Terms of Use
Terms and Conditions of Service
These Terms and Conditions of Service (this “Agreement”) is made by and between Earthrise Building Services Inc. (“Earthrise”) and the Customer (as defined below). Earthrise offers its Services (as defined below) as individual offerings and through a subscription-based dashboard available through the Website (the “Earthrise Platform”). Earthrise’s provision of the Services as well as the Customer’s access to and use of the Earthrise Platform are subject to the terms and conditions of this Agreement and any additional terms and conditions posted on the Earthrise Platform, including Earthrise’s Privacy Policy.
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This Agreement is effective as of the date that the Customer signs an Order Form that makes reference to this Agreement (the “Effective Date”). The Customer may accept this Agreement by (a) clicking a box where indicated on Earthrise’s website:
www.earthrisebuildingservices.com (the “Website”) at the time of registration indicating the Customer’s acceptance of this Agreement; or (b) executing this Agreement or other document that references this Agreement. Individuals may accept this Agreement in their personal capacity or on behalf of a corporation or other legal entity. If the individual accepting this Agreement is accepting on behalf of a company or other legal entity, such individual represents that they have the authority to bind such entity to this Agreement, in which case the term “Customer” will refer to such entity. If the individual accepting this Agreement does not have such authority or does not agree with the terms and conditions set forth in this Agreement, such individual must not accept this Agreement and may not access or use the Services.
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1. Interpretation
1.1 Definitions
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As used in this Agreement, the following terms and phrases will have the following meanings:
(a) “Authorized User” means an employee, consultant, or contractor of the Customer who is provided with access to and or use of the Earthrise Platform by the Customer in connection with this Agreement and any Order Form.
(b) “Customer” means in the case of an individual accepting this Agreement on their own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, Earthrise or other legal entity for which such individual is accepting this Agreement.
(c) “Customer Data” means information, data, and other content, in any form or medium, that is submitted, posted, provided, or otherwise transmitted by or on behalf of the Customer or an Authorized User to, on or through the Services. For clarity, Customer Data includes personal information of the Customer and Authorized Users.
(d) “Deliverables” means the scans, reports, assessments, designs, models, or other deliverables that Earthrise agrees to provide to the Customer under an Order Form.
(e) “Earthrise Property” means the Earthrise Platform and Earthrise Systems.
(f) “Earthrise Systems” means the information technology infrastructure used by or on behalf of Earthrise in hosting, performing, or providing the Services, including all computers, software, code, hardware, databases, electronic systems (including, database management systems), and networks, whether operated directly by Earthrise or through the use of third-party services.
(g) “Order Form” means a written or electronic ordering document or order form that (a) makes reference to this Agreement; and (b) identifies the Services that are purchased by the Customer, including, without limitation, any related Deliverables.
(h) “Purchased Services” means Services that a Customer purchases under an Order Form.
(i) “Third Party Materials” means works, software, hardware, products, equipment, systems, programs, information technology, materials, data, and information, in any form or medium, used to perform or provide the Services that are not proprietary to Earthrise.
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2. PROVISION OF THE SERVICES
2.1 Available Services
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Earthrise offers building scanning, modelling, design, and energy assessment and testing services for commercial and residential properties (the “Services”), namely:
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(a) 3-dimensional scanning of the interior of a building and the construction of a web-based 3-dimensional walk through model of the space (the “Scanning Services”);
(b) development of 2-dimensional and/or 3-dimensional computer-aided design models and building information models based on the as-built dimensions, condition, mechanical systems, electrical systems, and thermal envelop of a building (“Modelling Services”);
(c) design of (i) heating systems and heating system retrofits for buildings; and/or (ii) residential ventilation systems and associated reports (“Design Services”); and
(d) assessment of (i) energy performance of a building based off of its construction plans or as-built condition; (ii) calculation of heat loss on a room-by-room basis for residential homes; and/ or (iii) testing the air tightness of a building (“Assessment Services”).
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2.2 Provision of Purchased Services; Access to Earthrise Platform
Earthrise will provide the Purchased Services in a professional manner and in accordance with the terms and conditions of this Agreement and the specifications set forth in the Order Form. If the Purchased Services require that the Customer access and use the Earthrise Platform, Earthrise will provide the Customer with access to and use of the Earthrise Platform in connection with Earthrise’s performance and delivery of the Purchased Services during the term set forth in the Order Form. The Customer agrees that its purchase of any Purchased Services is not contingent on the delivery of any future functionality or features of the Purchased Services or the Earthrise Platform, or dependent upon any oral or written public comments made by Earthrise, its affiliates, or their respective representatives regarding the future functionality or features of the Purchased Services or Earthrise Platform, except as specifically set out in this Agreement or the Order Form.
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2.3 Access Rights and Customer Responsibilities on Earthrise Platform
To the extent that the Customer requires access to the Earthrise Platform in connection with the Purchased Services, the Customer will be required to created unique access credentials to access and use the Earthrise Platform (the “Credentials”). The Customer will be solely responsible for ensuring that (a) the Customer and any Authorized Users comply with the terms and conditions of this Agreement and applicable Order Form with respect to the Customer’s access to and use of the Earthrise Platform; (b) the Customer and any Authorized Users do not disclose the Credentials to any third party; (c) the Customer and any Authorized Users do not permit any third party to use their respective Credentials to access or use the Earthrise Platform; (d) the Customer and any Authorized Users provide accurate, complete, and lawful Customer Data; (e) the Customer and any Authorized Users use commercially reasonable efforts to prevent unauthorized access to or use of Earthrise Property.
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Earthrise reserves the right to deny or revoke access to or use of the Earthrise Platform, in whole or in part, if Earthrise believes the Customer or any Authorized User is in breach of this Agreement or that the Customer or any Authorized User is using or accessing the Earthrise Platform in a manner that is inconsistent with the terms and conditions of this Agreement, an Order Form, or any other terms and conditions that apply to Earthrise Platform, the Deliverables, or the Purchased Services.
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2.4 Deliverables
As part of the Purchased Services, Earthrise will prepare and deliver to the Customer the Deliverables that are specified in the Order Form(s) in accordance with the timelines and specifications set forth in the applicable Order Form.
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2.5 Subcontractors
The Customer acknowledges and agrees that Earthrise may delegate or subcontract its obligations under this Agreement (or the applicable Order Form) to third parties (each, a “Subcontractor”), as determined in Earthrise’s sole discretion. The delegation or subcontracting of all or part of any of Earthrise’s obligations under this Agreement (or the applicable Order Form) will not relieve Earthrise from any obligation under this Agreement, unless otherwise specified in the applicable Order Form.
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The Customer further acknowledges and agrees that certain of the Purchased Services may be provided by Subcontractors and the Customer may be required to enter into a separate agreement with certain Subcontractors or sign further documents as a condition of receiving all or part of the Purchased Services. Such requirement will be specified in the applicable Order Form.
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2.6 Third Party Materials and Terms
The Customer acknowledges and agrees that certain of the Services are provided using Third Party Materials that are subject to additional third party terms and conditions (the “Third Party Terms”) that the Customer will be required to accept as a condition to accessing or using certain of the Deliverables that may be provided in connection with the Services. Additional terms and conditions will be referenced in the applicable Order Form. The Customer is solely responsible for ensuring that the Customer’s access to and use of the Third Party Materials and any Deliverables that are subject to the Third Party Terms comply with such Third Party Terms. Earthrise will not be responsible or liable for the Customer’s breach of any Third Party Terms and makes no representation, warranty, or covenant with respect to any Third Party Materials or any Deliverables that are subject to Third Party Terms.
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2.7 Customer Obligations
The Customer shall promptly respond to any reasonable requests from Earthrise for instructions, information, or approvals as are required by Earthrise to perform the Purchased Services. The Customer shall cooperate with Earthrise in its performance of the Purchased Services and provide access to the Customer’s premises, fixtures, materials, equipment, machinery, personnel, records, and information at the request and direction of Earthrise as is reasonably required to enable Earthrise to perform the Purchased Services.
The Customer shall ensure that the premises at which Earthrise is to provide the Purchased Services is accessible, safe, and sanitary. In the event that Earthrise or its personnel (a) are unable to access the Customer’s premises; or (b) determine that the premises are unsafe, unsanitary, or pose an unreasonable threat to the health and safety of Earthrise’s personnel, Earthrise shall not be responsible for performing the Purchased Services until such time as the issue is remedied by the Customer to the reasonable satisfaction of Earthrise.
The Customer acknowledges and agrees that Earthrise will not be responsible for any delay in performing the Purchased Services that is caused by circumstances that are beyond the reasonable control of Earthrise, including, without limitation, any issue or delay caused by the Customer’s (or the Customer’s employees’, contractors’, agents’, or representatives’) failure to (a) ensure the safety or accessibility of the Customer’s premises; (b) provide timely responses to Earthrise’s request(s) for instructions or questions; or (c) provide any permissions, consents, clearances, approvals, materials, works, documents, information, or access to the Customer’s premises, fixtures, materials, equipment, machinery, personnel, records which Earthrise requires to perform or complete the Purchased Services. The Customer further acknowledges and agrees that any such failure may result in additional reasonable fees and expenses for the Purchased Services.
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3. USAGE AND Restrictions
3.1 Code of Conduct and Restrictions
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The Customer agrees, on its own behalf and on behalf of all Authorized Users, that the Customer and each Authorized User will not:
(a) provide, disclose, divulge, make available to, or permit use of Earthrise Property by, any third party;
(b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Earthrise Property to any third party;
(c) copy, modify, or create derivative works or improvements of or based on the Earthrise Property, Third Party Materials, or the Deliverables, without the prior written consent of Earthrise;
(d) interfere, or attempt to interfere, with Earthrise Property in any way, including to reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of Earthrise Property, in whole or in part;
(e) engage in spamming, mailbombing, spoofing or any other fraudulent, illegal, or unauthorized use of Earthrise Property;
(f) remove, obscure, or alter any copyright notice, trademarks or other proprietary rights notices affixed to or contained within Earthrise Property;
(g) engage in or allow any action involving Earthrise Property that is inconsistent with the terms and conditions of this Agreement;
(h) bypass or breach any security device, or protection used by or in connection with Earthrise Property, including in connection with the access or use of the Earthrise Platform or other Earthrise Property;
(i) input, upload, transmit, or otherwise provide to or through Earthrise Property any information or materials that are unlawful or injurious, or contain, transmit, or activate any harmful or malicious code;
(j) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner Earthrise Property, including Earthrise’s provision of the Earthrise Platform or the Purchased Services to any third party, in whole or in part;
(k) remove, delete, alter, or obscure any warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Earthrise Property;
(l) access or use Earthrise Property in any manner or for any purpose that (i) infringes, misappropriates, or otherwise violates the intellectual property or other rights of Earthrise or any third party, or (ii) violates any applicable law;
(m) access or use Earthrise Property for purposes of competitive analysis of Earthrise Property, the development, provision or use of a competing software service or product, or any other purpose that is to Earthrise’s detriment or commercial disadvantage; or
(n) otherwise access or use Earthrise Property beyond the scope of the authorizations granted under this Agreement.
Engaging in prohibited conduct constitutes a breach of this Agreement and may subject the Customer or Authorized Users to civil liability or criminal prosecution under applicable laws. Earthrise reserves the right to investigate and/or terminate the Customer’s account, without a refund of any purchases or settlement of any outstanding accounts, if the Customer has violated this Agreement, misused the Earthrise Platform, the Deliverables, other Earthrise Property or any Third Party Materials, or acted in a manner that Earthrise considers as inappropriate or unlawful.
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3.2 Corrective Action and Notice
If the Customer becomes aware of any actual or threatened activity prohibited by this Agreement, the Customer shall, and shall cause any relevant Authorized User to, immediately: (a) take all commercially reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to Earthrise Property and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) promptly notify Earthrise of any such actual or threatened activity.
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4. Fees, payments, and Discounts
4.1 Fee
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In consideration of the provision of the Purchased Services by Earthrise, the Customer will pay to Earthrise all fees specified in the Order Form (the “Fees”) in accordance with the terms and conditions of this Agreement and the applicable Order Form. The Customer shall pay the Fees on the dates and in accordance with the payment schedule set forth in the Order Form. The Fees are non-refundable and non-returnable, and the Customer’s payment obligations under any Order Form are non-cancellable, unless otherwise agreed by the parties in the Order Form.
The Customer will be responsible for all expenses incurred by Earthrise in connection with Earthrise’s performance of the Purchased Services, including, without limitation, the cost of travel to the Customer’s premises, as are specified in the appliable Order Form, or are otherwise agreed to by the parties in writing from time to time.
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4.2 Taxes
The Customer shall be solely responsible for paying all HST, goods and services tax, provincial sales tax, service, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, provincial, or territorial governmental or regulatory authority on any amounts payable by the Customer for the Purchased Services, other than any taxes imposed on Earthrise’s income.
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4.3 Payment Method
All monies due and payable under this Agreement and any applicable Order Form will be paid in accordance with the applicable Order Form.
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The Customer acknowledges and agrees that Earthrise is not responsible and shall not be liable for (a) the Customer’s failure to make a payment (in whole or in part) or otherwise complete a purchase in connection with the Purchased Services; or (b) for the accessibility or unavailability of any third party payment processor’s services.
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4.4 Late Payments
In the event that any payments are not received by Earthrise by the due date, then without limiting Earthrise’s rights or remedies: (a) those charges may accrue late interest at the rate of 2% of the outstanding balance per month, or (b) the maximum rate permitted by law, whichever is lower. If any charge owing by the Customer under this Agreement is more than 15 days overdue, then Earthrise, without limiting its other rights and remedies, may suspend the performance of the Purchased Services until such amounts are paid in full.
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4.5 No Deductions or Set-Offs
All amounts payable to Earthrise under this Agreement or applicable Order Form shall be paid by the Customer to Earthrise in full without any set-off, recoupment, counterclaim, deduction, debit, or withholding for any reason.
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5. PROPRIETARY RIGHTS and licenses
5.1 Ownership of Earthrise Property
The Customer acknowledges and agrees that, subject to the limited rights expressly granted to the Customer under this Agreement, as between the Customer and Earthrise, Earthrise, its affiliates, and licensors reserve all right, title, and interest in and to Earthrise Property, including all intellectual property and intellectual property rights in and to Earthrise Property. No rights are granted to the Customer or any Authorized User other than as expressly set forth in this Agreement.
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5.2 License to Customer Data
Earthrise acknowledges and agrees that, as between Earthrise and the Customer, the Customer is the owner of the Customer Data. The Customer grants to Earthrise, its affiliates, and their respective licensees, successors, and assigns, a worldwide non-exclusive, royalty-free, fully paid up, irrevocable, transferable and sublicensable license for the Term to collect, host, copy, use, transmit, process, and display any Customer Data as necessary for Earthrise to provide and ensure the proper operation of the Earthrise Systems in accordance with this Agreement.
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The Customer acknowledges and agrees that the foregoing license includes the following rights: (a) Earthrise has the right to de-identify, aggregate, or anonymize the Customer Data; and (b) use, process, reproduce, disclose, configure, modify, adapt, edit, delete, enhance, translate, backup, archive, combine with other data or works, create derivative works from, publish, perform, transmit, distribute, make available, broadcast, exhibit, communicate by telecommunication, sell, license, transfer, rent, lease, assign, dispose of and otherwise exploit such de-identified, aggregated, or anonymized Customer Data (the “De-Identified Data”) in connection with the Earthrise Platform or for any commercial or non-commercial purpose, as determined in Earthrise’s sole discretion.
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5.3 Ownership of Earthrise Data
The Customer acknowledges and agrees that all data (including, De-Identified Data and excluding Customer Data), performance metrics, analytics, reports, know-how, or other information related to the functionality or performance of the Earthrise Platform (collectively, the “Earthrise Data”), regardless of how, when, or by whom they are created, are, will be, and will remain the sole and exclusive property of Earthrise. The Customer acknowledges and agrees that Earthrise Data are an original compilation protected by copyright law, Earthrise has dedicated substantial resources to collect, manage, and compile Earthrise Data, and Earthrise Data constitute trade secrets of Earthrise. All rights in and to Earthrise Data, and the intellectual property in and related to Earthrise Data, are expressly reserved by Earthrise.
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5.4 Customer Data; Data Export
During the Term, the Customer may request that Earthrise export the Customer Data to the Customer. The Customer acknowledges and agrees that Earthrise will charge the Customer Earthrise’s then-current rates for data export and related services in connection with any such request. Such fees will be payable by the Customer prior to Earthrise’s delivery of the exported Customer Data. Earthrise has no obligation to maintain the Customer Data following the expiration or termination of the Term. Earthrise will delete, erase, or otherwise destroy the Customer Data following the expiration or termination of the Term in accordance with its then-current data retention policies.
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5.5 License to Customer Feedback
The Customer grants to Earthrise, its affiliates, and their respective licensees, successors, and assigns, an exclusive, worldwide, perpetual, irrevocable, royalty-free, fully paid up, transferable, and sublicensable right and license to use and incorporate into Earthrise Property any suggestion, enhancement, request, recommendation, correction, or other feedback provided by the Customer or any Authorized User relating to Earthrise Property or the business, products, or services of Earthrise or its affiliates.
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6. Confidentiality
6.1 Confidential Information
Each party (as the “Receiving Party”) acknowledges that it may acquire knowledge or information which is the valuable, special or unique property of the other party (the “Disclosing Party”) and treated as confidential, including, intellectual property, knowledge, know-how, research and data, processes, formulas, development or experimental work, work-in-process, trade secrets, or any other secret or confidential matter relating to the activities, services, advertising, marketing, research, programs, customer lists, financial information, and product information or any other information or material or business of the Disclosing Party or of firms, organizations or persons for whom services are performed by the Disclosing Party (collectively, “Confidential Information”).
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6.2 Exclusions
Notwithstanding section 6.1, “Confidential Information” does not include information that (a) enters the public domain and becomes generally available to the public other than as a result of direct or indirect disclosure by the Receiving Party or any affiliate of the Receiving Party (including, without limitation, disclosure as a result of a violation of the terms of this Agreement by the Receiving Party or any affiliate of the Receiving Party); (b) is generally known to the public on the Effective Date or at the time of the disclosure of such information by the Disclosing Party to the Receiving Party or later becomes generally known to the public, in either case other than as a result of disclosure in violation of the terms of this Agreement by the Receiving Party or any affiliate of the Receiving Party after the Effective Date; (c) was developed by the Receiving Party independent of any disclosure by the Disclosing Party or was available to the Receiving Party on a non-confidential basis prior to its disclosure to the Receiving Party by the Disclosing Party; or (d) is available to the Receiving Party on a non-confidential basis prior to disclosure by the Disclosing Party or becomes available to the Receiving Party on a non-confidential basis from a person other than the Disclosing Party provided that such person is not then in violation of a confidentiality obligation owed to the Disclosing Party of which the Receiving Party is aware.
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6.3 Protection of Confidential Information
The Receiving Party shall (a) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (b) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (c) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s representatives and employees who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.
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6.4 Disclosures Required by Law
If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, notify the Disclosing Party of such requirements to afford the Disclosing Party the opportunity to seek, at the Disclosing Party’s sole cost and expense, a protective order or other remedy.
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6.5 Survival
The expiration or termination of this Agreement shall not affect the rights and obligations with respect to Confidential Information disclosed hereunder, which shall survive the expiration or termination of this Agreement.
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7. Disclaimers, LIMITATION OF LIABILITY
7.1 General Disclaimer
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, EARTHRISE DOES NOT MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AND EARTHRISE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTIBILITY, FITNESS OR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. ALL SERVICES, THE WEBSITE, EARTHRISE PLATFORM, EARTHRISE PROPERTY, DELIVERABLES, AND THIRD PARTY MATERIALS ARE PROVIDED “AS-IS” AND AS AVAILABLE, EXCLUSIVE OF ANY WARRANTY WHATSOEVER. FOR CLARITY, AND WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EARTHRISE MAKES NO WARRANTY OF ANY KIND THAT EARTHRISE PROPERTY, OR ANY DELIVERABLES, PRODUCTS, SERVICES, WEBSITES, PLATFORMS, LINKS, OR RESULTS OF THE USE THEREOF, WILL MEET THE CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE.
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THE CUSTOMER ACKNOWLEDGES THAT THE DELIVERABLES INCLUDE MEASUREMENTS AND DIMENSIONS WHICH ARE COMPRISED OF ESTIMATES AND ARE ONLY TO BE USED FOR APPROXIMATIONS OF THE LAYOUT OF A PREMISES OR LOCATION. THE CUSTOMER FURTHER ACKNOWLEDGES THAT RELIANCE ON THE DELIVERABLES FOR ANY PURPOSE NOT CONTEMPLATED BY THIS AGREEMENT IS AT THE CUSTOMER’S OWN RISK. THE CUSTOMER IS SOLELY RESPONSIBLE FOR VERIFYING THAT ALL DIMENSIONS AND MEASUREMENTS PROVIDED OR INCLUDED IN ANY DELIVERABLES ARE ACCURATE AND COMPLETE BEFORE SUCH MEASUREMENTS OR DELIVERABLES ARE USED FOR DESIGN, FABRICATION, OR CONSTRUCTION PURPOSES. THE CUSTOMER ACKNOWLEDGES THAT THE CUSTOMER IS RESPONSIBLE FOR CONDUCTING FIELD OR ON-PREMISES MEASUREMENTS TO CONFIRM THE ACCURACY OF ANY MEASUREMENTS OR DIMENSIONS INCLUDED OR PROVIDED AS PART OF THE DELIVERABLES. EARTHRISE IS NOT RESPONSIBLE IF ANY DESIGNS, FIXTURES, ACCESSIONS, OR OTHER MATERIALS THAT ARE BUILT BASED ON THE DELIVERABLES ARE NOT SUITABLE FOR USE IN THE RELEVANT PREMISES OR AT THE RELEVANT LOCATION.
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THE CUSTOMER ACKNOWLEDGES THAT ANY REPORTS GENERATED BY A QUALIFIED ENERGY ADVISOR BASED ON THE NRCAN RESIDENTIAL ENERGY ASSESSMENT PROTOCOL’S STANDARD OPERATING CONDITIONS REPRESENT THE ENERGY ADVISOR’S BEST JUDGMENT GIVEN THE INFORMATION AND TIME AVAILABLE. THE PURPOSE OF THE EVALUATION IS TO ASSESS THE ENERGY EFFICIENCY OF THE BUILDING AND IS NOT MEANT TO REPLACE FULL HOUSE OR BUILDING INSPECTION. EARTHRISE IS NOT RESPONSIBLE FOR ANY ERRORS RELATING TO THE ENERGY CONSUMPTION FIGURES, COST ESTIMATES, OR ENERGY EFFICIENCY RECOMMENDATIONS INCLUDED IN THE REPORT PRODUCED BY AN ENERGY ADVISOR. ACTUAL ENERGY CONSUMPTION AND COSTS DEPEND ON A NUMBER OF FACTORS BEYOND THE CONTROL AND MEASUREMENT OF NRCAN, THE ENERGY ADVISOR, AND EARTHRISE.
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EARTHRISE IS NOT THE PROVIDER, RESELLER, DEVELOPER OR MANUFACTURER OF ANY THIRD PARTY MATERIALS AND MAKES NO REPRESENTATIONS, WARRANTIES, COVENANTS, OR GUARANTEES OF ANY NATURE OR KIND WHATSOEVER WITH RESPECT TO THE THIRD PARTY MATERIALS. THE CUSTOMER IS SOLELY RESPONSIBLE AND LIABLE FOR THE SELECTION AND USE OF THE THIRD PARTY MATERIALS TO ACHIEVE THE CUSTOMER’S DESIRED RESULTS. THE CUSTOMER’S USE OF THE THIRD PARTY MATERIALS IS AT THE CUSTOMER’S OWN RISK, AND THE CUSTOMER IS RESPONSIBLE AND LIABLE FOR VERIFYING ALL RESULTS FROM THE USE THEREOF. FOR THE PURPOSE OF THIS SECTION CUSTOMER DATA CONSTITUTES “THIRD PARTY MATERIALS”.
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EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS AGREEMENT, (A) NEITHER PARTY TO THIS AGREEMENT, NOR ANY OTHER PERSON ON SUCH PARTY’S BEHALF, HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION, WARRANTY, OR CONDITION, EITHER ORAL OR WRITTEN, WHETHER ARISING BY LAW, COURSE OF PERFORMANCE, USAGE, TRADE, OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, AND (B) EACH PARTY ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY THE OTHER PARTY, OR ANY OTHER PERSON ON SUCH PARTY’S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT.
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7.2 Limitation of Liability
IN NO EVENT WILL EARTHRISE BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR RELATED TO THIS AGREEMENT (INCLUDING LOSS OF PROFITS, USE, DATA, OR OTHER ECONOMIC ADVANTAGE), HOWSOEVER ARISING, EITHER OUT OF A BREACH OF THIS AGREEMENT (INCLUDING BREACH OF WARRANTY), NEGLIGENCE, STRICT LIABILITY, TORT, OR ANY OTHER THEORY OF LIABILITY, EVEN IF EARTHRISE HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
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EARTHRISE’S LIABILITY FOR DIRECT DAMAGES ARISING UNDER THIS AGREEMENT WILL BE LIMITED TO THE TOTAL FEES ACTUALLY PAID BY THE CUSTOMER UNDER THE APPLICABLE ORDER FORM PURSUANT TO WHICH THE LIABILITY AROSE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FROM WHICH THE DAMAGES ARISE.
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8. INDEMNIFICATION OBLIGATIONS
8.1 Indemnification by the Customer
The Customer will indemnify, defend, and hold harmless Earthrise, its affiliates, and their respective directors, officers, shareholders, employees, staff, representatives, agents, licensors, licensees, successors, and assigns (the “Earthrise Parties”) from and against any and all claims, demands, damages, judgments, penalties, fines, costs, and expenses, including legal fees, and disbursements, incurred by Earthrise Parties, relating to, arising from, or in connection with a third party claim, demand, action, or proceeding arising out of (a) the Customer’s breach of this Agreement or the Order Form, including, any representation, warranty, covenant, or obligation therein; (b) an Authorized User’s breach of the Terms, including any representation, warranty, covenant, or obligation therein; (c) the negligence, fraud, or willful misconduct of the Customer or any Authorized User; (d) the Customer’s use or any Authorized User’s use of Earthrise Property in a manner that is not authorized by this Agreement, the Order Form, or the Terms; (e) the Customer’s use or any Authorized User’s use of Deliverables or Earthrise Property in combination with data, software, hardware, equipment or technology not provided by Earthrise or authorized by Earthrise in writing; (f) any modifications made by the Customer or any Authorized User to the Deliverables, Third Party Materials, or Earthrise Platform or to any other Earthrise Property that have not been authorized by Earthrise in writing; or (g) any personal injury, illness, death or damage to property caused by the Customer’s acts or omissions.
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8.2 Indemnification by Earthrise
Earthrise will indemnify, defend, and hold harmless the Customer from and against any and all claims, demands, damages, judgments, penalties, fines, costs, and expenses, including legal fees and disbursements, incurred by the Customer, relating to, arising from, or in connection with a third party claim, demand, action, or proceeding arising out of Earthrise’s breach of this Agreement, provided that the Customer promptly notifies Earthrise in writing of the claim, cooperates with Earthrise in responding to or defending the claim, and allows Earthrise sole authority to control the defense and settlement of such claim.
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9. Term, Renewal, AND TERMINATION
9.1 Term
This Agreement will commence on the Effective Date and continue for the period specified on the applicable Order Form (the “Term”) or until earlier terminated in accordance with the terms and conditions of this Agreement.
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9.2 Suspension or Termination
Earthrise may terminate or suspend this Agreement, effective upon written notice to the Customer, if the Customer fails to pay any amount when due under this Agreement or the Order Form, and such failure continues for a period of 10 days after Earthrise provides the Customer with written notice of such default.
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Either party (as the “Non-Defaulting Party”) may terminate or suspend this Agreement effective on written notice to the other party (the “Defaulting Party”), if the Defaulting Party (a) breaches this Agreement and fails to cure such breach within 15 days of receiving written notice of the breach from the Non-Defaulting Party; or (b) becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.
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9.3 Effect of Termination
Upon termination or expiration of this Agreement, the Customer shall, and shall cause all Authorized Users to, immediately discontinue use of Earthrise Property, and without limiting the Customer’s obligations under section 6, delete, destroy, or return all copies of Earthrise Property and Earthrise’s Confidential Information, as directed by Earthrise. No expiration or termination of this Agreement will affect the Customer’s obligations to pay all amounts that are or may become due under this Agreement or any Order Form. Earthrise will delete, erase, or otherwise destroy all Customer Data in its possession or control within 90 days of such termination or expiration.
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10. Representations, Warranties, AND COVENANTS
10.1 Mutual Representations and Warranties
Each party represents and warrants to the other party that: (a) it has all required power and capacity to enter into this Agreement, to grant the rights and licenses granted under this Agreement, and to perform its obligations under this Agreement; (b) when executed and delivered by each of the parties, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
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10.2 Additional Representations, Warranties, and Covenants of the Customer
The Customer represents, warrants, and covenants to Earthrise, on its own behalf and on behalf of all Authorized Users, that (a) the Customer and the Authorized Users own or otherwise have the necessary rights, permissions, waivers, and consents in and relating to the Customer Data required for Earthrise to use, process, and otherwise exploit the Customer Data for the purpose of performing the Purchased Services and performing its obligations under this Agreement; and (b) Earthrise’s use, processing, or other exploitation of the Customer Data as authorized under this Agreement will not infringe, misappropriate, or otherwise violate the rights of any third party or breach any applicable law.
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11. General Provisions
11.1 Incorporation; Order of Precedence
Each Order Form is incorporated into this Agreement by reference and forms part of this Agreement, In the event of any conflict or inconsistency between the statements made in the body of this Agreement, any Order Form, the Terms, and any other documents incorporated into or referred to in this Agreement, the following order of precedence governs: (a) this Agreement; (b) the Order Form; and (c) any other documents, schedules, terms, or exhibits.
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11.2 Force Majeure
In no event shall either party be liable to the other party, or be deemed to have breached this Agreement or any Order Form for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such party’s reasonable control, including but not limited to acts of God, epidemics, pandemics, including the 2019 novel coronavirus (“COVID-19”) pandemic, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labour stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
A party whose performance is affected by an event of force majeure (the “Affected Party”) shall give notice to the other party (the “Non-Affected Party”) stating the period of time that the occurrence is expected to continue. The Affected Party shall use diligent efforts to minimize the impact of the force majeure event. If the force majeure event persists for more than 30 days, the Non-Affected Party may terminate this Agreement by providing the Affected Party with written notice of termination.
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11.3 No Assignment
The Customer may not assign or transfer this Agreement or any of the Customer’s rights or obligations under this Agreement without the prior written consent of Earthrise. Earthrise may assign this Agreement or any of its rights or obligations hereunder.
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11.4 Notices
Any notice, certificate, consent, determination, or other communication required or permitted to be given or made under this Agreement shall be in writing and shall be effectively given and made if (a) delivered personally; (b) sent by prepaid courier service or mail; or (c) sent by means of electronic communication, in each case to the applicable address set out below:
If to Earthrise:
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37-35 Normandy Rd
Whitehorse Yukon, Y1A 0L4
If to the Customer:
To the address for the Customer set forth in the Order Form.
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11.5 Governing Law
This Agreement and all related documents, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute, are governed by, and construed in accordance with, the laws of the Territory of Yukon and the federal laws of Canada applicable therein, without giving effect to any choice or conflict of law provision or rule (whether of the Territory of Yukon or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the Territory of Yukon.
The provincial and federal courts located in Whitehorse, Yukon will have exclusive jurisdiction over any dispute relating to this Agreement, and each party consents to the exclusive jurisdiction of those courts.
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11.6 Injunctive Relief
The Customer acknowledges and agrees, on its own behalf and on behalf of all Authorized Users, that any unauthorized use, disclosure, or other exploitation of Earthrise Property or Earthrise’s Confidential Information by the Customer or any Authorized User will cause Earthrise irreparable harm and that monetary damages would not be a sufficient remedy for Earthrise’s or any Authorized User’s breach or threatened breach of their obligations with respect to the access to and use of Earthrise Property. The Customer further acknowledges and agrees, on its own behalf and on behalf of all Authorized Users, that Earthrise will be entitled to seek injunctive or other equitable relief as a remedy for any such breach or threatened breach without the requirement for the securing of or posting of any bond or other security by Earthrise.
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11.7 Survival
All obligations which expressly or by their nature survive termination or expiration of this Agreement shall continue in full force and effect subsequently to and notwithstanding such termination or expiration until or unless they are satisfied, or they are waived in writing by the party entitled to the benefit thereof.
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11.8 Entire Agreement; Modifications
This Agreement, together with any Order Forms and documents contemplated in Section 2.5 above, constitute the entire agreement of the parties as to its subject matter and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. This Agreement may be amended, modified, or supplemented by Earthrise at any time upon 30 days’ prior written notice to the Customer. Earthrise will provide the Customer with written notice of any such amendment, modification, or supplement to this Agreement (the “Notification”) and the Customer will have 30 days from the Customer’s receipt of the Notification to (a) accept the amended, modified, supplemented Agreement; or (b) terminate the Agreement by providing written notice to Earthrise. If the Customer fails to respond to the Notification prior to the expiry of the 30 day period, the Customer will be deemed to have accepted the amended, modified, or supplemented version of the Agreement. No amendment to this Agreement by the Customer will be effective unless such amendment is accepted by Earthrise in writing.
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11.9 No Waiver
Neither failure nor delay on the part of Earthrise to exercise any right, remedy, power or privilege provided for herein or by statute or by law, or in equity or otherwise in respect of a breach of this Agreement by the Customer shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, remedy, power or privilege preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
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11.10 Severability
If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
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11.11 Counterparts
This Agreement may be executed and delivered by the parties in one or more counterparts, each of which will be an original, and each of which may be delivered by facsimile, e-mail or other functionally equivalent electronic means of transmission and those counterparts will together constitute one and the same instrument. Counterparts may be executed either in original or electronic form and the parties adopt any signatures received by electronic transmission as original signatures of the parties.
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11.12 Independent Contractors
The relationship between the parties are that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between such parties, and none of such parties shall have authority to bind the other party in any manner whatsoever.
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11.13 Independent Legal Advice
The Customer acknowledges that, by entering into this Agreement, the Customer has had the opportunity to obtain independent legal advice with respect to entering into this Agreement, that the Customer has obtained such independent legal advice or has expressly deemed not to seek such advice, and that the Customer is entering into this Agreement with full knowledge of the contents hereof, of the Customer’s own free will and with full capacity and authority to do so.