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ClimaCell Terms of Service

Last updated: January 27th, 2020

This agreement between ClimaCell, Inc., a Delaware corporation (“we”, “us”, “our” or “Company”), and you (“you” or “your”) consists of (a) these Terms of Service, (b) the Additional Terms (as defined below) and (c) the Order (as defined below), if applicable (collectively, this “Agreement”). This Agreement governs your use of the ClimaCell Technology (as defined below), or any other technology or services offered to you by ClimaCell and that are not covered by other specific agreements, in connection with ClimaCell’s proprietary weather forecasting platform (the “Service”).

BY EXECUTING AN ORDER OR OTHERWISE CLICKING A BOX INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOU HAVE READ THIS AGREEMENT AND ARE BOUND BY THIS AGREEMENT, AND YOU HEREBY AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE AN INDIVIDUAL ENTERING INTO THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY, YOU HEREBY REPRESENT AND WARRANT TO US THAT YOU ARE AUTHORIZED TO ENTER INTO THIS AGREEMENT ON BEHALF OF SUCH ENTITY AND BIND SUCH ENTITY TO THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT, IN WHICH CASE, THE TERMS “YOU” AND “YOUR” WILL REFER TO SUCH ENTITY. IF YOU DO NOT ACCEPT ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT OR ARE NOT AN AUTHORIZED AGENT FOR THE LEGAL ENTITY THAT WISHES TO ENTER INTO THIS AGREEMENT, DO NOT EXECUTE AN ORDER OR OTHERWISE USE THE CLIMACELL TECHNOLOGY. YOU MAY NOT ENTER INTO THIS AGREEMENT OR OTHERWISE USE THE SERVICE OR THE CLIMACELL TECHNOLOGY IF YOU ARE A COMPETITOR TO THE COMPANY.

You may gain access to the ClimaCell Technology by (a) executing an Order or (b) registering for a free evaluation trial at https://www.climacell.co/hypercast-free-trial/ which includes and requires clicking a box indicating your acceptance of this Agreement or (C) by accessing publicly available CBAM datasets from one of our cloud partners.

1. Definitions
  1. “Additional Terms” means the Privacy Policy (as defined below) and the Open Source Notice (as defined below), each of which are hereby incorporated by reference.
  2. “Aggregated Data” means aggregated data and insights derived from Your Data or your access or use of the ClimaCell Technology, which do not identify you and cannot with reasonable means be attributed or traced back to Your Data.
  3. “APIs” means the Company’s application programming interface(s) through which customers may receive certain weather-related data generated by the Service, including related documentation and/or sample code provided by the Company to you.
  4. “ClimaCell Technology” means the Dashboard, the APIs and the Datafeed.
  5. “Dashboard” means the Company’s HyperCast dashboard consisting of a web-based and mobile application-based interface, made available as a service via the Internet, through which customers may access and use the functionality and features of the Service.
  6. “Datafeed” means the raw data that is made available by the Company to you through the APIs.
  7. “Feedback” means information, suggestions or feedback concerning the Service or the ClimaCell Technology that you provide to the Company.
  8. “Order” means a written ordering document executed by an authorized representative of each of you and the Company that incorporates these Terms of Service by reference. The Order will specify the ClimaCell Technology to which you are receiving access, fees related thereto and the duration of the Term.
  9. “Term” means the Initial Term (as defined below) plus any Renewal Term(s) (as defined below).
  10. “Your Data” means data, content or other information provided by you to the Company (via the Dashboard or otherwise) , including the content of any alerts created by you using the Service, but excluding Feedback.
2. Interpretation

As used herein, the term “including”, means including, but not limited to, and without limitation, to the generality of the preceding phrase. All examples in this Agreement and all “i.e.” and “such as” notations, indicate an illustration, by way of example only, of the preceding phrase, without limiting its generality.

3. Access to ClimaCell Technology
  1. Evaluation. If you access the Service on an evaluation or beta basis via the Dashboard or the APIs (the “Evaluation Service”), then you may use the Evaluation Service only for evaluation purposes and for a period of thirty (30) days beginning on the date the Company provides you with login credentials, unless otherwise set forth in the Order (the “Evaluation Period”). Notwithstanding any other provision of this Agreement, the Company provides the Evaluation Service, and access to the ClimaCell Technology in connection therewith, (i) free of charge and without support and (ii) “AS IS” without indemnification or warranty of any kind. The Company does not provide any support with respect to the Evaluation Service. Also, certain features or services may not be available for the Evaluation Service. Continued use of the ClimaCell Technology after the Evaluation Period requires that you (A) execute an Order and (B) submit the applicable payment. Upon expiration of the Evaluation Period, you will not have access to the Evaluation Service.
  2. SaaS Subscription. If you execute an Order that indicates you will receive access to the Dashboard, subject to the terms and conditions of this Agreement, the Company hereby grants to you a nonexclusive, nonsublicensable, nontransferable right, during the Term, to access and use the Dashboard, strictly for your internal business purposes.
  3. API Subscription (Internal Use). If you execute an Order that indicates you will receive access to the APIs for your internal use, subject to the terms and conditions of this Agreement, the Company hereby grants to you a nonexclusive, nonsublicensable, nontransferable license, during the Term, to download and use the APIs to receive the Datafeed, strictly for your internal business purposes.
  4. API Subscription (Commercial Use). If you execute an Order that indicates you will receive access to the APIs for commercial use, subject to the terms and conditions of this Agreement, the Company hereby grants to you a nonexclusive, nonsublicensable (except as expressly set forth herein), nontransferable license, during the Term to (a) download and use the APIs for purposes of making your proprietary software application(s) identified in the Order (“Your Application”) interoperable with the APIs, (b) make available and resell Your Application, as modified to interoperate with the APIs and (c) use the APIs in connection with making available the Service to users of Your Application (“End Users”). Subject to the terms of this Agreement, you have a limited right to permit End Users to access and use the APIs solely in connection with use of Your Application. Prior to delivery of the Service to an End User, you will require such End User to enter into an agreement with you, which will contain, at a minimum, terms at least as protective of the Company and the Service as the terms set forth in this Agreement, including, without limitation, the terms set forth in Sections 4, 8, 10, 12(1)-(3) and 13 (each, a “EULA”). The EULA will name the Company as an intended third party beneficiary.
4. Registration and user account
  1. You must be registered in order to use the Service, whether via the Dashboard or APIs (including for any Evaluation Service). In order to apply for registration, you must complete our online application form in which we indicate the mandatory fields for completion. If you do not provide the required information in these fields, you will not be able to register. You must provide true, accurate and complete information.
  2. Login to the Dashboard is authenticated with a password, which you should periodically change. You must maintain the confidentiality of your account login details for your general account and for the Dashboard.
  3. You are solely responsible for the security of your and your users’ login credentials and will not provide such login credentials to any third party. You are responsible for any use that occurs under your or your users’ login credentials. If you believe an unauthorized person has gained access to your or your users’ login credentials, you will notify us as soon as possible. You will ensure that your users comply with all terms and conditions of this Agreement and you remain responsible and liable for the acts and omissions of your users. If you become aware of any violation by any of your users, you will immediately terminate such user’s access to the Service.
5. Data
  1. As between you and the Company, you retain all right, title, and interest in Your Data, except for the limited license expressly granted by you to the Company in this Section. You hereby grant to the Company a nonexclusive, royalty-free, fully paid up right and license, during the Term, to copy, display, distribute, modify and otherwise use Your Data, solely as necessary to provide the Service to you. You further acknowledge that the Company may create, collect, use and distribute Aggregated Data for our business purposes, including in connection with improving our products and services.
  2. You acknowledge and agree that we will process, handle and use personally identifiable information (also known as ‘personal data’) in accordance with our Privacy Policy located at https://www.climacell.co/privacy/ (the “Privacy Policy”).
  3. In addition, to the extent you provide any Feedback to the Company, you hereby grant to the Company a nonexclusive, perpetual, irrevocable, royalty-free, sublicensable, transferable license to copy, display, distribute, perform, modify and otherwise use such Feedback or subject matter thereof in any way and without limitation.
  4. We may delete Your Data from the Service, upon termination of this Agreement. You are responsible for maintaining back-up copies of Your Data. The Service does not provide, and is not intended to be, a data back-up service.
6. Attribution
  1. You agree that any application or service which incorporates and presents data obtained from the Service shall prominently display the message “Powered by ClimaCell” in a legible manner near the data or any information derived from any data from the Service. This message must, if possible, open a link to https://www.climacell.co/ when clicked or touched.
  2. You may not display or invoke the Service or ClimaCell name or logo in any manner that implies a relationship or affiliation with, sponsorship, promotion, or endorsement by ClimaCell, except as authorized by these Terms of Service.
  3. You may use the following image to display the “Powered by ClimaCell” message if you choose:

    ClimaCell LogoClimaCell LogoClimaCell LogoClimaCell Logo

7. Confidentiality
  1. As used in this Agreement, “Confidential Information” means, subject to the exceptions set forth in the following sentence, any information or data, regardless of whether it is in tangible form, disclosed by either you or the Company (the “Disclosing Party”) that the Disclosing Party has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary within thirty (30) days of disclosure to the other party (the “Receiving Party”); provided, however, that a Disclosing Party’s business plans, strategies, technology, research and development, current and prospective customers, billing records, and products or services will be deemed Confidential Information of the Disclosing Party even if not so marked or identified. The Company’s Confidential Information includes, without limitation, the Service, the ClimaCell Technology, the terms and conditions of this Agreement and any information related to any of the foregoing. Your Confidential Information includes Your Data, excluding Aggregated Data derived therefrom. Information will not be deemed Confidential Information if such information: (a) is known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party; or (d) is developed independently by the Receiving Party without use of any Confidential Information of the Disclosing Party. Each party agrees that it will use the Confidential Information of the other party solely to perform its obligations or exercise its rights under this Agreement. Neither you nor the Company will disclose, or permit to be disclosed, the other party’s Confidential Information directly or indirectly, to any third party without the other party’s prior written consent. Both you and the Company will use commercially reasonable measures to protect the confidentiality and value of the other party’s Confidential Information. Notwithstanding any provision of this Agreement, either party may disclose the other party’s Confidential Information, in whole or in part: (i) to its employees, officers, directors, consultants and professional advisers (e.g., attorneys, auditors, financial advisors, accountants and other professional representatives) who have a need to know and are legally bound to keep such Confidential Information confidential by confidentiality obligations or, in the case of professional advisors, are bound by ethical duties to keep such Confidential Information confidential consistent with the terms of this Agreement; and (ii) as required by law (in which case each party will provide the other with prior written notification thereof, will provide such party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law). Both you and the Company agree to exercise due care in protecting the Confidential Information of the other party from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Both you and the Company will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.
8. Fees
  1. In consideration of the provision of the Service to you, you will pay us the fees set forth in the Order in accordance with the terms and conditions of this Agreement.
  2. All fees are quoted in US Dollars and will be paid by you in US Dollars, unless expressly stated otherwise. Fees are payable by wire transfer, check or major credit cards. We may, from time to time, and without specific notice to you, add additional payment methods to the then-current payment methods, or cease to use previously supported payment methods. You represent and warrant that you are lawfully permitted to use the selected payment method in connection with the Service. We may require additional information from you before completing payment transactions.
  3. You must keep the billing information you provide to us current, complete, and accurate, and notify us promptly in case of any change in your billing information. By providing any credit card, online account or bank information, you authorize the Company to automatically charge or debit the selected payment method for the full amount due on a recurring basis (if applicable) until you notify the Company in writing with an alternative, authorized payment method. You will ensure that you have sufficient funds or credit (as applicable) associated with the selected method of payment. You understand that the amounts charged or debited may vary and that this authorization will remain in effect until the expiration or termination of this Agreement. If a payment is returned from a bank account for insufficient or uncollected funds or for erroneous information, the Company may reinitiate the returned debit to the applicable bank account. Any amounts owed to the Company that cannot be collected by debit may be charged to any backup credit card on file for you.
  4. Unless otherwise set forth in the Order, the applicable subscription fees will be due and payable at the beginning of each subscription cycle set forth in the Order. All fees are exclusive of all sales, use, excise, value added, withholding and other taxes, and all customs duties and tariffs now or hereafter claimed or imposed by any governmental authority upon your use of the Service will be paid by you. The Company reserves the right to increase fees at any time, although increases in fees will not go into effect until the next renewal of the then-current term.
  5. All your payment obligations are non-cancelable and all amounts paid in connection with the Service are non-refundable, except as expressly set forth herein. You are responsible for paying all fees applicable to your subscription to the Service, whether or not you actively used, accessed or otherwise benefited from the Service.
  6. Payment may be processed and handled through relevant third party payment processors. Any payments processed through third party payment processors are therefore subject not only to this Agreement, but also the terms and conditions of the applicable third party payment processor pursuant to your agreement with them. You acknowledge that such third party payment processors may charge you commission. We are not responsible for such commission, which is strictly between you and the relevant payment processor.
  7. Fees that we are unable to charge through the payment method you provided is deemed an overdue fee. Failure to settle any overdue fee within twenty (20) calendar days of its original due date will constitute a material breach of this Agreement and, without limiting any remedies available to the Company, the Company may: (i) terminate this Agreement; or (ii) suspend performance of or access to the Service, until payment is made current. Without derogating from any other rights and remedies available to us under applicable law, overdue fees will accrue interest at the lesser of the rate of one and one half percent (1.5%) per month or part thereof, cumulative monthly on the total amount due from the due date until the date of actual payment and the maximum rate permitted by applicable law. You will reimburse us for all legal costs and attorney fees we incur in the course of collecting your overdue fees.
  8. We may modify, adapt, improve, or enhance the Service, or any of its features, user interface, design or any other aspect related to it, without being obligated to provide you notice thereof.
9. Restrictions
  1. Except as relevant law may otherwise require to be permitted, you may not modify, make derivative works of, disassemble, de-compile or reverse engineer any part of the Service or ClimaCell Technology, or otherwise attempt to discover its underlying code, structure, implementation or algorithms.
  2. There may be certain restrictions, including usage limitations, set forth in the Order, including, without limitation, restrictions on the number of function calls that may be placed using the APIs. You will abide by all such restrictions. You will not install or use the ClimaCell Technology for any purpose other than as expressly permitted under this Agreement.
  3. You may not use the Service or ClimaCell Technology in order to develop, or create, or permit others to develop or create, a product or service similar or competitive to the Service or ClimaCell Technology.
  4. Except as expressly permitted under Section 3(4) (to the extent applicable to you), you may not offer the Service or ClimaCell Technology to third parties, including by reselling, licensing, renting, leasing, transferring, lending, timesharing, assigning or redistributing the Service, ClimaCell Technology or any part thereof.
  5. You will not use the APIs in connection with any products, services or materials that constitute, promote or are used primarily for the purpose of dealing in: libelous, defamatory, obscene, pornographic, abusive or otherwise illegal or offensive content; spyware, adware, or other malicious code; counterfeit goods; items subject to US embargo; unsolicited mass distribution of email or multi-level marketing proposals; hate materials; hacking/surveillance/interception/descrambling equipment; or stolen products or items used for theft. Without limiting the foregoing, you will not use the APIs for any illegal purpose.
  6. You may not perform or attempt to perform any of the following in connection with the Service or ClimaCell Technology:
    1. Breaching the security of the Service or ClimaCell Technology, or identifying, probing or scanning any security vulnerabilities in the Service or ClimaCell Technology,
    2. Accessing data not intended for you, or accessing an account you are not authorized to access;
    3. Interfering with, circumventing, manipulating, overloading, impairing or disrupting the operation, or the functionality of the Service or ClimaCell Technology;
    4. Working around any technical limitations in the Service or ClimaCell Technology;
    5. Using any tool to enable features or functionalities that are otherwise disabled, inaccessible or undocumented in the Service or ClimaCell Technology;
    6. Collecting or processing information or data about the Company’s customers;
    7. Sending any virus, worm, Trojan horse or other malicious or harmful code or attachment; or
    8. Using robots, crawlers and similar applications to scrape, harvest, collect or compile content from or through the Service or ClimaCell Technology.
  7. You will only use the Service and ClimaCell Technology in compliance with all applicable laws, rules and regulations, and you represent and warrant that Your Data does not and will not violate any third party rights or any applicable laws. If you execute an Order that indicates you will receive access to the APIs for commercial use, you further represent, warrant and covenant that you will not make any representation or warranty concerning the quality, performance or other characteristics of the Service.
  8. You will not store or otherwise collect or copy the unaltered Datafeed, unless otherwise expressly provided for in the Order. If the Order provides for storing the Datafeed, you may only store the Datafeed for the duration of the Term of the applicable Order and conditioned upon your timely payment of applicable Fees, as provided in the Order.
  9. You will not, and will not allow or assist third parties to, publish, distribute or disclose the results of any benchmark tests performed on the ClimaCell Technology or otherwise use any testing results related to the ClimaCell Technology for your marketing purposes, or for development of competing technology.
  10. YOU MAY NOT USE THE SERVICE OR CLIMACELL TECHNOLOGY FOR ANY ACTIVITY THAT CONSTITUTES, OR ENCOURAGES CONDUCT THAT WOULD CONSTITUTE, A CRIMINAL OFFENSE, GIVE RISE TO CIVIL LIABILITY OR OTHERWISE VIOLATE ANY APPLICABLE LAW.
  11. WE MAY EMPLOY MEASURES TO DETECT AND PREVENT FRAUDULENT OR ABUSIVE USE OF THE SERVICE, AS WELL AS MISUSE OF THE SERVICE AND CLIMACELL TECHNOLOGY. WE MAY SUSPEND OR TERMINATE YOUR ACCOUNT ON AND ACCESS TO THE SERVICE AND CLIMACELL TECHNOLOGY, WITHOUT PRIOR NOTICE, IF WE, IN OUR SOLE DISCRETION, BELIEVE THAT YOU HAVE ENGAGED IN FRAUDULENT OR ABUSIVE USE, OR MISUSE, OF THE SERVICE OR CLIMACELL TECHNOLOGY.
10. Term and Termination
  1. This Agreement commences upon execution of the Order (or, if you are accessing an Evaluation Service only, upon the date you click a box agreeing to this Agreement), and, unless earlier terminated as set forth herein, continue in effect for the initial term set forth in the Order (or, if you are accessing an Evaluation Service only, as set forth in Section 3(1) above) (the “Initial Term”). Except for use of Evaluation Service, unless otherwise set forth in the Order, this Agreement will automatically renew for additional periods of equal duration (each, a “Renewal Term”), unless either party gives notice of non-renewal at least thirty (30) days’ prior to the end of the then-current term.
  2. Either party may terminate this Agreement upon written notice to the other party:
    1. In the event of a breach of this Agreement by the other party, where the breach remains uncured for fifteen (15) days following written notice thereof from the non-breaching party to the breaching party, but if a breach is of a nature that cannot be cured, then the non-breaching party may terminate this Agreement immediately upon written notice to the other party;
    2. If the terminating party is required to do so by applicable law;
    3. If the other party becomes or is declared insolvent or bankrupt, is the subject of any proceeding related to its liquidation or insolvency (whether voluntary or involuntary) which, if involuntary, proceedings are not dismissed within sixty (60) days of their commencement, makes an assignment for the benefit of creditors, or takes or is subject to any such other comparable action in any relevant jurisdiction.
  3. In addition, the Company may terminate this Agreement for any or no reason upon seven (7) days’ prior written notice to you (unless you are accessing an Evaluation Service only, in which case such termination will be effective immediately upon written notice to you). If the Company exercises this right, the Company will refund to you any fees prepaid for the remainder of the then-current term.
  4. Immediately upon expiration or termination of this Agreement:
    1. We may terminate your account on the Service and delete Your Data stored in our systems;
    2. You (and your End Users, if applicable) must cease any and all use of the Service and ClimaCell Technology (and, if you have access to APIs, destroy an remove from all computers, hard drives, networks and storage media all copies of the APIs and will so certify to the Company upon request that such actions have occurred); and
    3. We will charge you for all then-outstanding fees (if any) incurred prior to the effective date of expiration or termination.
  5. The following Sections will survive the expiration or termination of this Agreement: 1, 2, 5, 6, 7, 8, 9, 10, 12(1), 12(2), 13, 14, 16, 18, 19, 21 and 22.
11. Disclaimers and Limitation of Liability
  1. We do not guarantee that the Service will operate in an uninterrupted or error-free manner, or that it will always be available, free from errors, omissions or malfunctions.
  2. If we receive notice of any failure or malfunction, or if we otherwise become aware of any such failure or malfunction, we will attempt to regain the Service’s availability as soon as practicable. However, such incidents will not be considered a breach of this Agreement. Without limiting the foregoing, in no event will the Company be responsible for any slow-downs, failures or other malfunctions that are caused by your breach of this Agreement, including any usage limitations set forth in the Order.
  3. You are solely and exclusively responsible: (i) for all actions you take in response to your usage of the Service and ClimaCell Technology; (ii) to check for any alerts or warnings issued by the Service and determine what actions are appropriate in light thereof; and (iii) to carry out such actions as you deem appropriate as a result of your usage of the Service and ClimaCell Technology. We are not responsible or liable for your reliance upon, or use of, the Service or ClimaCell Technology, your actions in connection with the Service or ClimaCell Technology, or any consequences resulting therefrom.
  4. You the user assume the entire risk related to use of information provided by the app. ClimaCell provides such information "as is," and disclaims any and all warranties, whether express or implied, including (without limitation) any implied warranties of merchantability or fitness for a particular purpose. In no event will ClimaCell be liable to you or to any third party for any direct, indirect, incidental, consequential, special or exemplary damages or lost profit resulting from any use or misuse of this data.
  5. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR LIABILITY ARISING FROM A PARTY’S (I) GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT, (II) BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, (III) INDEMNIFICATION OBLIGATIONS HEREUNDER OR (IV) INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, NEITHER YOU NOR THE COMPANY, INCLUDING THEIR RESPECTIVE EMPLOYEES, DIRECTORS, OFFICERS, SHAREHOLDERS, ADVISORS, AND ANYONE ACTING ON THEIR BEHALF, WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, STATUTORY OR PUNITIVE DAMAGES, LOSSES (INCLUDING LOSS OF PROFIT, LOSS OF BUSINESS OR BUSINESS OPPORTUNITIES AND LOSS OF DATA), COSTS, EXPENSES AND PAYMENTS, EITHER IN TORT, CONTRACT, OR IN ANY OTHER FORM OR THEORY OF LIABILITY (INCLUDING NEGLIGENCE), ARISING FROM, OR IN CONNECTION, WITH THIS AGREEMENT, ANY USE OF, OR THE INABILITY TO USE THE SERVICE OR CLIMACELL TECHNOLOGY, ANY RELIANCE UPON THE SERVICE OR CLIMACELL TECHNOLOGY OR ANY ERROR, INCOMPLETENESS, INCORRECTNESS OR INACCURACY OF THE SERVICE OR CLIMACELL TECHNOLOGY.
  6. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW EXCEPT FOR LIABILITY ARISING FROM A PARTY’S (I) GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT, (II) BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, (III) INDEMNIFICATION OBLIGATIONS HEREUNDER OR (IV) INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, THE TOTAL AND AGGREGATE LIABILITY OF EACH PARTY (INCLUDING THEIR RESPECTIVE EMPLOYEES, DIRECTORS, OFFICERS, SHAREHOLDERS, ADVISORS, AND ANYONE ACTING ON THEIR BEHALF), FOR DAMAGES ARISING OF OR RELATED TO THIS AGREEMENT, THE SERVICE AND THE CLIMACELL TECHNOLOGY, SHALL BE LIMITED TO THE TOTAL FEES PAYABLE BY YOU TO THE COMPANY IN THE TWELVE (12) MONTHS PRECEDING THE EVENT PURPORTEDLY GIVING RISE TO THE CLAIM.
  7. ALTHOUGH WE USE SKILL AND EFFORTS TO DEVELOP THE SERVICE AND HAVE THE SERVICE PROVIDE ACCURATE, RELIABLE, EFFECTIVE AND ACTIONABLE DATA, WE DO NOT GUARANTEE, MAKE NO REPRESENTATION, AND PROVIDE NO WARRANTY ABOUT THE RELIABILITY, EFFECTIVENESS, ACCURACY OR COMPLETENESS OF THE SERVICE OR CLIMACELL TECHNOLOGY, THE EXPECTED BUSINESS RESULTS, OUTCOMES OR ANY OTHER OPERATIONAL BENEFITS FROM UTILIZING THE SERVICE AND CLIMACELL TECHNOLOGY.
  8. THE SERVICE AND CLIMACELL TECHNOLOGY IS PROVIDED TO YOU “AS IS”. WE DISCLAIM ALL WARRANTIES AND REPRESENTATIONS, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, NON-INFRINGEMENT, TITLE, SECURITY, COMPATIBILITY OR PERFORMANCE.
12. Support and Maintenance
  1. During the Term, we, either directly or with the assistance of third parties, will use commercially reasonable efforts to provide you technical support for technical questions, problems and inquiries regarding the Service or ClimaCell Technology, during our business days and hours. We will also use commercially reasonable efforts to provide any additional support services set forth in the Order in accordance with the terms therein, to the extent applicable.
  2. We will attempt to respond to your technical questions, problems and inquiries within a reasonable time. However, we
    1. May decline to provide such support for matters that we deem, at our sole discretion, to require unreasonable time, effort, costs or expenses;
    2. Make no warranties to any specific response-time or to the successful or satisfactory resolution of the question, problem or inquiry.
  3. For the purpose of our provision of technical support for your technical questions, problems and inquiries, you will cooperate, and work closely with us, to reproduce malfunctions, including conducting diagnostic or troubleshooting activities, as we reasonably request.
  4. In the event you would like to engage the Company for services beyond the general support assistance described above, the Company may agree to provide such services for an additional fee. All such services, and the fees related thereto, shall be described in a subsequent writing and mutually agreed upon.
13. Intellectual Property
  1. The Service and ClimaCell Technology are proprietary to the Company. The ClimaCell Technology is made available for use and access or licensed (as applicable), and is not sold.
  2. Except for your limited access to use the ClimaCell Technology according to this Agreement, this Agreement does not grant to you or assign to you, any license, right, title, or interest in or to the Service or ClimaCell Technology or any associated intellectual property rights. As between the parties, all rights, title and interest, including copyrights, patents, trademarks, trade names, trade secrets and other intellectual property rights, and any goodwill associated therewith, in and to the Service and ClimaCell Technology, or any part thereof, including computer code, graphic design, layout and the user interfaces, whether or not based on or resulting from Feedback, are and will remain at all times owned by the Company. You will not do, or cause to be done, any acts or things contesting or in any way impairing or tending to impair any portion of the right, title and interest of the Company in and to its intellectual property rights. You will not delete or in any manner alter the copyright, trademark, or other proprietary rights notices or markings that appear on the ClimaCell Technology as delivered or made available to you.
  3. The Service and ClimaCell Technology may use third party open source software (“Third Party Software”). The Third Party Software is identified in the Open Source Notice located at https://climacell.ussl.co/wp-content/uploads/2019/03/Open-Source-Notice-August-2018.pdf as it may be updated and amended from time to time by the Company. To the extent so stipulated by the license that governs the Third Party Software (“Third Party EULA”), each such Third Party Software is licensed directly from its respective licensors and is subject to its respective Third Party EULA. If, and to the extent, a Third Party EULA requires that this Agreement effectively impose, grant or incorporate by reference, certain disclaimers, permissions, provisions, prohibitions or restrictions, then such disclaimers, permissions, provisions, prohibitions or restrictions shall be deemed to be imposed, granted, or incorporated by reference into this Agreement, as required, and shall supersede any conflicting provision of this Agreement, solely with respect to the corresponding Third Party Software which is governed by such Third Party EULA. You acknowledge that the Company is not responsible for the availability or for the fulfillment of any Third Party Software warranty or for problems attributable to use of Third Party Software. You are responsible for reviewing, accepting, and complying with any Third Party EULA.
  4. Unless you notify us otherwise in writing, we may identify you as a customer and user of the Service on our website, mobile application and in other online or offline marketing materials and press releases, and we may publish case studies and other marketing materials related to your use of the Service. We acknowledge that your company name and logo are protected by intellectual property rights. You hereby grant to the Company a non-exclusive, royalty-free and fully paid up license, during the Term, to use your name, logo, and website URL, on our website, mobile application and in other online or offline marketing materials relating to the Service. We will use this content strictly in accordance with any usage guidelines you provide to us.
  5. If you execute an Order that indicates you will receive access to the APIs, subject to the terms and conditions of this Agreement, the Company hereby grants to you a nonexclusive, nonsublicensable, nontransferable license, during the Term, to display “Powered by ClimaCell” in connection with your permitted use of the APIs, solely in accordance with any usage guidelines provided by the Company. You acknowledge and agree that you will display “Powered by ClimaCell” in all instances of your use of the APIs in accordance with this Agreement. If you prefer not to display the “Powered by ClimaCell” marks you must contact ClimaCell immediately at sales@climacell.co. Except for the limited license set forth in this Section, you have no rights, title or interest in or to any of the Company’s trademarks or logos.
14. Indemnification
  1. You agree to indemnify and hold harmless us and our directors, officers, employees, and contractors, upon our request and at your own expense, from, and against, any damages, loss, costs, expenses and payments, including reasonable attorney’s fees and legal expenses, arising from any complaint, claim, plea, or demand brought by a third party (including any End User) in connection with, arising from or otherwise related to (a) your breach of this Agreement or (b) your gross negligence or willful misconduct.
  2. If we seek indemnification from you, we will provide you with (i) prompt written notice of any indemnifiable claim; (ii) reasonable assistance and cooperation in the defense of such indemnifiable claim and any related settlement negotiations, at your expense; and (iii) exclusive control over the defense or settlement of such indemnifiable claim, provided, however, that we may settle or reach compromise on any such claim without your consent, if and to the extent such settlement or compromise does not impose any liability (monetary, criminal or otherwise) on you. We will have the right to participate, our own expense, in the defense (and related settlement negotiations) of any indemnifiable claim with counsel of our own selection.
15. Governing Law and Venue
  1. This Agreement is exclusively governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, excluding its rules of conflict of laws.
  2. Any dispute, controversy or claim which may arise out of or in connection with this Agreement, shall be submitted to the sole and exclusive jurisdiction of the competent courts in Boston, Massachusetts. Subject to the following sentence, each party hereto hereby expressly consent to the exclusive personal jurisdiction and venue of such courts, and waive any objections related thereto including objections on the grounds of improper venue, lack of personal jurisdiction or forum non conveniens.
  3. Notwithstanding the foregoing, we may also lodge a claim against you: (a) pursuant to the indemnity clause above, in any court adjudicating a third party claim against us; and (b) for interim, emergency or injunctive relief in any other court having general jurisdiction over you.
16. Assignment

You may not assign this Agreement without our prior written consent. Any purported assignment without our prior written consent is void. To the greatest extent permissible by law, we may freely assign this Agreement in its entirety, including all right, duties, liabilities, performances and obligations herein, including in connection with a merger, acquisition, change of control or the sale of all or substantially all of our equity or assets. By virtue of such assignment, the assignee assumes our stead, including all right, duties, liabilities, performances and obligations hereunder, and we are released therefrom. Any assignments in violation of this Section shall be null and void.

17. Relationship of the Parties

The relationship between the parties hereto is strictly that of independent contractors, and neither party is an agent, partner, joint venturer or employee of the other.

18. Subcontracting

We may subcontract or delegate the performance of our obligations under this Agreement, or the provision of the Service or ClimaCell Technology (or any part thereof), to any third party of our choosing, provided however, that we remain liable to you for the performance of our obligations under this Agreement. You acknowledge and agree that the technical means by which we provide the Service and ClimaCell Technology is at our sole discretion.

19. Complete Agreement and Severability

This Agreement constitutes the entire and complete agreement between you and us concerning the subject matter herein. This Agreement supersedes all prior oral or written statements, understandings, negotiations and representations with respect to the subject matter herein. If any provision of this Agreement is held invalid or unenforceable, that provision shall be construed in a manner consistent with the applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining provisions will remain in full force and effect.

20. No waiver

Neither party will, by mere lapse of time, without giving express notice thereof, be deemed to have waived any breach, by the other party, of any terms or provisions of this Agreement. The waiver, by either party, of any such breach, will not be construed as a waiver of subsequent breaches or as a continuing waiver of such breach.

21. Force majeure

The Company will not be liable for any delay or failure to perform any obligations under this Agreement due to any cause beyond the Company’s reasonable control, including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications or other utility failures, earthquakes, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism or war.

22. Government Use

If you are part of an agency, department, or other entity of the United States Government (“Government”), the use, duplication, reproduction, release, modification, disclosure or transfer of the ClimaCell Technology are restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. The ClimaCell Technology is a “commercial item,” “commercial computer software” and “commercial computer software documentation.” In accordance with such provisions, any use of the ClimaCell Technology by the Government will be governed solely by the terms of this Agreement.

23. Export Controls

You will comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control (“OFAC”), or other United States or foreign agency or authority, and you will not export, or allow the export or re-export of the ClimaCell Technology in violation of any such restrictions, laws or regulations. By downloading or using the ClimaCell Technology, you agree to the foregoing and represents and warrants that you are not located in, under the control of, or a national or resident of any restricted country.

24. Modifications

We reserve the right, at our sole discretion, to change or modify portions of these Terms of Service at any time. If we do this, we will post the changes on this page and will indicate at the top of this page the date these Terms of Service were last revised. We will also notify you of any material changes, either through the Dashboard, in an email notification or through other reasonable means. Any such changes will become effective no earlier than fourteen (14) days after they are posted. Your continued use of the Service and ClimaCell Technology after the date any such changes become effective constitutes your acceptance of the new Terms of Service.