Effective June 20, 2023
PLEASE READ THESE TERMS OF SERVICE (“TERMS”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY CNAUGHT INC. (“CNAUGHT”). BY CREATING AN ACCOUNT ON CNAUGHT.COM OR BY MUTUALLY EXECUTING ONE OR MORE ORDER FORMS WITH CNAUGHT WHICH REFERENCE THESE TERMS (EACH, AN “ORDER FORM”), YOU (“CUSTOMER”) AGREE TO BE BOUND BY THESE TERMS (TOGETHER WITH ALL ORDER FORMS, THE “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS. IN ADDITION, ANY ONLINE ORDER FORM WHICH YOU SUBMIT VIA CNAUGHT’S STANDARD ONLINE PROCESS AND WHICH IS ACCEPTED BY CNAUGHT SHALL BE DEEMED TO BE MUTUALLY EXECUTED. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND SUCH ENTITY TO THE TERMS OF THIS AGREEMENT. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.
1. Order Forms; Access to the Service. Upon mutual execution, each Order Form shall be incorporated into and form a part of the Agreement. For each Order Form, subject to Customer’s compliance with the terms and conditions of this Agreement (including any limitations and restrictions set forth on the applicable Order Form), CNaught grants Customer a nonexclusive, limited, personal, nonsublicensable, nontransferable right and license to internally access and use the CNaught product(s) and/or service(s) specified in such Order Form (collectively, the“Service,” or “Services”) during the applicable Order Form Term (as defined below) for the internal business purposes of Customer, only as provided herein and only in accordance with CNaught’s applicable official user documentation for such Service (the “Documentation”).
2. Offsets. The Service may allow Customer to “purchase” (either directly or on behalf of Customer’s own customers or users) certain quantities of carbon offsets or similar assets relating to the reduction or sequestration of carbon or other greenhouse gasses (collectively, “Offsets”), which Offsets may be issued, managed, or otherwise regulated by one or more third party Offset registries and/or brokers (each, an “Offset Registry”). Customer acknowledges and agrees that notwithstanding anything else, any transactions with respect to Offsets (i) are subject to availability of Offsets from Offset Registries, (ii) may be rejected or delayed if insufficient Offsets are available to CNaught, and (iii) do not constitute a purchase, sale or resale of any Offsets, but instead represent a commitment by CNaught to retire the applicable quantity of Offsets on Customer’s behalf and within a commercially reasonable timeframe, subject to any rules, regulations, or other requirements of an Offset Registry, as applicable. Except as otherwise specified in an Order Form, all Offsets shall be fulfilled following the approach described on CNaught.com/approach and any amendments thereto (the “CNaught Impact Portfolio”). To the extent CNaught offers Customer one or more free tonnes of Offsets, those free tonnes will apply to Customer’s account as a credit in the amount of the standard pricing price per tonne of carbon that is on our pricing page at the time Customer accepts the offer. The credit will remain on Customer’s account and available for Customer to use for one year.
3. Implementation. Upon payment of any applicable fees set forth in each Order Form, CNaught agrees to use reasonable commercial efforts to provide standard implementation assistance for the Service only if and to the extent such assistance is set forth on such Order Form (“Implementation Assistance”). If CNaught provides Implementation Assistance in excess of any agreed-upon hours estimate, or if CNaught otherwise provides additional services beyond those agreed in an Order Form, Customer will pay CNaught at its then-current hourly rates for consultation.
4. Support; Service Levels. Subject to Customer’s payment of all applicable fees, CNaught will use reasonable efforts to provide support and availability for the Service.
5. Service Updates. From time to time, CNaught may provide upgrades, patches, enhancements, or fixes for the Services to its customers generally without additional charge (“Updates”), and such Updates will become part of the Services and subject to this Agreement; provided that CNaught shall have no obligation under this Agreement or otherwise to provide any such Updates. Customer understands that CNaught may make improvements and modifications to the Services at any time in its sole discretion; provided that CNaught shall use commercially reasonable efforts to give Customer reasonable prior notice of any major changes.
6. Ownership; Feedback. As between the parties, CNaught retains all right, title, and interest in and to the Services, and all software, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by CNaught for the purposes of this Agreement, including any copies and derivative works of the foregoing. Any software which is distributed or otherwise provided to Customer hereunder (including without limitation any software identified on an Order Form) shall be deemed a part of the “Services”and subject to all of the terms and conditions of this Agreement. No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement. Customer may (but is not obligated to)provide suggestions, comments or other feedback to CNaught with respect to theService (“Feedback”). CNaught acknowledges and agrees that all Feedback is provided “AS IS” and without warranty of any kind. Notwithstanding anything else, Customer shall, and hereby does, grant to CNaught a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose. Nothing in this Agreement will impair CNaught’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with any products, software or technologies that Customer may develop, produce, market, or distribute. Customer agrees that CNaught may identify Customer as a customer and may use Customer’s logo on its website and in other marketing materials.
7. Fees; Payment. Customer shall pay CNaught fees as set forth in each Order Form (“Fees”) at the time of execution of such Order Form. At CNaught’s sole discretion and with agreement of Customer, all Fees may instead be automatically charged to Customer’s payment method on file at the end of each month, with an invoice to follow shortly thereafter. Past due invoices are subject to interest on any outstanding balance of the lesser of 1.5% per month or the maximum amount permitted by law. Customer shall be responsible for all taxes associated with Service (excluding taxes based on CNaught’s net income). All Fees paid are non-refundable and are not subject to set-off. If Customer exceeds any user or usage limitations set forth on an Order Form, then (i) CNaught shall invoiceCustomer for such additional users or usage at the overage rates set forth on the Order Form (or if no overage rates are set forth on the Order Form, at CNaught’s then-current standard overage rates for such usage), in each case on a pro-rata basis from the first date of such excess usage through the end of the Order Form Initial Term or then-current Order Form Renewal Term (as applicable), and (ii) if such Order Form Term renews (in accordance with the section entitled “Term; Termination”, below, such renewal shall include the additional fees for such excess users and usage.
8. Restrictions. Except as expressly set forth in this Agreement,Customer shall not (and shall not permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Service (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Service; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Service; (iv) use the Service for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from the Service or any portion thereof; (vi) use the Service to build an application or product that is competitive with any CNaught product or service; (vii) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; or (viii) bypass any measures CNaught may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service). Customer is responsible for all of Customer’s activity in connection with the Service, including but not limited to uploading Customer Data (as defined below) onto the Service. Customer (a) shall use the Service in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Service(including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), and (b) shall not use the Service in a manner that violates any third party intellectual property, contractual or other proprietary rights. Customer will not make any representation, warranty or statement regarding any Offsets to any third party(including without limitation to any of Customer’s own customers) except as maybe expressly authorized in writing by CNaught (and without limiting any remedy available to CNaught, Customer shall defend, indemnify, and hold harmless CNaught, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives from all Losses (as defined below),that arise from or relate to Customer’s violation of the foregoing. Customer may from time to time have access to third-party ratings information through the CNaught platform. Various third-parties license those ratings to CNaught on terms which permit CNaught to grant to Customer the ability to view project ratings information for Customer or Customer’s business’ internal purposes. Customer may not transfer or share the ratings data or information derived from it or disclose it to a 3rd party for valuable consideration or otherwise. By accessing the third-party project ratings information via the CNaught platform, Customer agrees to be bound by this grant of limited usage and acknowledges that the ratings information provided by any third-party does not constitute any form of advice or recommendation with respect to the relevant carbon project. Customer agrees that neither CNaught nor its third-party partners that provide project ratings shall be liable whatsoever for any loss, expense, cost or liability, howsoever arising from Customer’s decision to procure credits from, participate in, invest in or in any manner take financial exposure with respect to any carbon project to which project ratings information refers.
9. Customer Data. For purposes of this Agreement, “Customer Data” shall mean any data, information or other material provided, uploaded, or submitted by Customer to the Service in the course of using the Service. Customer shall retain all right, title and interest in and to the Customer Data, including all intellectual property rights therein. Customer, not CNaught, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. Customer represents and warrants that it has all rights necessary to provide the Customer Data to CNaught as contemplated hereunder, in each case without any infringement, violation or misappropriation of any third party rights (including, without limitation, intellectual property rights and rights of privacy). CNaught shall use commercially reasonable efforts to maintain the security and integrity of the Service and the CustomerData. CNaught is not responsible toCustomer for unauthorized access to Customer Data or the unauthorized use of the Service unless such access is due to CNaught’s gross negligence or willful misconduct. Customer is responsible for the use of the Service by any person to whom Customer has given access to theService, even if Customer did not authorize such use. To the extent that the Customer Data includes any personal information, (i) CNaught will process, retain, use, and disclose such personal information only as necessary to provide the Services hereunder and as otherwise permitted under this Agreement, which constitutes a business purpose, (ii) CNaught agrees not to sell such personal data, to retain, use, or disclose such personal data for any commercial purpose other than the foregoing purposes, or to retain, use, or disclose such personal data outside of the scope of this Agreement. CNaught understands its obligations under applicable data protection laws and will comply with them. Customer agrees and acknowledges that Customer Data may be irretrievably deleted if Customer’s account is ninety (90) days or more delinquent. Notwithstanding anything to the contrary, Customer acknowledges and agrees that CNaught may (i) internally use and modify (but not disclose)Customer Data for the purposes of (A) providing the Service to Customer, (B)testing, improving, and operating CNaught’s products and services, and (C)generating Aggregated De-Identified Data (as defined below), and (ii) freely use, retain and make available Aggregated De-Identified Data for CNaught’s business purposes (including without limitation, for purposes of promoting and marketing CNaught’s products and services). “Aggregated De-Identified Data” means data submitted to, collected by, or generated by CNaught in connection withCustomer’s use of the Service, but only in aggregate, de-identified form which can in no way be linked specifically to Customer.
10. Third Party Integrations. Customer acknowledges and agrees that (i) the Service may operate on, with or using application programming interfaces (APIs) and/or other services operated or provided by third parties(e.g., other vendors of Customer) (“Third Party Integrations”), (ii) the availability and operation of the Service or certain portions thereof may be dependent on CNaught’s ability to access such Third Party Integrations, and(iii) Customer’s failure to provide adequate access or any retraction of permissions relating to such Third Party Integrations may result in a suspension or interruption of the Service. Customer hereby represents and warrants that it has all rights, licenses, permissions and consents necessary to connect, use and access any Third Party Integrations that it integrates with the Service, and Customer shall indemnify, defend and hold harmless the CNaught for all claims, damages and liabilities arising out of Customer’s use of anyThird Party Integrations in connection with or through the Service. CNaught cannot and does not guarantee that the Service shall incorporate (or continue to incorporate) any particular ThirdParty Integrations and does not make any representations or warranties with respect to Third Party Integrations. Customer is solely responsible for procuring any and all rights necessary for it to access Third PartyIntegrations (including any Customer Data or other information relating thereto) and for complying with any applicable terms or conditions thereof. Any exchange of data or other interaction between Customer and a third party provider is solely betweenCustomer and such third party provider and is governed by such third party’s terms and conditions.
11. Term; Termination. This Agreement shall commence upon the date of the first Order Form, and, unless earlier terminated in accordance herewith, shall last until the expiration of all Order Form Terms.
a. For each Order Form, unless otherwise specified therein, the “Order Form Term” shall begin as of the effective date set forth on such Order Form, and unless earlier terminated as set forth herein, (x) shall continue for the initial term specified on such Order Form (the “Order Form Initial Term”), and (y) following the Order Form Initial Term, shall automatically renew for additional successive periods of equal duration to the Order Form Initial Term (each, a “Order Form Renewal Term”) unless either party notifies the other party of such party’s intention not to renew no later than thirty (30) days prior to the expiration of the Order Form Initial Term or then-current Order Form Renewal Term, as applicable.
b. Notwithstanding the foregoing, for any Order Form that does not specify an Initial Term or for any online Order Form submitted through CNaught’s standard online process, unless otherwise set forth on such Order Form, (i) the Order Form Initial Term shall begin upon submission or execution of the Order Form and last the remainder of the calendar month in which the Order Form was submitted or executed, and (ii) the Order Form Term shall automatically renew for additional successive Order Form Renewal Terms of one calendar month each unless either party notifies the other party of such party’s intention not to renew no later than thirty (30) days prior to the expiration of the final contemplated Order Form Renewal Term, as applicable.
c. In the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by providing written notice to the breaching party, provided that the breaching party does not materially cure such breach within thirty (30) days of receipt of such notice. Without limiting the foregoing, CNaught may suspend or limit Customer’s access to or use of the Service if (i) Customer’s account is more than sixty (60) days past due, or (ii) Customer’s use of the Service results in (or is reasonably likely to result in) (A) damage to or material degradation of the Service which interferes with CNaught’s ability to provide access to the Service to other customers or (B) material damage to CNaught’s business or reputation; provided that in the case of subsection (ii): (a) CNaught shall use reasonable good faith efforts to work with Customer to resolve or mitigate the damage or degradation in order to resolve the issue without resorting to suspension or limitation; (b) prior to any such suspension or limitation, CNaught shall use commercially reasonable efforts to provide notice to Customer describing the nature of the damage or degradation; and (c) CNaught shall reinstate Customer’s use of or access to the Service, as applicable, if Customer remediates the issue within thirty (30) days of receipt of such notice. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, indemnity and limitations of liability. For clarity, any services provided by CNaught to Customer, including any assistance in exporting the Customer Data, shall be billable at CNaught’s standard rates then in effect.
12. Indemnification. Each party (“Indemnitor”) shall defend, indemnify, and hold harmless the other party, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives (collectively, the “Indemnitee”) from all liabilities, claims, and expenses paid or payable to an unaffiliated third party (including reasonable attorneys’ fees) (“Losses”), that arise from or relate to any claim that (i) the Customer Data or Customer’s use of the Service (in the case of Customer as Indemnitor), or (ii) the Service (in the case of CNaught as Indemnitor), infringes, violates, or misappropriates any third party intellectual property or proprietary right. Notwithstanding the foregoing, paragraph 12(ii) shall not apply to any Customer who solely submits an online Order Form submitted through CNaught’s standard online process. Each Indemnitor’s indemnification obligations hereunder shall be conditioned upon the Indemnitee providing the Indemnitor with: (x) prompt written notice of any claim (provided that a failure to provide such notice shall only relieve the Indemnitor of its indemnity obligations if the Indemnitor is materially prejudiced by such failure); (y) the option to assume sole control over the defense and settlement of any claim (provided that the Indemnitee may participate in such defense and settlement at its own expense); and (z) reasonable information and assistance in connection with such defense and settlement (at the Indemnitor’s expense). The foregoing obligations of CNaught do not apply with respect to the Service or any information, technology, materials or data (or any portions or components of the foregoing) to the extent (i) not created or provided by CNaught (including without limitation any Customer Data), (ii) made in whole or in part in accordance to Customer specifications, (iii) modified after delivery by CNaught, (iv) combined with other products, processes or materials not provided by CNaught (where the alleged Losses arise from or relate to such combination), (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) Customer’s use of the Service is not strictly in accordance herewith.
13. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICE AND ALL OFFSETS ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. WITHOUT LIMITING THE FOREGOING, EXCEPT TO THE EXTENT EXPRESSLY SET FORTH IN THIS AGREEMENT, CNAUGHT MAKES NO WARRANTY OR GUARANTEE ABOUT THE QUALITY OR OTHER CHARACTERISTICS OF ANY OFFSETS.
14. Limitation of Liability. EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS AND FOR CUSTOMER’S BREACH OF SECTION 8, IN NO EVENT SHALL EITHER PARTY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID (OR PAYABLE) BY CUSTOMER TO CNAUGHT HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER.
15. Miscellaneous. This Agreement (including all Order Forms) represents the entire agreement between Customer and CNaught with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and CNaught with respect thereto. In the event of any conflict between these Terms and an Order Form, the Order Form shall control. The Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law rules, and the parties consent to exclusive jurisdiction and venue in the state and federal courts located in San Francisco, California. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notices must be sent to the contacts for each party set forth on the Order Form. Either party may update its address set forth above by giving notice in accordance with this section. Except as otherwise provided herein, any provision of this Agreement may be amended or waived only by a writing executed by both parties. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts; or any other major and unexpected disruption to the broader carbon offset markets (each a “Force Majeure Event”). Neither party may assign any of its rights or obligations hereunder without the other party’s consent; provided that (i) either party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such party’s business relating to this Agreement, and (ii) CNaught may utilize subcontractors in the performance of its obligations hereunder. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches.