Privacy Policy
End User Software License Agreement
This End User Software License Agreement (this "EUSLA"), pertains to the Software (as hereinafter defined). The parties to this EUSLA are Green Project Technologies, Inc. ("GPT"), a Delaware corporation having a place of business at 437 Madison Avenue, #17A, New York, New York 10022, and the person or entity accessing the Software (defined below) ("Licensee"). Each of GPT and Licensee are a “Party” to this EUSLA, and collectively, they are the “Parties”.
GPT permits use of the Software solely on the terms and conditions set forth in this EUSLA and on the condition that Licensee accepts and complies with them. By using the Software,
(i) you:
(a) accept this EUSLA and agree that Licensee is legally bound by its terms; and
(b) represent and warrant that:
(c ) you are of legal age to enter into a binding agreement; and
(ii) if Licensee is a non-human legally recognized entity (e.g. juristic entity or governmental organization) having the power to enter into contracts, you have the right, power, and authority to enter into this EUSLA on behalf of Licensee and bind Licensee to its terms.
If Licensee does not agree to the terms of this EUSLA, GPT does not license the Software to Licensee and you must not use the Software or Documentation.
1. DEFINITIONS.
FOR PURPOSES OF THIS EUSLA, THE FOLLOWING TERMS HAVE THE FOLLOWING MEANINGS:
(i) "Authorized User"
(a) means the Licensee, if the Licensee is a human being, or
(b) if the Licensee is a juristic entity, means the employees of Licensee that are authorized by Licensee to use the Software.
(ii) "Documentation" means user manuals, technical manuals, and any other materials provided by GPT, in printed, electronic, or other form, that describes use of the Software.
(iii) "Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
(iv) "Licensee" is identified on the signature page to this EUSLA.
(v) "License Fees" means the license fees, including all taxes thereon, paid or required to be paid for the license granted under this EUSLA.
(vi) "GPT" has the meaning set forth in the first paragraph of this EUSLA.
(vii) “Malk” means Malk Sustainability Partners, LLC.
(viii) “Order” means the Order Form executed by Malk and Licensee and accepted by GPT relating to ordering the use of the Software by Licensee.
(ix) "Person" means a human being, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other juristic entity.
(x) "Software" means the GPT software program(s) for colleting, calculating and providing information about greenhouse gas emissions.
(xi) "Term" means the term of this EUSLA, which is established in Licensee’s Order, unless earlier terminated or renewed pursuant to this EUSLA or applicable Order.
(xii) "Third Party" means any Person other than Licensee, Malk or GPT.
(xiii) "Update" means a modification, bug fix, patch, and other computer-executable code that GPT provides as an update to the Software.
2. LICENSE GRANT AND SCOPE.
UPON EXECUTION OF THIS EUSLA BY LICENSEE, AND LICENSEE'S STRICT COMPLIANCE WITH ALL TERMS AND CONDITIONS SET FORTH IN THIS EUSLA, GPT HEREBY GRANTS TO LICENSEE A REVOCABLE, NON-EXCLUSIVE, NON-TRANSFERABLE, NON-SUBLICENSABLE, LIMITED LICENSE DURING THE TERM TO USE, SOLELY BY AND THROUGH ITS AUTHORIZED USERS, THE SOFTWARE AND DOCUMENTATION, SOLELY AS SET FORTH IN THIS EUSLA, AND SUBJECT TO ALL CONDITIONS AND LIMITATIONS SET FORTH IN THIS EUSLA. THIS LICENSE GRANTS LICENSEE THE RIGHT, EXERCISABLE SOLELY BY AND THROUGH LICENSEE'S AUTHORIZED USERS, TO:
(a) Use the Software only in accordance with the Documentation. Such use is permitted only on the computer that is authorized. Licensee shall not, and shall not allow any unlicensed Person to, access the Software. Licensee is not authorized to possess a copy of the software, and all copies of the Software will be the exclusive property of GPT.
(b) Licensee may use reports generated by the Software or GPT hereunder for its business purposes.
(c ) Access the Documentation solely in support of its licensed use of the Software in accordance herewith. All copies of the Documentation made by Licensee:
(i) will be the exclusive property of GPT;
(ii) will be subject to the terms and conditions of this EUSLA; and
(iii) must include all trademark, copyright, patent, and other Intellectual Property Rights notices contained in the original.
The license granted above does not authorize Licensee to
(a) copy the Software
(b) sublicense use the Software, or
(c ) allow unauthorized Persons to use the Software.
3. USE RESTRICTIONS.
LICENSEE SHALL NOT, AND SHALL REQUIRE ITS AUTHORIZED USERS NOT TO, DIRECTLY OR INDIRECTLY:
(a) use the Software or Documentation beyond the scope of the license granted under Section 2;
(b) provide any unauthorized Person, including any subcontractor, independent contractor, affiliate, or service provider of Licensee, with access to or use of the Software or Documentation;
(c ) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Software or Documentation or any part thereof;
(d) combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other program;
(e) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Software or any part thereof;
(f) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the Software or Documentation, including any copy thereof;
(g) copy the Software or Documentation, in whole or in part;
(h) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software, or any features or functionality of the Software, to any Third Party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud, or other technology or service;
(i) use the Software or Documentation in, or in association with, the design, construction, maintenance, or operation of any hazardous environments or systems, including:
(i) power generation systems;
(ii) aircraft navigation or communication systems, air traffic control systems, or any other transport management systems;
(iii) safety-critical applications, including medical or life-support systems, vehicle operation applications, or any police, fire, or other safety response systems; and
(iv) military or aerospace applications, weapons systems, or environments;
(j) use the Software or Documentation in violation of any law, regulation, or rule; or
(k) use the Software or Documentation for purposes of (i) competitive analysis of the Software, (ii) the development of a competing software product or service, or (ii) any other purpose that is to GPT's commercial disadvantage.
4. RESPONSIBILITY FOR USE OF SOFTWARE.
LICENSEE IS RESPONSIBLE AND LIABLE FOR ALL USES (INCLUDING MISUSES) OF THE SOFTWARE AND DOCUMENTATION. SPECIFICALLY, AND WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, LICENSEE IS RESPONSIBLE AND LIABLE FOR ALL ACTIONS AND FAILURES TO TAKE REQUIRED ACTIONS WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION BY ITS AUTHORIZED USERS OR BY ANY OTHER PERSON TO WHOM LICENSEE OR AN AUTHORIZED USER MAY PROVIDE ACCESS TO OR USE OF THE SOFTWARE AND/OR DOCUMENTATION, WHETHER SUCH ACCESS OR USE IS PERMITTED BY OR IN VIOLATION OF THIS EUSLA.
5. CONFIDENTIAL INFORMATION.
(a) Each party acknowledges that, in connection with this Agreement, it will receive confidential information (the “Receiving Party”) of the other party (the “Disclosing Party”). In the case of GPT, “Confidential Information” includes
(i) all algorithms, logic, designs, coding techniques or other proprietary information used in the Software and all other technology of GPT relating to the Software,
(ii) the Documentation,
(iii) all non-public portions of the GPT website,
(iv) the Software, plus
(v) any other data or information of Green Project obtained by Licensee in connection with this EUSLA or the Software (excluding reports generated by the Software or provided by GPT pursuant to Section 2(b) hereof).
In the case of Licensee, “Confidential Information” includes all proprietary data provided by Licensee in the operation of the Software and each Authorized User’s user name and password, and reports generated by the Software or provided by GPT pursuant to Section 2(b) hereof.
(b) Except to the extent provided otherwise by applicable law, Confidential Information does not include any information that (a) is known to the Receiving Party prior to receipt from the Disclosing Party, (b) becomes known by the Receiving Party, whether directly or indirectly, from a Third Party not having an obligation of confidentiality to the Disclosing Party, (c) becomes publicly known or otherwise ceases to be confidential without a breach of this Agreement by the Receiving Party, or (d) is independently developed by the Receiving Party without access to such Confidential Information.
(c ) Except as necessary in performing any obligation, or realizing any benefit, under this EUSLA, or as required under any applicable law, the Receiving Party will not (i) use any Confidential Information of the Disclosing Party, for its own account or the account of any Third Party, or (ii) disclose to any Third Party any Confidential Information of the Disclosing Party, other than to (i) the Licensee, its affiliates, advisers and consultants, who agree to be bound by confidentiality, and (ii) any regulatory authority or body having jurisdiction over such Receiving Party. If the Receiving Party is required to disclose or use any Confidential Information of the Disclosing Party pursuant to any applicable law, the Receiving Party must give to the Disclosing Party written notice of such requirement as soon as practicable, and upon the request, and at the cost and expense, of the Disclosing Party, reasonably cooperate with the Disclosing Party to contest such requirement.
(d) Any provision of this Section to the contrary notwithstanding, GPT may use Confidential Information of Client as permitted by Section 8 hereof.
6. SECURITY.
(a) Licensee shall implement and continuously maintain commercially reasonable precautions to protect (i) its computer systems and its access to the Software from unauthorized access, modification or use and (ii) all Confidential Information of GPT from any loss or unauthorized access, modification, disclosure or use (individually, a “Breach”). Licensee will immediately notify GPT in writing of any Breach of GPT’s Confidential Information upon discovery by Licensee, and Licensee shall use commercially reasonable efforts to promptly remedy and mitigate the consequences of any such Breach. If, after the occurrence of a Breach, notification to any third parties is required pursuant to any applicable law, Licensee will reasonably assist GPT in connection with GPT’s giving such notifications.
(b) GPT shall implement and continuously maintain during the Term commercially reasonable precautions to protect all Confidential Information of Licensee from a Breach; provided, however, that GPT shall not, under any circumstances, be responsible or liable to Licensee or any third party for any Breach of Licensee’s (or any Customers or Customer’s portfolio company’s or other third party’s) Confidential Information unless such Breach directly results from GPT’s failure to continuously maintain such commercially reasonable measures as set forth in this Section 6(b). GPT will promptly notify Licensee in writing of any Breach of Licensee’s Confidential Information upon discovery by GPT, and GPT will use commercially reasonable efforts to promptly remedy and mitigate the consequences of any such Breach. If, after the occurrence of a Breach, notification to any third parties is required pursuant to any applicable law, GPT will reasonably assist Licensee in connection with Licensee’s giving such notifications.
7. MAINTENANCE AND SUPPORT.
(a)Subject to Section 7(c ), the license granted herein entitles Licensee to the basic software maintenance and support services described on GPT's website (greenprojecttech.com). Such software maintenance and support services shall be subject to change without notice to Licensee. Such support services shall be provided on the terms and conditions set forth at (greenprojecttech.com).
(b) Maintenance and support services will include making Updates available to Licensee. GPT may develop and provide Updates in its sole discretion. GPT has no obligation to develop any Updates at all or for particular issues. All Updates will be deemed Software, and related documentation will be deemed Documentation, and therefore, will be subject to all terms and conditions of this EUSLA.
(c ) Maintenance and support services do not include any new version or new release of the Software that GPT may issue as a separate or new product. GPT has sole discretion to determine whether any issuance qualifies as a new version, new release, or Update.
(d) GPT has no obligation to provide maintenance and support services, including Updates:
(i) for any but the most current version or release of the Software;
(ii) if Licensee is in breach under this EUSLA; or
(iii) in order to accommodate Licensee’s systems, including Licensee’s hardware, software, or operating system.
8. COLLECTION AND USE OF INFORMATION.
(a) GPT may directly or indirectly through the services of Third Parties, collect and store information regarding use of the Software and about equipment used to access the Software, and GPT may do so via:
(i) the provision of maintenance and support services; and/or
(ii) security measures included in the Software.
(b) GPT may use such information for any purpose related to any use of the Software by Licensee or on Licensee's equipment, including but not limited to:
(i) improving the performance of the Software or developing Updates; and
(ii) verifying Licensee's compliance with the terms of this EUSLA and enforcing GPT's rights, including all Intellectual Property Rights in and to the Software.
Notwithstanding the foregoing, GPT may not use Licensee’s Confidential Information for any purpose which discloses such Confidential Information to any entity other than GPT itself and Malk.
9. INTELLECTUAL PROPERTY RIGHTS.
THE SOFTWARE AND DOCUMENTATION ARE PROVIDED UNDER LICENSE, AND NOT SOLD, TO LICENSEE. THIS EUSLA DOES NOT GRANT LICENSEE ANY OWNERSHIP INTEREST IN THE SOFTWARE OR DOCUMENTATION, OR ANY OTHER RIGHTS THERETO, OTHER THAN THE RIGHT TO USE THE SOFTWARE AND DOCUMENTATION IN ACCORDANCE WITH THE GRANTED LICENSE, WHICH IS SUBJECT TO ALL TERMS, CONDITIONS, AND RESTRICTIONS UNDER THIS EUSLA. GPT RESERVES AND SHALL RETAIN ITS ENTIRE RIGHT, TITLE, AND INTEREST IN AND TO THE SOFTWARE AND ALL INTELLECTUAL PROPERTY RIGHTS ARISING OUT OF OR RELATING TO THE SOFTWARE, EXCEPT AS EXPRESSLY GRANTED TO THE LICENSEE IN THIS EUSLA. LICENSEE SHALL USE COMMERCIALLY REASONABLE EFFORTS TO SAFEGUARD THE SOFTWARE AND THE INTELLECTUAL PROPERTY RIGHTS ASSOCIATED WITH THE SOFTWARE FROM INFRINGEMENT, MISAPPROPRIATION, THEFT, MISUSE, AND UNAUTHORIZED ACCESS. LICENSEE SHALL PROMPTLY NOTIFY GPT IF LICENSEE BECOMES AWARE OF ANY INFRINGEMENT OF GPT'S INTELLECTUAL PROPERTY RIGHTS AND FULLY COOPERATE WITH GPT IN ANY LEGAL ACTION TAKEN BY GPT TO ENFORCE ITS INTELLECTUAL PROPERTY RIGHTS.
10. RESERVED.
11. TERM AND TERMINATION.
(a) This EUSLA and the license granted herein shall remain in effect for the Term.
(b) GPT may terminate this EUSLA immediately if Licensee breaches this EUSLA.
(c) Upon expiration or earlier termination of this EUSLA, the license granted herein shall also terminate, and Licensee shall cease using the Software, and destroy all copies of the Documentation.
12. LIMITED WARRANTIES, EXCLUSIVE REMEDY, AND DISCLAIMER/WARRANTY DISCLAIMER.
(a) Solely with respect to Software for which GPT receives a License Fee, GPT warrants that, during the Term the Software will substantially provide the functionality described in the Documentation, and further warrants that the Software will operate in accordance with the Green Project Service Level Agreement attached hereto as Annex 1.
THE FOREGOING WARRANTY DOES NOT APPLY, AND GPT DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY SOFTWARE AND/OR INFORMATION.
(b) The warranty set forth in Section 12(a) will not apply and will become null and void if Licensee materially breaches any provision of this EUSLA, or if Licensee, any Authorized User, or any other Person provided access to the Software by Licensee or any Authorized User, whether or not in violation of this EUSLA:
(i) uses the Software on or in connection with any hardware or software not specified in the Documentation; or
(ii) misuses the Software, including any use of the Software other than as specified in the Documentation.
(c) If, during the period specified in Section 12(a), the Software covered by the warranty fails to perform substantially in accordance with the Documentation, and such failure is not excluded from the warranty, subject to Licensee promptly notifying GPT in writing of such failure, at its sole option, GPT will make commercially reasonable efforts to repair or replace the Software or update the Documentation, provided that Licensee provides GPT with all information GPT requests to resolve the reported failure, including sufficient information to enable GPT to recreate such failure. The remedy set forth in this Section 12(c) is Licensee's sole remedy and GPT's sole liability under the limited warranty set forth in this Section 12.
(d) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 12(a), THE SOFTWARE AND DOCUMENTATION ARE LICENSED TO LICENSEE "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, GPT, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESSED, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, GPT PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE LICENSED SOFTWARE WILL MEET THE LICENSEE'S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
13. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:
(a) IN NO EVENT WILL GPT OR MALK OR THEIR RESPECTIVE AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO LICENSEE OR ANY OTHER ENTITY OR PERSON FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SOFTWARE; LOST REVENUES OR PROFITS; DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS OR CORRUPTION OF DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; OR BREACHES IN SYSTEM SECURITY; OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT GPT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) IN NO EVENT WILL GPT'S OR ANY OF ITS RESELLERS’, INCLUDING MALK AND THEIR RESPECTIVE AFFILIATES, INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED $10,000.00.
(c) THE LIMITATIONS SET FORTH IN SECTION 13(a) AND SECTION 13(b) SHALL APPLY EVEN IF THE LICENSEE'S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
14. EXPORT REGULATION. THE SOFTWARE AND DOCUMENTATION MAY BE SUBJECT TO U.S. EXPORT CONTROL LAWS, INCLUDING THE U.S. EXPORT ADMINISTRATION ACT AND ITS ASSOCIATED REGULATIONS. THE LICENSEE SHALL NOT, DIRECTLY OR INDIRECTLY, EXPORT, RE-EXPORT, OR RELEASE THE SOFTWARE OR DOCUMENTATION TO, OR MAKE THE SOFTWARE OR DOCUMENTATION ACCESSIBLE FROM, ANY JURISDICTION OR COUNTRY TO WHICH EXPORT, RE-EXPORT, OR RELEASE IS PROHIBITED BY LAW, RULE, OR REGULATION. LICENSEE SHALL COMPLY WITH ALL APPLICABLE FEDERAL LAWS, REGULATIONS, AND RULES, AND COMPLETE ALL REQUIRED UNDERTAKINGS (INCLUDING OBTAINING ANY NECESSARY EXPORT LICENSE OR OTHER GOVERNMENTAL APPROVAL), PRIOR TO EXPORTING, RE-EXPORTING, RELEASING, OR OTHERWISE MAKING THE SOFTWARE OR DOCUMENTATION AVAILABLE OUTSIDE THE U.S.
15. MISCELLANEOUS.
(a) All matters arising out of or relating to this EUSLA shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or relating to this EUSLA or the transactions contemplated hereby shall be instituted in the federal courts of the United States of America or the courts of the State of New York in each case located in the City of New York, New York, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such legal suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such Party's address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court. The Parties hereby irrevocably, knowingly, and voluntarily waive trial by jury in connection with any action arising out of or in connection with this Agreement.
(b) GPT will not be responsible or liable to Licensee, or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning, or Licensee equipment, loss and destruction of property, or any other circumstances or causes beyond GPT's reasonable control.
(c) All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); or (iii) on the fifth day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communication must be sent to GPT at the address set forth on the first page or to such other address as may be designated by GPT from time to time in accordance with this Section 14(c). Such communication must be sent to the Licensee at the address in the records of GPT or to such other address as may be designated by Licensee in a notice to GPT from time to time in accordance with this Section 15(c).
(d) This EUSLA, constitutes the sole and entire agreement between Licensee and GPT with respect to the Software and Documentation, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
(e) Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this EUSLA, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without GPT's prior written consent, which consent GPT may give or withhold in its sole discretion. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation, or reorganization involving Licensee (regardless of whether Licensee is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations, or performance under this EUSLA for which GPT's prior written consent is required. No delegation or other transfer will relieve Licensee of any of its obligations or performance under this EUSLA. Any purported assignment, delegation, or transfer in violation of this Section 15(e) is void. GPT may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this EUSLA without Licensee's consent. This EUSLA is binding upon and inures to the benefit of the Parties and each of their permitted successors and assigns.
(f) This EUSLA is for the sole benefit of the Parties and their respective successors and permitted assigns and nothing herein, expressed or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this EUSLA.
(g) This EUSLA may only be amended, modified, or supplemented by an agreement in writing signed by each Party. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this EUSLA, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this EUSLA 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.
(h) If any term or provision of this EUSLA is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this EUSLA or invalidate or render unenforceable such term or provision in any other jurisdiction.
(i) For purposes of this EUSLA, (A) the words "include," "includes," and "including" shall be deemed to be followed by the words "without limitation"; (B) the word "or" is not exclusive; and (C) the words "herein," "hereof," "hereby," "hereto," and "hereunder" refer to this EUSLA as a whole.
(j) Unless the context otherwise requires, references herein: (A) to Sections, Annexes, Schedules, and Exhibits refer to the Sections of, and Annexes, Schedules, and Exhibits attached to, this EUSLA; (B) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof, and (C) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder.
(k) This EUSLA shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted.
(l) The headings in this EUSLA are for reference only and do not affect the interpretation of this EUSLA.
Annex 1
Service Level Agreement
1. Technical Support and Incident Management Service Levels
1.1. Incident Management. The Support Services are available by tickets at support@Green Project.com Canadian during business days and between 9AM and 5PM ET (the “Support Hours”). Support tickets which cannot be handled through level 1 support are classified based on their criticality, taking into consideration the criteria set forth below. Green Project will deploy commercially reasonable efforts to respond within the response time provided below and based on the criticality of tickets.
Incident Criticality Rating
Examples
Response time
High
Interruption (or imminent interruption) of critical system, network or application with significant impacts on service delivery, complete loss of production servers, critical breach of SLA.
1 hour
Medium
Service delivery is partially impacted, partial loss of production servers, breach of SLA, significant inconvenience
4 hours
Low
Functionalities are affected with workarounds available, no loss of production server.
8 hours
Some “low” criticality tickets may be resolved through subsequent Updates.
1.2. Obligations. Green Project will keep Customer / Licensee reasonably informed of the progress of support tickets and will inform Customer / Licensee prior for closing tickets as “resolved”. Green Project will implement and maintain a commercially reasonable incident management process substantially in accordance with this Appendix B with the objective of minimizing impacts of incidents on Customer’s / Licensee’s business operations.
1.3. Maintenance. Green Project will conduct reasonable maintenance of the Services. To the greatest extent practicable, Green Project will conduct such maintenance at times and in a manner intended to minimize any interruption of the Services.
2. Uptime Service Levels
2.1. Definitions.
2.1.1. “Platform” means (a) Green Project’s web-application; (b) the Green Project Software’s infrastructure configurations; (c) data import services and related application programming interfaces (“APIs”) and (d) data export services and related APIs.
2.1.2. “Infrastructure” means data hosting services and related cloud infrastructure components.
2.1.3. “Available Minutes” means the total number of minutes during which the Infrastructure was available during a calendar month.
2.1.4. “Downtime” means the total number of minutes within the Maximum Monthly Minutes during which the Infrastructure was Unavailable.
2.1.5. “Maximum Monthly Minutes” means the total minutes during a calendar month minus any Support Windows during this same month.
2.1.6. “Monthly Uptime Percentage” is calculated as Available Minutes less Downtime divided by Maximum Monthly Minutes multiplied by one hundred (100):
Monthly Uptime % = (Maximum Monthly Minutes – Downtime) / Available Minutes x 100
2.1.7. “Support Window” means the period during which Green Project performs maintenance on the Platform, including on features and compatibility with other services or products.
2.1.8. “Unavailable” means that access or use of the Platform is not available to Customer / Licensee, or if the critical functionalities of the Platform cannot be accessed or used.
2.2. The Infrastructure’s Monthly Uptime Percentage shall be 99.8% during business hours. A breach of the Monthly Uptime Percentage shall be considered a material breach if it is significant and repetitive to constitute a hinderance and a breach of this Agreement.
3. Exclusions
The service levels do not apply in the following situations: (a) a Force Majeure Event; (b) an electrical service interruption or an Internet downtime caused by an Internet Service Provider; (c) actions of Customer / Licensee executed without prior consent from Green Project which affect the services levels and (d) events which are not within the immediate control of Green Project, including, without limitation: (i) equipment, data, materials, software, hardware, services and/or facilities provided by or on behalf of Customer; (ii) Customer’s / Licensee’s network services allowing the Customer / Licensee to access the Services; (iii) equipment, data, advertisements, materials, software, hardware, services and/or facilities provided by third-party vendors or service providers of Customer; (iv) acts or omissions of Customer / Licensee (including their affiliates, agents, subcontractors, employees and directors); (v) issues arising from bugs or other problems in the software, firmware or hardware of third parties and (e) any outage, network unavailability or downtime outside the reasonable control of Green Project.
4. Remedies
Service Credits. In the event of a Services outage in excess of the commitment stated in Section 2.2 hereof, Customer / Licensee shall be entitled to a service credit to be applied as a percentage discount off of future orders or renewal terms in the amount of 5% for each month during the Term in which the Services were Unavailable in excess of the commitment stated in Section 2.2 hereof.
Not including and subject to the other provisions of the parties’ agreements, service credits issued to Customer / Licensee hereunder and the termination right set forth below due to a Chronic Outage (as defined below) shall be Customer’s / Licensee’s sole and exclusive remedies at law or in equity on account of any Service Outage and/or failure to meet any objectives or parameters set forth in this SLA.
Chronic Outage. In the event the Services are or become Unavailable in excess of the commitment stated in Section 2.2 hereof during three months in a consecutive six-month period (a “Chronic Outage”), Customer / Licensee, in lieu of any and all applicable service credits, may terminate the affected Service and order without penalty provided that written notice of termination is provided to GPT and Malk within thirty days of the event giving rise to the termination right.