Green Places, Inc

Terms and Conditions

Effective August 14, 2024.

These Terms and Conditions are part of and incorporated into the Master Subscription Agreement (the “Agreement”) by and between Green Places, Inc. (“Greenplaces”) and Customer (as defined in the Agreement). Capitalized terms not defined herein shall have the meanings set forth in the Agreement. The term “Agreement” includes these Terms and Conditions and the Subscription Schedules attached to the Agreement and all documents referenced therein and herein.

1. DEFINITIONS. As used in this Agreement:

1.1  “Access Credentials” mean login information, passwords and other authentication credentials through which Users access and use the Greenplaces Software.

1.2  “Admin Users” means the Customer employees designated by Customer within the Greenplaces Software to be administrative users with the ability to issue Access Credentials to other Users.

1.3  “Customer Inputs” means information, data, or other content provided and/or uploaded to the Greenplaces Software by Customer or its Users.

1.4  “Documentation” means materials made available by Greenplaces to Customer that describe or otherwise address the features, functions and use of the Greenplaces Software.

1.5  “Intellectual Property Rights” mean any and all now known or hereafter existing proprietary rights of every kind and nature including, without limitation, (i) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (ii) trademark, service mark, trade dress and similar rights (iii) trade secret rights; (iv) patent rights, and industrial property rights; (v) layout design rights and other design rights; and (vi) registrations, applications, renewals, extensions, or reissues of the foregoing, in each case, in any jurisdiction throughout the world.

1.6   “Professional Services” means any training, migration, or other professional services that Greenplaces furnishes to Customer in connection with the Greenplaces Software.

1.7  “Subscription Schedule” means Greenplaces’ Subscription Schedule, signed by an authorized representative of each party and attached to this Agreement as well as any later executed Subscription Schedule that references this Agreement.

1.8  “Updates” mean all upgrades, enhancements, improvements, maintenance releases, additions, and modifications of the Greenplaces Software made generally commercially available to customers of Greenplaces during the Term.  Updates may also include new features and/or functionality for which Greenplaces reserves the right to charge an additional fee if Customer elects to activate such new features and/or functionality.

1.9  “User” means the Admin Users and any other end users of the Greenplaces Software issued Access Credentials by the Admin Users.

1.10  “Greenplaces Analytics” means any information, data, statistics, metadata, inferences, interrelationships, and/or associations generated by the Greenplaces Software, including without limitation as derived from aggregated anonymized inputs to, and usage of, the Greenplaces Software across all Greenplaces customers.  In no event will Greenplaces Analytics include (i) any personal identifiable information or (ii) Customer Inputs or other information that identifies Customer or any of its affiliates.

1.11  “Greenplaces Software” means the Greenplaces cloud based sustainability software application.

1.12  “Greenplaces Technology” means the computer software, computer code, scripts, neural networks, artificial intelligence, application programming interfaces, methodologies, processes, templates, work flows, diagrams, tools, algorithms, formulas, user interfaces, know-how, trade secrets, techniques, designs, inventions, third party services and other tangible or intangible technical material, information and works of authorship underlying or otherwise used to make the Greenplaces Software available to Greenplaces customers including, without limitation, all Updates thereto and all derivative works thereof, and Intellectual Property Rights therein and thereto.

1.13  “Law” means any federal, state, local, or foreign law (including common law), statute, code, ordinance, rule, regulation, order, ruling, or judgment, in each case, that is validly adopted, promulgated, issued, or entered by a governmental authority of competent jurisdiction.

2. GREENPLACES SOFTWARE

 2.1   Access Grant.   Subject to Customer’s compliance with this Agreement, Greenplaces grants Customer a non-exclusive, non-transferable, worldwide, revocable, non-sublicensable right to allow its Users to access and use the Greenplaces Software.  The rights set forth in this Section 2.1 may be exercised by Customer’s third party contractors and service providers; provided, that  Customer shall be responsible for any breach of this Agreement by any such third party contractors and service providers.

2.2  Customer Access. Customer acknowledges that access and use of the Greenplaces Software is dependent upon access to telecommunications and Internet services.  Customer will be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the Greenplaces Software, and any related costs, fees, expenses, and taxes.  Greenplaces will not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such telecommunications or Internet services or any such hardware or software.

2.3 Modifications to the Greenplaces Software. Greenplaces reserves the right to enhance, improve and modify the Greenplaces Software on a continuous basis at no cost to Customer; provided that any such enhancement, improvement, or modification shall not result in any decrease in features or functionality.

3. LICENSES; OWNERSHIP

3.1 Customer Inputs. Customer grants to Greenplaces a non-exclusive, royalty-free license to access, use, and copy the Customer Inputs solely as necessary to provide the Greenplaces Software and to provide the Professional Services.  Greenplaces agrees Customer owns all right, title and interest in and to the Customer Inputs, and reserves all rights not expressly granted to Greenplaces under this Agreement.

3.2 Users. Customer, through its Admin Users, may allow Users to access and use the Greenplaces Software.  Customer is responsible for all acts and omissions of Customer’s Users.

3.3 Ownership.  The Greenplaces Software, the Greenplaces Technology, the Greenplaces Analytics, the Documentation and all Intellectual Property Rights in each of the foregoing, and in all derivative works of each of the foregoing, are the exclusive property of Greenplaces and its licensors.  Except for the rights and licenses expressly granted herein, all rights in and to all of the foregoing are reserved by Greenplaces and its licensors. 

3.4 Marketing.  Subject to Customer’s prior written consent, Greenplaces may issue a press release after the Effective Date regarding Customer’s use of the Greenplaces Software.  During the Term, Greenplaces may publicly refer to Customer as a customer of Greenplaces, including on Greenplaces’ website and in sales presentations, and may use Customer’s logo for such purposes.  Similarly, during the Term, Customer may publicly refer to itself as a user of the Greenplaces Software.

3.5 Professional Services; Reports. Greenplaces will perform such Professional Services as are described in any Subscription Schedule. In connection therewith, Customer agrees to give Greenplaces timely access to Customer Inputs or other Customer data reasonably necessary for the performance of such Professional Services. In connection with Customer’s use of the Greenplaces Software, Customer may produce or be provided periodic reports related to, among other things, Customer’s carbon footprint and a carbon reduction or sustainability plan.  Customer will own all right, title and interest in and to any such reports. In the event Customer provides Greenplaces with Customer Inputs or other Customer data or requests to be incorporated into a report with respect to Customer’s carbon footprint after finalization of such report (as evidenced by Greenplaces’ delivery to Customer of a written final report notification, along with a copy of such finalized report), Greenplaces will review such Customer Inputs or other Customer data or requests for the purpose of determining whether incorporation thereof into the applicable carbon footprint report will result in a variance of five percent (5%) or more in Customer’s overall carbon footprint for the applicable time period. If Greenplaces determines such incorporation will result in a variance of five percent (5%) or more in Customer’s overall carbon footprint for the applicable time period, (i) Greenplaces will update the subject report within a commercially reasonable time, and (ii) Customer agrees to pay Greenplaces for all related services at a rate of Two Hundred Fifty Dollars ($250) per hour, unless otherwise agreed by Greenplaces in writing. If Greenplaces determines such incorporation will not result in a variance of five percent (5%) or more in Customer’s overall carbon footprint for the applicable time period, Greenplaces will include review of the subject Customer Inputs or other Customer data or requests in connection with creation of a carbon footprint report for the next applicable reporting cycle or footprint year set forth on a Subscription Schedule, if any.

3.6 Trademark License. Pursuant to this Agreement, Customer may qualify for public use of certain Greenplaces registered or unregistered trademarks, such as the GREEN PLACES word mark and logo, (the “Licensed Marks”) that indicate that Customer has achieved certain objectives (e.g., Customer is carbon neutral, etc.).  In the event that Greenplaces determines that Customer qualifies for the right to use any of the Licensed Marks, Greenplaces will notify Customer in writing and the Licensed Marks shall be provided under the following terms: 

(i)  Greenplaces hereby grants Customer and its affiliates a nonexclusive, nontransferable, nonsublicensable, worldwide, license to use the Licensed Marks, in each case, during the Term or for the applicable period (e.g., an annual period) for which such Licensed Mark is provided, whichever ends first.  All depictions and use of the Licensed Marks by Customer shall be exact electronic or print reproductions of the Licensed Marks.  The use of the Licensed Marks shall be subject to Greenplaces trademark usage guidelines that are provided to Customer in writing from time to time.  Without limiting the foregoing, Customer shall always utilize the Licensed Marks in a manner that reflects favorably on the Licensed Marks and Greenplaces.

(ii)  Except to the extent set forth herein, Customer shall not assert any ownership rights in any Licensed Mark or any mark that is confusingly similar to a Licensed Mark, either alone or in combination with Customer’s own trademarks, tradenames or service marks.  Customer further agrees not to assert any rights in the Licensed Marks against Greenplaces, any other Greenplaces customer, or its or their affiliates, or to object to the use of the Licensed Marks by such parties.

(iii)  All uses of the Licensed Marks shall include any notices provided by Greenplaces (e.g., ™) and indicate that the Greenplaces is the owner of the Licensed Marks.  Customer  recognizes that there exists great value and good will associated with the Licensed Marks and acknowledges that the Licensed Marks and all rights therein and good will pertaining thereto belong exclusively to Greenplaces.  Customer agrees that the Licensed Marks are the sole property of Greenplaces and that Customer has no interest whatsoever in the Licensed Marks aside from the licenses expressly granted herein, and Customer shall use the Licensed Marks only for so long as the license granted hereby remains in full force and effect.

4. CUSTOMER RESPONSIBILITIES.

4.1   Access Credentials. Customer is responsible for all actions taken under Customer’s Greenplaces Software account, or using the Access Credentials.  Customer agrees to: (i) keep the Access Credentials secure and confidential, and not to allow any User to provide their Access Credentials to anyone else; and (ii) not permit others to use Customer’s Access Credentials.  Customer will notify Greenplaces immediately if it learns of any unauthorized use of any Access Credentials or any other known or suspected breach of security related to the Greenplaces Software.  Greenplaces reserves the right to take any action it deems necessary or reasonable to ensure the security of the Customer Inputs, Greenplaces Software, and Access Credentials.

4.2     Use Guidelines.  Customer shall use the Greenplaces Software solely for Customer’s internal business purposes, and shall not:  (i) license, sublicense, sell, resell, rent, lease, transfer, assign, copy, reproduce, distribute, time share or otherwise commercially exploit or make the Greenplaces Software available to any third party, other than as expressly permitted by this Agreement; (ii) disrupt any servers or networks connected to the Greenplaces Software, or disobey any requirements, procedures, policies or regulations of networks connected to the Greenplaces Software; (iii) attempt to gain unauthorized access to the Greenplaces Software or the Greenplaces Technology or any related systems or networks; (iv) remove, alter or obscure any proprietary notices associated with the Greenplaces Software; (v) use the Greenplaces Software in violation of any applicable Law; (vi) attempt to probe, scan, or test (including without limitation stress testing or penetration testing) the vulnerability of any system or network associated with the Greenplaces Software or breach any security or authentication measures; or (vii) utilize the Greenplaces Software in order to send, store, upload, distribute or plant material containing software viruses, worms, Trojan horses, malware or other harmful computer code, files, scripts, agents or programs.

4.3  Restrictions. Customer will not directly or indirectly use the Greenplaces Software in any manner to create, or assist a third party to create, any software, service, product or solution that competes with the Greenplaces Software.

4.4   Customer Input Restrictions. The Greenplaces Software includes functionality that allows Customer to upload Customer Inputs.  Customer is responsible for all Customer Inputs, and agrees to provide all Customer Inputs in English.  Greenplaces shall have no obligation to translate or otherwise make use of any Customer Inputs provided other than in English.  Customer represents, warrants and covenants Customer has all rights and licenses necessary to upload the Customer Inputs, and to grant Greenplaces the licenses granted hereunder with respect to the Customer Inputs.  Without limiting the foregoing, Customer represents, warrants and covenants that the Customer Inputs will not and do not: (i) infringe the patent, copyright, trademark, trade secret, or other intellectual property or proprietary right of others, (ii) violate the privacy, publicity, or other rights of any individual or any third party, and/or (iii) disclose or provide information protected under any applicable Law, agreement or fiduciary relationship, including but not limited to, privileged, proprietary or confidential information of others.

4.5 Third Party Software. Customer hereby acknowledges and agrees that any software or services provided by Arcadia Power Inc. or its affiliates, and made available to Customer in connection with the Greenplaces Software, shall be subject to that certain Pass-Through Customer Agreement, available here: https://greenplaces.com/terms/arcadia.  Greenplaces hereby agrees that Customer’s use of any software or services provided through the Greenplaces Software by Arcadia Power Inc. or its affiliates shall be within the sole discretion of Customer.

5. FEES AND PAYMENT.

5.1 Fees. In consideration for the rights granted hereunder, Customer will pay to Greenplaces the fees set forth in the applicable Subscription Schedule, in accordance with the payment schedule set forth therein.  If no payment schedule is set forth in the applicable Subscription Schedule, all invoices issued by Greenplaces thereunder will be due and payable thirty (30) days after Customer’s receipt.  Except as expressly set forth herein, all fees are nonrefundable, payable in U.S. dollars and exclude all applicable sales, use, and other taxes.  Any fees that are not paid when due are subject to interest at the rate of one percent (1.0%) per month or the maximum rate permitted by applicable Law, whichever is less, from the due date until paid.

5.2 Adjustments to Fees.  Greenplaces prices the Greenplaces Software based on various factors that may include the number of locations of Customer and its affiliates.  Consequently, in the event that Customer, by merger, acquisition, or any other change of control or business combination, increases the number of locations of Customer and its affiliates, Customer shall promptly notify Greenplaces, and continued use of the Greenplaces Software shall be subject to payment of additional fees to be agreed upon by the parties.  Greenplaces may increase the fees under any Subscription Schedule on an annual basis by a percentage increase not to exceed the greater of: (i) 5%; and (ii) the most recently reported annual increase in the Consumer Price Index (All Urban Consumers) reported by the U.S. Bureau of Labor and Statistics. 

5.3 Taxes. All fees are exclusive of any applicable sales, use, value-added, or similar taxes (“Taxes”) that may be assessed in connection with this Agreement. Greenplaces is responsible for determining, collecting, and remitting such Taxes to the appropriate taxing authorities.

6. CONFIDENTIALITY AND DATA PROTECTION

6.1 Confidential Information.  Each party (the “Disclosing Party”) may from time to time during the Term disclose to or learn from the other party (the “Receiving Party”) certain non-public information regarding the Disclosing Party and its business including, without limitation, technical, marketing, financial, employee, planning, and other confidential or proprietary information, whether disclosed orally, in writing or visually, that is either marked or otherwise identified in writing as confidential at the time of disclosure, or which the Receiving Party knew or should have known, under the circumstances, was considered confidential or proprietary by the Disclosing Party (“Confidential Information”). For the avoidance of doubt, the Greenplaces Software and the Greenplaces Technology constitutes Confidential Information of Greenplaces, and Customer Inputs constitute the Confidential Information of Customer.

6.2 Protection of Confidential Information.  The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees of the Receiving Party who (i) have a need to know such Confidential Information for purposes of this Agreement and (ii) are subject to a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder.  The Receiving Party will (a) protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature, and with no less than reasonable care; and (b) promptly advise the Disclosing Party upon becoming aware of any loss, disclosure, misappropriation or unauthorized duplication of the Confidential Information or of any breach of this Agreement.  Both parties acknowledge and agree that the Disclosing Party may be irreparably harmed by any violation of this Section 6.2 (Confidentiality) and that the use of the Confidential Information for any purpose other than that stated herein may, among other things, enable the Receiving Party or other third parties receiving such Confidential Information to compete unfairly with the Disclosing Party.  Therefore, in the event of a breach or threatened breach of this Section 6.2, the Disclosing Party shall be entitled, in addition to all other rights and remedies available at law or in equity, to seek (I) an injunction restraining such breach; or (II) a decree for specific performance hereof.  Notwithstanding the termination or expiration of this Agreement, the obligations of the Receiving Party with respect to the Confidential Information of Disclosing Party shall be in full force and effect as follows: (A) in the case of any information or materials that constitute a trade secret within the meaning of applicable Law, for as long as such information and materials remain as a trade secret, or (B) in the case of any other information or materials, during the Term and for three (3) years following the termination or expiration of this Agreement.

6.3 Exceptions.  The Receiving Party’s obligations under Section 6.2 will not apply to any portion of the Disclosing Party’s Confidential Information if the Receiving Party can document that such information: (i) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (ii) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (iii) is, or through no fault of the Receiving Party has become, generally available to the public; or (iv) was independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.  In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is (a) approved in writing by the Disclosing Party, (b) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (c) required by applicable Law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party, as permitted by applicable Law, promptly notifies the Disclosing Party of such required disclosure in writing, and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.

6.4 Return of Confidential Information.  The Receiving Party will return to the Disclosing Party all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control, and permanently erase all electronic copies of such Confidential Information promptly upon the written request of the Disclosing Party or the expiration or termination of this Agreement, whichever comes first; provided that any electronic copies stored in connection with the Receiving Party’s back-up and recovery operations conducted in the ordinary course of business may be retained and will continue to be subject to the terms herein.  Upon written request by the Disclosing Party, the Receiving Party will certify in writing that it has fully complied with its obligations under this Section 6.4. 

6.5 Confidentiality of Agreement.  Neither party will disclose any terms of this Agreement to anyone other than its attorneys, accountants, and other professional advisors under a duty of confidentiality except (i) as required by applicable Law; (ii) pursuant to a press release mutually agreed upon by the parties; or (iii) in connection with a proposed merger, financing, or sale of such party’s business (provided that any third party to whom the terms of this Agreement are to be disclosed signs a confidentiality agreement imposing duties of confidentiality no less restrictive than those imposed on the Receiving Party hereunder.

7. WARRANTIES.

7.1 Warranties by Both Parties.  Each party represents and warrants that: (i) it has full power and authority to enter into and perform its obligation under this Agreement; (ii) the person signing this Agreement on such party’s behalf has been duly authorized and empowered to enter into this Agreement; and (iii) that it will perform its obligations, and exercise its rights, hereunder in conformance with all applicable Laws.

7.2 Greenplaces Warranties. Greenplaces represents, warrants and covenants that: (i) the Greenplaces Software will include the functionality described in the Documentation, and perform in all material respects in accordance with the Documentation, and (ii) the Professional Services will be provided in a professional and workmanlike manner.

7.3 Disclaimer.  EXCEPT FOR THE EXPRESS WARRANTIES IN THIS ARTICLE 7 (WARRANTIES), GREENPLACES MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, WHETHER, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION REGARDING THE GREENPLACES SOFTWARE, THE DOCUMENTATION, THE GREENPLACES TECHNOLOGY, THE PROFESSIONAL SERVICES OR OTHERWISE WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, AND EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON INFRINGEMENT OF THIRD PARTY RIGHTS, AND ANY WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.  Greenplaces shall not be responsible for ensuring, and does not represent or warrant that: (i) the Greenplaces Software will meet Customer’s requirements; (ii) the Greenplaces Software will be error-free or uninterrupted or that the results obtained from its use will be accurate; or (iii) all deficiencies in the Greenplaces Software can be found or corrected.  Greenplaces will not be responsible for any failure to meet the Greenplaces Software warranty set forth in Section 7.2(i), or any loss or corruption of data, in each case caused by acts by Customer, any User, or otherwise using the Access Credentials.

Customer acknowledges and agrees that any results provided by the Greenplaces Software (the “Results”) are dependent on the timeliness and accuracy of the Customer Inputs.  Greenplaces shall not be responsible for any delays, or for any errors, omissions, or inaccuracies of the Results, which are caused by the Customer Inputs or Customer’s delay in providing the Customer Inputs.

All Results and other guidance or advice provided by Greenplaces hereunder are provided “AS IS” and Greenplaces disclaims any liability in connection with Customer’s use of the same.

7.4 Remedy. Greenplaces’ sole liability, and Customer’s sole remedy, for a breach of the warranty in Section 7.2(i) or Section 7.2(ii), as applicable, shall be for Greenplaces to remedy, fix or improve the Greenplaces Software or Professional Services, as applicable, to cure such breach.  If Greenplaces is not able to cure such breach within a reasonable time (not to be less than thirty (30) days from the date of written notification of the breach), then Customer may terminate this Agreement and Greenplaces shall refund to Customer: (i), in the case of a breach of the warranty in Section 7.2(i), any prepaid amounts for the period of time during which the Greenplaces Software was provided in breach of the warranty in Section 7.2(i) (provided that such period of time shall not commence earlier than the date that Greenplaces first received written notice of a breach of the warranty in Section 7.2(i)); and (ii) in the case of a breach of the warranty in Section 7.2(ii), any prepaid, unused fees for the subject Professional Services.

8. INDEMNIFICATION.

 8.1 Greenplaces Indemnity. Greenplaces shall defend, indemnify, and hold harmless Customer and its officers, directors and employees from and against any third party claims, suits, or proceedings (“Claims”) brought against Customer or its officers, directors or employees (i) contending that Customer’s use of the Greenplaces Software in accordance with the Documentation infringes any Intellectual Property Right of a third party, (ii) arising from Greenplaces’ breach of its representations and warranties set forth in Section 7.1, or (iii) arising from Greenplaces’ gross negligence, willful misconduct, or fraud, and, with respect to any such Claim, shall pay all damages finally awarded by a court of competent jurisdiction or agreed to by Greenplaces in settlement thereof (including reasonable attorneys’ fees).  In the event that the Greenplaces Software or any part thereof is likely to be, in Greenplaces’ sole opinion, or becomes, the subject of an infringement related Claim, and Greenplaces cannot, at its option and expense, procure for Customer the right to continue using the Greenplaces Software, or any part thereof, or modify the Greenplaces Software, or any part thereof, to make them non-infringing, then Greenplaces may terminate this Agreement immediately upon written notice to Customer, and will provide the Customer with a pro rata refund of any prepaid fees for the unexpired portion of the remaining subscription term.  The foregoing states Greenplaces’ entire liability and Customer’s exclusive remedy for intellectual property rights infringement related to the Greenplaces Software.

8.2 Customer Indemnity. Except to the extent prohibited by applicable Law, Customer shall defend, indemnify and hold Greenplaces, its affiliates, employees, officers, and directors harmless from and against any loss or damage (including reasonable attorneys’ fees) incurred in connection with Claims (i) made or brought against Greenplaces by a third party and arising out of the Customer Inputs; (ii) arising from Customer’s use of the Greenplaces Software other than in accordance with this Agreement and the Documentation; (iii) arising from Customer’s material breach of this Agreement, or any breach of its representations and warranties set forth in Section 7.1, or (iv) arising from Customer’s gross negligence, willful misconduct, or fraud.

8.3   Indemnification Process. The party entitled to indemnification pursuant to Section 8.1 or Section 8.2, as applicable, shall provide prompt written notice of any indemnifiable Claim to the indemnifying party; provided, that the failure to provide such notice shall not relieve such indemnifying party of any liability except to the extent it is actually and materially prejudiced thereby.  No indemnifying party shall settle, compromise, or consent to the entry of a judgment of any claim subject to indemnification in Section 8.1 or Section 8.2, as applicable, without the prior written consent of the indemnified party, which consent shall not be unreasonably withheld, conditioned or delayed.

9. LIMITATION OF LIABILITY.

9.1 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER STATUTE, CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH SUCH CLAIM OR CAUSE OF ACTION AROSE.  THE FOREGOING LIMITATIONS ARE CUMULATIVE AND NOT PER INCIDENT AND SHALL APPLY EVEN IF THE NON-BREACHING PARTY’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.

9.2 Exclusion of Consequential and Related Damages.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOSS OF ACTUAL OR ANTICIPATED PROFITS, LOSS OF BUSINESS, LOSS OF, DAMAGE TO, OR CORRUPTION OF DATA, LOSS OF USE, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED, WHETHER ARISING UNDER STATUTE, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR WHETHER SUCH DAMAGE WAS FORESEEABLE OR IN THE CONTEMPLATION OF THE PARTIES.

9.3  Exclusions.  Notwithstanding anything in this Agreement to the contrary: (i) The foregoing limitations shall not apply to (a) amounts payable by Customer to Greenplaces under any Subscription Schedule, (b) liability arising from the indemnification obligations of Greenplaces under Section 8.1 or Customer under Section 8.2, (c) a party’s breach of Section 6, or (d) a party’s gross negligence, willful misconduct, or violation of applicable Law; and (ii) Greenplaces shall have no liability for any Claim or demand arising from (a) use or combination of the Greenplaces Software or any part thereof with software, hardware, or other materials not developed or authorized by Greenplaces, if the infringement would not have occurred without such combination, (b) modification of the Greenplaces Software not authorized by Greenplaces or performed by a party other than Greenplaces, if the infringement would not have occurred without such modification, (c) use of the Greenplaces Software in a manner outside the scope of any right granted herein, not in accordance with the Documentation, or in violation of applicable Laws, or (d) an allegation related to Customer Inputs.

9.4   Savings Clause. Neither party shall be responsible or liable for any loss, damage or inconvenience suffered by the other, or by any third person, to the extent that such loss, damage or inconvenience is caused by the failure of the other party to comply with its obligations under this Agreement.

9.5   Allocation of Risk. Each party acknowledges that the provisions of this Article 9 reflect the allocation of risk between the parties, and that the other party would not enter into this Agreement without the limitations on its liability set forth herein.

10. TERM AND TERMINATION.

10.1  Term.  The term of this Agreement will commence on the Effective Date and continue until terminated in accordance with its terms (the “Term”).  Either party may terminate this Agreement upon written notice at any time when no Subscription Schedule is in effect.

10.2  Subscription Schedule. Each Subscription Schedule shall have the initial term that is set forth in that Subscription Schedule.  After such initial term, each Subscription Schedule shall automatically renew if and as specified therein.  If renewal terms are not specified in a Subscription Schedule, then the Subscription Schedule shall terminate at the end of the Initial Term.  Either party may terminate a Subscription Schedule effective as of the end of its initial term, or its then-current renewal term (if applicable), by providing not less than sixty (60) days prior written notice to the other party.

10.3  Termination for Breach.  A Subscription Schedule may be terminated by either party (the “Non-breaching Party”) effective upon written notice containing an explanation of the alleged breach to the other party (the “Breaching Party”), if the Breaching Party breaches any provision of the Subscription Schedule, and does not cure the breach within thirty (30) days after receiving written notice thereof from the Non-breaching Party.

10.4  Termination Upon Bankruptcy or Insolvency.  Either party may, at its option, terminate this Agreement immediately upon written notice to the other, in the event (i) that the other party becomes insolvent or unable to pay its debts when due; (ii) the other party files a petition in bankruptcy, reorganization or similar proceeding, or, if filed against, such petition is not removed within ninety (90) days after such filing; (iii) the other party discontinues its business; or (iv) a receiver is appointed or there is an assignment for the benefit of the other party’s creditors.  Upon termination of the Agreement by Customer due to Greenplaces’ bankruptcy or insolvency, Greenplaces shall refund to Customer any pre-paid fees previously paid by Customer for Greenplaces Software not provided after of the date of termination.

10.5 Suspension of Services.  At any time during the Term, Greenplaces may, upon notice to Customer, temporarily suspend its performance under any Subscription Schedule or may suspend any and all Users’ access to the Greenplaces Software if: (i) a reasonable threat to the technical security or technical integrity of the Greenplaces Software exists; provided that Greenplaces promptly recommences performance upon the cessation of the threat, or (ii) if any amount due under this Agreement is not received by Greenplaces within thirty (30) days after it was due and Greenplaces provided written notice of same.

10.6  Outstanding Fees. Termination of this Agreement or a Subscription Schedule shall not relieve Customer of the obligation to pay any fees accrued or payable to Greenplaces prior to the effective date of termination.  In the event of termination of a Subscription Schedule by Customer pursuant to Section 10.3 or 10.4, promptly after the effective date of such termination, Greenplaces shall refund to Customer on a pro-rata basis any prepaid fees paid by Customer for the remainder of the then current Initial Term or Renewal Term of the Subscription Schedule (as defined therein).  In the event of termination of a Subscription Schedule by Greenplaces pursuant to Section 10.2, 10.3 or 10.4, all amounts payable by Customer under the applicable Subscription Schedule will become immediately due and payable.

10.7  Rights and Obligations Upon Expiration or Termination.  Upon expiration or termination of this Agreement, Customer’s and its Users’ right to access and use the Greenplaces Software will immediately terminate, Customer and its Users will immediately cease all use of the Greenplaces Software, and each party will return and make no further use of any Confidential Information, materials, or other items (and all copies thereof) belonging to the other party.  Greenplaces may destroy any Customer Inputs in its possession or control unless Greenplaces receives, no later than thirty (30) days after the effective date of the expiration or termination of this Agreement, a written request for the delivery to Customer of the then-most recent back-up of the Customer Inputs.  Greenplaces will use all reasonable efforts to deliver the back-up to Customer within thirty (30) days of its receipt of such a written request via a format agreed to by the parties.

10.8 Survival.  Sections 1, 3, 4.3, 5, 6, 7, 8, 9, 10, and 11 shall survive any termination or expiration of this Agreement.

11. GENERAL.

11.1    Data Protection.  To the extent the Customer Inputs include any personal information, Greenplaces and Customer shall comply with their respective obligations outlined the Greenplaces Privacy Policy available here https://greenplaces.com/privacy-policy/ (the “Privacy Policy”) with respect thereto.  For the purposes of this Section 11.1, the term “personal information” shall have the meaning described in the Privacy Policy.

11.2   Governing Law; Jurisdiction. This Agreement and any action related thereto will be governed and interpreted by and under the Laws of the State of North Carolina, without giving effect to any conflicts of Laws principles that require the application of the Laws of a different state.  Each party hereby consents to the personal jurisdiction and venue in the state and federal courts serving the City of Raleigh, North Carolina.

11.3   Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by applicable Law.

11.4  Waiver; Remedies.  Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.  Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

11.5       Entire Agreement. This Agreement, together with the Documentation and Subscription Schedule(s), each of which is hereby incorporated into this Agreement by reference, 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 representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the parties prior to this Agreement except as expressly stated in this Agreement.  No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by both parties.  In the event of any conflict between the provisions in this Agreement and a Subscription Schedule, the terms of the Subscription Schedule shall prevail. No terms or conditions stated in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.

 11.6     Attorneys’ Fees.  The prevailing party or substantially prevailing party, as determined by a court of competent jurisdiction, shall be entitled to reimbursement of its reasonable attorneys’ fees by the non-prevailing party in any action brought under this Agreement.

11.7     No Assignment.  Customer will not assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, including any transfers by merger or operation of Law, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.  The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.

11.8 Force Majeure.  Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, pandemic, epidemic, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.  If an event of force majeure prevents Greenplaces from providing any services set forth in this Agreement, including the Greenplaces Software, for thirty (30) days, Customer may cancel this Agreement and receive a refund of pre-paid fees paid for that period of time for which services are not provided.

11.9    Independent Contractors. Greenplaces’ relationship to Customer is that of an independent contractor, and neither party is an agent or partner of the other.  Neither party will have, and will not represent to any third party that it has, any authority to act on behalf of the other.

11.10   Notices.  All notices under this Agreement shall be in writing.  All notices shall be given (i) by delivery in person, (ii) by a nationally recognized next day courier service (e.g., FedEx, etc.), (iii) by first class, registered or certified mail, postage prepaid, return receipt requested, (iv) by facsimile provided that there is confirmation of receipt, or (v) by electronic mail, in each case to the address of the party specified below such party’s signature block to this Agreement, provided that there is confirmation of receipt.  All notices shall be effective upon receipt by the party to which notice is given.  Each party may change its address for receipt of notice by giving notice of such change to the other party.

11.11    Counterparts; Electronic Signatures. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument.  A manually or electronically signed copy of this Agreement and the Subscription Schedule delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of the Agreement or the Subscription Schedule.

11.12    Construction.  The titles of the sections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement.  Unless the context of this Agreement clearly requires otherwise: (i) references to the plural include the singular, the singular the plural, and the part the whole, (ii) “or” has the inclusive meaning frequently identified with the phrase “and/or,” (iii) “including” has the inclusive meaning frequently identified with the phrase “including but not limited to” or “including without limitation,” and (iv) references to “hereunder,” “herein” or “hereof” relate to this Agreement as a whole.  Any reference in this Agreement to any statute, rule, regulation or agreement, including this Agreement, shall be deemed to include such statute, rule, regulation or agreement as it may be modified, varied, amended or supplemented from time to time.  The parties agree that this Agreement shall be fairly interpreted in accordance with its terms without any strict construction in favor of or against either party and that ambiguities shall not be interpreted against the drafting party.