This Customer Terms of Service Agreement (this "Agreement"), applies to Customers of Your Arbor Inc. and is intended to govern the Customer’s access to and use of the services. This Agreement is made between Arbor and the Customer and is effective as of the Effective Date.
Arbor has developed and hosts the Arbor “software as a service” solution that is designed to analyze the environmental impact of the Customer’s products and provide an assessment regarding the sustainability of the Customer’s products against certain sustainability benchmarks (the “Arbor Platform Services”). The Customer may accept this Agreement by (a) clicking a box where indicated on Arbor’s website or on the Arbor Platform (the “Website”), indicating the Customer’s acceptance of this Agreement; or (b) executing an Order Form referencing this Agreement. Individuals may accept this Agreement in their personal capacity or on behalf of a corporation or other legal entity. By clicking “Accept,” “Agree,” or any similar button in connection with this Agreement on Arbor’s Platform, the Customer expressly agrees to be bound by the terms of this Agreement. Such action constitutes a valid and binding acceptance and is deemed an “electronic signature” under applicable electronic signature laws. This electronic acceptance has the same legal effect as a physical signature and creates a legally binding agreement between the Customer and Arbor. If the individual accepting this Agreement is accepting on behalf of a company or other legal entity, such individual represents that they have the authority to bind such entity to this Agreement, in which case the term “Customer” will refer to such entity. If the individual accepting this Agreement does not have such authority or does not agree with the terms and conditions set forth in this Agreement, such individual must not accept this Agreement and may not access or use the Arbor Platform Services. The Customer is to access and use the Arbor Platform Services solely in accordance with the terms and conditions set forth in this Agreement. The Customer is responsible for ensuring that all Authorized Users agree to accept Arbor’s User Terms of Service (the “User Terms”) available here: https://www.arbor.eco/terms, and only access and use the Arbor Platform Services in strict accordance with the terms and conditions set forth in the User Terms.
Arbor Data means all data (excluding Customer Data), analytics, reports, know-how, or other information related to the Arbor Platform Services and Custom Add Ons.
Arbor Property means the Arbor Platform Services, Arbor Data, Content, Performance Data, and Arbor Systems.
Arbor Systems means the information technology infrastructure used by or on behalf of Arbor in hosting, performing, or providing the Arbor Platform Services or Custom Add Ons, including all computers, software, code, hardware, databases, electronic systems (including, database management systems), and networks, whether operated directly by Arbor or through the use of third-party services and includes any derivative works or improvements of same.
Authorized User means an employee, consultant, or contractor of the Customer who is provided with access to and/or use of the Arbor Platform Services by the Customer in connection with this Agreement and any Order Form (if applicable).
Background Materials means all Arbor Property and all other documents, data, Third Party Materials, know-how, methodologies, algorithms, processes, software, and other background materials, including computer programs, reports, and specifications (including without limitation any derivatives, improvements, modifications, or enhancements) provided by or used by, Arbor in connection with performing the Arbor Platform Services, or providing the Sustainability Data, or the Custom Add Ons. For clarity, Customer Data does not constitute Background Materials.
Claim means any actual, threatened or potential civil, criminal, administrative, regulatory, arbitral or investigative demand, allegation, action, suit, investigation or proceeding or any other claim or demand.
Confirmed Product Calculations means the data results and reports generated through the Customer’s use of the Arbor Platform Services with respect to the carbon emissions associated with the Customer’s products, following the confirmation of product details that is required to enable external use by the Customer of such data results and reports.
Content means information and content obtained by Arbor from publicly available sources or its third party content providers, that is made available to the Customer through the Arbor Platform Services and/or the Sustainability Data.
Custom Add Ons means the custom add ons outlined in an Order Form or on Arbor’s online “check-out” page, as applicable, including but not limited to scope reports and white papers.
Customer means in the case of an individual accepting this Agreement on their own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement.
Customer Data means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of the Customer or an Authorized User to Arbor, including through the Arbor Platform Services, excluding Content. For clarity, Customer Data includes Personal Information of the Customer and Authorized Users.
Documentation means any manuals, instructions, or other documents or materials that Arbor provides or makes available to the Customer that describe the functionality, components, features, or requirements of the Arbor Platform Services, including any aspect of the configuration, integration, operation, use, support or maintenance thereof.
Effective Date means the date that the Customer accepted this Agreement, or the date as defined in the Order Form, as applicable.
Free Trial means a limited period of time that Arbor may elect to provide the Customer select services free of charge, in Arbor’s sole discretion.
Free Subscription means a type of subscription where the Customer is able to access select, limited services that Arbor may make available, free of charge, as may be further outlined on the Website or within the Arbor Platform Services.
Harmful Code means any software, code, files, scripts, agents, or programs, including any virus, trojan horse, worm, time bomb, malware, or other malicious code, that would cause any software or code to be, without specific user instruction, duplicated, erased, altered, rendered inoperable or otherwise incapable of being used, or otherwise limit or restrict a user’s ability to use the software after a specific or random number of uses, period of time or after the lapse or occurrence of any similar triggering prompt.
Intellectual Property Rights means rights in all (a) patents, patent disclosures, and inventions (whether patentable or not), (b) trademarks, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, (c) copyrights and copyrightable works (including computer programs), and rights in data and databases, (d) trade secrets, know-how, and other confidential information, (e) industrial designs and design rights, and (f) all other intellectual property rights, in each case whether registered or unregistered, and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Loss or Losses means any and all losses, damages, Claims, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
Order Form means a written or electronic ordering document, order form or statement of work that (a) makes reference to this Agreement and (b) specifies the nature of the Customer’s and Authorized Users’ access to and use of any Purchased Services, Arbor Platform Services, Custom Add Ons, Content, or Documentation, including any addenda and supplements thereto.
Performance Data means data and information related to the Customer’s and Authorized Users’ access to and use of the Arbor Platform Services that is collected or used by Arbor in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision, performance, and operation of the Arbor Property and Arbor Systems.
Personal Information means any information about an individual person or that identifies or can be used to identify, locate, or contact an individual person.
Purchased Services means Arbor Platform Services and/or Custom Add Ons that the Customer purchases from Arbor through an online “check out” or under an Order Form.
Reseller means any authorized reseller for Arbor.
Sustainability Data means the data, reports, and information that are authored, created, and developed through Customer’s use of the Arbor Platform Services, or Arbor’s provision of Custom Add Ons, regarding the sustainability of the Customer’s products, and may include Confirmed Product Calculations and Unconfirmed Product Calculations., as the case may be. For clarity, raw Third Party Materials are not considered Sustainability Data.
Third Party Materials means materials and information, in any form or medium, including any open-source or other software, documents, data, datasets, content, specifications, products, equipment, or components of or relating to Arbor Platform Services or the Custom Add Ons that are not proprietary to Arbor.
Unconfirmed Product Calculations means the data results generated through Customer’s use of the Arbor Platform Services associated with the carbon emissions of the Customer’s products, that have not yet been confirmed by the Customer, including but not limited to prototyping.
2.1 Arbor shall provide to Customer the services and/or Arbor Platform Services set out in one or more Order Forms and in accordance with Schedule B - Service Support Terms.
2.2 Arbor will provide the Customer with access credentials for the Customer to access and use the Arbor Platform Services (the “Credentials”).
2.3 The additional terms and conditions in Schedule A will apply to Customer if Customer has ordered Purchased Services from a Reseller.
2.4 Unless otherwise provided in an Order Form or Documentation, access to and use of the Arbor Platform Services are purchased as subscriptions for the Subscription Term. The Customer agrees that its purchase(s) is/are not contingent on the delivery of any future functionality or features of the Arbor Platform Services, or dependent upon any oral or written public comments made by Arbor, its affiliates, or their respective representatives regarding the future functionality or features of the Arbor Platform Services.
2.5 During the Subscription Term, Arbor will make the Arbor Platform Services, related Documentation, Content and Third Party Materials available to the Customer for the Customer’s and Authorized Users’ access and use in connection with the Customer’s internal business operations, subject to and in accordance with the terms and conditions of this Agreement and any Order Forms (as applicable).
2.6 The Arbor Platform Services are provided by Arbor to the Customer on a non-exclusive basis. Nothing in this Agreement shall prevent Arbor from providing services and deliverables to third parties.
2.7 Arbor reserves the right to deny or revoke access to or use of the Arbor Platform Services, in whole or in part, if Arbor believes the Customer is in breach of this Agreement or that the Customer or any Authorized User is using or accessing the Arbor Platform Services in a manner that is inconsistent with the terms and conditions of this Agreement or the User Terms, respectively.
2.8 Arbor reserves the right, in its sole discretion, to make any changes to Arbor Property that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of the Arbor Platform Services, or (ii) the efficiency or performance of the Arbor Platform Services; or (b) to comply with applicable laws and terms of third party licenses.
2.9 The Customer acknowledges and agrees that, where applicable, any data or information that the Customer or any Authorized User provides on or through a Free Subscription or during a Free Trial, and any customizations made to the Arbor Platform Services, by or for the Customer or any Authorized User during the Free Trial, or under a Free Subscription, may be permanently deleted unless the Customer purchases a paid subscription to the Arbor Platform Services. While using the Free Subscription and during the Free Trial, the Arbor Platform Services and Content are provided “as-is” without any warranty and Arbor will have no indemnification obligations nor liability of any type with respect to the Arbor Platform Services, the Content or any Sustainability Data provided. Without limiting the foregoing, Arbor, its affiliates, and licensors do not represent, warrant, or covenant to the Customer that: (i) the Customer’s use of the Arbor Platform Services, Content or Sustainability Data during the Free Trial, or under a Free Subscription, will be uninterrupted, timely, secure, or free from error; (ii) the Customer’s use of the Arbor Platform Services. Content, or Sustainability Data during the Free Trial, or under a Free Subscription, will meet the Customer’s requirements or the requirements or specifications set forth in any Documentation; (iii) there will be any additional future functionality or features made available during a Free Trial or under a Free Subscription; or (iv) the Arbor Platform Services, Content, or Sustainability Data provided during the Free Trial or under a Free Subscription, will be accurate or complete. The Customer shall be fully liable under this Agreement to Arbor and its affiliates for any damages arising out of the Customer’s and Authorized Users’ use of the Arbor Platform Services, Content or Sustainability Data during the Free Trial or under a Free Subscription, any breach by the Customer of this Agreement, and any of the Customer’s indemnification obligations under this Agreement.
If the Customer registers for a Free Trial, Arbor will make the applicable Arbor Platform Services available to the Customer on a trial basis free of charge until the earlier of (a) the end of the Free Trial, (b) the start date of any subscriptions for any Purchased Services, or (c) termination by Arbor of the Free Trial, as determined in Arbor’s sole discretion.
3.1 Customer shall, as applicable:
(a) cooperate with Arbor in its performance of the Arbor Platform Services and provide access to employees, data and information as required to enable Arbor to provide the Arbor Platform Services;
(b) take all steps necessary, including obtaining any required licenses or consents, to prevent Customer-caused delays in Arbor’s provision of services;
(c) not directly or indirectly export, re-export or import any of the Arbor Platform Services including any Custom Add Ons without first obtaining all required licenses, permits and permissions. Arbor makes no representation or warranty that the Arbor Platform Services, Custom Add Ons or any Arbor Background Materials may be exported without Customer first obtaining appropriate licenses or permits under applicable law, or that any such license or permit has been, will be, or can be obtained; and
(d) be solely responsible for ensuring that: (i) the Customer and Authorized Users comply with the terms and conditions of this Agreement, Order Form and the Documentation (as applicable); (ii) all Authorized Users agree to, accept, and comply with, the terms and conditions set forth in Arbor’s User Terms, and only access and use the Arbor Platform Services in strict accordance with the terms and conditions set forth in the User Terms; (iii) the Customer and the Authorized Users do not disclose the Credentials to any third party; (iv) the Customer and the Authorized Users do not permit any third party to use their respective Credentials to access or use the Arbor Platform Services; (v) the Customer and the Authorized Users provide accurate, complete, and lawful Customer Data; and (vi) the Customer and the Authorized Users use commercially reasonable efforts to prevent unauthorized access to or use of Arbor Property.
4.1 Code of Conduct and Restrictions. The Customer agrees, on its own behalf and on behalf of all Authorized Users, that the Customer and each Authorized User will not:
(a) provide, disclose, divulge, or make available to, or permit use of Arbor Property by, any third party;
(b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Arbor Property to any third party, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service;
(c) copy, modify, or create derivative works or improvements of or based on Arbor Property;
(d) interfere, or attempt to interfere, with Arbor Property in any way, including to reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of Arbor Property, in whole or in part;
(e) engage in spamming, mailbombing, spoofing or any other fraudulent, illegal, or unauthorized use of Arbor Property;
(f) engage in or allow any action involving Arbor Property that is inconsistent with the terms and conditions of this Agreement;
(g) bypass or breach any security device, or protection used by or in connection with Arbor Property, including in connection with the access or use of the Arbor Platform Services or Arbor Property;
(h) input, upload, transmit, or otherwise provide to or through Arbor Property any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code;
(i) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner Arbor Property, including Arbor’s provision of the Arbor Platform Services to any third party, in whole or in part;
(j) remove, delete, alter, or obscure any warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Arbor Property;
(k) access or use Arbor Property in any manner or for any purpose that (i) infringes, misappropriates, or otherwise violates the intellectual property or other rights of Arbor or any third party, or (ii) violates any applicable law;
(l) access or use Arbor Property for purposes of competitive analysis of Arbor Property, the development, provision or use of a competing software service or product, or any other purpose that is to Arbor’s detriment or commercial disadvantage; or
(m) otherwise access or use Arbor Property beyond the scope of the authorizations granted under this Agreement.
Engaging in prohibited conduct constitutes a breach of this Agreement and may subject the Customer to civil liability or criminal prosecution under applicable laws. Arbor reserves the right to investigate and/or terminate the Customer’s account, without a refund of any purchases or settlement of any outstanding accounts, if Customer has violated this Agreement, misused the Arbor Platform Services, Purchased Services, Arbor Property, Content, or Third Party Materials, or acted in a manner that Arbor considers as inappropriate or unlawful.
4.2 Corrective Action and Notice. If the Customer becomes aware of any actual or threatened activity prohibited by this Agreement, the Customer shall, and shall cause any relevant Authorized Users to, immediately: (a) take all commercially reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to Arbor Property and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) promptly notify Arbor of any such actual or threatened activity.
If the Customer has made a purchase from a Reseller then the terms and conditions of sale (including pricing), will be as agreed to between Customer and the Reseller. This Section 5 applies to direct sales between Arbor and Customer only.
5.1 Fees & Payment. The Customer shall pay to Arbor all applicable fees related to the use of the services, as may be described on the Arbor Platform Services interface “check-out” page, or as set out in an Order Form, as applicable, in accordance with the terms and conditions of this Agreement. Payment to Arbor of such fees and the reimbursement of expenses pursuant to this Section 5 shall constitute payment in full for the performance of the Arbor Platform Services.
5.2 Expenses. Where applicable, Customer shall reimburse Arbor for all reasonable expenses incurred in accordance with any Order Forms, if such expenses have been pre-approved, in writing by the Customer within thirty (30) days of Arbor providing the Customer with an invoice accompanied by receipts and reasonable supporting documentation.
5.3 Payment Processing. If the Customer wishes to purchase Purchased Services, they may be asked to supply certain information relevant to their purchase. If they are paying by credit card, the Customer expressly authorizes Arbor to use a third-party to charge for all fees payable in accordance with the payment schedule set forth on the Arbor Platform Services interface “check-out” page, or in the Order Form, as applicable. The Customer also pre-authorizes Arbor to charge recurring fees, as applicable, as they become due and payable.
The Customer authorizes Arbor to use a third-party to process payments and consents to the disclosure of their payment information to such third-party, including, without limitation, the credit card number, expiration date of the credit card and billing address. Arbor’s current payment processor is: Stripe. The Customer represents and warrants that (i) they have the legal right to use any credit card(s) or other payment method(s) in connection with the purchase of any Purchased Services; and that (ii) the information the Customer supplies to the authorized third-party is true, correct and complete. The Customer’s payment obligations under any Order Form or Arbor Platform Services interface “check-out” page are non-cancelable, and the fees are non-refundable and non-returnable.
Arbor reserves the right to refuse or cancel the Customer’s order at any time for reasons including, but not limited to: if fraud or an authorized or illegal transaction is suspected.
The Customer acknowledges and agrees that Stripe provides some or all of its services from systems located within the United States or other countries outside of Canada and as such payment information may be processed, transferred or stored outside of Canada.
5.4 Other Payment Methods. Where the Customer is not paying by credit card, unless otherwise provided in the applicable Order Form, all applicable fees will be due and payable within thirty (30) days of the date of the Customer invoice.
5.5 Fee Increases. Arbor may increase the fees payable for Arbor Platform Services by providing the Customer with not less than 30 days prior written notice (the 30th day of such 30-day notice period being hereinafter referred to as the “Adjustment Date”). Such increased pricing shall be deemed to be accepted by the Customer unless, prior to the Adjustment Date, the Customer provides written notice to Arbor that the Customer does not accept such increased pricing, whereupon Arbor may elect to terminate this Agreement on or after the Adjustment Date.
5.6 Taxes. Customer shall be solely responsible for paying all goods and services tax, harmonized sales tax, provincial sales tax, service, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, provincial, territorial, or local governmental entity or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Arbor’s income (collectively, “Taxes”).
5.7 Late Payments. Except for invoiced payments that the Customer has successfully disputed, then without limiting Arbor’s rights or remedies all late payments shall bear interest at the lesser of the rate of two percent (2%) per annum or the highest rate permissible under applicable law, calculated daily and compounded monthly. The Customer shall also reimburse Arbor for all reasonable costs incurred in collecting any late payments, including, without limitation, legal fees. If any charge owing by the Customer under this Agreement or any Order Form, as applicable, is more than 15 days overdue, then Arbor, without limiting its other rights and remedies, may suspend the Arbor Platform Services, or may downgrade any Purchased Services to a free subscription level until such amounts are paid in full. Where Arbor plans to downgrade a subscription, Arbor will provide the Customer at least ten (10) days prior written notice. The Customer acknowledges and agrees that a downgrade may result in a decrease in certain features and functionality and potential loss of Customer Data or previously provided Sustainability Data, Content or Third Party Materials.
5.8 No Deductions or Set-Offs. All amounts payable to Arbor under this Agreement shall be paid by the Customer to Arbor in full, without any set-off, recoupment, counterclaim, deduction, debit or withholding for any reason.
6.1 Confidential Information. In connection with this Agreement, each party (as the “Receiving Party”) acknowledges that it may acquire (or come into possession or knowledge) information, technology, data and other materials from the other party (the “Disclosing Party”) (collectively, “Confidential Information”). For greater certainty, Confidential Information shall include intellectual property, knowledge, know-how, research and data, code, software, processes, formulas, development or experimental work, work-in-process, processes, trade secrets, or any other secret or confidential matter relating to the activities, services, advertising, marketing, research, programs, customer lists, financial information, and product information or any other information or material or business of the Disclosing Party or of firms, organizations or persons for whom services are performed by the Disclosing Party whether or not marked, designated, or otherwise identified as “confidential”. Confidential Information may be in written, visual, graphic, oral, electronic, tangible, intangible or any other form. Confidential Information of Arbor shall include Background Materials and Third Party Materials; Confidential Information of the Customer shall include Customer Data.
6.2 Exclusions. Notwithstanding Section 6.1, “Confidential Information” does not include information that the Receiving Party can demonstrate: (a) enters the public domain and becomes generally available to the public other than as a result of direct or indirect disclosure by the Receiving Party or any affiliate of the Receiving Party (including, disclosure as a result of a violation of the terms of this Agreement by the Receiving Party or any affiliate of the Receiving Party); (b) is generally known to the public on the Effective Date or at the time of the disclosure of such information by the Disclosing Party to the Receiving Party or later becomes generally known to the public, in either case other than as a result of disclosure in violation of the terms of this Agreement by the Receiving Party or any affiliate of the Receiving Party after the Effective Date; (c) was developed by the Receiving Party independent of any disclosure by the Disclosing Party or was available to the Receiving Party on a non-confidential basis prior to its disclosure to the Receiving Party by the Disclosing Party; or (d) is available to the Receiving Party on a non-confidential basis prior to disclosure by the Disclosing Party or becomes available to the Receiving Party on a non-confidential basis from a person other than the Disclosing Party provided that such person is not then in violation of a confidentiality obligation owed to the Disclosing Party of which the Receiving Party is aware.
6.3 Protection of Confidential Information. The Receiving Party shall (a) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (b) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (c) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s officers, directors, representatives advisors, consultants, and employees (collectively, the “Representatives”) who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement; provided, however that (i) such Representatives are informed of the confidential nature of the Confidential Information; (ii) such Representatives are directed to hold the Confidential Information in confidence and who agree in writing, or are otherwise legally bound, to comply with confidentiality obligations in respect of such Confidential Information that are no less stringent than the provisions of this Agreement; and (iii) the Receiving Party shall be responsible for any breach of this Agreement by any of its Representatives.
6.4 Disclosures Required by Law. If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, notify the Disclosing Party of such requirements to afford the Disclosing Party the opportunity to seek, at the Disclosing Party’s sole cost and expense, a protective order or other remedy. Thereafter, the Receiving Party may disclose the Confidential Information of the Disclosing Party, but only to the extent required and subject to any protective order that applies to such disclosure.
6.5 Ownership & IP of Confidential Information. Except as otherwise expressly set forth in this Agreement, any Intellectual Property Rights in and to the Confidential Information disclosed by the Disclosing Party to the Receiving Party under this Agreement shall belong to the Disclosing Party, and shall not be deemed as any assignment or transfer of any right to the Receiving Party, or as granting to the Receiving Party any license other than those as provided in this Agreement.
6.6 Destruction of Confidential Information. The Receiving Party shall, upon termination of this Agreement, or upon request by the Disclosing Party, promptly return to the Disclosing Party or destroy the Confidential Information and any and all reproductions thereof, at the Disclosing Party’s discretion, and notify the Disclosing Party when the Confidential Information and any and all reproductions are destroyed.
6.7 Survival. The expiration or termination of this Agreement shall not affect the rights and obligations with respect to Confidential Information disclosed hereunder, which shall survive the expiration or termination of this Agreement.
7.1 Intellectual Property. The Customer acknowledges and agrees that, subject to the limited rights expressly granted to the Customer under this Agreement, as between the Customer and Arbor, Arbor and its affiliates and licensors reserve all rights, titles and interests, including all intellectual property and Intellectual Property Rights, in and to Arbor Property and Background Materials (excluding any Confidential Information of Customer or Customer Data). No rights are granted to the Customer, or any Authorized User, other than as expressly set forth in this Agreement.
7.2 Ownership to Sustainability Data and Custom Add Ons. Subject to the terms and conditions of this Agreement, including but not limited to the restrictions outlined in this Section 7.2 and the Customer’s payment obligations hereunder (or where applicable Reseller’s payment obligations under the agreement between Reseller and Arbor as it relates to Customer), Customer shall be the owner of all rights in and to the Sustainability Data and the Custom Add Ons, excluding Background Materials and any other information specifically identified in an Order Form as being excluded.
Arbor grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable, fully paid-up (subject to Section 5 or payment of all fees due to Arbor by Reseller, where applicable) and revocable (pursuant to Section 7.7) license to the Background Materials incorporated in the Sustainability Data and the Custom Add Ons or that are otherwise necessary for Customer to make reasonable use of the Arbor Platform Services or the Sustainability Data and Custom Add Ons solely in accordance with: (a) this Section; and, if applicable (b) the purposes explicitly stated in an Order Form referencing this Section. All other rights in and to the Background Materials not expressly granted to the Customer under this Agreement are hereby reserved by Arbor.
The Customer agrees that: (a) Unconfirmed Product Calculations can be reproduced and disseminated for internal business decision-making purposes only, including within management reports or other types of internal reports; (b) the Customer and any Authorized Users accept and will comply with the terms and restrictions of any end user license agreements (“EULAs”) for third party datasets (Third Party Materials) incorporated into the Arbor Platform Services or the Custom Add Ons, which have been made available to the Customer (EULAs are available for Customer to review through the Arbor Platform Services); and (c) the Customer will not: (i) sell, resale, publish for commercial purposes, distribute for commercial purposes, lease, rent, encumber, license for commercial purposes, the Sustainability Data, any Third Party Materials, or the Custom Add Ons, to any third party; (ii) reverse engineer, reverse assemble, reverse compile or back calculate the Sustainability Data, the Custom Add Ons or Third Party Materials, or otherwise attempt to derive or discover any Background Materials that may be embedded in or forming part of the Sustainability Data or the Custom Add Ons, or (iii) distort, exaggerate or misrepresent the data provided by Arbor in any manner likely to harm Arbor’s reputation.
7.3 License to Customer Data. Arbor acknowledges and agrees that, as between Arbor and the Customer, the Customer is the owner of the Customer Data. The Customer grants to Arbor, its affiliates, and their respective licensees, successors, and assigns, during the Subscription Term, a worldwide non-exclusive, royalty-free, fully paid up, irrevocable, transferable and sublicensable license and right to use such Customer Data, including the right to collect, host, copy, use, transmit and process any Customer Data, as necessary for Arbor to provide and ensure the proper provision of the Arbor Platform Services and Custom Add Ons in accordance with this Agreement.
7.4 Ownership of Arbor Data. The Customer acknowledges and agrees that all data (excluding Customer Data), performance metrics, analytics, reports, know-how, or other information related to the functionality or performance of the Arbor Platform Services (collectively, the “Arbor Data”), regardless of how, when, or by whom they are created, are, will be, and will remain the sole and exclusive property of Arbor. The Customer acknowledges and agrees that Arbor Data is an original compilation protected by copyright law, Arbor has dedicated substantial resources to collect, manage, and compile Arbor Data, and Arbor Data constitute trade secrets of Arbor. All rights in and to Arbor Data, and the intellectual property in and related to Arbor Data, are expressly reserved by Arbor.
7.5 Customer Feedback. The Customer acknowledges and agrees that if it provides to Arbor any suggestion, enhancement, request, recommendation, correction, or other feedback relating to Arbor Property or the business, products, or services of Arbor or its affiliates (collectively, "Customer Feedback”), then Customer hereby assigns to Arbor all of its rights, titles and interests in and to such Customer Feedback as of the moment of its transmission, creation or development.
7.6 Output. The Customer acknowledges and agrees that to create the Sustainability Data, Arbor relies on (a) the Customer Data to analyze the Customer’s performance against benchmarks for materials, energy, and transportation environmental footprints; and (b) a variety of Third Party Materials, including third party data sources, including corporate filings, certifications, factory reports, product material composition, environmental and social violations data, and environmental, social and governance criteria, third party data or information relating to the Customer’s products or services, and open source code to calculate sustainability benchmarks. The Customer hereby confirms that the Customer consents to Arbor’s collection, use, reproduction, transmission, modification, adaptation, translation, compilation, and other exploitation of the Customer Data and the Third Party Materials in connection with Arbor’s performance of its obligations under this Agreement, including the provision of the Arbor Platform Services, Custom Add Ons, and creation of the Sustainability Data.
The Customer acknowledges and agrees that Arbor is not responsible for any errors in Customer Data or inaccuracies in any Third Party Materials used to calculate and produce any sustainability benchmark analysis or the Sustainability Data. Arbor shall be not be responsible or liable under this Agreement to the Customer or any third parties for any losses, liabilities, fines, penalties, judgments, damages, costs, or expenses arising out of or relating to (i) the Customer’s use, reproduction, display, exploitation, or reliance upon the Sustainability Data; (ii) any inaccurate, incomplete, or erroneous Customer Data or Third Party Materials; or (iii) any representations, warranties, or other statements made by the Customer about the Customer’s products or services on the basis of the results produced by the Arbor Platform Services or in the Custom Add Ons, including, the Sustainability Data.
7.7 Termination. The licences granted in accordance with this Section are perpetual and will continue after termination of this Agreement. Notwithstanding this, in the event of a breach of this Agreement by the Customer, including but not limited to a breach of this Section 7 and any obligations that survive termination of this Agreement, Arbor reserves the right to revoke the licenses granted to the Customer by providing 5 business days’ written notice to the Customer. Upon revocation, Customer shall immediately cease all use of the intellectual property associated with Background Materials.
8.1 Mutual Representations and Warranties. Each party represents and warrants to the other party that: (i) it has all required power and capacity to enter into this Agreement, to grant the rights and licenses granted under this Agreement, and to perform its obligations under this Agreement; and (ii) when executed and delivered by each of the parties, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
8.2 Additional Representations, Warranties and Covenants of the Customer. The Customer represents, warrants, and covenants to Arbor, on its own behalf and on behalf of all Authorized Users that: (i) the Customer and the Authorized Users owns or otherwise have the necessary rights, permissions, waivers, and consents in and relating to the Customer Data required for Arbor to use, process, and otherwise exploit the Customer Data for the purpose of providing the Arbor Platform Services and the Custom Add Ons, and performing its obligations under this Agreement; and
(ii) Arbor’s use, processing, or other exploitation of the Customer Data as authorized under this Agreement will not infringe, misappropriate, or otherwise violate the rights of any third party or breach any applicable law.
8.3 Additional Warranties of Arbor. Arbor warrants that it shall perform the Custom Add Ons:
(a) In accordance with the terms and subject to the conditions set out in the respective Order Form and this Agreement;
(b) Using personnel of commercially reasonable skill, experience, and qualifications; and
(c) In a timely, workmanlike and professional manner in accordance with generally recognized industry standards for similar services.
8.4 Remedy for Breach of Warranty. In the event of a breach of any warranty in Section 8.3 by Arbor, Arbor shall use commercially reasonable efforts to correct the non-conforming Custom Add Ons at no additional charge to Customer, and in the event Arbor fails to successfully correct the Custom Add Ons within a reasonable time of receipt of written notice from Customer detailing the breach, then if Customer purchased the Custom Add Ons directly from Arbor, Customer shall be entitled to terminate this
9.1 General Disclaimers.
(a) EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ARBOR DOES NOT MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND, AND HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE UNDER THIS AGREEMENT.
(b) ARBOR SPECIFICALLY DISCLAIMS ALL IMPLIED CONDITIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
(c) EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL SERVICES, DELIVERABLES, CUSTOM ADD ONS, THE WEBSITE, CONTENT, DOCUMENTATION, AND OTHER ARBOR PROPERTY ARE PROVIDED “AS-IS” AND AS AVAILABLE, EXCLUSIVE OF ANY WARRANTY WHATSOEVER.
(d) FOR CLARITY, AND WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ARBOR MAKES NO WARRANTY OF ANY KIND THAT THE ARBOR PROPERTY OR ANY PRODUCTS, SERVICES, DELIVERABLES, CUSTOM ADD ONS, WEBSITE, OR RESULTS OF THE USE THEREOF, WILL MEET THE CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, BE ENTIRELY ACCURATE OR COMPLETE, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, FREE OF HARMFUL CODE, OR ERROR-FREE.
(e) ARBOR MAKES NO REPRESENTATIONS, WARRANTIES, COVENANTS, OR GUARANTEES OF ANY NATURE OR KIND WHATSOEVER WITH RESPECT TO THE THIRD PARTY MATERIALS.
(f) THE CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SUSTAINABILITY DATA, CUSTOM ADD ONS AND OTHER CONTENT MAY CONTAIN CUSTOMER DATA OR THIRD PARTY MATERIALS.
(g) THE CUSTOMER’S USE OF THE SUSTAINABILITY DATA, CUSTOM ADD ONS, OR OTHER CONTENT IS AT THE CUSTOMER’S OWN RISK.
(h) THE CUSTOMER IS RESPONSIBLE AND LIABLE FOR VERIFYING ALL CUSTOMER DATA IS ACCURATE AND COMPLETE.
9.2 Limitation of Liability.
(a) IN NO EVENT WILL ARBOR BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR RELATED TO THIS AGREEMENT (INCLUDING LOSS OF PROFITS, USE, DATA, OR OTHER ECONOMIC ADVANTAGE), HOWSOEVER ARISING, EITHER OUT OF A BREACH OF THIS AGREEMENT (INCLUDING BREACH OF WARRANTY), NEGLIGENCE, STRICT LIABILITY, TORT, OR ANY OTHER THEORY OF LIABILITY, EVEN IF ARBOR HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) ARBOR’S LIABILITY FOR DIRECT DAMAGES ARISING UNDER THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, WILL BE LIMITED TO THE TOTAL FEES ACTUALLY PAID BY THE CUSTOMER TO ARBOR OR RESELLER UNDER THE APPLICABLE ORDER FORM PURSUANT TO WHICH THE LIABILITY AROSE DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FROM WHICH THE DAMAGES ARISE.
10.1 Indemnification by the Customer. The Customer will indemnify, defend, and hold harmless Arbor, its affiliates, and their respective directors, officers, shareholders, employees, staff, representatives, agents, licensors, licensees, successors, and assigns (the “Arbor Parties”) Losses incurred by an Arbor Party arising out of or relating to any Claim by a third party that arises from or relates to:
(a) Customer Data;
(b) an allegation that the Customer Data or the use of the Customer Data with the Arbor Platform Services or Custom Add Ons infringes, misappropriates, or otherwise violates any third party’s rights or is otherwise unlawful;
(c) the Customer’s breach of this Agreement, including any representation, warranty, covenant, or obligation contained therein;
(d) an Authorized User’s breach of the User Terms, including any representation, warranty, covenant, or obligation therein;
(e) gross negligence, fraud or wilful misconduct of the Customer or any Authorized User;
(f) the Customer’s use or any Authorized User’s use of the Arbor Platform Services, other Arbor Property or Custom Add Ons in a manner that is not authorized by this Agreement, Order Form or User Terms;
(g) the Customer’s use or any Authorized User’s use of Arbor Property or Custom Add Ons in combination with data, software, hardware, equipment or technology not provided by Arbor or authorized by Arbor in writing; or
(h) any modifications made by the Customer or Authorized User to the Custom Add Ons or to any other Arbor Property that have not been authorized by Arbor in writing.
11.1 Term. This Agreement shall commence as of the Effective Date and, unless terminated earlier pursuant to Sections 11.3 or 11.4, shall continue for the period as set forth in either the Order Form or on the Arbor Platform Services interface “check-out” page (the “Initial Subscription Period”), in either case unless or until earlier terminated in accordance with the terms and conditions of this Agreement. For certain services, the Initial Subscription Period applies to each set of Purchased Services, at the time of purchase.
11.2 Renewal for Platform Services. Upon the expiration of the Initial Subscription Period for each applicable set of Purchased Services, this Agreement will automatically renew (without the need to go through another “check-out” interface in the Arbor Platform Services, or execute a renewal Order Form, as applicable) for additional and consecutive subscription periods (each, a “Renewal Subscription Period” and together with the Initial Subscription Period, the “Subscription Term”), unless the Customer or Arbor provides written notice of non-renewal to the other party not less than 60 days before the expiration of the Initial Subscription Period or then-current Renewal Subscription Period. The Renewal Subscription Period will be equal to 1 (one) year or the same duration as the Initial Subscription Period or prior Renewal Subscription Period, as applicable, whichever is shorter, unless otherwise agreed by the Customer and Arbor in writing.
11.3 Suspension or Termination by Either Party. Either party (as the “Non-Defaulting Party”) may terminate or suspend this Agreement effective on written notice to the other party (the “Defaulting Party”), if the Defaulting Party:
(a) breaches this Agreement and fails to cure such breach within 15 days of receiving written notice of the breach from the Non-Defaulting Party; or
(b) becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.
11.4 Termination by Arbor. Notwithstanding anything to the contrary in Section 11.3, Arbor may suspend or terminate this Agreement before the expiration date of the Subscription Term on written notice:
(a) if Customer fails to pay any amount when due hereunder and such failure continues for five (5) business days after Customer's receipt of written notice of nonpayment;
(b) if Customer violates the restriction on use in this Agreement, including but not limited to Section 3.1 (c), Section 4 or Section 7.2;
(c) as provided in Schedule A (if applicable); or
(d) in order to comply with the applicable law, third party licenses, or requests of Governmental or Regulatory Authorities.
11.5 Effects of Termination. Without limiting Section 7.7:
(a) in the event the Agreement is terminated by Customer pursuant to Section 11.3 for breach by Arbor and if the Customer has procured the Services directly from Arbor and not through a Reseller then, Arbor shall within thirty (30) days after the effective date of termination, refund to Customer any unused prepaid fees paid by the Customer as of the date of termination for the Arbor Platform Services or the Custom Add Ons, less a deduction equal to the fees for receipt or use of such Custom Add Ons or Arbor Platform Services up to and including the date of termination on a pro-rated basis; and
(b) if this Agreement is terminated by Arbor pursuant to Section 11.3 or 11.4, and if the Customer has procured services directly from Arbor and not through a Reseller then, Customer will remain liable to pay the full fees outstanding on the effective date of termination of the Agreement, and Arbor will invoice, and Customer will pay, any accrued but unbilled fees and any unpaid fees covering the remainder of the Term of the Agreement and then current term of any applicable Order Form had it not been terminated.
11.6 Obligations Upon Termination. Unless otherwise specified in this Agreement, upon any expiration or termination of this Agreement:
(a) Customer shall, and shall cause all Authorized Users to, immediately discontinue use of Arbor Property, and cease accessing or using the Arbor Platform Services. Arbor will have no further obligation to provide any Arbor Platform Services of any kind to Customer;
(b) Unless otherwise directed by the Customer, Arbor will retain all Customer Data for a period of thirty (30) calendar days (the “Retention Period”). Upon the expiration of the Retention Period, Arbor may delete the Customer Data, unless an archived copy is required to be retained for legal, regulatory, or audit purposes;
(c) Within thirty (30) days of expiration or termination, Customer will, without limiting the Customer’s obligations under Section 6, delete, destroy, or return all copies of Arbor Property and Arbor’s Confidential Information, as directed by Arbor;
(d) If there are fees payable by Customer directly to Arbor, then no expiration or termination will affect Customer’s obligation to pay all fees that may have become due before such expiration or termination or entitle Customer to any refund;
(e) If there are fees payable by Customer directly to Arbor, then all fees due and payable and any amounts due to Arbor will be paid by Customer to Arbor in accordance with Section 5; and
(f) Where applicable, all Order Forms will terminate upon the termination of this Agreement and no new Order Forms may be entered into upon the termination of this Agreement.
12.1 Entire Agreement. This Agreement, including and together with any related Order Forms, exhibits, schedules, attachments, and appendices, constitutes the sole and entire agreement of the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter. The parties acknowledge and agree that, unless otherwise expressly stated in an Order Form, in the event of any conflict or inconsistency between the statements made in the body of this Agreement, any Order Form, the User Terms, and any other documents incorporated into or referred to in this Agreement, the following order of precedence governs: (a) this Agreement; (b) the Order Form; (c) the User Terms and (d) any other documents, schedules, or exhibits.
12.2 Consent to Electronic Disclosures and Notices. By registering for an Arbor account, the Customer and its Authorized Users agree that such registration constitutes consent to electronic provision of all disclosures and notices from Arbor, including those required by law. The Customer and its Authorized Users also agree that the electronic consent will have the same legal effect as a physical signature. Any notice, certificate, consent, determination, or other communication shall be effectively given and made if sent by means of electronic communication, in each case to the applicable address set out below:
(a) Arbor: support@arbor.eco
(b) Customer: To the email address for the Customer that was provided upon registering online for an account.
12.3 Updates to Customer Information. The Customer agrees that it is responsible for, and must, keep its billing and contact information current at all times by notifying Arbor immediately of any changes.
12.4 Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
12.5 Amendments and Modifications. Arbor reserves the right to amend, modify, or update this Agreement, including any policies or other documents incorporated by reference, at any time, at its sole discretion. Amendments will be effective upon posting the revised Agreement on Arbor’s website or other designated location. The Customer acknowledges and agrees that it is the Customer’s responsibility to review the Agreement periodically for any changes. Continued use of the Arbor Platform Services following any amendment will constitute acceptance of the modified terms.
12.6 Waiver. No waiver by any party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
12.7 Assignment. Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Arbor. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Customer of any of its obligations under this Agreement. Arbor may assign any of its rights or delegate any of its obligations to any affiliate or to any person acquiring all or substantially all of Arbor’s assets without Customer's consent.
12.8 Successors and Assigns. This Agreement is binding on and inures to the benefit of the parties to this Agreement and their respective permitted successors and permitted assigns.
12.9 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
12.10 Publicity. The Customer grants the right for Arbor to:
(a) include the Customer in any client or subscriber list; and
(b) use the Customer’s name, logo and/or trademarks for marketing and promotional purposes on Arbor’s websites, and in other public or private communications with Arbor’s existing or potential customers, subject to the Customer’s standard trademark use guidelines provided to Arbor from time to time.
12.11 Equitable Relief. Each party acknowledges that a breach by a party of Section 7 (Property Rights and Licenses) or Section 6 (Confidentiality) may cause the non-breaching party irreparable damages, for which an award of damages would not be adequate compensation and agrees that, in the event of such breach or threatened breach, the non-breaching party will be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance, and any other relief that may be available from any court, in addition to any other remedy to which the non-breaching party may be entitled at law or in equity. Such remedies shall not be deemed to be exclusive but shall be in addition to all other remedies available at law or in equity, subject to any express exclusions or limitations in this Agreement to the contrary.
12.12 Survival. All obligations which expressly or by their nature survive termination or expiration of this Agreement shall continue in full force and effect subsequently to and notwithstanding such termination or expiration until or unless they are satisfied, or they are waived in writing by the party entitled to the benefit thereof, including Sections 5 through 12.
12.13 No Third-Party Beneficiaries. Except for Arbor’s licensors, Arbor Parties and Company Parties, this Agreement benefits solely the parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
12.14 Governing Law. This Agreement, including all Schedules, schedules, attachments, and appendices attached to this Agreement, and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the laws of the Province of Alberta, and the federal laws of Canada applicable therein without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the Province of Alberta.
12.15 Choice of Forum. Each party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against the other party in any way arising from or relating to this Agreement, including all Schedules, schedules, attachments, and appendices attached to this Agreement, and all contemplated transactions, including contract, equity, tort, fraud, and statutory claims, in any forum other than the courts of the Province of Alberta. Each party irrevocably submits to the exclusive jurisdiction of such courts in any such action or proceeding. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement. This choice of jurisdiction does not prevent either party from seeking injunctive relief with respect to a violation of Intellectual Property Rights or confidentiality obligations in any appropriate jurisdiction.
12.16 Force Majeure. In no event shall either party be liable to the other party, or be deemed to have breached this Agreement or any Order Form, as applicable, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such party’s reasonable control, including but not limited to acts of God, epidemics, pandemics, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labour stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo (“Force Majeure”). A party whose performance is affected by an event of force majeure (the “Affected Party”) shall give notice to the other party (the “Non-Affected Party”) stating the period of time that the occurrence is expected to continue. The Affected Party shall use diligent efforts to minimize the impact of the force majeure event. If the force majeure event persists for more than 30 days, the Non-Affected Party may terminate this Agreement by providing the Affected Party with written notice of termination. The parties agree that any Force Majeure that is underway upon the Effective Date, including without limitation the COVID-19 pandemic (and any government response thereto), will not constitute a Force Majeure and will not excuse performance under this Agreement by either party.
12.17 Counterparts. This Agreement may be executed and delivered by the parties in one or more counterparts, each of which will be an original, and each of which may be delivered by facsimile, e-mail or other functionally equivalent electronic means of transmission and those counterparts will together constitute one and the same instrument. Counterparts may be executed either in original or electronic form and the parties adopt any signatures received by electronic transmission, as original signatures of the parties.
12.18 Construction. Except as otherwise provided in this Agreement, the parties’ rights and remedies under this Agreement are cumulative. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect.
12.19 English Language. The parties confirm that the essential stipulations of this Agreement reflect the mutual agreement of the parties further to negotiation, and were not imposed by either party, even when drawn up by one of the parties. The parties further confirm that it is the express wish of all parties that this Agreement, all documents related to this Agreement and all communications between the parties in the context of the performance of this Agreement be in English only. Les parties confirment que les stipulations essentielles de la présente entente reflètent le résultat de discussions libres de gré à gré et n’ont pas été imposées par l’une ou l’autre des parties, même lorsque rédigées par l’une des parties. Les parties confirment également que c’est la volonté expresse des parties que la présente entente, tout document s’y rattachant et toute communication entre les parties dans le cadre de l’exécution de cette entente soient uniquement en anglais.
12.20 Independent Legal Advice. The Customer acknowledges that, by entering into this Agreement, the Customer has had the opportunity to obtain independent legal advice with respect to entering into this Agreement, that the Customer has obtained such independent legal advice or has expressly deemed not to seek such advice, and that the Customer is entering into this Agreement with full knowledge of the contents hereof, of the Customer’s own free will and with full capacity and authority to do so.
1.1 Introduction. This Schedule A sets out additional terms and conditions with respect to Customer as it relates to its purchase of the Arbor Platform Services including any Custom Add Ons from a Reseller.
1.2 Reseller Relationship.
(a) Arbor may at its sole discretion suspend Customer’s use of the Arbor Platform Services or terminate the Agreement in accordance with the Agreement if Customer fails to pay any fee or other amount payable by Customer to Reseller.
(b) If (i) Reseller terminates all Order Forms relating to Customer, (ii) Arbor terminates any of Reseller’s Order Forms or agreement with Reseller relating to Customer for cause, or (iii) the Agreement between Arbor and Reseller relating to the resale of the Arbor Platform Services is terminated or expires; then this Agreement will terminate and Arbor will have no obligation to provide Arbor Platform Services to the Customer unless the Customer has entered into a separate and definitive agreement for the provision of the Arbor Platform Services or this Agreement is amended to address any fees and other terms and conditions required by Arbor.
(c) Reseller is an independent entity with no authority to bind Arbor or to make representations or warranties on Arbor’s behalf. Arbor will not be liable for reasonably relying on the accuracy and reliability of written information provided by Reseller that establishes grounds for Arbor to suspend the Arbor Platform Services or terminate the Agreement.
(d) Arbor makes no representations or warranties as to Reseller, any authorized distributor or reseller, or any other third party, or related to the performance of their products or services, and fully disclaims any such warranties in accordance with the terms of this Agreement.
