Green Places, Inc

Terms and Conditions

Effective April 12, 2023.

These Terms and Conditions are part of and incorporated into the Master Subscription Agreement (the “Agreement”) by and between Customer and Green Places (each 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, security protocols, and policies through which Users access and use the Green Places Software.

1.2 “Admin User” means the employees and/or contractors of Customer who are designated to be Administrative Users and have the ability to issue Access Credentials.

1.3 “Customer Inputs” means information, data, text, content, videos, images, audio clips, photos, graphics, and / or other types of content, information and/or data posted, provided and/or uploaded to the Green Places Software by Customer, including without limitation personal information.

1.4 “Documentation” means text and/or graphical materials, whether in print or electronic form, that describe the features, functions and use of the Green Places Software and which are made available to Customer.

1.5  “Intellectual Property Rights” mean any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) registrations, applications, renewals, extensions, or reissues of the foregoing, in each case, in any jurisdiction throughout the world.

1.6 “Subscription Schedule” means Green Places’s Order Form or Subscription Schedule signed by an authorized representative of each party and attached to the Agreement as well as any later executed Order Forms or Subscription Schedule that references the Agreement.   

1.7  “Updates” mean all upgrades, enhancements, improvements, maintenance releases, additions, and modifications of the Green Places Software made generally commercially available to Green Places’s customer base during the term of this Agreement. Updates may also include new features and/or functionality for which Green Places reserves the right to charge an additional fee if Customer elects to activate such new features and/or functionality.

1.8 “User” means Customer’s Admin Users and any other Customer users who have been assigned Access Credentials.

1.9  “Green Places Analytics” means any information, data, statistics, metadata, inferences, interrelationships, and/or associations generated by the Green Places Software, including without limitation as derived from aggregated anonymized inputs to, and usage of, the Green Places Software across all Green Places customers. In no event will Green Places Analytics include (1) any personal identifiable information or (2) Customer Inputs that could be used directly or indirectly to identify Customer or any of its affiliates.

1.10   “Green Places Software” means the Green Places cloud based software application.

1.11  “Green Places 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 available the cloud based Green Places Software application available to Customer, including, without limitation, all Updates thereto and all derivative works thereof, and Intellectual Property Rights therein and thereto.

 

2.           GREEN PLACES SOFTWARE

 2.1   Green Places Software.  Subject to and in accordance with this Agreement and the applicable Subscription Schedule, including, without limitation, payment of all applicable fees, Green Places shall make the Green Places Software available to Customer pursuant to the terms and conditions of this Agreement.

2.2  Customer Access. Customer acknowledges and agrees that Customer’s Users’ access and use of the Green Places 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 Green Places Software, including, without limitation, all costs, fees, expenses, and taxes of any kind related to the foregoing.  Green Places 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 Green Places Software. Green Places reserves the right to enhance, improve and modify the Green Places 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.           ACCESS GRANT; LICENSES; OWNERSHIP

3.1 Access Grant.   Subject to Customer’s compliance with the terms and conditions contained in this Agreement, the Documentation, and the Subscription Schedules, Green Places grants to Customer a non-exclusive, non-transferable, worldwide, revocable, non-sublicensable right to allow its Users to access and use the Green Places Software. The rights set forth in this Section 3.1 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.

3.2 Customer Inputs. To enable Green Places to provide the Green Places Software, Customer grants to Green Places a non-exclusive, royalty-free, license, to access, use, and copy, the Customer Inputs solely as necessary to provide the Green Places Software for the benefit of Customer. Green Places agrees Customer owns all right, title and interest in and to the Customer Inputs and reserves all rights not expressly granted to Green Places under this Agreement.

3.3 Users. Customer, through its Admins Users, may provider for an unlimited number of Users to access and use the Green Places Software. Green Places will provide Admin Users with the ability to grant Access Credentials to each User.  Customer will at all times be responsible for all actions taken under Customer’s account. 

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

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

3.6 Reports. The Green Places Software allows Customers to produce periodic reports related to among, other things, and assessment of Customer’s carbon footprint and a carbon reduction or sustainability plan. Customer will own all rights, title and interest in and to any such reports and plans. 

3.7  Trademark License. The Green Places Software provides a process whereby Customer may qualify for public use of certain Green Places 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 Customer is determined to qualify for the right to use any of the Licensed Marks, the Licensed Marks are provided under the following terms. 

(i)  Green Places hereby grants Customer and its affiliates  a nonexclusive, nontransferable, nonsublicensable, worldwide, license to use the Licensed Marks, in each case, for the applicable period (e.g., an annual period) for which such Licensed Mark is provided, or until this Agreement is terminated in accordance with its terms, whichever occurs 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 Green Places trademark usage guidelines that are provided to Customer. Without limiting the foregoing, Customer shall always utilize the Licensed Marks in a manner that reflects favorably on the Licensed Marks and does not tarnish the Licensed Marks or the reputation of Green Places.

(ii)  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, names or service marks.

(iii)  Customer agrees not to assert any rights in the Licensed Marks against Green Places or any other Green Places customer or their affiliates, or to object to the use of the Licensed Marks by such parties.

(iv)  All uses of the Licensed Marks shall include any notices provided by Green Places (e.g., ™, etc.) and indicate that the Green Places 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 Green Places. Customer agrees that the Licensed Marks are the sole property of Green Places 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.

(v) Unless otherwise specified in writing by Green Places, Customer may use the Licensed Marks on and in any media, now know or hereafter developed.

 

4.           CUSTOMER RESPONSIBILITIES.

4.1   Access Credentials. Customer will be responsible for all acts and omissions of Customer’s Users. Customer agrees to: (1) keep its Access Credentials secure and confidential and not to allow any of Customer’s Users to provide their Access Credentials to anyone else; and (2) not permit others to use Customer’s Access Credentials. Customer will notify Green Places immediately if it learns of any unauthorized use of any Access Credentials or any other known or suspected breach of security, including as outlined in the Privacy Policy. Green Places reserves the right to take any action Green Places deems necessary or reasonable to ensure the security of the Customer Data, Green Places Software, and Customer’s Access Credentials, including temporarily limiting Customer’s access, changing passwords, or requesting additional information to authorize activities related to Customer’s account.

4.2     Use Guidelines.  Customer shall comply with all applicable laws, rules and regulations in its use of the Green Places Software.  Customer shall use the Green Places Software solely for Customer’s internal business purposes as contemplated by this Agreement and shall not:  (i) license, sublicense, sell, resell, rent, lease, transfer, assign, copy, reproduce, distribute, time share or otherwise commercially exploit or make the Green Places Software available to any third party, other than as expressly permitted by this Agreement; (ii) disrupt any servers or networks connected to the Green Places Software, or disobey any requirements, procedures, policies or regulations of networks connected to the Green Places Software; (iii) attempt to gain unauthorized access to the Green Places Software or the Green Places Technology or any related systems or networks; (iv) remove, alter or obscure any proprietary notices associated with the Green Places Software; (v) use the Green Places Software in violation of any applicable, law, rule regulation or guideline (including any United States export laws and regulations); (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 Green Places Software or breach any security or authentication measures; or (vii) utilize the Green Places Software in order to send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs or plant malware on Green Places’s computer systems, those systems of Green Places’s third party service providers or vendors, or otherwise use the Green Places Software to attempt to upload and/or distribute malware.

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

4.4   Customer Input Restrictions. The Green Places Software includes the ability for the Customer to upload Customer Inputs. Customer is responsible for all Customer Inputs. Customer represents, warrants and covenants Customer has all rights and licenses necessary to upload the Customer Inputs, to grant the licenses granted hereunder. Customer represents, warrants and covenants that the Customer Inputs:

i.   will not and do not infringe the patent, copyright, trademark, trade secret, or other intellectual property or proprietary right of others;

ii.   will not and do not violate the privacy, publicity, or other rights of third parties or any other law, statute, ordinance or regulation;

iii.   will not and do not violate Customer’s own privacy policy or collect information from Users in any manner to which such Users have not consented;

iiii.   will not and do not disclose or provide information protected under any law, agreement or fiduciary relationship, including but not limited to, proprietary or confidential information of others; and

iiiii.   will not and do not contain any viruses, Trojan horses, spyware. malware, worms, time bombs, cancelbots, or other disabling devices or other harmful component intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.

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 Green Places Software, shall be subject to that certain Pass-Through Customer Agreement, available here: [https://greenplaces.com/terms/arcadia].

 

5.           FEES AND PAYMENT.

5.1 Fees. In consideration for the rights granted hereunder, Customer will pay to Green Places the fees set forth in the each Subscription Schedule in accordance with the payment schedule set forth therein. Unless otherwise specified in the Subscription Schedule, all invoices issued by Green Places will be due and payable thirty (30) days after Customer’s receipt.  All fees are nonrefundable, except as expressly otherwise set forth herein, and will be paid 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.  Green Places prices the Green Places Software based on various factors that may include the number of employees of Customer and its affiliate and or the number of locations of Customer and its affiliates. Consequently in the event that Customer, by merger or acquisition, increases the number of employees of Customer and its affiliates or the number of locations of Customer and its affiliates, by merger or acquisition, Customer’s use of the Green Places Software for any newly acquired locations, employees, or businesses shall be subject to payment of additional fees to be agreed by the parties. Customer agrees to promptly provide Green Places with written notice of Customer’s acquisition of any new business or enterprise. Green Places may increase the fees under any Subscription Schedule on an annual basis by a percentage increase not to exceed the greater of: (1) 5%; and (2) 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.  Customer will make all payments to Green Places free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of fees to Green Places, other than taxes on Green Places’s income, will be Customer’s sole responsibility, and Customer will provide Green Places with official receipts issued by the appropriate taxing authority, or such other evidence as Green Places may reasonably request, to establish that such taxes have been paid.

 

6.           CONFIDENTIALITY AND DATA PROTECTION

6.1 Confidential Information.  Each party (the “Disclosing Party”) may from time to time during the term of this Agreement disclose to or learn from the other party (the “Receiving Party”) certain information regarding the Disclosing Party’s 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 designated as confidential or is 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 Green Places Software and the Green Places Technology constitutes Confidential Information of Green Places 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 have a need to know such Confidential Information for purposes of this Agreement and who are under 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, or duplication of the Confidential Information or of any breach of this Agreement, including, without limitation, the misappropriation of the Confidential Information. Both parties acknowledge and agree that the Disclosing Party may be irreparably harmed by any violation of this Article 6 (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, 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 of the applicable provision of this Agreement. 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 of this Agreement and for five (5) years following the termination or expiration of this Agreement.

6.3 Exceptions.  The Receiving Party’s obligations under this subsection will not apply to any portion of the Disclosing Party’s Confidential Information if the Receiving Party can document that such information: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) 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 (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (iii) required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party, as permitted by applicable law, rules and regulations, notifies the Disclosing Party of such required disclosure in writing promptly, 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.  At the Disclosing Party’s request, the Receiving Party will certify in writing signed by an officer of the Receiving Party that it has fully complied with its obligations under this subsection. 

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 (a) as required by law; (b) pursuant to a mutually agreeable press release; or (c) 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 reasonably satisfactory to the other party to this Agreement.

6.6 Data Protection.  To the extent the Customer Inputs include any Personal Data, Green Places and Customer shall comply with their respective obligations outlined the Green Places Privacy Policy attached here https://greenplaces.com/privacy-policy/ (the “Privacy Policy”) with respect to the Processing of that Personal Data. For the purposes of this Section, the terms “Processes” and “Personal Data” shall have the meanings assigned in the Privacy Policy. Any Personal Data that constitutes Confidential Information shall be subject to the terms of the Privacy Policy.

 

7.           WARRANTIES.

7.1 Warranties by Both Parties.  Each party represents and warrants that: (a) it has full power and authority to enter into and perform this Agreement; (b) the person signing this Agreement on such party’s behalf has been duly authorized and empowered to enter into this Agreement; and (c) that it will perform its obligations or exercise its rights hereunder in conformance with all applicable laws, rules, regulations and guidelines, including, without limitation, those related to privacy and data security.

7.2 Green Places Software Warranty. Green Places represents, warrants and covenants that the Green Places Software will include the functionality provided in the Documentation and perform in all material respects in accordance with the Documentation.

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

Customer acknowledges and agrees that any results provided by the Green Places Software (the “Results”) are dependent on the timeliness and accuracy of the Customer Inputs. Green Places shall not be responsible for any errors, omissions, or inaccuracy of the Results, which are caused by the Customer Inputs. Notwithstanding anything herein to the contrary, Green Places shall not have any liability for any delays in performing its obligations hereunder which are due to the Customer Inputs or Customer’s delay in providing the Customer Inputs. 

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

7.4 Remedy. Green Places’s sole liability, and Customer’s sole remedy, for a breach of the warranty in Section 7.2 shall be that Green Places shall remedy, fix or improve the Green Places Software to cure such breach. If Green Places 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 Green Places shall refund to Customer any prepaid amounts for the period of time for which the Green Places Software was not provided pursuant to the terms hereof; provided that such period of time shall not commence earlier than the date that Green Places first received written notice of a breach of Section 7.2.

 

8.           INDEMNIFICATION.

 8.1 Green Places Indemnity. Green Places shall defend, indemnify, and hold harmless (at Green Places’s expense), 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 contending that Customer’s use of the Green Places Software in accordance with the Documentation infringes any Intellectual Property Right of a third party and shall pay all damages finally awarded by a court of competent jurisdiction or agreed to by Green Places in settlement of the Claim (including reasonable attorneys’ fees).  In the event that the Green Places Software or any part thereof is likely to be, in Green Places’s sole opinion, or becomes, the subject of an infringement related Claim, and Green Places cannot, at its option and expense, procure for Customer the right to continue using the Green Places Software, or any part thereof, or modify the Green Places Software, or any part thereof, to make them non-infringing, then Green Places may terminate this Agreement with notice to Customer and will provide the Customer with a refund of any pre-paid fees for the unexpired portion of the remaining subscription term.  Green Places shall have no liability for any Claim or demand arising from (i) the use or combination of the Green Places Software or any part thereof with software, hardware, or other materials not developed or authorized by Green Places if the Green Places Software or use thereof would not infringe without such combination; (ii) modification of the Green Places Software not authorized by Green Places or performed by a party other than Green Places, if the use of unmodified Green Places Software would not constitute infringement; (iii) a use of the Green Places Software by Customer or any User in a manner outside the scope of any right granted herein, not in accordance with the Documentation, or in violation of applicable laws, rules, or regulations if the claim would not have arisen but for such breach or unauthorized use; or (iv) an allegation related to Customer Inputs. The foregoing states Green Places’s entire liability and Customer’s exclusive remedy for intellectual property rights infringement related to the Green Places Software.

8.2 Customer Indemnity. Except to the extent prohibited by any applicable law, rule or regulation (“Applicable Law”), Customer shall defend, indemnify and hold Green Places, 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 Green Places by a third party alleging that the Customer Inputs infringe the intellectual property rights of, or has otherwise harmed, a third party; (ii) based on any failure or alleged failure of the Customer to comply with any applicable law, rule or regulation in connection with its use of the Green Places Software for Customer’s business; or (iii) resulting from Customer’s use of the Green Places Software.

8.3   Indemnification Process. The foregoing indemnification obligations are conditioned on Green Places: (a) notifying Customer promptly in writing of such action, (b) reasonably cooperating and assisting in such defense at Customer’s expense, and (c) giving sole control of the defense and any related settlement negotiations to Customer with the understanding that Customer may not settle any claim in a manner that admits guilt or otherwise prejudices Green Places, without Green Places’s prior written consent.

 

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 THE 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.  The foregoing limitations shall not apply to (i) amounts payable by Customer to Green Places under a Subscription Schedule or (ii) liability arising from the indemnification obligations in Section 8, a breach of Section 6 (excluding Section 6.6), the gross negligence or willful misconduct of a party, or a party’s violation of any Applicable Law.

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 fees set forth in this Agreement reflect the allocation of risk between the parties and that the other party would not enter into this Agreement without these limitations on its liability.

 

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 the terms herein. If, and only if, this Agreement has been supplemented by a Subscription Schedule or Subscription Schedules, excluding any Agreement supplemented by the addition of a Schedule A, either party may terminate this Agreement at any time where any such Subscription Schedule or Subscription Schedules are no longer in effect.

10.2  Subscription Schedule. A Subscription Schedule shall have the Initial Term that is set forth in that Subscription Schedule. After the Initial Term, the Subscription Schedule shall automatically renew if and as specified in the applicable Subscription Schedule. If renewal terms are not specified in the Subscription Schedule, then the Subscription Schedule shall terminate at the end of the Initial Term.  

10.3  Termination for Convenience. Either party may terminate a Subscription Schedule at the end of the applicable Initial Term or Renewal Term by providing not less than sixty (60) days prior written notice to the other party.

10.4  Termination for Breach.  A Subscription Schedule may be terminated by either party (the “Non-breaching Party”) effective immediately 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.

10.5  Termination Upon Bankruptcy or Insolvency.  Either party may, at its option, terminate this Agreement immediately upon written notice to the other, in the event (a) that the other party becomes insolvent or unable to pay its debts when due; (b) 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; (c) the other party discontinues its business; or (d) 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 Green Places’s bankruptcy or insolvency, Green Places shall refund to Customer any pre-paid fees previously paid by Customer for Green Places Software not provided after of the date of termination.

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

10.7  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 Green Places prior to the effective date of termination. In the event of termination of a Subscription Schedule by Customer pursuant to Section 10.4 or 10.5, promptly after the effective date of such termination, Green Places 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.  In the event of termination of a Subscription Schedule by Green Places pursuant to Section 10.3, 10.4 or 10.5, all amounts payable by Customer under the applicable Subscription Schedule will become immediately due and payable.

10.8  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 Green Places Software will immediately terminate, Customer and its Users will immediately cease all use of the Green Places 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.  Green Places may destroy any Customer Inputs in its possession or control unless Green Places 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. Green Places 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.

10.9 Survival.  Sections 1, 3.5, 5, 6, 7, 8, 9, 10, and 11 shall survive any termination or expiration of this Agreement.

 

11.         GENERAL.

11.1    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 law 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.

11.2   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 law.

11.3   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. 

11.4  Entire Agreement. To the maximum extent permitted by applicable law, this Agreement, together with the documents referenced herein and executed hereunder, 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.

11.5       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.

 11.6     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.

11.7     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 Green Places from providing any services set forth in this Agreement, including the Green Places 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.

11.8 Independent Contractors. Green Places’s 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.

11.9    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 to the address of the party specified on the first page of 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.

11.10   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 a 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 applicable Subscription Schedule.

11.11    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.