BY INDICATING YOUR ASSENT TO ENTER THIS MASTER AGREEMENT (THE “AGREEMENT”), YOU SUBMIT TO C-6 INC., A DELAWARE CORPORATION DOING BUSINESS AS CARBON TITLE (“CARBON TITLE”), AN AGREEMENT TO ACCESS AND USE THE PRODUCTS AND/OR SERVICES DESCRIBED BELOW UNDER THE PROVISIONS OF THIS AGREEMENT AND HEREBY AGREE THAT YOU HAVE THE REQUISITE AUTHORITY, POWER AND RIGHT TO FULLY BIND THE PERSON AND/OR ENTITIE(S) (COLLECTIVELY, THE “MEMBER”) WISHING TO ACCESS AND USE SUCH PRODUCTS AND/OR SERVICES LISTED ON EACH WRITTEN OR ELECTRONIC QUOTATION, ORDER FORM, STATEMENT OF WORK AND/OR OTHER DOCUMENT (EACH AN “ORDER FORM”) WHICH CARBON TITLE PROVIDES TO MEMBER. THE TERMS OF EACH ORDER FORM WILL SET FORTH THE SPECIFIC TERMS OF THE ORDER BUT ALL APPLICABLE TERMS AND CONDITIONS BELOW SHALL APPLY.
IF YOU DO NOT HAVE THE AUTHORITY TO BIND MEMBER OR YOU OR MEMBER DO NOT AGREE TO ANY OF THE TERMS BELOW, CARBON TITLE IS UNWILLING TO PROVIDE THE PRODUCTS OR SERVICES TO MEMBER, AND YOU SHOULD DISCONTINUE THE ORDER AND/OR REGISTRATION PROCESS.
Pursuant to this Agreement, Member may order from Carbon Title (a) licenses to access and use Carbon Title’s proprietary solution designed to allow the real estate industry to estimate, manage, take action, and address the ongoing carbon impact of buildings and portfolios (the “Solution”) to be hosted and made available by Carbon Title on a software-as-a-service basis (the “Hosted Service”); and/or (b) the purchase of certain quantities of carbon offset credits (“Carbon Credits”) described and made available within the Solution. All Order Forms are incorporated herein by reference.
2. Hosted Service Use Rights and Restrictions
2.1 Administrative Rights. The Solution will include a restricted-access administrative interface component (“Administrative Interface”) to allow employees, specific independent contractors and/or agents designated by Member (“Administrative Users”) to access the configuration and settings components of the Solution to manage, configure and monitor the Solution for Member’s benefit. Each Administrative User will be provided access to and use of the Administrative Interface (“Admin User Access”). Member shall be responsible for ensuring the security and confidentiality of all Admin User Access. Member acknowledges that it will be solely and fully responsible for all liabilities incurred through use (permitted or unpermitted) of any Admin User Access.
2.2 Access to Hosted Service.
2.2.1 License Rights. During the applicable
Membership Term (as defined in Section 6.1 below), unless otherwise set forth in the Order Form, Carbon Title hereby grants to Member a limited, worldwide, non-exclusive, non-transferable license to: (i) permit Administrative Users and Member’s authorized users (“Users”) to access and use the Solution via the Hosted Service in accordance with the usage limitations set forth in the Order Form; and (ii) use and make a reasonable number of copies of any descriptions, instructions, or other documentation made available by Carbon Title that describes functionality of the Solution, if any (collectively, the “Documentation”), in each case solely for Member’s business purposes.
2.2.2 Access Requirements. Member is solely responsible for (i) obtaining and maintaining any equipment or ancillary services needed to access or otherwise use the Hosted Service, including, without limitation: modems, hardware, software,
and Internet access, and any fees associated therewith; (ii) ensuring that such equipment or ancillary services are compatible with the Hosted Service; and (iii) procuring all necessary rights from applicable third parties to any related third-party product(s) not provided by Carbon Title that may be necessary for Member and Users to fully utilize the Hosted Service.
2.3 Restrictions. Except as otherwise expressly permitted under this Agreement, Member agrees not to, and shall not allow Users to: (a) reverse engineer or otherwise attempt to discover the source code of or trade secrets embodied in the Solution or any portion thereof; (b) distribute, transfer, grant sublicenses, or otherwise make available the Solution (or any portion thereof) to third parties, including, but not limited to, making such Solution available as an application service provider, service bureau, or rental source; (c) embed or incorporate in any manner the Solution (or any element thereof) into applications of Member or third parties; (d) create modifications to or derivative works of the Solution; (e) reproduce the Solution or Documentation; (f) use the Solution in a manner not authorized under the Documentation or in violation of any applicable law, rule or regulation, including any export/import laws, or (g) in any way access, use, or copy any portion of the Solution code (including the logic and/or architecture thereof and any trade secrets included therein) to directly or indirectly develop, promote, distribute, sell or support any product or service that is competitive with the Solution. Member shall not permit any third-party, including Users, to perform any of the foregoing actions and shall be responsible for all damages and liabilities incurred as a result of such actions. The Solution is a “commercial item,” as that term is defined at 48 C.F.R. § 2.101, and more specifically is “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. § 12.212. Consistent with 48 C.F.R. §§ 12.212, 227.7202-1 through 227.7202-4, the Solution is provided to U.S. Government End Users (i) only as a commercial end item and (ii) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
3. Delivery and Use of Hosted Service; Memeber Data
3.1 Hosted Service. During the applicable Membership Term, subject to Member’s payment of all related Fees (as defined in Section 5.1 below), Carbon Title or its third-party hosting provider will set up and host the Solution, including obtaining and maintaining all computer hardware, software, communications systems, network and other infrastructure (“Hosting Infrastructure”) necessary to permit Member to access and use the Solution in accordance with this Agreement. Carbon Title will manage and install all updates and upgrades that Carbon Title makes generally available to its customers for the Solution within the Hosting Infrastructure.
3.2 Member Data.
3.2.2 Usage Data. Carbon Title shall fully own and retain all rights to anonymous usage data derived from Member Data (“Usage Data”) as aggregated with usage data from Carbon Title’s other customers for its own business purposes such as support, operational planning, product innovation and sales and marketing of Carbon Title’s services. For purposes of clarification, such Usage Data may not include any data that could reasonably identify Member or any particular Authorized User.
4. Purchase and Sale of Carbon Credits
Member may purchase Carbon Credits to build a portfolio of environmental credits (the “Environmental Portfolio”) by executing a Carbon Order Form for each purchase which shall be subject to the terms and conditions herein (each, a “Carbon Order”). Carbon Credits may be issued by an established carbon standard (the “Carbon Standard”) such as the Verra Verified Carbon Standard, American Carbon Registry and Gold Standard, and may include forecasted mitigation units (“FMUs”) under the Climate Action Reserve’s (“CAR”) Climate Forward Program (the “Climate Forward Program”) (each, the “Applicable Standard”). For purposes of this Section 4, Carbon Title is referred to as “Seller” and the Member is referred to as “Buyer.”
4.1 Portfolio Confirmations. Seller shall from time to time propose to Buyer specified Carbon Credits for inclusion in Buyer’s Environmental Portfolio by presenting to Buyer a proposal in the form of a Carbon Contract Order.
4.2 Purchase and Sale. Seller agrees to sell and deliver to Buyer, and Buyer agrees to purchase and accept from Seller, Carbon Credits of the credit type and volume specified in the applicable Carbon Order (the “Contract Credits”) at the price and on the terms specified herein. The Parties may agree to one or more tranches of sales by specifying the commercial terms applicable to each tranche in a Carbon Order, which upon acceptance by Seller shall be incorporated into and become a part of this Agreement. Each Carbon Order shall be designated with sequential numbering Order #1, Order #2, etc.
4.3 Attributes. Unless otherwise specified in a Carbon Order Form, Contract Credits shall include all associated Environmental Attributes. Environmental Attributes means those attributes, aspects, claims, characteristics, outcomes and benefits (including sustainable development goals) associated with the reduction, avoidance or mitigation of greenhouse gases (as specified in the Carbon Order Form) and, in the absence of any withholding of any part thereof by Seller, all of them, including any right to claim, offset, report or use such attributes.
4.4 Hold, Transfer or Retirement. At Buyer’s election (as indicated in the applicable Carbon Order), Seller will effect delivery by: (a) holding Contract Credits in Buyer’s Environmental Portfolio for the benefit of Buyer; (b) transferring Contract Credits to Buyer’s registry account, or (c) procuring the retirement of Contract Credits for the benefit of Buyer per the rules of the Applicable Standard. Buyer shall notify Seller of its election to hold, transfer or retire Contract Credits at least five (5) days in advance of each delivery date. Seller shall provide notice of delivery to Buyer by transmitting an attestation form or other documentation evidencing holding, transfer or retirement of the Contract Credits (“Delivery Notification”).
4.5 Delivery; Title. On each delivery date specified in the applicable Carbon Order, Seller shall (i) deliver Contract Credits to Buyer in accordance with the transfer requirements of the Applicable Standard and operating rules of the applicable Registry System (each as specified in the applicable Carbon Order) and (ii) deliver an attestation form or other documentation evidencing transfer or retirement of the credits delivered. Upon delivery (i.e., hold, transfer or retirement) and payment by Buyer, all right, title, and interest in the applicable Contract Credits shall pass free and clear from encumbrances from Seller to Buyer.
4.6 Delivery Shortfall. If any project registered with an Approved Standard fails to qualify for issuance of Carbon Credits or Seller is unable to deliver the entire volume of Carbon Credits by the estimated delivery date indicated in the applicable Carbon Order, no earlier than sixty (60) days following the estimated delivery date, either Party may by written notice to the other party cancel the Carbon Order with respect to Contract Credits not then delivered and neither Party shall have any further obligation or liability to the other Party with respect to such credits, except that (a) Seller shall refund any payment made by Buyer in respect to credits for which delivery has been cancelled and (b) those liabilities that accrued prior to the effective date of such cancellation. For avoidance of doubt, delivery dates are indicative only and timing of delivery of Contract Credits is contingent on delivery by Seller's supplier.
4.7 Substitution. If the Carbon Credits specified in an applicable Carbon Order cannot be procured, Seller may substitute the same quantity of Carbon Credits of comparable project type, vintage and attributes.
4.8 Payment. Acceptance of a Carbon Order shall constitute an invoice for payment. Buyer shall pay the contract price with respect to each Carbon Order within five (5) business days of Buyer’s acceptance by electronic funds transfer in immediately available funds in U.S. Dollars, subject to any additional payment terms specified in the applicable Carbon Order; provided that, Buyer shall be entitled to a refund of any payment for Contract Credits not delivered as of the Delivery Date unless extended by mutual agreement of the Parties. To the extent a Party disputes in good faith any part of an invoice, such Party shall pay the undisputed amount invoiced by the Payment Date. If any amount withheld under dispute is finally determined to have been due, such withheld amount shall be paid over to the Party to whom such amount is owed within five (5) business days of such determination, along with interest at the rate specified herein for overdue payments from, and including, the Payment Date, but excluding the date paid.
4.9 Fees, Taxes and Costs. Fees. Subject to the following sentence, Seller (or its vendor) shall be responsible for payment of all fees, charges, levies and costs associated with the validation, verification, issuance, and delivery, transfer or retirement of the Contract Credits. Amounts due from Buyer shall be exclusive of VAT, GST or similar tax, which shall be for the account of Buyer. Other than as otherwise specified herein, each Party shall be responsible for any taxes, duties and levies imposed by any governmental authority or regulatory body on it in relation to the sale and purchase of the Contract Credits or income therefrom. Costs. Each Party will bear its own costs and expenses in connection with the preparation, negotiation and execution of this Agreement and each Carbon Order, including any broker fees.
4.10 Termination. If this Agreement is terminated as provided herein, each Party’s rights and obligations with respect to any Carbon Order accepted and rights and obligations accrued prior to the effective date of such termination shall continue and survive termination.
4.11 Mutual Representations and Warranties. With respect to each Carbon Order, each Party represents and warrants that: (i) it is duly organized and validly existing under the laws of its governing jurisdiction and is qualified to conduct its business in that jurisdiction; (ii) it has the power and authority to execute and deliver this agreement and to perform its obligations under it, has undertaken all necessary due diligence, and has taken all necessary actions, including internal, to authorize the entry into and the observance and performance of its obligations under this Agreement; (iii) its entry into, execution, delivery, and observance and performance of its obligations under this agreement does not violate or conflict with or require any consent or waiver under any of the terms or conditions in its governing documents or any material contract to which it is a party or by which any of its assets are bound or affected, or any applicable law; (iv) this agreement constitutes a legal, valid and binding obligation on it enforceable in accordance with its terms by an appropriate legal remedy; (v) it is a “forward contract merchant” within the meaning of 11 U.S.C. § 101(26) of the Bankruptcy Code, and this Agreement and all transactions hereunder constitute “forward contracts” within the meaning of 11 U.S.C. § 101(25) of the Bankruptcy Code and that the remedies identified in this Agreement shall be “contractual rights” as provided for in 11 U.S.C. § 556, as these provisions may be amended from time to time; (vi) it intends the agreement to be for physical
delivery and settlement; and (vii) it is in compliance with applicable anti-corruption and anti-terrorism laws.
4.12 Additional Seller Representations and Warranties. At each delivery of Contract Credits, Seller represents and warrants that: (i) it has title to, and the right to transfer or retire, the Contract Credits; (ii) the Contract Credits delivered are free and clear of, and not subject to, any lien or encumbrance; (iii) the underlying Carbon Credits and Environmental Attributes have not been sold or transferred to any other person; (iv) it has not and shall not make any claim inconsistent with the Environmental Attributes or that would constitute double counting; (v) Contract Credits delivered will vest in Buyer and Buyer will (x) have the exclusive rights to make all claims as to the Contract Credits and Environmental Attributes and (y) have the right to report and register, as applicable, the exclusive ownership of the Contract Credits and Environmental Attributes with any registry, system, agency, authority, or other party, either voluntarily or in compliance with any present or future domestic, international, or foreign law, regulation, registry or program (according to their respective terms), and upon delivery Buyer or its designee shall have the right to all claims with respect to the Contract Credits and Environmental Attributes; and (vi) the Contract Credits are in compliance with the applicable methodology, as determined by the applicable standard.
4.13 OTHER THAN AS PROVIDED HEREIN, SELLER MAKES NO, AND DISCLAIMS ALL OTHER, WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY CREDIT OR ATTRIBUTE, INCLUDING ANY EVENT OF INVALIDATION BY OR DISCONTINUATION OF A STANDARD, ANY IMPLIED WARRANTY OF MERCHANTABILITY, AND ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
5.1 Fees. Subject to the terms and conditions below, all one- time and recurring fees for, as applicable, the Hosted Service and/or related Credits (collectively, the “Fees”) will be set forth on the applicable Order Form.
5.2 Payment Terms. Unless otherwise agreed to in an Order Form, Member will pay to Carbon Title all undisputed Fees owed (i) in advance if payment is to be made by credit card; or (ii) otherwise, within fifteen (15) days after Carbon Title’s issuance of an invoice pertaining thereto. If applicable, payments will be sent to the address included on the invoice. All amounts payable shall be in the currency of the United States and specifically exclude (and Member is responsible for) any and all applicable sales, use and other taxes, (other than taxes based on Carbon Title’s income); provided that Carbon Title shall be responsible for all taxes applicable to the Credits for all periods prior to transfer of title of the Credits to Member, and Member shall be responsible for all taxes applicable to the Credits for all periods from and after transfer of title of the Credits from Carbon Title. Unless otherwise set forth in an Order Form, each party is responsible for its own expenses under this Agreement. In cases where Member fails to make payment under this Agreement, Member shall bear default interest after the due date at the rate of 18% per year or the highest amount permitted by applicable law (whichever is less), which shall be calculated on a pro-rated basis of a year of 365 days.
6. Term and Termination
6.1 Term of Agreement. This Agreement shall continue in effect until terminated as set forth herein. The initial membership term for each Hosted Service license purchased by Member will be as setforth in the applicable Order Form and subject to any renewal as set forth in Section 6.2 below (collectively, the “Membership Term”).
6.2 Membership Terms; Renewal. Each Membership Term will commence on the date that both parties have executed the applicable Order Form under which Member acquires such license, unless a later commencement date is expressly set forth on such Order Form, and will continue for the initial Membership Term. Thereafter, each Solution license will automatically renew for a 12-month renewal period at the same Fees applicable during the immediately preceding term (based upon the latest applicable pricing tier) unless either party notifies the other at least fifteen (15) days (for month-to-month Membership Terms) or, otherwise, sixty (60) days, prior to the commencement of the renewal term, that it does not intend to renew the Membership Term upon the same terms.
6.3 Termination. This Agreement and/or any Order Form may be terminated (a) by either party if the other party materially breaches this Agreement and does not cure the breach within thirty (30) days after receiving written notice thereof from the non-breaching party (except that such cure period shall be five (5) days for breaches of Sections 2, 5 or 8), or (b) as set forth in Section 10. Additionally, a particular Order Form may be suspended or terminated by Carbon Title in the event that Member fails to pay applicable Fees when due or otherwise violates any of the use restrictions set forth herein.
6.4 Effect of Termination. Upon any termination of this Agreement or an Order Form, without prejudice to any other rights or remedies which the parties may have, (a) all rights licensed and obligations required thereunder shall immediately cease; provided that Sections 2.3, 5, 6.4, 7, 8, 9.3, 10, 12 and 13 shall survive termination, (b) Member will promptly delete and destroy all copies of the Documentation in its possession or control, and (c) Member shall pay to Carbon Title any outstanding Fees that have accrued under the Agreement and/or Order Form prior to the date of termination.
7. Proprietary Rights
As between the parties, (i) Carbon Title will retain all ownership rights in and to the Solution and Hosted Service, all updates and/or upgrades thereto (including any changes which incorporate any ideas, feedback or suggestions provided by Member), Documentation, and other derivative works of the Solution, Hosted Service and/or Documentation that are provided by Carbon Title, and all intellectual property rights incorporated into or related to the foregoing, (ii) Member will retain all ownership rights in and to the Member Data, and all intellectual property rights incorporated into or related to the foregoing, and (iii) title to the Credits shall be transferred to Member upon payment of related Fees. The trademarks and service marks and other Carbon Title logos and product and service names are trademarks of Carbon Title (the “Carbon Title Marks”). Likewise, the trademarks and service marks and other logos and products and service names of Member are trademarks of Member (collectively “Member Marks”). Without the other party’s prior written permission, the parties agree not to display or use in any manner, the Carbon Title Marks or Member Marks, as applicable. All rights not expressly licensed by Carbon Title and Member under this Agreement are reserved. As between the parties hereto, Member will retain all ownership rights in and to all Member Data.
8. Confidential Information
“Confidential Information” means, with respect to a party (the “disclosing party”), information that pertains to such party’s business,
including, without limitation, technical, marketing, financial, employee, planning, product roadmaps and documentation, performance results, pricing, and other confidential or proprietary information. Confidential Information will be designated and/or marked as confidential when disclosed, provided that any information that the party receiving such information (the “receiving party”) knew or reasonable should have known, under the circumstances, was considered confidential or proprietary by the disclosing party, will be considered Confidential Information of the disclosing party even if not designated or marked as such. The receiving party shall preserve the confidentiality of the disclosing party’s Confidential Information and treat such Confidential Information with at least the same degree of care that receiving party uses to protect its own Confidential Information, but not less than a reasonable standard of care. The receiving party will use the Confidential Information of the disclosing party only to exercise rights and perform obligations under this Agreement. Confidential Information of the disclosing party will be disclosed only to those employees and contractors of the receiving party with a need to know such information. The receiving party shall not be liable to the disclosing party for the release of Confidential Information if such information: (a) was known to the receiving party on or before the effective date of this Agreement without restriction as to use or disclosure; (b) is released into the public domain through no fault of the receiving party; (c) was independently developed solely by the employees of the receiving party who have not had access to Confidential Information; or (d) is divulged pursuant to any legal proceeding or otherwise required by law, provided that, to the extent legally permissible, the receiving party will notify the disclosing party promptly of such required disclosure and reasonably assist the disclosing party in efforts to limit such required disclosure. Notwithstanding the foregoing, each Party may disclose the other party’s name and such information as may be required to complete an attestation form or other documentation required by the applicable registry or tracking system for the transfer of Carbon Credits, but excluding price, payment, and other commercial terms.
9. Representations and Warranties; Disclaimer
9.1 Mutual. Each party represents, warrants and covenants to the other party that: (a) it has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it under this Agreement, (b) the execution of this Agreement and performance of its obligations under this Agreement do not and shall not violate any other agreement to which it is a party, (c) this Agreement constitutes the legal, valid and binding obligation of such party when executed and delivered and (d) any and all activities it undertakes in connection with this Agreement shall be performed in compliance with all applicable laws, rules and regulations.
9.2 By Member. Member represents, warrants and covenants to Carbon Title that neither it nor any of its affiliates (a) are presently debarred, suspended, proposed for debarment, or declared ineligible for the award of contracts by any government agency, (b) are included on the Specially Designated Nationals and Blocked Persons lists maintained by the U.S. Treasury’s Office of Foreign Assets Control, the United Nations Security Council Consolidated List, or similar lists of proscribed entities identified as associated with terrorism, and (ii) will not engage in transactions with, or provide resources or support to, any such individuals or organizations or anyone else associatedwith terrorism, (c) are a person or entity with whom transacting is prohibited by any trade embargo, economic sanction, or other prohibition of law or regulation, or (d) have conducted, or will conduct, their operations in violation of applicable money laundering laws, including but not limited to, the U.S. Bank Secrecy Act and the money laundering statutes of any and all jurisdictions to which such parties, or any one of them, is subject, and no action or inquiry concerning money laundering by or before any authority involving any certifying such party is pending.
9.3 Disclaimers. THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT ARE THE EXCLUSIVE WARRANTIES OFFERED BY EITHER PARTY AND ALL OTHER CONDITIONS AND WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY CONDITIONS OR WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, NON- INFRINGEMENT, ACCURACY, QUIET ENJOYMENT, TITLE, MERCHANTABILITY AND THOSE THAT ARISE FROM ANY COURSE OF DEALING OR COURSE OF PERFORMANCE ARE HEREBY DISCLAIMED. CARBON TITLE DOES NOT WARRANT THAT MEMBER’S USE OF THE SOLUTION OR HOSTED SERVICE WILL BE UNINTERRUPTED OR ERROR- FREE, OR THAT ERRORS WILL BE CORRECTED.
10. Indemnification, Limitation of Liability
10.1 Indemnification. Carbon Title will defend at its own expense any action against Member brought by a third-party to the extent that the action is based upon a claim that the Solution infringes any United States copyright or misappropriates any trade secret rights and Carbon Title will pay those costs and damages finally awarded against Member in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. Member will defend at its own expense any action against Carbon Title brought by a third-party to the extent that the action is based upon a claim that (i) any Member Data infringes any United States copyright or misappropriates any trade secret rights or (ii) Member has violated the Member Policies, breached this Agreement or otherwise failed to comply with applicable law and Member will pay those costs and damages finally awarded against Carbon Title in any such action, that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. The foregoing obligations are conditioned on the indemnified party notifying the indemnifying party promptly in writing of such action, the indemnified party giving the indemnifying party sole control of the defense thereof and any related settlement negotiations, and the indemnified party cooperating and, at the indemnifying party’s reasonable request and expense, assisting in such defense. If the Solution (or any component thereof) becomes, or in Carbon Title’s opinion is likely to become, the subject of an infringement claim, Carbon Title may, at its option and expense, either (a) procure for Member the right to continue exercising the rights licensed to Member in this Agreement, or (b) replace or modify the Solution so that it becomes non-infringing and remains functionally equivalent. If neither of the foregoing options are, in Carbon Title’s reasonable opinion, commercially reasonable, Carbon Title may terminate this Agreement and will refund to Member a pro-rata portion of any applicable prepaid Fees. Notwithstanding the foregoing, Carbon Title will have no obligation under this Section 10.1 or otherwise with respect to any infringement claim based upon (i) third-
party components (including in combination or as integrated with the Solution) not provided by Carbon Title; or (ii) unauthorized use or use of the Solution other than in accordance with the Documentation. This Section 10.1 states Carbon Title’s entire liability and Member’s sole and exclusive remedy for infringement claims and actions.
10.2Limitation of Liability. IN NO EVENT SHALL CARBON TITLE BE LIABLE TO MEMBER OR TO ANY THIRD- PARTY, WHETHER UNDER THEORY OF CONTRACT, TORT OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR SPECIAL DAMAGES (INCLUDING ANY DAMAGE TO BUSINESS REPUTATION, LOST PROFITS OR LOST DATA), WHETHER FORESEEABLE OR NOT AND WHETHER OR NOT CARBON TITLE IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, CARBON TITLE’S AGGREGATE CUMULATIVE LIABILITY TO MEMBER, IN CONNECTION WITH THIS AGREEMENT, INCLUDING THE SOLUTION, HOSTED SERVICE, CREDITS AND INTELLECTUAL PROPERTY PROVIDED HEREUNDER SHALL NOT EXCEED, IN THE AGGREGATE AND REGARDLESS OF WHETHER UNDER THEORY OF CONTRACT, TORT OR OTHERWISE, THE TOTAL OF THE FEES ACTUALLY PAID AND THE FEES PAYABLE TO CARBON TITLE BY MEMBER UNDER THIS AGREEMENT DURING THE ONE (1) YEAR PERIOD PRIOR TO THE DATE THAT SUCH LIABILITY FIRST ARISES.
During the term of this Agreement, unless otherwise set forth in the applicable Order Form, Member hereby agrees that Carbon Title shall have the right, but not the obligation, to include Member’s name and logo as a customer who uses the Solution on the Carbon Title website and in other materials promoting the Solution.
12. Injunctive Relief
The parties acknowledge that the Solution and each party’s Confidential Information are unique property, and the unauthorized use thereof will cause the injured party irreparable harm that may not be adequately compensated by monetary damages. Accordingly, the parties agree that the injured party will, in addition to other remedies available to it at law or in equity, be entitled to seek injunctive relief to enforce the terms of this Agreement, including to prevent any actual or threatened unauthorized use or sublicensing of each party’s Confidential Information, the Solution, or any information or data contained therein.
The parties are independent contractors with respect to each other, and nothing in this Agreement shall be construed as creating an employer- employee relationship, a partnership, agency relationship or a joint venture between the parties. Each party will be excused from any delay or failure in performance hereunder, other than the payment of money, caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to acts of God, earthquake, labor disputes and strikes, riots, war and governmental requirements. The obligations and rights of the party so excused will be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay. This Agreement controls the actions of all party representatives, officers, agents, employees and associated individuals. The terms of this Agreement shall be binding on the parties, and all successors to the foregoing. Neither party will assign, transfer or delegate its rights or obligations under this Agreement (in whole or in part) without the other party’s prior written consent except pursuant to a transfer of all or substantially all of such party’s business and assets, whether by merger, sale of assets, sale of stock, or otherwise. Any attempted assignment, transfer or delegation in violation of the foregoing shall be null and void. All modifications to or waivers of any terms of this Agreement must be in a writing that is signed by the parties hereto and expressly references this Agreement. This Agreement shall be governed by the laws of the State of Oregon, without regard to Oregon conflict of laws rules. The exclusive venue and jurisdiction for any and all disputes, claims and controversies arising from or relating to this Agreement shall be the state or federal courts located in Multnomah County, Oregon. Each party waives any objection (on the grounds of lack of jurisdiction, forum non conveniens or otherwise) to the exercise of such jurisdiction over it by any such courts. The prevailing party shall be entitled to recover reasonable attorney’s fees and other costs from the other party. These fees and other costs are in addition to any other relief to which the prevailing party may be entitled. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the interpretation or enforcement of this Agreement. In the event that any provision of this Agreement conflicts with governing law or if any provision is held to be null, void or otherwise ineffective or invalid by a court of competent jurisdiction, (a) such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and (b) the remaining terms, provisions, covenants and restrictions of this Agreement shall
remain in full force and effect. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. This Agreement includes any Order Forms agreed to by the parties in writing and all expressly referenced documents. Collectively the foregoing constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements or communications, including, without limitation, any quotations or proposals submitted by Carbon Title. The terms of any purchase order or similar document submitted by Member to Carbon Title will have no effect and are hereby rejected. All notices, consents and approvals under this Agreement must be delivered in writing by courier, by facsimile, or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at the address set forth within the applicable Order Form.ELECTRONIC DOCUMENTS; EXECUTION. This Agreement and any Order Form may be signed may be executed in any number of counterparts (including by DocuSign or other electronic signature technology) and may be transmitted by email, or other similar means, which shall be deemed valid by each party and all of which together shall evidence the same Agreement. Carbon Title may in its discretion convert any documentation used to effectuate the transactions contemplated herein, including the schedules, to electronic form for use on an internet-based platform.