These Environmental Tech Lab (“ETL”) Terms and Conditions (the “Agreement”) are between the City of New York, acting by and through the New York City Department of Environmental Protection (“DEP,” “we,” or “us”), and the entity identified on the ETL Application Form (the “Applicant” or “you”).

THIS AGREEMENT IS AN ENFORCEABLE, LEGALLY BINDING CONTRACT SOLELY BETWEEN YOU AND DEP. PLEASE READ THIS AGREEMENT CAREFULLY. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU ARE NOT PERMITTED TO PARTICIPATE IN THE ETL.

1. Defined Terms. We use key words frequently in this Agreement, such as “Applicant,” “ETL,” and “Submission,” and for clarity we have given these words specific definitions. We identify the words that have a definition by beginning the word with a capital letter, and you will find the associated definitions in Section 20 (Definitions) or defined within a provision of this Agreement.
   
   

2. Your Acceptance of this Agreement. When you accept this Agreement, you confirm (a) that you understand and agree to be legally bound by this Agreement, and (b) that you are eligible to participate in the ETL. You accept this Agreement by taking the following actions:

   2.1. The Signature Process. At the end of the application process, we ask you to electronically acknowledge your acceptance of this Agreement by clicking “I accept.” All ETL applicants are required to accept this Agreement, and if you choose not to accept this Agreement we will not be able to accept your Submission.

   2.2. Your Authority to Sign this Agreement. If you are making a Submission on behalf of a company, when you accept this Agreement you are assuring us that you have the authority to represent Applicant and to legally bind Applicant as a whole to this Agreement.
   
   

3. Eligibility. All companies registered to do business with the State of New York, including early-to growth-stage companies, that have innovative solutions to one of the Challenges are eligible to participate in the ETL, in accordance with the following requirements and exceptions:

   3.1. Company Requirements. Eligible companies must (i) be a corporation, joint venture, partnership, or LLC as defined by Applicable Law and registered to do business in the State of New York (“NYS Registration”) and (ii) have at least a beta version (i.e., working prototype with active users) of the solution you intend to propose as part of your application. Applicants’ solutions do not need to be designed for a water/wastewater utility or environmental regulator, but they need to address the Challenges. New York State certified Minority and Women-owned Business Enterprise (M/WBE) companies are especially encouraged to apply. US domestic companies are preferred. Eligible companies must be independently owned and operated; subsidiaries of larger companies are not eligible for participation. DEP will decide, in its sole discretion, which applicants meet the eligibility requirements of the ETL. Proof of completed NYS Registration, or application for NYS Registration, with the New York State Division of Corporations is required as part of Applicant’s Submissions. Any applicant with a pending NYS Registration at the time of Submission must have a completed NYS Registration by Phase 2.

   3.2. Related Parties and Sanctioned Parties. In fairness to other applicants, we cannot accept Submissions from (a) Evaluators, the companies (if any) that they majority own, fund or are employed by, (b) Family Members of Evaluators, (c) applicants who are subject to, or reside in jurisdictions that are subject to, trade restrictions or sanctions under Applicable Law, (d) employees or officials of the City, and (e) individuals (or Family Members of such individuals) who have provided or will provide ETL-related advice to DEP, or the New York City Partnership Foundation, Inc. (the “Partnership”), or who participated in the creation of the ETL, the ETL guidelines, or this Agreement. DEP reserves the right to (x) review, and if applicable, waive Section 3.2 in its sole discretion, and (y) ask for additional information from applicants that fall into any of the categories.

   3.3. Conflicts of Interest.

   3.3.1. Applicant represents and warrants that neither it nor any of its directors, officers, members, partners or employees has any interest nor shall they acquire any interest, directly or indirectly, which conflicts in any manner or degree with the performance of this Agreement. Applicant further represents and warrants that no person having such interest or possible interest shall be employed by or connected with Applicant in the performance of this Agreement.

   3.3.2. Consistent with Charter § 2604 and other related provisions of the City Charter (“Charter”), the City Administrative Code and the New York State Penal Law, no elected official or other officer or employee of the City, nor any person whose salary is payable, in whole or in part, from the City Treasury, shall participate in any decision relating to this Agreement which affects their personal interest or the interest of any corporation, partnership or other entity in which they are, directly or indirectly, interested; nor shall any such official, officer, employee, or person have any interest in, or in the proceeds of, this Agreement. This Section 3.3.2 shall not prevent directors, officers, members, partners, or employees of Applicant from participating in decisions relating to this Agreement where their sole personal interest is in Applicant.

   3.3.3. Applicant shall not employ a person or permit a person to serve as a member of the Board of Directors or as an officer of Applicant if such employment or service would violate Chapter 68 of the Charter.
   
   

4. The Environmental Tech Lab. The ETL is a virtual accelerator program for early to growth-stage companies developing technology with the potential to transform New York City’s water, wastewater, and environmental regulation systems by improving performance and customer experience. Selected applicants will have an opportunity to pilot their solution with DEP. The issues that the ETL aims to solve (each, a “Challenge”) will be posted on https://envirotechlab.nyc/ (the “Website”), along with a deadline for submitting solutions for each Challenge (the “Submission Deadline”). DEP anticipates multiple ETL cycles, with each cycle featuring new Challenges. Applicants may submit to multiple ETL cycles. Each ETL cycle will require new Submissions including signing this Agreement for each Submission.

   4.1. Multiple Submissions; Proper Form. You are entitled to enter multiple Submissions, and to make Submissions to one or multiple Challenges. If you plan to submit solutions to more than one Challenge, do not “mix” Challenges in a single Submission.

   4.2. Application Procedure and Deadline for Submissions. To apply, visit the Website, review the information we have provided there, and complete the application process. If you qualify, you will then have until 11:59 PM New York time (i.e., Eastern Time) on the Submission Deadline to provide your Submission. Your Submission will be date-and-time stamped via automated means on the Website, and you will not be able to submit a Submission after the deadline. You bear the risk of delays caused by outages, latency, or downtime outside the Partnership’s network.
   
   

5. Operating the ETL: Three Phases. The ETL will be conducted in three phases.

   5.1. Phase 1 - Application Phase. This is the preliminary phase of the ETL, where the Evaluators review each applicant’s submission to determine whether an applicant will advance to Phase 2.

   5.2. Phase 1 Evaluation Criteria. The Evaluators will evaluate your Submission in Phase 1 based upon the following criteria and weighting (expressed in brackets as a percentage for each criteria):

   5.2.1. Impact [25%]: the Submission is workable in the DEP environment, presents a viable solution relevant to the chosen Challenge, and has the potential to positively impact performance and/or customer experience;

   5.2.2. Product [25%]: the solution described in the Submission is in prototype or later phase and available for live demonstration, Applicant is able to present metrics or other evidence illustrating market fit, including if any of Applicant’s products are used by paying customers;

   5.2.3. Team [25%]: Applicant is qualified and has a team of compatible members with a sufficient financial position to ensure participation through the duration of the ETL cycle and is available for participation in person in New York City throughout the ETL cycle; and

   5.2.4. Value [25%]: the solution presents a new way of deriving more value from existing DEP assets, presents a potential new revenue source or cost savings for DEP and presents an opportunity to more efficiently manage infrastructure, operations or customer service.

   5.3. Phase 1 Scoring; Advancing to Phase 2. Submissions will be evaluated using the Phase 1 criteria set forth in Section 5.2. Those scores will then determine which applicants will have the opportunity to present their solution in person to the Evaluators. Submissions and in-person presentations will be scored by the Evaluators using the same Phase 1 evaluation criteria described in Section 5.2. DEP will then select which of the highest ranked submissions for each Challenge will advance to Phase 2. We will promptly notify you if your Submission is selected for Phase 2.

   5.4. Phase 2 - Prep for Potential Proof-of Concept. Phase 2 will commence after we have notified the applicants who will advance to this phase. Phase 2 will consist of an eight (8) week engagement including, without limitation, in-depth challenge and solution briefs, demonstrations, product iterations and workshops to understand the viability of the solution. Additionally, applicants chosen for Phase 2 must submit price lists for the solution.  If one does not exist or pricing is subject to multiple factors, Applicant may submit estimated pricing for its solution.

   5.5. Phase 2 Evaluation Criteria. The Evaluators will evaluate the Phase 2 submissions, presentations and other materials submitted for review as part of the ETL using the same criteria as used in Phase 1, however, weights shall be adjusted as follows:

   5.5.1. Impact [50%];

   5.5.2. Product [20%];

   5.5.3. Team [10%]; and

   5.5.4. Value [20%].

   5.6. Phase 2 DEP Confidential Information Disclosures. Please note that, subject to Section 6 (Confidentiality), we may provide Phase 2 applicants with DEP Confidential Information for further development of the solution.

   5.7. Phase 2 Scoring; Advancing to Phase 3; and Announcement of Phase 3 - Pilot Finalists. Pilot Finalists will be selected by the Evaluators based on the Phase 2 evaluation criteria set forth in Section 5.5. Once we have made our decisions, we will publicly announce the Pilot Finalists for each Challenge. DEP will decide, in its sole discretion, which applicants will be invited to engage in Phase 3: Pilot.

   5.8. Final Determination; Announcement of Winners. DEP will make the final determination as to which Pilot Finalists will be winners for each Challenge. DEP will make this determination in its best interests, and reserves the right to select the Pilot Finalist that it deems fair, reasonable, and most advantageous to DEP. DEP is the sole judge of which solutions are in its best interests, and DEP’s decision in this regard shall be final. Please note that DEP reserves the right not to select any submissions in one or more Challenges; DEP has no obligation to implement any solution. Once DEP has made its decisions, the selected Pilot Finalist(s) and DEP shall enter into a pilot agreement (“Pilot Agreement”), and we will publicly announce the winners in each Challenge following execution of the Pilot Agreement. Pilot Agreements are negotiated in accordance with Section 24 (Pilot Agreement Process) of these Terms and Conditions, and may have additional insurance and security requirements.
   
   

6. Confidentiality. A Party may provide Confidential Information (“Disclosing Party”) to the other Party (the “Receiving Party”) in connection with the ETL. DEP does not anticipate releasing Confidential Information in Phase 1. For the avoidance of doubt, no separate Applicant non-disclosure agreements or like documentation will be reviewed or executed by DEP as part of the ETL. However, Applicant understands that DEP may require Applicant to execute a separate non-disclosure agreement for certain types of DEP Data.

   6.1. Confidential Treatment. The Receiving Party shall not disclose or use the Disclosing Party’s Confidential Information except as expressly permitted under this Agreement, and shall at all times exercise reasonable care to safeguard such Confidential Information, and using at least the same degree of care that the Receiving Party uses to preserve the confidentiality of its own confidential information.

   6.2. Exceptions. Confidential Information does not include any information which is a) known by the Receiving Party at the time of its disclosure; b) becomes publicly known through no wrongful act of the Receiving Party; c) received by the Receiving Party from a third party without a restriction on its disclosure; d) independently developed by the Receiving Party; e) approved for release by the prior written consent of the Disclosing Party; or f) required to be disclosed by the New York State Freedom of Information Law, other Applicable Law, court order, or governmental agency, provided that advance notice of such requirement, if legally permissible, is given.

   6.3. Compelled Disclosure. The Receiving Party is entitled to disclose Confidential Information as necessary pursuant to any court order, or lawful requirement of a governmental agency or arbitrator (collectively, a “Disclosure Order”), or when disclosure is required by operation of law, including disclosures pursuant to any applicable securities laws and regulations. The Receiving Party shall notify the Disclosing Party of a Disclosure Order, and reasonably cooperate with the Disclosing Party, in protecting against or minimizing disclosure under the Disclosure Order, or in obtaining a protective order.

   6.4. Freedom of Information Requests. The New York State Freedom of Information Law (N.Y. Public Officers Law Section 84 et seq.) (“FOIL”) applies to the ETL and to your Submission. Although we will protect the confidentiality of your Submission as set out in this Section 6 (Confidentiality), FOIL may be interpreted to override these protections. You understand and agree that, under FOIL, your Submission might be made public.

   6.5. Duration of Your Confidentiality Obligations. You agree to protect the confidentiality of DEP’s Confidential Information for as long as the information remains outside of the exceptions listed in Section 6.2 (Exceptions), and you acknowledge that this may require you to maintain confidentiality both during and after completion of the ETL.

   6.6. Duration of Our Confidentiality Obligations. To avoid giving one applicant an unfair advantage over another during the ETL, we will protect each applicant’s submission as such applicant’s Confidential Information, up to and including the date we announce the winners. After that date, we will be entitled to publicly use and disclose the Submissions (and associated Confidential Information) in connection with our exercise of rights under Section 7 (Intellectual Property Rights).

   6.7. Internal Disclosures for Evaluation and Processing Purposes. We will disclose your Submission (and other elements of your application) to Evaluators, officials and employees of DEP and the Partnership, and our consultants, as needed, for purposes of evaluating your Submission, processing your application, monitoring compliance with this Agreement, and addressing other issues in connection with the ETL (collectively, the “Evaluation and Processing Purposes”). We will instruct each of these recipients to maintain the confidentiality of your Submission (and any associated Confidential Information) in the manner set out in this Section 6 (Confidentiality).
   
   

7. Intellectual Property Rights. We respect your Intellectual Property Rights, and balance both of our interests in these rights via this Section 7 (Intellectual Property Rights). By entering your Submission in the ETL, you agree as follows:

   7.1. Your Retention of Ownership. Although you grant us certain limited licenses (detailed below), you retain ownership of all Intellectual Property Rights that you hold in your Submitted Technology. You remain free to commercialize your Submission (and your associated Intellectual Property) and you have no obligation to share with us any compensation, fees, royalties, or other benefits that you receive from commercializing these assets.

   7.2. Limited License to Your Intellectual Property. Although you retain ownership in your Intellectual Property, you hereby grant to us an irrevocable, royalty-free, worldwide, sublicensable license to your Intellectual Property to exercise any Intellectual Property that you hold in the Submitted Technology which is restricted to uses (i) solely for purposes of evaluating, testing, prototyping, and validating the Submitted Technology (in laboratory, beta, real-time, in-the-field, and other similar environments), and (ii) solely for purposes of the Challenge for which you submitted the Submitted Technology as a solution.

   7.2.1. Restricted in Term. Our right to use your Submitted Technology is restricted in term, as follows from the time submitted in the ETL up to the end of this Agreement, whether or not this Agreement has been terminated (for cause or otherwise).

   7.2.2. Non-Exclusive. You can grant others a similar (or different) license to this Intellectual Property.

   7.2.3. Paid-Up and Royalty-Free. We do not and will not owe you compensation or further benefits when we use your Submitted Technology under this Agreement. If we hold a public procurement to which you receive an award, and we request your assistance, post-award, in connection with our evaluating, testing, prototyping, and validating the Submitted Technology (in laboratory, beta, real-time, in-the-field, and other similar environments), you agree to provide us with your assistance on commercially reasonable terms that shall be subject to the agreement of the Parties.

   7.2.4. Sublicenseable. We are entitled to permit our contractors, consultants, and other interested parties to exercise the licensed rights on our behalf, subject to their agreement to observe confidentiality requirements consistent with Section 6 (Confidentiality).

   7.3. Freedom of Action. DEP remains free and unfettered, in its discretion and at any time, to develop, commission, use, and otherwise exploit products, services, and solutions similar (or even identical) to, or competitive with, your Submitted Technology; provided DEP does not infringe valid Intellectual Property Rights owned by you (unless you have granted us these rights under this Section 7 (Intellectual Property Rights) (collectively, “Permitted Downstream Uses”). You will not be entitled to any compensation based on Permitted Downstream Uses, including in connection with any subsequent procurements (whether or not they involve Submitted Technology).

   7.4. No License to Patent Rights for Full Service Use; FRAND Obligations. Although we hold a limited license to your Intellectual Property, we emphasize that we have not asked for, and you have not provided, the right to exercise your patents for Full-Service Use. We may in the future seek such rights to your patents. If we do so, you hereby irrevocably agree to grant us, at a minimum, a non-exclusive, irrevocable, sublicenseable, Full-Service Use license on terms that are fair, reasonable, and non-discriminatory (so-called “FRAND” licensing terms). Such pricing shall be competitive with (or more favorable to us than) comparable third party solutions available on the market.
   
   

8. DEP Data.

   8.1. Grant of Rights in DEP Data. In the event you are selected to move on to Phase 2, if DEP shares any DEP Data with you such data is subject to the terms and conditions of this Agreement, including those set out in Section 6 (Confidentiality) and Section 9 (Privacy). DEP, under its Intellectual Property Rights, hereby grants to you during the term of this Agreement a limited, non-exclusive, non-transferrable, non-sublicensable license to copy, modify, display, adapt, and use DEP Data, but solely for the purpose of fulfilling your obligations to DEP under this Agreement and for no other purpose. You further acknowledge that the rights granted to you pursuant to this Section 8.1 (Grant of Rights in DEP Data) shall immediately terminate upon termination or expiration of this Agreement.

   8.2. Ownership of DEP Data. DEP owns all right, title and interest to the DEP Data, and in and to all associated Intellectual Property Rights. By way of clarification and not limitation, applicants and Pilot Finalists cannot resell, re-package or otherwise monetize any part of DEP Data to which they gain access as part of the ETL.

   8.3. DEP Data and Open Standards. In the event you are a Pilot Finalist, your Submitted Technology must rely on a data exchange and data format based on “Open Standards”, or industry standards that define data formats and protocols rather than proprietary formats and protocols. By way of clarification, all DEP Data shall be stored in the Submitted Technology in an industry-standard format that is not proprietary to you and that meets the requirements for Open Standards. All applicants must provide to DEP, either (i) direct access to, or (ii) a digital file of, all DEP Data or DEP-based data that is created, processed or otherwise generated by your Submitted Technology as part of the ETL; and such DEP Data or DEP-based data must be accessible and/or provided in a structured, machine-readable, non-proprietary format within twenty-four (24) hours of DEP’s request for such.
   
   

9. Privacy.

   9.1. Personal Information. We will collect personal information from Applicant in connection with the ETL. This information will be used only for evaluation and processing purposes (except as provided in Section 9.2 (Permitted Use of Name and Likeness), and will otherwise be subject to the New York City Identifying Information Law (Local Laws 245 and 247 of 2017) and any other Applicable Laws.

   9.2. Permitted Use of Name and Likeness. If you become a Pilot Finalist, you agree to permit DEP to use for publicity, advertising and promotional purposes (“Publicity Purposes”): (a) your name and likeness, (b) your town or city and state, (c) Submission information, and (d) statements you make about the ETL, all without additional permission or any compensation.

   9.3. Responsibility Reviews and Background Checks. In connection with our review of a Phase 3 Submission, we reserve the right to require Applicant to undergo a background check and/or contractor responsibility review via the City’s Procurement and Sourcing Solutions Portal (PASSPort). If Applicant declines to submit to this background check and/or contractor responsibility review, or if warranted by the results of the background check and/or contractor responsibility review, we may disqualify Applicant from, or impose conditions on continued participation in, the ETL. In DEP’s sole discretion, DEP may conduct responsibility reviews and/or background checks as to Applicant’s principals, officers, directors, employees, and entities that (directly, or indirectly through one or more intermediaries) control, are controlled by, or are under common control with Applicant.
   
   

10. Representations, Warranties, and Disclaimers.

    10.1. Your Representations and Warranties. In connection with your Submission and participation in the ETL, you represent and warrant that:

    10.1.1. The information you provided in your Submission is true and accurate to the best of your knowledge and ability;

    10.1.2. Your Submission does not and will not infringe a third party’s Intellectual Property Rights;

    10.1.3. Applicant has not previously assigned, pledged, licensed or otherwise encumbered any rights or interest in, or to, any component of its Intellectual Property in any way that would interfere with or prevent the grant of the licenses and assignments of such property described in this Agreement;

    10.1.4. Applicant, in its actions in connection with this Agreement, shall comply with all Applicable Laws; and

    10.1.5. The signatory has the ability to execute all documents on behalf of Applicant.

    10.2. Disclaimer of Warranties; Release. DEP MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE QUALITY, ACCURANCY OR COMPLETENESS OF ANY DEP DATA. YOU HEREBY RELEASE THE CITY, ITS OFFICIALS, EMPLOYEES, CONTRACTORS, AND CONSULTANTS, THE EVALUATORS, AND ADVISORS TO THE ETL (COLLECTIVELY, THE “RELEASED PARTIES”) FROM ANY AND ALL LIABILITY FOR LOSS, HARM, DAMAGE, INJURY, COST OR EXPENSE WHATSOEVER WHICH MAY OCCUR IN CONNECTION WITH OR PARTICIPATION IN THE ETL OR THE ACCEPTANCE, USE, MISUSE OR NON-USE OF ANY SUBMISSION.
    
    

11. Limitation of Liability.

    11.1. All-Inclusive Liability Limitation; Limited and Sole Exception for DEP License Violations. TO THE FULLEST EXTENT PERMITTED BY LAW, THE RELEASED PARTIES SHALL NOT BE LIABLE FOR DAMAGES OR LOSSES OF ANY KIND, INCLUDING DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES ARISING OUT OF THE ETL INCLUDING, BUT NOT LIMITED TO, THE AWARD, SUBMISSIONS, OR ANY ACTIVITIES IN CONNECTION WITH THE ETL, WITH THE SOLE AND EXCLUSIVE EXCEPTION THAT DEP SHALL BE RESPONSIBLE FOR DAMAGES CAUSED BY ITS EXCEEDING THE SCOPE OF THE LICENSES GRANTED TO IT IN SECTION 7 (Intellectual Property Rights) (a “DEP License Violation”), ALL AS SPECIFIED AND EXPRESSLY LIMITED IN SECTION 11.2 (DEP License Violations). IN NO EVENT SHALL THE RELEASED PARTIES' TOTAL AGGREGATE LIABILITY FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION EXCEED USD $5.00 (Five Dollars), WITH THE EXCEPTION THAT THE LIMIT OF LIABILITY OF DEP FOR DEP LICENSE VIOLATIONS SHALL BE AS SET FORTH IN SECTION 11.2 (DEP License Violations).

    11.2. DEP License Violations. IN NO EVENT SHALL DEP’S TOTAL AGGREGATE LIABILITY FOR ALL DAMAGES, LOSSES, JUDGEMENTS, OR CAUSES OF ACTION ARISING FROM DEP LICENSE VIOLATIONS EXCEED USD $10,000.00 (Ten Thousand Dollars).
    
    

12. Limitations and Controls.

    12.1. ETL Coordinators; Permitted Communication Channels. Please communicate any questions or requests for assistance directly to the Partnership using the process specified on the Website. Do not communicate with the Evaluators or DEP, or ask questions about the ETL (or otherwise communicate about the ETL) with the Evaluators or DEP, the Partnership, or their officers, officials, employees, consultants, or contractors, unless an ETL coordinator is present. This prohibition is designed to prevent the appearance (or occurrence) of favoritism, unfair access, or other conflicts of interest. Applicants that fail to comply with these requirements may be disqualified from the ETL.

    12.2. Consent to Electronic Transactions. During the ETL, we plan to communicate with you electronically – and conduct ETL-related transactions with you electronically – using email, notices on the Website, and other electronic means. You agree to receive, exchange, and engage in these types of electronic communications with us.

    12.3. Acceptable Use Policy. You are prohibited from using the Website or other resources or functions associated with the ETL: (a) in a way prohibited by Applicable Law; (b) to violate the legal rights of others, to cheat, to plagiarize, or to engage in other unfair or deceptive activities; (c) to gain or attempt to gain unauthorized access to or disrupt any device, data, account, service, or network associated with the ETL; (d) to distribute spam or malware; or (e) in a way that could harm the operations or functionality of the Website or interfere with the ETL.

    12.4. Change in Circumstances. We reserve the right to terminate, modify, extend, or suspend the ETL if we determine, in our sole discretion (a “Change in Circumstances”). In such case, we may select Pilot Finalists from eligible Submissions received prior to and/or after (if appropriate) the Change in Circumstances.
    
    

13. Indemnification. Applicant agrees to indemnify, defend, and hold harmless the City, including its officials and employees, and the City’s contractors, consultants, the Evaluators and advisors to the ETL, from and against any and all claims (even if the allegations of the claim are without merit), demands, judgements for damages, causes of action, losses, damages, costs and expenses (including reasonable attorneys’ fees) allegedly arising out of or relating to: (i) Applicant’s breach of any of the terms, representations, warranties or covenants of this Agreement; (ii) any allegation that the Submission and/or Submitted Technology infringes or violates the Intellectual Property Rights of a third party; (iii) Applicant’s unauthorized use of any Intellectual Property Rights of a third party; (iv) any unauthorized possession, security breach, use or knowledge of DEP Confidential Information, or any attempted unauthorized possession or use or knowledge thereof (or any system on which DEP Confidential Information may be stored or maintained) by any person or entity; (v) acts or omissions of Applicant, or any of its officers, directors, employees, agents or representatives; (vi) bodily injury, including death, or damage to tangible property caused by Applicant; or (vii) Applicant’s failure to comply with Applicable Law.
    
    

14. Term. This Agreement shall begin on the Effective Date and remain in full force and effect until the earlier of (a) termination in accordance with Section 15 (Termination) or (b) the announcement of one or more Pilot Finalists. Any Pilot Finalists who move on to Phase 3 of a Challenge must execute the Pilot Agreement, and all terms and conditions of the Pilot Agreement shall supersede this Agreement.
    
    

15. Termination. You have the right to withdraw from the ETL at any point by following the directions on the Website. We have the right, for the reasons and on the grounds we have specified above (a) to disqualify you from the ETL and/or (b) to terminate this Agreement (for reasons other than your disqualification).

    15.1. Effect of Termination. Upon termination of this Agreement for whatever reason, you will return to DEP, or certify that you have destroyed, DEP Confidential Information and any derivatives thereof.

    15.2. Survival. The following Sections shall survive expiration or termination of this Agreement for any reason or cause: Section 6.5 (Duration of Your Confidentiality Obligations); Section 7 (Intellectual Property Rights); Section 10 (Representations, Warranties, and Disclaimers); Section 11 (Limitation of Liability); Section 13 (Indemnification); Section 15.2 (Survival); and Section 16 (Dispute Resolution).
    
    

16. Dispute Resolution. In the event of a dispute related to the terms of this Agreement or performance of any work under this Agreement, or issues related thereto, DEP and Applicant shall attempt to resolve such dispute. If resolution cannot be reached, this Agreement may be terminated. Nothing in this dispute resolution provision shall prohibit either Party from seeking judicial relief as allowed by Applicable Law.
    
    

17. Governing Law. This Agreement, and the rights and obligations of the Parties hereto, shall be construed and enforced in all respects in accordance with the laws of the State of New York, without regard to any jurisdiction’s choice of law or conflict of law rules, laws or doctrines.
    
    

18. Exclusive Jurisdiction; Procedure. The Parties agree that any and all claims asserted by or against the City arising under or related to this Agreement shall solely be heard and determined either in the courts of the United States located in the City or in the courts of the State located in the City and County of New York. Each Party waives objection to the personal jurisdiction of such court, and the laying of venue in such judicial district.
    
    

19. Accessibility. We are committed to making the ETL accessible to all innovators. If you require assistive technology or other accommodation in order to complete the application process, please contact us using the Website.
    
    

20. Definitions. Capitalized terms have the following meanings:

    20.1. “Applicable Law” means laws, rules and regulations that govern the ETL, DEP’s sponsorship of the ETL, and Applicant’s participation in and activities concerning the ETL. “Applicable Law” includes federal, State, and local laws, as well as the laws of jurisdictions other than the U.S. to the extent Applicant is subject to those laws.

    20.2. “Applicant” means the entity that provided a Submission to the ETL and meets the eligibility criteria for participating in the ETL, as set out in Section 3 (Eligibility).

    20.3. “Confidential Information” means information in any form that meets the following two criteria: the information (a) is not publicly available, and (b) is marked or otherwise identified as "CONFIDENTIAL" or any other similar legend by the Disclosing Party, or is obtained under circumstances such that the Receiving Party knew or reasonably should have known that the information should be treated confidentially. Subject to Section 6.2 (Exceptions), Confidential Information might include designs, specifications, software, and prototypes, as well as other technical, financial, business, and security-related information.

    20.4. “Effective Date” means the date you accept these terms in accordance with Section 2 (Your Acceptance of this Agreement).

    20.5. “Evaluators” may mean (a) members of the Project Evaluation Committee, comprised of subject matter experts and/or (b) DEP personnel involved in evaluating a Submission for any Phase and/or final determination.

    20.6. “Family Member” means (i) the spouse, domestic partner, child, or sibling of the ineligible individual or the domestic partner’s child; or (ii) a person who is a direct descendant (or the spouse of a direct descendant) of a grandparent of the ineligible individual, or a grandparent of the ineligible individual’s spouse or domestic partner.

    20.7. “Intellectual Property” or “Intellectual Property Rights” means the following rights, under Applicable Law: (a) patents, patent disclosures and inventions, whether registered or unregistered and including all applications for, and all renewals, reissues, reexaminations, extensions, divisions, continuations, continuations in part and counterparts (“Patent Rights”); (b) trademarks, service marks, trade dress, trade names, logos, corporate names and domain names, whether registered or unregistered, together with all of the goodwill associated therewith (“Trademark Rights”); (c) copyrights and copyrightable works (including computer programs), mask works and rights in data and databases (“Copyrights”); (d) trade secrets, know-how and other confidential information (“Trade Secret Rights”); and (e) any and all ideas and concepts (“Idea Rights”).

    20.8. “DEP Data” means, collectively: (i) any information that DEP provides to you, or information belonging to DEP to which you otherwise have access to, in connection with the ETL; (ii) any information, data, reports, studies, recommendations, or other information that you make or develop that uses any information described in (i) in connection with, or resulting from, the ETL; and (iii) derivatives of (i) and (ii) above.

    20.9. “Party” or “Parties” means DEP, Applicant, or both DEP and Applicant.

    20.10. “Submission” means the materials that you submit for our evaluation in connection with and pursuant to Section 4 (The Environmental Tech Lab). The term “Submission” applies to the materials you provide in Phase 1 and Phase 2 (if you advance to Phase 2), and includes all Submissions, regardless of whether such Submission is selected by DEP to advance in the ETL.

    20.11. “Submitted Technology” means all products, processes, designs, ideas, and technologies disclosed in your Submission.
    
    

21. Funding Disclaimer. DEP disclaims any endorsement of any source of funding for the ETL.
    
    

22. General Provisions. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. Each and every provision required by Applicable Law to be inserted in this Agreement is hereby deemed to be a part of this Agreement, whether actually inserted or not. Headings are for reference purposes only and in no way define or limit the section they introduce. Waiver by either Party of a breach of any provision of this Agreement shall not be deemed to be a waiver of any other or subsequent breach and shall not be construed to be a modification of the terms of this Agreement. This Agreement, including Exhibits A through D, sets forth the entire understanding and agreement between the Parties with respect to the ETL, and supersedes any prior or contemporaneous understanding, whether written or oral. For the avoidance of doubt, the terms and conditions of this Agreement shall solely govern the ETL process leading up to the execution of a Pilot Agreement, if applicable; no Applicant-submitted terms and conditions shall be accepted, including any non-disclosure and confidentiality terms. No official, employee, or agent of the City shall be liable personally by reason hereof. No claim whatsoever shall be made by Applicant against any official, agent or employee of the City in their individual capacities for, or on account of, anything done or omitted to be done in connection with this Agreement. The provisions of this Agreement shall not be deemed to create any right of action in favor of third parties against Applicant or the City or their respective officials and employees. Although we expect and encourage the translation of this Agreement into languages other than English, for legal purposes the English-language version of this Agreement will govern our relationship.
    
    

23. Contact Us. Contact us using the links provided on the Website.
    
    

24. Pilot Agreement Process. This Section 24 (Pilot Agreement Process) provides applicants with access to the ETL Pilot Agreement template and details the process required to finalize the Pilot Agreement. Supplemental to the Pilot Agreement template are baseline DEP IT security requirements, which will be made available to Applicant if it advances to Phase 2 to allow Applicant to make an informed decision about whether it can accept the terms of the Pilot Agreement prior to the eight (8)-week Proof of Concept.