1. DEFINITIONS
1.1. “Acceptable Use Policy” or “AUP” shall have the meaning set forth in Section 2.2
1.2. “Accepted” or “Acceptance” means a Party’s authorized execution of a document.
1.3. “Affiliate” means an entity directly or indirectly Controlled by, Controlling or under common Control with a Party, now or in the future. An entity shall “Control" another entity when it owns more than 50% of the equity or other voting interests, or otherwise has primary management or operational responsibility.
1.4. “Agreement” means (i) these General Terms and Conditions, (ii) Service Order and/or Statement of Work executed by the Parties; and (iii) any other document that is expressly incorporated by reference in this Agreement, a Service Order and/or a Statement of Work.
1.5. “Change of Control” means one or more transactions whereby (a) Control of a Party is transferred, directly or indirectly, whether by operation of law or otherwise, (b) all or substantially all of such Party’s assets or equity securities are acquired by a person, firm or entity or (c) such Party is merged or consolidated with or into another entity; provided, that, in any case, such Party's equity owners of record immediately before such transaction(s) shall, immediately after such transaction(s), hold less than 50% of the voting power of the succeeding, acquiring or surviving entity.
1.6. “Confidential Information” means proprietary, nonpublic or trade secret information, disclosed in written, oral or visual form, that the disclosing Party, its Affiliates or agents (each, a "Disclosing Party") provides to the receiving Party, its Affiliates or agents (each, a "Receiving Party") and that Disclosing Party designates as being confidential or, if disclosed orally, states to be confidential at the time of initial disclosure, or if not so marked or stated should reasonably have been understood to be confidential as to Disclosing Party, either because of the circumstances of disclosure or the nature of the information itself and that (a) relates to Disclosing Party, its products, services, developments, trade secrets, know-how or personnel; and (b) is received by Receiving Party from Disclosing Party during the Term.
1.7. “Customer” means a customer that uses or purchases Services pursuant to this Agreement solely for such customer’s use. “Customer” includes a Resale Customer as defined herein.
1.8. “Customer Content” means any digital assets and data provided by Customer and/or Resale Customer to BCV for storage, delivery or other processing associated with the Services, uploaded or routed to, passed through and/or stored on or within BCV's applicable network or otherwise provided to BCV.
1.9. “Customer Data” shall have the meaning set forth in Section 5.1.
1.10. “BCV” means BCV Tech India Pvt Ltd.
1.11. “Effective Date” means the effective date of the Agreement. Unless otherwise specified in the Service Order and/or Statement of Work, the Effective Date is the date on which the last party signs the Service Order.
1.12. “End User” means a consumer and/or subscriber to, member of or other visitor to an online site or service owned and/or operated by Customer or Resale Customer who uses, benefits from or accesses the Services.
1.13. “End User Data” shall have the meaning set forth in Section 5.1.
1.14. “Force Majeure Event” shall have the meaning set forth in Section 14.4.
1.15. “Intellectual Property Rights” means all rights in, to, or arising out of (a) any U.S., international or foreign patent or any application thereof and any and all reissues, divisions, continuations, renewals, extensions, continuations-in-part, utility models, and supplementary protection certificates thereof; (b) inventions (whether patentable or not in any country), invention disclosures, improvements, trade secrets, proprietary information or materials, know-how, technology and technical data; (c) copyrights, copyright registrations, mask works, mask work registrations, and applications therefor in the U.S. or any foreign country, and all other rights corresponding thereto throughout the world; (d) trademarks, service marks, trade names, domain names, logos, trade dress, and all goodwill associated therewith; and (e) any other proprietary rights of a similar nature anywhere in the world now or hereafter recognized.
1.16. “MRC” means the monthly recurring charge for Services.
1.17. “Open-Source Component” means any software component that is subject to any open-source copyright license agreement, including any GNU General Public Licensor GNU Library or Lesser Public License, or other obligation, restriction or license agreement that substantially conforms to the Open-Source Definition as prescribed by the Open-Source Initiative or otherwise may require disclosure or licensing to any third Party of any source code with which such software component is used or compiled.
1.18. “Parties” means BCV Tech India Pvt Ltd (“BCV”) or Customer; “Party “means BCV or Customer.
1.19. “Resale Customer” means a Customer that purchases Services through a Reseller.1.20. “Reseller” means an entity authorized by BCV to sell Services.
1.21. “Service Order” or "SO" means a specification of Services to be performed by BCV and the associated fees or charges, as agreed by the Parties.
1.22. “Services” or “Platform/Services” shall have the meaning set forth in Section 1 of Exhibit A.
1.23. “Service Supplement” means any attachment to this Agreement setting forth the description, rates, service levels and other applicable terms for the Service identified.
1.24. “Statement of Work” or “SOW” means a specification of the non-standard (i.e., custom or professional) Services to be performed by BCV and the associated fees or charges, as agreed by the Parties.
1.25. “Taxes” means any applicable taxes, tax-like charges, tax-related charges and other charges or surcharges, including all excise, use, sales, value-added and other fees, surcharges and levies.
1.26. “Term” shall have the meaning set forth in Section 12.1.
2. SERVICES
2.1. Services. BCV shall provide the Platform/Services to Customer as specified in a mutually Accepted SO, SOW or Service Supplement, subject to the terms and conditions herein (including any terms or conditions in the applicable SO, SOW and/or Service Supplement). All SOs and SOWs must be in writing and Accepted by an authorized representative of each Party and refer to the Agreement by number or by title and date. Customer shall not white label or otherwise re-brand the Services for resale without advance written consent from BCV.
2.2. Acceptable Use, Technical Cooperation. Customer is responsible for and assumes all liabilities arising out of or related to Customer Content/Data. Customer acknowledges that BCV is a mere intermediary (i.e., passive conduit) for transmission and review of Customer Data and does not exercise editorial or other control over Customer Data. The applicable BCV Privacy Policy ("Privacy Policy") and BCV Acceptable Use Policy ("AUP") for the Services are available at www.bharatcarbon.earth/terms/ or other URL designated by BCV. Customer shall not provide to BCV any Data that may compromise the Services, is inappropriate and/or violates or is inconsistent with the AUP.
2.3. Use of Affiliates/Suppliers/Subcontractors. BCV may at any time, and without notice, use one or more Affiliates, suppliers or sub-contractors in connection with the performance of its obligations under this Agreement.
3. CHARGES AND PAYMENT.
3.1. Taxes. All charges are exclusive of Taxes, which Customer must pay. If Customer provides BCV with a valid, duly executed tax exemption certificate, BCV shall exempt Customer from Taxes in accordance with the law, effective on the date BCV receives the exemption certificate. If Customer disputes the application of any Tax, Customer must give BCV written notice of the dispute within one month of the date of the invoice. Otherwise, such application of Taxes, as between BCV and Customer, shall be deemed correct and binding on Customer. If Customer is required by law to make any deduction or withholding from any payment due hereunder to BCV, then notwithstanding anything to the contrary in this Agreement, the gross amount payable by Customer to BCV shall be increased so that, after any such deduction or withholding for taxes, the net amount received by BCV shall not be less than BCV would have received had no such deduction or withholding been required.
3.2. Payment.
a. Payment is due within 15 days of the invoice date. All invoices may be delivered to Customer electronically. Customer shall remit payment to BCV at its principal offices, unless BCV provides notice to Customer otherwise. All charges shall be invoiced and payable in the currency mutually agreed in writing.
b. If an invoice is unpaid within 15 days of the invoice date (i.e., the invoice becomes delinquent), BCV may, in its sole discretion and effective upon notice to Customer, (i) suspend Services, (ii) apply a late charge on the unpaid amount equal to the lesser of 1.5% interest per month or the maximum rate allowed by law, (iii) require Customer to provide a cash deposit or other security to guarantee payment and/or (iv) pursue any other remedy available under this Agreement, at law or in equity.
c. If Customer desires to dispute in good faith an invoiced amount, Customer shall, within 15 days of the invoice date, (i) pay the invoiced amount and (ii) provide notice of the details of the dispute, together with all supporting documentation. The Parties shall work diligently to promptly resolve the dispute and upon resolution, (1) BCV shall promptly credit to Customer any amount found to be owed to Customer or (2) Customer shall promptly pay to BCV all amounts found to be owed to BCV. If Customer does not timely submit a documented dispute notice per this Section, Customer waives all rights to dispute such amounts, including any claim of set-off or reimbursement.
d. If BCV reasonably deems itself insecure with respect to Customer’s ability to pay (e.g., due to Customer's withdrawal of credit card authorization for automatic payment), BCV may, in its sole discretion and effective upon notice to Customer, (i) modify Customer’s payment terms (e.g., by changing from monthly to quarterly invoicing of MRCs, as defined herein) and/or (ii) require Customer to provide a cash deposit or other security to guarantee payment.4. GRANT OF RIGHTS, INTELLECTUAL PROPERTY.
4.1. BCV grants to Customer the right to access and use the Services during the Term solely for the internal business purposes of the Customer. Subject only to the foregoing, BCV retains all worldwide rights, title and interest in and to the Services, BCV Platform/Services, cloud, equipment, network and methodologies, software and Intellectual Property Rights embodied therein or related thereto, whenever developed. Customer shall not and shall require that Resale Customers do not either directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any Services (including any related software, cloud, hardware or information.)
4.2. Customer grants to BCV, and its agents, suppliers and subcontractors, the right to access and use, upload, reproduce, duplicate, format, store, distribute, display and perform Customer Data and associated reports/invoices/receipts/documents as necessary to provide the Services. Subject only to the foregoing, Customer retains all rights, title and interest in and to Customer Data.
5. DATA.
5.1. The Parties acknowledge and agree that (a) BCV, its Affiliates and agents shall, by virtue of providing Services, come into possession of Customer Data including reports/invoices/receipts/documents (b) any processing of such data occurs exclusively at the direction and discretion of Customer, as exercised through workflows or other agreed means and (c) BCV, its Affiliates and agents may use, process and/or transfer Customer Data and Customer Data (including transfers to entities in countries that do not provide statutory protections for personal data) (i) in connection with providing Services and (ii) as applicable, to incorporate Customer Data into databases controlled by BCV and its Affiliates for the purpose of administration, provisioning, invoicing and reconciliation, verification of Customer identity and solvency, maintenance, support and product development, fraud detection and prevention, sales, revenue and Customer analysis and reporting, marketing and Customer use analysis. “Customer Data” means information that relates to ESG data sources including IOT and other data elements captured automatically as required for Services of Customer or a Resale Customer.
5.2. Use of De-identified Data: Customer grants the Service Provider the right to use de-identified data collected or derived from Customer's data ("De-identified Data") for the purpose of improving its ESG services, developing new products or features, conducting research, and performing analytics. De-identified Data shall not contain any personally identifiable information (PII) or sensitive information that could be used to identify individuals or confidential business information.
5.3. Data Retention: The Service Provider may retain De-identified Data for as long as necessary to fulfill the purposes outlined in this Agreement, unless otherwise specified by Customer in writing.
5.4. Data Processing: In the event that the Service Provider processes personal data on behalf of Customer as part of the ESG Services, the parties shall enter into a separate data processing agreement or addendum, as required by applicable data protection laws and regulations.
5.5. Indemnification: Customer agrees to indemnify and hold harmless the Service Provider from any claims, losses, liabilities, damages, and expenses arising out of or related to Customer's provision of data under this Agreement, including any claims of infringement of third-party rights.
5.6. Survival: The obligations and rights of the parties under this Data Clause shall survive the termination or expiration of this Agreement for any reason.
6. CONFIDENTIALITY.
During the Term and for three years thereafter, Receiving Party shall not use, copy or disclose Confidential Information except as permitted herein. All copies of Confidential Information remain the sole property of Disclosing Party. Receiving Party shall protect Disclosing Party’s Confidential Information using at least the same procedures as it uses to protect its own Confidential Information, but no less than reasonable procedures. Receiving Party may disclose Confidential Information to its employees, consultants and contractors who have a need to know in connection herewith and who have executed a confidentiality agreement at least as stringent as that provided in this Section 6 or to attorneys or other consultants or contractors who are legally required to maintain the confidentiality of such Confidential Information. Receiving Party also may disclose Confidential Information pursuant to applicable law, regulation, subpoena or other order of a court of competent jurisdiction (collectively, “Legal Requirement”) or to establish rights or obligations under this Agreement in any proceeding; provided, that (1) reasonable prior notice, unless legally prohibited, is provided to Disclosing Party sufficient to provide Disclosing Party an opportunity to contest such disclosure, (2) Receiving Party cooperates with Disclosing Party in complying with any applicable protective order or equivalent, and (3) Receiving Party discloses Confidential Information only to the extent necessary to comply with the Legal Requirement or to establish such rights or obligations. Receiving Party shall notify Disclosing Party upon discovery of any unauthorized use or disclosure of Confidential Information and shall cooperate to help Disclosing Party prevent further unauthorized use or disclosure. BCV shall not be deemed to have received, obtained, discovered, processed, stored, maintained, been given access or required access to Customer's Confidential Information solely because (x) Customer receives, transmits, obtains or otherwise exchanges such information by using the Services or (y) BCV's provision of the Services may involve hosting, storage, transport or other similar handling of such information. Receiving Party acknowledges that Disclosing Party’s Confidential Information is valuable and unique, and that unauthorized use or disclosure may result in irreparable injury to Disclosing Party for which monetary damages are inadequate. If Receiving Party violates or threatens to violate this Section 6, Disclosing Party shall be entitled to seek injunctive relief without the need to post bond, in addition to any other available legal or equitable remedies.
7. REPRESENTATIONS AND WARRANTIES.
7.1. Each Party represents and warrants that: (a) it possesses the full right, power and authority to enter into and fully perform the Agreement and grant the rights granted herein; (b) it has obtained and shall comply with, and make any necessary payments due in connection with, all required authorizations, approvals, licenses or permits from all third Parties, government authorities or otherwise in order for it to enter into and perform its obligations herein; (c) it is not bound by any contractual or other legal obligation that would prevent it from entering into or performing its obligations herein; (d) the execution, delivery and performance of this Agreement has been duly authorized by all necessary corporate action; and (e) it shall comply with all applicable laws, rules and regulations in its performance hereunder.
7.2. Customer represents and warrants that it has obtained and maintains all legally required consents and permissions for the use, processing and transfer of Customer Dataprovided to BCV.
7.3. Customer represents and warrants that none of Customer's known End Users are (a) designated on any U.S. Government or other governmental list of restricted Parties, including the List of Specially Designated Nationals and Blocked Persons administered by the Office of Foreign Asset Controls at the U.S. Department of the Treasury; (b) located in or otherwise ordinarily resident in any country where U.S. or other governmental sanctions or embargo provisions prohibit the provision of the Services; or (c) otherwise prohibited from using, benefiting from or accessing the Services.8. DISCLAIMER.BCV PROVIDES THE SERVICES “AS IS” AND DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE, TO THE FULLEST EXTENT PERMITTED BY LAW.9. LIMITATION OF LIABILITY.IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING LOST REVENUES, PROFITS OR GOODWILL, LOST OR DAMAGED CUSTOMER CONTENT OR DATA, LOST CUSTOMERS, BUSINESS INTERRUPTION OR REPLACEMENT SERVICES, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY, WHETHER OR NOT SUCH PARTY KNEW OR HAD REASON TO KNOW OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER OR NOT THE REMEDIES PROVIDED FOR HEREIN FAIL OF THEIR ESSENTIAL PURPOSE, OR WHETHER FORESEEABLE OR NOT, ARISING FROM THE PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT, OR ANY ACTS OR OMISSIONS ASSOCIATED THEREWITH OR RELATED TO BCV SYSTEMS, NETWORKS, COMPONENTS OR PROCESSES, ANY BCV SERVICES, EQUIPMENT, SOFTWARE OR DOCUMENTATION. BCV SHALL HAVE NO LIABILITY FOR DATA THEFT, DENIAL OF SERVICE ATTACKS OR OTHER MALICIOUS ACTS BY THIRD PARTIES. BCV’S AGGREGATE LIABILITY FOR ANY AND ALL CAUSES OF ACTIONS, CLAIMS AND DAMAGES IN CONNECTION WITH THIS AGREEMENT IS LIMITED TO THE LESSER OF (1) DIRECT DAMAGES PROVEN BY CUSTOMER OR (2) THE AMOUNT OF FEES OR CHARGES PAID BY CUSTOMER TO BCV DURING THE 6-MONTH PERIOD BEFORE THE DATE ON WHICH ANY CLAIM AROSE.
10. INDEMNIFICATION.
10.1. Indemnification. Customer shall, at its cost, defend, indemnify and hold harmless BCV and its officers, directors, employees, agents and permitted successors and assigns (each a "BCV Indemnitee") through final judgment or settlement, from and against any third-Party claim, action, suit, proceeding, judgments, settlements, losses, damages, expenses (including reasonable legal fees and expenses) and costs (including allocable costs of in-house counsel) ("Claim") brought against a BCV Indemnitee arising out of or based upon (a) bodily injury, death or loss of or damage to real or tangible personal property to the extent that such Claims were alleged to have been proximately caused by any negligent act, omission or willful misconduct of Customer, its agents or employees, (b) operation or use of Customer’s or Resale Customer’s Data (c) unauthorized use of or access to the Services or BCV Platform/Services by Customer or Resale Customer, (d) BCV’s compliance with Customer or Resale Customer specifications, (e) a combination or modification of the Services or BCV Platform/Services by or on behalf of Customer or Resale Customer by anyone other than BCV or its authorized agents, or (f) use of other than the then-current, unaltered release of any BCV-provided software used in the Service.
10.2. Process. The BCV Indemnitee shall (a) promptly provide notice to Customer of any Claim for which indemnity is claimed (provided, that, any delay in providing notice shall not relieve Customer of its obligations hereunder, except to the extent that Customer is materially prejudiced by such delay), (b) permit Customer to control the defense of any such Claim and (c) provide reasonable assistance at Customer's reasonable cost. Subject to the foregoing, in any Claim for which indemnification is sought, Customer may select legal counsel to represent the BCV Indemnitee (such counsel to be reasonably satisfactory to the BCV Indemnitee) and to otherwise control the defense. If Customer elects to control the defense, the BCV Indemnitee may fully participate in the defense at its own cost. If Customer, within a reasonable time after receipt of notice of Claim, fails to defend the BCV Indemnitee, the BCV Indemnitee may defend and compromise or settle the Claim at Customer's cost. Notwithstanding the foregoing, Customer may not consent to entry of any judgment or enter into any settlement that imposes liability or obligations on the BCV Indemnitee or diminishes the BCV Indemnitee's rights, without obtaining the BCV Indemnitee's express prior consent, such consent not to be unreasonably withheld or delayed, other than cessation of infringing activity, confidential treatment of the settlement, and/or payment of money that is fully indemnified by Customer under this Agreement.
10.3. REMEDIES IN EVENT OF INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. In the event any portion of the Platform/Services is held or believed by BCV’ to infringe Intellectual Property Rights of any third party (such portion to be deemed the “Infringing Materials), BCV’ shall, at its sole expense and at its option (a) obtain from such third party the right for Customer to continue to use the Infringing Materials; (b) modify the Infringing Materials to avoid and eliminate such infringement; (c) upon mutual agreement with Customer, remove and disable the Infringing Materials; or (d) if none of the foregoing remedies is commercially feasible, terminate this Agreement. This Section 11 contains Customer’s sole and exclusive remedy and BCV’s entire liability (except as provided by Section 10.2 for acts occurring prior to the assertion of the Claim), with respect to infringement or alleged infringement of third-party Intellectual Property Rights.11. Branding.
a. BCV shall have the right to refer to Customer as a Customer of BCV Services. Customer can use BCV/BCV’s name, logo, trade name, service marks, trademarks or printed material in any promotional or advertising material, statement, document, press release or broadcast with BCV’s prior written consent.
b. Customer covenants and agrees that it: (i) will not use, register or otherwise assert any ownership interest in any mark that in BCV’s reasonable judgment is confusingly similar to BCV’s trademarks or any portion thereof; (ii) will not use BCV’s trademarks in any manner whatsoever which may, in BCV’s reasonable judgment, jeopardize BCV’s ownership or the significance, distinctiveness, validity or value of BCV’s trademarks; and (iii) will not contest the validity of any of BCV’s trademarks.
c. Customer agrees that any and all rights, interests and goodwill that might be acquired by its use of BCV’s trademarks shall inure to the sole benefit of BCV. Customer acknowledges and agrees that, as between itself and BCV, it neither has nor will assert any ownership rights or other interests in BCV’s trademarks other than the limited rights of use expressly provided herein.
d. Customer agrees to comply with rules set forth from time to time by BCV with respect to the appearance and manner of use of BCV’s trademarks.
e. Customer shall comply with all laws and regulations pertaining to the proper use and designation of marks and shall in advertising and printed materials identify BCV’s trademarks with such notice as may be specified by BCV in writing.f. Unless otherwise set forth in this Agreement or as otherwise expressly agreed by the Parties in writing, upon the effective date of expiration or any termination of this Agreement, all licenses and rights granted pursuant to this Section 11 shall cease and terminate forthwith and immediately revert to BCV, and Customer shall discontinue all use of BCV’s trademarks and shall destroy or return all materials bearing BCV’s trademarks.
12. TERM AND TERMINATION.
12.1. Term. The Agreement shall begin on the Effective Date and shall continue until the earlier of (a) its termination pursuant to the terms of the Agreement, or (b) the expiration or termination of all SOWs and SOs between the Parties (the “Term”).
12.2. Termination for Cause.
a. By Customer. Customer may terminate this Agreement for cause, upon notice to BCV if: (i) a receiver or administrator is appointed for BCV or its property; (ii) BCV makes a general assignment for the benefit of its creditors; (iii) BCV commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief law which are not dismissed within 60 days; (iv) BCV is liquidated or dissolved; (v) BCV ceases to do business or otherwise terminates its business operations or (vi) BCV materially breaches this Agreement and such breach continues unremedied for 30 days after receipt of notice from Customer. For clarity and subject to Section 14.5 (Force Majeure), a Services Outage as defined in the applicable SLA is not grounds to terminate this Agreement for cause; Customer's sole remedy for a Services Outage is set forth in the applicable SLA.
b. By BCV. BCV may terminate this Agreement for cause and/or suspend Services upon notice to Customer if (i) a receiver or administrator is appointed for Customer or its property; (ii) Customer makes a general assignment for the benefit of its creditors; (iii) Customer commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief law which are not dismissed within 60 days; (iv) Customer is liquidated or dissolved; (v) Customer ceases to do business or otherwise terminates its business operations; (vi) Customer fails to pay all invoiced fees or charges within 15 days from the invoice date, in accordance with this Agreement; (vii) Customer breaches this Agreement and such breach continues unremedied for 30 days after receipt of notice from BCV. BCV may terminate, interrupt or suspend Service without prior notice if necessary to (1) prevent or protect against fraud, (2) protect BCV’s customers, personnel, facilities, equipment, network or services, (3) prevent violation of Section 7 (Representations and Warranties) or infringement upon the rights of others or (4) prevent potential material liability.
12.3. Termination by BCV for Change of Control. In the event of Customer undergoes a Change of Control, BCV may terminate the Agreement upon 30 days’ notice to Customer's successor/transferee; provided, that, BCV has determined in its sole discretion that Customer’s successor/transferee is either (a) unable to meet BCV’s standards for creditworthiness, (b) is unable to assume and fulfill Customer’s obligations under the Agreement, (c) otherwise presents an undue financial or credit risk, or (d) is a competitor of BCV.
12.4. Effect of Termination.
a. Upon expiration or termination of the Agreement and/or applicable SO, SOW or Service Supplement for any reason, (i) all Customer rights to access or use Services and any other BCV Intellectual Property Rights shall terminate and BCV shall cease providing same, (ii) Customer shall pay to BCV all fees or charges accrued but unpaid, (iii) all liabilities accrued before the date of expiration or termination shall survive and (iv) as directed by each Disclosing Party, each Receiving Party shall return or destroy, and certify in writing to the Disclosing Party such destruction of, all copies of Disclosing Party’s Confidential Information.
b. If Customer terminates the Agreement, a SO, SOW or Service Supplement early without cause or if BCV terminates the Agreement, a SO, SOW or Service Supplement for cause, Customer shall be invoiced and pay to BCV an early termination charge in such amount as set forth in the applicable SO, SOW or Service Supplement. Such early termination charge is agreed by the Parties to be liquidated damages and is not a penalty.13. PUBLICITY.During the Term, except as otherwise set forth herein, the Parties may not issue press releases or other public communications regarding the Parties’ relationship created by this Agreement or the Services without express prior consent. Customer shall not use BCV’s name, logo, trademarks and/or service marks, trade names, trade dress or other proprietary identifying symbols or otherwise identify or refer to BCV, except as specifically permitted under this Agreement or otherwise with BCV’s express prior consent. Customer grants BCV permission to use Customer’s logo and/or name on the BCV website, in BCV sales presentations, for marketing purposes and promotional materials, and to identify Customer as a customer of the Services in response to requests for information and responses to proposals. All other uses of Customer’s name, logo, trademarks and/or service marks, trade names, trade dress or other proprietary identifying symbols shall be subject to Customer’s consent, which shall not be unreasonably withheld.
14. MISCELLANEOUS.
14.1. Non-Solicitation. During and for two year after the Term, Customer shall not, and shall ensure that its Affiliates do not, directly or indirectly solicit for employment any person employed by BCV to provide Services. Notwithstanding the foregoing, employment that is initiated by indirect solicitation (such as general newspaper advertisements or general online job postings not targeted at BCV's employees) shall not be considered a recruitment or solicitation hereunder.
14.2. No Third-Party Beneficiaries. BCV has been authorized by its Partners as their authorized reseller/service provider of certain Platform Services (Platform Services) and that such Partner(s) shall also act as a beneficiary under the present agreement. There are no third-Party beneficiaries to this Agreement, including any insurance providers or Resale Customers.
14.3. Notices. Any notices to be given hereunder to any other Party, including any notice of a change of address, shall be in writing and shall be deemed validly given if (a) delivered personally, (b) sent by overnight or second day express delivery service, (c) sent by registered or certified mail, postage prepaid, return receipt requested, or (d) sent by confirmed facsimile, as follows:
If to BCV:BCV Tech India Pvt Ltd
Second Floor, Sai Hira, Mundhwa,
Pune, Maharashtra 411036, India
Attention:---------------------If to Customer:
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Attention:----------------------Either Party may change its contact information upon notice to the other Party. For clarity, if a notice is not received because the receiving Party has failed to notify the other Party per the preceding sentence or because receipt is refused, such notice nonetheless shall be deemed to have been conclusively made seven days after delivery was reasonably initiated.
Second Floor, Sai Hira, Mundhwa,
Pune, Maharashtra 411036, India
Attention:---------------------If to Customer:
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Attention:----------------------Either Party may change its contact information upon notice to the other Party. For clarity, if a notice is not received because the receiving Party has failed to notify the other Party per the preceding sentence or because receipt is refused, such notice nonetheless shall be deemed to have been conclusively made seven days after delivery was reasonably initiated.
14.4. Force Majeure. Neither Party shall be liable by reason of any failure or delay in the performance of its obligations herein due to acts of God, civil disorders, acts of terrorism, rebellion, fires, explosions, accidents, floods, vandalism, sabotage, unavailability of equipment, software or parts from vendors, work stoppages or other labor activity, labor conditions, shortages, fire, flood, storm, earthquake or other natural disaster, explosion, embargoes, strikes, labor disputes, riots, insurrection, war or unrest, military action, governmental restrictions or action, terrorism or threat of terrorism, computer viruses or worms, computer sabotage, ‘Denial of Service’ attacks, DNS spoofing attacks or other malicious online attacks (provided, that the Party claiming such cause has taken commercially reasonable steps to prevent such attacks) or other cause beyond such Party’s reasonable control (each, a "Force Majeure Event"). Customer’s obligation to pay for Services or products provided by BCV before a Force Majeure Event may be delayed during, but shall not be excused by, the Force Majeure Event. BCV may limit use of Services due to a Force Majeure Event. A Party whose performance is affected by a Force Majeure Event shall promptly provide notice with relevant details to the other Party and the obligations of the Party giving such notice shall be suspended to the extent caused by such Force Majeure Event for as long as the Force Majeure Event continues; and the time for performance of the affected obligation shall be extended by the delay caused by the Force Majeure Event. If the affected Party is prevented by the Force Majeure Event from performing its obligations with regard to a Service for 30 days, then it may in its sole discretion immediately terminate the affected Service by giving notice of termination to the other Party; provided, that, in the case of termination by Customer, Customer first provides BCV a reasonable opportunity to replace the affected Service with a comparable Service. Upon such termination, BCV is entitled to payment of all accrued but unpaid fees or charges incurred through the date of such termination. The Parties shall otherwise bear their own costs and BCV shall be under no further liability to perform the Services affected by the Force Majeure Event.
14.5. Choice of Law, Forum. This Agreement shall be construed and enforced in accordance with the laws of India, without regard to conflict of laws principles. Each Party agrees that any action, suit or other proceeding arising from or based upon this Agreement (each, a "Dispute") will be brought and maintained only in a court of competent jurisdiction located in Pune, India. Each Party consents to the jurisdiction of such courts and waives any right to object to such jurisdiction. The prevailing Party in any Dispute shall be entitled to recovery of its reasonable attorneys' fees and costs. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
14.6. Relationship of Parties. The Parties are independent contractors and agree that this Agreement does not establish a partnership, association, joint venture or agency relationship or other co-operative entity between the Parties.
14.7. Waiver, Amendments. No failure or delay by either Party to exercise or enforce any right herein shall operate as a waiver of any such right. This Agreement may be amended only by a writing signed by an authorized representative of BCV and an authorized representative of Customer.
14.8. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable or contrary to law, such holding shall not render the Agreement unenforceable or contrary to law as a whole, and, in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such provisions within the limits of applicable law.
14.9. Assignment. Neither Party may assign this Agreement without the other Party’s express prior consent except that BCV may freely assign its rights and obligations under this Agreement, in whole or in part, (a) to a parent or Affiliate or (b) in connection with a Change of Control. This Agreement shall be binding upon and inure to the benefit of all permitted successors and assigns. Any assignment in contravention of this Section 14.10 is null and void.
14.10. Survival. The Parties’ rights and obligations set forth in Sections 3.2(c) (Invoice Disputes), 4 (Intellectual Property), 6 (Confidentiality), 8 (Disclaimer), 9 (Limitation of Liability), 10 (Indemnification) and 14 (Miscellaneous) shall survive termination or expiration of this Agreement.
14.11. Entire Agreement. This Agreement, the AUP(s), the Service Supplements (including any SLAs), the Exhibit(s), and all SOs, SOWs or Addenda between the Parties are incorporated herein by reference, constitute the entire agreement between the Parties with respect to its subject matter and supersede all other prior or contemporaneous representations, understandings or agreements; and there are no other representations, understandings or agreements between the Parties relative to such subject matter. Except as otherwise expressly stated herein, no amendment to this Agreement is valid unless in writing and signed by both Parties.
14.12. Remedies. Unless otherwise provided for in this Agreement, to the extent permitted by applicable law, the Parties’ rights and remedies provided herein are cumulative and in addition to any other rights and remedies at law or equity.
14.13. Construction. Descriptive headings in this Agreement are for convenience only and shall not affect the construction of this Agreement. The terms “include,” “including” or “e.g.,” mean “include, without limitation”. The term “day” means calendar day unless otherwise indicated. Terms with well-known technical or industry meanings are so construed. Each Party and its counsel have fully reviewed and contributed to this Agreement. Any rule of construction that ambiguities are resolved against the drafting Party shall not apply in interpreting this Agreement.
Exhibit A
Service Supplement
Introduction: This Service Supplement (SOW) outlines the scope of services, deliverables, timelines, and terms of engagement for providing integrated Carbon Accounting and ESG (Environmental, Social, and Governance) services to Customer.
Objectives: The primary objective of this engagement is to support Customer in enhancing its sustainability performance by integrating ESG considerations and carbon accounting into its business practices. Specific objectives include:
Develop a comprehensive understanding of the organization's environmental impact, social performance, and governance practices through ESG assessments.
Quantify and manage the organization's carbon footprint through accurate carbon accounting and emission reduction strategies.
Identify opportunities for improving ESG performance, reducing carbon emissions, and enhancing long-term value creation.
Strengthen stakeholder engagement and communication on ESG issues, climate initiatives, and sustainability goals.
Scope of Services: The scope of carbon accounting and ESG services to be provided includes, but is not limited to, the following:
Conduct an initial scoping meeting to define project objectives, timelines, and key stakeholders.
Collaborate with Customer to collect relevant data on ESG metrics, energy consumption, GHG emissions, waste generation, and other environmental, social, and governance factors.
Develop a comprehensive ESG assessment framework, including materiality analysis, stakeholder mapping, and performance benchmarking.
Conduct a carbon accounting assessment to quantify GHG emissions for Scope 1 (direct emissions), Scope 2 (indirect emissions from purchased electricity), and, if applicable, Scope 3 (indirect emissions from sources such as supply chain, business travel, and waste disposal).
Prepare ESG reports and disclosures, including key performance indicators (KPIs), materiality assessments, and stakeholder engagement summaries.
Develop a carbon reduction strategy, including emission reduction targets, action plans, and implementation roadmap aligned with global best practices and stakeholder expectations.
Facilitate stakeholder engagement and communication on ESG performance, climate initiatives, and sustainability goals through presentations, workshops, and outreach activities.
Offer training and capacity building sessions to empower Customer staff with the knowledge and skills needed to implement and sustain ESG and carbon accounting initiatives.
Deliverables: The following deliverables will be provided as part of this engagement:
ESG assessment report, including materiality analysis, performance benchmarks, and stakeholder engagement findings.
Carbon accounting report, including GHG emissions inventory, methodology descriptions, and emission reduction recommendations.
ESG reports and disclosures, prepared in accordance with recognized reporting frameworks and standards (e.g., GRI, SASB, TCFD).
Carbon reduction strategy document, including emission reduction targets, action plans, and implementation roadmap.
Stakeholder engagement materials, such as presentations, communication plans, and outreach materials.
Training materials and resources for capacity building and knowledge transfer.
Roles and Responsibilities:
Customer will provide access to relevant data, information, and personnel necessary for conducting the ESG and carbon accounting services.
The service provider will conduct the necessary analyses, assessments, and reporting tasks in accordance with agreed-upon methodologies and standards.
Both parties will collaborate closely throughout the engagement to ensure timely delivery of deliverables and achievement of project objectives.
Terms and Conditions:
The fees for the ESG and carbon accounting services and the scope of work, estimated effort, and agreed-upon pricing will be outlined in a Service Order (SO).
Any changes to the scope of work or project timeline will be subject to mutual agreement between Customer and the service provider.