GreenNexxus One Million Acts of Green Agreement
THIS GreenNexxus One Million Acts of Green Agreement (“Agreement”) governs your license and use of the Facebook One Million Acts of Green Application.
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 AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE PROVISIONS OF THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE APPLICATION.
“Application” means the online, web-based Facebook applications and platform provided by Us.
“Facebook” means the facebook social network website located at facebook.com and other domains.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“The Data” means all electronic data or information submitted by You or any Users in respect of Your use of the Application.
“Users” means individuals who are authorized, explicitly or impliedly, by You to use the Application.
“We,” “Us” or “Our” means E9 Group Inc. (doing business as GreenNexxus), located at 3 Thatch Road, Lincoln, New Brunswick, Canada, E3B 7E4.
“You” or “Your” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
2. USE OF THE APPLICATION
2.1 License to Use the Application. We grant You a worldwide, non-sublicensable, non-assignable, non-transferrable, royalty-free, terminable, license to use the Application within Facebook.
2.2 Our Responsibilities. We shall use commercially reasonable effort to: (i) provide to You basic support for the Application at no additional charge, and/or upgraded support if purchased separately, (ii) use commercially reasonable efforts to make the Application available 24 hours a day, 7 days a week, except for: (a) planned downtime (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), or Internet service provider failures or delays.
2.2. Your Responsibilities. You shall (i) be responsible for Users’ compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of Your Data and of the means by which You acquired Your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Application, and notify Us promptly of any such unauthorized access or use, and (iv) use the Application only in accordance with the applicable laws and government regulations. You shall not (a) make the Application available to anyone other than Users, (b) sell, resell, rent or lease the Application, (c) use the Application to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Application to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Application or third-party data contained therein, or (f) attempt to gain unauthorized access to the Application or their related systems or networks.
3. PROPRIETARY RIGHTS
3.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Application, including all related intellectual property rights. No rights are granted to You or any Users hereunder other than as expressly set forth herein.
3.2. Restrictions. You shall not (i) permit any third party to access the Application except as permitted herein, (ii) create derivate works based on the Application, (iii) copy, frame or mirror any part or content of the Application, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Application, or (v) access the Application in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Application.
3.3. Ownership of The Data. As between Us and You, We exclusively own all rights, title and interest in and to all of The Data.
3.4. Suggestions. We shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Application any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Application.
4. WARRANTIES AND DISCLAIMERS
4.1. Mutual Warranties. Each party represents and warrants that (i) it has the legal power to enter into this Agreement, and (ii) it will not transmit to the other party any Malicious Code (except for Malicious Code previously transmitted to the warranting party by the other party).
4.2. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, WE MAKE NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
5.1. Indemnification by You. You shall defend Us against any Claim made or brought against Us by a third party alleging that Your Data, or Your use of the Application in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify Us for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Us in connection with any such Claim; provided, that We (a) promptly give You written notice of the Claim; (b) give You sole control of the defense and settlement of the Claim (provided that You may not settle any Claim unless the settlement unconditionally release Us of all liability); and (c) provide to You all reasonable assistance, at Our expense.
5.2. Exclusive Remedy. This Section states the Our sole liability to, and Your exclusive remedy against Us for any type of Claim described in this Section.
6. LIMITATION OF LIABILITY
6.1. Limitation of Liability. IN NO EVENT SHALL OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY YOU TO US HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE LESSER OF $5,000 OR THE AMOUNT PAID BY YOU TO US HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT.
6.2. Exclusion of Liability. We shall have no liability for:
(a) any information provideD or displayed within the Application or resulting from the use of the Application by any Users;
(B) any claim that any use of the application (including use or display of the one million acts of green trade-mark) infringes any right of any third party.
6.3. Exclusion of Consequential and Related Damages. WE SHALL HAVE NO LIABILITY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
7. TERM AND TERMINATION
7.1. Term of Agreement. This Agreement commences on the date accepted by both parties it and continues until it is terminated by Us or You.
7.2. Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
7.3. Surviving Provisions. 3 (Proprietary Rights), 4.2 (Disclaimer), 5 (Indemnification), 6 (Limitation of Liability), 9 (General Provisions) shall survive any termination or expiration of this Agreement.
8. WHO YOU ARE CONTRACTING WITH, NOTICES, GOVERNING LAW AND JURISDICTION
8.1. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Notices to You shall be addressed to the system administrator designated by You for Your account.
8.2. Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts of New Brunswick, Canada.
8.3. Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
9. GENERAL PROVISIONS
9.1. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, and fiduciary or employment relationship between the parties.
9.2. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
9.3. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
9.4. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
9.5. Assignment. You may not assign this Agreement, or any of your rights or obligations hereunder, whether by operation of law or otherwise, without Our prior written consent (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
9.6. Entire Agreement. This Agreement, including all exhibits and addenda hereto, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted.