TERMS AND CONDITIONS

BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS OR BY EXECUTING AN ORDER FORM THAT REFERENCES THESE TERMS AND CONDITIONS (THE “ORDER FORM”, AND TOGETHER WITH THESE TERMS AND CONDITIONS, THIS “AGREEMENT”), YOU AGREE YOU HAVE READ AND ARE BOUND BY THE TERMS OF THIS AGREEMENT.  IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERM “CUSTOMER” WILL REFER TO SUCH ENTITY.  IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE PATHWAYS SERVICE (AS DEFINED BELOW).

BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS OR BY EXECUTING AN ORDER FORM THAT REFERENCES THESE TERMS AND CONDITIONS (THE “ORDER FORM”, AND TOGETHER WITH THESE TERMS AND CONDITIONS, THIS “AGREEMENT”), YOU AGREE YOU HAVE READ AND ARE BOUND BY THE TERMS OF THIS AGREEMENT.  IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERM “CUSTOMER” WILL REFER TO SUCH ENTITY.  IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE PATHWAYS SERVICE (AS DEFINED BELOW).

BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS OR BY EXECUTING AN ORDER FORM THAT REFERENCES THESE TERMS AND CONDITIONS (THE “ORDER FORM”, AND TOGETHER WITH THESE TERMS AND CONDITIONS, THIS “AGREEMENT”), YOU AGREE YOU HAVE READ AND ARE BOUND BY THE TERMS OF THIS AGREEMENT.  IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERM “CUSTOMER” WILL REFER TO SUCH ENTITY.  IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE PATHWAYS SERVICE (AS DEFINED BELOW).

This Agreement, by and between Customer and Pathways Technologies, Inc. (“Pathways”), is effective as of the date set forth in the Order Form or the date on which Customer clicks a box accepting this Agreement (the “Effective Date”) and governs Customer’s use of Pathways’ proprietary software-as-a-service platform and other services as may be described in the Order Form (the “Pathways Service”).  Pathways reserves the right to change or modify portions of these Terms and Conditions at any time.  If Pathways does so, it will post the changes on this page and will indicate at the top of this page the date these Terms and Conditions was last revised.  Pathways will also notify Customer, either through an email notification or through other reasonable means.  Any such changes will become effective upon renewal of this Agreement in accordance with Section 4.1 below. Each of Pathways and Customer may be referred to herein individually as a “Party” or collectively as “Parties”.


  1. ACCESS TO PATHWAYS SERVICE.


    1. Access Grant.  Pathways will use commercially reasonable efforts to make the Pathways Service available to Customer.  Subject to the terms and conditions of this Agreement, Pathways hereby grants Customer a limited, non-exclusive, non-transferable, non-sublicensable right to access and use the Pathways Service during the Term (as defined below), solely for Customer’s internal business purposes.


    2. Restrictions and Responsibilities.  Customer will not use the Pathways Service for any purpose other than the purposes expressly set forth herein.  Customer may not, directly or indirectly:  (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Pathways Service; (b) modify, translate, or create derivative works based on the Pathways Service; (c) use the Pathways Service for timesharing or service bureau purposes or otherwise for the benefit of a third party; (d) remove any proprietary notices or labels; or (e) create or develop any services that are competitive of or a substitute for any Pathways Service.  Customer will be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Pathways Service, including, without limitation, modems, hardware, server, software, operating system, networking, web servers and the like.  Customer will also be responsible for maintaining the confidentiality of Customer’s usernames, passwords and account details, and for any actions taken by parties with access to such usernames and passwords.  Customer agrees not to disclose such usernames and passwords to any third parties (other than employees of Customer).  Customer will inform Pathways immediately if it discovers that any such username and/or password has been disclosed or made available to a third party, or that any unauthorized third party is otherwise accessing or using the Pathways Service.  Without limiting any other rights or remedies set forth herein or available pursuant to law, Pathways may immediately suspend Customer’s access to the Pathways Service if Customer is in breach of any term or condition of this Agreement.


    3. License to Customer Data.  Customer hereby grants to Pathways a non-exclusive, royalty-free, fully paid up, non-sublicensable (except to contractors and consultants performing services on behalf of Pathways), non-transferable (subject to Section 10.6) right and license to copy, distribute, display, create derivative works of and otherwise use the data, information, text, content, APIs and any other materials submitted, transmitted or uploaded by Customer via the Pathways Service (the “Customer Data”) to (a) provide the Pathways Service and otherwise perform Pathways’ obligations under this Agreement, (b) improve and develop Pathways’ products and services, including by training and developing models and/or algorithms, and (c) create deidentified data (“Deidentified Data”), which Deidentified Data will not identify Customer or any individuals associated therewith.  For the avoidance of doubt, Deidentified Data is not Customer Data.


    4. Feedback.  Customer may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to Pathways with respect to the Pathways Service or Evaluation Services (as defined below).  Pathways will have full discretion to determine whether or not to proceed with the development of the requested enhancements, new features or functionality.  Customer hereby grants to Pathways a royalty-free, fully paid up, worldwide, transferable, sublicensable (through multiple tiers), irrevocable, perpetual license to (a) copy, distribute, transmit, display, perform, and create derivative works of the Feedback, and (b) use the Feedback and/or any subject matter thereof, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody, or are configured for use in practicing, the Feedback and/or any subject matter of the Feedback.  Customer acknowledges and agrees that Feedback is not Confidential Information (as defined below).


    5. Evaluation Services.  From time to time, Customer may be invited to try certain services at no charge for a free trial or evaluation period or if such services are not generally available to customers (collectively, “Evaluation Services”).  Evaluation Services will be designated as beta, pilot, evaluation, trial, limited release or the like.  Evaluation Services are for Customer’s internal evaluation purposes only and, notwithstanding anything to the contrary set forth herein, are provided “as is” without warranty of any kind, and may be subject to additional terms.  Unless otherwise stated, any Evaluation Services trial period will expire sixty (60) days from the trial start date.  Pathways may discontinue Evaluation Services at any time in its sole discretion and may never make them generally available.  Pathways will have no liability for any harm or damage arising out of or in connection with any Evaluation Services.


    6. Third Party Services.  The Pathways Service may enable access to or integration with certain third party services, products, solutions, software or technology which are currently or may be in the future utilized by Customer and with respect to which Customer has a separate contractual relationship with the applicable third party (collectively, the “Third Party Services”).  The Third Party Services may also be subject to additional terms and conditions, privacy policies, or other agreements with such third party, and Customer may be required to authenticate to or create separate accounts to use Third Party Services.  Some Third Party Services may provide Pathways with access to certain information that Customer has provided to such Third Party Services.  Any data, information or other materials related to Customer collected via or received by Pathways from any Third Party Service will be deemed Customer Data.  Pathways has no control over and is not responsible for such Third Party Services, including the accuracy, availability, reliability or completeness of information shared by or available through the Third Party Services, or on the privacy practices of the Third Party Services.  Pathways will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any Third Party Services.  Pathways enables these Third Party Services merely as a convenience and the integration or inclusion of such Third Party Services does not imply an endorsement or recommendation.  Any dealings Customer has with third parties while using the Pathways Service are between Customer and the third party.  Pathways is not liable for any loss caused by or claim that Customer may have against any such third party or that arise under Customer’s agreements with any such third party.


    7. Customer Cooperation.  Customer understands that Pathways’ performance is dependent in part on the actions of Customer.  Accordingly, Customer in a timely manner will provide Pathways with the necessary items and assistance specified in the Order Form and otherwise cooperate with the reasonable requests of Pathways as made from time to time in connection with the Pathways Services.  Any dates or time periods relevant to performance by Pathways hereunder will be appropriately and equitably extended to account for any delays due to Customer.  If any Customer delay or Force Majeure Event (as defined below) would materially change the economics of Pathways’ performance or materially extend the time for performance, Pathways may terminate this Agreement upon thirty (30) days written notice, unless within such notice period the Parties agree on mutually acceptable changes to this Agreement and/or the Order Form (including the fees and payment terms set forth therein).


  2. OWNERSHIP; RESERVATION OF RIGHTS.  


    1. Retained Rights.  Customer acknowledges and agrees that, as between the Parties, Pathways retains all right, title and interest in and to (a) the Pathways Service, (b) all methodologies, tools, models, algorithms, software, documentation, know-how, trade secrets, inventions, works of authorship and other intellectual property of any kind, in any form or medium, underlying or otherwise related to the Pathways Service or which has general applicability to Pathways’ business, (c) all improvements, enhancements or modifications thereto, whether or not developed based on Customer’s Feedback, and (d) all associated intellectual property rights with any of the foregoing described in immediately preceding subclauses (a)-(c) (collectively, “Pathways Background IP”).  Pathways grants no, and reserves any and all, rights with respect to the Pathways Service or the Pathways Background IP other than the rights expressly granted to Customer under this Agreement.  Customer will acquire no right, title, or interest in and to the Pathways Service or the Pathways Background IP other than the limited licensed rights expressly granted under  Sections 1.1 above and 2.2(b) below, respectively.  Notwithstanding the foregoing, except for the limited rights expressly granted to Pathways under this Agreement, Customer retains all right, title and interest in and to the Customer Data.


    2. Ownership of EPD and Limited License. To the extent an Environmental Product Declaration is prepared by Pathways for Customer through the Pathways Service and is expressly identified as a deliverable on the Order Form (the “EPD”), upon acceptance of such EPD and payment in full of all amounts due under this Agreement, and subject to the other terms and conditions of this Agreement, (a) Customer will own all copyrights in the EPD (excluding any Pathways Background IP) and Pathways hereby assigns all such copyrights (excluding any Pathways Background IP) to Customer and (b) Pathways hereby grants Customer a limited nonexclusive license under its copyrights to copy, distribute, transmit, and display any Pathways Background IP incorporated into such EPD solely in connection with and not separate or apart from such EPD.


  3. FEES; PAYMENT TERMS.


    1. Fees; Payment Terms.  In exchange for use of the Pathways Service and the rights granted pursuant to this Agreement, Customer will pay to Pathways the fees set forth in the Order Form (the “Fees”) in accordance with the terms and conditions set forth herein and therein.  Payment obligations are non-cancelable and any Fees paid are non-refundable. Unless set forth otherwise in the Order Form, full payment for any invoices must be received by Pathways within fifteen (15) days after the issuance date of the invoice.  Unpaid Fees are subject to a finance charge of 1.5% per month, or the maximum permitted by law, whichever is lower.


    2. Net of Taxes.  All amounts payable by Customer to Pathways hereunder are exclusive of any sales, use and other taxes or duties, however designated, including without limitation, withholding taxes, royalties, know-how payments, customs, privilege, excise, sales, use, value-added and property taxes (collectively “Taxes”).  Customer will be solely responsible for payment of any Taxes, except for those taxes based on the income of Pathways.  Customer will not withhold any Taxes from any amounts due Pathways.


  4. TERM; TERMINATION.


    1. Term; Termination.  Subject to earlier termination as set forth in this Agreement, this Agreement will commence on the Effective Date and continue for the initial term set forth in the Order Form (the “Initial Term”), and will automatically renew for additional periods of one (1) year each, unless either Party provides written notice of non-renewal at least sixty (60) days prior to the end of the then-current term (each, a “Renewal Term”, and together with the Initial Term, the “Term”).  The pricing during any Renewal Term will be the same as that during the immediately prior term unless Pathways has given Customer written notice of a pricing increase at least ninety (90) days prior to the end of such prior term, in which case the pricing increase will be effective upon renewal and thereafter.  In addition, a Party may terminate this Agreement immediately upon written notice to the other Party if such other Party materially breaches any material provision of this Agreement and does not cure such material breach within thirty (30) days after receiving written notice thereof.


    2. Effect of Termination.  In the event that this Agreement expires or is terminated for any reason, all rights granted to Customer with respect to the Pathways Service will immediately terminate, and Customer will (a) cease use of the Pathways Service; and (b) pay to Pathways all amounts due and owing under this Agreement (to the extent not previously paid).  In addition, upon expiration or termination of this Agreement, each Recipient (as defined below) will return to the Discloser (as defined below) or destroy, at the Discloser’s election, all of the Discloser’s Confidential Information and all copies or other tangible embodiments thereof.


    3. Survival.  Upon expiration or termination of this Agreement, all obligations in this Agreement will terminate, provided that Sections 1.2 (Restrictions and Responsibilities), 1.4 (Feedback), 2 (Ownership; Reservation of Rights), 3 (Fees; Payment Terms), 4 (Term; Termination), 5 (Confidentiality), 6.2 (Disclaimers), 6.3 (No Professional Advice), 7 (Limitations of Liability), 8 (Indemnification) and 10 (General) will survive.


  5. CONFIDENTIALITY.


    1. Definition of Confidential information.  “Confidential Information” means, subject to the exceptions set forth in Section 5.2 hereof, any information or data or materials, regardless of whether it is in tangible form, that is disclosed or otherwise made available by a Party (the “Discloser”) to the other Party (the “Recipient”) and that (a) the Discloser has marked as confidential or proprietary, or (b) the Discloser identifies as confidential at the time of disclosure with written confirmation within fifteen (15) days of disclosure to the Recipient; provided, however, that reports and/or information related to or regarding the Discloser’s business plans, business methodologies, strategies, technology, specifications, development plans, customers, prospective customers, partners, suppliers billing records, and products or services will be deemed Confidential Information of the Discloser even if not so marked or identified, unless such information is the subject of any of the exceptions set forth in Section 5.2 hereof.


    2. Exceptions to Confidential Information.  Confidential Information will not include any information which: (a) the Recipient can show by written record was in its possession prior to disclosure by the Discloser hereunder, provided that the Recipient must promptly notify the Discloser of any prior knowledge; (b) is or becomes generally known by the public other than through the Recipient’s failure to observe any or all terms and conditions hereof; or (c) subsequent to disclosure to the Recipient by the Discloser, is obtained by the Recipient from a third person who is not subject to any confidentiality obligation in favor of Discloser.


    3. Use and Disclosure of Confidential Information.  The Recipient may only use the Confidential Information for the purpose of performing its obligations and exercising its rights hereunder.  The Recipient must keep secret and will never disclose, publish, divulge, furnish or make accessible to anyone any of the Confidential Information of the Discloser, directly or indirectly, other than furnishing such Confidential Information to (a) the Recipient’s employees and contractors who are required to have access to such Confidential Information in connection with the performance of the Recipient’s obligations, or the exercise of the Recipient’s rights, hereunder, and (b) professional advisers (e.g., lawyers and accountants), in each case, during the time that the Recipient is permitted to retain such Confidential Information hereunder; provided that any and all such employees or contractors are bound by written agreements or, in the case of professional advisers, ethical duties, respecting the Confidential Information in the manner set forth in this Agreement.  The Recipient will use at least reasonable care and adequate measures to protect the security of the Confidential Information of the Discloser and to ensure that any Confidential Information of the Discloser is not disclosed or otherwise made available to other persons or used in violation of this Agreement.


    4. Disclosures Required by Law.  In the event that the Recipient is required by law to make any disclosure of any of the Confidential Information of the Discloser, by subpoena, judicial or administrative order or otherwise, the Recipient will first give written notice of such requirement to the Discloser, and will permit the Discloser to intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide full cooperation and assistance to the Discloser in seeking to obtain such protection.


  6. REPRESENTATIONS and WARRANTIES; DISCLAIMER.


    1. Mutual Representations and Warranties.  Each Party represents and warrants to the other Party that (a) such Party has the required power and authority to enter into this Agreement and to perform its obligations hereunder, (b) the execution of this Agreement and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party, and (c) this Agreement constitutes a legal, valid and binding obligation when signed by both Parties.  


    2. Customer Representations and Warranties.  Customer further represents, warrants and covenants that (i) it is solely responsible for all Customer Data; (ii) it has all rights necessary to permit Pathways to use the Customer Data as contemplated hereunder, (iii) the Customer Data will be true, accurate and complete, (iv) Customer will use the Pathways Service only in compliance with Pathways’ standard published policies then in effect and all applicable laws and regulations and (v) Customer will not publicly display or distribute any EPD until and unless such EPD is verified in writing by an independent third party verifier and Program Operator through a demonstration that the associated Customer Data was collected in accordance with the applicable Product Category Rules (“PCR”) and meets all International Organization for Standardization (“ISO”) requirements. 


    3. Pathways Representations and Warranties.  Pathways further represents, warrants and covenants that it will use commercially reasonable efforts to produce an EPD that is verifiable by an independent third party verifier; provided that all associated Customer Data was collected in accordance the applicable PCR and meets all ISO requirements. Customer’s exclusive remedy and Pathways’ entire liability for a breach of the foregoing will be, as determined by Pathways, to either (i) correct the non-conformance of applicable EPD free of charge, or (ii) reimburse Customer on a pro-rata basis the Fees attributable to such EPD.


    4. Disclaimers.  EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6.3 ABOVE, ANY AND ALL SERVICES AND DELIVERABLES PROVIDED OR OTHERWISE MADE AVAILABLE UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, THE PATHWAYS SERVICE AND ANY EVALUATION SERVICES AND THIRD PARTY SERVICES, ARE PROVIDED ON AN “AS-IS” BASIS AND PATHWAYS DISCLAIMS ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER.  PATHWAYS EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. PATHWAYS DOES NOT WARRANT THAT THE PATHWAYS SERVICE IS ERROR-FREE OR THAT OPERATION OF THE PATHWAYS SERVICE WILL BE SECURE OR UNINTERRUPTED.


  7. LIMITATIONS OF LIABILITY.


    1. Disclaimer of Consequential Damages.  EXCEPT FOR LIABILITY ARISING FROM (A) CUSTOMER’S BREACH OF SECTION 1.2 (RESTRICTIONS AND RESPONSIBILITIES) ABOVE AND (B) EITHER PARTY’S BREACH OF SECTION 5 (CONFIDENTIALITY) ABOVE, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, RELIANCE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, LOST OR DAMAGED DATA, LOST PROFITS OR LOST REVENUE, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF A PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY THEREOF.


    2. General Cap on Liability.  EXCEPT FOR LIABILITY ARISING FROM (A) CUSTOMER’S BREACH OF SECTION 1.2 (RESTRICTIONS AND RESPONSIBILITIES) ABOVE, (B) EITHER PARTY’S BREACH OF SECTION 5 (CONFIDENTIALITY) ABOVE, (C) A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTIONS 8.1 AND 8.2 BELOW AND (D) CUSTOMER’S PAYMENT OBLIGATIONS, AS APPLICABLE, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S LIABILITY FOR ALL CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE AGGREGATE FEES PAID BY CUSTOMER TO PATHWAYS UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM.  THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.


    3. Independent Allocations of Risk.  EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES.  EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THEY HAVE FAILED OF THEIR ESSENTIAL PURPOSE.


  8. INDEMNIFICATION.


    1. Indemnification by Pathways.  Pathways will indemnify, defend and hold Customer and the officers, directors, agents, and employees of Customer (“Customer Indemnified Parties”) harmless from settlement amounts and damages, liabilities, penalties, costs and expenses (“Liabilities”) that are payable to any third party by the Customer Indemnified Parties (including reasonable attorneys’ fees) arising from any claim, demand or allegation by a third party that the Pathways Service infringes or misappropriates any United States copyright or trade secret (except for claims for which Pathways is entitled to indemnification under Section 8.2, in which case Pathways will have no indemnification obligations with respect to such claim). Pathways will have no liability or obligation under this Section 8.1 with respect to any Liability if such Liability is caused in whole or in part by:  (a) modification of the Pathways Service by any party other than Pathways; (b) the combination, operation, or use of the Pathways Service with other product(s), data or services where the Pathways Service would not by itself be infringing; or (c) unauthorized or improper use of the Pathways Service.  This Section 8.1 states Pathways’ entire obligation and Customer’s sole remedies in connection with any claim regarding the intellectual property rights of any third party.


    2. Indemnification by Customer.  Customer will indemnify, defend and hold Pathways and the officers, directors, agents, and employees of Pathways (“Pathways Indemnified Parties”) harmless from Liabilities that are payable to any third party by the Pathways Indemnified Parties (including reasonable attorneys’ fees) arising from, directly or indirectly, any claim, demand or allegation by a third party that arises out of or is in connection with (a) any use by Customer of the Pathways Service in violation of this Agreement, (b) the Customer Data, including Pathways’ use of the Customer Data in accordance with this Agreement, (c) any EPD made available to Customer or (d) Customer’s violation of any terms and conditions related to and/or governing use of any Third Party Services.


    3. Action in Response to Potential Infringement.  If the use of the Pathways Service or any portion thereof by Customer has become, or in Pathways’ opinion is likely to become, the subject of any claim of infringement, Pathways may at its option and expense (a) procure for Customer the right to continue using the Pathways Service as set forth hereunder; (b) replace or modify the Pathways Service to make it non-infringing so long as the Pathways Service has at least equivalent functionality; (c) substitute an equivalent for the Pathways Service or (d) if options (a)-(c) are not reasonably practicable, terminate this Agreement.


    4. If a Customer Indemnified Party or a Pathways Indemnified Party (each, an “Indemnified Party”) becomes aware of any matter it believes it should be indemnified under Section 8.1 or Section 8.2, as applicable, involving any claim, action, suit, investigation, arbitration or other proceeding against the Indemnified Party by any third party (each an “Action”), the Indemnified Party will give the other Party (the “Indemnifying Party”) prompt written notice of such Action.  The Indemnified Party will cooperate, at the expense of the Indemnifying Party, with the Indemnifying Party and its counsel in the defense and the Indemnified Party will have the right to participate fully, at its own expense, in the defense of such Action with counsel of its own choosing.  Any compromise or settlement of an Action will require the prior written consent of both Parties hereunder, such consent not to be unreasonably withheld or delayed.


  9. GOVERNMENT MATTERS.  Customer may not remove or export from the United States or allow the export or re-export of the Pathways Service, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.  As defined in FAR section 2.101, the Pathways Service (including the software, documentation and data related thereto) are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.”  Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.


  10. GENERAL.


    1. Force Majeure.  No Party will have any liability under this Agreement for such Party’s failure or delay in performing any of the obligations imposed by this Agreement to the extent such failure or delay is the result of any event beyond such Party’s reasonable control, including:  (a) any fire, explosion, unusually severe weather, natural disaster or Act of God; (b) epidemic; any nuclear, biological, chemical, or similar attack; any other public health or safety emergency; any act of terrorism; and any action reasonably taken in response to any of the foregoing; (c) any act of declared or undeclared war or of a public enemy, or any riot or insurrection; (d) damage to machinery or equipment; any disruption in transportation, communications, electric power or other utilities, or other vital infrastructure; or any means of disrupting or damaging internet or other computer networks or facilities; (e)  any strike, lockout or other labor dispute or action; or (f) any action taken in response to any of the foregoing events by any civil or military authority (each, a “Force Majeure Event”).


    2. Severability.  In the event that any provision of this Agreement is found to be unenforceable, such provision will be reformed only to the extent necessary to make it enforceable, and the remainder will continue in effect, to the extent consistent with the intent of the Parties as of the Effective Date.  The terms and conditions of this Agreement are severable.  If any term or condition of this Agreement is deemed to be illegal or unenforceable under any rule of law, all other terms will remain in force.  Further, the term or condition which is held to be illegal or unenforceable will remain in effect as far as possible in accordance with the intention of the Parties as of the Effective Date.


    3. Relationship of the Parties.  Nothing in this Agreement will be construed to place the Parties in an agency, employment, franchise, joint venture, or partnership relationship.  Neither Party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third Parties.  Neither Party will represent to the contrary, either expressly, implicitly or otherwise.


    4. Remedies.  Each Party acknowledges that a breach by it of any of the terms of Section 5 may cause irreparable harm to the Discloser for which Discloser could not be adequately compensated by money damages.  Accordingly, Recipient agrees that, in addition to all other remedies available to Discloser in an action at law, in the event of any breach or threatened breach by the Recipient of the terms of this Agreement, the Discloser may seek, from any court of competent jurisdiction and without the necessity of proving actual damages or posting any bond or other security, temporary and permanent injunctive relief, including specific performance of the terms of Section 5.


    5. Governing Law; Consent to Jurisdiction.  The law, including the statutes of limitation, of the State of New York will govern this Agreement, the interpretation and enforcement of its terms and any claim or cause of action (in law or equity), controversy or dispute arising out of or related to it or its negotiation, execution or performance, whether based on contract, tort, statutory or other law, in each case without giving effect to any conflicts-of-law or other principle requiring the application of the law of any other jurisdiction.  Each of the Parties hereby irrevocably and unconditionally consents to submit to the sole and exclusive jurisdiction of the courts of the State of New York and of the United States of America for any litigation among the Parties arising out of or relating to this Agreement, or the negotiation, validity or performance of this Agreement, waives any objection to the laying of venue of any such litigation in such courts and agrees not to plead or claim in any such court that such litigation brought therein has been brought in any inconvenient forum or that there are indispensable parties to such litigation that are not subject to the jurisdiction of such courts.


    6. Assignment; Delegation; Binding Effect.  Neither Party may assign or transfer this Agreement in whole or in part, by operation of law or otherwise, without the prior written consent of the other Party, except that either Party may assign or transfer this Agreement without the written consent of the other Party to an affiliate or corporation or other business entity succeeding to all or substantially all the assets and business of the assigning Party to which this Agreement relates by merger or purchase.  Pathways may delegate its duties hereunder to any of its affiliates as necessary to perform its obligations hereunder, provided that Pathways will bear full liability and responsibility for their acts and omissions.  Any attempted assignment, delegation or transfer by a Party in violation hereof will be null and void.  Subject to the foregoing, this Agreement will be binding on the Parties and their successors and permitted assigns.


    7. Notices.  All notices under this Agreement will be in writing and will reference this Agreement.  Notices will be deemed given:  (a) when delivered personally; (b) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; (c) by email for which receipt is confirmed or (d) one (1) day after deposit with an internationally recognized commercial overnight carrier, with written verification of receipt.  All communications will be sent to the applicable address provided on the Order Form, or such other addresses subsequently communicated to the other Party in writing in accordance with this Section 10.7.


    8. No Waiver.  Failure by either Party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.


    9. Complete Agreement.  This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof.  It supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter, and prevails over any conflicting terms or conditions contained on printed forms submitted with purchase orders, sales acknowledgments or quotations.  To the extent of any conflict or inconsistency between the provisions in the body of these Terms and Conditions and any applicable Order Form, the applicable term or condition of these Terms and Conditions will prevail, unless the Order Form expressly amends a provision in this Service Agreement.

This Agreement, by and between Customer and Pathways Technologies, Inc. (“Pathways”), is effective as of the date set forth in the Order Form or the date on which Customer clicks a box accepting this Agreement (the “Effective Date”) and governs Customer’s use of Pathways’ proprietary software-as-a-service platform and other services as may be described in the Order Form (the “Pathways Service”).  Pathways reserves the right to change or modify portions of these Terms and Conditions at any time.  If Pathways does so, it will post the changes on this page and will indicate at the top of this page the date these Terms and Conditions was last revised.  Pathways will also notify Customer, either through an email notification or through other reasonable means.  Any such changes will become effective upon renewal of this Agreement in accordance with Section 4.1 below. Each of Pathways and Customer may be referred to herein individually as a “Party” or collectively as “Parties”.


  1. ACCESS TO PATHWAYS SERVICE.


    1. Access Grant.  Pathways will use commercially reasonable efforts to make the Pathways Service available to Customer.  Subject to the terms and conditions of this Agreement, Pathways hereby grants Customer a limited, non-exclusive, non-transferable, non-sublicensable right to access and use the Pathways Service during the Term (as defined below), solely for Customer’s internal business purposes.


    2. Restrictions and Responsibilities.  Customer will not use the Pathways Service for any purpose other than the purposes expressly set forth herein.  Customer may not, directly or indirectly:  (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Pathways Service; (b) modify, translate, or create derivative works based on the Pathways Service; (c) use the Pathways Service for timesharing or service bureau purposes or otherwise for the benefit of a third party; (d) remove any proprietary notices or labels; or (e) create or develop any services that are competitive of or a substitute for any Pathways Service.  Customer will be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Pathways Service, including, without limitation, modems, hardware, server, software, operating system, networking, web servers and the like.  Customer will also be responsible for maintaining the confidentiality of Customer’s usernames, passwords and account details, and for any actions taken by parties with access to such usernames and passwords.  Customer agrees not to disclose such usernames and passwords to any third parties (other than employees of Customer).  Customer will inform Pathways immediately if it discovers that any such username and/or password has been disclosed or made available to a third party, or that any unauthorized third party is otherwise accessing or using the Pathways Service.  Without limiting any other rights or remedies set forth herein or available pursuant to law, Pathways may immediately suspend Customer’s access to the Pathways Service if Customer is in breach of any term or condition of this Agreement.


    3. License to Customer Data.  Customer hereby grants to Pathways a non-exclusive, royalty-free, fully paid up, non-sublicensable (except to contractors and consultants performing services on behalf of Pathways), non-transferable (subject to Section 10.6) right and license to copy, distribute, display, create derivative works of and otherwise use the data, information, text, content, APIs and any other materials submitted, transmitted or uploaded by Customer via the Pathways Service (the “Customer Data”) to (a) provide the Pathways Service and otherwise perform Pathways’ obligations under this Agreement, (b) improve and develop Pathways’ products and services, including by training and developing models and/or algorithms, and (c) create deidentified data (“Deidentified Data”), which Deidentified Data will not identify Customer or any individuals associated therewith.  For the avoidance of doubt, Deidentified Data is not Customer Data.


    4. Feedback.  Customer may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to Pathways with respect to the Pathways Service or Evaluation Services (as defined below).  Pathways will have full discretion to determine whether or not to proceed with the development of the requested enhancements, new features or functionality.  Customer hereby grants to Pathways a royalty-free, fully paid up, worldwide, transferable, sublicensable (through multiple tiers), irrevocable, perpetual license to (a) copy, distribute, transmit, display, perform, and create derivative works of the Feedback, and (b) use the Feedback and/or any subject matter thereof, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody, or are configured for use in practicing, the Feedback and/or any subject matter of the Feedback.  Customer acknowledges and agrees that Feedback is not Confidential Information (as defined below).


    5. Evaluation Services.  From time to time, Customer may be invited to try certain services at no charge for a free trial or evaluation period or if such services are not generally available to customers (collectively, “Evaluation Services”).  Evaluation Services will be designated as beta, pilot, evaluation, trial, limited release or the like.  Evaluation Services are for Customer’s internal evaluation purposes only and, notwithstanding anything to the contrary set forth herein, are provided “as is” without warranty of any kind, and may be subject to additional terms.  Unless otherwise stated, any Evaluation Services trial period will expire sixty (60) days from the trial start date.  Pathways may discontinue Evaluation Services at any time in its sole discretion and may never make them generally available.  Pathways will have no liability for any harm or damage arising out of or in connection with any Evaluation Services.


    6. Third Party Services.  The Pathways Service may enable access to or integration with certain third party services, products, solutions, software or technology which are currently or may be in the future utilized by Customer and with respect to which Customer has a separate contractual relationship with the applicable third party (collectively, the “Third Party Services”).  The Third Party Services may also be subject to additional terms and conditions, privacy policies, or other agreements with such third party, and Customer may be required to authenticate to or create separate accounts to use Third Party Services.  Some Third Party Services may provide Pathways with access to certain information that Customer has provided to such Third Party Services.  Any data, information or other materials related to Customer collected via or received by Pathways from any Third Party Service will be deemed Customer Data.  Pathways has no control over and is not responsible for such Third Party Services, including the accuracy, availability, reliability or completeness of information shared by or available through the Third Party Services, or on the privacy practices of the Third Party Services.  Pathways will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any Third Party Services.  Pathways enables these Third Party Services merely as a convenience and the integration or inclusion of such Third Party Services does not imply an endorsement or recommendation.  Any dealings Customer has with third parties while using the Pathways Service are between Customer and the third party.  Pathways is not liable for any loss caused by or claim that Customer may have against any such third party or that arise under Customer’s agreements with any such third party.


    7. Customer Cooperation.  Customer understands that Pathways’ performance is dependent in part on the actions of Customer.  Accordingly, Customer in a timely manner will provide Pathways with the necessary items and assistance specified in the Order Form and otherwise cooperate with the reasonable requests of Pathways as made from time to time in connection with the Pathways Services.  Any dates or time periods relevant to performance by Pathways hereunder will be appropriately and equitably extended to account for any delays due to Customer.  If any Customer delay or Force Majeure Event (as defined below) would materially change the economics of Pathways’ performance or materially extend the time for performance, Pathways may terminate this Agreement upon thirty (30) days written notice, unless within such notice period the Parties agree on mutually acceptable changes to this Agreement and/or the Order Form (including the fees and payment terms set forth therein).


  2. OWNERSHIP; RESERVATION OF RIGHTS.  


    1. Retained Rights.  Customer acknowledges and agrees that, as between the Parties, Pathways retains all right, title and interest in and to (a) the Pathways Service, (b) all methodologies, tools, models, algorithms, software, documentation, know-how, trade secrets, inventions, works of authorship and other intellectual property of any kind, in any form or medium, underlying or otherwise related to the Pathways Service or which has general applicability to Pathways’ business, (c) all improvements, enhancements or modifications thereto, whether or not developed based on Customer’s Feedback, and (d) all associated intellectual property rights with any of the foregoing described in immediately preceding subclauses (a)-(c) (collectively, “Pathways Background IP”).  Pathways grants no, and reserves any and all, rights with respect to the Pathways Service or the Pathways Background IP other than the rights expressly granted to Customer under this Agreement.  Customer will acquire no right, title, or interest in and to the Pathways Service or the Pathways Background IP other than the limited licensed rights expressly granted under  Sections 1.1 above and 2.2(b) below, respectively.  Notwithstanding the foregoing, except for the limited rights expressly granted to Pathways under this Agreement, Customer retains all right, title and interest in and to the Customer Data.


    2. Ownership of EPD and Limited License. To the extent an Environmental Product Declaration is prepared by Pathways for Customer through the Pathways Service and is expressly identified as a deliverable on the Order Form (the “EPD”), upon acceptance of such EPD and payment in full of all amounts due under this Agreement, and subject to the other terms and conditions of this Agreement, (a) Customer will own all copyrights in the EPD (excluding any Pathways Background IP) and Pathways hereby assigns all such copyrights (excluding any Pathways Background IP) to Customer and (b) Pathways hereby grants Customer a limited nonexclusive license under its copyrights to copy, distribute, transmit, and display any Pathways Background IP incorporated into such EPD solely in connection with and not separate or apart from such EPD.


  3. FEES; PAYMENT TERMS.


    1. Fees; Payment Terms.  In exchange for use of the Pathways Service and the rights granted pursuant to this Agreement, Customer will pay to Pathways the fees set forth in the Order Form (the “Fees”) in accordance with the terms and conditions set forth herein and therein.  Payment obligations are non-cancelable and any Fees paid are non-refundable. Unless set forth otherwise in the Order Form, full payment for any invoices must be received by Pathways within fifteen (15) days after the issuance date of the invoice.  Unpaid Fees are subject to a finance charge of 1.5% per month, or the maximum permitted by law, whichever is lower.


    2. Net of Taxes.  All amounts payable by Customer to Pathways hereunder are exclusive of any sales, use and other taxes or duties, however designated, including without limitation, withholding taxes, royalties, know-how payments, customs, privilege, excise, sales, use, value-added and property taxes (collectively “Taxes”).  Customer will be solely responsible for payment of any Taxes, except for those taxes based on the income of Pathways.  Customer will not withhold any Taxes from any amounts due Pathways.


  4. TERM; TERMINATION.


    1. Term; Termination.  Subject to earlier termination as set forth in this Agreement, this Agreement will commence on the Effective Date and continue for the initial term set forth in the Order Form (the “Initial Term”), and will automatically renew for additional periods of one (1) year each, unless either Party provides written notice of non-renewal at least sixty (60) days prior to the end of the then-current term (each, a “Renewal Term”, and together with the Initial Term, the “Term”).  The pricing during any Renewal Term will be the same as that during the immediately prior term unless Pathways has given Customer written notice of a pricing increase at least ninety (90) days prior to the end of such prior term, in which case the pricing increase will be effective upon renewal and thereafter.  In addition, a Party may terminate this Agreement immediately upon written notice to the other Party if such other Party materially breaches any material provision of this Agreement and does not cure such material breach within thirty (30) days after receiving written notice thereof.


    2. Effect of Termination.  In the event that this Agreement expires or is terminated for any reason, all rights granted to Customer with respect to the Pathways Service will immediately terminate, and Customer will (a) cease use of the Pathways Service; and (b) pay to Pathways all amounts due and owing under this Agreement (to the extent not previously paid).  In addition, upon expiration or termination of this Agreement, each Recipient (as defined below) will return to the Discloser (as defined below) or destroy, at the Discloser’s election, all of the Discloser’s Confidential Information and all copies or other tangible embodiments thereof.


    3. Survival.  Upon expiration or termination of this Agreement, all obligations in this Agreement will terminate, provided that Sections 1.2 (Restrictions and Responsibilities), 1.4 (Feedback), 2 (Ownership; Reservation of Rights), 3 (Fees; Payment Terms), 4 (Term; Termination), 5 (Confidentiality), 6.2 (Disclaimers), 6.3 (No Professional Advice), 7 (Limitations of Liability), 8 (Indemnification) and 10 (General) will survive.


  5. CONFIDENTIALITY.


    1. Definition of Confidential information.  “Confidential Information” means, subject to the exceptions set forth in Section 5.2 hereof, any information or data or materials, regardless of whether it is in tangible form, that is disclosed or otherwise made available by a Party (the “Discloser”) to the other Party (the “Recipient”) and that (a) the Discloser has marked as confidential or proprietary, or (b) the Discloser identifies as confidential at the time of disclosure with written confirmation within fifteen (15) days of disclosure to the Recipient; provided, however, that reports and/or information related to or regarding the Discloser’s business plans, business methodologies, strategies, technology, specifications, development plans, customers, prospective customers, partners, suppliers billing records, and products or services will be deemed Confidential Information of the Discloser even if not so marked or identified, unless such information is the subject of any of the exceptions set forth in Section 5.2 hereof.


    2. Exceptions to Confidential Information.  Confidential Information will not include any information which: (a) the Recipient can show by written record was in its possession prior to disclosure by the Discloser hereunder, provided that the Recipient must promptly notify the Discloser of any prior knowledge; (b) is or becomes generally known by the public other than through the Recipient’s failure to observe any or all terms and conditions hereof; or (c) subsequent to disclosure to the Recipient by the Discloser, is obtained by the Recipient from a third person who is not subject to any confidentiality obligation in favor of Discloser.


    3. Use and Disclosure of Confidential Information.  The Recipient may only use the Confidential Information for the purpose of performing its obligations and exercising its rights hereunder.  The Recipient must keep secret and will never disclose, publish, divulge, furnish or make accessible to anyone any of the Confidential Information of the Discloser, directly or indirectly, other than furnishing such Confidential Information to (a) the Recipient’s employees and contractors who are required to have access to such Confidential Information in connection with the performance of the Recipient’s obligations, or the exercise of the Recipient’s rights, hereunder, and (b) professional advisers (e.g., lawyers and accountants), in each case, during the time that the Recipient is permitted to retain such Confidential Information hereunder; provided that any and all such employees or contractors are bound by written agreements or, in the case of professional advisers, ethical duties, respecting the Confidential Information in the manner set forth in this Agreement.  The Recipient will use at least reasonable care and adequate measures to protect the security of the Confidential Information of the Discloser and to ensure that any Confidential Information of the Discloser is not disclosed or otherwise made available to other persons or used in violation of this Agreement.


    4. Disclosures Required by Law.  In the event that the Recipient is required by law to make any disclosure of any of the Confidential Information of the Discloser, by subpoena, judicial or administrative order or otherwise, the Recipient will first give written notice of such requirement to the Discloser, and will permit the Discloser to intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide full cooperation and assistance to the Discloser in seeking to obtain such protection.


  6. REPRESENTATIONS and WARRANTIES; DISCLAIMER.


    1. Mutual Representations and Warranties.  Each Party represents and warrants to the other Party that (a) such Party has the required power and authority to enter into this Agreement and to perform its obligations hereunder, (b) the execution of this Agreement and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party, and (c) this Agreement constitutes a legal, valid and binding obligation when signed by both Parties.  


    2. Customer Representations and Warranties.  Customer further represents, warrants and covenants that (i) it is solely responsible for all Customer Data; (ii) it has all rights necessary to permit Pathways to use the Customer Data as contemplated hereunder, (iii) the Customer Data will be true, accurate and complete, (iv) Customer will use the Pathways Service only in compliance with Pathways’ standard published policies then in effect and all applicable laws and regulations and (v) Customer will not publicly display or distribute any EPD until and unless such EPD is verified in writing by an independent third party verifier and Program Operator through a demonstration that the associated Customer Data was collected in accordance with the applicable Product Category Rules (“PCR”) and meets all International Organization for Standardization (“ISO”) requirements. 


    3. Pathways Representations and Warranties.  Pathways further represents, warrants and covenants that it will use commercially reasonable efforts to produce an EPD that is verifiable by an independent third party verifier; provided that all associated Customer Data was collected in accordance the applicable PCR and meets all ISO requirements. Customer’s exclusive remedy and Pathways’ entire liability for a breach of the foregoing will be, as determined by Pathways, to either (i) correct the non-conformance of applicable EPD free of charge, or (ii) reimburse Customer on a pro-rata basis the Fees attributable to such EPD.


    4. Disclaimers.  EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6.3 ABOVE, ANY AND ALL SERVICES AND DELIVERABLES PROVIDED OR OTHERWISE MADE AVAILABLE UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, THE PATHWAYS SERVICE AND ANY EVALUATION SERVICES AND THIRD PARTY SERVICES, ARE PROVIDED ON AN “AS-IS” BASIS AND PATHWAYS DISCLAIMS ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER.  PATHWAYS EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. PATHWAYS DOES NOT WARRANT THAT THE PATHWAYS SERVICE IS ERROR-FREE OR THAT OPERATION OF THE PATHWAYS SERVICE WILL BE SECURE OR UNINTERRUPTED.


  7. LIMITATIONS OF LIABILITY.


    1. Disclaimer of Consequential Damages.  EXCEPT FOR LIABILITY ARISING FROM (A) CUSTOMER’S BREACH OF SECTION 1.2 (RESTRICTIONS AND RESPONSIBILITIES) ABOVE AND (B) EITHER PARTY’S BREACH OF SECTION 5 (CONFIDENTIALITY) ABOVE, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, RELIANCE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, LOST OR DAMAGED DATA, LOST PROFITS OR LOST REVENUE, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF A PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY THEREOF.


    2. General Cap on Liability.  EXCEPT FOR LIABILITY ARISING FROM (A) CUSTOMER’S BREACH OF SECTION 1.2 (RESTRICTIONS AND RESPONSIBILITIES) ABOVE, (B) EITHER PARTY’S BREACH OF SECTION 5 (CONFIDENTIALITY) ABOVE, (C) A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTIONS 8.1 AND 8.2 BELOW AND (D) CUSTOMER’S PAYMENT OBLIGATIONS, AS APPLICABLE, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S LIABILITY FOR ALL CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE AGGREGATE FEES PAID BY CUSTOMER TO PATHWAYS UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM.  THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.


    3. Independent Allocations of Risk.  EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES.  EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THEY HAVE FAILED OF THEIR ESSENTIAL PURPOSE.


  8. INDEMNIFICATION.


    1. Indemnification by Pathways.  Pathways will indemnify, defend and hold Customer and the officers, directors, agents, and employees of Customer (“Customer Indemnified Parties”) harmless from settlement amounts and damages, liabilities, penalties, costs and expenses (“Liabilities”) that are payable to any third party by the Customer Indemnified Parties (including reasonable attorneys’ fees) arising from any claim, demand or allegation by a third party that the Pathways Service infringes or misappropriates any United States copyright or trade secret (except for claims for which Pathways is entitled to indemnification under Section 8.2, in which case Pathways will have no indemnification obligations with respect to such claim). Pathways will have no liability or obligation under this Section 8.1 with respect to any Liability if such Liability is caused in whole or in part by:  (a) modification of the Pathways Service by any party other than Pathways; (b) the combination, operation, or use of the Pathways Service with other product(s), data or services where the Pathways Service would not by itself be infringing; or (c) unauthorized or improper use of the Pathways Service.  This Section 8.1 states Pathways’ entire obligation and Customer’s sole remedies in connection with any claim regarding the intellectual property rights of any third party.


    2. Indemnification by Customer.  Customer will indemnify, defend and hold Pathways and the officers, directors, agents, and employees of Pathways (“Pathways Indemnified Parties”) harmless from Liabilities that are payable to any third party by the Pathways Indemnified Parties (including reasonable attorneys’ fees) arising from, directly or indirectly, any claim, demand or allegation by a third party that arises out of or is in connection with (a) any use by Customer of the Pathways Service in violation of this Agreement, (b) the Customer Data, including Pathways’ use of the Customer Data in accordance with this Agreement, (c) any EPD made available to Customer or (d) Customer’s violation of any terms and conditions related to and/or governing use of any Third Party Services.


    3. Action in Response to Potential Infringement.  If the use of the Pathways Service or any portion thereof by Customer has become, or in Pathways’ opinion is likely to become, the subject of any claim of infringement, Pathways may at its option and expense (a) procure for Customer the right to continue using the Pathways Service as set forth hereunder; (b) replace or modify the Pathways Service to make it non-infringing so long as the Pathways Service has at least equivalent functionality; (c) substitute an equivalent for the Pathways Service or (d) if options (a)-(c) are not reasonably practicable, terminate this Agreement.


    4. If a Customer Indemnified Party or a Pathways Indemnified Party (each, an “Indemnified Party”) becomes aware of any matter it believes it should be indemnified under Section 8.1 or Section 8.2, as applicable, involving any claim, action, suit, investigation, arbitration or other proceeding against the Indemnified Party by any third party (each an “Action”), the Indemnified Party will give the other Party (the “Indemnifying Party”) prompt written notice of such Action.  The Indemnified Party will cooperate, at the expense of the Indemnifying Party, with the Indemnifying Party and its counsel in the defense and the Indemnified Party will have the right to participate fully, at its own expense, in the defense of such Action with counsel of its own choosing.  Any compromise or settlement of an Action will require the prior written consent of both Parties hereunder, such consent not to be unreasonably withheld or delayed.


  9. GOVERNMENT MATTERS.  Customer may not remove or export from the United States or allow the export or re-export of the Pathways Service, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.  As defined in FAR section 2.101, the Pathways Service (including the software, documentation and data related thereto) are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.”  Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.


  10. GENERAL.


    1. Force Majeure.  No Party will have any liability under this Agreement for such Party’s failure or delay in performing any of the obligations imposed by this Agreement to the extent such failure or delay is the result of any event beyond such Party’s reasonable control, including:  (a) any fire, explosion, unusually severe weather, natural disaster or Act of God; (b) epidemic; any nuclear, biological, chemical, or similar attack; any other public health or safety emergency; any act of terrorism; and any action reasonably taken in response to any of the foregoing; (c) any act of declared or undeclared war or of a public enemy, or any riot or insurrection; (d) damage to machinery or equipment; any disruption in transportation, communications, electric power or other utilities, or other vital infrastructure; or any means of disrupting or damaging internet or other computer networks or facilities; (e)  any strike, lockout or other labor dispute or action; or (f) any action taken in response to any of the foregoing events by any civil or military authority (each, a “Force Majeure Event”).


    2. Severability.  In the event that any provision of this Agreement is found to be unenforceable, such provision will be reformed only to the extent necessary to make it enforceable, and the remainder will continue in effect, to the extent consistent with the intent of the Parties as of the Effective Date.  The terms and conditions of this Agreement are severable.  If any term or condition of this Agreement is deemed to be illegal or unenforceable under any rule of law, all other terms will remain in force.  Further, the term or condition which is held to be illegal or unenforceable will remain in effect as far as possible in accordance with the intention of the Parties as of the Effective Date.


    3. Relationship of the Parties.  Nothing in this Agreement will be construed to place the Parties in an agency, employment, franchise, joint venture, or partnership relationship.  Neither Party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third Parties.  Neither Party will represent to the contrary, either expressly, implicitly or otherwise.


    4. Remedies.  Each Party acknowledges that a breach by it of any of the terms of Section 5 may cause irreparable harm to the Discloser for which Discloser could not be adequately compensated by money damages.  Accordingly, Recipient agrees that, in addition to all other remedies available to Discloser in an action at law, in the event of any breach or threatened breach by the Recipient of the terms of this Agreement, the Discloser may seek, from any court of competent jurisdiction and without the necessity of proving actual damages or posting any bond or other security, temporary and permanent injunctive relief, including specific performance of the terms of Section 5.


    5. Governing Law; Consent to Jurisdiction.  The law, including the statutes of limitation, of the State of New York will govern this Agreement, the interpretation and enforcement of its terms and any claim or cause of action (in law or equity), controversy or dispute arising out of or related to it or its negotiation, execution or performance, whether based on contract, tort, statutory or other law, in each case without giving effect to any conflicts-of-law or other principle requiring the application of the law of any other jurisdiction.  Each of the Parties hereby irrevocably and unconditionally consents to submit to the sole and exclusive jurisdiction of the courts of the State of New York and of the United States of America for any litigation among the Parties arising out of or relating to this Agreement, or the negotiation, validity or performance of this Agreement, waives any objection to the laying of venue of any such litigation in such courts and agrees not to plead or claim in any such court that such litigation brought therein has been brought in any inconvenient forum or that there are indispensable parties to such litigation that are not subject to the jurisdiction of such courts.


    6. Assignment; Delegation; Binding Effect.  Neither Party may assign or transfer this Agreement in whole or in part, by operation of law or otherwise, without the prior written consent of the other Party, except that either Party may assign or transfer this Agreement without the written consent of the other Party to an affiliate or corporation or other business entity succeeding to all or substantially all the assets and business of the assigning Party to which this Agreement relates by merger or purchase.  Pathways may delegate its duties hereunder to any of its affiliates as necessary to perform its obligations hereunder, provided that Pathways will bear full liability and responsibility for their acts and omissions.  Any attempted assignment, delegation or transfer by a Party in violation hereof will be null and void.  Subject to the foregoing, this Agreement will be binding on the Parties and their successors and permitted assigns.


    7. Notices.  All notices under this Agreement will be in writing and will reference this Agreement.  Notices will be deemed given:  (a) when delivered personally; (b) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; (c) by email for which receipt is confirmed or (d) one (1) day after deposit with an internationally recognized commercial overnight carrier, with written verification of receipt.  All communications will be sent to the applicable address provided on the Order Form, or such other addresses subsequently communicated to the other Party in writing in accordance with this Section 10.7.


    8. No Waiver.  Failure by either Party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.


    9. Complete Agreement.  This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof.  It supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter, and prevails over any conflicting terms or conditions contained on printed forms submitted with purchase orders, sales acknowledgments or quotations.  To the extent of any conflict or inconsistency between the provisions in the body of these Terms and Conditions and any applicable Order Form, the applicable term or condition of these Terms and Conditions will prevail, unless the Order Form expressly amends a provision in this Service Agreement.

This Agreement, by and between Customer and Pathways Technologies, Inc. (“Pathways”), is effective as of the date set forth in the Order Form or the date on which Customer clicks a box accepting this Agreement (the “Effective Date”) and governs Customer’s use of Pathways’ proprietary software-as-a-service platform and other services as may be described in the Order Form (the “Pathways Service”).  Pathways reserves the right to change or modify portions of these Terms and Conditions at any time.  If Pathways does so, it will post the changes on this page and will indicate at the top of this page the date these Terms and Conditions was last revised.  Pathways will also notify Customer, either through an email notification or through other reasonable means.  Any such changes will become effective upon renewal of this Agreement in accordance with Section 4.1 below. Each of Pathways and Customer may be referred to herein individually as a “Party” or collectively as “Parties”.


  1. ACCESS TO PATHWAYS SERVICE.


    1. Access Grant.  Pathways will use commercially reasonable efforts to make the Pathways Service available to Customer.  Subject to the terms and conditions of this Agreement, Pathways hereby grants Customer a limited, non-exclusive, non-transferable, non-sublicensable right to access and use the Pathways Service during the Term (as defined below), solely for Customer’s internal business purposes.


    2. Restrictions and Responsibilities.  Customer will not use the Pathways Service for any purpose other than the purposes expressly set forth herein.  Customer may not, directly or indirectly:  (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Pathways Service; (b) modify, translate, or create derivative works based on the Pathways Service; (c) use the Pathways Service for timesharing or service bureau purposes or otherwise for the benefit of a third party; (d) remove any proprietary notices or labels; or (e) create or develop any services that are competitive of or a substitute for any Pathways Service.  Customer will be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Pathways Service, including, without limitation, modems, hardware, server, software, operating system, networking, web servers and the like.  Customer will also be responsible for maintaining the confidentiality of Customer’s usernames, passwords and account details, and for any actions taken by parties with access to such usernames and passwords.  Customer agrees not to disclose such usernames and passwords to any third parties (other than employees of Customer).  Customer will inform Pathways immediately if it discovers that any such username and/or password has been disclosed or made available to a third party, or that any unauthorized third party is otherwise accessing or using the Pathways Service.  Without limiting any other rights or remedies set forth herein or available pursuant to law, Pathways may immediately suspend Customer’s access to the Pathways Service if Customer is in breach of any term or condition of this Agreement.


    3. License to Customer Data.  Customer hereby grants to Pathways a non-exclusive, royalty-free, fully paid up, non-sublicensable (except to contractors and consultants performing services on behalf of Pathways), non-transferable (subject to Section 10.6) right and license to copy, distribute, display, create derivative works of and otherwise use the data, information, text, content, APIs and any other materials submitted, transmitted or uploaded by Customer via the Pathways Service (the “Customer Data”) to (a) provide the Pathways Service and otherwise perform Pathways’ obligations under this Agreement, (b) improve and develop Pathways’ products and services, including by training and developing models and/or algorithms, and (c) create deidentified data (“Deidentified Data”), which Deidentified Data will not identify Customer or any individuals associated therewith.  For the avoidance of doubt, Deidentified Data is not Customer Data.


    4. Feedback.  Customer may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to Pathways with respect to the Pathways Service or Evaluation Services (as defined below).  Pathways will have full discretion to determine whether or not to proceed with the development of the requested enhancements, new features or functionality.  Customer hereby grants to Pathways a royalty-free, fully paid up, worldwide, transferable, sublicensable (through multiple tiers), irrevocable, perpetual license to (a) copy, distribute, transmit, display, perform, and create derivative works of the Feedback, and (b) use the Feedback and/or any subject matter thereof, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody, or are configured for use in practicing, the Feedback and/or any subject matter of the Feedback.  Customer acknowledges and agrees that Feedback is not Confidential Information (as defined below).


    5. Evaluation Services.  From time to time, Customer may be invited to try certain services at no charge for a free trial or evaluation period or if such services are not generally available to customers (collectively, “Evaluation Services”).  Evaluation Services will be designated as beta, pilot, evaluation, trial, limited release or the like.  Evaluation Services are for Customer’s internal evaluation purposes only and, notwithstanding anything to the contrary set forth herein, are provided “as is” without warranty of any kind, and may be subject to additional terms.  Unless otherwise stated, any Evaluation Services trial period will expire sixty (60) days from the trial start date.  Pathways may discontinue Evaluation Services at any time in its sole discretion and may never make them generally available.  Pathways will have no liability for any harm or damage arising out of or in connection with any Evaluation Services.


    6. Third Party Services.  The Pathways Service may enable access to or integration with certain third party services, products, solutions, software or technology which are currently or may be in the future utilized by Customer and with respect to which Customer has a separate contractual relationship with the applicable third party (collectively, the “Third Party Services”).  The Third Party Services may also be subject to additional terms and conditions, privacy policies, or other agreements with such third party, and Customer may be required to authenticate to or create separate accounts to use Third Party Services.  Some Third Party Services may provide Pathways with access to certain information that Customer has provided to such Third Party Services.  Any data, information or other materials related to Customer collected via or received by Pathways from any Third Party Service will be deemed Customer Data.  Pathways has no control over and is not responsible for such Third Party Services, including the accuracy, availability, reliability or completeness of information shared by or available through the Third Party Services, or on the privacy practices of the Third Party Services.  Pathways will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any Third Party Services.  Pathways enables these Third Party Services merely as a convenience and the integration or inclusion of such Third Party Services does not imply an endorsement or recommendation.  Any dealings Customer has with third parties while using the Pathways Service are between Customer and the third party.  Pathways is not liable for any loss caused by or claim that Customer may have against any such third party or that arise under Customer’s agreements with any such third party.


    7. Customer Cooperation.  Customer understands that Pathways’ performance is dependent in part on the actions of Customer.  Accordingly, Customer in a timely manner will provide Pathways with the necessary items and assistance specified in the Order Form and otherwise cooperate with the reasonable requests of Pathways as made from time to time in connection with the Pathways Services.  Any dates or time periods relevant to performance by Pathways hereunder will be appropriately and equitably extended to account for any delays due to Customer.  If any Customer delay or Force Majeure Event (as defined below) would materially change the economics of Pathways’ performance or materially extend the time for performance, Pathways may terminate this Agreement upon thirty (30) days written notice, unless within such notice period the Parties agree on mutually acceptable changes to this Agreement and/or the Order Form (including the fees and payment terms set forth therein).


  2. OWNERSHIP; RESERVATION OF RIGHTS.  


    1. Retained Rights.  Customer acknowledges and agrees that, as between the Parties, Pathways retains all right, title and interest in and to (a) the Pathways Service, (b) all methodologies, tools, models, algorithms, software, documentation, know-how, trade secrets, inventions, works of authorship and other intellectual property of any kind, in any form or medium, underlying or otherwise related to the Pathways Service or which has general applicability to Pathways’ business, (c) all improvements, enhancements or modifications thereto, whether or not developed based on Customer’s Feedback, and (d) all associated intellectual property rights with any of the foregoing described in immediately preceding subclauses (a)-(c) (collectively, “Pathways Background IP”).  Pathways grants no, and reserves any and all, rights with respect to the Pathways Service or the Pathways Background IP other than the rights expressly granted to Customer under this Agreement.  Customer will acquire no right, title, or interest in and to the Pathways Service or the Pathways Background IP other than the limited licensed rights expressly granted under  Sections 1.1 above and 2.2(b) below, respectively.  Notwithstanding the foregoing, except for the limited rights expressly granted to Pathways under this Agreement, Customer retains all right, title and interest in and to the Customer Data.


    2. Ownership of EPD and Limited License. To the extent an Environmental Product Declaration is prepared by Pathways for Customer through the Pathways Service and is expressly identified as a deliverable on the Order Form (the “EPD”), upon acceptance of such EPD and payment in full of all amounts due under this Agreement, and subject to the other terms and conditions of this Agreement, (a) Customer will own all copyrights in the EPD (excluding any Pathways Background IP) and Pathways hereby assigns all such copyrights (excluding any Pathways Background IP) to Customer and (b) Pathways hereby grants Customer a limited nonexclusive license under its copyrights to copy, distribute, transmit, and display any Pathways Background IP incorporated into such EPD solely in connection with and not separate or apart from such EPD.


  3. FEES; PAYMENT TERMS.


    1. Fees; Payment Terms.  In exchange for use of the Pathways Service and the rights granted pursuant to this Agreement, Customer will pay to Pathways the fees set forth in the Order Form (the “Fees”) in accordance with the terms and conditions set forth herein and therein.  Payment obligations are non-cancelable and any Fees paid are non-refundable. Unless set forth otherwise in the Order Form, full payment for any invoices must be received by Pathways within fifteen (15) days after the issuance date of the invoice.  Unpaid Fees are subject to a finance charge of 1.5% per month, or the maximum permitted by law, whichever is lower.


    2. Net of Taxes.  All amounts payable by Customer to Pathways hereunder are exclusive of any sales, use and other taxes or duties, however designated, including without limitation, withholding taxes, royalties, know-how payments, customs, privilege, excise, sales, use, value-added and property taxes (collectively “Taxes”).  Customer will be solely responsible for payment of any Taxes, except for those taxes based on the income of Pathways.  Customer will not withhold any Taxes from any amounts due Pathways.


  4. TERM; TERMINATION.


    1. Term; Termination.  Subject to earlier termination as set forth in this Agreement, this Agreement will commence on the Effective Date and continue for the initial term set forth in the Order Form (the “Initial Term”), and will automatically renew for additional periods of one (1) year each, unless either Party provides written notice of non-renewal at least sixty (60) days prior to the end of the then-current term (each, a “Renewal Term”, and together with the Initial Term, the “Term”).  The pricing during any Renewal Term will be the same as that during the immediately prior term unless Pathways has given Customer written notice of a pricing increase at least ninety (90) days prior to the end of such prior term, in which case the pricing increase will be effective upon renewal and thereafter.  In addition, a Party may terminate this Agreement immediately upon written notice to the other Party if such other Party materially breaches any material provision of this Agreement and does not cure such material breach within thirty (30) days after receiving written notice thereof.


    2. Effect of Termination.  In the event that this Agreement expires or is terminated for any reason, all rights granted to Customer with respect to the Pathways Service will immediately terminate, and Customer will (a) cease use of the Pathways Service; and (b) pay to Pathways all amounts due and owing under this Agreement (to the extent not previously paid).  In addition, upon expiration or termination of this Agreement, each Recipient (as defined below) will return to the Discloser (as defined below) or destroy, at the Discloser’s election, all of the Discloser’s Confidential Information and all copies or other tangible embodiments thereof.


    3. Survival.  Upon expiration or termination of this Agreement, all obligations in this Agreement will terminate, provided that Sections 1.2 (Restrictions and Responsibilities), 1.4 (Feedback), 2 (Ownership; Reservation of Rights), 3 (Fees; Payment Terms), 4 (Term; Termination), 5 (Confidentiality), 6.2 (Disclaimers), 6.3 (No Professional Advice), 7 (Limitations of Liability), 8 (Indemnification) and 10 (General) will survive.


  5. CONFIDENTIALITY.


    1. Definition of Confidential information.  “Confidential Information” means, subject to the exceptions set forth in Section 5.2 hereof, any information or data or materials, regardless of whether it is in tangible form, that is disclosed or otherwise made available by a Party (the “Discloser”) to the other Party (the “Recipient”) and that (a) the Discloser has marked as confidential or proprietary, or (b) the Discloser identifies as confidential at the time of disclosure with written confirmation within fifteen (15) days of disclosure to the Recipient; provided, however, that reports and/or information related to or regarding the Discloser’s business plans, business methodologies, strategies, technology, specifications, development plans, customers, prospective customers, partners, suppliers billing records, and products or services will be deemed Confidential Information of the Discloser even if not so marked or identified, unless such information is the subject of any of the exceptions set forth in Section 5.2 hereof.


    2. Exceptions to Confidential Information.  Confidential Information will not include any information which: (a) the Recipient can show by written record was in its possession prior to disclosure by the Discloser hereunder, provided that the Recipient must promptly notify the Discloser of any prior knowledge; (b) is or becomes generally known by the public other than through the Recipient’s failure to observe any or all terms and conditions hereof; or (c) subsequent to disclosure to the Recipient by the Discloser, is obtained by the Recipient from a third person who is not subject to any confidentiality obligation in favor of Discloser.


    3. Use and Disclosure of Confidential Information.  The Recipient may only use the Confidential Information for the purpose of performing its obligations and exercising its rights hereunder.  The Recipient must keep secret and will never disclose, publish, divulge, furnish or make accessible to anyone any of the Confidential Information of the Discloser, directly or indirectly, other than furnishing such Confidential Information to (a) the Recipient’s employees and contractors who are required to have access to such Confidential Information in connection with the performance of the Recipient’s obligations, or the exercise of the Recipient’s rights, hereunder, and (b) professional advisers (e.g., lawyers and accountants), in each case, during the time that the Recipient is permitted to retain such Confidential Information hereunder; provided that any and all such employees or contractors are bound by written agreements or, in the case of professional advisers, ethical duties, respecting the Confidential Information in the manner set forth in this Agreement.  The Recipient will use at least reasonable care and adequate measures to protect the security of the Confidential Information of the Discloser and to ensure that any Confidential Information of the Discloser is not disclosed or otherwise made available to other persons or used in violation of this Agreement.


    4. Disclosures Required by Law.  In the event that the Recipient is required by law to make any disclosure of any of the Confidential Information of the Discloser, by subpoena, judicial or administrative order or otherwise, the Recipient will first give written notice of such requirement to the Discloser, and will permit the Discloser to intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide full cooperation and assistance to the Discloser in seeking to obtain such protection.


  6. REPRESENTATIONS and WARRANTIES; DISCLAIMER.


    1. Mutual Representations and Warranties.  Each Party represents and warrants to the other Party that (a) such Party has the required power and authority to enter into this Agreement and to perform its obligations hereunder, (b) the execution of this Agreement and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party, and (c) this Agreement constitutes a legal, valid and binding obligation when signed by both Parties.  


    2. Customer Representations and Warranties.  Customer further represents, warrants and covenants that (i) it is solely responsible for all Customer Data; (ii) it has all rights necessary to permit Pathways to use the Customer Data as contemplated hereunder, (iii) the Customer Data will be true, accurate and complete, (iv) Customer will use the Pathways Service only in compliance with Pathways’ standard published policies then in effect and all applicable laws and regulations and (v) Customer will not publicly display or distribute any EPD until and unless such EPD is verified in writing by an independent third party verifier and Program Operator through a demonstration that the associated Customer Data was collected in accordance with the applicable Product Category Rules (“PCR”) and meets all International Organization for Standardization (“ISO”) requirements. 


    3. Pathways Representations and Warranties.  Pathways further represents, warrants and covenants that it will use commercially reasonable efforts to produce an EPD that is verifiable by an independent third party verifier; provided that all associated Customer Data was collected in accordance the applicable PCR and meets all ISO requirements. Customer’s exclusive remedy and Pathways’ entire liability for a breach of the foregoing will be, as determined by Pathways, to either (i) correct the non-conformance of applicable EPD free of charge, or (ii) reimburse Customer on a pro-rata basis the Fees attributable to such EPD.


    4. Disclaimers.  EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6.3 ABOVE, ANY AND ALL SERVICES AND DELIVERABLES PROVIDED OR OTHERWISE MADE AVAILABLE UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, THE PATHWAYS SERVICE AND ANY EVALUATION SERVICES AND THIRD PARTY SERVICES, ARE PROVIDED ON AN “AS-IS” BASIS AND PATHWAYS DISCLAIMS ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER.  PATHWAYS EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. PATHWAYS DOES NOT WARRANT THAT THE PATHWAYS SERVICE IS ERROR-FREE OR THAT OPERATION OF THE PATHWAYS SERVICE WILL BE SECURE OR UNINTERRUPTED.


  7. LIMITATIONS OF LIABILITY.


    1. Disclaimer of Consequential Damages.  EXCEPT FOR LIABILITY ARISING FROM (A) CUSTOMER’S BREACH OF SECTION 1.2 (RESTRICTIONS AND RESPONSIBILITIES) ABOVE AND (B) EITHER PARTY’S BREACH OF SECTION 5 (CONFIDENTIALITY) ABOVE, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, RELIANCE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, LOST OR DAMAGED DATA, LOST PROFITS OR LOST REVENUE, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF A PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY THEREOF.


    2. General Cap on Liability.  EXCEPT FOR LIABILITY ARISING FROM (A) CUSTOMER’S BREACH OF SECTION 1.2 (RESTRICTIONS AND RESPONSIBILITIES) ABOVE, (B) EITHER PARTY’S BREACH OF SECTION 5 (CONFIDENTIALITY) ABOVE, (C) A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTIONS 8.1 AND 8.2 BELOW AND (D) CUSTOMER’S PAYMENT OBLIGATIONS, AS APPLICABLE, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S LIABILITY FOR ALL CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE AGGREGATE FEES PAID BY CUSTOMER TO PATHWAYS UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM.  THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.


    3. Independent Allocations of Risk.  EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES.  EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THEY HAVE FAILED OF THEIR ESSENTIAL PURPOSE.


  8. INDEMNIFICATION.


    1. Indemnification by Pathways.  Pathways will indemnify, defend and hold Customer and the officers, directors, agents, and employees of Customer (“Customer Indemnified Parties”) harmless from settlement amounts and damages, liabilities, penalties, costs and expenses (“Liabilities”) that are payable to any third party by the Customer Indemnified Parties (including reasonable attorneys’ fees) arising from any claim, demand or allegation by a third party that the Pathways Service infringes or misappropriates any United States copyright or trade secret (except for claims for which Pathways is entitled to indemnification under Section 8.2, in which case Pathways will have no indemnification obligations with respect to such claim). Pathways will have no liability or obligation under this Section 8.1 with respect to any Liability if such Liability is caused in whole or in part by:  (a) modification of the Pathways Service by any party other than Pathways; (b) the combination, operation, or use of the Pathways Service with other product(s), data or services where the Pathways Service would not by itself be infringing; or (c) unauthorized or improper use of the Pathways Service.  This Section 8.1 states Pathways’ entire obligation and Customer’s sole remedies in connection with any claim regarding the intellectual property rights of any third party.


    2. Indemnification by Customer.  Customer will indemnify, defend and hold Pathways and the officers, directors, agents, and employees of Pathways (“Pathways Indemnified Parties”) harmless from Liabilities that are payable to any third party by the Pathways Indemnified Parties (including reasonable attorneys’ fees) arising from, directly or indirectly, any claim, demand or allegation by a third party that arises out of or is in connection with (a) any use by Customer of the Pathways Service in violation of this Agreement, (b) the Customer Data, including Pathways’ use of the Customer Data in accordance with this Agreement, (c) any EPD made available to Customer or (d) Customer’s violation of any terms and conditions related to and/or governing use of any Third Party Services.


    3. Action in Response to Potential Infringement.  If the use of the Pathways Service or any portion thereof by Customer has become, or in Pathways’ opinion is likely to become, the subject of any claim of infringement, Pathways may at its option and expense (a) procure for Customer the right to continue using the Pathways Service as set forth hereunder; (b) replace or modify the Pathways Service to make it non-infringing so long as the Pathways Service has at least equivalent functionality; (c) substitute an equivalent for the Pathways Service or (d) if options (a)-(c) are not reasonably practicable, terminate this Agreement.


    4. If a Customer Indemnified Party or a Pathways Indemnified Party (each, an “Indemnified Party”) becomes aware of any matter it believes it should be indemnified under Section 8.1 or Section 8.2, as applicable, involving any claim, action, suit, investigation, arbitration or other proceeding against the Indemnified Party by any third party (each an “Action”), the Indemnified Party will give the other Party (the “Indemnifying Party”) prompt written notice of such Action.  The Indemnified Party will cooperate, at the expense of the Indemnifying Party, with the Indemnifying Party and its counsel in the defense and the Indemnified Party will have the right to participate fully, at its own expense, in the defense of such Action with counsel of its own choosing.  Any compromise or settlement of an Action will require the prior written consent of both Parties hereunder, such consent not to be unreasonably withheld or delayed.


  9. GOVERNMENT MATTERS.  Customer may not remove or export from the United States or allow the export or re-export of the Pathways Service, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.  As defined in FAR section 2.101, the Pathways Service (including the software, documentation and data related thereto) are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.”  Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.


  10. GENERAL.


    1. Force Majeure.  No Party will have any liability under this Agreement for such Party’s failure or delay in performing any of the obligations imposed by this Agreement to the extent such failure or delay is the result of any event beyond such Party’s reasonable control, including:  (a) any fire, explosion, unusually severe weather, natural disaster or Act of God; (b) epidemic; any nuclear, biological, chemical, or similar attack; any other public health or safety emergency; any act of terrorism; and any action reasonably taken in response to any of the foregoing; (c) any act of declared or undeclared war or of a public enemy, or any riot or insurrection; (d) damage to machinery or equipment; any disruption in transportation, communications, electric power or other utilities, or other vital infrastructure; or any means of disrupting or damaging internet or other computer networks or facilities; (e)  any strike, lockout or other labor dispute or action; or (f) any action taken in response to any of the foregoing events by any civil or military authority (each, a “Force Majeure Event”).


    2. Severability.  In the event that any provision of this Agreement is found to be unenforceable, such provision will be reformed only to the extent necessary to make it enforceable, and the remainder will continue in effect, to the extent consistent with the intent of the Parties as of the Effective Date.  The terms and conditions of this Agreement are severable.  If any term or condition of this Agreement is deemed to be illegal or unenforceable under any rule of law, all other terms will remain in force.  Further, the term or condition which is held to be illegal or unenforceable will remain in effect as far as possible in accordance with the intention of the Parties as of the Effective Date.


    3. Relationship of the Parties.  Nothing in this Agreement will be construed to place the Parties in an agency, employment, franchise, joint venture, or partnership relationship.  Neither Party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third Parties.  Neither Party will represent to the contrary, either expressly, implicitly or otherwise.


    4. Remedies.  Each Party acknowledges that a breach by it of any of the terms of Section 5 may cause irreparable harm to the Discloser for which Discloser could not be adequately compensated by money damages.  Accordingly, Recipient agrees that, in addition to all other remedies available to Discloser in an action at law, in the event of any breach or threatened breach by the Recipient of the terms of this Agreement, the Discloser may seek, from any court of competent jurisdiction and without the necessity of proving actual damages or posting any bond or other security, temporary and permanent injunctive relief, including specific performance of the terms of Section 5.


    5. Governing Law; Consent to Jurisdiction.  The law, including the statutes of limitation, of the State of New York will govern this Agreement, the interpretation and enforcement of its terms and any claim or cause of action (in law or equity), controversy or dispute arising out of or related to it or its negotiation, execution or performance, whether based on contract, tort, statutory or other law, in each case without giving effect to any conflicts-of-law or other principle requiring the application of the law of any other jurisdiction.  Each of the Parties hereby irrevocably and unconditionally consents to submit to the sole and exclusive jurisdiction of the courts of the State of New York and of the United States of America for any litigation among the Parties arising out of or relating to this Agreement, or the negotiation, validity or performance of this Agreement, waives any objection to the laying of venue of any such litigation in such courts and agrees not to plead or claim in any such court that such litigation brought therein has been brought in any inconvenient forum or that there are indispensable parties to such litigation that are not subject to the jurisdiction of such courts.


    6. Assignment; Delegation; Binding Effect.  Neither Party may assign or transfer this Agreement in whole or in part, by operation of law or otherwise, without the prior written consent of the other Party, except that either Party may assign or transfer this Agreement without the written consent of the other Party to an affiliate or corporation or other business entity succeeding to all or substantially all the assets and business of the assigning Party to which this Agreement relates by merger or purchase.  Pathways may delegate its duties hereunder to any of its affiliates as necessary to perform its obligations hereunder, provided that Pathways will bear full liability and responsibility for their acts and omissions.  Any attempted assignment, delegation or transfer by a Party in violation hereof will be null and void.  Subject to the foregoing, this Agreement will be binding on the Parties and their successors and permitted assigns.


    7. Notices.  All notices under this Agreement will be in writing and will reference this Agreement.  Notices will be deemed given:  (a) when delivered personally; (b) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; (c) by email for which receipt is confirmed or (d) one (1) day after deposit with an internationally recognized commercial overnight carrier, with written verification of receipt.  All communications will be sent to the applicable address provided on the Order Form, or such other addresses subsequently communicated to the other Party in writing in accordance with this Section 10.7.


    8. No Waiver.  Failure by either Party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.


    9. Complete Agreement.  This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof.  It supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter, and prevails over any conflicting terms or conditions contained on printed forms submitted with purchase orders, sales acknowledgments or quotations.  To the extent of any conflict or inconsistency between the provisions in the body of these Terms and Conditions and any applicable Order Form, the applicable term or condition of these Terms and Conditions will prevail, unless the Order Form expressly amends a provision in this Service Agreement.

EPDs done better.

Empowering material manufacturers to evaluate, improve upon, and promote the environmental performance of their products.

Contact

info@pathwaysai.co

© 2024 Pathways. All rights reserved.

EPDs done better.

Empowering material manufacturers to evaluate, improve upon, and promote the environmental performance of their products.

Contact

info@pathwaysai.co

© 2024 Pathways. All rights reserved.

EPDs done better.

Empowering material manufacturers to evaluate, improve upon, and promote the environmental performance of their products.

Contact

info@pathwaysai.co

© 2024 Pathways. All rights reserved.