Terms & Conditions

General Site Usage
Last Revised: July 16, 2022

CarbonHound Early Access Terms and Conditions

These terms and conditions outline the rules and regulations for the use of Carbonhound, Inc.’s Website, located at https://app.carbonhound.com.

By accessing this website we assume you accept these terms and conditions. Do not continue to use carbonhound.com if you do not agree to take all of the terms and conditions stated on this page.

This CarbonHound Early Access Agreement (the “Agreement”) is entered into effective as of the date the party clicks “Accept” on the account creation page (https://app.carbonhound.com/create-account) (“Effective Date”), by and between CarbonHound Inc., a corporation located at 1220 Yonge Street, Suite 400, Toronto, M4T 1W1 (“CarbonHound”) and the company associated with the created account, a corporation located in the Country defined in their user account (“Customer”). The “Parties” refer to CarbonHound and Customer and “Party” refers to each of CarbonHound and Customer.

 

WHEREAS:

(A) CarbonHound is the provider of its SaaS Services and related services;

 

(B) Customer wishes to trial or evaluate a trial version of SaaS Services (“Early Access”), as further described in this Agreement for an Early Access Period; and

 

(C) CarbonHound has agreed to provide Customer access and use of SaaS Services for Early Access during the Early Access Period.

 

NOW THEREFORE, in consideration of the mutual covenants, terms, and conditions set out herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:

  1. Definitions
    • Affiliate” means, with respect to a Party, any corporation or other legal entity that is directly or indirectly controlling or controlled by, or under common control with that Party. As used in this definition, “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a corporation or legal entity.
    • Aggregated Data” has the meaning set out in Section 3(a).
    • Applicable Laws” means applicable statutes, by-laws, rules, regulations, orders, ordinances or judgments, in each case of any Governmental or Regulatory Authority.
    • CarbonHound Indemnitee” has the meaning set out in Section 8 (c).
    • CarbonHound Subcontractor” has the meaning set out in Section 2(e).
    • Claim” means 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.
    • Confidential Information” has the meaning set out in Section 7(a).
    • Customer Data” means any data, information, content, records, and files that Customer (or any of its Permitted Users) loads or enters into, transmits to, or makes available to the SaaS Services, including but not limited to Personal Information.
    • Discloser” has the meaning set out in Section 7(a).
    • Excused Party” has the meaning set out in Section 11(f).
    • Fees” has the meaning set out in section 6(a).
    • Force Majeure Event” has the meaning set out in Section 11(f).
    • Governmental or Regulatory Authority” means any national, provincial, state, county, municipal, quasi-governmental or self-regulatory department, authority, organization, agency, commission, board, tribunal, dispute settlement panel or body, bureau, official, minister, Crown corporation, or court or other law, rule or regulation-making entity having or purporting to have jurisdiction over CarbonHound, Customer, or any other Person, property, transaction, activity, event or other matter related to this Agreement, including subdivisions of, political subdivisions of and other entities created by such entities.
    • Initial Early Access Period” means the initial Early Access period for the Early Access
    • Intellectual Property Rights” means any and 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.
    • Loss” or “Losses” means any and all losses, damages, Claims, 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 any order form that references this Agreement and that is agreed to by the Parties for Customer’s Early Access of the SaaS Services.
    • Permitted User” means: (i) employees of Customer; and (ii) independent contractors under staff augmentation arrangement with Customer, authorized by Customer to access and use SaaS Services.
    • Person” means any individual, sole proprietorship, partnership, firm, entity, unincorporated association, unincorporated syndicate, unincorporated organization, trust, body corporate or Governmental or Regulatory Authority, and where the context requires, any of the foregoing when they are acting as trustee, executor, administrator or other legal representative.
    • Personal Information” means information of an identifiable individual transferred by Customer, or Permitted Users, to CarbonHound hereunder.
    • Early Access Period” means the Initial Early Access Period together with any Renewal Early Access Periods.
    • Recipient” has the meaning set out in Section 7(a).
    • SaaS Services” means: (i) services through which CarbonHound hosts and makes available the hosted solution for the Early Access; (ii) any component or Modification of the services referred to in (i).
    • Term” has the meaning set out in Section 10(a).
  2. SaaS Services
    • Provisioning of the SaaS Services. Subject to compliance by Customer and its Permitted Users with the terms and conditions of this Agreement, CarbonHound will make the SaaS Services available to Customer and its Permitted Users on the terms and conditions of this Agreement, for the Permitted Purpose (as defined below).
    • Restrictions on Use. Customer will not itself, nor will it permit others to:
      • sub-license, sell, rent, lend, lease or distribute SaaS Services, or any Intellectual Property Rights therein, or otherwise make SaaS Services available to anyone other than Permitted Users;
      • commercially exploit the SaaS Services;
      • use or provide access to SaaS Services (A) in violation of any Applicable Laws or Intellectual Property Right, (B) in a manner that threatens the security or functionality of SaaS Services, or (C) for any purpose or in any manner not expressly permitted by this Agreement;
      • use SaaS Services to create, collect, transmit, store, use or process any Customer Data:
        • other than in accordance with this Agreement;
        • that Customer does not have the lawful right to create, collect, transmit, store, use or process;
        • that violates any Applicable Laws, or infringes, violates or otherwise misappropriates the Intellectual Property Rights or other rights of any third party (including any moral right, privacy right or right of publicity); or
        • that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data;
      • use SaaS Services in connection with any software intended to damage or alter a computer system or data;
      • Modify SaaS Services;
      • reverse engineer, de-compile or disassemble SaaS Services;
      • remove or obscure any proprietary notices or labels on SaaS Services, including brand, copyright, trademark and patent or patent pending notices;
      • access or use SaaS Services for the purpose of building a similar or competitive product or service; or
      • perform any vulnerability, penetration or similar testing of SaaS Services.
    • Regulatory Compliance. Notwithstanding anything to the contrary in this Agreement, Customer acknowledges that, although the SaaS Services may be used to administer compliance: (i) the SaaS Services do 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 SaaS Services or otherwise by Customer to comply with such Applicable Laws.
    • Suspension of Access; 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 and any Permitted User’s access to or use of SaaS Services: (A) as a consequence of the misuse of SaaS Services by Customer or any Permitted User; (B) if Customer or any Permitted User fails to meet any minimum hardware or software requirements for using SaaS Services; (C) if any unauthorized change by Customer or any Permitted User affects the configuration of SaaS Services; (D) if any data corruption occurs as a result in whole or in part of one or more errors by Customer or a Permitted User; (E) to address any emergency security concerns; (F) for scheduled maintenance; (G) due to a Force Majeure Event; (H) for non-payment of invoices and Fees for the SaaS Services; or (I) if required to do so by a Governmental or Regulatory Authority, by way of court order or as a result of a change in Applicable Laws. 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; and
      • Modify the SaaS Services. CarbonHound will provide Customer with prior written notice if CarbonHound makes a change to the SaaS Services for the Early Access resulting in a material decrease in core functionality used by CarbonHound’s general customer base for a Early Access. In such event, the Parties agree to work together to minimize the impact of such change to Customer.
    • Subcontracting. CarbonHound may delegate or subcontract all or any part of the SaaS Services to any third party (each, an “CarbonHound Subcontractor”), provided that CarbonHound shall remain responsible for all of its obligations under this Agreement.
    • Permitted Purpose. Customer shall only access and use the SaaS Services for trial or evaluation purposes during the Early Access Period and not for production or any other commercial purpose (“Permitted Purpose”).
  3. Ownership; Reservation of Rights
    • Customer retains all ownership and Intellectual Property Rights in and to Customer Data. CarbonHound has no right to Customer Data. Customer grants to CarbonHound, and its subcontractors a nonexclusive, irrevocable, worldwide, royalty-free, irrevocable, transferable,  sublicensable, and fully paid-up right to access, collect, use, process, store, disclose, transmit, copy, modify and display Customer Data to:
      • provide the SaaS Services;
      • improve and enhance the SaaS Services and its other offerings; and
      • produce or generate data, information or other materials that are 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, including to improve and enhance SaaS Services and its other offerings.
    • If Customer provides CarbonHound with any suggestions for changes or improvements, or other feedback (collectively, “Feedback”), in respect of SaaS Services, or any other product or service of CarbonHound or any CarbonHound Affiliate, CarbonHound and its Affiliates may use the Feedback for any purpose without obligation of any kind, except that they will not disclose the source of Feedback without the consent of Customer. CarbonHound is not obligated to use any Feedback.
    • CarbonHound retains all ownership and Intellectual Property Rights in and to: (i) SaaS Services; (ii) the Aggregated Data; (iii) anything used, developed or delivered by or on behalf of CarbonHound under this Agreement; (iv) all other CarbonHound’s Confidential Information; (v) any Modifications to the foregoing (i), (ii), (iii) and (iv) (collectively “CarbonHound Property”).
    • All rights not expressly granted by CarbonHound to Customer under this Agreement are reserved by CarbonHound.
  4. Customer User Account
    • In order for Customer to access and use the SaaS Services, CarbonHound will issue one or more accounts (each, a “Customer User Account”) to Customer, each for use by one 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.
  5. Privacy
    • 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.
  6. Fees and Payment
    • Fees. Customer will pay to CarbonHound no fees for the early access period for access to the platform but may incur charges through the purchase of other services through the platform (the “Fees”). Unless otherwise noted, all Fees are identified in Canadian dollars and are payable in advance. Unless otherwise expressly stipulated in an invoice, Customer will pay all invoiced amounts within 30 days of the invoice date.
    • Changes to the Fees. CarbonHound reserves the right to change the Fees and institute new charges at any time. CarbonHound will provide 30 days written notice to Customer of any such changes in Fees.
    • Disputed Invoices or Charges. If Customer believes that CarbonHound has invoiced Customer incorrectly, Customer must contact CarbonHound no later than 30 days after having received the invoice in which the error or problem appeared to request an adjustment or credit. In the event of a dispute, Customer will pay any undisputed amounts in accordance with the payment terms herein, and the Parties will attempt in good faith to resolve the dispute.
    • Late Payment. Customer may not withhold or set off any amounts payable under this Agreement. CarbonHound reserves the right to suspend Customer’s access to SaaS Services until all due and undisputed Fees 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 1.5% compounded monthly (19.56% annually), or the maximum legal rate (if less), plus all expenses of collection, until fully paid.
    • Taxes. The Fees set out in this Agreement do not include applicable sales, use, gross receipts, value-added, GST or HST, 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 SaaS Services by CarbonHound pursuant to this Agreement will not excuse Customer from its obligation to make payments under this Agreement.
  7. Confidentiality
    • 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 Discloser means any and all information of Discloser or any of its service providers, licensors or customers that has or will come into the possession or knowledge of Recipient in connection with or as a result of entering into this Agreement, including information concerning Discloser’s past, present or future customers, suppliers, technology or business, where Discloser is Customer, Customer’s Confidential Information includes Customer Data and where Discloser is CarbonHound, CarbonHound’s Confidential Information includes any CarbonHound Property; provided that Discloser’s Confidential Information does not include: (i) information already known or independently developed by Recipient without access to Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of Recipient; or (iii) information received by Recipient from a third party who was free to disclose it without confidentiality obligations.
    • Recipient hereby agrees that during the Term and at all times thereafter it will not: (i) disclose Confidential Information of the Discloser to any person, except to its own employees that have a “need to know” for the purposes of receiving or providing the SaaS Services and that have entered into written agreements no less protective of such Confidential Information than this Agreement; (ii) use Confidential Information of the Discloser other than to exercise its rights or perform its obligations under this Agreement; or (iii) 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. Notwithstanding the foregoing, CarbonHound may disclose Customer’s Confidential Information to its CarbonHound Subcontractors or contractors in order to perform the SaaS Services.
    • Notwithstanding Section 7(b), Recipient may disclose Discloser’s Confidential Information: (i) to the extent that such disclosure is required by Applicable Laws 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; (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; or (ii) in the case of CarbonHound, to its potential investors or acquirors to the extent that such persons need to know such Confidential Information in order to complete the proposed investment or acquisition, provided that such disclosee is subject to confidentiality obligations no less stringent than as set out in this Section 7.
    • Customer agrees: (i) that no adequate remedy exists at law if it breaches any of its obligations in this Section 7; (ii) that it would be difficult to determine the damages resulting from its breach of this Section 7 and that such breach would cause irreparable injury to CarbonHound; and (iii) that a grant of injunctive relieve provides the best remedy for any such breach, without any requirement that CarbonHound prove actual damage or post a bond or other security. Customer waives any opposition to such injunctive relief or any right to such proof, bond, or other security.
  8. Warranty; Disclaimer; Indemnities
    • Customer Representations, Warranties and Covenants.
      • Customer represents and warrants to, and covenants with, CarbonHound that:
        • it has full power and all necessary rights to enter into this Agreement;
        • its use of SaaS Services will at all times comply with all Applicable Laws and Customer will not cause CarbonHound to be non-compliant with any Applicable Laws; and
        • 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 Applicable Laws, to enable CarbonHound to provide the SaaS Services, including 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.
      • CarbonHound Warranty. CarbonHound warrants that it will comply with all Applicable Laws appliable to CarbonHound in its performance of the SaaS Services.
      • General Disclaimer. CUSTOMER ACKNOWLEDGES THAT SAAS SERVICES IS BEING PROVIDED FOR DEMONSTRATION AND EARLY ACCESS PURPOSES ONLY AND THAT THE DISCLAIMER AND LIMITATION OF LIABILITY IN THIS AGREEMENT REFLECT A FAIR APPORTIONMENT OF LIABILITY. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, CARBONHOUND DOES NOT WARRANT THAT THE SAAS SERVICES WILL BE UNINTERRUPTED OR THAT SAAS SERVICES, INCLUDING WITHOUT LIMITATION THE SAAS SERVICES WILL BE 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 SAAS SERVICES. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SAAS 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 EXTENT PERMITTED BY APPLICABLE LAW, CARBONHOUND HEREBY DISCLAIMS ALL IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, 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.

    • CarbonHound Indemnity. CarbonHound will indemnify, defend, and hold harmless 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 by a third party (other than an Affiliate of a Customer Indemnitee) that arise from or relate to any allegation that the SaaS Services infringe any third party Intellectual Property Right in Canada. The foregoing obligation does not apply to any Claim or Losses arising out of or relating to any: (A) incorporation of any SaaS Services into, or any combination, operation, or use of any SaaS Services with, any products or services not provided by CarbonHound; (B) Modification of any SaaS Services other than by CarbonHound or with CarbonHound’s express written approval; (C) unauthorized use of the SaaS Services; or (D) SaaS Services for which there is no Fees or charge. This Section 8 (d)(i) states the CarbonHound’s sole liability to, and the Customer Indemnitees exclusive remedy against, CarbonHound for any third party Claim described in this section.
    • If the SaaS Services are, 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 SaaS Services 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 SaaS Services materially as contemplated by this Agreement;
      • modify or replace SaaS Services, in whole or in part, to seek to make the SaaS Services (as so modified or replaced) non-infringing while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute SaaS Services under this Agreement; or
      • if CarbonHound determines that neither of the foregoing two options are reasonably available, by written notice to the Customer, terminate the SaaS Services and this Agreement, in whole or in part, and require the Customer to immediately cease all use of the terminated SaaS Services or part or feature thereof and refund any unused prepaid Fees for the terminated SaaS Services, if applicable. However, all accrued rights to payment and the terms of this Agreement shall survive termination of this Agreement.

THE FOREGOING IS IN LIEU OF ANY REPRESENTATION OR WARRANTIES OF NONINFRINGEMENT, WHICH ARE DISCLAIMED.

  • Customer Indemnity. Customer will indemnify, defend and hold harmless, CarbonHound, its partners, employees, officers, directors, Affiliates, agents, contractors, successors, and assigns and those of its Affiliates (each a “CarbonHound Indemnitee”) against any and all Losses incurred by CarbonHound Indemnitee arising out of or relating to any Claim by a third party, directly or indirectly arising from or in connection with: (i) Customer Data; (ii) Customer’s breach of any of Customer’s obligations, representations, warranties or covenants under this Agreement; (iii) Customer’s breach of any Applicable Laws; (iv) unauthorized use of the SaaS Services by Customer or any Permitted User; or (v) use of the SaaS 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 Claim 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 Claim 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(d)(iv) 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.

 

 

 

  1. Limitation of Liabilities

The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk, 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. Subject to Section 9 (c), in no event will the total aggregate liability of either Party 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 under the applicable Order Form in the month 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. Subject to Section 9 (c), to the maximum extent permitted under Applicable Laws, in no event will either Party be liable to the other Party 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 the 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.
  • Exceptions. The exclusions and limitations in Sections 9 (a) and 9 (b) do not apply to: (i) either Party’s obligations under Section 8 (d) (Indemnities); or (ii) Losses arising out of or relating to Customer’s breach of its obligations under Sections 2(b) (Restrictions on Use), 6 (Fees and Payment), 7 (Confidentiality), or 8(a) (Customer Representations, Warranties and Covenants).
  1. Term and Termination
    • Term. This Agreement is effective as of the Effective Date and will remain in effect for the Early Access Period (collectively, the “Term”), unless earlier terminated in accordance with this Agreement.
    • Termination by CarbonHound Without Cause. Notwithstanding any other Section of this Agreement, CarbonHound may, in its sole discretion, without payment of any termination fee, penalty or other amount of any kind, terminate this Agreement in whole or in part, at any time by providing 5 days written notice to Customer.
    • Termination for Cause. Either Party may, in addition to other relief, terminate this Agreement for cause, by providing notice if the other Party commits a breach (including failure to pay Fees when due) of this Agreement and fails within 30 calendar days after receipt of notice of such breach to correct such breach. If this Agreement is terminated by CarbonHound due to Customer’s material breach, Customer will remain liable to pay the full Fees outstanding on the effective date of termination. CarbonHound will invoice, and Customer will pay, any accrued but unbilled Fees and any unpaid Fees covering the remainder of the Early Access Period had it not been terminated.
    • Effect of Termination. Upon termination or expiry of this Agreement: (i) Customer will immediately cease (and ensure that all Permitted Users immediately cease) using the SaaS Services; and (ii) Customer shall return or if requested by CarbonHound delete any CarbonHound Property in its possession and certify in writing to CarbonHound that CarbonHound Property has been deleted or 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.
    • 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 6 (Fees and Payment), Section 7 (Confidential Information), Section 8 (Warranty; Disclaimer; Indemnities), Section 9 (Limitation of Liabilities), Section 11 (General Provisions) and this Section 10 (e) (Survival).
  2. General Provisions
    • 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 address:

Address: 1220 Yonge Street, Suite 400, Toronto, Ontario, Canada, M4T1W1       

Attention: Sanders Lazier

Email: sanders@carbonhound.com

 

and (ii) if to Customer, to the current postal or email address that CarbonHound has on file with respect to Customer. CarbonHound may change its contact information by giving notice to Customer. Customer is solely responsible for keeping its contact information on file with CarbonHound current at all times during the Term.

  • Assignment. Customer shall not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of CarbonHound. 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 is 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 Claim related to it will be governed by and construed in accordance with the laws of the Province of Ontario and the applicable federal laws of Canada, 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 in Toronto, Ontario. 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 shall not directly or indirectly export or re-export any of the SaaS Services without first obtaining all required licenses, permits and permissions required under Applicable Law. CarbonHound makes no representation or warranty that the 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.
  • 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” means 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, pandemics, strikes, slowdowns, walkouts or other labour problems(other than those involving that Party’s employees), Internet service failures or delays, cyberattacks, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third party software or websites or changes in laws preventing or limiting the provision of the services (each, a “Force Majeure Event”). This Section does not apply to any of Customer’s obligations under Section 6 or 8.
  • Any provision of this Agreement found by a Governmental or Regulatory Authority 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.
  • 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, broker or partner of the other. Neither Party will have, and neither Party will represent to any third party that it has any authority to bind the other Party.
  • Customer Lists. With Customer’s prior written consent, CarbonHound may identify the Customer by name and logo as a CarbonHound customer on CarbonHound’s website and on other promotional materials. Any goodwill arising from the use of the Customer’s name and logo will inure to the benefit of the Customer.
  • 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.
  • No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any Person other than the Party and their respective successors and permitted assigns any legal or equitable right, benefit or remedy of any nature under or by reason of this Agreement.
  • 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.
  • 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.

Questions?

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