Last Updated Aug 20, 2024

‍1. BACKGROUND
‍1.1. ServiceProvider is in the business of, among other things, providing services to helpcarbon removal companies certify their carbon credits, which is provided in the form of its platform and Software As A Service (SaaS).

‍1.2. Client desires Service Provider to deliver its platform and SaaS solution(s) for use in Client’s business subject to the terms of this Agreement and to compensate Service Provider as set forth in this Agreement.

2. SAAS SERVICES AND SUPPORT
‍2.1. Subjectto the terms of this Agreement and its exhibits, Service Provider will usecommercially reasonable efforts to provide Client with,or make available to the Client, the services, software, documentation, andsupport as further detailed in the Statement of Work attached by reference asExhibit A (the “Services”).  Anyand all services in addition to those described in the Statement of Work shallbe incorporated into this Agreement upon execution of an amendment orsupplement to the Statement of Work agreed to by the Parties in writing.

3.RESTRICTIONSAND RESPONSIBILITIES
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3.1.  Client will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services including any software or documentation delivered as part of the Services (the “Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Service Provider or authorized within theServices) or remove any proprietary notices or labels.

‍3.2. Client shall use the Services in compliance all laws, treaties, regulations, and conventions applicable to the Services or the obligations under this Agreement, including without limitation those related to data privacy, international communications, and the transfer of technical or personal data.
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‍3.3. Client shall obtain and maintain any equipment and ancillary services needed toconnect to, access, or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking,web servers and the like (collectively, “Equipment”). Client shall also be responsible for maintaining the security of the Equipment, Client account, passwords (including but not limited to administrative and user passwords) andfiles, and for all uses of Client account or the Equipment with or without Client’s knowledge or consent.

‍3.4. Although Service Provider has noobligation to monitor Client’s use of the Services, Service Provider may do soand may prohibit any use of the Services it believes may be (or alleged to be)in violation of this Agreement. Client will indemnify the Service Provider andits affiliates and its and their respective employees and representatives fromand against any damages, losses, liabilities, and expenses, includingreasonable attorney fees and other legal costs, of any third-party claim orallegation to the extent caused by the Service Provider’s use of Client’s datato provide the Services, the Client’s violation of this Agreement, or theClient’s willful misconduct or negligent acts or omissions in connection withthe Services.

‍3.5. Ifthe Services contain any software that was developed using open source code (“OpenSource Software”), the Open Source Software will be provided to Clientunder one or more license agreements that contain important informationconcerning ownership, terms of use, rights, and restrictions. Clientacknowledges that it will comply with the terms and conditions of theapplicable Open Source Software license agreements in addition to all other theterms applicable to Software under this Agreement. Any Open Source Software isnot subject to the terms and conditions herein, including any indemnification. 

‍4.    CONFIDENTIALITY; PROPRIETARY RIGHTS

‍4.1. Each Party (as the “ReceivingParty”) understands that the other Party (the “Disclosing Party”)has disclosed or may disclose non-public business, technical or financial information relating to the Disclosing Party’s business (hereinafter referredto as “Confidential Information”). Confidential Information of ServiceProvider includes non-public information regarding features, functionality, and performance of the Services. The Receiving Party agrees not to disclose any of the Disclosing Party’s Confidential Information without the Disclosing Party’s prior written consent, except to its or its affiliates’ officers, directors, employees, contractors, or consultants (“Representatives”),who reasonably require such access in connection with the provision of theServices and are directed to comply with the provisions of this Section. EachParty (including its Representatives) will use no less than the same standard of care to protect any Confidential Information disclosed during the performance of this Agreement that it uses to protect its own confidential information, but in no event less than a reasonable standard of care. EachParty will use Confidential Information disclosed by the other Party only as required for the performance of this Agreement or otherwise permitted in thisAgreement. Notwithstanding the foregoing, Confidential Information shall not include any information which: (i) is public or becomes public through no breach of this Agreement by the Receiving Party or its Representatives; (ii) is known to, or in the possession of, the Receiving Party or its Representatives prior to disclosure hereunder by the Disclosing Party; (iii) is received by theReceiving Party or its Representatives from a source that, to the ReceivingParty’s knowledge, is not in breach of an obligation of confidentiality to theDisclosing Party; or (iv) is independently developed by the Receiving Party orits Representatives without reference to the Confidential Information.  The Receiving Party shall be liable for anybreaches of this Section by its Representatives, and any such breach shall be deemed a breach by Receiving Party hereunder.

‍4.2. TheReceiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law, regulatory authority, or order to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and commercially reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a Party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the ReceivingParty for its reasonable cost of compiling and providing secure access to suchConfidential Information.

‍4.3. Each Party retains any intellectual property rights owned or developed by or on behalf of that Party prior to or independent from this Agreement. Service Provider shall own and retain all right, title and interest in and to (a) the Services (including the Software), all improvements, enhancements, or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with the Services, (c) any data, algorithms, or models that are based on or derived by or on behalf of Service Provider from Client’s data delivered under this Agreement, and (d) all intellectual property rights related to any of the foregoing. Notwithstanding anything to the contrary, Service Provider shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning data derived therefrom), and Service Provider will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Service Provider offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein. During the Term of the Agreement, Client shall have the right to access and use the Services except as provided herein. Client may not disclose, reproduce, distribute, modify, abstract, or otherwise use items delivered other than in connection with the Services. Client acknowledges that, except for the limited rights granted above, as between Service Provider and Client, Service Provider owns all right, title, and interest in and to the Services.

4.4. Infurtherance of this Agreement, the Client may provide data and other materials to Service Provider to perform the Services contemplated by this Agreement(“Client Materials”).  Client hereby grants to Service Provider a limited, revocable, non-transferable, royalty-free, paid-up right and license to use the Client Materials for the purposes of and to the extent necessary to provide the Services.

4.5. Subject to the terms of this Agreement, Service Provider hereby grants to Client a non-exclusive, revocable, non-transferable right and license to use the Services during the Term for Client’s internal business purposes in the usual course of business. Client shall not sub-license, rent, lease, sell or otherwise transfer or distribute the Services, or any component or copy thereof to any third party.  Client shall not exceed the scope of the licenses granted under this Agreement.  Client shall supervise and control the use of the Services by its employees, and agents to ensure that the Services are used in accordance with the terms of this Agreement.

4.6. Duringthe Term, Client authorizes Service Provider to refer to Client as a customerand user of the Services among lists of other customers and to use Client’sname and logos in connection therewith. Client may withdraw this authorizationat any time upon notice.

5. PAYMENT OF FEES

5.1. Client will pay Service Provider the applicable fees described in the Order Form for the Services in accordance with the terms therein (the “Fees”). All payments made by Client under this Agreement are non-refundable and non-creditable against each other. Client shall make all payments hereunder in US dollars. If Client’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Client shall be billed for such usage and Client agrees to pay the additional fees in the manner provided herein. Fixed fee projects will include a detailed description of the Services being provided to Client for the fixed fee amount. Only the Services explicitly set forth in the statement of work as a fixed fee will be included in the fixed fee amount. Pricing shall remain fixed for the first year of the Agreement. Service Provider reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Service Term or then‑current renewal term, upon thirty (30) days prior notice to Client (which may be sent by email).

5.2. Service Provider may choose to bill through an invoice, in which case, invoices are due thirty (30) days from the date of invoice. If Client believes that Service Provider has billed Client incorrectly, Client must contact Service Provider no later than thirty (30) days after the closing date on the first billing statement in which the error or problem appeared, to receive an adjustment or credit. Failure to dispute an invoice within thirty (30) days shall constitute Client's acceptance of the invoice and the related charges.

5.3. Unpaid amounts are subject to a finance charge of the lesser of 1.5% per month or the maximum permitted by law, plus all expenses of collection and may result in immediate termination of Service. Client shall be responsible for all taxes associated with Services other than taxes based on Service Provider’s net income.

6. TERM AND TERMINATION

6.1. Subject to earlier termination as provided below, this Agreement is for the Service Term as specified in the Order Form, and, upon expiration of the initial Service Term or any renewal term, shall automatically renew for additional periods of the same duration as the Service Term (collectively, the “Term”), unless either Party notifies the other in writing at least thirty (30) days prior to the end of the initial Service Term or any renewal term, as applicable, that it has elected to terminate the Agreement.

6.2. Service Provider may suspend the Services in the event of: (a) non-payment; (b) any material breach by Client; or (c) if required to avoid harm to Service Provider or any third party.  Such suspension will only apply to those parts of the Services to the extent and duration necessary to address the breach or threat and in case of non-payment, until payment is received in full.

6.3. If either Party breaches any of its material obligations, representations or warranties under this Agreement, the non-breaching party will have the right to terminate this Agreement by giving the breaching party notice of intention to terminate. Termination will become effective automatically and without further notice unless the breaching party cures the breach to the terminating Party’s reasonable satisfaction within thirty days (30) days after the giving of such notice.

6.4. Either Party may terminate this Agreement upon sixty (60) days prior written notice to the other Party after the initial Service Term. Notwithstanding any expiration or termination of this Agreement, Client shall remain obligated to pay Service Provider any fee otherwise payable for Services rendered prior to expiration or termination of this Agreement. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

7. WARRANTY AND DISCLAIMER

7.1. Service Provider shall, during the Term, use commercially reasonable efforts to maintain the Services in conformance with the specifications herein and in the applicable Order Form or Statement of Work (if applicable). The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Service Provider or by third-party providers, or because of other causes beyond Service Provider’s reasonable control, but Service Provider shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption and shall use reasonable efforts to minimize any inconvenience caused by such service disruption. However, Service Provider does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services.

7.2. For the avoidance of doubt, the Parties agree and acknowledge that Service Provider’s Services may include the application of Service Provider’s analytic tools, software, models, and/or other services in the context of Client’s business.  The Services may include recommendations or suggestions for the implementation of changes in the operations of the Client.  Client agrees that the decision to implement such changes to operations of the Client’s business that may be included in the Services is solely the responsibility of the Client and Service Provider shall not be liable or responsible for any damages of any kind for Client’s implementation of any recommendations or suggestions provided by the Services.  Service Provider hereby makes no representations or warranties of any kind with respect to the Services except for the limited warranty set forth above.

7.3. EXCEPT FOR THE LIMITED WARRANTY SET FORTH HEREIN, SERVICE PROVIDER AND ITS EMPLOYEES, AGENTS, AFFILIATES, SUCCESSORS, AND ASSIGNS PROVIDE THE SERVICES AND DELIVERABLES ON AN AS-IS AND AS-AVAILABLE BASIS AND MAKE NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AND FURTHER DISCLAIM ALL IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE OR THIRD-PARTY SOFTWARE. SERVICE PROVIDER DOES NOT WARRANT THAT ANY SOFTWARE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR WILL OPERATE IN AN UNINTERRUPTED OR ERROR-FREE MANNER, THAT THE FUNCTIONS CONTAINED IN SUCH SOFTWARE WILL FUNCTION WITH OTHER SOFTWARE OR HARDWARE, OR WITHIN A SYSTEM, THAT SOFTWARE DEVELOPED BY SERVICE PROVIDER IS RESISTANT TO HACKING, MALICIOUS INTRUSION BY THIRD-PARTIES, OR ANY OTHER UNAUTHORIZED ACCESS.

7.4. Client represents and warrants that Client has the full power and authority to enter into this Agreement and Service Provider’s use of the Client Materials shall not constitute an infringement or violation of any intellectual property rights of any third party.

8. LIMITATION OF LIABILITY

8.1. WITH THE EXCEPTION OF THE AMOUNT THAT CLIENT OWES SERVICE PROVIDER FOR SERVICES RENDERED (INCLUDING COSTS, EXPENSES, INTEREST, AND ATTORNEY FEES INCURRED BY SERVICE PROVIDER WITH RESPECT TO RECOVERING ANY AMOUNTS OWED TO SERVICE PROVIDER UNDER THIS AGREEMENT) AND IN THE CASE OF A PARTY'S OBLIGATIONS REGARDING INDEMNIFICATION, THE AGGREGATE LIABILITY OF EITHER PARTY FOR ANY CLAIMS DERIVING FROM OR ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID BY CLIENT TO SERVICE PROVIDER FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8.2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE AND REGARDLESS OF WHAT CAUSE OF ACTION (INCLUDING NEGLIGENCE) OR CLAIM FOR RELIEF IS ASSERTED, IN NO EVENT WILL EITHER PARTY OR ITS EMPLOYEES, AGENTS, AFFILIATES, SUCCESSORS, AND ASSIGNS BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR OTHER SPECIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF DATA, LOST TIME, LOST SAVINGS, LOST CONFIDENTIAL OR OTHER INFORMATION, BUSINESS INTERRUPTION, OR FOR ANY MATTER ARISING FROM OR RELATING TO THIS AGREEMENT EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

9. FORCE MAJEURE

9.1. Neither Party to this Agreement shall be responsible for any delays or failure to perform any provision of this Agreement (other than payment obligations) due to acts of God, strikes or other disturbances, pandemics, war, insurrection, embargoes, governmental restrictions, acts of governments or governmental authorities, or other causes beyond the control of such Party. Notwithstanding anything contained herein, the Client may terminate the Agreement if the Service Provider fails to continue to deliver the Services for thirty (30) days from the starting of a force majeure event.

10. MISCELLEANOUS

10.1. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any failure by either Party to enforce strict performance by the other Party of any provision herein shall not constitute a waiver of the right to subsequently enforce such provision or any other provision of this Agreement.

10.2. This Agreement is not assignable or transferable or sublicensable by either Party without the other Party’s prior written consent, which consent for assignment shall not be unreasonably withheld, conditioned, or delayed.

10.3. This Agreement and the attached exhibits and attachments contain the entire understanding of the Parties hereto relating to the subject matter hereof and supersedes all prior and collateral agreements, understandings, statements, and negotiations of the Parties. Each Party acknowledges that no representations inducements, promises or agreements, oral or written, with reference to the subject matter hereof have been made other than as expressly set forth herein. Specifically, the provisions of this Agreement will control over any standard or boilerplate terms and conditions included on any document provided by the Parties.

10.4. All waivers, changes in scope of Services, and modifications must be in a writing signed by both Parties, except as otherwise provided herein. Service Provider reserves the right to make changes to the Services that do not materially diminish the functionality and value of the Services as a whole.

10.5. No agency, partnership, joint venture, or employment is created because of this Agreement and Client does not have any authority of any kind to bind Service Provider in any respect whatsoever.

10.6. Notice by either Party under this Agreement shall be in writing and personally delivered or given by registered mail, return receipt requested, overnight courier, addressed to the other Party at its address given herein (or any such other address as may be communicated to the notifying Party in writing) and shall be deemed to have been served if delivered in person, on the same day; if sent by registered mail, ten (10) days after deposit into the mail system, if sent by overnight courier, the next business day.

10.7. The Parties will first attempt to resolve any dispute, controversy, or claim relating to this Agreement (a “Dispute”) through prompt, good-faith negotiations, provided that if the Dispute is not so resolved promptly, then either party may submit the Dispute to a court of competent jurisdiction, subject to choice of law and venue terms in this Agreement.  Notwithstanding the foregoing, in the event of any actual or threatened breach of confidentiality, and/or misappropriation and/or infringement of the other Party’s Intellectual Property Rights by a Party, said Party acknowledges that the other Party may be caused to experience irreparable injury for which monetary damages alone would not be sufficient and/or the extent of which may be difficult to ascertain and therefore agrees that the other Party shall be entitled to seek injunctive and/or other equitable relief, without requirement of posting a bond, in addition to all other remedies available at law and/or equity and shall not be delayed in seeking such injunction and/or other equitable relief.

10.8. Each Party irrevocably agrees that any legal action, suit, or proceeding in any way arising out of or in connection with this Agreement shall be brought and governed by and construed in accordance with and submitted to the exclusive jurisdiction of the State of Delaware, U.S.A. Each Party waives, to the fullest extent it may effectively do so, any objection which it may now or hereafter have to the laying of venue of any such action, suit, or proceeding and irrevocably waives any right to claim or assert forum non conveniens and submits to the jurisdiction of such court in any suit, action or proceeding. The non-prevailing Party shall pay the prevailing Party’s reasonable attorney fees and related costs and expenses for any legal action, suit, or proceeding in any way arising out of or in connection with this Agreement.

10.9. This Agreement may be executed in two or more counterparts, each of which shall be binding as of the date first written above, and all of which shall constitute one and the same instrument. Any electronic signature or electronically transmitted copy of a signature of any Party hereto shall be deemed an original and shall constitute a legal, valid, and binding execution hereof by such Party.