Terms and Conditions — Green Economy Canada
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Form of Terms of Use
Last Updated: Feb 21, 2025 These Terms of Use (as amended from time to time, the “Agreement”) form an agreement between Green Economy Canada (“GEC”), Carbonhound, Inc. (“Carbonhound”), Green Economy Hub and Member (all references to “Member” hereinafter shall be to Member and Green Economy Hub, as applicable). GEC, Carbonhound and Member are each a “Party” and, together, the “Parties”.
By accessing and using the Carbonhound carbon management application hosted by Carbonhound and delivered as a software-as-a-service (the “Services”), Member and any Permitted User agree to be bound by this Agreement. This Agreement is effective on the earlier of (i) the date Member first uses any part of the Services and (ii) the date Member agrees to be bound by this Agreement (the “Effective Date”).
This Agreement sets forth the terms of use that govern the provision and use of the Services.
BY USING THE SERVICES, MEMBER ACKNOWLEDGES THAT MEMBER HAS READ, ACCEPTS AND AGREES TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, AS AMENDED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 10(m). IF MEMBER DOES NOT ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT, MEMBER WILL IMMEDIATELY CEASE ANY FURTHER USE OF THE SERVICES. MEMBER REPRESENTS AND WARRANTS TO CARBONHOUND AND GEC THAT MEMBER HAS THE CAPACITY TO ENTER INTO THIS LEGALLY BINDING AGREEMENT. IF MEMBER IS USING THE SERVICES ON BEHALF OF ANOTHER PERSON, MEMBER HEREBY REPRESENTS AND WARRANTS TO CARBONHOUND AND GEC THAT MEMBER HAS THE AUTHORITY TO BIND SUCH PERSON TO THIS AGREEMENT.
THE SERVICES MAY NOT BE ACCESSED BY MEMBER FOR PURPOSES OF MONITORING CARBONHOUND AVAILABILITY, PERFORMANCE OR FUNCTIONALITY, OR FOR ANY OTHER COMPETITIVE PRACTICES OR PURPOSES.
1. Definitions
(a) “Aggregated Data” has the meaning in Section 3(b)(i)(C).
(b) “Agreement” has the meaning in the preamble.
(c) “Amendment” has the meaning set out in Section 10(m).
(d) “Applicable Laws” means applicable statutes, by-laws, rules, regulations, orders, ordinances or judgments, in each case of any Governmental or Regulatory Authority.
(e) “Carbonhound Application” means Carbonhound’s mobile application product, and any updates provided as part of the Carbonhound Platform.
(f) “Carbonhound Client” means a Third Party that uses and has access to the Carbonhound Platform.
(g) “Carbonhound Platform” means: (i) the services and platform(s) that Carbonhound provides to support Member in measuring and tracking its greenhouse gas emissions, including the Carbonhound Application; and (ii) any component or Modification of the Services referred to in (i).
(h) “Carbonhound Property” has the meaning set out in Section 3(d).
(i) “Claim” means any claim, action, demand, inquiry, audit, proceeding, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity or otherwise.
(j) “Confidential Information” has the meaning set out in Section 6(a).
(k) “Discloser” has the meaning set out in Section 6(a).
(l) “Green Economy Hub” means one of the regional hubs of GEC, whether run by GEC or another non-profit organization that GEC works with, on the understanding that Members may access the Services through GEC or through their membership in the Green Economy Hub, as applicable.
(m) “Feedback” has the meaning set out in Section 3(b).
(n) “Force Majeure” has the meaning set out in Section 10(f).
(o) “GEC/Carbonhound Indemnitee” has the meaning set out in Section 7(e)(iii).
(p) “GEC/Green Economy Hub Permitted Purpose” has the meaning set out in Section 2(c).
(q) “Governmental or Regulatory Authority” means any national, provincial, state, county, municipal, quasi-governmental or self-regulatory department, authority, organization, agency, commission, board, tribunal, dispute settlement panel or body, bureau, official, minister, Crown corporation, or court or other law, rule or regulation-making entity having or purporting to have jurisdiction over Carbonhound, GEC, Member, External Hub, if applicable, or any other Person, property, transaction, activity, event or other matter related to this Agreement, including subdivisions of, political subdivisions of and other entities created by such entities.
(r) “Indemnitee” has the meaning set out in Section 7(e)(iv).
(s) “Indemnitor” has the meaning set out in Section 7(e)(iv).
(u) “Licensed Third Party Technology” means third party technology that is licensed under separate license terms and not under this Agreement.
(v) “Loss” or “Losses” means all losses, damages, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
(w) “Member Data” means any data, information, content, records, and files that Member or any Permitted User loads or enters into, transmits to, or makes available to the Carbonhound Platform, including but not limited to Personal Information, excluding Aggregated Data and any other Carbonhound Property.
(x) “Member Indemnitee” has the mean set out in Section 7(e)(i).
(y) “Member Services” mean services to be provided by GEC and/or Green Economy Hub, as applicable, pursuant to the Membership Agreement .
(z) “Member User Account” has the meaning set out in Section 4(a).
(aa) “Member” means any organization that is paying fees to GEC or Green Economy Hub (if applicable) for access to the Services.
(bb) “Membership Agreement” means the agreement between Member and GEC and/or Green Economy Hub, as applicable.
(cc) “Modifications” means modifications, improvements, customizations, patches, bug fixes, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and “Modify” has a corresponding meaning.
(dd) “Party” has the meaning set out in the preamble.
(ee) “Member Permitted Purpose” has the meaning set out in Section 2(d).
(ff) “Permitted User” means: (i) employees of GEC, Green Economy Hub or Member, as applicable; and (ii) independent contractors of GEC, Green Economy Hub or Member, as applicable, and authorized by GEC, Green Economy Hub or Member, as applicable, to access and use the Services.
(gg) “Person” means any individual, sole proprietorship, partnership, firm, entity, unincorporated association, unincorporated syndicate, unincorporated organization, trust, body corporate or Governmental or Regulatory Authority, and where the context requires, any of the foregoing when they are acting as trustee, executor, administrator or other legal representative.
(hh) “Personal Information” means information about an identifiable individual provided by Member under this Agreement.
(ii) “Recipient” has the meaning set out in Section 6(a).
(jj) “Services” means (i) the Carbonhound Platform and related services through which Carbonhound hosts and makes available the hosted solution for use; and (ii) any component or Modification of the services referred to in (i).
(kk) “Term” has the meaning set out in Section 9(a).
(ll) “Third Party” means a part other than Carbonhound, GEC, Member or External Hub (if applicable).
(mm) “Third-Party Products” has the meaning set out in Section 2(i).
(nn) “Website” means any websites used by Carbonhound to provide the Carbonhound Platform, including the websites located at https://app.carbonhound.com.
2. Carbonhound Services
(a) Provisioning of the Services. Subject to compliance by Member and its Permitted Users with the terms and conditions of this Agreement, Carbonhound will make the Services available to Member and Permitted Users on the terms and conditions set out in this Agreement during the Term.
(b) Restrictions on Use. Member will not itself, and will not knowingly permit Permitted Users to:
(i) sub-license, sell, rent, lend, lease or distribute Services, or any Intellectual Property Rights therein, or otherwise make Services available to anyone other than Permitted Users unless agreed explicitly by the Parties in writing;
(ii) use or provide access to the Services (A) in violation of any Applicable Laws or Intellectual Property Rights, (B) in a manner that threatens the security or functionality of Services, or (C) for any purpose or in any manner not expressly permitted by this Agreement;
(iii) other than in accordance with this Agreement, use the Services to create, collect, transmit, store, use or process any Member Data that:
(A) Member does not have the lawful right to create, collect, transmit, store, use or process;
(B) violates any Applicable Laws, or infringes, violates or otherwise misappropriates the Intellectual Property Rights or other rights of any Third Party (including any moral right, privacy right or right of publicity); or
(C) contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data;
(iv) use the Services in connection with any software intended to damage or alter a computer system or data;
(v) Modify the Services;
(vi) reverse engineer, de-compile or disassemble the Services;
(viii) access or use the Services for the purpose of building a similar or competitive product or service; or
(ix) perform any vulnerability, penetration or similar testing of the Services.
(c) GEC/Green Economy Hub Permitted Purpose. GEC and Green Economy Hub, as applicable, and their respective Permitted Users shall only access and use the Services to manage the carbon footprint of their Members, derive insights about Members and the Member network, analyze and publish aggregated data and perform any other analysis and functions that GEC and Green Economy Hub, as applicable, reasonably determines are necessary for the purposes of fulfilling its mission (“GEC/Green Economy Hub Permitted Purpose”).
(d) Member Permitted Purpose. Member and Permitted Users may access and use the Services solely for Member’s internal business purposes, except that Member may share insights derived from the Services with Member’s stakeholders (“Member Permitted Purpose”).
(e) Regulatory Compliance. Notwithstanding anything to the contrary in this Agreement, Member acknowledges that, although the Services may assist Member and Permitted Users to comply with Applicable Laws: (i) the Services do not provide compliance, legal advice, environmental, regulatory or other guidance on which Member can or should rely; and (ii) it is Member’s responsibility to verify the Applicable Laws and determine the specific actions to be taken by Member and implemented in the Services or otherwise by Member to comply with such Applicable Laws.
(f) Suspension of Access; Scheduled Downtime; Modifications. Carbonhound may, from time to time and in its discretion, without limiting any of its other rights or remedies at law or in equity, under this Agreement:
(i) suspend Member’s or any Permitted User’s access to or use of the Services:
(A) for violating any provision of this Agreement;
(B) as a consequence for the gross misuse of the Services by Member or any Permitted User;
(C) if Member or any Permitted User fails to meet any minimum hardware or software requirements for using the Services, provided that Carbonhound shall provide advance written notice of any such requirements;
(D) if any unauthorized change by Member or any Permitted User affects the configuration of the Services;
(E) if any data corruption occurs as a result in whole or in part of one or more errors by Member or any Permitted User;
(F) to address any emergency security concerns;
(G) for scheduled maintenance;
(H) due to a Force Majeure Event;
(I) for non-payment of invoices and Fees for the Services;
(J) if required to do so by a Governmental or Regulatory Authority, by way of court order or as a result of a change in Applicable Laws; or
(K) for any other reason as provided in this Agreement, provided that Carbonhound will use reasonable endeavors to give Member reasonable advance notice of any limitation or suspension so that Member can plan around it or address the issue that has prompted Carbonhound to take such action. There may be some situations, such as security emergencies, where it is not practicable for Carbonhound to give such advance notice. Carbonhound will use commercially reasonable efforts to narrow the scope and duration of the limitation or suspension as is needed to resolve the issue that prompted such action; and
(ii) Modify the Services.
(g) Patches, Fixes, and Updates. Member is required to accept all patches, bug fixes and updates made by or on behalf of Carbonhound to the Services.
(h) Subcontracting. Carbonhound may engage third parties to assist it in providing the Services, the Additional Services or any part thereof, provided that Carbonhound will remain responsible for all its obligations under this Agreement.
(i) Third-Party Products. The Carbonhound Platform may contain or require the use of Licensed Third-Party Technology or other third-party products that are owned by third parties (collectively “Third-Party Products”). Member will accept and comply with the license terms applicable to Third-Party Products. If Member does not agree to abide by the applicable license terms for any such Third-Party Products, then Member should not install, access, or use such Third-Party Products. Any acquisition by Member of such Third-Party Products, and any exchange of data between Member and any such provider of Third-Party Products is solely between Member and the applicable Third-Party Products provider. Neither Carbonhound nor GEC warrant or support Third-Party Products or other third-party products, offerings or services, whether or not they are designated by Carbonhound as “certified” or otherwise. GEC and Carbonhound cannot guarantee the continued availability of such Third-Party Products features, and may cease providing them without entitling Member to any refund, credit, or other compensation, if for example and without limitation, the provider of a Third-Party Products ceases to make the Third-Party Products available for interoperation or otherwise in connection with the corresponding service features in a manner acceptable to Carbonhound. Carbonhound and GEC are not responsible for any disclosure, modification or deletion of Member Data resulting from access by such Third-Party Products or its provider.
(j) Referrals and Third-Party Services. Carbonhound will not share Member’s information with Third Parties for any Third-Party services that are not Third-Party Products.
3. Ownership; Reservation of Rights
(a) Ownership of Member Data. Member retains all ownership and Intellectual Property Rights in and to Member Data.
(b) Notwithstanding Section 3(a), Member grants to:
(i) Carbonhound, GEC, and Green Economy Hub, as applicable, and their subcontractors, and provided that Member Data is not identified as relating to Member or otherwise personally identifiable, a nonexclusive, irrevocable, worldwide, royalty-free, transferable, sublicensable, and fully paid-up right to access, collect, use, process, store, disclose, transmit, copy, modify and display Member Data to:
(A) provide the Services;
(B) improve and enhance the Services; and
(C) produce or generate data, information or other materials that are not identified as relating to a particular individual or company, including Member (“Aggregated Data”); and
(ii) GEC and Green Economy Hub, as applicable, and their subcontractors, a nonexclusive, irrevocable, worldwide, royalty-free, transferable, sublicensable, and fully paid-up right to access, collect, use, process, store, disclose, transmit, copy, modify and display Member Data to provide Member Services to Member.
(a) Permitted use, transfer and sale of Aggregated Date. Carbonhound may use, process, store, disclose and transmit Aggregated Data for any purpose and without restriction or obligation to Member of any kind, including to improve and enhance the Services and its other offerings, provided that Aggregated Data:
(i) may only be sold, licensed or transferred to a Carbonhound Client where such sale, license or transfer is part of a service provided by Carbonhound through the Carbonhound Platform, including for carbon accounting services, benchmarking, or other related product and service offerings; and
(ii) shall not be sold, licensed, or transferred to any Third Party that is not a Carbonhound Client for purposes unrelated to the Carbonhound Platform or to improve and enhance the Services.
(c) Feedback. If Member provides Carbonhound with any suggestions for changes or improvements, or other feedback (collectively, “Feedback”), in respect of the Services, or any other product or service of Carbonhound or any Carbonhound Affiliate, Carbonhound and its Affiliates may use the Feedback for any purpose without obligation of any kind, except that it will not disclose the source of Feedback without the consent of Member. Carbonhound is not obligated to use any Feedback.
(d) Carbonhound Property. Carbonhound retains all ownership and Intellectual Property Rights in and to: (i) the Services; (ii) the Aggregated Data; (iii) anything used, developed or delivered by or on behalf of Carbonhound under this Agreement; (iv) all other Carbonhound’s Confidential Information; (v) any Modifications to the foregoing (i), (ii), (iii) and (iv) (collectively “Carbonhound Property”).
4. Member User Accounts
(a) In order for Member to access and use the Services, Carbonhound will issue one or more accounts (each, a “Member User Account”) to Member, each for use by a Permitted User.
(b) Member will ensure that each Permitted User only uses the Services through such Permitted User’s Member User Account. Member is responsible for identifying and authenticating all Permitted Users and for ensuring only Permitted Users access and use Services. Member shall ensure that all Permitted Users comply with this Agreement and that none of the Permitted Users bring or maintain any claim against any other Party, its partners, employees, officers, directors, Affiliates, agents, contractors, successors, and assigns and those of its Affiliates in respect of any matter related to or in connection with the subject matter of this Agreement, except as provided herein.
(c) Member will not allow any Permitted User to share such Permitted User’s Member User Account with any other Person. Member will promptly notify Carbonhound, GEC and Green Economy Hub, as applicable, of any actual or suspected unauthorized use of the Services. Carbonhound reserves the right to suspend, deactivate or replace any Member User Account if it determines that a Member User Account may have been used for an unauthorized purpose, and will provide written notice to the other Parties of such suspension, deactivation or replacement within one (1) day.
5. Privacy
(a) Carbonhound shall treat all Personal Information in accordance with privacy and data protection laws applicable to Carbonhound.
(b) Carbonhound represents and warrants that it has implemented appropriate technical and organizational measures to enable a level of security appropriate to the risk of unauthorized or unlawful processing, accidental loss of and/or damage to Member Data.
(c) Carbonhound shall notify Member and GEC (unless prohibited by Applicable Law), without undue delay (any in any event within twenty-four (24) hours) upon Carbonhound becoming aware of any actual theft, loss or unauthorized access, use or disclosure of Personal Information being processed by Carbonhound on behalf of Member (“Privacy Breach”), and reasonably cooperate with Member, in notifying any Person affected by a Privacy Breach in accordance with applicable privacy and data protection laws and shall make best efforts to address and attempt to rectify the Privacy Breach immediately upon becoming aware of same.
6. Confidentiality
(a) Definitions. For the purposes of this Agreement, a Party receiving Confidential Information (as defined below) will be the “Recipient”, the Party disclosing such information will be the “Discloser” and “Confidential Information” of the Discloser means any and all information of the Discloser or any of its licensors that has or will come into the possession or knowledge of the Recipient in connection with or as a result of entering into this Agreement, including information concerning the Discloser’s past, present or future customers, suppliers, technology or business, and where the Discloser is Member includes Member Data and where Discloser is Carbonhound, Carbonhound’s Confidential Information includes any Carbonhound Property; provided that the Discloser’s Confidential Information does not include, except with respect to Personal Information: (i) information already known or independently developed by the Recipient without access to the Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of the Recipient; or (iii) information received by the Recipient from a Third Party who was free to disclose it without confidentiality obligations.
(b) Confidentiality Covenants. The Recipient will not, except to exercise its license rights or perform its obligations under this Agreement:
(i) disclose Confidential Information of the Discloser to any person, except to its own employees on a “need to know” basis for the purposes of receiving or providing the Services and that have entered into written agreements no less protective of disclosure of such Confidential Information than the terms and condition of this Agreement
(ii) use Confidential Information of the Discloser other than to exercise its rights or perform its obligations under this Agreement; or
(iii) alter or remove from any Confidential Information of the Discloser any proprietary source.
(c) Each Party shall take industry standard precautions to safeguard the other Party’s Confidential Information, which shall in any event be at least as stringent as the precautions that the Recipient takes to protect its own Confidential Information of a similar type. Notwithstanding the foregoing, Carbonhound may disclose Member’s Confidential Information to its Carbonhound Subcontractors or contractors in order to perform the Services, provided that such Subcontractors or contractors shall be subject to confidentiality obligations of no less stringent than those contained in this Article 6.
(d) Exceptions to Confidentiality. Notwithstanding Section 6(b), the Recipient may disclose Discloser’s Confidential Information:
(i) to the extent that such disclosure is required to comply with Applicable Law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order;
(ii) to its legal counsel and other professional advisors, if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business; or
(iii) in the case of Carbonhound, to its potential investors or acquirors to the extent that such persons need to know such Confidential Information in order to complete the proposed investment or acquisition, provided that such disclosee is subject to confidentiality obligations no less stringent than those set out in this Article 6.
(e) The Parties agree: (i) that no adequate remedy exists at law if the other Party breaches any of its obligations in this Article 6; (ii) that it would be difficult to determine the damages resulting from its breach of this Article 6 and that such breach would cause irreparable injury to the other Party; and (iii) that a grant of injunctive relieve provides the best remedy for any such breach, without any requirement that such other Party prove actual damage or post a bond or other security. The other Party waives any opposition to such injunctive relief or any right to such proof, bond, or other security.
7. Warranty; Disclaimer; Indemnities
(a) Carbonhound Representations, Warranties and Covenants. Carbonhound:
(i) represents and warrants to, and/or covenants with, GEC and Member that it has full power and all necessary rights to enter into this Agreement; and
(ii) warrants that it will comply with all Applicable Laws appliable to Carbonhound in its performance of the Services.
(b) GEC Representations, Warranties and Covenant. GEC:
(i) represents and warrants to, and/or covenants with, Carbonhound and Member that it has full power and all necessary rights to enter into this Agreement; and
(ii) warrants that it will comply with all Applicable Laws appliable to GEC under this Agreement.
(c) Member Representations, Warranties and Covenants. Member represents and warrants to, and/or and covenants with, Carbonhound and GEC that:
(i) it has full power and all necessary rights to enter into this Agreement;
(ii) its use of the Services will at all times comply with all Applicable Laws and Member will not knowingly cause either Carbonhound or GEC to be non-compliant with any Applicable Laws; and
(iii) Member Data will only contain Personal Information in respect of which Member has provided all notices and disclosures (including to each Permitted User), obtained all applicable Third Party consents and permissions and otherwise has all authority, in each case as required by and in compliance with Applicable Laws, including applicable privacy laws, to enable Carbonhound to provide the Services, including with respect to the collection, storage, access, use, disclosure, processing and transmission of Personal Information, including by or to Carbonhound and/or GEC to or from all applicable third parties.
(d) GENERAL DISCLAIMER. EXCEPT AS EXPLICITLY PROVIDED IN THIS Agreement, MEMBER ACKNOWLEDGES THAT NEITHER GEC NOR CARBONHOUND WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS SPECIFICALLY PROVIDED IN THIS Agreement, THE SERVICES (OR ANY PART THEREOF) AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY CARBONHOUND TO MEMBER ARE PROVIDED “AS IS” AND “AS AVAILABLE”. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BOTH GEC AND CARBONHOUND HEREBY DISCLAIM ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, BOTH GEC AND CARBONHOUND EXPRESSLY DISCLAIM ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO MEMBER IN CONNECTION WITH MEMBER’S USE OF THE SERVICES OR ANY SERVICES (OR ANY PART THEREOF), IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY MEMBER FOR ANY PURPOSE WHATSOEVER.
(e) Indemnities.
(i) Carbonhound Indemnity. Carbonhound will indemnify, defend, and hold harmless Member and its officers, directors, employees, and agents (each, a “Member Indemnitee”) from and against any and all Losses incurred by a Member Indemnitee arising out of or relating to any Claims by a Third Party (other than an Affiliate of a Member Indemnitee), directly or indirectly arising from or in connection with (i) Carbonhound’s breach of any of Carbonhound’s obligations, representations, warranties or covenants under this Agreement; (ii) Carbonhound’s breach of any Applicable Laws; (iii) Carbonhound’s fraud, gross negligence or wilful misconduct; or (iv) any allegation that the Services infringe any Third Party Intellectual Property Right. The foregoing obligation does not apply to any Claim or Losses arising out of or relating to any: (A) incorporation of any Services into, or any combination, operation, or use of any Services with, any products or services not provided by Carbonhound; (B) Modification of any Services other than by Carbonhound or with Carbonhound’s express written approval; (C) unauthorized use of the Services; or (D) Services for which there is no Fees or other charge. This Section 7(e) states the Carbonhound’s sole liability to Member Indemnitees, and the Member Indemnitees exclusive remedy against Carbonhound, for any Third Party Claim described in this Section 7(e).
(ii) If the Services are, or in Carbonhound’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any Third Party Intellectual Property Right, or if Member’s use of any Carbonhound Platform is enjoined or threatened to be enjoined, Carbonhound may, at its option and sole cost and expense:
(A) obtain the right for Member to continue to use the affected Services materially as contemplated by this Agreement;
(B) Modify or replace the Services, in whole or in part, to seek to make the Services (as so Modified or replaced) non-infringing while providing materially equivalent features and functionality, in which case such Modifications or replacements will constitute the Services under this Agreement; or
(C) if Carbonhound reasonably determines that neither of the foregoing two options are reasonably available, by ten (10) days’ advance written notice to GEC and Member, terminate the Services and this Agreement, in whole or in part, and require Member to immediately cease all use of the terminated Services or part or feature thereof and refund any unused prepaid Fees for the terminated Services, if applicable. However, all accrued rights to payment and the terms and conditions of this Agreement shall survive termination of this Agreement.
THE FOREGOING IS IN LIEU OF ANY REPRESENTATION, COVENANTS OR WARRANTIES OF NONINFRINGEMENT, WHICH ARE DISCLAIMED.
(iii) Member Indemnity. Member will indemnify, defend and hold harmless, both GEC and Carbonhound, and their respective partners, employees, officers, directors, Affiliates, agents, contractors, successors, and assigns and those of their respective Affiliates (each a “GEC/Carbonhound Indemnitee”) against any and all Losses incurred by a GEC/Carbonhound Indemnitee arising out of or relating to any Claims by a Third Party (other than an Affiliate of a GEC/Carbonhound Indemnitee), directly or indirectly arising from or in connection with: (i) Member Data; (ii) Member’s breach of any of Member’s obligations, representations, warranties or covenants under this Agreement; (iii) Member’s breach of any Applicable Laws; (iv) unauthorized use of the Services by Member or any Permitted User; or (v) use of the Services (or any part thereof) by Member or any Permitted User in combination with any Third Party software, application or service. Member shall fully cooperate with GEC and/or Carbonhound in the defense of any Claim defended by Member pursuant to its indemnification obligations under this Agreement and will not settle any such Claim without the prior written consent of GEC and/or Carbonhound.
(iv) Indemnification Procedure. Each Party will promptly notify the other Party in writing of any Action for which such Party believes it is entitled to be indemnified pursuant to this Article 7. The Party seeking indemnification (the “Indemnitee”) will cooperate with the other Party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor will promptly take control of the defense and investigation of such Action (although the Indemnitor shall not settle any claim without the Indemnitee’s prior written consent) and will employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 7(e)(iv) will not relieve the Indemnitor of its indemnity obligations under this Section 7(e) except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
8. Limitation of Liabilities
(a) The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk, form an essential basis of the bargain, and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
(i) AMOUNT. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF CARBONHOUND IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY GEC FOR THE SERVICES IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL CARBONHOUND’S THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
(ii) TYPE. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL CARBONHOUND BE LIABLE TO MEMBER OR ANY PERMITTED USER FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST OR LOSS OF (A) SAVINGS, (B) PROFIT, (C) DATA, (D) USE, OR (E) GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.
(b) Exceptions. The exclusions and limitations in Sections 8(a)(i) and 8(a)(ii) do not apply to: (i) either Party’s obligations under Article 7 (Warrant; Disclaimer; Indemnities).
9. Term and Termination
(a) Term. This Agreement is effective as of the Effective Date and will remain in effect unless earlier terminated in accordance with this Agreement.
(b) Termination by Member or GEC. Notwithstanding anything to the contrary in this Agreement, this Agreement shall automatically terminate on the date that Member or GEC, as applicable, provides written notice to Carbonhound that:
(i) the Membership Agreement has expired or is terminated in accordance with its terms; or
(ii) Member no longer wishes to use the Services as set out in this Agreement.
(c) Termination by Carbonhound. Notwithstanding anything to the contrary in this Agreement, Member’s and any Permitted Users’ access to the Services may be terminated or suspended by Carbonhound at any time at Carbonhound’s sole discretion. Carbonhound may immediately terminate Member’s right to use the Services or this Agreement if Carbonhound:
(i) believes that Member or any Permitted User has violated this Agreement;
(ii) believes the use of Member Data with the Services is not in Carbonhound’s or its users’ best interests;
(iii) ceases to offer the Services; or
(iv) is required by Applicable Laws.
Notwithstanding any other Section of this Agreement, Carbonhound may, in its discretion, terminate the Agreement at any time by providing at least thirty (30) days’ advance written notice to Member and GEC. Carbonhound may, in addition to other relief, terminate this Agreement if the Member commits a material breach of this Agreement and fails to correct such breach within thirty (30) calendar days after receipt of notice of such breach. Carbonhound may in its discretion terminate this Agreement effective immediately upon delivery of notice of termination to Member and GEC if Member becomes insolvent, ceases to conduct business in the ordinary course, takes any step or proceeding available to Member for the benefit of insolvent debtors, or is subject to a proceeding for liquidation, dissolution or winding up, or a receiver, receiver-manager, liquidator or trustee in bankruptcy.
(d) Effect of Termination. Upon expiration or termination of this Agreement:
(i) Member will immediately cease (and ensure that all Permitted Users immediately cease) accessing or using the Services and return any Carbonhound Property in its possession and certify in writing to Carbonhound and GEC that the Carbonhound Property has been returned; and
(ii) Member may export all Member Data and, within ten (10) days of Member’s written request, Carbonhound will remove and delete all Member Data that is in Carbonhound’s possession, including all Member Data that is on the Carbonhound Platform or in the Carbonhound Application.
(e) Survival. This Section 9(e) and the following Articles, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Article 3 (Ownership; Reservation of Rights), Article 5 (Privacy), Article 6 (Confidentiality), Article 7 (Warranty; Disclaimer; Indemnities), Article 8 (Limitation of Liabilities) and Article 10 (General Provisions).
10. General Provisions
(a) Notices. Notices sent to either Party will be effective when delivered in writing and in person or by email, one (1) day after being sent by overnight courier, or five (5) days after being sent by first class mail postage prepaid to the official contact designated by the Party to whom a notice is being given. Notices must be sent:
(i) if to Carbonhound, to the following address and email contact:
Address: 1220 Yonge Street, Suite 400, Toronto, ON, M4T1W1
Attention: Sanders Lazier, hello@carbonhound.com
Carbonhound may change its contact information by posting the new contact information on the Website or by giving notice thereof to other Parties;
(ii) if to GEC, to the following address and email contact:
Address: 269 Pineland Place, Waterloo, ON, N2T2S4
Attention: Priyanka Lloyd, priyanka@greeneconomy.ca;
(iii) if to Member, to the current mailing or email address that Carbonhound and GEC have on file with respect to Member. Member is solely responsible for keeping Member’s contact information on file with Carbonhound and GEC current at all times during the Term; and
(iv) if to External Hub (if applicable), to the current mailing or email address that GEC and Carbonhound have on file with respect to External Hub. External Hub is solely responsible for keeping External Hub’s contact information on file with GEC and Carbonhound current at all times during the Term.
(b) Assignment. Member may not assign this Agreement to any Third Party without the prior written consent of both Carbonhound and GEC. Any purported assignment or delegation by Member in violation of this Section 10(b) will be null and void. Carbonhound and/or GEC may assign this Agreement or any rights under this Agreement to any Third Party without Member’s consent. This Agreement enures to the benefit of and is binding upon the Parties and their respective successors and permitted assigns.
(c) Governing Law and Attornment. This Agreement and any action related thereto will be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to conflict of laws principles applicable therein. The Parties will initiate any lawsuits in connection with this Agreement in Toronto, Ontario, Canada, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting in Toronto, Ontario. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement. This choice of jurisdiction does not prevent Carbonhound from seeking injunctive relief with respect to a violation of Intellectual Property Rights or confidentiality obligations in any appropriate jurisdiction.
(d) Export Restrictions. Member will comply with all export laws and regulations that may apply to its access to or use of the Services. Carbonhound makes no representation or warranty that the Services may be exported without Member first obtaining appropriate licenses or permits under Applicable Law, or that any such license or permit has been, will be, or can be obtained.
(e) Construction. Except as otherwise provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of articles and sections of this Agreement are for reference purposes only and have no substantive effect. The terms “consent” or “discretion” mean the right of a Party to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to the other Party.
(f) Force Majeure. Neither Party will be liable for delays caused by any event or circumstances beyond that Party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving that Party’s employees), Internet service failures or delays, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third-party websites (“Force Majeure”). For clarity, a Force Majeure event shall not excuse Member’s indemnities under this Agreement. This Section does not apply to any of Member’s obligations under Articles 6, 7 or 8.
(g) Severability. Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be invalid, illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.
(h) Waiver. A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
(i) Independent Contractors. Carbonhound’s relationship to GEC and Member is that of an independent contractor, and neither Party is an agent, broker, joint venturer or partner of the other Party. Neither Party will have, and neither Party will represent to any Third Party that it has, any authority to bind the other Party.
(j) Member Name and Logo. With Member’s prior written consent, Carbonhound may identify the Member by name and logo as a Carbonhound customer on Carbonhound’s website with attribution to Member and on other promotional materials. Any goodwill arising from the use of Member’s name and logo will inure to the benefit of Member.
(k) No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any Person other than the Party and their respective successors and permitted assigns any legal or equitable right, benefit or remedy of any nature under or by reason of this Agreement.
(l) Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, representations or other communications between the Parties, whether written or oral.
(m) Amendments. No amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby. NOTWITHSTANDING THE PRECEDING SENTENCE, GEC AND/OR CARBONHOUND MAY MUTUALLY AGREE TO UNILATERALLY AMEND THIS Agreement, IN WHOLE OR IN PART (EACH, AN “AMENDMENT”), BY GIVING MEMBER PRIOR NOTICE OF SUCH MUTUALLY AGREED AMENDMENT. UNLESS OTHERWISE INDICATED BY CARBONHOUND AND/OR GEC, ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO MEMBER.
(n) English Language. It is the express wish of the Parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des Parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
Questions?
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