IMPORTANT NOTICE TO USER
THIS IS A CONTRACT.
BY CLICKING ON “I ACCEPT” BELOW AND/OR BY USING THE TANKNOLOGY ADVANCED NETWORK FOR COMPLIANCE SERVICES (“TANCS™”), YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, BECOME A PARTY TO AND BOUND BY THE TERMS OF THIS AGREEMENT, AND WILL BE PERMITTED TO ACCESS AND USE TANCS™ ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. TANKNOLOGY IS NOT WILLING TO PROVIDE YOU WITH ACCESS TO AND THE USE OF TANCS™ UNLESS YOU ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK ON THE “I DECLINE” BUTTON AT THE END OF THIS AGREEMENT AND YOU WILL NOT BE PERMITTED ACCESS TO OR THE USE OF TANCS™.
This TANCS™ License and Non-Disclosure Agreement (the “Agreement”) governs the use of TANCS™.
You must read this Agreement carefully before indicating an acceptance at the end of this Agreement.
If you do not agree with the terms and conditions of this Agreement, decline where instructed, and you will not be able to access or use TANCS™. If you accept the terms and conditions of this Agreement, you will be permitted to access and use TANCS™. Your access to and use of TANCS™ will be subject to the following terms and conditions:
TANCS™ is available for access and use only by customers of Tanknology (each, a “Customer”). With Tanknology’s consent, a Customer may also authorize a third party contractor of the Customer (a “Contractor”) to access the Customer’s information through TANCS™, but only if the Customer has signed and delivered to Tanknology a Customer Consent to Disclosure of TANCS Information agreement acceptable to Tanknology. To access and use TANCS™, the Contractor must also accept and agree to be bound by the terms of this Agreement. If You are not a Customer or duly authorized Contractor, please do not Accept this Agreement and do not try to access or use TANCS™.
License for Use of TANCS™
TANCS™ is a proprietary software program of Tanknology that is located only on Tanknology’s servers. In connection with Tanknology’s performance of services for You, certain information concerning You will be downloaded and maintained in TANCS™. Tanknology hereby grants to You a limited, non-transferable, non-exclusive license to access and use TANCS™, provided that you agree to and comply with the terms and conditions of this Agreement. You may access and use TANCS™only over the Internet for the purpose of accessing and obtaining the information entered into TANCS™ by Tanknology about You (or if You are a Contractor, about the Customer that has authorized You to access and use their TANCS™ information). TANCS™ is accessible by You only over the Internet. You acknowledge and agree that Tanknology may condition Your access to and use of TANCS™ on whatever requirements Tanknology deems necessary or appropriate to protect Tanknology’s and Tanknology’s other customers’ confidential and proprietary information, trade secrets, and intellectual properties. You agree to strictly abide by all the terms and conditions of this Agreement.
Modifications of this Agreement
Tanknology reserves the right to modify this Agreement and related policies at any time and to notify You of such modifications by posting a notice of such modifications on Tanknology’s Web Site at least thirty (30) days prior to such modifications taking effect. You are responsible for periodically reviewing this Agreement and must agree to the modifications in order to continue to access and use TANCS™.
TANCS™ is owned by Tanknology and is protected by United States Copyright Law and International Treaty provisions. TANCS™ and Web Reporting Access Program™ are trademarks of Tanknology. Title, ownership rights, and all intellectual property rights in and to TANCS™ will remain in Tankknology. You agree to abide by all copyright law, trademark law, and other applicable law. You agree not to download, publish, reproduce, copy, modify, adapt, create derivative works of, translate, reverse engineer, decompile, disassemble, or attempt to discover the source code of, TANCS™.
Except as expressly set forth in this Agreement, you do not acquire any license or other rights to access or use TANCS™. Without Tanknology’s express written consent, You may not sell, transfer, rent, lease, time-share, or sublicense your access to or use of TANCS™. You agree not to remove any proprietary legends or restrictive notices contained or included in any materials, if any, provided by Tanknology to You in connection with TANCS™. You also agree not to copy any such materials without Tanknology’s prior written consent. You agree not to access or use, and not to attempt to access or use, any information of Tanknology’s other Customer’s. You agree to abide by this Agreement and all of Tanknology’s policies and procedures, requirements and instructions in connection with your access to and use of TANCS™.
Tanknology will not, under any circumstances, be responsible or liable for a Contractor’s services for a Customer, a Contractor’s access to or use, misuse, or disclosure of a Customer’s information, or for the accuracy or inaccuracy of the information obtained by a Contractor through TANCS™.
Access to TANCS™; Equipment; Operation
Your access to TANCS™ will be over the Internet utilizing login and password capabilities. You agree to keep Your authorized TANCS™ access confidential, including your password, user name and any other information related to TANCS™ (collectively, “TANCS™ Information”), and to inform TANKNOLOGY promptly upon the unintended and/or undesired disclosure of any portion of such TANCS™Information. You are responsible for all activities that occur under or in connection with Your TANCS™ Information, as well as all activities that occur in connection with your access to and use of TANCS™. Tanknology reserves the right at any time and for any reason to modify or discontinue all or any aspect or feature of TANCS™, including, but not limited to, the content, functionality, location, and the equipment required to access or use TANCS™. You are responsible for providing and operating your own equipment and Internet access in order to access and use TANCS™.
TANCS™ and other information provided by Tanknology in connection with TANCS™ contain and constitute trade secrets, confidential information and data proprietary to Tanknology, including, without limitation, the following: software, data, know-how, formulae, processes, designs, sketches, photographs, plans, drawings, specifications, samples, reports, customer lists, pricing information, studies, findings, inventions, and ideas and any and all written or oral descriptions, advertisements, operating manuals, applications, Internet applications, and literature relating to TANCS™ or Tanknology’s tank testing, field services, maintenance management, fuel services, and compliance management software and hardware products used to monitor, test, construct, install, operate, protect, and control underground storage tanks (collectively, “Confidential Information”). Confidential Information may be transmitted orally, in writing or by inspection. You agree to hold the Confidential Information in strict confidence and shall not cause or permit the Confidential Information to be disclosed to third parties or duplicated without Tanknology’s prior written consent. You agree to use the Confidential Information only as permitted by this Agreement in connection with your use of TANCS™. You may disclose the Confidential Information in confidence to Your employees and independent contractors who require knowledge of the Confidential Information for performance of their regular duties, and then only pursuant to a written agreement with them that requires them to maintain the Confidential Information in strict confidence to the same extent as You have agreed to do in this Agreement. You shall use at least the same degree of care to avoid disclosure and wrongful use of the Confidential Information as You employ with respect to Your own proprietary or confidential information, but no less than a reasonable degree of care.
Confidential Information will not include: (a) information that at the time of disclosure is publicly available or that after disclosure becomes publicly available, other than as the result of unauthorized disclosure by You or any third party; (b) Confidential Information that was in Your possession prior to disclosure from Tanknology as evidenced by bona fide written, dated documents, that were not acquired, directly or indirectly, from Tanknology; or, (c) information You independently receive from a third party without restriction and without breach of this Agreement or any other agreement and that is not subject to a confidentiality obligation. If You are requested or required to disclose Confidential Information by law or pursuant to a subpoena or an order of a court or governmental agency, You shall: (a) promptly notify Tanknology of the existence, terms, and circumstances surrounding the legal requirement, subpoena, court or governmental agency request or requirement; (b) consult with Tanknology on the advisability of taking steps to resist or narrow the request; (c) cooperate with Tanknology in its efforts to narrow the request and to obtain an order or other reliable assurance that confidential treatment will be accorded to that portion of the Confidential Information that is required to be disclosed; and (d) if disclosure of Confidential Information is required, furnish only such portion of the Confidential Information as You are advised by legal counsel is legally required to be disclosed and make the disclosure in a manner consistent with all applicable protective orders and other protective measures agreed to by the relevant parties or provided for by the applicable court or governmental agency.
All Confidential Information will be and remain the property of Tanknology. Promptly upon Tanknology’s request (but no later than 30 days after such a request), You shall (a) return all Confidential Information to Tanknology, or at Tanknology’s option destroy the Confidential Information, and (b) delete all electronic copies of the Confidential Information in a manner preventing recovery.
Your obligations contained herein will continue with respect to particular Confidential Information until the particular Confidential Information is no longer maintained as confidential by Tanknology or, if longer, for a period of five (5) years from receipt of the particular Confidential Information, regardless of termination of this Agreement.
This Agreement will begin upon Your acceptance of this Agreement by clicking on the “I Accept” button at the end of this Agreement (the “Effective Date”). This Agreement will continue in full force and effect for a primary term of one (1) year beginning with the Effective Date. This Agreement will automatically renew on each anniversary of the Effective Date for successive one (1) year renewal terms, unless either party notifies the other party in writing, at least thirty (30) days prior to the expiration of the current term, of its intent not to renew. You may terminate this Agreement for any reason, with or without cause, at any time during the primary term or any renewal term by giving written notice of termination to Tanknology. Tanknology may terminate this Agreement and/or Your access to and use of TANCS™ for any reason, with or without cause, under any circumstances and without prior notice, at any time during the primary term or any renewal term. Upon termination of this Agreement, You shall immediately discontinue any access and use of TANCS™. The terms of section 8 will survive termination of this Agreement.
It is expressly understood and agreed that each party is acting as an independent contractor and is not an agent, partner, or joint venturer with the other party for any purpose. The parties have no authority to assume or create any obligation for or on behalf of the other party, express or implied, with respect to this Agreement or otherwise.
DISCLAIMER OF WARRANTIES
YOUR ACCESS TO AND USE OF TANCS™ IS BEING PROVIDED TO YOU “AS IS” AND TANKNOLOGY MAKES NO WARRANTY AS TO ITS USE OR PERFORMANCE. TANKNOLOGY DOES NOT WARRANT THE PERFORMANCE OR RESULTS THAT YOU MAY OBTAIN BY ACCESSING OR USING TANCS™. TANKNOLOGY MAKES NO WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, AS TO NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE. Some states or jurisdictions do not allow the exclusion of implied warranties or limitations on how long implied warranties may last, so the above limitations may not apply to you.
LIMITATION OF LIABILITY
TANKNOLOGY does not guarantee continuous, uninterrupted or secure access to TANCS™. You acknowledge that the operation and availability of the servers and communication systems (including, without limitation, telephone service, computer networks and the Internet) used for hosting, accessing and interacting with TANCS™ can be unpredictable and may, from time to time, interfere with or prevent access to or operation of TANCS™. You acknowledge that Tanknology is not responsible for any such interference with or prevention of Your use of or access to TANCS™.
YOU WILL HAVE NO CLAIM AGAINST TANKNOLOGY FOR INTERRUPTED COMMUNICATIONS, LOST DATA, RE-RUN TIME, INACCURATE INPUT, WORK DELAYS, LOST REVENUES OR LOST PROFITS RESULTING FROM OR IN CONNECTION WITH THE USE OF, OR INABILITY TO USE TANCS™.
IN NO EVENT WILL TANKNOLOGY BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING ANY LOST PROFITS OR LOST SAVINGS, EVEN IF ADVISED OF THE POSSIBLITY OF SUCH DAMAGES AND REGARDLESS OF THE FORM OF ACTION, OR FOR ANY CLAIM BY ANY THIRD PARTY, RESULTING FROM (A) YOUR ACCESS OR USE OF TANCS™ OR YOUR INABILITY TO ACCESS OR USE TANCS™, (B) ANY CHANGES MADE TO TANCS™ OR ANY TEMPORARY OR PERMANENT CESSATION OF YOUR ACCESS TO OR USE OF TANCS™ OR ANY PART THEREOF, (C) THE UNAUTHORIZED ACESS TO OR ALTERATION OF YOUR INFORMATION IN TANCS™, OR (D) ANY OTHER MATTER RELATING TO TANCS™. YOU ACKNOWLEDGE AND AGREE THAT THE LIMITATION ON DAMAGES IN THIS AGREEMENT IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN YOU AND TANKNOLOGY. YOUR ACCESS TO AND USE OF TANCS™ WOULD NOT BE PROVIDED TO YOU WITHOUT SUCH LIMITATIONS. Some states or jurisdictions do not allow the exclusion or limitation of direct, indirect, incidental, special, consequential or punitive damages, so the above limitations may not apply to you.
You acknowledge and agree that, if You breach or threaten to breach any of Your obligations under this Agreement, Tanknology will suffer irreparable harm and will be entitled, without showing or proving any actual damage sustained, to a stipulated temporary restraining order, and shall thereafter be entitled to apply for a preliminary injunction, permanent injunction, and/or order compelling specific performance, to prevent the breach of Your obligations under this Agreement. Nothing is this Agreement will be interpreted as prohibiting Tanknology from pursuing or obtaining any other remedies otherwise available to it for such actual or threatened breach, including recovery of damages.
THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE STATE OF TEXAS AS SUCH LAWS ARE APPLIED TO AGREEMENTS ENTERED INTO AND TO BE PERFORMED ENTIRELY WITHIN TEXAS BETWEEN TEXAS RESIDENTS. ANY ACTION BROUGHT BY THE PARTIES TO ENFORCE OR INTERPRET ANY PROVISION OF THIS AGREEMENT, OR OTHERWISE RELATING TO THIS AGREEMENT, MUST BE BROUGHT EXCLUSIVELY IN AN APPROPRIATE STATE COURT IN TRAVIS COUNTY, TEXAS OR FEDERAL COURT IN THE WESTERN DISTRICT OF TEXAS – AUSTIN, TEXAS DIVISION. THE PARTIES HEREBY CONSENT TO SUCH EXCLUSIVE JURISDICTION AND WAIVE ANY OBJECTION TO SUCH VENUE.
This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter herein and supersedes all prior agreements, writings, commitments, and discussions. If any part of this Agreement is found void and unenforceable, the balance of the Agreement will remain valid and enforceable according to its terms. Tanknology’s failure to enforce any provisions of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. This Agreement will be construed within its fair meaning and no inference will be drawn against the drafting party in interpreting this Agreement. Headings used in this Agreement are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section or in any way affect this Agreement. A printed version of this Agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
Tanknology is located at 11000 N. Mopac Expressway, Suite 500, Austin, Texas 78759. Questions concerning this Agreement should be directed to the attention of the Vice President and Chief Financial Officer.
YOU HEREBY ACKNOWLEDGE AND AGREE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.