BW ESG Corp. Subscription Terms of Service

Last Update: May 2022

This Subscription Agreement (“Agreement”) governs a subscriber’s (“Subscriber”) access and use of one or more of BW ESG Corp.’s (“BuildESG”) software applications (“Applications”) available through its website at www.Build-RI.com (the “Site”).

1. 1. Services

   1. 1.1. Services Identified in Order Form

      BuildESG will make available, and Subscriber may access and use, BuildESG services (the “Services”) identified in one or more BuildESG order forms (each, an “Order”) executed by BuildESG and Subscriber. Each Order is incorporated into this Agreement by reference. If the terms of an Order conflict with the terms of this Agreement, the terms in the Order will control.

   2. 1.2. Site & Applications

      The Services will be made available by BuildESG at its website located at the Site. Additionally, an Authorized User may be given access to one or more BuildESG Applications for the purpose of accessing the content of the Site (the “Content”) through that Application. For the purposes of this Agreement, “Content” also includes any written reports sold, consulting services or otherwise delivered to Subscriber as well as any information Subscriber receives from BuildESG analysts, regardless of how that information is communicated to Subscriber. Except for providing access to the Site and the Content, BuildESG provides no other services pursuant to this Agreement.

   3. 1.3. Updates

      BuildESG may modify the Services, Site, Applications, or Content at any time, provided that no such modifications materially degrade the Services.

   4. 1.4. Effective Date

      This Agreement is effective as of the date identified in the Order (“Effective Date”). If the Order does not contain an effective date, the Effective Date is the date Subscriber signed the Order.

2. 2. Users

   1. 2.1 Requirements for Use

      An “Authorized User” is an employee of Subscriber who is a natural person, who works within the organization listed on the Order, and who is designated by Subscriber as a user under this Agreement. All Authorized Users must: (A) complete the Site registration process using a unique Site username and password; (B) only access the Services using SSO or an email address at the Subscriber’s Internet domain; (C) agree to site Terms of Use (the “Terms of Use”); and (D) only use the Site, Applications, Content, and Services on behalf of Subscriber. If a term in the Terms of Use conflicts with a term of this Agreement, the term contained in this Agreement will control.

   2. 2.2 Quantity of Authorized Users

      The Order identifies the number of Authorized Users who may be granted access under this Agreement. Upon payment of the fees specified in the Order, Subscriber may, during the term specified in an Order, increase the quantity of Authorized Users.

   3. 2.3 Subscriber Is Responsible for Authorized Users

      Subscriber is responsible for all use of the Site by anyone accessing the Site or Services using a username or password issued to its Authorized Users. Subscriber must promptly notify BuildESG in writing if Subscriber becomes aware of any unauthorized access or use of the Services.

   4. 2.4 Usage Limitation

      BuildESG may limit usage on an individual user basis. Subscriber acknowledges that while BuildESG’s primary intent with such usage restrictions is to maintain the technical security of its site and to limit scraping, extraordinary but legitimate usage may also be prevented by such usage restrictions. If Subscriber’s extraordinary but legitimate usage is limited by such restrictions, BuildESG will attempt to find a mutually acceptable solution for the usage restrictions.

3. 3. Allowed Usage

   1. 3.1. Use for Internal Business Operations

      The Services and Content may only be used for the purposes of Subscriber’s internal business operations. An Authorized User may view, download, and manipulate the Content for Subscriber’s internal business operations.

   2. 3.2. Use of Content in Presentations and Reports

      Authorized Users may incorporate data from the Content into presentations and reports (Subscriber’s “Work Product”) so long as (A) the quantity of data incorporated from the Content into the Work Product has no independent commercial value and is not separately marketable by BuildESG. If BuildESG assists Subscriber in the creation of Work Product, Subscriber may be charged additional fees as agreed to in writing by BuildESG and Subscriber in a separate Order.

4. 4. Prohibited Usage

   1. 4.1. No Uses Competitive with BuildESG

      Subscriber agrees not to use the Content in furtherance of a Competitive Product. A “Competitive Product” is a product or service that provides customers with content that is substantially similar to data marketed and licensed by BuildESG at of the Effective Date. The Content may not be used for any competitive analysis of how BuildESG’s products and services compare to a Competitive Product being offered or developed by Subscriber.

   2. 4.2. Limitation on Distribution

      Except as explicitly allowed under Section 3 or the terms of an Order, Subscriber may not transfer, sell, rent, distribute, display, or otherwise disclose any portion of the Services, Site, Content, or Applications to anyone.

   3. 4.3. No Technological Attacks or Scraping

      Subscriber may not use or attempt to use any deep-link, scraper, robot, bot, spider, data mining, computer code or any other device, program, tool, algorithm, process or methodology to systematically access, acquire, copy, or monitor any portion of the Content or Site. Additionally, Subscriber may not modify, decompile, decrypt, disassemble or reverse engineer any portion of the Services, Site, or Applications. Further, Subscriber will not use the Content in conjunction with any machine learning, neural network, deep learning, predictive analytics or other artificial intelligence computer or software program. If Subscriber collects data from the Site in violation of this Section 4.3, Subscriber agrees to promptly, upon receipt of invoice, delete such data and pay 150% of the then-current direct data pricing for such data.

   4. 4.4. Unauthorized Access

      Subscriber may not—through hacking, password mining, or any other means—violate the security of the Site or any Application or attempt to gain unauthorized access to the site, Content, or BuildESG’s computer systems. Authorized Users may not share their password or other login credentials to the Services.

   5. 4.5. No Violations of Third-Party Intellectual Property

      Subscriber may not use the Site, Services, or any Content in a manner that infringes or violates the intellectual property or proprietary rights of BuildESG or any third party, including, without limitation, the rights of privacy and publicity.

   6. 4.6. No Use in Third-Party Databases

      Subscriber may not input any Content into a customer relationship management application or any other third-party database.

   7. 4.7. No Use in Violation of Laws

      Subscriber may not use the Site or Content in any manner that is unlawful or that harms BuildESG. Additionally, Subscriber may not use the Site or Content in any way that is fraudulent, false, or deceptive.

   8. 4.8. No Offering of Securities

      Subscriber may not use the Services, Site, or Applications in such a way as to be deemed to be engaging in the offering or solicitation of investments in securities or to be using the Services, Site, or Applications for any other improper investment purposes.

   9. 4.9. BuildESG Intellectual Property Marks

      Subscriber must not remove or obscure the copyright, trademark, service mark, or other notices contained in the Site, Services, Applications, or Content, regardless of whether such notices relate to rights possessed by BuildESG. Subscriber may not use the trademarks, service marks, logos, or other proprietary identifiers of BuildESG, affiliates of BuildESG, or BuildESG suppliers without prior written consent.

   10. 4.10. Professional Conduct

       Subscriber must treat BuildESG employees with a reasonable level of cordiality and professionalism.

5. 5. Payment Terms

   1. 5.1. Fees

      Subscriber will pay all fees listed in the relevant Order (“Fees”). The Fees only apply with respect to the term provided in the Order. BuildESG may change the Fees for any Renewal Term (as defined below) upon notice to Subscriber no later than 45 days prior to the then-current anniversary of the Effective Date. Unless provided otherwise, all amounts paid under this Agreement are non-refundable.

   2. 5.2. Timing of Payment

      Subscriber will pay all Fees contained on an Order within 15 days following the Effective Date. If the Agreement is automatically renewed, Subscriber will pay all Fees for renewal terms on each anniversary of the Effective Date during the Term. If such payment is not timely made, BuildESG may suspend Subscriber’s access to the Site, Applications and Services. Unpaid Fee balances will accrue interest at the rate of 1.5% per month.

   3. 5.3. Taxes

      Subscriber is solely responsible for all applicable sales, use, and other taxes or similar charges or duties incurred in connection with this Agreement (collectively, “Taxes”). Subscriber will promptly reimburse BuildESG if BuildESG is required to pay any Taxes for which Subscriber is legally responsible. Despite the previous two sentences, BuildESG remains solely liable for any taxes assessed on its net income.

6. 6. Reservation of Rights

   Except as detailed below in this Section 6, all rights—including all copyrights and other intellectual property rights—in the Services, Site, Content, and Applications, belong to BuildESG or BuildESG’s suppliers. Unless expressly provided otherwise, nothing in this Agreement is to be construed to grant Subscriber any license or right to the Site, Services, Applications, or Content.

   1. 6.1. Derivations of Content

      BuildESG does not claim an ownership interest in derivations of Content that an Authorized User creates through authorized use of the Services if such derived work is sufficiently transformed so that any Content on which it is based or that forms one or more inputs into it cannot be readily understood, reverse engineered, disassembled or decompiled by someone reasonably knowledgeable of financial services or reasonably skilled in financial services software applications.

   2. 6.2 Subscriber Data

      BuildESG does not claim an ownership interest in any data or content not originally sourced from BuildESG, its affiliates, or any of their suppliers, that is separately uploaded by Subscriber or its Authorized Users onto the Site (“Subscriber Data”).

7. 7. Term

   1. 7.1. Term of this Agreement

      This Agreement will commence on the Effective Date and will terminate if no Order is in effect. If a new Order is agreed to after the termination of this Agreement, this Agreement will be reinstated unless otherwise agreed.

   2. 7.2. Term of Each Order

      Unless it is terminated, each Order will remain in effect until the expiration of the subscription term provided in that order.

   3. 7.3. Renewal Terms

      At the conclusion of the term provided in an Order, the most recently executed Order will be renewed for successive renewal terms of one year unless either party provides the other with written notice of non-renewal at least 30 days prior to the expiration of the then-current term. The term provided in the initial Order and any renewal terms are collectively referred to in this Agreement as the “Term”.

8. 8. Termination

   1. 8.1. Termination for Breach

      Either party may terminate this Agreement and any Orders if the other party materially breaches this Agreement and fails to cure such breach within 30 days following written notice of the breach from the non-breaching party. Additionally, BuildESG may immediately, upon sending written notice, suspend access or terminate this Agreement and any Orders if Subscriber breaches this Agreement.

   2. 8.2. Termination for Insolvency

      Either party may terminate the Order if the other party is or reasonably appears to be insolvent.

   3. 8.3. Effect of Termination

      Upon termination of this Agreement:

      1. A. Subscriber must promptly discontinue use of the Services, Site, and Applications;

      2. B. Despite Section 8.3(A), Subscriber may retain, solely for records retention or regulatory purposes, any limited extracts of Content that had, prior to termination, been incorporated into Work Product created by Subscriber during the Term in accordance with this Agreement; and

      3. C. Despite Section 8.3(A), Subscriber may retain electronic records related to the Content as needed for archival purposes so long as no continued use is made of the Content; and

      4. D. Sections 2, 3, 4, 5, 6, 9, 10, 11, 12, 13, 14, 15 and 24 will survive the termination of this Agreement.

9. 9. Confidential Information

   1. 9.1. Confidential Information Defined

      “Confidential Information” means commercially sensitive or valuable information that is disclosed by BuildESG to Subscriber or disclosed by Subscriber to BuildESG in the course of entering into or performing this Agreement.

   2. 9.2. Exclusions from Confidential Information

      Information is excluded from the definition of “Confidential Information” if it is: (A) already in the public domain; (B) lawfully obtained from a third party; (C) lawfully known to the receiving party prior to the disclosure by the other party; or (D) independently developed by the receiving party without reference to the other party’s disclosed information.

   3. 9.3. Use of Confidential Information

      BuildESG and Subscriber will not use or disclose the Confidential Information disclosed by the other party except (A) as expressly permitted by this Agreement, (B) as reasonably needed by BuildESG to perform its obligations under this Agreement or improve its services, (C) either party may disclose Confidential Information as reasonably needed to enforce its rights under this Agreement, and (D) either party may disclose Confidential Information if required to do so by a subpoena or court order. If a party is obligated to disclose Confidential Information by a subpoena or court order, such party will promptly notify the other party of such pending disclosure in sufficient detail so that the disclosure may be objected to or that remedial actions may be taken.

   4. 9.4. Care of Confidential Information

      BuildESG and Subscriber will each protect Confidential Information disclosed by the other party from unauthorized disclosure with the same degree of care as it uses with respect to its own Confidential Information, but in no event less than a reasonable degree of care.

10. 10. Assignment

    Neither party may assign its rights or obligations under this Agreement without the other party’s written consent. Neither party may unreasonably withhold consent. Despite the previous two sentences, BuildESG may assign its rights to collect payment owed under this agreement.

11. 11. Representations and Warranties

    1. 11.1. Subscriber’s Representations and Warranties

       Subscriber represents and warrants to BuildESG that Subscriber has the necessary authority to enter into and perform its obligations under this Agreement and that this Agreement has been duly authorized and executed by Subscriber.

    2. 11.2. General Disclaimer of Warranties

       The Site, Services, Applications, and Content are provided to Subscriber on an “As-Is” and “As Available” basis. Except as expressly stated in this Agreement, there are no representations or warranties about the nature or quality of the Site, Services, Applications, or Content. BuildESG has not and cannot make any guarantee that the Content is an accurate reflection of real-world facts.

    3. 11.3. Subscriber’s Assumption of Risk

       Any decisions Subscriber makes on the basis of the Site, Services, Applications, or any Content are made solely at its own risk. BuildESG has no responsibility or liability arising from such decisions.

    4. 11.4. Disclaimer of Specific Warranties

       BuildESG makes no warranty, express or implied, as to the accuracy of the Content, the results that may be obtained as a result of using the Site, Services, Application, or Content, and BuildESG expressly disclaims any condition of quality and implied warranties of title, non-infringement, accuracy, merchantability, or fitness for a particular purpose. BuildESG also disclaims any warranties arising through course of dealing or usage of trade. Subscriber represents that it has not relied upon any warranty or representation made by BuildESG except as specifically stated in this Agreement. No part of this Section 11.4 is intended to limit the general nature of Section 11.2.

12. 12. Indemnification

    1. 12.1. Subscriber’s Promise to Indemnify

       Subscriber will defend and indemnify BuildESG from any third-party claims, costs, reasonable attorneys’ fees, damages, or other liabilities that arise out of Subscriber’s unauthorized use or disclosure of the Site, Services, Applications, or Content. For the purposes of this Section 12.1, “BuildESG” includes any directors, officers, employees, or agents of BuildESG.

    2. 12.2. Procedures

       BuildESG will (A) promptly notify Subscriber of any claim that would trigger the indemnification obligation in Section 12.1, (B) assist Subscriber, at Subscriber’s expense, in the defense and settlement of the claim, and (C) refrain from settling the claim without Subscriber’s prior written consent so long as Subscriber doesn’t unreasonably withhold or delay such consent. BuildESG can select its legal representation for defense of the claim.

13. 13. Limitation of Liability

    1. 13.1. No Liability for Fault with Content

       Except as expressly agreed otherwise in this Agreement, (A) the Content is provided “as-is” and “as available,” and (B) BuildESG will not be liable for any damages incurred by Subscriber that result from Subscriber’s use of the Content.

    2. 13.2. Categorical Limitation on Damages

       Except for (A) Subscriber’s indemnification obligations under this Agreement, (B) Subscriber’s obligations to pay Fees under this Agreement, (C) Subscriber’s liability if it breaches promises, and (D) Subscriber’s willful misconduct or gross negligence, under no circumstances will either party be liable for any indirect, incidental, special punitive, exemplary, or consequential damages with respect to this Agreement. This categorical limitation on damages applies even if such damages could have been foreseen or prevented.

    3. 13.3. Limitation on Liability

       Except for (A) Subscriber’s indemnification obligations under this Agreement, (B) Subscriber’s obligations to pay Fees under this Agreement, (C) Subscriber’s liability if it breaches the promises contained in Section 13, and (D) Subscriber’s willful misconduct or gross negligence, under no circumstances will either party be liable to the other party in excess of the amount of Fees actually paid by Subscriber to BuildESG under this Agreement within the 12 months preceding the liability-causing events.

14. 14. Additional Matters

    1. 14.1. Informational Purposes Only

       The Site, Services, Application, and Content are for informational purposes only.  BuildESG relies on the information you and the Company provides to us and has assumes that the information uploaded or provided to us are accurate and complete. BuildESG has not made any independent investigation to confirm the accuracy or completeness of any information, whether written or oral, made available to us by you or the Company. BuildESG does not assume responsibility for errors that may result from incomplete or incorrect information provided by the Company or you.

    2. 14.2. Recommendations and Opinions

       The Recommendations and Opinions set forth in the Site may involve assumptions that, while made in good faith, prove to be incorrect, and they may not consider all considerations of a particular issue.

15. 15. Entire Agreement

    This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement, and this Agreement supersedes any prior agreement between the parties with respect to the subject matter of this Agreement.

16. 16. Waiver

    For a party to waive its rights under this Agreement, such waiver must be in writing. Any waiver will be construed as narrowly as reasonably possible.

17. 17. Choice of Law

    This Agreement will be construed and enforced in accordance with the laws of the State of New York, without reference to its choice of law principles.

18. 18. Jurisdiction & Venue

    The parties will resolve any disputes related to this Agreement in the state or federal courts located in New York, New York. Each party consents to the jurisdiction of these courts and irrevocably waives any objection to resolving a dispute related to this Agreement in these courts.

19. 19. Waiver of Class Action

    Except as otherwise specifically prohibited by applicable law, all disputes arising from or related to this Agreement will be adjudicated on an individual basis and not in a class or representative action or as a member of a class, mass, consolidated or representative action, irrespective of the forum in which such disputes are heard. Subscriber will not join any of its claims related to this Agreement with the claim or claims of any other person or entity.

20. 20. Excuses for Failure to Perform

    Neither party will be liable for any failure or delay in the performance of its obligations under this Agreement if such failure or delay is directly caused by unforeseen events beyond the party’s control.

21. 21. Links to Third-Party Sites

    The Site may contain links to other web sites (“Linked Sites”). The Linked Sites are not under the control of BuildESG and BuildESG is not responsible for the contents or operation of any Linked Site. BuildESG provides these links only as a convenience, and the inclusion of any link does not imply endorsement by BuildESG of the Linked Sites or any association with its operators.

22. 22. Notice

    Notices required under this Agreement may be sent to the addresses included on the most recent Order. All notices will be deemed received two days after the day on which they are physically sent, the day on which they are emailed, or the day on which the courier service estimates delivery, whichever is later. A party may update its contact information for notifications by sending a notice of the updated contact information to the other party in accordance with this Section 22.

23. 23. Relationship of the Parties

    Nothing in this Agreement will be construed to create a partnership or joint venture between the parties.

24. 24. Amendment

    This Agreement may be amended only in a writing signed by an authorized representative of both parties.