1. INTRODUCTION AND DEFINITIONS
1.1 These GRESB Portal Terms & Conditions for Participant Members (T&Cs) are used by the private company with limited liability to the laws of The Netherlands GRESB B.V., seated in Amsterdam (The Netherlands).
1.2 The legal relationship between GRESB and you – as a Participant – is governed by the combination of the ‘Participant Agreement’ and these T&Cs, jointly to be referred to as: “the Agreement”. The Agreement governs your involvement in the Assessment(s) and your use of the GRESB Products and Services.
1.3 The Agreement comes into effect at the moment you first log in to the Portal prior to commencement of the Assessment(s). Upon registration or login, you are asked to tick a box to confirm your agreement with the T&Cs.
1.4 Unless the context requires otherwise, words and phrases used in the Agreement shall have the meanings given to them in this clause 1.4:
- ‘Agreement’: the combination of the Participant Agreement and the T&Cs;
- ‘Assessment(s)’: any or all of (i) submitting/collecting data on the indicators compiled by GRESB on an annual basis to assess the sustainability performance of public and private real estate and infrastructure investments and (ii) GRESB’s activities connected with such assessment processes including, but not limited to, data processing, validation, analysis, scoring, and development of the Data a.o. to create Scorecards and/or Benchmark Reports;
- ‘Assessment Access Tool’: a Portal tool, which allows Participants to invite their colleagues and external consultants to help them with the submission of Participant data to GRESB;
- ‘Assessment Year’: the calendar year in which an Assessment was undertaken;
- ‘Benchmark Report’: a report prepared by GRESB which contains, but is not limited to non-financial peer benchmarking and question-by-question analysis of a Participant’s performance according to the data collected in the Assessment(s);
- ‘Data’: any and all data and/or other information supplied by GRESB through the GRESB Products and Service(s) or by any other means, including but not limited to Scorecards and Benchmark Reports;
- ‘Data Access Request Tool’: the automated tool in the Portal via which Investor Members request access to view Data;
- ‘Database’: the collection of independent works, data and/or other materials comprising, in whole or in part, data collected and processed as a result of the Assessment(s) and/or the GRESB Products and Service(s), including, but not limited to, the Data, all data validation decisions, all scoring and analysis algorithms and all records of statistical analysis;
- ‘GRESB’: GRESB B.V. incorporated as a private company under the law of the Netherlands with registration number 55416071;
- ‘GRESB Products and Service(s)’: any products and service(s) developed and supplied by GRESB to its customers and Members, as per its binding agreements. These products and services shall include but not be limited to services in connection with the Assessment(s), Benchmark Reports and Scorecards;
- ‘Indicators’: the criteria and metrics compiled by GRESB on an annual basis, which are to be used to assess the sustainability performance of public and private real estate and infrastructure investments;
- ‘Investor Member’: each entity that invests capital directly or indirectly into real estate or infrastructure funds and/or assets and is party to an Investor Membership Agreement with GRESB;
- ‘IPRs’: all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade-, business- and domain- names, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and all other industrial and/or commercial rights and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights and all rights to apply for the same, and all similar or equivalent rights or forms of protection in any part of the world. For clarity, GRESB’s IPRs shall include but not be limited to the content and format of the GRESB Website, the GRESB Portal and any GRESB Products and Service(s);
- ‘Losses’: any losses, damages, costs, expenses or other liabilities;
- ‘Member’: any entity, association, partnership or organization that is a Party to a Membership Agreement with GRESB, being a Participant Member, Investor Member or other partner;
- ‘Participant’: an entity that submits a response to the Assessment(s) – whether directly or via a third party – with respect to this Participant’s asset(s), fund(s) and/or portfolio(s), being a Member of GRESB;
- ‘Participant Agreement’: the agreement between GRESB and the Participant, containing the core rights and obligations of the Parties with respect to the Assessment, which agreement is entered into per (online) subscription by the Participant and confirmation by GRESB per e-mail;
- ‘Participant Data’: the data and other information that GRESB receives from a Participant – whether directly or through this Participant’s agent, consultant or representative – which includes, without limitation, its Assessment submission and/or any supporting information;
- ‘Participating Asset’: a physical, investable asset for which a GRESB Infrastructure Asset Assessment can be submitted;
- ‘Participating Portfolio’: an investable group of assets for which a GRESB Real Estate Assessment or GRESB Infrastructure Fund Assessment can be submitted. This can be an equity or debt fund, a listed or unlisted company, a direct investment portfolio, a separate account, or another special purpose vehicle;
- ‘Party’: both GRESB and the Participant, that are a party to this Agreement;
- ‘Portal’: GRESB’s online non-public portal currently accessed via portal.gresb.com and used, inter alia, for providing GRESB Products and Services;
- ‘Portal Tools’: all tools and functionalities available in the Portal, such as the Portfolio Analysis Tool and Data Downloader;
- ‘Privacy Statement’: the GRESB Privacy Statement as amended periodically, which is found on https://gresb.com/gresb-privacy-statement/ and which is sent to you upon your request;
- ‘Scorecard’: a document summarizing an individual Participant’s annual Assessment results;
- ‘Start Date’: the date of the Participant’s first login via the Portal;
- ‘T&Cs’: these GRESB Portal Terms & Conditions for Participants, or any subsequent version thereof;
- ‘Us’ or ‘We’: GRESB;
- ‘Website’: the website currently located at https://gresb.com or any other website through which GRESB manages the Assessment(s) and delivers the GRESB Products and Service(s).
2. PARTICIPANT DATA
2.1 As a Participant you will supply GRESB with all data and other information that we may reasonably request from you with respect to the Assessments, in order to assess the sustainability performance of your public and private real estate and infrastructure investments. You will supply this data and information during the Assessment period, the validation and scoring period or as otherwise communicated – to allow us to undertake and validate the Assessment(s) and to provide the GRESB Products and Service(s) to you.
2.2 All the data and information you supply will, to the best of your knowledge and abilities be true, accurate and complete.
2.3 As a Participant you will:
- Cooperate with us in matters relating to the Assessment(s) and the GRESB Products and Service(s);
- Obtain and maintain all necessary licenses, permissions and consents which may be required for you to be able to submit the Participant Data to GRESB.
2.4 As a Participant you acknowledge and agree that, in consideration for us performing our obligations and granting you Participant rights under this Agreement, you hereby grant us a license on a royalty free, world-wide, perpetual basis, to use and exploit the Participant Data provided by you for the Assessment, for the purposes of developing and providing the GRESB Products and Service(s) and for the benefit of GRESB, in accordance with clause 5 of these T&Cs.
2.5 As a Participant you acknowledge and confirm that you are aware of the possibility that information that you provide in the course of submitting Participant Data to GRESB may be material non-public information (MNPI) also known in some jurisdictions as unpublished price-sensitive information (UPSI) and/or insider information. This is particularly relevant to Participants that are listed on a Stock Exchange. GRESB expresses no opinion regarding this issue, accepts no liability and gives no warranty and/or assurance regarding the relevance of any applicable rules. While GRESB recommends that you publicly disclose the Participant Data that you submit to GRESB in accordance with clause 3.2, you acknowledge and agree that compliance with any applicable rules is your sole responsibility.
3. AUTHORITY AND LICENSE FOR PARTICIPANT USE OF GRESB PRODUCTS AND SERVICE(S)
3.1 In consideration for the submission of Participant Data to GRESB pursuant to clause 2 above, GRESB grants to Participants for the term of this Agreement a non-exclusive and non-transferable right:
- To save, import, and print parts, extracts, and copies of the Participant’s Scorecard and/or Benchmark Report as well as the Indicators and the Participant’s responses to them for their own internal organizational use;
- To make the Participant’s Scorecard and/or Benchmark Report, as well as the Indicators and the Participant’s responses to them available to any consultants appointed directly by the Participant for the sole purpose of providing advice to this Participant based on this Data and for no other purposes whatsoever, provided that the Data may not be manipulated or distributed by the recipients of it;
- To publicly display, copy, and disclose their GRESB Assessment(s) Indicator responses;
- To incorporate insubstantial parts or extracts of the Data relating to the Participant in (a) public statement(s) that illustrate the performance of its investments or (b) investment performance reports provided by the Participant to its clients or (c) marketing materials to be provided to potential clients for promotional or illustrative purposes on an ad hoc basis.
3.2 In addition, Participants that are listed on a Stock Exchange are permitted to publicly disclose their GRESB Assessment(s) Indicator responses, supporting documents, Scorecard and Benchmark Report on their company website.
3.3 The Participant shall ensure that any internal or external reproduction of all or part of the Data includes the following notices: ‘All intellectual property rights to this data belong exclusively to GRESB B.V. (GRESB). All rights reserved. GRESB has no liability to any person (including a natural person, corporate or unincorporated body) for any losses, damages, costs, expenses or other liabilities suffered as a result of any use of or reliance on any of the information which may be attributed to it’.
3.4 Notwithstanding the previous paragraphs of this clause 3, Participants may not sell, sub-license, or otherwise commercially exploit the Scorecard/Benchmark Report or any other Data, nor may they make such Data available to or for the benefit of any third party.
3.5 No information relating to or derived from GRESB’s Assessments, including the contents of the Benchmark Reports and Scorecards, may be used as a “Benchmark” as defined in Regulation (EU) 2016/1011. This is the case when the information is used to (a) determine the amount payable under a financial instrument or a financial contract, (b) determine the value of a financial instrument or (c) measure the performance of an investment fund with the purpose of tracking the return of such index or of defining the asset allocation of a portfolio or of computing the performance fees.
3.6 In consideration for the submission of Participant Data to GRESB pursuant to clause 2 above, GRESB grants the Participant (for the term of the Agreement) a non-exclusive and non-transferable right to use the Portal Tools for its own internal business purposes, i.e. for the collection of data for its Assessment submission and for no other purpose whatsoever.
3.7 The Participant agrees not to use the Portal Tools in any way that is not expressly permitted in this clause. No sale, transfer, sub-license, distribution or commercial exploitation of the Portal Tools or any of the information obtained using the Portal Tools is permitted.
3.8 On condition that a Participant submits Participant Data via the Portal in accordance with GRESB’s requirements and this Agreement, this Participant may use the acronym ‘GRESB’ and/or any other registered or unregistered signs, words or logos made available to it by GRESB (collectively the “Marks”) for the specific purpose of identifying it as a Participant in publications, provided that:
- The Participant shall always obtain the current versions of the Marks from GRESB (https://gresb.com/contact/) and shall replace old Marks for new versions as soon as possible after receiving a notification from GRESB that new versions are available;
- The Participant shall not modify the Marks in any way, except to increase or decrease the scale. This includes changes to color, proportion, lettering and content;
- The use of the Marks must always be accompanied by a clear and unambiguous confirmation that the Marks are the proprietary materials of GRESB for example by using the ® symbol for registered trademarks;
- The Participant shall effectively cease and desist any and all use of the Marks within 14 days of a request by GRESB to do so;
- The Participant shall immediately notify GRESB in writing giving full particulars of any actual, suspected or threatened infringement of any of the Marks, or any challenge to the Marks made or threatened (including any claim that the Marks infringe the rights of any third party), that come to its knowledge;
- The Participant shall at all times adhere to, and be bound by, the GRESB Trademark Policy and Branding Guidelines (http://gresb-prd-public.s3.amazonaws.com/2019/Documents/2019-GRESB-Branding-Guidelines.pdf);
- GRESB is permitted to withdraw its consent to the use of any GRESB IPRs giving written notice to the Participant in writing at any time.
3.9 Participation in the Assessment(s) is at GRESB’s sole discretion; GRESB may at any time elect not to use the Participant Data submitted by any Participant.
4. GRESB USE OF DATA AND DATA PROTECTION
4.1 Notwithstanding anything to the contrary, GRESB may use the Participant Data and any other information provided in connection with a Participant’s submission to any (current, past or future) Assessment(s) as a basis for compiling, developing and distributing the GRESB Products and Service(s).
4.2 For the purposes described in clause 4.1 above Data and/or its composing parts will be distributed as follows:
- A Participant will be permitted to access its own Scorecard and if applicable Benchmark Report and other individual Data as per the Participant Agreement;
- GRESB may grant access to the Data or publish the Data as part of its Products and Services to any of its Investor Members, customers or other contract parties, as follows:
- With respect to Participants that are not listed on a Stock Exchange: after explicit consent of the Participant is received. For that purpose, GRESB provides the Data Access Request Tool (DART), facilitating a system for Investor Members to request consent from the relevant Participant before giving an Investor Member access to that Participant’s Scorecard and/or Benchmark Report. This request will be sent by the Investor Member in an online request from the Portal. After consent by a Participant is given, the Investor Member will be permitted to access the Scorecard and Benchmark Report of the consenting Participant;
- With respect to Participants listed on a Stock Exchange: the Data is deemed to be public, and the consent of the Participant is not needed.
- With respect to Data that is expressed as scores or indices, along with any other information provided in the Assessment, GRESB is free to use all Data provided this Data cannot be traced back to a Participant’s individual assets.
4.3 New Participants can request a one-time grace period (‘Grace Period’), during the first year of being a Participant. During this Grace Period, GRESB will not disclose that Participant’s Scorecard or Benchmark Report to any other party than the Participant itself. Investor Members cannot request access to that Participant’s Scorecard or Benchmark Report. This Grace Period can only be requested by the new Participant giving explicit notice to GRESB via the Portal, prior to it submitting its first Participant Data.
4.4 Both Parties agree to comply with their respective obligations under all applicable data protection and privacy laws and regulations. In as far as GRESB is provided with personal data, GRESB shall handle this data in accordance with its Privacy Statement.
4.5 As a Participant you will comply with any guidelines that we provide from time to time in relation to the manner in which we process Participant Data and/or provide the GRESB Products and Service(s).
4.6 As a Participant you agree that we may include your name in any lists we may at our own discretion publish for promotional or other purposes from time to time.
5. YOUR OBLIGATIONS
5.1 As a Participant you warrant and undertake that:
- You have full right and authority to enter into this Agreement and to perform your obligations;
- You have the right to provide the Participant Data that you supply under this Agreement to GRESB and neither this nor the resulting Data will in any way infringe any rights of any third-party;
- You will use all reasonable endeavors to ensure that the Participant Data that you supply under this Agreement is accurate and complete;
- You shall not make any false or misleading statements about any information that you derive from the Data;
- You shall not do anything which may damage the reputation of GRESB, the Data or any of the GRESB Products and Services;
- You shall not use the Data or any of the GRESB Products and Services for any purpose contrary to any law or regulation or any regulatory code or guidance;
- You shall only use the Data or GRESB Products and Services in accordance with the Agreement.
5.2 As a Participant you undertake not to disclose any Participant Data of other Participants and/or Data to a third party other than in accordance with the terms of this Agreement.
5.3 You will take adequate steps to ensure that you, your employees, consultants and agents comply with this Agreement and do not:
- Copy, print out or otherwise reproduce any Data nor any material provided in connection with the GRESB Products and Service(s), except as permitted under this Agreement or authorized by us in writing;
- Make any part of the Data available to anyone, except as permitted under this Agreement or authorized by us in writing;
- Alter or manipulate any part of the Data or other information provided in connection with the GRESB Products and Service(s);
- Provide GRESB with any confidential information which might breach any legal or professional duty.
5.4 You will take steps to ensure that nobody other than your authorized personnel can access the Portal using your username and password.
5.5 As a Participant you will ensure that any consultants, contributors, employees, officers, subcontractors or other third parties that assist you with the submission of Participant Data to GRESB, separately register in the Portal using GRESB’s Assessment Access Tool.
5.6 As a Participant you acknowledge and accept that granting access to your Assessment submission using the Assessment Access Tool and the management of permissions granted for using the Assessment Access Tool is your own responsibility. GRESB may rely on all Participant Data and information provided via the Assessment Access Tool being correct and complete.
5.7 Subject to clause 5.8 below, you will defend, indemnify and hold GRESB harmless against any Losses suffered or incurred by us and/or our agents and/or licensors as a result of third party claims, including legal expenses (reasonably and properly incurred), arising out of or connected with your breach of this Agreement.
5.8 In the event of any Losses pursuant to clause 5.7 above, resulting from a third-party claim:
- We will give notice of any such third-party claim within a reasonable term;
- We provide reasonable cooperation to you in the defense and settlement of such third-party claim, at your expense; and
- You are given sole authority to defend or settle the third-party claim, provided you clearly communicate that you are handling the claim instead of GRESB.
6. DATA VALIDATION
6.1 As a Participant you agree to actively cooperate with GRESB for the purposes of our data validation process. In particular, provided that we give you reasonable prior notice, you shall adequately make available employees and facilities to provide GRESB with all necessary assistance to complete our data validation process with respect to your Participant Data.
7. FEES AND PAYMENT
7.1 GRESB reserves the right to increase the fees applicable in each calendar year. It will advise participants, on a best effort basis, at least ninety (90) days in advance of the end of a calendar year of any change pursuant to this clause.
7.2 GRESB will invoice the Participant Member fee annually. These invoices are to be paid within 30 days of the date of the invoice.
7.3 GRESB may invoice the Participant separately for any individual Products and Services it provides to this Participant. All invoices are to be paid within 30 days of the invoice unless explicitly agreed otherwise. GRESB may request payment before delivery of the Products and Services.
7.4 In case of late payment, GRESB can charge an interest of 1% per month, plus a compensation for any expenses made for debt collection.
8.1 The Parties acknowledge that– in the execution of the Agreement – they will provide each other with Confidential Information (in this clause to be referred to as ‘Confidential Information’), meaning any information, how ever conveyed or presented:
- That relates to either Party’s trade secrets, customer or supplier details, business and business transactions, affairs, operations, know-how, personnel and suppliers; and
- In the case of GRESB: that relates to the methods, processes or techniques used to provide the GRESB Products and Service(s) and the Data; and
- That is clearly designated by a Party as being confidential to it (whether or not it is marked “confidential”), or which ought reasonably be considered to be confidential.
8.2 Unless otherwise permitted by this Agreement, both Parties will ensure that they restrict disclosure of such Confidential Information to such of their employees, consultants, contributors, officers, agents or subcontractors as need to know for the purpose of discharging the obligations under this Agreement and executing the license of clause 2.4. The Parties shall ensure that such employees, consultants, contributors, officers, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Parties to this Agreement.
8.3 Both parties shall ensure that they and their respective agents, consultants, contributors, employees, officers or subcontractors shall, maintain in strict confidence and not divulge or communicate to anyone else any Confidential Information relating to the other party except as permitted by the Agreement.
8.4 The obligations of clauses 8.2 and 8.3 above shall not apply to information which:
- Is already public knowledge, through no act or default of either party;
- Either party is required to divulge by a Court, tribunal or governmental authority with competent jurisdiction;
- Was known to the recipient before the date of disclosure (as proven by written evidence) without obligations of confidentiality;
- Was subsequently obtained by the recipient from someone else without that person breaching any obligations of confidentiality that they have to either you or us.
8.5 Moreover, the obligations of clauses 8.2 and 8.3 above shall not apply to GRESB while using and/or exploiting Participant Data in conformity with the purpose and the rights and obligations resulting from this Agreement.
8.6 This clause 8 shall survive termination of the Agreement.
9. INTELLECTUAL PROPERTY
9.1 As a Participant you shall retain ownership of the IPRs (if any) in Participant Data submitted by you.
9.2 Without prejudice to our legal obligations regarding data protection, as a Participant you consent to GRESB, both for the term of this Agreement and afterwards:
- Processing and dealing with Participant Data submitted by you in any way required for GRESB to provide both current and future GRESB Products and Service(s);
- Incorporating Participant Data into Data, Databases and/or other GRESB Products and Service(s) in existence now or proposed to be in future;
- Making Participant Data available as part of any of GRESB Products and Service(s) of any kind that we may provide from time to time in connection with the Assessment.
9.3 Subject to clause 13, GRESB warrants that you will not infringe any third party IPRs by using the Scorecard and Benchmark Report in accordance with the terms of this Agreement. GRESB will indemnify you against any Losses you may validly incur as a result of any claim that the use of the Data by you infringes any third party IPRs, provided you notify GRESB promptly of any such claim being made.
9.4 In the event of a claim made pursuant to clause 9.3 above:
- You will give prompt notice of any such claim;
- You provide reasonable cooperation to us in the defense and settlement of such claim, at your expense; and
- We are given sole authority to defend or settle the claim.
9.5 If any claims are made, or in our reasonable opinion are likely to be made, by any third party pursuant to clause 9.3 above, GRESB may at its sole option and expense:
- Procure for you the right to continue using the relevant Data (or any part of it) in accordance with the terms of this Agreement;
- Modify the relevant Data to avoid infringement or replace the relevant Data with non-infringing materials, whilst still providing the same, or substantially similar, functionality to the infringing materials.
9.6 Subject to any underlying rights you hold under clause 9.1, you acknowledge that any and all (claims to) current and future IPRs in or related to the Data, the Database, the GRESB Products and Service(s) and/or any other products or service(s) that are created by GRESB using the Participant Data are our property or that of our licensors. For clarity, GRESB’s IPRs shall include but not be limited to the content and format of the GRESB Website and Portal and any Products and Service(s) provided to Participants during the course of the Assessment(s).
9.7 You acknowledge that, in respect of any third party IPRs licensed by GRESB, your use of any such IPRs is conditional on GRESB obtaining a written license from the relevant licensor (“Third Party License”) on such terms as will entitle GRESB to license such rights to you. In the event that the Third Party License is terminated, suspended, expires or is otherwise no longer in place for any reason, GRESB may immediately and without any liability to you either (i) terminate or suspend your use of any such third-party IPRs, or (ii) terminate this Agreement.
9.8 GRESB may terminate this Agreement immediately on notice, if you challenge the validity of any of our rights or those of our licensors set out above.
10.1 You will promptly and at your own expense comply with any security related or other rules and guidelines that we reasonably require from time to time in relation to the manner in which we provide the GRESB Products and Service(s), including the Assessments.
11. DURATION OF AGREEMENT AND DENIAL OF ACCESS
11.1 This Agreement will come into force on the Start Date and will continue for an initial period of twelve (12) months. The Agreement shall automatically be renewed for consecutive periods of twelve (12) months unless either Party gives not less than ninety (90) days written notice of termination to the other expiring on the first or any subsequent anniversary of the Start Date.
11.2 Without prejudice to clause 12.2 below, GRESB reserves the right to immediately and without notice suspend access to GRESB Products and Services in the event GRESB reasonably suspects a material breach of this Agreement.
11.3 In the event of a suspected breach pursuant to clause 11.2 above GRESB will:
- Notify you in writing of the breach and of GRESB’s decision to suspend access to GRESB Products and Services; and
- Provide details of the alleged breach to allow you to identify, remedy or disprove that breach.
11.4 Provided that the suspected breach is remedied within twenty (20) working days of written notice provided pursuant to clause 11.3 above, GRESB will within a reasonable time reinstate access to GRESB Products and Services.
11.5 If the breach is not remedied, or not remedied in time, GRESB reserves the right to permanently suspend access to the GRESB Products and Services. In these circumstances you warrant and agree immediately on our request either to destroy any printed or electronic copies of any Data or to promptly return copies of any Data to GRESB.
12.1 Either Party may terminate this Agreement by giving the other party written notice in accordance with clause 11.1.
12.2 This Agreement may be terminated immediately by either Party if the other Party is in material breach of any of the terms of the Agreement, if such a breach is not remedied within a period of twenty (20) working days after written notice of it has been given to the Party in breach.
12.3 GRESB may terminate this Agreement immediately by giving written notice if GRESB ceases undertaking the Assessment(s) and/or if GRESB ceases to provide the GRESB Products and Service(s).
12.4 Upon termination of this Agreement (for whatever cause), your rights to use the Scorecard and/or Benchmark Report and/or any other Data to which you are entitled will immediately cease.
12.5 Termination will not affect:
- The accrued rights, remedies, obligations and liabilities of the Parties as at expiry or termination, except for the right granted to you in clause 3.1; and
- Any part of this Agreement which expressly or by implication is intended to survive termination (including without limitation clauses 5, 6, 7, 8, 9, 12, 13, 14 and 15).
12.6 For the avoidance of doubt, if this Agreement is terminated in accordance with this clause 12, as a Participant you may request in writing that any Participant Data provided by you shall be removed from GRESB’s electronic and written records. Provided that such a request is reasonable, and provided that the Participant Data has not already been processed by GRESB, we will return the data to you within 14 days of receipt of such a written request.
13. DISCLAIMER AND LIABILITY
13.1 You shall indemnify GRESB and hold GRESB and its licensors harmless against any and all Losses suffered or incurred by GRESB and/or its licensors as a result of third party claims, including legal expenses (reasonably and properly incurred) arising out of or in connection with any breach of your obligations under the Agreement.
13.2 In the event of a claim made pursuant to clause 13.1 above:
- GRESB will give notice of any such claim without delay;
- GRESB shall provide reasonable cooperation to you in the defense and settlement of such claim, at your expense; and
- You are given sole authority to defend or settle the claim, provided you clearly communicate that you are handling the claim instead of GRESB.
13.3 GRESB provides you with no warranty or assurance in respect of the Data and the GRESB Products and Service(s), except as set out in clause 9.3 above. WITHOUT LIMITATION OF THE FOREGOING SENTENCE, GRESB DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. GRESB declares and you acknowledge and agree that all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or law are excluded to the maximum extent permitted by law.
13.4 This clause 13 sets out GRESB’s entire financial liability (including any liability for the acts or omissions of its employees, agents, contributors, consultants and sub-contractors) to you in respect of:
- Any breach of this Agreement;
- Any use made by you of the GRESB Products and Service(s) or any part of them; and
- Any representation, statement or tortious act or omission (whether negligent or otherwise) arising under or in connection with this Agreement and/or use made by you of the GRESB Products and Service(s).
13.5 GRESB provides the Data in good faith, but you acknowledge that as the Data may include or refer to data that is provided by third parties, GRESB is not able to control or verify the accuracy or completeness of such data. Accordingly, whilst GRESB agrees to use reasonable skill and care in the collation of and dealing with the Data:
- GRESB provides no warranty or representation (whether express or implied) about the accuracy or fitness for any particular purpose of the Data or the Assessment(s);
- GRESB provides no warranty or representation (whether express or implied) that the provision of the GRESB Products and Service(s) will be uninterrupted, timely or secure; and
- GRESB shall not be liable for any inaccuracy, incompleteness or error in the Data or the Assessment(s) which arises as a result of data input, instructions or scripts provided by you or any third party appointed by you to provide Participant Data on your behalf;
- You acknowledge that systems that use empirical data and/or statistical data and/or data modelling techniques to provide indicative and/or predictable data, cannot be taken as a guarantee of any particular outcome.
13.6 While every care has been taken in the development of the Website and the Portal, we cannot be held liable for the consequences of actions taken on the basis of information obtained on the Website or the Portal.
13.7 We do not offer any warranty or representation that the use by you of the GRESB Products and Service(s) will achieve any particular result for you. You agree and acknowledge that the GRESB Products and Service(s) are not intended to be used as the sole basis for any business decision, that you use the Data at your own risk and on an “as is” basis and that you will not use the Data as the sole basis for any business decision.
13.8 Subject to clause 9.3 above:
- GRESB shall not be liable, whether in contract, tort (including negligence or breach of statutory duty) misrepresentation, restitution or otherwise, and whether arising out of or in connection with this Agreement or any other agreement, for any loss of profits, loss of business, depletion of goodwill or similar losses or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising; and
- GRESB’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising out of or in connection with the performance or contemplated performance of this Agreement shall be limited to the aggregate amount of all fees paid by you to GRESB in the Assessment Year in which GRESB was first notified in writing of the (potential) claim.
13.9 Under this clause 13 the maximum imposed on the liability of GRESB shall include the liability of any GRESB group company and/or the respective agents, consultants, contributors, employees or officers of GRESB and any of its group companies.
13.10 Neither party shall incur liability under this Agreement in as far as it is prevented from or delayed in performing its obligations under the Agreement by acts, events, omissions or accidents beyond its reasonable control or responsibility, including without limitation, strikes, lock-outs or other industrial disputes, failure of a utility service or transport or communications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood or storm.
13.11 GRESB shall not be liable to you in the event that the performance of any of our obligations under this Agreement is prevented, disturbed or delayed by any act or omission on your side.
14.1 Any notice or other communication required to be given to a Party under or in connection with this Agreement shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post or international post or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax to the other party’s main fax number.
15.1 GRESB Products and Service(s) continue to evolve in the light of business, market and technical developments. Accordingly, we reserve the right to make improvements, substitutions, modifications, and to add or remove some elements of the GRESB Products and Service(s). You acknowledge that GRESB shall not be liable to you or to any third party for any modification, discontinuance or suspension of the GRESB Products and Service(s).
15.2 GRESB reserves the right, in its own and absolute discretion, to change these T&Cs, by notifying you upon login of the Portal or by post or e-mail. Amendments will be applicable from your first login to the Portal following publication. Your continued use of the GRESB Products and Service(s) after the posting of the amended T&Cs means that you accept these changes.
15.3 You consent to GRESB assigning or subcontracting any or all of our rights and obligations under this Agreement to any third party or agent.
15.4 Third Parties: A person who is not a party to this Agreement shall not have any rights under or in connection with this Agreement.
15.5 Governing law and jurisdiction: This Agreement, and any dispute or claim arising out of or in connection with it are governed by the laws of The Netherlands. The competent court in Amsterdam, the Netherlands, shall have exclusive jurisdiction to settle any dispute in connection with this Agreement without prejudice to the right of appeal to the Supreme Court.
15.6 This Agreement constitutes the entire agreement between GRESB and you and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between GRESB and you relating to its subject matter, whether written or oral, and without prejudice to the generality of the foregoing.
15.7 No general terms and conditions of the Participant shall apply to this Agreement.
15.8 If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. The Parties shall negotiate in good faith to replace the invalid, unenforceable or illegal provision by a provision that gives effect to the commercial intention of the parties.
15.9 Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.
15.10 Each party shall, and shall use all reasonable endeavors to procure that any necessary third party shall, execute and deliver such documents and perform such acts as may reasonably be required for the purpose of giving full effect to this Agreement.
15.11 By entering into this Agreement you confirm that you are doing so in the course of your business and not as a consumer.