This Customer Terms of Service Agreement (“Agreement”) applies to Customers of Your Arbor Inc. (“Arbor”) who are registered for a Starter or Growth subscription plan and who have not executed, directly through an Arbor sales representative, a software as a service agreement, customer terms of service agreement, or other similar agreement that is intended to govern the Customer’s access to and use of the Services. This Agreement is made between Arbor and the Customer, governs the Customer’s access to and use of the Services, and is effective as of the Effective Date.
Arbor has developed and hosts the Arbor “software as a service” solution that is designed to (a) analyze the environmental impact of the Customer’s products; (b) provide an assessment regarding the sustainability of the Customer’s products against certain sustainability benchmarks (the “Measure Services”); and (🇨) showcase the sustainability of the Customer's products to their consumers on the Customer Channels (the “Showcase Services”, and together with the Measure Services, the “Services”).
The Customer may accept this Agreement by (a) clicking a box where indicated on Arbor’s website: http://www.arbor.eco (the “Website”) at the time of registration indicating the Customer’s acceptance of this Agreement; or (b) executing an Order Form referencing this Agreement. Individuals may accept this Agreement in their personal capacity or on behalf of a corporation or other legal entity. If the individual accepting this Agreement is accepting on behalf of a company or other legal entity, such individual represents that they have the authority to bind such entity to this Agreement, in which case the term “Customer” will refer to such entity. If the individual accepting this Agreement does not have such authority or does not agree with the terms and conditions set forth in this Agreement, such individual must not accept this Agreement and may not access or use the Services.
The Customer is to access and use the Services solely in accordance with the terms and conditions set forth in this Agreement. The Customer is responsible for ensuring that all Authorized Users agree to accept Arbor’s User Terms of Service (the “User Terms”) available here: https://www.arbor.eco/legal/terms-of-service, and only access and use the Services in strict accordance with the terms and conditions set forth in the User Terms.
“Arbor Data” means all data (including De-Identified Data but excluding Customer Data), analytics, reports, or know-how, or other information related to the Services.
“Arbor Property” means the Services, Documentation, Performance Data, Content, and Arbor Systems.
“Arbor Systems” means the information technology infrastructure used by or on behalf of Arbor in hosting, performing, or providing the Services, including all computers, software, code, hardware, databases, electronic systems (including, database management systems), and networks, whether operated directly by Arbor or through the use of third-party services.
“Authorized User” means an employee, consultant, or contractor of the Customer who is provided with access to and or use of the Services by the Customer in connection with this Agreement and any Order Form (if applicable).
“Content” means information and content obtained by Arbor from publicly available sources or its third party content providers and that is made available to the Customer through the Services, as well as Sustainability Data, as more fully described in the Documentation.
“Customer” means in the case of an individual accepting this Agreement on their own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement.
“Customer Channels” means the websites or other, similar, digital platforms that are owned or controlled by the Customer and its affiliates where the Customer intends to reference the Sustainability Data provided by Arbor through the Services.
“Customer Data” means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of the Customer or an Authorized User to Arbor, including on or through the Services, excluding Content and including information and analytics collected by the Customer on its Customer Channels. For clarity, Customer Data includes Personal Information of the Customer and Authorized Users.
“Documentation” means any manuals, instructions or other documents or materials that Arbor provides or makes available to the Customer that describe the functionality, components, features, or requirements of the Services, including any aspect of the configuration, integration, operation, use, support or maintenance thereof.
“Effective Date” means the date that the Customer registered for an account on the Website and accepted this Agreement, or the date as defined in the Order Form, as applicable.
“Free Trial” means a limited period of time that Arbor may elect to provide the Customer select Services free of charge, in Arbor’s sole discretion.
“Free Subscription” means a type of subscription where the Customer is able to access select, limited Services that Arbor may make available, free of charge, as may be further outlined on the Website or within the Services. For clarity, the Starter subscription plan is a Free Subscription.
“Harmful Code” means any software, code, files, scripts, agents, or programs, including any virus, trojan horse, worm, time bomb, malware, or other malicious code, that would cause any software or code to be, without specific user instruction, duplicated, erased, altered, rendered inoperable or otherwise incapable of being used, or otherwise limit or restrict a user’s ability to use the software after a specific or random number of uses, period of time or after the lapse or occurrence of any similar triggering prompt.
“Order Form” means a written or electronic ordering document or order form that (a) makes reference to this Agreement and (b) specifies the nature of the Customer’s and Authorized Users’ access to and use of any Purchased Services, Services, Content, or Documentation, including any addenda and supplements thereto.
“Performance Data” means data and information related to the Customer’s and Authorized Users’ access to and use of the Services that is collected or used by Arbor in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision, performance, and operation of the Arbor Property and Arbor Systems.
“Personal Information” means any information about an individual person or that identifies or can be used to identify, locate, or contact an individual person.
“Purchased Services” means Services that the Customer purchases from Arbor through an online paid subscription, or under an Order Form.
“Sustainability Data” means the data, reports, and information that are authored, created, and developed through the Customer’s use of the Services regarding the sustainability of the Customer’s products.
“Third Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components of or relating to the Services that are not proprietary to Arbor.
Unless otherwise provided in the Order Form (as may be applicable) or Documentation, access to and use of the Purchased Services and Content are purchased as subscriptions for the Subscription Term. The Customer agrees that its purchase(s) are not contingent on the delivery of any future functionality or features of the Services or the Content, or dependent upon any oral or written public comments made by Arbor, its affiliates, or their respective representatives regarding the future functionality or features of the Services or the Content.
During the Subscription Term, Arbor will make the Purchased Services, related Documentation, and the Content available to the Customer for the Customer’s and Authorized Users’ access and use in connection with the Customer’s internal business operations, subject to and in accordance with the terms and conditions of this Agreement and the Order Form (as applicable).
Arbor will provide the Customer with access credentials for the Customer to access and use the Services (the “Credentials”). The Customer will be solely responsible for ensuring that (a) the Customer complies with the terms and conditions of this Agreement, Order Form and the Documentation (as applicable); (b) the Authorized Users comply with the terms and conditions set forth in the User Terms; (🇨) the Customer and the Authorized Users do not disclose the Credentials to any third party; (d) the Customer and the Authorized Users do not permit any third party to use their respective Credentials to access or use the Services; (e) the Customer and the Authorized Users provide accurate, complete, and lawful Customer Data; (f) the Customer and the Authorized Users use commercially reasonable efforts to prevent unauthorized access to or use of Arbor Property.
Arbor reserves the right to deny or revoke access to or use of the Services, in whole or in part, if Arbor believes the Customer is in breach of this Agreement or that the Customer or any Authorized User is using or accessing the Services in a manner that is inconsistent with the terms and conditions of this Agreement or the User Terms, respectively.
Arbor reserves the right, in its sole discretion, to make any changes to Arbor Property that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of the Services, or (ii) the efficiency or performance of the Services; or (b) to comply with applicable laws.
The Customer acknowledges and agrees that any data or information that the Customer or any Authorized User provides on or through a Free Subscription or during a Free Trial, and any customizations made to the Services, by or for the Customer or any Authorized User during the Free Trial, or under a Free Subscription, may be permanently deleted unless the Customer purchases a paid subscription to the Services. While using the Free Subscription and during the Free Trial, the Services and Content are provided “as-is” without any warranty and Arbor will have no indemnification obligations nor liability of any type with respect to the Services or the Content provided. Without limiting the foregoing, Arbor, its affiliates, and licensors do not represent, warrant, or covenant to the Customer that: (i) the Customer’s use of the Services or Content during the Free Trial, or under a Free Subscription, will be uninterrupted, timely, secure, or free from error; (ii) the Customer’s use of the Services or Content during the Free Trial, or under a Free Subscription, will meet the Customer’s requirements or the requirements or specifications set forth in any Documentation; (iii) there will be any additional future functionality or features made available during a Free Trial or under a Free Subscription; or (iv) the Services or Content provided during the Free Trial or under a Free Subscription, will be accurate or complete. The Customer shall be fully liable under this Agreement to Arbor and its affiliates for any damages arising out of the Customer’s and Authorized Users’ use of the Services or Content during the Free Trial or under a Free Subscription, any breach by the Customer of this Agreement, and any of the Customer’s indemnification obligations under this Agreement.
If the Customer registers for a Free Trial, Arbor will make the applicable Services available to the Customer on a trial basis free of charge until the earlier of (a) the end of the Free Trial for which the Customer registered to use the applicable Services, (b) the start date of any subscriptions for any Purchased Services, or (🇨) termination by Arbor of the Free Trial, as determined in Arbor’s sole discretion.
The Customer agrees, on its own behalf and on behalf of all Authorized Users, that the Customer and each Authorized User will not:
(a) provide, disclose, divulge, or make available to, or permit use of Arbor Property by, any third party;
(b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Arbor Property to any third party, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service;
(🇨) copy, modify, or create derivative works or improvements of or based on Arbor Property;
(d) interfere, or attempt to interfere, with Arbor Property in any way, including to reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of Arbor Property, in whole or in part;
(e) engage in spamming, mailbombing, spoofing or any other fraudulent, illegal, or unauthorized use of Arbor Property;
(f) engage in or allow any action involving Arbor Property that is inconsistent with the terms and conditions of this Agreement;
(g) bypass or breach any security device, or protection used by or in connection with Arbor Property, including in connection with the access or use of the Services or Arbor Property;
(h) input, upload, transmit, or otherwise provide to or through Arbor Property any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code;
(i) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner Arbor Property, including Arbor’s provision of the Services to any third party, in whole or in part;
(j) remove, delete, alter, or obscure any warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Arbor Property;
(k) access or use Arbor Property in any manner or for any purpose that (i) infringes, misappropriates, or otherwise violates the intellectual property or other rights of Arbor or any third party, or (ii) violates any applicable law;
(l) access or use Arbor Property for purposes of competitive analysis of Arbor Property, the development, provision or use of a competing software service or product, or any other purpose that is to Arbor’s detriment or commercial disadvantage; or
(m) otherwise access or use Arbor Property beyond the scope of the authorizations granted under this Agreement.
Engaging in prohibited conduct constitutes a breach of this Agreement and may subject you to civil liability or criminal prosecution under applicable laws. Arbor reserves the right to investigate and/or terminate the Customer’s account, without a refund of any purchases or settlement of any outstanding accounts, if you have violated this Agreement, misused the Services, Arbor Property, or Content, or acted in a manner that Arbor considers as inappropriate or unlawful.
The Customer agrees, on its behalf and on behalf of its Authorized Users, to abide by the rules and restrictions set in place by Arbor with regard to the use of the Showcase Services on the Customer Channels (“Showcase Guidelines”). Engaging in conduct contrary to the Showcase Guidelines constitutes a breach of this Agreement. Arbor reserves the right to investigate and/or terminate the Customer’s account, without a refund of any purchases or settlement of any outstanding accounts, if the Customer or any Authorized User has violated the Showcase Guidelines.
If the Customer becomes aware of any actual or threatened activity prohibited by this Agreement, the Customer shall, and shall cause any relevant Authorized User to, immediately: (a) take all commercially reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to Arbor Property and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) promptly notify Arbor of any such actual or threatened activity.
The Customer shall pay to Arbor all applicable fees related to the use of the Purchased Services, as may be described on the Services interface “check-out” page, or as set out in the Order Form, as applicable (the “Fees”), in accordance with the terms and conditions of this Agreement.
By providing a payment method, the Customer expressly authorizes Arbor to charge the applicable fees for the subscription and Purchased Services. Arbor will automatically charge the Customer’s provided payment method in the amount of the then-current Fees for the Purchased Services, in accordance with the payment schedule set forth on the Services interface “check-out” page, or in the Order Form, as applicable. The Fees are non-refundable and non-returnable. The Customer’s payment obligations under any Order Form [or Services interface “check-out” page are non-cancelable, unless otherwise agreed by the parties.
For clarity, in the event the Customer downgrades any subscriptions from Purchased Services to a Free Subscription, or from a higher cost subscription level to a lesser cost subscription level, the Customer will remain responsible for any unpaid Fees under the paid or higher cost subscription, and Services under the paid or higher cost subscription will be deemed fully performed and delivered, upon expiration of the then-current Subscription Term or if terminated earlier in accordance with this Agreement, at the end of the notice period.
Arbor may increase the Fees payable for the Purchased Services by providing the Customer with not less than 30 days prior written notice (the 30th day of such 30-day notice period being hereinafter referred to as the “Adjustment Date”). Such increased pricing shall be deemed to be accepted by the Customer unless, prior to the Adjustment Date, the Customer provides written notice to Arbor that the Customer does not accept such increased pricing, whereupon Arbor may elect to terminate this Agreement on or after the Adjustment Date.
The Customer shall be solely responsible for paying all HST, goods and services tax, provincial sales tax, service, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, provincial, or territorial governmental or regulatory authority on any amounts payable by the Customer for the Purchased Services, other than any taxes imposed on Arbor’s income (collectively, “Taxes”).
If any invoiced amount (including any Fees) is not received by Arbor by the due date, then without limiting Arbor’s rights or remedies: (a) those charges may accrue late interest at the rate of 2% of the outstanding balance per month, or (b) the maximum rate permitted by law, whichever is lower.
If any charge owing by the Customer under this Agreement or any Order Form, as applicable, is more than 15 days overdue, then Arbor, without limiting its other rights and remedies, may suspend the Services, or may downgrade any Purchased Services to Free Subscriptions until such amounts are paid in full. Where Arbor plans to downgrade a subscription, Arbor will provide the Customer at least ten (10) days’ prior notice. The Customer acknowledges and agrees that a downgrade may result in a decrease in certain features and functionality and potential loss of access to Customer Data.
All amounts payable to Arbor under this Agreement shall be paid by the Customer to Arbor in full without any set-off, recoupment, counterclaim, deduction, debit, or withholding for any reason.
The Customer acknowledges and agrees that, subject to the limited rights expressly granted to the Customer under this Agreement, as between the Customer and Arbor, Arbor, its affiliates, and licensors reserve all right, title, and interest in and to Arbor Property, including all intellectual property and intellectual property rights in and to Arbor Property. No rights are granted to the Customer or any Authorized User other than as expressly set forth in this Agreement.
Arbor hereby grants the Customer a limited, non-exclusive, non-transferable, non-sublicensable right to reproduce and display the Sustainability Data on the Customer Channels during the Subscription Term in the manner mutually agreed by the Customer and Arbor. The Customer acknowledges and agrees that the Customer shall not sell, license, lease, rent, distribute, make available, disseminate, transmit, or otherwise exploit the Sustainability Data without the prior written approval of Arbor in each case. No rights to the Sustainability Data are granted to the Customer or any Authorized User other than as expressly set forth in this Agreement.
Arbor acknowledges and agrees that, as between Arbor and the Customer, the Customer is the owner of the Customer Data. The Customer grants to Arbor, its affiliates, and their respective licensees, successors, and assigns, a worldwide non-exclusive, royalty-free, fully paid up, irrevocable, transferable and sublicensable license and right to use such Customer Data, including the right to collect, host, copy, use, transmit and process any Customer Data, as necessary for Arbor to provide and ensure the proper provision of the Services and Deliverables in accordance with this Agreement.
The Customer acknowledges and agrees that the foregoing license granted to Arbor includes the right to de-identify, aggregate, or anonymize the Customer Data (collectively, the “De-Identified Data”). It is understood and agreed that such De-Identified Data, including datasets created by Arbor or on behalf of Arbor by aggregating de-identified data or anonymized data with data obtained from other sources shall be the sole and exclusive property of Arbor.
The Customer acknowledges and agrees that all data (including, De-Identified Data and excluding Customer Data), performance metrics, analytics, reports, know-how, or other information related to the functionality or performance of the Services (collectively, the “Arbor Data”), regardless of how, when, or by whom they are created, are, will be, and will remain the sole and exclusive property of Arbor. The Customer acknowledges and agrees that Arbor Data is an original compilation protected by copyright law, Arbor has dedicated substantial resources to collect, manage, and compile Arbor Data, and Arbor Data constitute trade secrets of Arbor. All rights in and to Arbor Data, and the intellectual property in and related to Arbor Data, are expressly reserved by Arbor.
The Customer acknowledges and agrees that if it provides to Arbor any suggestion, enhancement, request, recommendation, correction, or other feedback relating to Arbor Property or the business, products, or services of Arbor or its affiliates (collectively, "Customer Feedback”), then Customer hereby assigns to Arbor all of its rights, titles and interests in and to such Customer Feedback as of the moment of its transmission, creation or development.
The Customer acknowledges and agrees that to create the Sustainability Data Arbor relies on (a) the Customer Data to analyze the Customer’s performance against benchmarks for materials, energy, and transportation environmental footprints; and (b) a variety of Third Party Materials, including third party data sources, including corporate filings, certifications, factory reports, product material composition, environmental and social violations data, and environmental, social and governance criteria, third party data or information relating to the Customer’s products or services, and open source code to calculate sustainability benchmarks. The Customer hereby confirms that the Customer consents to Arbor’s collection, use, reproduction, transmission, modification, adaptation, translation, compilation, and other exploitation of the Customer Data and the Third Party Materials in connection with Arbor’s performance of its obligations under this Agreement, including the provision of the Services and creation of the Sustainability Data.
The Customer acknowledges and agrees that Arbor is not responsible for any errors in Customer Data or inaccuracies in any Third Party Materials used to calculate and produce any sustainability benchmark analysis or the Sustainability Data. Arbor shall be not be responsible or liable under this Agreement to the Customer or any third parties for any losses, liabilities, fines, penalties, judgments, damages, costs, or expenses arising out of or relating to (i) the Customer’s use, reproduction, display, exploitation, or reliance upon the Sustainability Data; (ii) any inaccurate, incomplete, or erroneous Customer Data or Third Party Materials; or (iii) any representations, warranties, or other statements made by the Customer about the Customer’s products or services on the basis of the results produced by the Services, including, the Sustainability Data.
Each party (as the “Receiving Party”) acknowledges that it may acquire knowledge or information which is the valuable, special or unique property of the other party (the “Disclosing Party”) and treated as confidential, including, intellectual property, knowledge, know-how, research and data, processes, formulas, development or experimental work, work-in-process, processes, trade secrets, or any other secret or confidential matter relating to the activities, services, advertising, marketing, research, programs, customer lists, financial information, and product information or any other information or material or business of the Disclosing Party or of firms, organizations or persons for whom services are performed by the Disclosing Party (collectively, “Confidential Information”).
Notwithstanding section 6.1, “Confidential Information” does not include information that (a) enters the public domain and becomes generally available to the public other than as a result of direct or indirect disclosure by the Receiving Party or any affiliate of the Receiving Party (including, disclosure as a result of a violation of the terms of this Agreement by the Receiving Party or any affiliate of the Receiving Party); (b) is generally known to the public on the Effective Date or at the time of the disclosure of such information by the Disclosing Party to the Receiving Party or later becomes generally known to the public, in either case other than as a result of disclosure in violation of the terms of this Agreement by the Receiving Party or any affiliate of the Receiving Party after the Effective Date; (🇨) was developed by the Receiving Party independent of any disclosure by the Disclosing Party or was available to the Receiving Party on a non-confidential basis prior to its disclosure to the Receiving Party by the Disclosing Party; or (d) is available to the Receiving Party on a non-confidential basis prior to disclosure by the Disclosing Party or becomes available to the Receiving Party on a non-confidential basis from a person other than the Disclosing Party provided that such person is not then in violation of a confidentiality obligation owed to the Disclosing Party of which the Receiving Party is aware.
The Receiving Party shall (a) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (b) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (🇨) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s representatives and employees who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.
If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, notify the Disclosing Party of such requirements to afford the Disclosing Party the opportunity to seek, at the Disclosing Party’s sole cost and expense, a protective order or other remedy.
The expiration or termination of this Agreement shall not affect the rights and obligations with respect to Confidential Information disclosed hereunder, which shall survive the expiration or termination of this Agreement.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ARBOR DOES NOT MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AND ARBOR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. ALL SERVICES, THE WEBSITE, CONTENT, DOCUMENTATION, AND OTHER ARBOR PROPERTY ARE PROVIDED “AS-IS” AND AS AVAILABLE, EXCLUSIVE OF ANY WARRANTY WHATSOEVER. FOR CLARITY, AND WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ARBOR MAKES NO WARRANTY OF ANY KIND THAT ARBOR PROPERTY, OR ANY PRODUCTS, SERVICES, WEBSITE, OR RESULTS OF THE USE THEREOF, WILL MEET THE CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, BE ENTIRELY ACCURATE OR COMPLETE, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE.
ARBOR MAKES NO REPRESENTATIONS, WARRANTIES, COVENANTS, OR GUARANTEES OF ANY NATURE OR KIND WHATSOEVER WITH RESPECT TO THE THIRD PARTY MATERIALS. THE CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SUSTAINABILITY DATA AND OTHER CONTENT MAY CONTAIN CUSTOMER DATA OR THIRD PARTY MATERIALS. THE CUSTOMER’S USE OF THE SUSTAINABILITY DATA OR OTHER CONTENT IS AT THE CUSTOMER’S OWN RISK. THE CUSTOMER IS RESPONSIBLE AND LIABLE FOR VERIFYING ALL CUSTOMER DATA IS ACCURATE AND COMPLETE.
IN NO EVENT WILL ARBOR BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR RELATED TO THIS AGREEMENT (INCLUDING LOSS OF PROFITS, USE, DATA, OR OTHER ECONOMIC ADVANTAGE), HOWSOEVER ARISING, EITHER OUT OF A BREACH OF THIS AGREEMENT (INCLUDING BREACH OF WARRANTY), NEGLIGENCE, STRICT LIABILITY, TORT, OR ANY OTHER THEORY OF LIABILITY, EVEN IF ARBOR HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
ARBOR’S LIABILITY FOR DIRECT DAMAGES ARISING UNDER THIS AGREEMENT WILL BE LIMITED TO THE TOTAL FEES ACTUALLY PAID BY THE CUSTOMER FOR THE PURCHASED SERVICES UNDER THE APPLICABLE ORDER FORM PURSUANT TO WHICH THE LIABILITY AROSE DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FROM WHICH THE DAMAGES ARISE.
The Customer will indemnify, defend, and hold harmless Arbor, its affiliates, and their respective directors, officers, shareholders, employees, staff, representatives, agents, licensors, licensees, successors, and assigns (the “Arbor Parties”) from and against any and all claims, demands, damages, judgments, penalties, fines, costs, and expenses, including legal fees, and disbursements, incurred by Arbor Parties, relating to, arising from, or in connection with a third party claim, demand, action, or proceeding arising out of (a) an allegation that the Customer Data or the use of the Customer Data with the Services infringes, misappropriates, or otherwise violates any third party’s rights or is otherwise unlawful; (b) the Customer’s breach of this Agreement or the Order Form, including, any representation, warranty, covenant, or obligation therein; (🇨) an Authorized User’s breach of the User Terms, including any representation, warranty, covenant, or obligation therein; (d) the gross negligence, negligence, or willful misconduct of the Customer or any Authorized User; (e) the Customer’s use or any Authorized User’s use of Arbor Property in a manner that is not authorized by this Agreement, the Order Form, or the User Terms; (f) the Customer’s use or any Authorized User’s use of Arbor Property in combination with data, software, hardware, equipment or technology not provided by Arbor or authorized by Arbor in writing; or (g) any modifications made by the Customer or any Authorized User to the Services or to any other Arbor Property that have not been authorized by Arbor in writing.
This Agreement will commence on the Effective Date and will continue: (1) in the case of a Free Subscription, indefinitely, or (2) in the case of Purchased Services, for the period as set forth in either the Order Form or on the Services interface “check-out” page (the “Initial Subscription Period”), unless or until earlier terminated in accordance with the terms and conditions of this Agreement.
Upon the expiration of the Initial Subscription Period, this Agreement will automatically renew (without the need to go through another “check-out” interface in the Services, or execute a renewal Order Form, as applicable) for additional and consecutive subscription periods (each, a “Renewal Subscription Period” and together with the Initial Subscription Period, the “Subscription Term”), unless the Customer or Arbor provides written notice of non-renewal to the other party not less than 60 days before the expiration of the Initial Subscription Period or then-current Renewal Subscription Period. The Renewal Subscription Period will be equal to 1 (one) year or the same duration as the Initial Subscription Period or prior Renewal Subscription Period, as applicable, whichever is shorter, unless otherwise agreed by the Customer and Arbor in writing.
Arbor may terminate or suspend this Agreement, effective upon written notice to the Customer, if the Customer fails to pay any amount when due under this Agreement or, as applicable, the Order Form, and such failure continues for a period of 10 days after Arbor provides the Customer with written notice of such default.
Either party (as the “Non-Defaulting Party”) may terminate or suspend this Agreement effective on written notice to the other party (the “Defaulting Party”), if the Defaulting Party (a) breaches this Agreement and fails to cure such breach within 15 days of receiving written notice of the breach from the Non-Defaulting Party; or (b) becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.
Upon termination or expiration of this Agreement, the Customer shall, and shall cause all Authorized Users to, immediately discontinue use of Arbor Property, and without limiting the Customer’s obligations under section 6, delete, destroy, or return all copies of Arbor Property and Arbor’s Confidential Information, as directed by Arbor. No expiration or termination of this Agreement will affect the Customer’s obligations to pay all amounts that are or may become due under this Agreement or, as applicable, any Order Form. Arbor will delete all Customer Data in its possession or control. Arbor will retain all Arbor Data, Sustainability Data, and De-Identified Data.
Each party represents and warrants to the other party that: (a) it has all required power and capacity to enter into this Agreement, to grant the rights and licenses granted under this Agreement, and to perform its obligations under this Agreement; and (b) when executed and delivered by each of the parties, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
The Customer represents, warrants, and covenants to Arbor, on its own behalf and on behalf of all Authorized Users, that (a) the Customer and the Authorized Users own or otherwise have the necessary rights, permissions, waivers, and consents in and relating to the Customer Data required for Arbor to use, process, and otherwise exploit the Customer Data for the purpose of providing the Services and performing its obligations under this Agreement; and (b) Arbor’s use, processing, or other exploitation of the Customer Data as authorized under this Agreement will not infringe, misappropriate, or otherwise violate the rights of any third party or breach any applicable law.
The User Terms and each Order Form, as applicable, is incorporated into this Agreement by reference and forms part of this Agreement. In the event of any conflict or inconsistency between the statements made in the body of this Agreement, any Order Form, the User Terms, and any other documents incorporated into or referred to in this Agreement, the following order of precedence governs: (a) this Agreement; (b) the User Terms; (🇨) the Order Form (if applicable); and (d) any other documents, schedules, or exhibits.
In no event shall either party be liable to the other party, or be deemed to have breached this Agreement or any Order Form, as applicable, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such party’s reasonable control, including but not limited to acts of God, epidemics, pandemics, including the 2019 novel coronavirus (“COVID-19”) pandemic, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labour stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
A party whose performance is affected by an event of force majeure (the “Affected Party”) shall give notice to the other party (the “Non-Affected Party”) stating the period of time that the occurrence is expected to continue. The Affected Party shall use diligent efforts to minimize the impact of the force majeure event. If the force majeure event persists for more than 30 days, the Non-Affected Party may terminate this Agreement by providing the Affected Party with written notice of termination.
The Customer may not assign or transfer this Agreement or any of the Customer’s rights or obligations under this Agreement without the prior written consent of Arbor. Arbor may assign this Agreement or any of its rights or obligations hereunder.
The Customer grants the right for Arbor to (i) include the Customer in any client or subscriber list; and (ii) use the Customer’s name, logo and/or trademarks for marketing and promotional purposes on Arbor’s websites, and in other public or private communications with Arbor’s existing or potential customers, subject to any Customer’s standard trademark use guidelines provided to Arbor from time to time.
Any notice, certificate, consent, determination, or other communication required or permitted to be given or made under this Agreement shall be in writing and shall be effectively given and made if (a) delivered personally; or (b) sent by means of electronic communication, in each case to the applicable address set out below:
If to Arbor:
Your Arbor Inc.
support@arbor.eco
If to the Customer:
To the email address for the Customer that was provided upon registering online for an account.
The Customer agrees that it is responsible for, and must, keep its billing and contact information current at all times by notifying Arbor immediately of any changes.
This Agreement and all related documents, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute, are governed by, and construed in accordance with, the laws of the Province of Alberta and the federal laws of Canada applicable therein, without giving effect to any choice or conflict of law provision or rule (whether of the Province of Alberta or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the Province of Alberta.
The provincial and federal courts located in Calgary, Alberta will have exclusive jurisdiction over any dispute relating to this Agreement, and each party consents to the exclusive jurisdiction of those courts.
The Customer acknowledges and agrees, on its own behalf and on behalf of all Authorized Users, that any unauthorized use, disclosure, or other exploitation of Arbor Property or Arbor’s Confidential Information by the Customer or any Authorized User will cause Arbor irreparable harm and that monetary damages would not be a sufficient remedy for Arbor’s or any Authorized User’s breach or threatened breach of their obligations with respect to the access to and use of Arbor Property. The Customer further acknowledges and agrees, on its own behalf and on behalf of all Authorized Users, that Arbor will be entitled to seek injunctive or other equitable relief as a remedy for any such breach or threatened breach without the requirement for the securing of or posting of any bond or other security by Arbor.
All obligations which expressly or by their nature survive termination or expiration of this Agreement shall continue in full force and effect subsequently to and notwithstanding such termination or expiration until or unless they are satisfied, or they are waived in writing by the party entitled to the benefit thereof.
This Agreement sets forth the entire agreement of the parties as to its subject matter and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. This Agreement may be amended, modified, or supplemented by Arbor at any time upon prior written notice to the Customer. Arbor will provide the Customer with written notice of any such amendment, modification, or supplement to this Agreement (the “Notification”) and the Customer will have 14 days from the Customer’s receipt of the Notification to (a) accept the amended, modified, supplemented Agreement; or (b) terminate the Agreement by providing written notice to Arbor. If the Customer fails to respond to the Notification prior to the expiry of the 14-day period, the Customer will be deemed to have accepted the amended, modified, or supplemented version of the Agreement. No amendment to this Agreement by the Customer will be effective unless such amendment is accepted by Arbor in writing.
Neither failure nor delay on the part of Arbor to exercise any right, remedy, power or privilege provided for herein or by statute or by law, or in equity or otherwise in respect of a breach of this Agreement by the Customer shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, remedy, power or privilege preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
This Agreement may be executed and delivered by the parties in one or more counterparts, each of which will be an original, and each of which may be delivered by facsimile, e-mail or other functionally equivalent electronic means of transmission and those counterparts will together constitute one and the same instrument. Counterparts may be executed either in original or electronic form and the parties adopt any signatures received by electronic transmission, as original signatures of the parties.
The relationship between the parties are that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between such parties, and none of such parties shall have authority to bind the other party in any manner whatsoever.
The Customer acknowledges that, by entering into this Agreement, the Customer has had the opportunity to obtain independent legal advice with respect to entering into this Agreement, that the Customer has obtained such independent legal advice or has expressly deemed not to seek such advice, and that the Customer is entering into this Agreement with full knowledge of the contents hereof, of the Customer’s own free will and with full capacity and authority to do so.
