1.1 The definitions and rules of interpretation in this Clause apply in this Agreement:

“Acceptable Sharing Policy” means the acceptable sharing policy in force from time to time and available on the Website and/or in the App. 

“Affiliate” means a legal entity in which the relevant party has a Controlling Interest or which has a Controlling Interest in the relevant party, whether directly or indirectly. 

“Agreement” means the agreement between Sylvera and Customer comprising the Order Form(s), these Subscription Terms, and any and all additional agreements or policies referred to herein or subsequently entered into, whether or not they have been signed by Sylvera or the Customer.

“Analytics” means the service that allows customers of Sylvera to assess the emissions, emission reduction targets and carbon credit use of businesses, industries and/or portfolios of either.

“API” means any application programming interface(s) operated by Sylvera and through which the Services are delivered.

“App” means any authentication application software operated by Sylvera and through which the Services are delivered.

“Authorised Users” means those employees, agents and independent contractors of the Customer or the Customer’s Affiliates that are permitted by Sylvera to access and use the Services on the Customer’s behalf, pursuant to this Agreement.

“Business Day” means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

“Confidential Information” means (without limitation) all confidential information (however recorded or preserved) disclosed by one party or its employees, officers, representatives or advisers (together “Representatives”) to the other party and the other party’s Representatives, including the terms and conditions of this Agreement, the business, affairs, customers, clients, suppliers, plans, intentions, market opportunities, operations, processes, product information, services, know-how, technical information or trade secrets of the disclosing party.

“Controlling Interest” means (i) the ownership of, control over or ability to direct voting of more than 50% of its fully diluted voting share capital; or (iii) the right to appoint or remove its directors that hold a majority of the voting rights.

“Customer Data” means any data the Customer provides to Sylvera in relation to its use of the Services, whether directly or indirectly via any third party application and including data relating to its Authorised Users. Customer Data does not include any Derived Data and/or Sylvera Data, but may include Personal Data.

“Data Processing Addendum” or “DPA” means the data processing addendum, as updated from time to time, that forms part of this Agreement and is available on the Website.

“Data Protection Legislation” means all applicable data protection and privacy legislation in force from time to time which applies to a party including the EU GDPR, the UK GDPR and the UK Data Protection Act 2018, in each case as amended, updated or replaced from time to time.

“Derived Data” means any data which is derived from the Customer’s use of the Services or the processing of Customer Data, which shall include: (i) any data which is processed and stored as mathematical constructs; (ii) statistical or aggregated data; and (iii) any other analytical data such as number and duration of user sessions and page visits, and technical performance reports on the Services.

“Effective Date” means the effective date of this Agreement as set out in the Order Form.

“EU GDPR” means the General Data Protection Regulation ((EU) 2016/679).

“Improvements” means any: (i) information communicated by the Customer to Sylvera regarding any new features, functionality, performance, feedback, comments and anything analogous to the same in relation to the Software or the Services; and (ii) adaptations, modifications, improvements, enhancements, revisions and anything analogous to the same in relation to the Software or the Services in any form or medium whatsoever.

“Intellectual Property Rights” means patents, rights to inventions, copyright and neighbouring and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use and protect the confidentiality of confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

“Personal Data” has the meaning given in the Data Protection Legislation. 

“Project” means any relevant environmental project which the Customer wishes to assess and evaluate through the Services.

“Rating” means an indication of the likelihood that the claimed carbon impact of a Project is a true representation of its real impact, expressed in rank order between AAA and D. 

“Services” means the provision of certain carbon analytics solutions via the Software as specified in an Order Form, including but not limited to access to Ratings and/or Analytics. 

“Software” means the software through which Sylvera’s carbon analytics solutions are delivered, including the App, any related APIs and/or any other means notified to the Customer by Sylvera from time to time.

“Specification” means the functional specification for the Services as set out in those printed or online instructions, manuals, screens and diagrams distributed or otherwise provided by Sylvera from time to time that pertain to the Software or use of the Services.

“Subscription Fees” means the subscription fees set out in the Order Form(s) payable by the Customer to Sylvera for use of the Services.

“Sylvera Data” means any data, information, analytics or reports based on proprietary and third party data, made available to the Customer as part of the Services, including the Ratings and any other data made available through the Software.

“Sylvera Parties” means Sylvera, its Affiliates and their directors, employees, contractors, agents or shareholders.

“Term” means the term of this Agreement as specified in the Order Form.

“Third Party Provider” has the meaning given to it in Clause 2.9.

“UK GDPR” means the EU GDPR as incorporated into UK law by the European Union (Withdrawal) Act 2018 (as amended by the European Union (Withdrawal) Act 2020) and amended by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019 (as further amended from time to time).

“Virus” means any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware, network,  data or the user experience, including worms, Trojan horses, viruses and other similar things or devices. 

“Sylvera Parties” means Sylvera, its Affiliates and their directors, employees, contractors, agents or shareholders.

“Website” means https://www.sylvera.com/, app.sylvera.com or any other website operated by Sylvera through which the Services are delivered to the Customer from time to time.

1.2 In this Agreement: (i) clause and paragraph headings shall not affect the interpretation of this Agreement; (ii) unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular; (iii) a reference to writing or written includes e-mail; (iv) any words following the terms including, include, in particular for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

2.1 Subject to the Customer paying the Subscription Fees in accordance with this Agreement, Sylvera hereby grants to the Customer a non-exclusive, non-transferable, non-sub licensable right to permit the Authorised Users to access and use the Services during the Term in accordance with this Agreement.

2.2 Except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties, and except to the extent expressly permitted under this Agreement, the Customer shall not, and shall not attempt to, copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means; or attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software, Services, and/or Sylvera Data.

2.3 The Customer shall not access, store, distribute or transmit any Viruses or any material during the course of its use of the Software that is unlawful, harmful, infringing, or which facilitates illegal activity or causes damage or injury to any person or property. 

2.4 Subject to Clause 2.5, the Customer shall not, and shall not attempt to: (i) access all or any part of the Services in order to build a product or service which competes with the Services; (ii) make the Services available to any third party except to Authorised Users; (iii) attempt to obtain, or assist third parties in obtaining, access to the Services; (iv) use any part of the Services in connection with reporting required under any financial instrument or pursuant to any regulatory obligation; or (v) redistribute or reproduce the Sylvera Data to third parties, and shall only use the Sylvera Data in accordance with the terms and conditions of this Agreement. 

2.5 Notwithstanding Clause 2.4, the Customer may redistribute the Sylvera Data strictly in accordance with the Acceptable Sharing Policy, which Customer hereby agrees to comply with at all times. Customer acknowledges and agrees that a breach by Customer of the Acceptable Sharing Policy may result in immediate and irreparable harm to Sylvera, for which there may be no adequate remedy at law.  Without prejudice to any other rights and remedies it may have, Sylvera will be entitled to seek equitable relief to compel Customer to cease and desist any breach of the Acceptable Sharing Policy.

2.6 Without prejudice to Sylvera’s other rights, if Sylvera knows or has reasonable grounds to suspect that the Customer is acting in breach of Clauses 2.2, 2.3, 2.4 or 2.5, Sylvera may immediately suspend the Customer’s and all Authorised Users’ access to the Services in accordance with Clause 11.4. 

2.7 The Customer shall take reasonable steps to prevent any unauthorised access to, or use of, the Software and the Services and, in the event of any such unauthorised access or use, promptly notify Sylvera. Customer shall take reasonable steps to ensure that each Authorised User shall: (i) keep a secure username and password for their use of the Services; and (ii) not share such access credentials internally or with third parties in accordance with Clause 2.4, and keep such access credentials confidential. 

2.8 The rights provided under this Clause 2 are granted to the Customer only, and shall not be considered granted to any Affiliate of the Customer. 

2.9 Customer acknowledges that certain data and information made available through the Software and the Services may have been provided to Sylvera by third party providers (each a “Third Party Provider”) and such Third Party Providers have proprietary rights with respect to such data. The use and availability of such data and information is subject to arrangements between Sylvera and such Third Party Providers, and any limitations and restrictions that may be displayed or contained in the Software and/or the Services. Customer agrees to comply with any restriction or condition imposed by Third Party Providers relating to the Software and/or the Services as notified by Sylvera or such Third Party Providers. As part of such compliance, Customer may be required to enter into a separate agreement with Sylvera or a Third Party Provider in order to receive or to continue to receive such data. Third Party Provider restrictions may be provided on the Website and/or supplied within the Software and/or the Services or directly by a Third Party Provider. 

2.10 If Customer has access to Analytics, raw data relating to company or corporate group-level emissions targets, performance and data may only be used by Customer for internal company research; for internal portfolio and fund analysis; for engagement with the company to which the data relates; to inform investment decisions; to fulfil reporting requirements to regulators; and to fulfil Science-based Targets submission requirements.

3.1 The Order Form specifies the details of the Services purchased by the Customer, for example, what Services are made available to the Customer, the number of Authorised Users, number of Projects, etc. If the Customer wishes to purchase additional Services, the Customer shall notify Sylvera and, if Sylvera agrees to the request, Sylvera and the Customer shall enter into an additional or replacement Order Form. 

4.1 The Customer undertakes that it shall permit Sylvera to monitor and analyse the Customer’s and any Authorised User’s use of the Software for the purposes of security and to help Sylvera improve the Services and the Software. 

4.2 The Customer shall own all rights, title and interest in and to all of the Customer Data. 

4.3 Sylvera may use the Customer Data in order to provide the Services and to improve the performance and functionality of the Software, including for developing Improvements, updates, upgrades, modifications, and derivative works thereof. Sylvera or its Third Party Providers shall own all rights, title and interest in and to all of the Derived Data, the Sylvera Data and any Improvements. Any Improvement shall be free from any confidentiality restrictions that might otherwise be imposed upon Sylvera pursuant to Clause 15 of this Agreement.

5.1 Both parties shall comply with their respective obligations in the DPA. The DPA is in addition to, and does not relieve, remove or replace, each of the parties’ obligations or rights under the Data Protection Legislation.

6.1 Sylvera shall: (i) make the Services available to the Customer on and subject to the terms and conditions of this Agreement; (ii) use commercially reasonable endeavours to ensure that the Services conform to the Specification; and (iii) provide the levels of support in accordance with the Specification.

6.2 Sylvera shall not be liable for any breach of its obligation in Clause 6.1(ii) to the extent any non-conformance with the Specification is caused by use of the Software or the Services contrary to Sylvera’s instructions, or modification or alteration of the Software or the Services by any party other than Sylvera or Sylvera’s duly authorised contractors or agents.  If the Services do not conform with the Specification, Sylvera will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any non-conformance.  Notwithstanding the foregoing: (i) the Customer acknowledges and agrees that the Services will evolve over time and that functionality may be added and removed from time to time; (ii) Sylvera does not warrant that the Customer's use of the Services will be uninterrupted or error-free; or that the Services and/or the information obtained by the Customer through the Services will meet the Customer's requirements; and (iii) Sylvera is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

6.3 This Agreement shall not prevent Sylvera from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.

7.1 The Customer shall provide Sylvera with all co-operation reasonably necessary in relation to this Agreement. Customer acknowledges that Sylvera may require reasonable co-operation and access to Customer’s account in order to provide support, fix any errors or lift any account suspension, and to the extent that such access and co-operation is not provided in a timely and efficient manner, Sylvera may not be able to provide the requisite support, fix any errors or lift any suspensions.

7.2 The Customer shall take reasonable steps to ensure that all Authorised Users use the Services strictly in accordance with the terms and conditions of this Agreement. The Customer shall be responsible for any Authorised User's breach of this Agreement. 

7.3 Subject to Clause 2.4, where the Customer or any Authorised User evaluates the Sylvera Data, and subsequently provides or intends to provide advice to third parties based on such use of the Services, the Customer acknowledges that Sylvera expressly disclaims all liability in relation to such advice, in accordance with Clauses 12 and 13.

8.1 Sylvera will invoice the Customer for the Subscription Fees in advance in accordance with the intervals specified in the Order Form. Unless otherwise stated in the Order Form, the Customer shall pay each invoice within thirty (30) days after the date of such invoice. The Customer is responsible for providing complete and accurate billing and contact information to Sylvera and notifying Sylvera of any changes to such information. 

8.2 For some payment methods, the issuer may charge certain fees, such as foreign transaction fees or other fees relating to the payment method, which shall be due and payable by the Customer. 

8.3 If Sylvera has not received payment by the due date, and without prejudice to any other rights and remedies of Sylvera, Sylvera may, without liability, disable the Customer's and all Authorised Users’ passwords, accounts and access to all or part of the Services until the invoice(s) concerned are paid in full.

8.4 Subscription Fees are payable in the currency detailed in the Order Form, and are non-cancellable and non-refundable (except as set out in this Agreement). Subscription Fees are stated exclusive of value added tax or any sales tax, which shall be added to Sylvera’s invoice(s) at the appropriate rate, if applicable. All amounts due under this Agreement shall be paid by the Customer in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by applicable law).

8.5 Sylvera shall be entitled to increase the Subscription Fees (a) in line with the fee mechanism as set out in the Order Form (if any), and/or (b) at the start of each Renewal Term upon sixty (60) days' prior written notice to the Customer. 

9.1 Each party shall comply with all applicable laws and regulations in the exercise of its rights and the performance of its obligations pursuant to this Agreement. 

10.1 As between the parties, all Intellectual Property Rights in and to the Software, the Derived Data, the Sylvera Data, the Improvements, and the Services shall belong to, and remain vested in, Sylvera (or its Third Party Providers, as appropriate) at all times. Except as expressly stated in this Agreement, this Agreement does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services.

10.2 Sylvera shall defend the Customer against any third party claims that the use of the Software in accordance with this Agreement infringes any third party Intellectual Property Right and shall indemnify the Customer for and against any amounts awarded against the Customer in judgment or settlement of such claims, provided that: (i) Sylvera is given prompt notice of such claim; (ii) the Customer provides reasonable assistance to Sylvera in the defence and settlement of such claim, at Sylvera’s expense; (iii) Sylvera is given sole authority to defend or settle the claim, provided that Sylvera shall obtain the Customer's prior approval of any settlement terms, such approval not to be unreasonably withheld; and (iv) the Customer makes no admission of liability or fault itself or on behalf of Sylvera.

10.3 In the defence or settlement of any claim pursuant to Clause 10.2 above, Sylvera may at its sole option and expense either:

10.4 Sylvera shall not in any circumstances have any liability (including in respect of the indemnity provided under Clause 10.2) if the alleged infringement is based on: (i) modification of the Software by anyone other than Sylvera or Sylvera’s duly authorised contractors or agents; or (ii) the Customer’s or any Authorised User’s use of the Software otherwise than in accordance with this Agreement or in a manner contrary to the instructions given to the Customer by Sylvera in writing in connection therewith; or (iii) the Customer’s or any Authorised User’s use of the Software after notice of the alleged or actual infringement from Sylvera or any appropriate authority.

11.1 This Agreement shall commence as of the Effective Date and, unless terminated sooner as provided herein, shall continue for the Term. 

11.2 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if: 

11.3 Sylvera may terminate this Agreement at any time in whole or in part by giving three (3) months’ written notice to the Customer, provided that Sylvera shall refund to the Customer any amounts paid in advance as at the date of termination of this Agreement under this Clause 11.3.

11.4 Without prejudice to any other rights or remedies to which Sylvera may be entitled under this Agreement, if Sylvera knows or has reasonable grounds to suspect that the Customer is acting in material breach of its obligations under this Agreement, Sylvera may notify the Customer in writing accordingly and may immediately suspend the Customer’s and all Authorised Users’ access to the Services until such breach can be remedied or until Sylvera is satisfied, acting reasonably, that its suspicions are unfounded. If Sylvera suspends Customer’s access for 10 Business Days or longer and, upon investigation, determines that its suspicions were unfounded, Sylvera shall refund to Customer any amounts paid in respect of the period of suspension. 

11.5 On termination of this Agreement for any reason: (i) all licences granted under this Agreement shall immediately terminate; each party shall return and make no further use of any Confidential Information, equipment, property and other items (and all copies of them) belonging to the other party;  and (ii) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination shall not be affected or prejudiced.

12.1 Customer acknowledges that Ratings are, and will be construed solely as, a statement of opinion on the carbon impact of a Project at a certain point in time, and not statements of current or historical fact, investment or financial advice, endorsements or criticisms of any Project, nor recommendations to take or not take a particular action by the Sylvera Parties. Ratings are expressed in relative rank order, which is to say they are ordinal measures of the expected carbon impact and are not predictive of a specific outcome. Ratings do not address any other risk or assessment, including but not limited to market value risk or price volatility, and do not take account of any objectives or requirements of the Customer. Ratings are the collective work product of Sylvera, and no individual, or group of individuals, is solely responsible for a Rating. Ratings are not facts and, therefore, cannot be described as being "accurate" or "inaccurate."

12.2 Sylvera adopts all reasonable measures to ensure the information that it relies upon or makes available is of sufficient quality and from sources that Sylvera considers to be reliable and/or independent. Notwithstanding, Sylvera cannot independently verify or validate all of the information used or made available. As a result of the possibility of human, technical and/or other error, all Sylvera Data is provided on an “as is” basis without (except as expressly and specifically provided in this Agreement) representation or warranty of any kind, express or implied by the Sylvera Parties. Customer agrees that no oral or written information or advice given by Sylvera Parties in respect of the Sylvera Data shall constitute a representation or a warranty. The Sylvera Parties make no guarantee of accuracy, completeness, timeliness, or availability. THE SYLVERA PARTIES EXPRESSLY DISCLAIM ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE, FREEDOM FROM BUGS, SOFTWARE ERRORS OR DEFECTS, THAT THE SOFTWARE’S FUNCTIONING WILL BE UNINTERRUPTED OR THAT THE SOFTWARE WILL OPERATE WITH ANY SOFTWARE OR HARDWARE CONFIGURATION. 

12.3 The Sylvera Data may include inaccuracies or typographical errors, and there may be times when it is unavailable. Sylvera has no obligation to keep the Sylvera Data updated, but Sylvera may make modifications and/or changes to it at any time, for any reason, and the Customer assumes the sole risk of making use of and/or relying on the Sylvera Data. 

12.4 The Customer acknowledges that it will, with due care, make its own study and evaluation of a Project before taking any decisions or actions, that nothing provided by the Sylvera Parties should be a substitute for the exercise of independent judgement, skill and expertise by the Customer, and that it takes any investment decisions solely at its own risk. Equally, the Customer is responsible for the conclusions that it draws from any use of Analytics, and acknowledges that, by providing Analytics, Sylvera is not expressing any judgement or opinion, nor providing any advice. Lastly, Sylvera has not consented to being named an “expert” or any similar designation under applicable securities laws.

13.1 This Clause 13 sets out the entire financial liability of the parties arising under or in connection with this Agreement, in respect of any use made by the Customer or its Authorised Users of the Services; and in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.

13.2 Sylvera shall have no liability for any damage caused by errors or omissions in any information (negligent or otherwise, and including without limitation, in the Sylvera Data) or any actions taken by Sylvera at the Customer's direction. No other party is entitled to rely on the Sylvera Data for any purpose whatsoever, and Sylvera disclaims any responsibility to any such third party who has had communicated to him or her the information or advice provided by or on behalf of Sylvera to the Customer.

13.3 Nothing in this Agreement excludes either party’s liability for death or personal injury caused by its negligence, fraud or fraudulent misrepresentation or for any liabilities that cannot be excluded under applicable law. 

13.4 Subject to Clause 13.3, neither party shall be liable for any consequential, indirect, special, incidental, punitive or exemplary damages, costs, expenses, legal fees or losses whether foreseeable or unforeseeable, loss of profit, loss of business, loss of goodwill, loss of or corruption of data, loss caused as a result of the Services being unavailable, loss arising from any failure of the Customer’s infrastructure and/or utilities, loss caused as a result of the Services being unavailable caused by a Force Majeure Event, loss caused by the failure or delay of any third party application or service or network, however arising under this Agreement. Except for the Customer’s liability under Clause 14 (which will not be subject to any limit), either party’s entire, aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising out of or relating to this Agreement shall be limited to the total Subscription Fees paid during the twelve (12) months immediately preceding the date on which the claim arose.

14.1 The Customer shall defend, indemnify and hold harmless Sylvera against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Services, Software or the Sylvera Data in breach of this Agreement or other agreements referred to in this Agreement (including, but not limited to, the Acceptable Use Policy). 

15.1 Each party may have access to Confidential Information of the other party under this Agreement.  A party's Confidential Information shall not include information that: (i) is or becomes publicly known through no act or omission of the receiving party; or (ii) was in the other party's lawful possession prior to the disclosure; or (iii) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or (iv) is independently developed by the receiving party, which independent development can be shown by written evidence.

15.2 Subject to Clause 15.4, each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other party's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of this Agreement.

15.3 Each party agrees to take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of this Agreement. 

15.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this Clause 15.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.

15.5 This Clause 15 shall survive termination of this Agreement for any reason.

16.1 Insurance. Each party shall obtain and maintain in force insurance with a reputable insurance company for the duration of the Term of this Agreement, against all risks which would normally be insured against by a reasonably prudent customer or supplier, in the context of this Agreement.

16.2 Entire agreement. This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

16.3 Assignment.  Except to an Affiliate, neither party shall assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement without the prior written consent of the other party. 

16.4 Force Majeure.  Neither party is responsible for failure to fulfil its obligations herein, except for any payment obligations, due to causes beyond its reasonable control that directly or indirectly delay or prevent its timely performance herein, if such delay or failure results from events, beyond its reasonable control, including, without limitation, strikes, acts of God, epidemics, pandemics or other outbreak of infectious disease or other public health crisis (and any government response to them, including quarantine or other employee restrictions), war, terrorism, riot, denial of service attacks, or compliance with any law or governmental order (“Force Majeure Event”). Dates or times by which each party is required to render performance under this Agreement shall be postponed automatically to the extent that the party is delayed or prevented from meeting them by such causes. If the Force Majeure Event prevents, hinders or delays the affected party’s performance of its obligations for a continuous period of more than thirty (30) days, either party may terminate this Agreement by giving thirty (30) days’ written notice to the other party.

16.5 Notices.  All communications relating to this Agreement shall be in writing and sent by email to the following addresses (or an address substituted in writing by the party to be served):
‍
- Sylvera: legal@sylvera.io 
- Customer: as set out on the most recent Order Form

Any such communication shall take effect upon transmission.

16.6 Variation.  No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

16.7 Waiver.  No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

16.8 Severance.  If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this Clause shall not affect the validity and enforceability of the rest of this Agreement.

16.9 Relationship.  Each of the parties to this Agreement is an independent contractor and nothing contained in this Agreement shall be construed to imply that there is any relationship between the parties of agents or of principal/agent or of employer/employee nor are the parties hereby engaging in a joint venture and accordingly neither of the parties shall have any right or authority to act on behalf of the other nor to bind the other by contract or otherwise, unless expressly permitted by the terms of this  Agreement. 

16.10 Third party rights.  A person who is not a Party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.

16.11 Counterparts.  This Agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.

16.12 Governing Law. This Agreement, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by, and construed in accordance with, the law of England and Wales.

16.13 Jurisdiction. Each Party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.

1.1 Definitions. Capitalized terms not otherwise defined herein will have the meanings set out below:

“Acceptable Sharing Policy” means the acceptable sharing policy in force from time to time and available on the Website and/or in the App.

“Affiliate” means a legal entity that directly or indirectly controls, is controlled by, or is under common control with a party; where “control” and its derivatives mean (i) the ownership of, control over or ability to direct voting of more than 50% of its fully diluted voting share capital; or (iii) the right to appoint or remove its directors that hold a majority of the voting rights.

“Agreement” means the agreement between Sylvera and Customer comprising the Order Form(s), these Subscription Terms, and any and all additional agreements or policies referred to herein or subsequently entered into in writing or electronically by the parties.

“Analytics” means the service that allows customers of Sylvera to assess the emissions, emission reduction targets and carbon credit use of businesses, industries and/or portfolios of either.

“API” means any application programming interface(s) operated by Sylvera and through which the Services are delivered.

“App” means any authentication application software operated by Sylvera and through which the Services are delivered.

“Authorized Users” means those employees, agents and independent contractors of the Customer or the Customer’s Affiliates that are permitted by Sylvera to access and use the Services on the Customer’s behalf, pursuant to this Agreement.

“Confidential Information” means, subject to Section 9.1, any confidential information disclosed or made available by one party (“Discloser”) or its employees, officers, representatives or advisers (together “Representatives”) to the other party (“Recipient”) and its Representatives, whether in writing, electronically, or in any other form, that is either conspicuously identified as confidential or proprietary or should be otherwise reasonably understood as such based on the nature of the information or circumstances of the disclosure. Without limiting the generality of the foregoing, Confidential Information includes the terms and conditions of this Agreement and any non-public information regarding the business, affairs, customers, clients, suppliers, plans, intentions, market opportunities, operations, processes, product information, services, know-how, technical information or trade secrets of the Discloser.

“Confidential Information” means (without limitation) all confidential information (however recorded or preserved) disclosed by one party or its employees, officers, representatives or advisers (together “Representatives”) to the other party and the other party’s Representatives, including the terms and conditions of this Agreement, the business, affairs, customers, clients, suppliers, plans, intentions, market opportunities, operations, processes, product information, services, know-how, technical information or trade secrets of the disclosing party.

“Customer Data” means any data the Customer or its Authorized Users provide through the Software, whether directly or indirectly via any third party application. Customer Data does not include any Derived Data and/or Sylvera Data.

“Data Processing Addendum” or “DPA” means the data processing addendum, as updated from time to time, that is available on the Website and forms part of this Agreement to the extent required under applicable Data Protection Laws.

“Data Protection Laws” means all data protection and privacy laws in force from time to time which apply to a party’s data processing activities hereunder, which may include without limitation the EU GDPR, the UK GDPR and the UK Data Protection Act 2018, in each case as amended, updated or replaced from time to time.

“Derived Data” means any data which is derived from the Customer’s use of the Services or the processing of Customer Data, which shall include: (i) any data which is processed and stored as mathematical constructs; (ii) statistical or aggregated data; and (iii) any other analytical data such as number and duration of user sessions and page visits, and technical performance reports on the Services.

“Effective Date” means the effective date of this Agreement as set out in the Order Form.

“EU GDPR” means the General Data Protection Regulation ((EU) 2016/679).

“Force Majeure Event” has the meaning given to it in Section 10.5.

“Improvements” means any: (i) information communicated by the Customer to Sylvera regarding any new features, functionality, performance, feedback, comments and anything analogous to the same in relation to the Software or the Services; and (ii) adaptations, modifications, improvements, enhancements, revisions and anything analogous to the same in relation to the Software or the Services in any form or medium whatsoever.

“Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trademarks and service marks, business names and domain names, rights in trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use and protect the confidentiality of confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

“Project” means any relevant environmental project which the Customer wishes to assess and evaluate through the Services. 

“Rating” means an indication of the likelihood that the claimed carbon impact of a Project is a true representation of its real impact, expressed in rank order between AAA and D. 

“Services” means the provision of certain carbon analytics solutions via the Software, as specified in an Order Form (which may include, without limitation, access to Ratings and/or Analytics).

“Software” means the software through which Sylvera’s carbon analytics solutions are delivered, including the App, any related APIs and/or any other means made available to the Customer by Sylvera from time to time.

“Specification” means the functional specification for the Services as set out in those printed or online instructions, manuals, screens and diagrams distributed or otherwise provided by Sylvera from time to time that pertain to the Software or use of the Services.

“Subscription Fees” means the subscription fees set out in the Order Form(s) as payable by the Customer to Sylvera for the Services.

“Subscription Terms” means these subscription terms and conditions that govern the Customer’s use of the Software and the Services. 

“Sylvera Data” means any data, information, analytics or reports based on proprietary and third party data which are made available to the Customer as part of the Services, including the Ratings and any other data made available through the Software.

“Sylvera Parties” means Sylvera, its Affiliates and their directors, employees, contractors, agents or shareholders.

“Term” means the term of this Agreement as specified in the Order Form.

“Third Party Provider” has the meaning given to it in Section 2.5.

“UK GDPR” means the EU GDPR as incorporated into UK law by the European Union (Withdrawal) Act 2018 (as amended by the European Union (Withdrawal) Act 2020) and amended by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019 (as further amended from time to time).

“Virus” means any software, code, file, program, or component which may prevent, impair or otherwise adversely affect the operation or user experience of any computer software, hardware, network, or data, including worms, Trojan horses, viruses, malware, and other malicious code. 

“Website” means https://www.sylvera.com/, app.sylvera.com or any other website operated by Sylvera through which the Services are delivered to the Customer from time to time. 
1.2 Interpretation. In this Agreement: (i) section and paragraph headings shall not affect the interpretation of this Agreement; (ii) unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular; (iii) a reference to writing or written includes e-mail; (iv) any words following the terms including, include, in particular for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

2.1 Grant. Subject to the Customer paying the Subscription Fees and otherwise complying with this Agreement, Sylvera hereby grants to the Customer a non-exclusive, non-transferable, non-sublicensable right to permit the Authorized Users to access and use the Services during the Term in accordance with this Agreement. The rights granted under this Agreement are granted to the Customer only, and shall not be considered granted to any Affiliate of the Customer. The Customer shall ensure that all Authorized Users use the Services strictly in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorized User's breach of this Agreement.

2.2 Acceptable Use. Except to the extent expressly permitted under this Agreement, the Customer shall not, and shall ensure its Authorized Users do not, directly or indirectly: (i) attempt to, copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means; (ii) attempt to decompile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; (iii) access, store, distribute or transmit via the Software any Viruses or any material that is unlawful, harmful, infringing, or which facilitates illegal activity or causes damage or injury to any person or property; (iv) access all or any part of the Services in order to build a product or service which competes with the Services; (v) make the Services available to any third party except to Authorized Users; (vi) attempt to obtain, or assist third parties in obtaining, access to the Services; (vii) use any part of the Services in connection with reporting required under any financial instrument or pursuant to any regulatory obligation; or (viii) redistribute or reproduce the Sylvera Data to third parties, or use the Sylvera Data other than in accordance with the terms and conditions of this Agreement. 

2.3 Acceptable Sharing Policy. Notwithstanding Section 2.2(vii) or (viii), the Customer may redistribute the Sylvera Data strictly in accordance with the Acceptable Sharing Policy, which Customer will comply with at all times. Customer acknowledges and agrees that a breach by Customer of the Acceptable Sharing Policy may result in immediate and irreparable harm to Sylvera, for which there may be no adequate remedy at law. Without prejudice to any other rights and remedies it may have, Sylvera will be entitled to seek equitable relief to compel Customer to cease and desist any breach of the Acceptable Sharing Policy.

Unauthorized Access. The Customer shall take reasonable steps to prevent any unauthorized access to, or use of, the Software and the Services and, in the event of any such unauthorized access or use, promptly notify Sylvera. Customer shall take reasonable steps to ensure that each Authorized User shall: (i) keep a secure username and password for their use of the Services; and (ii) keep such access credentials confidential and not share such access credentials internally or with third parties. 

2.6 Additional Restrictions for Analytics. If Customer has access to Analytics, raw data relating to company or corporate group-level emissions targets, performance and data may only be used by Customer for internal company research; for internal portfolio and fund analysis; for engagement with the company to which the data relates; to inform investment decisions; to fulfill reporting requirements to regulators; and to fulfill science-based targets submission requirements.

2.7 Support. Sylvera will provide basic customer support in accordance with the Specification and as otherwise set forth in the applicable Order Form.

2.8 Scope Changes. The Order Form specifies the details of the Services purchased by the Customer, for example, what Services are made available to the Customer, the number of Authorized Users, number of Projects, etc. If the Customer wishes to purchase additional Services, the Customer shall notify Sylvera and, if Sylvera agrees to the request, Sylvera and the Customer shall enter into an additional or replacement Order Form.

2.9 Non-Exclusive. This Agreement shall not prevent Sylvera from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.

2.10 Cooperation. The Customer shall provide Sylvera with all cooperation reasonably necessary in relation to this Agreement. Customer acknowledges that Sylvera may require reasonable cooperation and access to Customer’s account in order to provide support, fix any errors or lift any account suspension, and to the extent that such access and cooperation is not provided in a timely and efficient manner, Sylvera may not be able to provide the requisite support, fix any errors or lift any suspensions.

3.1 Generally. As between the parties, all Intellectual Property Rights in and to the Software, the Derived Data, the Sylvera Data, the Improvements, and the Services shall belong to, and remain vested in, Sylvera (or its Third Party Providers, as appropriate) at all times. As between the parties, all Intellectual Property Rights in and to the Customer Data shall belong to, and remain vested in, the Customer at all times. Except as expressly stated in this Agreement, this Agreement does not grant either party any rights to, under, or in, the other party’s Intellectual Property Rights. Any Improvement shall be free from any confidentiality restrictions that might otherwise be imposed upon Sylvera pursuant to this Agreement.

3.2 Monitoring. The Customer acknowledges that Sylvera may monitor and analyze the Customer’s and any Authorized User’s use of the Software for the purposes of security, monitoring compliance with this Agreement, and to help Sylvera improve the Services and the Software. 

3.3 Customer Data. Sylvera may use the Customer Data in order to provide the Services and to improve the performance and functionality of the Software, including for developing Improvements, updates, upgrades, modifications, and derivative works thereof.

3.4 DPA. Both parties shall comply with their respective obligations in the DPA and under any applicable Data Protection Laws. The DPA is in addition to, and does not relieve, remove or replace, each of the parties’ obligations or rights under the Data Protection Laws.

4.1 Invoicing. Sylvera will invoice the Customer for the Subscription Fees in advance in accordance with the intervals specified in the Order Form. Unless otherwise stated in the Order Form, the Customer shall pay each invoice within thirty (30) days after the date of such invoice. The Customer is responsible for providing complete and accurate billing and contact information to Sylvera and notifying Sylvera of any changes to such information. Subscription Fees are payable in the currency detailed in the Order Form, and are non-cancellable and non-refundable (except as set out in this Agreement). 

4.2 Late Payment. If Sylvera has not received payment by the due date, and without prejudice to any other rights and remedies of Sylvera, Sylvera may, without liability, disable the Customer's and all Authorized Users’ passwords, accounts and access to all or part of the Services until the invoice(s) concerned are paid in full.

4.3 Taxes and Charges. Subscription Fees are stated exclusive of value added tax or any sales tax, which shall be added to Sylvera’s invoice(s) at the appropriate rate, if applicable. All amounts due under this Agreement shall be paid by the Customer in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by applicable law). For some payment methods, the issuer may charge certain fees, such as foreign transaction fees or other fees relating to the payment method, which shall be due and payable by the Customer.

4.4 Increases. Sylvera shall be entitled to increase the Subscription Fees (a) in line with the fee mechanism as set out in the Order Form (if any), and/or (b) at the start of each Renewal Term (as defined in the Order Form) upon sixty (60) days' prior written notice to the Customer. 

5.1 Term. This Agreement shall commence as of the Effective Date and, unless terminated sooner as provided herein, shall continue for the Term.  

5.2 Termination. Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if: 
 
5.2.1 the provision or receipt of the Services becomes unlawful; 

5.2.2 the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than fifteen (15) business days after being notified in writing to make such payment;

5.2.3 if the other party commits a material breach of the Acceptable Sharing Policy or any term of this Agreement, which breach is irremediable or (if such breach is remediable) is not remedied within thirty (30) days from written notification of the breach (such notification to include reference to this Section 5.2); or

5.2.4 the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction, or it ceases or threatens to cease to carry on business.

Additionally, Sylvera may terminate this Agreement at any time in whole or in part by giving three (3) months’ written notice to the Customer, provided that Sylvera shall refund to the Customer any amounts paid in advance and corresponding to the period after such termination.

5.3 Suspension. Without prejudice to any other rights or remedies to which Sylvera may be entitled under this Agreement, Sylvera may immediately suspend the Customer’s and its Authorized Users’ access to the Services if: (i) it has a good faith suspicion that there has been any material breach of these Terms; or (ii) it otherwise determines in good faith that such a suspension is necessary to protect the integrity and security of the Services or any party’s systems or information. Sylvera will notify the Customer in writing as soon as practicable regarding the reason for such suspension, and will use commercially reasonable efforts to promptly restore access once the underlying issue has been satisfactorily resolved.

5.4 Effect of Termination. On termination or expiration of this Agreement for any reason, all licenses granted under this Agreement shall immediately terminate. Termination or expiration of this Agreement will not affect any obligations or liabilities of the parties that have accrued prior to the effective date of expiration or termination (including any obligation to pay previously accrued amounts). Sections 2.2, 2.3, 2.6, 3, 5.4, 6.3, and 7 through 10 will survive any termination or expiration of this Agreement.

6.1 Limited Warranty. Sylvera represents and warrants that the Services will materially conform to the applicable Specification. If the Services do not conform with the Specification, Sylvera will, at its expense, use all commercially reasonable efforts to promptly correct any such non-conformance at no additional charge, or provide the Customer with an alternative means of accomplishing the desired performance. If Sylvera determines it will be unable to accomplish the foregoing in a commercially reasonable timeframe, it may instead terminate the applicable Order Form and refund the Customer any prepaid amounts corresponding to the time period after such termination. These remedies constitute the Customer's sole and exclusive remedies, and Sylvera’s sole obligation, for any such non-conformance.

6.2 Exclusions. Sylvera shall not be liable for any breach of the warranty in Section 6.1 to the extent non-conformance with the Specification is caused by: (a) use of the Software or the Services contrary to Sylvera’s instructions, (b) modification or alteration of the Software or the Services by any party other than Sylvera or Sylvera’s duly authorized contractors or agents, or (c) any information, hardware, or software not provided by Sylvera.

6.3 Disclaimers.

6.3.1 Generally. Notwithstanding anything to the contrary in this Agreement: (i) the Customer acknowledges and agrees that the Services will evolve over time and that functionality may be added and removed from time to time; (ii) Sylvera does not warrant that the Customer's use of the Services will be uninterrupted or error-free; or that the Services and/or the information obtained by the Customer through the Services will meet the Customer's requirements; and (iii) Sylvera is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

6.3.2 Opinions. Customer acknowledges that Ratings are, and will be construed solely as, a statement of opinion on the carbon impact of a Project at a certain point in time, and not statements of current or historical fact, investment or financial advice, endorsements or criticisms of any Project, nor recommendations to take or not take a particular action by the Sylvera Parties. Ratings are expressed in relative rank order, which is to say they are ordinal measures of the expected carbon impact and are not predictive of a specific outcome. Ratings do not address any other risk or assessment, including but not limited to market value risk or price volatility, and do not take account of any objectives or requirements of the Customer. Ratings are the collective work product of Sylvera, and no individual, or group of individuals, is solely responsible for a Rating. Ratings are not facts and, therefore, cannot be described as being "accurate" or "inaccurate."

6.3.3 Data. Sylvera cannot independently verify or validate all of the information used or made available. The Sylvera Data may include inaccuracies or typographical errors, and there may be times when it is unavailable. Sylvera has no obligation to keep the Sylvera Data updated, but Sylvera may make modifications and/or changes to it at any time, for any reason, and the Customer assumes the sole risk of making use of and/or relying on the Sylvera Data. Sylvera shall have no liability for any damage caused by errors or omissions in any information (negligent or otherwise, and including without limitation, in the Sylvera Data) or any actions taken by Sylvera at the Customer's direction. No other party is entitled to rely on the Sylvera Data for any purpose whatsoever, and Sylvera disclaims any responsibility to any such third party who has had communicated to him or her the information or advice provided by or on behalf of Sylvera to the Customer.

6.3.4 No Guarantees; Further Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SOFTWARE, SERVICES, AND SYLVERA DATA ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE SYLVERA PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND RELATED TO THE SOFTWARE, SERVICES, AND SYLVERA DATA, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, OR THAT USE OF THE FOREGOING WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE OUTPUT WILL BE COMPLETE OR ACCURATE, OR THAT THE SOFTWARE OR SERVICES WILL SUPPORT OR WILL OPERATE WITH ANY SOFTWARE OR HARDWARE CONFIGURATION. THE SYLVERA PARTIES MAKE NO GUARANTEE OF ACCURACY, COMPLETENESS, TIMELINESS, OR AVAILABILITY REGARDING THE SOFTWARE, SERVICES, OR SYLVERA DATA. CUSTOMER AGREES THAT NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SYLVERA PARTIES SHALL CONSTITUTE A REPRESENTATION OR A WARRANTY.

6.3.5 Customer Responsibility. The Customer acknowledges that it will, with due care, make its own study and evaluation of a Project before taking any decisions or actions, that nothing provided by the Sylvera Parties should be a substitute for the exercise of independent judgement, skill and expertise by the Customer, and that it takes any investment decisions solely at its own risk. Equally, the Customer is responsible for the conclusions that it draws from any use of Analytics, and acknowledges that, by providing Analytics, Sylvera is not expressing any judgement or opinion, nor providing any advice. Lastly, Sylvera has not consented to being named an “expert” or any similar designation under applicable securities laws. Where the Customer or any Authorized User evaluates the Sylvera Data, and subsequently provides or intends to provide advice to third parties based on such use of the Services, the Customer acknowledges that Sylvera expressly disclaims all liability in relation to such advice

NEITHER PARTY SHALL BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO ANY LOSS OF PROFIT, LOSS OF BUSINESS, LOSS OF GOODWILL, LOSS OF OR CORRUPTION OF DATA OR OTHERWISE RESULTING FROM THE USE OF OR INABILITY TO USE THE SOFTWARE OR SERVICES, UNDER ANY LEGAL THEORY WHATSOEVER (INCLUDING TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE), AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL EXCEED THE TOTAL SUBSCRIPTION FEES PAID OR PAYABLE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM AROSE.The preceding paragraph will not limit: (i) a party’s liability for death or personal injury caused by its negligence, fraud or fraudulent misrepresentation; (ii) the Customer’s liability for infringement or violation of Sylvera’s Intellectual Property Rights; (iii) a party’s express indemnity obligations under Section 8; or (iv) any other liabilities that cannot be excluded under applicable law. 

8.1 By Sylvera. Sylvera shall defend, indemnify and hold harmless the Customer against any third-party claims that the use of the Software in accordance with this Agreement infringes any third party Intellectual Property Right. Sylvera shall not have any indemnity obligations or other liability for any alleged infringement based on: (i) modification of the Software by anyone other than Sylvera or Sylvera’s duly authorized contractors or agents; or (ii) the Customer’s or any Authorized User’s use of the Software otherwise than in accordance with this Agreement or in a manner contrary to the instructions given to the Customer by Sylvera in writing in connection therewith; (iii) the Customer’s or any Authorized User’s use of the Software after notice of the alleged or actual infringement from Sylvera or any appropriate authority; (iv) the Customer’s or any Authorized User’s combination of the Software or Services with any data or components not provided by Sylvera; or (v) Customer Data or Sylvera’s conformance with the Customer’s specific requirements or instructions.

8.2 Mitigation of IP Claims. In the defense or settlement of any such claim, Sylvera may at its sole option and expense either: (i) procure for the Customer the right to continue using the Software in the manner contemplated by this Agreement; (ii) replace or modify the Software so that it becomes non-infringing; or (iii) terminate this Agreement by written notice and without liability to the Customer, in which case Sylvera shall refund to the Customer any amounts paid in advance as at the date of termination of this Agreement.

8.3 By Customer. The Customer shall defend, indemnify and hold harmless Sylvera against any claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with any Customer Data or the Customer’s use of the Services, Software or the Sylvera Data in breach of this Agreement or other agreements referred to in this Agreement (including, but not limited to, the Acceptable Sharing Policy).

8.4 Indemnity Procedures. The party seeking indemnification hereunder will: (i) give the indemnifying party prompt written notice of the claim (provided that no delay will affect the indemnifying party’s obligations except to the extent such party is materially prejudiced by such delay); (ii) give the indemnifying party control of the defense and settlement of the claim; and (iii) cooperate with the indemnifying party in defending or settling such claim, at the indemnifying party’s expense. Subject to the foregoing, the indemnified party will have the right to participate at its own expense in any indemnification action or related settlement negotiations using counsel of its choice. Neither party may consent to the entry of any judgment or enter into any settlement that adversely affects the rights or interests of the other party without such party’s prior written consent, which may not be unreasonably withheld.

9.1 Exceptions. Confidential Information shall not include information that: (i) is or becomes publicly known through no act or omission of the Recipient; (ii) was in the Recipient’s lawful possession prior to receipt from the Discloser, without obligations of confidentiality; (iii) is lawfully disclosed to the Recipient by a third party without restriction on disclosure; or (iv) is independently developed by the Recipient, which independent development can be shown by written evidence.

9.2 Protection. Recipient will only use Confidential Information to perform its obligations or exercise its rights under this Agreement. Recipient will not disclose Confidential Information to any third parties, except that Sylvera may disclose Confidential Information to its and its Affiliates’ officers, employees, agents, and representatives who have a need to know such Confidential Information for the purposes of this Agreement and who are bound by confidentiality obligations at least as protective as those set forth herein. Recipient will maintain the Confidential Information in confidence using the same degree of care as it uses to protect its own similar information (but no less than reasonable care) and will be liable for any unauthorized use or disclosure of the Confidential Information, including by any of its personnel. The protections set forth herein will continue to apply to any Confidential Information disclosed during the Term for the greater of five years from disclosure, or so long as such Confidential Information is protected as a trade secret under applicable law. Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of this Agreement. 

9.3 Compelled Disclosure. A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and takes into account the reasonable requests of the other party in relation to the content of such disclosure.

9.4 Return or Destruction. At Discloser’s request or upon the expiration or termination of this Agreement, Recipient will promptly return or destroy all Confidential Information (including any copies thereof) in its possession or control, except that Recipient may retain: (i) any copies required to be retained under applicable law, and (ii) copies in backup or archive media created in the ordinary course of business; provided in each case that the obligations of confidentiality hereunder will continue to apply to such retained copies.

10.1 Insurance. Each party shall obtain and maintain in force insurance with a reputable insurance company, in commercially reasonable coverage types and amounts in the context of its operations related to this Agreement.

10.2 Compliance. Each party shall comply with all applicable laws and regulations in the exercise of its rights and the performance of its obligations pursuant to this Agreement.

10.3 Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

10.4 Assignment. Neither party shall assign or transfer this Agreement without the prior written consent of the other party, not to be unreasonably withheld. Notwithstanding the foregoing, either party may assign and transfer this Agreement in its entirety to an Affiliate or the surviving or successor entity in the event of a merger, stock sale, or sale of substantially all assets. Subject to the foregoing, this Agreement will be for the benefit of, and binding upon, each party’s permitted successors and assigns.

10.5 Force Majeure. Except for payment obligations, neither party will be liable for any delays or failures to perform to the extent due to a cause beyond such party’s reasonable control, which may include without limitation, strikes, acts of God, epidemics, pandemics or other outbreak of infectious disease or other public health crisis (and any government response to them, including quarantine or other employee restrictions), war, terrorism, riot, denial of service attacks, or compliance with any law or governmental order (“Force Majeure Event”). Dates or times by which each party is required to render performance under this Agreement shall be postponed automatically to the extent that the party is delayed or prevented from meeting them by such causes. If the Force Majeure Event prevents, hinders or delays the affected party’s performance of its obligations for a continuous period of more than thirty (30) days, either party may terminate this Agreement by giving thirty (30) days’ written notice to the other party. 

10.6 Notices. All communications relating to this Agreement shall be in writing and sent by email to the following addresses (or an address substituted in writing by the party to be served):
- Sylvera: legal@sylvera.io 
- Customer: as set out on the most recent Order Form 
Any such communication shall take effect upon transmission.

10.7 Amendments. No modification of or amendments to this Agreement shall be effective unless in writing and signed by authorized representatives of both parties.

10.8 Waiver. No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

10.9 Severability. If any provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision shall be deemed deleted. Any modification to or deletion of a provision under this paragraph shall not affect the validity and enforceability of the rest of this Agreement.

10.10 Relationship. Each of the parties to this Agreement is an independent contractor and nothing contained in this Agreement shall be construed to imply that there is any relationship between the parties of agents or of principal/agent or of employer/employee nor are the parties hereby engaging in a joint venture and accordingly neither of the parties shall have any right or authority to act on behalf of the other nor to bind the other by contract or otherwise, unless expressly permitted by the terms of this Agreement. 

10.11 No Third-Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective permitted successors and assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other person or entity except as expressly set forth herein.

10.12 Counterparts. This Agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.

10.13 Governing Law. This Agreement, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regards to conflicts of laws principles.

10.14 Disputes; Arbitration. Any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation will be settled exclusively through binding arbitration administered in New York, NY by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures (and in accordance with the Expedited Procedures in those Rules). Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction. Notwithstanding the foregoing, either party may seek injunctive or other equitable relief from any court having jurisdiction for any alleged or threatened misappropriation of intellectual property rights or breach of confidentiality. The prevailing party in any dispute hereunder will be entitled to recover its reasonable attorney’s fees and costs. THE PARTIES HERETO EXPRESSLY WAIVE THE RIGHT TO TRIAL BY JURY AND ANY RIGHT TO PARTICIPATE IN CLASS-ACTION PROCEEDINGS.