SUSTAINABLE MINDS, LLC. IS WILLING TO PROVIDE YOU ACCESS TO THE SOFTWARE SERVICES AND PROVIDE YOU ANY OTHER ITEMS OR SERVICES THAT YOU MAY AGREE TO PURCHASE FROM US IF YOU ACCEPT THE TERMS IN THIS AGREEMENT. PLEASE READ THE APPROPRIATE AGREEMENT CAREFULLY.

Master Commercial Use Services Agreement   Educational Use Services Agreement

INDICATE ACCEPTANCE BY SELECTING THE "ACCEPT" BUTTON AT THE BOTTOM OF THE AGREEMENT. IF YOU ARE NOT WILLING TO BE BOUND BY ALL THE TERMS, SELECT THE "DECLINE" BUTTON AT THE BOTTOM OF THE AGREEMENT. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON OR A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO ACT FOR AND TO BIND THAT PERSON, COMPANY, OR LEGAL ENTITY TO THESE TERMS. BY CLICKING “ACCEPT” OR BY USING THIS SERVICE, YOU ACCEPT THE TERMS OF THE AGREEMENT.

Master Commercial Use Service Agreement

This Master Commercial Service Agreement ("Agreement") is made between Sustainable Minds, LLC (“Vendor”) with its principal address at 101 Summit Ave. Unit A, Brookline, MA 02446 and the user of this account ("Customer" or “you”).

This Agreement, including the attached Schedule(s), is effective on the date that Customer has accepted this Agreement. This date is the “Effective Date.” Customer confirms acceptance of this Agreement by clicking on the “Accept” button at the bottom of the Agreement. Vendor confirms acceptance by email confirmation or, as applicable, by granting you access to The Service described below or by providing goods and/or services as agreed.

  1. 1. Definitions.

    The following definitions (and additional definitions provided below) will apply:

    1. 1.1. "Additional Item" means a product or service offering of Vendor other than the Service described below.
    2. 1.2. "Applicable Pricing" means the pricing for products or services (which may be the Service or Additional Item) as stated in one or more Order Confirmations. All pricing is subject to adjustment as stated in this Agreement.
    3. 1.3. "Customer Data" means data, information or material provided or submitted by Customer or any User to Vendor in the course of utilizing the Service. However, Customer Data does not include Sustainable MindsTM Data that Customer may have downloaded or embedded in customer’s materials.
    4. 1.4. "Customer Representative" means the Users designated by Customer as authorized to create User accounts, administer Customer’s use of the Service and otherwise represent Customer for the purpose of this Agreement.
    5. 1.5. "Sustainable MindsTM Data" means Vendor’s data and information supplied by means of the Service from Vendor’s proprietary Sustainable MindsTM Database. Sustainable MindsTM Data is the copyrighted property of Vendor.
    6. 1.6. "Order" means an order from Customer for any products or services from Vendor, which may include the Service or any Additional Item.
    7. 1.7. "Order Confirmation" means a written confirmation, which may be by email or other written form, confirming an Order.
    8. 1.8. "Service" means Vendor’s online service as described in Schedule B and applicable documentation on Vendor’s web site.
    9. 1.9. "Term" means the term of this Agreement as specified in Section 23.
    10. 1.10. "Third Party Offerings" means products and services provided or arranged for by Vendor that are provided by identified third parties.
    11. 1.11. "User" means one of Customer’s employees, representatives, consultants, contractors or agents and other persons expressly permitted by Customer in connection with Customer’s business affairs who are authorized to use the Service and have been supplied User identifications and passwords by Customer (or by Vendor at Customer’s request). Users are counted on a named individual basis, and each User will have a unique username and password.
    12. 1.12. "Vendor Content" means Vendor-supplied text, audio, video, graphics and other information and data (including Sustainable MindsTM Data) available by means of the Service or on Vendor’s web site.
  2. 2. Customer Use of the Service

    1. 2.1. Subject to Customer’s making timely payment of amounts when due, Vendor agrees to make the Service available to the Customer for online access beginning within one (1) business day of the Effective Date and thereafter during the Term.
    2. 2.2. Vendor grants Customer a license to access and use the Service during the Term via the Internet under and subject to the terms of this Agreement. Vendor will host the Service. Vendor reserves the right to make changes and updates to the functionality and/or documentation of the Service from time to time.
    3. 2.3. Customer is licensed during the Term to store, print, and display the Vendor Content and to permit Users to access it only in connection with use of the Service. No other use of Vendor Content is permitted. The Service is licensed for use only in the ordinary course of the Customer’s business. Customer may use the Service for its own products and services or for third party products and services, but shall not make the Service available for use by any third parties.
  3. 3. Number of Authorized Users

    Customer is initially authorized to permit use by the number of Users listed in the Pricing Schedule. Customer, by its Customer Representative, may add to the number of Users by contacting Vendor customer support by email or phone or by utilizing applicable management features of the Service. Pricing for additional Users is as stated in the Pricing Schedule. Customer will be bound by the instructions and authorizations provided by its Customer Representative. A User account may not be shared or used by more than one User.

  4. 4. Fees Generally

    Customer agrees to pay fees for all products or services ordered (including, without limitation, the Service and all Additional Items) as set forth in the Applicable Pricing or as Vendor and Customer otherwise agree in writing. Payments are in US dollars. Customer agrees to make payment in accordance with Applicable Pricing. All pricing may be adjusted by Vendor in accordance with Section 23.2.

  5. 5. User-Based Fees; Payment

    Vendor will invoice yearly in advance for use of the Service at the beginning of the month. Other items will also be invoiced monthly unless otherwise stated in the Applicable Pricing. All invoices for any charges under this Agreement are due as stated in Applicable Pricing, or if not specified there, are payable within fifteen (15) days of invoice date. For customers paying via credit or debit card, customer’s credit or debit card is charged simultaneously with the creation of the customer’s invoice. Customer’s account will be considered delinquent (in arrears) if payment in full is not received by the due date specified on the invoice. Amounts due are exclusive of all applicable taxes, levies, or duties, and Customer will be responsible for payment of all such amounts. All amounts are payable in U.S. dollars. If Customer believes that any specific charge under this Agreement is incorrect, in order to obtain a credit, Customer must contact Vendor in writing within thirty (30) days of invoice date setting forth the nature and amount of the requested correction; otherwise invoice charges and fees are final.

  6. 6. Excess Data Storage Fees

    The maximum disk storage space for Customer Data provided to Customer at no additional charge is specified on the Applicable Pricing, in other terms of this Agreement, or as Vendor and Customer otherwise agree in writing. If the amount of disk storage required for Customer’s use exceeds this limit, Customer will be charged per-gigabyte (GB), based on the maximum storage used during the month and at the applicable rate stated in the Pricing Schedule, in other terms of this Agreement, or as Vendor and Customer otherwise agree in writing, or as Vendor and Customer otherwise agree via an electronically signed on-line transaction.

  7. 7. Non-Payment

    1. 7.1. In addition to other applicable remedies, Vendor reserves the right to suspend and/or terminate Customer’s access to the Service and/or terminate this Agreement, upon five days' email notice, if Customer’s account becomes delinquent (falls into arrears).
    2. 7.2. Delinquent invoices are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection, including reasonable attorneys' fees and court costs. Customer will be charged all applicable fees, including fees for all Users then authorized, during any period of suspension.
  8. 8. Account Information Submitted to Vendor

    Customer agrees to provide Vendor in writing with billing and contact information as Vendor may reasonably require, including Customer’s legal company name, street address, email address, and name and telephone number of an authorized billing contact, as well as the name, username and password of the Customer Representative. Customer agrees to update this information promptly by means of email to accountspayable@ sustainableMinds.com, and in any case within fifteen (15) days, if there is any change.

  9. 9. Appropriate Use of the Service

    1. 9.1. While Users may be any persons that Customer authorizes to use the Service for its business, including, but not limited to, Customer’s employees and contractors, Customer may not sublicense, resell or supply the Service for use in or for the benefit of any other organization, entity, business, or enterprise without Vendor’s prior written consent.
    2. 9.2. Customer may use Sustainable MindsTM Data as is reasonable for Customer’s business purposes. Customer may disclose, publish and distribute Sustainable MindsTM Data that pertains to its actual or proposed operations, products and services. However, Customer agrees that it will not (and will not permit Users or its employees, contractors, or customers to) otherwise resell, publish or distribute Sustainable MindsTM Data. Customer may not sell, lease, license, charge for or otherwise commercialize Sustainable MindsTM Data.
    3. 9.3. Customer agrees not to submit to the Service any material that is illegal, misleading, defamatory, indecent or obscene, threatening, infringing of any third party proprietary rights, invasive of personal privacy, or otherwise objectionable (collectively “Objectionable Matter”). Customer will be responsible to ensure that its Users do not submit any Objectionable Matter. In addition, Vendor may, at its option, adopt rules for permitted and appropriate use and may update them from time to time on the Vendor web site; Customer and Customer’s Users will be bound by any such rules. Vendor reserves the right to remove any Customer Data that constitutes Objectionable Matter or violates any Vendor rules regarding appropriate use, but is not obligated to do so. Customer and Customer’s Users will comply with all applicable laws regarding Customer Data, use of the Service and the Vendor Content, including laws involving private data and any applicable export controls. Vendor reserves the right to terminate this Agreement for cause in case the Customer materially breaches the provisions of this Section 9.
    4. 9.4. Vendor reserves the right to suspend or terminate immediately any Customer or User account or activity that is disrupting or causing harm to Vendor’s computers, systems or infrastructure or to other parties, or is in violation of state or federal laws regarding “spam,” including, without limitation, the CAN-SPAM Act of 2003. Any such spamming activity by Customer will be a material breach of this Agreement.
  10. 10. Passwords and Access

    Customer is responsible for all activities that occur under Customer’s User accounts. Customer is responsible for maintaining the security and confidentiality of all User usernames and passwords. Customer agrees to notify Vendor immediately of any unauthorized use of any Service username or password or account or any other known or suspected breach of security.

  11. 11. Customer Data

    1. 11.1. All Customer Data submitted by Customer to Vendor, whether posted by Customer or by Users, will remain the sole property of Customer or such Users to the full extent provided by law.
    2. 11.2. Customer will have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness of and copyright permissions for all Customer Data. Vendor will not use the Customer Data for any purpose other than to provide the Service to Customer and for statistical reporting and analysis purposes. Vendor may aggregate anonymous statistical data regarding use and functioning of its system by its various Users. Such aggregated statistical data will be the sole property of Vendor.
    3. 11.3. Customer Data Backups are available to the Customer in Vendor’s standard format upon written request and at additional cost under Customer’s current rate schedule. Customer may contact Vendor customer support for details.
    4. 11.4. Vendor will use commercially reasonable security measures to protect Customer Data against unauthorized disclosure or use. Vendor reserves the right to modify its security measures reasonably from time to time in its business judgment and as it deems required for compliance with applicable law.
  12. 12. Limited License to Customer Data

    Subject to the terms and conditions of this Agreement, Customer grants to Vendor a non-exclusive license to use, copy, store, transmit and display Customer Data to the extent reasonably necessary to provide and maintain the Service.

  13. 13. Vendor’s Ownership

    Vendor and its suppliers retain all rights in the Service and Vendor Content. This Agreement grants no ownership rights to Customer. No license is granted to Customer except as to use of the Service and Customer Data as expressly stated herein. The Vendor name, the Vendor logo, and the product names associated with the Service are trademarks of Vendor or third parties, and they may not be used without Vendor’s prior written consent.

  14. 14. Restrictions on Use of the Service

    Customer may not alter, resell or sublicense the Service or provide it as a service bureau. Customer agrees not to reverse engineer the Service or its software or other technology. Customer will not use or access the Service to: (i) build a competitive product or service, (ii) make or have made a product using similar ideas, features, functions or graphics of the Service, (iii) make derivative works based upon the Service or (iv) copy any features, functions or graphics of the Service. Customer will not “frame” or “mirror” the Service. Use, resale or exploitation of the Service and/or the Vendor Content except as expressly permitted in this Agreement is prohibited.

  15. 15. Privacy

    Vendor’s privacy policies can be accessed on Vendor’s web site. Vendor reserves the right to modify its privacy and security policies from time to time in its business judgment and as it deems required for compliance with applicable law.

  16. 16. Warranty Regarding the Service

    Vendor warrants that the Service will perform in all material respects to the functionality as described in applicable online user documentation available via Vendor’s web site. Vendor also warrants that the Sustainable MindsTM Impact Factors and CO 2 values used for calculations represent reasonable estimates of the environmental and human health impacts of material production, manufacturing processes, and utility production, distribution, and end-of-life treatment.

  17. 17. Service Level Warranty

    Vendor warrants during the Term of this Agreement that the Service will meet the applicable service level stated in Schedule C . If Vendor does not achieve such service level, Vendor will provide Customer upon request with a credit as described in Schedule C as Customer’s sole and exclusive remedy. To claim a remedy under this Section, Customer is required to notify Vendor within fifteen (15) days of the occurrence of the failure to provide the applicable service level.

  18. 18. Additional Warranties

  19. Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Customer represents and warrants that it has not falsely identified itself or provided any false information to gain access to the Service and that Customer’s billing information is correct.

  20. 19. Professional Services

    1. 19.1. Customer may retain Vendor to perform professional services (“Professional Services”) as the parties may agree upon in writing in the form of a work order or other writing (“Work Order”). Vendor will use reasonable efforts to carry out the Professional Services stated in the Work Order and to provide any resulting functionality in the Service made available online to Customer and Customer’s Users. Except as the parties otherwise agree in a Work Order, Professional Services and the results thereof are made available “AS IS.” Training provided at Customer’s request will be deemed Professional Services under this Agreement.
    2. 19.2. Unless otherwise agreed in writing in the Work Order, Professional Services are provided by Vendor on a time and materials basis at Vendor’s then applicable rates and subject to such non-refundable deposit or advance payment as Vendor may require. Maintenance and support of code or functionality created by means of Professional Services will likewise be on a Work Order basis under this Section unless otherwise agreed in writing. The code, materials, and functionality made or provided under this Section and all interests therein, including copyrights, will be Vendor’s property unless otherwise agreed in writing. Vendor may bill for Professional Services on a weekly or monthly basis, at its discretion.
  21. 20. Indemnification

    1. 20.1. Vendor will defend, indemnify, and hold Customer (and its officers, directors, employees and agents) harmless from and against all costs, liabilities, losses, and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) arising from any third party claim, suit, action, or proceeding arising from the actual or alleged infringement of any United States copyright, patent, trademark, or misappropriation of a trade secret by the Service or Vendor Content (other than that due to Customer Data). In case of such a claim, Vendor may, in its discretion, procure a license that will protect Customer against such claim without cost to Customer, replace the Service with a non-infringing Service, or if it deems such remedies not practicable, Vendor may terminate the Service and this Agreement without fault, provided that in case of such a termination, Customer will receive a pro-rata refund of the license fees prepaid for use of the Service not yet furnished as of the termination date. THIS SECTION STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES FOR INFRINGEMENT OR CLAIMS ALLEGING INFRINGEMENT.
    2. 20.2. Customer will defend, indemnify, and hold Vendor (and its officers, directors, employees and agents) harmless from and against all Losses arising out of or in connection with a claim, suit, action, or proceeding by a third party (i) alleging that the Customer Data or other data or information supplied by Customer infringes the intellectual property rights or other rights of a third party or has caused harm to a third party or (ii) arising out of breach of Sections 9 (Appropriate Use of the Service) or 10 (Passwords and Access) above.
    3. 20.3. Customer will defend, indemnify, and hold Vendor (and its officers, directors, employees and agents) harmless from any expense or cost arising from any third party subpoena or compulsory legal order or process that seeks Customer Data and/or other Customer-related information or data, including, without limitation, prompt payment to Vendor of all costs (including attorneys’ fees) incurred by Vendor as a result. In case of such subpoena or compulsory legal order or process, Customer also agrees to pay Vendor for its staff time in responding to such third party subpoena or compulsory legal order or process at Vendor’s then applicable hourly rates.
    4. 20.4. In case of any claim that is subject to indemnification under this Agreement, the party that is indemnified (“Indemnitee”) will provide the indemnifying party (“Indemnitor”) reasonably prompt notice of the relevant claim. Indemnitor will defend and/or settle, at its own expense, any demand, action, or suit on any claim subject to indemnification under this Agreement. Each party will cooperate in good faith with the other to facilitate the defense of any such claim and will tender the defense and settlement of any action or proceeding covered by this Section to the Indemnitor upon request. Claims may be settled without the consent of the Indemnitee, unless the settlement includes an admission of wrongdoing, fault or liability.
    5. 20.5. Vendor’s obligations under this Section to defend, indemnify, and hold harmless do not apply to Third Party Offerings.
  22. 21. Disclaimers and Limitations

    1. 21.1. THE WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY VENDOR. THERE ARE NO OTHER WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS STATED IN SECTIONS 16, 17 AND 18 ABOVE, THE SERVICE AND VENDOR CONTENT ARE PROVIDED TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICE OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES. VENDOR DOES NOT WARRANT THAT USE OF THE SYSTEM WILL BE ERROR-FREE OR UNINTERRUPTED. VENDOR IS NOT RESPONSIBLE FOR SOFTWARE INSTALLED OR USED BY CUSTOMER OR USERS OR FOR THE OPERATION OR PERFORMANCE OF THE INTERNET.
    2. 21.2. Except with regard to Customer’s payment obligations and with regard to either party’s indemnification obligations, in no event will either party’s aggregate liability exceed the license fees paid or due for the current twelve (12) month period measured by the payment obligation at the time of the event or circumstance giving rise to such claim. Except in regard to Customer breach of Sections 9 or 10, in no event will either party be liable for any indirect, special, incidental, consequential damages of any type or kind (including, without limitation, loss of data, revenue, profits, use or other economic advantage).
    3. 21.3. The Service may include gateways, links or other functionality that allows Customer and/or Users to access third party services (“Third Party Services”) and/or third party content and materials (“Third Party Materials”). Vendor does not supply and is not responsible for any Third Party Services or Third Party Materials, which may be subject to their own licenses, end-user agreements, privacy and security policies, and/or terms of use. VENDOR MAKES NO WARRANTY AS TO THIRD PARTY SERVICES OR THIRD PARTY MATERIALS.
    4. 21.4. All Third Party Offerings are provided “AS IS” and WITHOUT WARRANTY, unless otherwise agreed in writing.
  23. 22. Confidentiality

    1. 22.1. "Confidential Information" means non-public information, technical data or know-how of a party and/or its affiliates, which is furnished to the other party in written or tangible form in connection with this Agreement. Oral disclosure will also be deemed Confidential Information if it would reasonably be considered to be of a confidential nature or if it is confirmed at the time of disclosure to be confidential.
    2. 22.2. Notwithstanding the foregoing, Confidential Information does not include information which is: (i) already in the possession of the receiving party and not subject to a confidentiality obligation to the providing party; (ii) independently developed by the receiving party; (iii) publicly disclosed through no fault of the receiving party; (iv) rightfully received by the receiving party from a third party that is not under any obligation to keep such information confidential; (v) approved for release by written agreement with the disclosing party; or (vi) disclosed pursuant to the requirements of law, regulation, or court order, provided that the receiving party will promptly inform the providing party of any such requirement and cooperate with any attempt to procure a protective order or similar treatment.
    3. 22.3. Neither party will use the other party’s Confidential Information except as reasonably required for the performance of this Agreement. Each party will hold in confidence the other party’s Confidential Information by means that are no less restrictive than those used for its own confidential materials. Each party agrees not to disclose the other party’s Confidential Information to anyone other than its employees or subcontractors who are bound by confidentiality obligations and who need to know the same to perform such party’s obligations hereunder. The confidentiality obligations set forth in this Section will survive for two (2) years after the termination or expiration of this Agreement.
    4. 22.4. Upon termination or expiration of this Agreement, except as otherwise agreed in writing or otherwise stated in this Agreement, each party will, upon the request of the disclosing party, either: (i) return all of such Confidential Information of the disclosing party and all copies thereof in the receiving party’s possession or control to the disclosing party; or (ii) destroy all Confidential Information and all copies thereof in the receiving party’s possession or control. The receiving party will then, at the request of the disclosing party, certify in writing that no copies have been retained by the receiving party, its employees or agents.
    5. 22.5. In case a party receives legal process that demands or requires disclosure of the disclosing party’s Confidential Information, such party will give prompt notice to the disclosing party, if legally permissible, to enable the disclosing party to challenge such demand.
  24. 23. Term and Termination

    1. 23.1. The Term commences on the Effective Date. Customer's obligation to pay yearly license fees will start upon the end of the Trial Period and apply to the remainder of the Term. Customer may terminate trial subscription at any time before the end of the Trial Period by sending email to subscriptions@sustainableminds.com .
    2. 23.2. The initial term of this Agreement (“Initial Term”) will begin on the Effective Date and will end one (1) year thereafter unless otherwise specified on the Pricing Schedule. This Agreement will automatically renew for successive one-year periods (each a “Renewal Term”) beginning at the end of the Initial Term, unless Customer provides notice of termination not less than thirty (30) days before the end of the Initial Term or current Renewal Term, as applicable.
    3. 23.3. Applicable pricing will continue unchanged from the previous term unless Vendor notifies Customer of changes in pricing at least 60 days prior to the expiration of the Initial Term or current Renewal Term, as applicable. Any price change will become effective for the following yearly Renewal Term and thereafter until changed as provided for in this Agreement. Vendor reserves the right to terminate this Agreement for convenience not less than six month’s notice.
    4. 23.4. Vendor, in its sole discretion, may suspend or terminate Customer’s username and password, account, or use of the Service and/or terminate this Agreement if Customer materially breaches this Agreement and such breach has not been cured within ten (10) business days of notice of such breach.
    5. 23.5. In the event that this Agreement is terminated (for any reason), Vendor will, within five (5) days of a Customer’s request and, at Customer’s expense charged at Vendor’s applicable rates, make available one backup of the Customer Data in Vendor’s standard format. Customer agrees and acknowledges that Vendor has no obligation to retain and may delete Customer Data that remains in Vendor’s possession or control more than sixty (60) days after termination. There will be no refunds provided for early termination, except that in the case of termination for Vendor’s uncured material breach, Vendor will return the unconsumed portion of any advance payment on a pro rata basis.
    6. 23.6. The following provisions will survive termination: all definitions, Customer’s accrued financial obligations, the license to Customer Data to the extent reasonable for Vendor’s discharge of its post-termination obligations, and the following Sections and paragraphs: 1 (Definitions), 7.2 (Overdue Payments), 11.1 (Customer Data), 13 (Vendor’s Ownership), 14 (Restrictions on Use of the Service), 20 (Indemnification), 21 (Disclaimers and Limitations), 22 (Confidentiality), 22.4 (Return of Customer Data), 23.6 (Survival of Provisions), 24 (Notice), 26 (Arbitration), 27 (Non-Solicitation), and 28 (Miscellaneous).
  25. 24. Notice

    Vendor may give notice by means of email to Customer’s email address on record for Customer’s account or by written communication sent by first class mail or by courier service to Customer’s address on record in Customer’s account. Such notice will be deemed to have been given upon the expiration of thirty-six (36) hours after mailing (if sent by first class mail) or sending by courier or twelve (12) hours after sending (if sent by email), or, if earlier, when received. Customer may give notice to Vendor by return receipt e-mail to accountspayable@sustainableminds.com, first class mail or courier to Vendor’s then current postal address as specified on Vendor’s website (currently 101 Summit Ave. Unit A, Brookline, MA 02446). A party may, by giving notice, change its applicable address, email, or other contact information.

  26. 25. Assignment

    This Agreement may not be assigned by Customer without the prior written approval of Vendor but may be assigned by Vendor to (i) a parent or subsidiary, (ii) an acquirer of all or substantially all of Vendor’s assets involved in the operations relevant to this Agreement, or (iii) a successor by merger or other combination. Any purported assignment in violation of this Section will be void. This agreement may be enforced by and is binding on permitted successors and assigns.

  27. 26. Arbitration

    Any dispute arising under this Agreement or the termination of this Agreement will be subject to arbitration in the City of Boston, Massachusetts, USA under the commercial rules of the American Arbitration Association before a single arbitrator. The parties will share the arbitration fees equally. Any award will be enforceable in any court of competent jurisdiction. Nothing herein will prevent a party’s application to a court of law for injunctive relief to prevent irreparable harm.

  28. 27. Non-Solicitation

    During the Term of this Agreement and for a period of one (1) year thereafter, Customer will not, and will ensure that its affiliates will not, directly or indirectly: (i) solicit for employment or for performance of any services any person employed by Vendor or (ii) hire or engage for any services any person employed by Vendor. In the event of a breach of this non-solicitation clause, Customer agrees to pay Vendor compensation equal to fifty percent (50%) of the Vendor’s employee’s yearly salary as liquidated damages, which Customer agrees is fair and reasonable compensation for Vendor.

  29. 28. Miscellaneous

    1. 28.1. Choice of Law; Jurisdiction. This Agreement will be interpreted fairly in accordance with its terms, without any strict construction in favor of or against either party and in accordance with the laws of the State of Massachusetts and applicable US federal law. Except as is provided with regard to arbitration, the state and federal courts located in the City of Boston, Massachusetts USA will have exclusive jurisdiction and venue over any dispute or controversy arising from or relating to this Agreement or its subject matter.
    2. 28.2. Changes to the Terms of this Agreement. Vendor may, by written notice, make changes to this Agreement on no less than thirty (30) days notice. Changes, unless otherwise agreed in writing, will be effective at the end of the current Initial Term or Renewal Term as applicable.
    3. 28.3. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) will be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
    4. 28.4. No Agency. No joint venture, partnership, employment, or agency relationship exists between Customer and Vendor as a result of this Agreement or use of the Service.
    5. 28.5. No Waiver. The failure of Vendor to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by Vendor in writing.
    6. 28.6. Force Majeure. Except for the payment by Customer, if the performance of this Agreement by either party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of such party, that party will be excused from such to the extent that it is prevented, hindered or delayed by such causes.
    7. 28.7. Entire Agreement. This Agreement, together with any applicable Schedule(s), comprises the entire agreement between Customer and Vendor and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. No amendment to or modification of this Agreement will be binding unless in writing and signed by an authorized representative of each party.

Schedule B

Service Description

Customer will have Web access to Sustainable Minds Life Cycle Assessment Software.

Schedule C

Service Level Agreement

As of the Effective Date, Vendor will use reasonable efforts to keep its Service operational, subject to scheduled and unscheduled maintenance, and achieve the following Uptime (as defined below):

  1. 1. Service Level Warranty: Vendor's warranty is no less than 99.5% [or other percentage] Uptime (as defined below).
  2. 2. Remedy: If the warranted level of uptime is not provided, the Customer will be entitled to a credit to Customer (subject to the applicable procedures in this Agreement) in accordance with the following schedule, as follows:

    Uptime levelAvailable credit
    99.5% – 99%Credit equal to 5% of monthly user fees
    99% – 98.5%Credit equal to 7% of monthly user fees
    98.5% – 98%Credit equal to 10% of monthly user fees
    98% – 97.5%Credit equal to 15% of monthly user fees
    Below 97%Credit equal to 25% of monthly user fees

  3. 3. "Uptime" means the service is operational and is available to communicate with the Internet in Vendor's server location (which may be at a co-location facility).
  4. 4. This credit does not apply to the extent that the failure to achieve the Uptime is due to (a) circumstances that are subject to the Force Majeure clause of this Agreement, (b) scheduled maintenance and system upgrades, or (c) Customer's misuse of the Services.

Schedule D

Work Order for Professional Services

None

Educational Use Service Agreement

This Sustainable Minds Educational Use Service Agreement (“Agreement”) is for use by an individual Student or Faculty Member for Non-Commercial Use only pursuant to the terms stated below. SUSTAINABLE MINDS, LLC. IS WILLING TO PROVIDE YOU ACCESS TO THE SOFTWARE SERVICES AND TO PROVIDE YOU OTHER ITEMS OR SERVICES THAT YOU MAY AGREE TO PURCHASE FROM US ONLY IF YOU ACCEPT THE TERMS IN THIS AGREEMENT. PLEASE READ THE AGREEMENT CAREFULLY. BY CLICKING “ACCEPT” OR BY USING THIS SERVICE: (A) YOU ACCEPT THE TERMS OF THE AGREEMENT AND (B) YOU ALSO REPRESENT AND WARRANT THAT: (1) YOU ARE OVER 18 YEARS OF AGE, (1) YOU QUALIFY AS A STUDENT OR FACULTY MEMBER FOR USE OF THIS FORM OF AGREEMENT, AND (3) YOU WILL USE THE SERVICE ONLY AS STATED HEREIN. IF YOU ARE NOT WILLING TO BE BOUND BY ALL THE TERMS, SELECT THE "DECLINE" BUTTON FOR THIS AGREEMENT.

This Agreement is made between Sustainable Minds, LLC (“Vendor”) with its principal address at One Broadway, Kendall Square, Cambridge, MA 02142 and the individual user of this account ("User" or “you”). This Agreement is effective on the date that User has accepted this Agreement. This date is the “Effective Date.” User confirms acceptance of this Agreement by clicking on the “Accept” button at the bottom of the Agreement. Vendor will confirm acceptance by email confirmation or by granting you access to the Service or by providing any goods and/or services as agreed.

  1. 1. Definitions.

    The following definitions (and additional definitions provided below) will apply:

    1. 1.1. “Additional Item” means a product or service offering of Vendor other than the Service described below.
    2. 1.2. “Applicable Pricing” means the pricing for products or services (which may be the Service or Additional Item) as stated in one or more Order Confirmations. Information regarding Applicable Pricing can be found on Vendor’s web site at http://www.sustainableminds.com, which may be updated from time to time. All pricing is subject to adjustment as stated in this Agreement.
    3. 1.3. “Faculty Member” means an individual currently employed as an educator at an institution of higher learning.
    4. 1.4. “Non-Commercial Publication” means a paper or electronic publication without commercial benefit to the User primarily for an academic or technical audience, such as a technical or scientific book or journal.
    5. 1.5. “Non-Commercial Use” means educational activity for which no payment or other commercial benefit it obtained by the User or by any third party. Sponsored research is not “Non-Commercial Use.”
    6. 1.6. “Order” means an order from User for any products or services from Vendor, which may include the Service or any Additional Item.
    7. 1.7. “Order Confirmation” means a written confirmation, which may be by email or other written form, confirming an Order.
    8. 1.8. “Service” means Vendor’s online service as described in Schedule B and applicable documentation on Vendor’s web site.
    9. 1.9. “Student” means a student in good standing currently enrolled in an institution of higher learning, including an undergraduate and graduate student.
    10. 1.10. “Sustainable Minds Data” means Vendor’s data and information supplied by means of the Service from Vendor’s proprietary Sustainable Minds Database. Sustainable Minds Data is the copyrighted property of Vendor.
    11. 1.11. “Term” means the term of this Agreement as specified in Section 22.
    12. 1.12. “Third Party Offerings” means products and services provided or arranged for by Vendor that are provided by identified third parties.
    13. 1.13. “User” means the individual Student or Faculty Member who accepts this Agreement.
    14. 1.14. “User Data” means data, information or material provided or submitted by User to Vendor in the course of utilizing the Service. However, User Data does not include Sustainable Minds Data that User may have downloaded or embedded in User’s materials.
    15. 1.15. “Vendor Content” means Vendor-supplied text, audio, video, graphics and other information and data (including Sustainable Minds Data) available by means of the Service or on Vendor’s web site.
  2. 2. User Use of the Service

    1. 2.1. Subject to User’s making timely payment of amounts when due, Vendor agrees to make the Service available to the User for online access beginning within one (1) business day of the Effective Date and thereafter during the Term.
    2. 2.2. Vendor grants User a license to access and use the Service during the Term via the Internet under and subject to the terms of this Agreement. Vendor will host the Service. Vendor reserves the right to make changes and updates to the functionality and/or documentation of the Service from time to time.
    3. 2.3. User is licensed during the Term to store, print, and display the Vendor Content and to permit Users to access it only in connection with use of the Service. No other use of Vendor Content is permitted.
  3. 3. Single Users

    This Agreement permits use by the User as a single user only. User may not permit access by any other person or user on his or her account.

  4. 4. Account Information Submitted to Vendor

    User agrees to provide Vendor in writing with registration, billing and contact information as Vendor may require, including User’s legal name, street address, email address and status as a Student or Faculty Member. User agrees to update this information promptly by means of email to accountspayable@sustainableMinds.com, and in any case within fifteen (15) days, if there is any change.

  5. 5. Student or Faculty Member Status; Educational Use

    In order to qualify for this Agreement, User must be fully qualified as a Student or Faculty Member. Only Non-Commercial Use of the Service is permitted under this Agreement. Use by other customer or user or for any other purpose requires the user to obtain and pay for a commercial license. Upon Vendor request, User will provide reasonable written proof, as specified by Vendor, to show that he or she is a Student or Faculty Member, as applicable, and/or otherwise is in compliance with this provision.

  6. 6. Fees Generally

    User agrees to pay fees for all products or services ordered (including, without limitation, the Service and all Additional Items) as set forth in the Applicable Pricing or as Vendor and User otherwise agree in writing. User agrees to make payment in accordance with Applicable Pricing. Different pricing may apply for Students or Faculty Members. All pricing may be adjusted by Vendor in accordance with Section 22.2. Payments are due in US dollars. Under this Agreement, agreement by the Parties in writing includes agreement documented by electronic means.

  7. 7. User-Based Fees; Payment

    Vendor will invoice in advance for use of the Service in accordance with Application Pricing. Other items ordered by User will be invoiced monthly unless otherwise stated in the Applicable Pricing. All invoices for any charges under this Agreement are due as stated in Applicable Pricing, or if not specified there, are payable within fifteen (15) days of invoice date. For Users paying via credit or debit card, User’s credit or debit card is charged simultaneously with the creation of the User’s invoice. Other or additional payment procedures, as specified in Applicable Pricing, may apply. User’s account will be considered delinquent (in arrears) if payment in full is not received by the due date specified on the invoice. Amounts due are exclusive of all applicable taxes, levies, or duties, and User will be responsible for payment of all such amounts. All amounts are payable in U.S. dollars. If User believes that any specific charge under this Agreement is incorrect, in order to obtain a credit, User must contact Vendor in writing within thirty (30) days of invoice date setting forth the nature and amount of the requested correction; otherwise invoice charges and fees are final.

  8. 8. Excess Data Storage Fees

    The maximum disk storage space for User Data provided to User at no additional charge is specified on the Applicable Pricing, in other terms of this Agreement, or as Vendor and User otherwise agree in writing. If the amount of disk storage required for User’s use exceeds this limit, User will be charged per gigabyte (GB), based on the maximum storage used during the month and at the applicable rate stated in the Pricing Schedule, in other terms of this Agreement, or as Vendor and User otherwise agree in writing.

  9. 9. Non-Payment

    In addition to other applicable remedies, Vendor reserves the right to suspend and/or terminate User’s access to the Service and/or terminate this Agreement if User’s account becomes delinquent (falls into arrears). Vendor will make reasonable efforts to notify User at the email address included in User’s account in case of a suspension or termination. Delinquent invoices are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection, including reasonable attorneys' fees and court costs. User will be charged all applicable fees during any period of suspension.

  10. 10. Restrictions; Appropriate Use of the Service

    1. 10.1. User may not sublicense, resell or supply the Service for use in or for the benefit of any other organization, entity, business, or enterprise. User may use Sustainable Minds Data for User’s reasonable Non-Commercial purposes only, including publication and display in Non-Commercial Publications. User agrees that he or she will not (and will not permit others to) otherwise resell, publish, distribute or exploit Sustainable Minds Data.
    2. 10.2. User agrees not to submit to the Service any material that is illegal, misleading, defamatory, indecent or obscene, threatening, infringing of any third party proprietary rights, invasive of personal privacy, or otherwise objectionable (collectively “Objectionable Matter”). Vendor may, at its option, adopt rules for permitted and appropriate use and may update them from time to time on the Vendor web site; User will be bound by any such rules. Vendor reserves the right to remove any User Data that constitutes Objectionable Matter or violates any Vendor rules regarding appropriate use, but is not obligated to do so. User and User’s Users will comply with all applicable laws regarding User Data, use of the Service and the Vendor Content, including laws involving private data and any applicable export controls. Vendor reserves the right to terminate this Agreement for cause in case the User materially breaches the provisions of this Section 9.
    3. 10.3. Vendor reserves the right to suspend or terminate immediately any User account or activity that is disrupting or causing harm to Vendor’s computers, systems or infrastructure or to other parties, or is in violation of state or federal laws regarding “spam,” including, without limitation, the CAN-SPAM Act of 2003. Any such spamming activity by User will be a material breach of this Agreement.
  11. 11. Passwords and Access

    User is responsible for all activities that occur under User’s account. User is responsible for maintaining the security and confidentiality of his or her account username and password. User agrees to notify Vendor immediately of any unauthorized use of such username or password or account or any other known or suspected breach of security.

  12. 12. User Data

    1. 12.1. All User Data submitted by User to Vendor will remain the sole property of User to the full extent provided by law.
    2. 12.2. User will have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness of and copyright permissions for all User Data. Vendor will not use the User Data for any purpose other than to provide the Service to User and for statistical reporting and analysis purposes. Vendor may aggregate anonymous statistical data regarding use and functioning of its system by its various Users. Such aggregated statistical data will be the sole property of Vendor.
    3. 12.3. User Data Backups are available to the User in Vendor’s standard format upon written request and at additional cost under User’s current rate schedule. User may contact Vendor support for details.
    4. 12.4. Vendor will use commercially reasonable security measures to protect User Data against unauthorized disclosure or use. Vendor reserves the right to modify its security measures reasonably from time to time in its business judgment and as it deems required for compliance with applicable law.
  13. 13. Limited License to User Data

    Subject to the terms and conditions of this Agreement, User grants to Vendor a non-exclusive license to use, copy, store, transmit and display User Data to the extent reasonably necessary to provide and maintain the Service.

  14. 14. Vendor’s Ownership

    Vendor and its suppliers retain all rights in the Service and Vendor Content. This Agreement grants no ownership rights to User. No license is granted to User except as to use of the Service as expressly stated herein. The Vendor name, the Vendor logo, and the product names associated with the Service are trademarks of Vendor or third parties, and they may not be used without Vendor’s prior written consent.

  15. 15. Restrictions on Use of the Service

    User may not alter, resell or sublicense the Service or provide it as a service bureau. User agrees not to reverse engineer the Service or its software or other technology. User will not use or access the Service to: (i) build a competitive product or service, (ii) make or have made a product using similar ideas, features, functions or graphics of the Service, (iii) make derivative works based upon the Service or (iv) copy any features, functions or graphics of the Service. User will not “frame” or “mirror” the Service. Use, resale or exploitation of the Service and/or the Vendor Content except as expressly permitted in this Agreement is prohibited.

  16. 16. Privacy

    Vendor’s privacy policies can be accessed on Vendor’s web site. Vendor reserves the right to modify its privacy and security policies from time to time in its business judgment and as it deems required for compliance with applicable law.

  17. 17. Additional Warranties

    Each party represents and warrants that he, she, or it (as applicable) has the legal power and authority to enter into this Agreement. User represents and warrants that he or she has not falsely identified itself or provided any false information to gain access to the Service and that User’s payment and billing information is correct.

  18. 18. Professional Services

    1. 18.1. User may retain Vendor to perform professional services (“Professional Services”) as the parties may agree upon in writing in the form of a work order or other writing (“Work Order”). Vendor will use reasonable efforts to carry out the Professional Services stated in the Work Order and to provide any resulting functionality in the Service made available online to User. Except as the parties otherwise agree in a Work Order, Professional Services and the results thereof are made available “AS IS.” Training provided at User’s request will be deemed Professional Services under this Agreement.
    2. 18.2. Unless otherwise agreed in writing in the Work Order, Professional Services are provided by Vendor on a time and materials basis at Vendor’s then applicable rates and subject to such non-refundable deposit or advance payment as Vendor may require. Maintenance and support of code or functionality created by means of Professional Services will likewise be on a Work Order basis under this Section unless otherwise agreed in writing. The code, materials, and functionality made or provided under this Section and all interests therein, including copyrights, will be Vendor’s property unless otherwise agreed in writing. Vendor may bill for Professional Services on a weekly or monthly basis, at its discretion.
  19. 19. Indemnification

    1. 19.1. User will defend, indemnify, and hold Vendor (and its officers, directors, employees and agents) harmless from and against all Losses arising out of or in connection with a claim, suit, action, or proceeding by a third party (i) alleging that the User Data or other data or information supplied by User infringes the intellectual property rights or other rights of a third party or has caused harm to a third party or (ii) arising out of breach of Sections 10 (Appropriate Use of the Service) or 11 (Passwords and Access) above.
    2. 19.2. User will defend, indemnify, and hold Vendor (and its officers, directors, employees and agents) harmless from any expense or cost arising from any third party subpoena or compulsory legal order or process that seeks User Data and/or other User-related information or data, including, without limitation, prompt payment to Vendor of all costs (including attorneys’ fees) incurred by Vendor as a result. In case of such subpoena or compulsory legal order or process, User also agrees to pay Vendor for its staff time in responding to such third party subpoena or compulsory legal order or process at Vendor’s then applicable hourly rates.
    3. 19.3. In case of any claim that is subject to indemnification under this Agreement, the party that is indemnified will provide User reasonably prompt notice of the relevant claim, provided that failure to provide prompt notice will not excuse compliance with this Section except to the extent that the failure to notify promptly has adversely affected the defense of the claim.
  20. 20. Disclaimers and Limitations

    1. 20.1. THE WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY VENDOR. THERE ARE NO OTHER WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE SERVICE AND VENDOR CONTENT ARE PROVIDED TO USER ON AN “AS IS” AND “AS AVAILABLE” BASIS. USER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICE OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR USER’S PURPOSES. VENDOR DOES NOT WARRANT THAT USE OF THE SYSTEM WILL BE ERROR-FREE OR UNINTERRUPTED. VENDOR IS NOT RESPONSIBLE FOR SOFTWARE INSTALLED OR USED BY USER OR USERS OR FOR THE OPERATION OR PERFORMANCE OF THE INTERNET.
    2. 20.2. Except with regard to User’s payment obligations and with regard to indemnification obligations, in no event will either party’s aggregate liability exceed the license fees paid or due for the current twelve (12) month period measured by the payment obligation at the time of the event or circumstance giving rise to such claim. Except in regard to a User breach of Sections 10 (Appropriate Use of the Service) or 11 (Passwords and Access), in no event will either party be liable for any indirect, special, incidental, consequential damages of any type or kind (including, without limitation, loss of data, revenue, profits, use or other economic advantage).
    3. 20.3. The Service may include gateways, links or other functionality that allows User to access third party services (“Third Party Services”) and/or third party content and materials (“Third Party Materials”). Vendor does not supply and is not responsible for any Third Party Services or Third Party Materials, which may be subject to their own licenses, end-user agreements, privacy and security policies, and/or terms of use. VENDOR MAKES NO WARRANTY AS TO THIRD PARTY SERVICES OR THIRD PARTY MATERIALS. All Third Party Offerings are provided “AS IS” and WITHOUT WARRANTY, unless otherwise agreed in writing.
  21. 21. Confidentiality

    1. 21.1. “Confidential Information” means non-public information, technical data or know-how of a party and/or its affiliates, which is furnished to the other party in written or tangible form in connection with this Agreement. Oral disclosure will also be deemed Confidential Information if it would reasonably be considered to be of a confidential nature or if it is confirmed at the time of disclosure to be confidential.
    2. 21.2. Notwithstanding the foregoing, Confidential Information does not include information which is: (i) already in the possession of the receiving party and not subject to a confidentiality obligation to the providing party; (ii) independently developed by the receiving party; (iii) publicly disclosed through no fault of the receiving party; (iv) rightfully received by the receiving party from a third party that is not under any obligation to keep such information confidential; (v) approved for release by written agreement with the disclosing party; or (vi) disclosed pursuant to the requirements of law, regulation, or court order, provided that the receiving party will promptly inform the providing party of any such requirement and cooperate with any attempt to procure a protective order or similar treatment.
    3. 21.3. Neither party will use the other party’s Confidential Information except as reasonably required for the performance of this Agreement. Each party will hold in confidence the other party’s Confidential Information by means that are no less restrictive than those used for his, her or its own confidential materials. Each party agrees not to disclose the other party’s Confidential Information to anyone other than his, her or its employees or subcontractors who are bound by confidentiality obligations and who need to know the same to perform such party’s obligations hereunder. The confidentiality obligations set forth in this Section will survive for two (2) years after the termination or expiration of this Agreement.
    4. 21.4. Upon termination or expiration of this Agreement, except as otherwise agreed in writing or otherwise stated in this Agreement, each party will, upon the request of the disclosing party, either: (i) return all of such Confidential Information of the disclosing party and all copies thereof in the receiving party’s possession or control to the disclosing party; or (ii) destroy all Confidential Information and all copies thereof in the receiving party’s possession or control. The receiving party will then, at the request of the disclosing party, certify in writing that no copies have been retained by the receiving party, its employees or agents.
    5. 21.5. In case a party receives legal process that demands or requires disclosure of the disclosing party’s Confidential Information, such party will give prompt notice to the disclosing party, if legally permissible, to enable the disclosing party to challenge such demand.
  22. 22. Term and Termination

    1. 22.1. The initial term of this Agreement (“Initial Term”) will begin on the Effective Date and continue under the end of the initial term as stated in the Pricing Schedule. This Agreement will automatically renew for successive periods as stated in the Pricing Schedule (each a “Renewal Term”) beginning at the end of the Initial Term, unless User provides notice of termination not less than thirty (30) days before the end of the Initial Term or current Renewal Term, as applicable. Vendor reserves the right to terminate this Agreement for convenience not less than six (6) month’s notice.
    2. 22.2. The Term commences on the Effective Date. User's obligation to pay periodic license fees will start upon the end of the applicable Trial Period (if any) or the date of acceptance of this Agreement (whichever is later) and apply to the remainder of the Term. User may terminate a trial subscription at any time before the end of the applicable Trial Period (if any) by sending email to subscriptions@sustainableminds.com.
    3. 22.3. Applicable Pricing will continue unchanged from the previous term unless Vendor notifies User of changes in pricing at least fifteen (15) days prior to the expiration of the Initial Term or current Renewal Term, as applicable. Any price change will become effective for the following yearly Renewal Term and thereafter until changed as provided for in this Agreement. Notice of changes pricing may be made, at Vendor’s option, by posting the change on Vendor’s web site or by email.
    4. 22.4. Vendor, in its sole discretion, may suspend or terminate User’s username and password, account, or use of the Service and/or terminate this Agreement if User materially breaches this Agreement.
    5. 22.5. In the event that this Agreement is terminated (for any reason), Vendor will, within five (5) days of a User’s request and, at User’s expense charged at Vendor’s applicable rates, make available one backup of the User Data in Vendor’s standard format. User agrees and acknowledges that Vendor has no obligation to retain and may delete User Data that remains in Vendor’s possession or control more than sixty (60) days after termination. There will be no refunds provided for early termination, except that in the case of termination for Vendor’s uncured material breach, Vendor will return the unconsumed portion of any advance payment on a pro rata basis.
    6. 22.6. The following provisions will survive termination: all definitions, User’s accrued financial obligations, the license to User Data to the extent reasonable for Vendor’s discharge of its post-termination obligations, and the following Sections and paragraphs: 1 (Definitions), 7 (with regard to payments due or accrued), 12 (User Data), 14 (Vendor’s Ownership), 15 (Restrictions on Use of the Service), 19 (Indemnification), 20 (Disclaimers and Limitations), 21 (Confidentiality), 22.5 (Return of User Data), 22.6 (Survival of Provisions), 23 (Notice), 25 (Non-Solicitation), and 26 (Miscellaneous).
  23. 23. Notice

    Vendor may give notice by means of email to User’s email address as stated in User’s account, by posting a notice on the Service or Vendor’s Website, or by written communication sent by first class mail or by courier service to User’s address on record in User’s account. Such notice will be deemed to have been given upon the expiration of thirty-six (36) hours after mailing (if sent by first class mail) or sending by courier or twelve (12) hours after sending (if sent by email) or posting, or, if earlier, when received. User may give notice to Vendor by return receipt e-mail to accountspayable@sustainableminds.com, first class mail or courier to Vendor’s then current postal address as specified on Vendor’s website (currently 101 Summit Ave. Unit A, Brookline, MA 02446). A party may, by giving notice, change his, her or its applicable address, email, or other contact information.

  24. 24. Assignment

    This Agreement may not be assigned by User without the prior written approval of Vendor but may be assigned by Vendor to (i) a parent or subsidiary, (ii) an acquirer of all or substantially all of Vendor’s assets involved in the operations relevant to this Agreement, or (iii) a successor by merger or other combination. Any purported assignment in violation of this Section will be void. This agreement may be enforced by and is binding on permitted successors and assigns.

  25. 25. Non-Solicitation.

    During the Term of this Agreement and for a period of one (1) year thereafter, User will not, will not, directly or indirectly: (i) solicit for employment or for performance of any services any person employed by Vendor or (ii) hire or engage for any services any person employed by Vendor. In the event of a breach of this non-solicitation clause, User agrees to pay Vendor compensation equal to fifty percent (50%) of the Vendor’s employee’s yearly salary as liquidated damages, which User agrees is fair and reasonable compensation for Vendor.

  26. 26. Miscellaneous

    1. 26.1. Choice of Law; Jurisdiction. This Agreement will be interpreted fairly in accordance with its terms, without any strict construction in favor of or against either party and in accordance with the laws of the State of Massachusetts and applicable US federal law. The state and federal courts located in the City of Boston, Massachusetts USA will have exclusive jurisdiction and venue over any dispute or controversy arising from or relating to this Agreement or its subject matter.
    2. Vendor may, by written notice, make changes to this Agreement on no less than fifteen (15) days notice. Changes, unless otherwise agreed in writing, will be effective at the end of the current Initial Term or Renewal Term as applicable.
    3. 26.3. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) will be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
    4. 26.4. No Agency.No joint venture, partnership, employment, or agency relationship exists between User and Vendor as a result of this Agreement or use of the Service.
    5. 26.5. No Waiver. The failure of Vendor to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by Vendor in writing.
    6. 26.6. Force Majeure. Except for the payment by User, if the performance of this Agreement by either party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of such party, that party will be excused from such to the extent that he, she or it is prevented, hindered or delayed by such causes.
    7. 26.7. Entire Agreement. This Agreement, together with any applicable Schedule(s), comprises the entire agreement between User and Vendor and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. No amendment to or modification of this Agreement will be binding unless in writing and signed by an authorized representative of each party.