Terms & Conditions
Last updated: January 20, 2023
These Carbonhound Terms of Service (together with any Order Forms, attachments, exhibits, and/or addendums hereto, as amended from time to time, collectively the “Agreement”) form an agreement between the customer (the “Customer”) and Carbonhound, Inc. (“Carbonhound”) under which the Customer accesses, and uses the Carbonhound carbon management application hosted by Carbonhound and delivered as a software-as-a-service (the “Carbonhound Platform” ) and permits the Customer to subscribe for Additional Services (as defined below), and is entered into on the earlier of the date Customer first uses any part of the Carbonhound SaaS Services and the date Customer agrees to be bound by this Agreement (the “Effective Date”). Each of Carbonhound and Customer shall individually be referred to as a “Party” and jointly as the “Parties”.
This Agreement sets forth the terms and conditions that govern the provision and use of the Services.
BY USING THE CARBONHOUND PLATFORM (INCLUDING THE WEBSITE), CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ, ACCEPTS AND AGREES TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, AS AMENDED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 11(k). IF CUSTOMER DOES NOT ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT, CUSTOMER WILL IMMEDIATELY CEASE ANY FURTHER USE OF THE CARBONHOUND PLATFORM. CUSTOMER REPRESENTS AND WARRANTS TO CARBONHOUND THAT CUSTOMER HAS THE CAPACITY TO ENTER INTO THIS LEGALLY BINDING AGREEMENT. IF CUSTOMER IS USING THE CARBONHOUND PLATFORM ON BEHALF OF ANOTHER PERSON, CUSTOMER HEREBY REPRESENTS AND WARRANTS TO CARBONHOUND THAT CUSTOMER HAS THE AUTHORITY TO BIND SUCH PERSON TO THIS AGREEMENT.
THE CARBONHOUND SAAS SERVICES MAY NOT BE ACCESSED FOR PURPOSES OF MONITORING THEIR AVAILABILITY, PERFORMANCE OR FUNCTIONALITY, OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES.
Carbonhound SaaS Services
- Provisioning of the Carbonhound SaaS Services. Subject to Customer’s and its Permitted Users’ compliance with the terms and conditions of this Agreement, Carbonhound will make the Carbonhound SaaS Services available to Customer and Permitted Users on the terms and conditions set out in this Agreement during the Term.
- Restrictions on Use. Customer will not itself, and will not permit others to:
- sub-license, sell, rent, lend, lease or distribute the Carbonhound Platform or any Intellectual Property Rights therein, or otherwise make the Carbonhound Platform available to others other than Permitted Users;
- use the Carbonhound Platform to permit timesharing, service bureau use or commercially exploit the Carbonhound Platform;
- use or access the Carbonhound Platform:
- in violation of any Applicable Law;
- in a manner that threatens the security or functionality of the Carbonhound Platform; or
- for any purpose or in any manner not expressly permitted in this Agreement;
- use the Carbonhound Platform to create, collect, transmit, store, use or process any Customer Data:
- that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data;
- that Customer does not have the lawful right to create, collect, transmit, store, use or process; or
- that infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity);
- use the Carbonhound Platform to create, collect, transmit, store, use or process any Customer Data:
- Modify the Carbonhound Platform;
- reverse engineer, decompile or disassemble the Carbonhound Platform;
- remove or obscure any proprietary notices or labels on the Carbonhound Platform, including brand, copyright, trademark or patent or patent pending notices;
- access or use the Carbonhound Platform for the purpose of building a similar or competitive product or service;
- perform any vulnerability, penetration, or similar testing of the Carbonhound Platform; or
- use the Carbonhound Platform for any purpose or in any manner not expressly permitted in this Agreement.
- Permitted Purpose. Customer may access and use the Carbonhound Platform solely for Customer’s internal business purposes, except that Customer may share with Customer’s stakeholders.
- Regulatory Compliance. Notwithstanding anything to the contrary in this Agreement, Customer acknowledges that, although the Carbonhound Platform may be used to administer compliance: (i) the Carbonhound Platform does not provide compliance, legal advice, environmental, regulatory or other guidance on which Customer can or should rely; and (ii) it is Customer’s responsibility to verify the Applicable Laws and determine the specific actions to be taken by Customer and implemented in the Carbonhound Platform or otherwise by Customer to comply with such Applicable Law.
- Suspension of Access; Scheduled Downtime; Modifications. Carbonhound may, from time to time and in its discretion, without limiting any of its other rights or remedies at law or in equity, under this Agreement:
- suspend Customer’s access to or use of the Carbonhound Platform or any component thereof:
- if Customer or any Permitted User violates any provision of this Agreement;
- for scheduled maintenance;
- to address any emergency security concerns;
- if required to do so by a regulatory body or as a result of a change in Applicable Law; or
- for any other reason as provided in this Agreement, provided that Carbonhound will use reasonable endeavors to give Customer reasonable advance notice of any limitation or suspension so that Customer can plan around it or address the issue that has prompted Carbonhound to take such action. There may be some situations, such as security emergencies, where it is not practicable for Carbonhound to give such advance notice. Carbonhound will use commercially reasonable efforts to narrow the scope and duration of the limitation or suspension as is needed to resolve the issue that prompted such action.
- Modify the Services.
- suspend Customer’s access to or use of the Carbonhound Platform or any component thereof:
- Customer is required to accept all patches, bug fixes and updates made by or on behalf of Carbonhound to the Carbonhound Platform.
- Subcontracting. Carbonhound may engage third parties to assist it in providing the Carbonhound Platform, the Additional Services or any part thereof, provided that Carbonhound will remain responsible for all its obligations under this Agreement.
- Referrals and Third-Party Services. Carbonhound may share your information with third parties, including but not limited to: Carbonhound’s referral partners, utility companies, and third-party consultants, to assist with carbon management using the Carbonhound Platforms or Additional Services, including Patch Technologies, Inc. (“Patch”), a carbon credit management and carbon credit certification agency. Any interaction with Patch is subject to the “Patch Terms of Service” including other documents referred to in such agreement (collectively, the “Patch Terms”), as may be modified by Patch in accordance with the Patch Terms. By using or engaging with Patch’s services, you agree to be bound by the respective obligations set out in the Patch Terms.
- Additional Services. Carbonhound will make available Additional Services as set out in an applicable Order Form. Such Additional Services may include providing access carbon offset providers and consultants to assist with managing carbon footprints and preparing a carbon reduction plan.
- Third-Party Products. The Carbonhound Platform may contain or require the use of Licensed Third-Party Technology or other third-party products that are owned by third parties (collectively “Third-Party Products”). Customer will accept and comply with the license terms applicable to Third-Party Products. If Customer does not agree to abide by the applicable license terms for any such Third-Party Products, then Customer should not install, access, or use such Third-Party Products. Any acquisition by Customer of such Third-Party Products, and any exchange of data between Customer and any such provider of Third-Party Products is solely between Customer and the applicable Third-Party Products provider. Carbonhound does not warrant or support Third-Party Products or other third-party products, offerings or services, whether or not they are designated by Carbonhound as “certified” or otherwise. Carbonhound cannot guarantee the continued availability of such Third-Party Products features, and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a Third-Party Products ceases to make the Third-Party Products available for interoperation or otherwise in connection with the corresponding service features in a manner acceptable to Carbonhound. Carbonhound is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such Third-Party Products or its provider.
- Upon Customer’s request, Carbonhound will issue one or more accounts (the “Customer User Account”) to Customer, each for use by one user that will use and access the Carbonhound Platform (each, a “Permitted User”).
- Customer will ensure that each Permitted User only uses SaaS Services through such Permitted User’s Customer User Account. Customer is responsible for identifying and authenticating all Permitted Users and for ensuring only Permitted Users access and use SaaS Services. Customer shall ensure that all Permitted Users comply with this Agreement and that none of the Permitted Users bring or maintain any claim against Carbonhound, its partners, employees, officers, directors, Affiliates, agents, contractors, successors, and assigns and those of its Affiliates in respect of any matter related to or in connection with the subject matter of this Agreement.
- Customer will not allow any Permitted User to share such Permitted User’s Customer User Account with any other Person. Customer will promptly notify Carbonhound of any actual or suspected unauthorized use of SaaS Services. Carbonhound reserves the right to suspend, deactivate or replace any Customer User Account if it determines that a Customer User Account may have been used for an unauthorized purpose, and will notify Customer of such suspension, deactivation or replacement as soon as reasonably possible.
- The Customer will ensure that all individual users of the Carbonhound Platform, including Permitted Users, are contractually bound to terms and conditions with the Customer that are no less restrictive or protective of Carbonhound’s rights than those set forth in this Agreement.
Ownership; Reservation of Rights
- The Customer retains all ownership and Intellectual Property Rights in and to Customer Data. Customer grants to Carbonhound, and its subcontractors a nonexclusive, worldwide, royalty-free, irrevocable, sublicensable, and fully paid-up right to access, collect, use, process, store, disclose, transfer, transmit, copy, Modify and display Customer Data to:
- provide the Services;
- improve and enhance the Services and its other offerings, including third-parties providing Additional Services such as Carbonhound’s consultants, subcontractors, and referral partners; and
- produce and/or generate data, information, or other materials that are anonymized and not identified as relating to a particular individual or company (such data, information and materials, the “Aggregated Data”)
Carbonhound may use, process, store, disclose and transmit the Aggregated Data for any purpose and without restriction or obligation to Customer of any kind. As between Carbonhound and Customer, all right, title, and interest in Aggregated Data, and all Intellectual Property Rights therein, belong to and are retained solely by Carbonhound.
- The Customer acknowledges that Carbonhound receives or accesses Customer Data from third party sources, such as utilities, based on Customer’s consent or provision of permission to such third parties, including in some cases the provision of log in credentials for third party sites. Customer will be responsible for complying with any third-party agreements related to such sites and provided Carbonhound complies with the terms of this Agreement, Carbonhound will have no liability either to the third-party provider or the Customer as a result of it receiving Customer Data from such sources. Carbonhound or its licensors retain all ownership and Intellectual Property Rights in and to:
- the Services;
- anything developed or delivered by or on behalf of Carbonhound under this Agreement;
- all other Carbonhound’s Confidential Information, including but not limited to, any reports generated from the Carbonhound Platform or any Aggregated Data;
- any Modifications to the foregoing (i), (ii) and (iii)
(collectively “Carbonhound Property”).
- Customer grants to Carbonhound and it’s affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Carbonhound Platform, any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Permitted Users relating to the operation of Services or any of Carbonhound’s affiliates’ services (“Feedback”). Nothing in this Agreement will restrict our right to use, profit from, disclose, publish or otherwise exploit any Feedback, without compensation to the Customer or Permitted Users and without any obligation to the Customer or any Permitted User. Carbonhound is not obligated to use any Feedback.
- All rights not expressly granted by Carbonhound to Customer under this Agreement are reserved.
- Carbonhound shall treat all Personal Information in accordance with privacy and data protection laws applicable to Carbonhound.
- Carbonhound has implemented appropriate technical and organizational measures to enable a level of security appropriate to the risk of unauthorized or unlawful processing, accidental loss of and/or damage to Customer Data.
- Carbonhound shall notify Customer (unless prohibited by Applicable Law), without undue delay (any in any event within 48 hours) upon Carbonhound becoming aware of any actual theft, loss or unauthorized access, use or disclosure of Personal Information being processed by Carbonhound on behalf of Customer (“Privacy Breach”), and reasonably cooperate with Customer, at Customer’s cost, in notifying individuals affected by a Privacy Breach and other persons in accordance with privacy and data protection laws.
Fees and Payment
- Fees. Customer will pay to Carbonhound the fees described in an Order Form based on Customer size (“Fees”). Unless otherwise noted on an Order Form: (i) all Fees are identified in United States dollars; (ii) Fees are non-cancelable and non-refundable; and (iii) quantities purchased cannot be decreased during the relevant subscription term. If Customer’s use of the Carbonhound Platform exceeds the service capacity set forth on an Order Form, the Customer’s size stated in the Order Form is inaccurate, or otherwise requires the payment of additional fees pursuant to the terms of this Agreement, the Customer will be billed for such usage and Customer will pay the additional fees in accordance with this Agreement.
- Changes to the Fees. Carbonhound reserves the right to change the Fees and institute new charges on each anniversary of the Term upon providing not less than 30 days prior notice to Customer.
- Invoicing. Unless covered by Section 5(h) through the Payment Processor, Carbonhound will prepare and send to the Customer, at the then-current contact information on file with Carbonhound, an invoice for any Fees that have become due and payable. Unless otherwise expressly stipulated in an invoice, Customer will pay all invoiced amounts within 30 days of the invoice date.
- Disputed Invoices or Charges. If the Customer believes Carbonhound has charged or invoiced the Customer incorrectly, the Customer must contact Carbonhound no later than 30 days after having been charged by Carbonhound or receiving such invoice in which the error or problem appeared to request an adjustment or credit. In the event of a dispute, the Customer will pay any undisputed amounts in accordance with the payment terms herein, and the Parties will discuss the disputed amounts in good faith to resolve the dispute.
- Late Payment. The Customer may not withhold or setoff any amounts due under this Agreement. Carbonhound reserves the right to suspend the Customer’s access to the Services and any delivery of Professional Services until all due and undisputed amounts are paid in full. Any late payment will be increased by the costs of collection (if any) and will incur interest at the rate of one and a half percent (1.5%) compounded monthly (19.56% annually), or the maximum legal rate (if less), plus all expenses of collection, until fully paid. Without limiting Carbonhound other rights, Carbonhound may suspend Customer’s access to or its performance of the Services, if Customer has not paid the applicable Fees within 10 days of the date that such Fees become due.
- Taxes. The Fees set out in this Agreement do not include applicable sales, use, gross receipts, value-added, excise, personal property or other taxes. Customer will be responsible for and pay all applicable taxes, duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with this Agreement other than taxes based on the net income or profits of Carbonhound.
- Suspension. Any suspension of the Services by Carbonhound pursuant to the terms of this Agreement will not excuse Customer from its obligation to make payments under this Agreement.
- Payment Processing. The payment processing component of the Applications is provided by the third-party payment processing provider, Stripe Payments Canada, Ltd. or its affiliates (“Payment Processor”). This payment processing is subject to the Stripe Connected Account Agreement including other documents referred to such agreement (collectively, the “Payment Processing Agreement”), as modified by the Payment Processor in accordance with the Payment Processing Agreement. By using the payment processing component of the Application, you agree to be bound by the applicable terms of the Payment Processing Agreement.
- Definitions. For the purposes of this Agreement, a Party receiving Confidential Information (as defined below) will be the “Recipient”, the Party disclosing such information will be the “Discloser” and “Confidential Information” of the Discloser means any and all information of the Discloser or any of its licensors that has or will come into the possession or knowledge of the Recipient in connection with or as a result of entering into this Agreement, including information concerning the Discloser’s past, present or future customers, suppliers, technology or business, and where the Discloser is Customer includes Customer Data; provided that the Discloser’s Confidential Information does not include, except with respect to Personal Information: (i) information already known or independently developed by the Recipient without access to the Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of the Recipient; or (iii) information received by the Recipient from a third party who was free to disclose it without confidentiality obligations.
- Confidentiality Covenants. The Recipient will not, except to exercise its license rights or perform its obligations under this Agreement:
- disclose Confidential Information of the Discloser to any person, except to:
- in the case of Customer to its own employee having a “need to know” and that have entered into written agreements no less protective of such Confidential Information than this Agreement, and to such other recipients as the Discloser may approve in writings; or
- in the case of Carbonhound to Carbonhound’s employees, consultants, agents or affiliates, having a “need to know” and that have entered into written agreements no less protective of such Confidential Information than this Agreement; to such other recipients as the Discloser may approve in writing; and to its subcontractors or contractors to perform the Services;
- use Confidential Information of the Discloser; or
- alter or remove from any Confidential Information of the Discloser any proprietary legend.
Each Party will take industry standard precautions to safeguard the other Party’s Confidential Information, which will in any event be at least as stringent as the precautions that the Recipient takes to protect its own Confidential Information of a similar type.
- Exceptions to Confidentiality. Notwithstanding Section 6(b), the Recipient may disclose the Discloser’s Confidential Information: (i) to the extent that such disclosure is required by Applicable Law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; or (ii) to its legal counsel and other professional advisors, if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business.
Warranty and Disclaimer
- Carbonhound Warranty. Carbonhound warrants that it will comply with all Applicable Laws appliable to Carbonhound in its performance of the SaaS Services. [Note from Carbonhound: From pilot agreement.]
- Customer Warranty. Customer represents and warrants to and covenants with Carbonhound that the Customer Data will only contain Personal Information in respect of which Customer has provided all notices and disclosures (including to each Permitted User), obtained all applicable third party consents and permissions and otherwise has all authority, in each case as required by and in compliance with Applicable Laws, including applicable privacy laws, to enable Carbonhound to provide the Services, including without limitation with respect to the collection, storage, access, use, disclosure, processing and transmission of Personal Information, including by or to Carbonhound and to or from all applicable third parties; and
- GENERAL DISCLAIMER. EXCEPT AS EXPLICITLY PROVIDED IN THIS AGREEMENT, CARBONHOUND DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE SERVICES (OR ANY PART THEREOF) AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY CARBONHOUND TO CUSTOMER ARE PROVIDED “AS IS” AND “AS AVAILABLE”. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CARBONHOUND HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, CARBONHOUND EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE SERVICES OR ANY SERVICES (OR ANY PART THEREOF), IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.
- Carbonhound’s Indemnity.
- Carbonhound will indemnify, defend, and hold harmless the Customer and its officers, directors, employees, and agents (each, a “Customer Indemnitee”) from and against any and all Losses incurred by a Customer Indemnitee arising out of or relating to any claim, action, demand, inquiry, audit, proceeding, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity or otherwise (collectively, an “Action”) by a third party (other than an Affiliate or a Customer Indemnitee) that arise from or relate to any allegation that the Carbonhound Platform infringe any third-party Intellectual Property Right. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any: (A) incorporation of any Carbonhound Platform into, or any combination, operation, or use of any Carbonhound Platform with, any products or services not provided or authorized by Carbonhound, unless such infringement would also have resulted solely from the use of the Carbonhound Platform without their incorporation in, or combination, operation or use, with such other products or services; (B) modification of any Carbonhound Platform other than by Carbonhound or with Carbonhound’s express written approval; (C) unauthorized use of the Carbonhound Platform; or (D) Customer’s indemnity in Section 8(b). THE FOREGOING IS CARBONHOUND’S SOLE AND EXCLUSIVE LIABILITY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OR MISAPPROPRIATION OF ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
- If the Carbonhound Platform is, or in Carbonhound’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if the Customer’s use of any Carbonhound Platform is enjoined or threatened to be enjoined, Carbonhound may, at its option and sole cost and expense:
- obtain the right for the Customer to continue to use the affected Carbonhound Platform materially as contemplated by this Agreement;
- modify or replace Carbonhound Platform, in whole or in part, to seek to make the Carbonhound Platform (as so modified or replaced) non-infringing while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Carbonhound Platform under this Agreement; or
- if Carbonhound determines that neither of the foregoing two options are reasonably available, then this Agreement may be terminated by Carbonhound and Carbonhound’s sole liability, in addition to the indemnification obligations herein, will be to refund prepaid unused Fees attributable to any Carbonhound Platform that were to be provided after the effective date of termination.by written notice to the Customer, terminate the Services, in whole or in part, and require the Customer to immediately cease all use of the terminated Services or part or feature thereof and refund any unused prepaid Fees for the terminated Services, if applicable.
THE FOREGOING IS IN LIEU OF ANY REPRESENTATION, COVENANTS OR WARRANTIES OF NONINFRINGEMENT, WHICH ARE DISCLAIMED.
- Customer Indemnity. The Customer will defend, indemnify and hold harmless Carbonhound, and its officers, directors, employees and agents (each, a “Carbonhound Indemnitee”) from and against any and all Losses incurred by a Carbonhound Indemnitee arising out of or relating to any Action by a third party (other than an Affiliate of a Carbonhound Indemnitee) that arise from or relate to: (i) Customer Data; (ii) Customer’s breach of any of Customer’s obligations, representations, warranties or covenants under this Agreement; (iii) unauthorized use of the Services by the Customer or any Permitted User; or (iv) use of the Services (or any part thereof) by Customer or any Permitted User in combination with any third party software, application or service. Customer will fully cooperate with Carbonhound in the defense of any claim defended by Customer pursuant to its indemnification obligations under this Agreement and will not settle any such claim without the prior written consent of Carbonhound.
- Indemnification Procedure. Each Party will promptly notify the other Party in writing of any Action for which such Party believes it is entitled to be indemnified pursuant to this Section 8. The Party seeking indemnification (the “Indemnitee”) will cooperate with the other Party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor will promptly take control of the defense and investigation of such Action (although the Indemnitor shall not settle any claim without the Indemnitee’s prior written consent) and will employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 8(c) will not relieve the Indemnitor of its indemnity obligations under this Section 8 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
Limitation of Liabilities
The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
- AMOUNT. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF CARBONHOUND IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER FOR THE SERVICES IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL CARBONHOUND’S THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
- TYPE. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL CARBONHOUND BE LIABLE TO CUSTOMER OR ANY PERMITTED USER FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST OR LOSS OF (A) SAVINGS, (B) PROFIT, (C) DATA, (D) USE, OR (E) GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.
Term and Termination
- Term. Unless otherwise stated in an Order Form, this Agreement will commence on the Effective Date and continue to be in effect for a period of 1 year (the “Initial Term”). The Term will automatically renew for successive periods of 1 year (each a “Renewal Term”), unless either Party provides the other Party with written notice of its intention not to renew not less than 30 days prior to the end of the then current Term (each, a “Renewal Term” and together with the Initial Term, the “Term”).
- Termination by Carbonhound. In addition, and not withstanding anything to the contrary in this Agreement, Customer’s and all Permitted Users’ access to the Services may be terminated or suspended by Carbonhound at any time at Carbonhound’s sole discretion. Carbonhound may immediately terminate Customer’s right to use the Services or this Agreement: (1) if Carbonhound believes that Customer or any Permitted User has violated this Agreement; (2) if Carbonhound believes the use of Customer Data with the Services is not in Carbonhound’s or its users’ best interests; (3) if Carbonhound ceases to offer the Services; or (4) as required by Applicable Laws.
- Termination. Notwithstanding any other Section of this Agreement, Carbonhound may, in its discretion, terminate the Agreement or any Order Form at any time by providing at least 30 days advance written notice to Customer. Carbonhound may, in addition to other relief, terminate this Agreement if the Customer commits a material breach of this Agreement and fails to correct such breach within 30 calendar days after receipt of notice of such breach. Carbonhound may in its discretion terminate this Agreement effective immediately upon delivery of notice of termination to Customer if Customer becomes insolvent, ceases to conduct business in the ordinary course, takes any step or proceeding available to Customer for the benefit of insolvent debtors, or is subject to a proceeding for liquidation, dissolution or winding up, or a receiver, receiver-manager, liquidator or trustee in bankruptcy.
- Effect of Termination. Upon expiration or termination of this Agreement, Customer will immediately cease (and ensure that all Permitted Users immediately cease) accessing or using Carbonhound SaaS Services and return any Carbonhound Property in its possession and certify in writing to Carbonhound that the Carbonhound Property has been returned. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund. All Fees due and payable and any amounts due to Carbonhound are immediately due and are to be immediately paid by Customer to Carbonhound. All Order Forms will terminate upon the termination of this Agreement. No new Order Forms may be agreed to or entered into by the Parties, upon the termination of this Agreement.
- Survival. The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 3 (Ownership; Reservation of Rights), Section 4 (Privacy), Section 5 (Fees and Payment), Section 6 (Confidential Information), Section 7 (Warranty and Disclaimer), Section 8 (Indemnities), Section 9 (Limitation of Liabilities), Section 10 (Survival), and Section 11 (General Provisions).
- Notices. Notices sent to either Party will be effective when delivered in writing and in person or by email, one day after being sent by overnight courier, or five days after being sent by first class mail postage prepaid to the official contact designated by the Party to whom a notice is being given. Notices must be sent: (i) if to Carbonhound, to the following Carbonhound’s address and email contact:
- Address: 1220 Yonge Street, Suite 400, Toronto, Ontario, Canada, M4T1W1
- Attention: Sanders Lazier, email@example.com
- and (ii) if to Customer, to the current mailing or email address that Carbonhound has on file with respect to Customer. Carbonhound may change its contact information by posting the new contact information on the Website or by giving notice thereof to Customer. Customer is solely responsible for keeping Customer’s contact information on file with Carbonhound current at all times during the Term.
- Assignment. Customer may not assign this Agreement to any third party without Carbonhound’s prior written consent. Any purported assignment or delegation by Customer in violation of this Section will be null and void. Carbonhound may assign this Agreement or any rights under this Agreement to any third party without Customer’s consent. This Agreement enures to the benefit of and is binding upon the Parties and their respective successors and permitted assigns.
- Governing Law and Attornment. This Agreement and any action related thereto will be governed by and construed in accordance with the laws of the Ontario and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with this Agreement in Toronto, Ontario, Canada, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement. This choice of jurisdiction does not prevent Carbonhound from seeking injunctive relief with respect to a violation of Intellectual Property Rights or confidentiality obligations in any appropriate jurisdiction.
- Export Restrictions. Customer will comply with all export laws and regulations that may apply to its access to or use of the Carbonhound SaaS Services. Carbonhound makes no representation or warranty that the Carbonhound SaaS Services may be exported without Customer first obtaining appropriate licenses or permits under Applicable Law, or that any such license or permit has been, will be, or can be obtained.
- Construction. Except as otherwise provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect. The terms “consent” or “discretion” mean the right of a Party to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to the other Party.
- Force Majeure. Neither Party will be liable for delays caused by any event or circumstances beyond that Party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving that Party’s employees), Internet service failures or delays, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third-party websites (“Force Majeure”). For clarity, a Force Majeure event shall not excuse the Customer from its failure to pay Fees or Customer’s indemnities under this Agreement. This Section does not apply to any of Customer’s obligations under Sections 5, 6, or 8.
- Severability. Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be invalid, illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.
- Waiver. A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
- Independent Contractors. Carbonhound’s relationship to Customer is that of an independent contractor, and neither Party is an agent or partner of the other. Neither Party will have, and neither Party will represent to any third party that it has, any authority to act on behalf of the other Party.
- Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, representations or other communications between the Parties, whether written or oral.
- Amendments. No amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby. NOTWITHSTANDING THE PRECEDING SENTENCE, CARBONHOUND MAY UNILATERALLY AMEND THIS AGREEMENT, IN WHOLE OR IN PART (EACH, AN “AMENDMENT”), BY GIVING CUSTOMER PRIOR NOTICE OF SUCH AMENDMENT OR POSTING NOTICE OF SUCH AMENDMENT ON THE WEBSITE. UNLESS OTHERWISE INDICATED BY CARBONHOUND, ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO CUSTOMER OR IS POSTED ON THE WEBSITE (WHICHEVER IS THE EARLIER).
- English Language. It is the express wish of the Parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des Parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
As used in this Agreement, the following capitalized words have the meaning set out below:
- “Additional Services” means the consulting, training and other professional services described in an Order Form. The term “Additional Services” does not include Provider SaaS Services.
- “Aggregated Data” has the meaning in Section 3(a)(iii).
- “Agreement” has the meaning in the preamble.
- “Amendment” has the meaning set out in Section 11(k).
- “Carbonhound Application” means Carbonhound’s mobile application product, and any updates provided as part of the Carbonhound Platform.
- “Carbonhound Property” has the meaning set out in Section 3(c).
- “Carbonhound Platform” means: (i) the services through which Carbonhound hosts and makes available the Carbonhound Platform as described in an Order Form; and (ii) any component or Modification of the services referred to in (i).
- “Confidential Information” has the meaning set out in Section 6(a).
- “Customer Data” means any data, information, content, records, and files that Customer or any Permitted User loads or enters into, transmits to, or makes available to the Carbonhound Platform, including but not limited to Personal Information, excluding Aggregated Data and any other Carbonhound Property.
- “Customer User Account” has the meaning set out in Section 2(a).
- “Discloser” has the meaning set out in Section 6(a).
- “Feedback” has the meaning set out in Section 3(d).
- “Fees” has the meaning set out in Section 5(a).
- “Force Majeure” has the meaning set out in Section 11(f).
- “Initial Term” has the meaning set out in Section 10(a).
- “Intellectual Property Rights” means all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
- “Licensed Third Party Technology” means third party technology that is licensed under separate license terms and not under this Agreement.
- “Loss” or “Losses” means all losses, damages, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
- “Modifications” means modifications, improvements, customizations, patches, bug fixes, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and “Modify” has a corresponding meaning.
- “Order Form” means an order form that references this Agreement and that is executed by both Parties or otherwise accepted by Customer.
- “Party” has the meaning set out in the preamble.
- “Permitted User” has the meaning set out in Section 2(a).
- “Personal Information” means information about an identifiable individual provided by Customer under this Agreement.
- “Recipient” has the meaning set out in Section 6(a).
- “Renewal Term” has the meaning set out in Section 10(a).
- “Services” means the Carbonhound Platform, plus any Additional Services offered by Carbonhound.
- “Term” has the meaning set out in Section 10(a).
- “Third-Party Products” has the meaning set out in Section 1(g).
- “Website” means any websites used by Carbonhound to provide the Carbonhound Platform, including the websites located at https://app.carbonhound.com.