This Software License Agreement (hereinafter, this “LICENSE”) is a legal agreement between you (LICENSEE) and Trayak, LLC (TRAYAK) for EcoImpact®, COMPASS®, SCORE®, EcoLabel®, EcoDesigner® and all associated data, documentation and training materials (SOFTWARE).

OVERVIEW

SOFTWARE has been developed and is owned by Trayak. The SOFTWARE is mainly delivered as a cloud-based solution. Some of the modules may be installed on customer computers.  The software can be used to assess and compare the human and environmental impacts of product and packaging designs over their complete life cycle.

Your access to and use of SOFTWARE is conditioned upon your payment of any required license fee to TRAYAK and your adherence to the terms of this agreement with TRAYAK, the owner of SOFTWARE, and all intellectual property rights associated with SOFTWARE.

Environmental profiles using the Life Cycle Analysis (LCA) methodology contained in the SOFTWARE represents a simplification and simulation of actual real-world interactions of different materials, manufacturing processes, transportation and end-of-life processes. The underlying Life Cycle Inventory (LCI) data is based on industry average, normalized, third-party verified data that can sometimes be subject to considerable uncertainty. In most cases, the data doesn’t reflect any one supplier or manufacturing plant. In addition, the data in COMPASS is limited to a certain number of materials for which Life Cycle Inventory data is available. This data does not address performance considerations for a material. For all these reasons, SOFTWARE is intended to and should only be one source of information used to make design decisions. The LCA analysis and interpretation of the results of the analysis should be conducted in accordance to the ISO process 14040

I. REGISTRATION 

TRAYAK will send LICENSEE a registration code and/or account access information after reception of a valid order form and/or invoice payment. This code/account access information enables LICENSEE to install and/or access and use the supplied SOFTWARE. The code enables LICENSEE to use SOFTWARE up to the maximum number of user licenses purchased. Trayak creates named accounts for each user and prohibits the sharing of licenses amongst multiple users. LICENSEE is responsible for installation and/or internet access and registration. TRAYAK sells named user licenses and allows a single license to be installed on only one computer hardware. In the case of cloud-based software TRAYAK allows each named user account to be accessed only by that one user.

II. YOUR RIGHTS TO USE SOFTWARE

The SOFTWARE is protected by copyright, trade secret and other intellectual property laws. This is a license agreement and NOT an agreement for sale. TRAYAK is the rightful owner of the copyright and intellectual property of SOFTWARE and continues to own this copy of the software and all copies thereof. Your rights are specified in this LICENSE and TRAYAK retains all rights not expressly granted to you in this LICENSE. TRAYAK hereby grants to you, and you accept, a non-exclusive, non-transferable license to access and use the SOFTWARE. The use consists exclusively of the right to load and/or run the software. This does not imply any assignment of the copyright or related rights of the SOFTWARE. The SOFTWARE may only be used by LICENSEE and their authorized assignees/users

III. YOUR INFORMATION. 

You can view TRAYAK’s Privacy Statement provided with the Services and on the website for the Services. You agree to the applicable TRAYAK Privacy Statement, and any changes published by TRAYAK. You agree that TRAYAK may use and maintain your data according to the TRAYAK Privacy Statement, as part of the Services. You give TRAYAK permission to combine identifiable and non-identifiable information you enter or upload to the Services with that of other users of the Services and/or other TRAYAK services. For example, this means that TRAYAK may use your and other users’ non-identifiable, aggregated data to improve the Services or to design promotions and provide ways for you to compare business practices with other users. TRAYAK is a global company and may access or store personal information in multiple countries, including countries outside of your own country to the extent permitted by applicable law. 

IV. PROHIBITED USE 

LICENSEE is not entitled to modify the SOFTWARE in any form. The SOFTWARE enclosed may not be copied or typed over to be distributed in any electronic form and may not be published on the Internet. TRAYAK is in no way obliged to make available to Licensee any information regarding the technical working of the program; TRAYAK is in no way obligated to provide the program’s source codes, or to make alterations in the code. LICENSEE may not assign its rights under this agreement, nor sell, rent out or lease, sublicense, alienate or grant limited rights to the SOFTWARE, to which the license applies, nor make them available to third parties in any way or for any purpose whatsoever, without the written consent of TRAYAK. SOFTWARE is copyrighted and trademarked. SOFTWARE may not be copied, rented, leased, modified, reverse engineered, have derivatives made, have data extracted, or be transferred or transmitted to third parties. You may not use the SOFTWARE metrics, underlying raw data, or life-cycle impact assessment results for any purpose other than the operation of SOFTWARE without the express written consent of TRAYAK. 

LICENSEE agrees not to use or to permit any third party to use SOFTWARE in a manner that violates any applicable law, regulation or this agreement.

SOFTWARE and the data generated by SOFTWARE cannot be used in any marketing or advertising claims for any product, service or company. The user agrees to use its best efforts to protect SOFTWARE from any violations of the above restrictions. This license and the user’s right to access and use SOFTWARE automatically terminates without further notice if user fails to comply with any of the restrictions contained in this agreement.

V. SERVICE AGREEMENT 

A service agreement (hereafter service contract) can be part of the SOFTWARE license or subscription agreement. Service and or Subscription contracts will automatically be renewed for a period of one year, unless Licensee sends a written cancellation to TRAYAK at least 4 weeks before expiration date. A service contract renewal always starts the day after the previous expiry date. When a service and/or subscription contract has expired, TRAYAK or its service partners are not obligated to provide support in any way. When a service contract has been cancelled it can no longer be renewed; to obtain a newer version an update has to be purchased. During the service contract period, LICENSEE receives all relevant software updates that are released within this period. LICENSEE has free access to the support services at TRAYAK. The Licensee can ask questions concerning the working of the software. LICENSEE accepts that software specifications can change with each update. If LICENSEE sends in data to TRAYAK in order to solve technical problems, TRAYAK will keep all data and information strictly confidential.

You are responsible for securely managing your password(s) for the Services and to contact Trayak if you become aware of any unauthorized access to your account. The Services may periodically be updated with tools, utilities, improvements, third-party applications, or general updates to improve the Services. You agree to receive these updates.

VI. PAYMENTS 

All Invoices are to be paid within 30 days. If LICENSEE does not pay on time, the Licensee owes 2% interest on the unpaid amount, without any notice of default being necessary. If Licensee still fails to pay the claim after being put in default, the claim may be passed on for collection. In this case Licensee is obliged to pay additional collection and legal expenses, the sum of which shall be established at a minimum of 25% of the total outstanding amount. TRAYAK may appoint a partner to send invoices and collect payments on its behalf. Payments made to such partners will be considered as payments made to TRAYAK.

VII. TERMINATION 

TRAYAK shall have the right to dissolve the contract if LICENSEE, after being given proper written notice of default and setting a reasonable time period in which the breach can be remedied, is in breach of any of its obligations under this contract. TRAYAK shall not be liable for damages because of termination. TRAYAK may terminate the contract by written notice having immediate effect, without any notice of default and without judicial intervention, wholly or in part, if LICENSEE is granted a moratorium on payment, whether or not provisional, if the involuntary winding-up of the Client is requested or if its enterprise is liquidated or terminated in any other manner than through restructuring or a merger of enterprises.’ Upon termination, LICENSEE is obligated to cease any use of the SOFTWARE and data from the date of termination and to return to permanently delete or destroy all copies of the software in its possession within 15 days after the date of termination.

VIII. DISCLAIMERS 

Except as expressly set forth in this agreement, TRAYAK and its third-party suppliers make no warranties of any kind, including any implied warranty of merchantability or of fitness for any particular purpose even if such purpose is known with respect to the SOFTWARE, related documentation or services provided under and pursuant to this agreement. TRAYAK does not warrant that the SOFTWARE will run without interruption or defects, that all defects will be remedied, that the databases do not contain any inaccuracies, or that advice, support or other information given by TRAYAK or its partners does not contain errors.

IX. LIMITATION OF LIABILITIES 

TRAYAK’s entire liability for all claims or damages arising out of or related to this LICENSE, regardless of the form or cause of action, whether in contract, equity, negligence, intended conduct, tort or otherwise, will be limited to and will not exceed, in the aggregate, the amount paid to TRAYAK under the order incorporating this LICENSE for the specific item that caused the damage or that is the subject matter of, or is directly related to, the cause of action. In no event will the measure of damages payable by TRAYAK include, nor will TRAYAK be liable for, any amounts for loss of income, profit or savings or any other indirect, incidental, consequential, exemplary, punitive or special damages of any party, including third parties, even if TRAYAK has been advised of the possibility of such damages in advance, and all such liability is expressly disclaimed. No cause of action which arose out of an event or events which occurred more than two (2) years prior to the filing of a suit alleging a claim or cause of action may be asserted by LICENSEE against TRAYAK.

X. CHANGES

TRAYAK reserve the right to change this Agreement at any time, and the changes will be effective when posted through the Services, on our website for the Services or when we notify you by other means. We may also change or discontinue the Services, in whole or in part. Your continued use of the Services indicates your agreement to the changes.

XI. GOVERNING LAW 

This Agreement will be governed by and construed in accordance with the substantive laws of the State of Ohio, USA without giving effect to any choice-of-law rules that may require the application of the laws of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Additionally, the Uniform Computer Information Transactions Act, as enacted, shall not apply.

LICENSE TERMS FOR UNIVERSITY PROGRAM

 ECOIMPACT® SOFTWARE PLATFORM.

v3.0 – last updated Oct 4 2019

These additional terms supplement the License Agreement for the EcoImpact®, COMPASS®, SCORE®, EcoLabel®, EcoDesigner® and all associated data, documentation and training materials (SOFTWARE).

These license terms are applicable to all licenses provided under the University Program.

Qualified Educational Institutions

“Qualified Educational Institution” means an educational institution which has been accredited by an authorized governmental agency within its applicable local, state, provincial, federal, or national government and has the primary purpose of teaching its enrolled students.

1.1 “Academic Use” means use of the Licensed Product (i) in the delivery of educational classes regarding developing, analyzing, building and testing software code, and (ii) for the purpose of developing, analyzing, building and testing programming code being developed as part of non-profit academic research.

1.2 “Authorized User” means the faculty, staff, and students employed or registered with Education Institute. For clarity, Education Institute shall not appoint a third-party licensor of portions of the Code Base identified in an applicable Purchasing Agreement as an Authorized User.

1.3 “Documentation” means the user documentation, in written, electronic or other format, which describes the Licensed Product and its operation and which Trayak makes generally available to its licensed customers for use with the Licensed Product.

2. Education License Type under the Terms of Use

Trayak provides cloud-based subscription licenses for the EcoImpact Platform. Trayak will provide a maximum number of student licenses to be used by the University. These licenses are administered on a per semester basis. Students will be provided access at the beginning of the semester and their licenses will typically expire at the end of the semester.

It is difficult to anticipate the usage of the software in a university setting. Trayak reserves the right to impose caps or limits on the number of licenses or usage rates if it will cause performance issues to paid Trayak customers.

3. Governing Law for Public Educational Institutions

If you are a Qualified Educational Institution and the Qualified Educational Institution is located in the United States of America or Canada, then the following additional terms and conditions set forth in this Section 5 shall apply:

If you are a Public Educational Institution, this Agreement (including those terms related to indemnification) will be governed by and construed in accordance with the laws of the State or Province of the main campus for such Public Educational Institution. Such laws shall govern without reference to the conflicts-of-laws rules thereof. The UN Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act shall not apply to (and are excluded from the laws governing) this Agreement. In addition, each party agrees that any claim, action or dispute arising under or relating to this Agreement will be brought exclusively in (and the parties will be subject to the exclusive jurisdiction of) the local courts of the county in which the main campus of Public Educational Institution is located, or the administrative tribunal having exclusive jurisdiction over disputes involving Public Educational Institution, as applicable.

“Public Educational Institution” means a Qualified Educational Institution that is majority-owned by or is a legal branch or agency of a state or local government.

4. Software Protection

LICENSEE acknowledges that the Licensed Software is proprietary to Trayak. The software code of the Licensed Software shall be treated as trade secrets and confidential information, and LICENSEE agrees to use their best efforts to hold the same in confidence. LICENSEE’s obligation for confidentiality shall not extend to any information which is, or becomes, generally available to the public, is already known to, or subsequently disclosed by third parties to, LICENSEE and is at its free disposal, or is independently developed by LICENSEE or its affiliates without the use of the confidential information disclosed by Trayak, or is required by law or legal process.

Except as otherwise expressly permitted in this Agreement, LICENSEE may not (i) modify or create any derivative works of the Licensed Software or documentation to the Licensed Software, including customization, translation or localization; (ii) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code for the Product; (iii) redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer rights to the Licensed Software; (iv) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Product; or (v) publish any results of benchmark tests run on the Product to a third party without Trayak’s prior written consent.

Conditions. The rights granted to Education Institute above are conditional upon Education Institute’s compliance with the following obligations:

1. Education Institute will not allow access or use of the Licensed Product by, and will not display the Licensed Product’s user interfaces to, anyone other than the Authorized Users without Trayak’ prior express written consent.
2. Education Institute will not disclose to any third party any comparison of the results of operation of Trayak’ Licensed Products with other products, except as expressly permitted by this Agreement.
3. Competing Products. During the License Term and for a period of 36 months following the expiration of the License Term, Education Institute will not create any products that compete with the Licensed Product.
4. Feedback and Analytics. Education Institute may choose to, but is not required to, provide suggestions, data, feedback and other information to Trayak, its subcontractors or authorized distributors regarding possible improvements in the operation, functionality or use of Trayak’ software products. Education Institute hereby grants to Trayak and its subcontractors and authorized distributors, without charge, the right to use, copy, modify and create derivative works of any such suggestions, data, feedback and information solely for the purpose of (i) improving the operation, functionality or use of its existing and future product offerings and commercializing such offerings; and (ii) publishing aggregated statistics about software quality, provided that no data in any such publication can be used to specifically identify Education Institute or Education Institute’s software code.
5. NO WARRANTY.

Trayak does not warrant that the Licensed Product will meet Education Institute’s requirements, that the Licensed Product will operate in combinations with equipment, devices, software or systems provided by persons other than Trayak, that the operation of the Licensed Product will be error-free or uninterrupted, or that the Licensed Product will discover all errors and vulnerabilities that may reside in the Code Base. The Licensed Product is being provided “AS IS.” TRAYAK DISCLAIMS ALL WARRANTIES, CONDITIONS AND REPRESENTATIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING THOSE RELATED TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, ACCURACY OR COMPLETENESS OF RESULTS, CONFORMANCE WITH DESCRIPTION, AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. TRAYAK AND ITS SUPPLIERS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, CONDITIONS AND REPRESENTATIONS ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE.

7. Termination for Breach. Either party will have the right to terminate this Agreement or any Purchasing Agreement if the other party breaches any material term of the Agreement or Purchasing Agreement, as the case may be, and if such breach is capable of cure, the breaching party fails to cure such breach within thirty (30) days after receiving written notice thereof. Either party will have the right to terminate this Agreement if the other becomes insolvent or makes an assignment for the benefit of creditors, or a trustee or receiver is appointed for such other party or for a substantial part of its assets, or bankruptcy, reorganization or insolvency proceedings shall be instituted by or against such other party. Termination of this Agreement under this section terminates all Purchasing Agreements and Licensed Product licenses granted hereunder.
8. Effect of Termination or Expiration. Upon termination or expiration of this Agreement or a Purchasing Agreement, all Licensed Product licenses and rights to use Confidential Information that are granted thereunder shall terminate. Upon termination of this Agreement or expiration of the license term in any Purchasing Agreement, Education Institute will: (a) promptly return to Trayak or destroy the applicable Licensed Product and Confidential Information and all copies and portions thereof, in all forms and types of media, including any results of operation from use of the Licensed Product; and (b) promptly pay all fees owing up to the date of termination.
9. GENERAL.

9.1 Promotion. Education Institute agrees that Trayak may use Education Institute’s name and logo (in a form approved by Education Institute) to identify Education Institute as a participant of Trayak’ Academic Program on Trayak’ website or in marketing or publicity materials or in any filings made in connection with state or federal securities laws. Additionally, upon execution of this Agreement, the parties will use commercially reasonable efforts to issue mutually agreed upon joint press releases or other public communications announcing Education Institute’s entry into this Agreement.

9.2. Export Control. Education Institute agrees to comply fully with all relevant export laws and regulations, including those of the United States and the Member States of the European Union. These laws include restrictions on destinations, end-users and end use. Education Institute will ensure that neither the Licensed Product, nor any direct product thereof are: (a) exported or re-exported directly or indirectly in violation of applicable export laws; or (b) used for any purposes prohibited by applicable export laws, including but not limited to nuclear, chemical, or biological weapons proliferation. Education Institute will, at Trayak’ request, demonstrate compliance with all such applicable export laws, restrictions, and regulations.

9.3. Assignment. Education Institute may not assign this Agreement, in whole or in part, by operation of law or otherwise. Any attempt to assign this Agreement without such consent will be void and of no effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.