES

2.1 You will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Clean Smarts or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.

2.2 Further, You may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

2.3 You represent, covenant, and warrant that You will use the Services only in compliance with Clean Smarts’s standard published policies then in effect and all applicable laws and regulations. You hereby agree to indemnify and hold harmless Clean Smarts against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Your use of Services. Although Clean Smarts has no obligation to monitor Your use of the Services, Clean Smarts may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

2.4 You shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). You shall also be responsible for maintaining the security of the Equipment, Your Account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Your Account or the Equipment with or without Your knowledge or consent.

3. CONFIDENTIALITY; PROPRIETARY RIGHTS

3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Clean Smarts includes non-public information regarding features, functionality and performance of the Service. Your Proprietary Information includes non-public data provided by You to Clean Smarts to enable the provision of the Services (“Your Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.

3.2 You shall own all right, title and interest in and to the Your Data, as well as any data that is based on or derived from the Your Data and provided to You as part of the Services. Clean Smarts shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.

3.3 Notwithstanding anything to the contrary, Clean Smarts shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Your Data and data derived therefrom), and Clean Smarts will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Clean Smarts offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.

4. PAYMENT OF FEES

4.1 You will pay Clean Smarts all charges associated with Your access to and use of the Services as stated on the pricing pages of the Site unless otherwise indicated on an Order Form or SOW referencing this Agreement in accordance with the terms therein (the “Fees”). If Your use of the Services exceeds the Service Capacity set forth in the terms or conditions on any purchase order or other order documentation or otherwise requires the payment of additional fees (per the terms of this Agreement), You shall be billed for such usage and You agree to pay the additional fees in the manner provided herein. Clean Smarts reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then current renewal term, upon thirty (30) days prior notice to You (which may be sent by email). If You believe that Clean Smarts has billed You incorrectly, You must contact Clean Smarts no later than 45 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Clean Smarts’s customer support department.

4.2 Clean Smarts may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Clean Smarts fifteen (15) days after the mailing date of the invoice. Unpaid amounts will become overdue fifteen (15) days after payment is due and shall be subject to a late fee of one and one and a half percent (1.5%) per month for each month where payment is not received, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. You shall be responsible for all taxes associated with Services other than U.S. taxes based on Clean Smarts’s net income.

5. TERM AND TERMINATION

5.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the terms or conditions of any purchase order or other order documentation, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.

5.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. You will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, Clean Smarts will make all of Your Data available to You for electronic retrieval for a period of thirty (30) days, but thereafter Clean Smarts may, but is not obligated to, delete Your Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

6. WARRANTY AND DISCLAIMER

Clean Smarts shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Clean Smarts or by third-party providers, or because of other causes beyond Clean Smarts’s reasonable control, but Clean Smarts shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, CLEAN SMARTS DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND CLEAN SMARTS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

7. INDEMNITY

Clean Smarts shall hold You harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Clean Smarts is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Clean Smarts will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Clean Smarts, (ii) made in whole or in part in accordance with Your specifications, (iii) that are modified after delivery by Clean Smarts, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where You continue allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Your use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Clean Smarts to be infringing, Clean Smarts may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for You a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Your rights hereunder and provide You a refund of any prepaid, unused fees for the Service.

8. LIMITATION OF LIABILITY

NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, CLEAN SMARTS AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND CLEAN SMARTS' REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY YOU TO CLEAN SMARTS FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT CLEAN SMARTS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9. MISCELLANEOUS

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by You except with Clean Smarts’s prior written consent. Clean Smarts may transfer and assign any of its rights and obligations under this Agreement without consent. 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, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and You do not have any authority of any kind to bind Clean Smarts in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of Texas without regard to its conflict of laws provisions. Exclusive jurisdiction and venue for any action arising under this Agreement is in the federal courts located in Houston, Texas, and both Parties hereby consent to such jurisdiction and venue for this purpose. The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and You otherwise agree to reasonably cooperate with Clean Smarts to serve as a reference account upon request.

Service Level Terms

The Services shall be available 99.9%, measured monthly, excluding holidays and weekends and scheduled maintenance. If Customer requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance. Further, any downtime resulting from outages of third party connections or utilities or other reasons beyond Clean Smarts’s control will also be excluded from any such calculation. Customer's sole and exclusive remedy, and Clean Smarts' entire liability, in connection with Service availability shall be that for each period of downtime lasting longer than one hour, Clean Smarts will credit Customer 5% of Service fees for each period of 30 or more consecutive minutes of downtime; provided that no more than one such credit will accrue per day. Downtime shall begin to accrue as soon as Customer (with notice to Clean Smarts) recognizes that downtime is taking place, and continues until the availability of the Services is restored. In order to receive downtime credit, Customer must notify Clean Smarts in writing within 24 hours from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit. Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1) week of Service Fees in any one (1) calendar month in any event. Clean Smarts will only apply a credit to the month in which the incident occurred. Clean Smarts’s blocking of data communications or other Service in accordance with its policies shall not be deemed to be a failure of Clean Smarts to provide adequate service levels under this Agreement.