Carbonflow Switzerland, Ltd.
Welcome to Carbonflow! Carbonflow provides a suite of software applications used by organizations worldwide to manage, monitor, and monetize their emission reduction projects. We host unique Software-as-a-Service (SaaS) products that empower any company to undertake greenhouse gas (GHG) projects on a secure multi-party platform.
As part of the services made available by Carbonflow Switzerland, Ltd. (“Carbonflow” or “we”), Carbonflow will provide you with use of its services and its website at www.carbonflow.com (the “Website”), including a browser interface, transmission, access and storage, subject to your agreement to these Terms and Conditions of Service and, for fee based services, to Order Forms, Statements of Work and/or Training Agreements as defined below. Your registration for, or use of, Carbonflow’s services shall be deemed to be your agreement to abide by these Terms and Conditions of Service, including any materials available on the Website incorporated by reference herein, including but not limited to Carbonflow’s privacy and security policies.
BY ACCEPTING THESE TERMS AND CONDITIONS OF SERVICE, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM OR OTHER AGREEMENT THAT REFERENCES THESE TERMS AND CONDITIONS OF SERVICE, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS GOVERNING YOUR USE OF CARBONFLOW SWITZERLAND, LTD.’S ONLINE SERVICE AND ALL RELATED SERVICES AGREED BY YOU AND CARBONFLOW IN A SEPARATE AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT AGREE WITH ALL OF THESE TERMS AND CONDITIONS, YOU MUST SELECT THE “CANCEL” BUTTON AND MAY NOT USE THE SERVICE.
1. Definitions
As used in this Agreement, the following terms shall have the meanings set forth below:
“Agreement” means these online Terms and Conditions of Service, any Order Forms, whether written or submitted online, any Statement of Work Agreement, any Training Agreement and any materials available on the Carbonflow website specifically incorporated by reference herein, as such materials, including these Terms and Conditions, may be updated by Carbonflow from time to time in its sole discretion;
“Carbonflow” means Carbonflow Switzerland, Ltd, a Swiss Corporation, with offices at Technopark 1, Zürich 8005, Switzerland;
“Carbonflow Technology” means all of Carbonflow’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you by Carbonflow in providing the Service;
“Content” means the audio and visual information, documents, software, products and services contained or made available to you in the course of using the Service, but excludes any and all User Data;
“Client” means a person or entity who accesses and uses the Services for their own purposes and not on behalf of a third party, including without limitation each person or entity who has entered into an Order Form, Statement of Work or Training Agreement for a Service; You may be a Client;
“Effective Date” means the earlier of (i) the date these Terms and Conditions of Service are accepted by you by selecting the “AGREE AND CONTINUE” option presented on the Website after these Terms and Conditions of Service are displayed or made available via link, (ii) the date you begin using the Service and (iii) the date you execute an Order Form, Statement of Work or Training Agreement which incorporates by reference these Terms and Conditions of Service;
“Fees” means the fees for Services set forth in any applicable Order Form, Statement of Work and/or Training Agreement;
“Initial Term” shall have the meaning set forth in Section 14;
“Intellectual Property Rights” means inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world;
“Meta Data” means data generated about User Data or Use Data (for example, time stamps on activity, data logs, etc.), or generated from User Data or Use Data from multiple Clients, or from combining User Data or Use Data with data input by Carbonflow, or any other data requiring multiparty information to generate (for example, without limitation, statistical norms and reports and other aggregated data that does not specifically identify you);
“Order Form(s)” means the form evidencing the initial subscription for the Service and any subsequent order forms submitted online or in written form, specifying, among other things, the license and other services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties, each such Order Form to be incorporated into and to become a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of the Order Form shall prevail);
“Project” means the measure, operation or action that aims at reducing GHG emissions and for which the Service is used to automate the implementation, auditing, approval, delivery and/or distribution of emission credit(s);
“Quarterly Unit” means one fourth of a Unit, reflecting one entity access to one Service Element for three contiguous months.
“Service(s)” means the specific edition of the Carbonflow Technology and Content accessed online or other services identified during the ordering process, developed, operated, and maintained by Carbonflow, accessible via https://my.carbonflow.com or another designated web site or IP address, or ancillary online or offline products and services provided to you by Carbonflow, to which you are being granted access under this Agreement, including the Carbonflow Technology and the Content;
“Service Element” means the central Service object, for example in Connect+™ a single Project or in CarbonContracts™ a single emissions trading contract.
“Statement of Work” means a written statement of work that describes services to be provided by Carbonflow, which incorporates by reference these Terms and Conditions of Service, and which is executed by both you (or the applicable Client on whose behalf you access and use the Service) and Carbonflow;
“Training Agreement” is defined below in Section 9.
“Unit” means single entity access to one Service Element for one year; Units are separated into Quarterly Units for purposes of allocating use of the Service Element; Units cannot be divided into any other proportions other than Quarterly Units.
“Use Data” means data generated or collected in connection with the use by you or your affiliates, or by any User, of the programs or materials licensed herein, including, without limitation, all User Data, for the purpose of enabling Carbonflow to create statistical norms and reports for its Users;
“User(s)” means your employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by you (or by Carbonflow at your request). You are a User if you are agreeing to these Terms and Conditions of Service in connection with your own use of the Services as a Client or as an individual where your use is on behalf of, and authorized by, a third party Client.
“User Data” means any data, information or material provided or submitted by you to the Service in the course of using the Service;
2. Privacy & Security; Disclosure
Carbonflow’s privacy and security policies may be viewed here: Privacy and Security. Carbonflow will use commercially reasonable efforts to comply with these privacy and security policies. Carbonflow reserves the right to modify its privacy and security policies in its reasonable discretion from time to time. Individual users shall receive reasonable communications from Carbonflow from time to time including, but not limited to marketing and other Service-related communications. Note also that, because the Service is a hosted, online application, Carbonflow occasionally may need to notify all users of the Service of important announcements regarding the operation of the Service. If you become a Client of the Service, you agree that Carbonflow can disclose the fact that you are a Client using the Service.
3. License Grant & Restrictions
Carbonflow hereby grants you a non-exclusive, non-transferable, worldwide right to use the Service during the term of this Agreement and as provided in any applicable Order Form, Statement of Work and Training Agreement, solely for your own business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by Carbonflow and its licensors.
You may not access the Service if you are a direct competitor of Carbonflow, except with Carbonflow’s prior written consent. In addition, you may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet “links” to the Service or “frame” or “mirror” any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, (c) copy any ideas, features, functions or graphics of the Service or (d) utilize the Service to provide similar services to any third party.
You may use the Service only for your business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.
Except as expressly set forth in this Agreement, no license or other right in or to the Website, Services or Content are granted to You, by implication, estoppel, or otherwise, and all such licenses and rights are hereby reserved.
4. Your Responsibilities
You are responsible for all activity occurring under your User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify Carbonflow immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Carbonflow immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by you or your Users; and (iii) not impersonate another Carbonflow user or provide false identity information to gain access to or use the Service.
If you are authorized by the Client to purchase Services and/or to appoint project administrators, you may exercise such authority in connection with the Services. If you purchase Services or appoint project administrators in connection with the Services, you hereby represent and warrant that you are authorized to do so by the applicable Client.
5. Account Information and Data
You own all of your User Data. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all User Data. Carbonflow shall use commercially reasonable efforts to maintain the integrity of User Data once it has been entered into Carblonflow’s systems by you, but shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any User Data caused by you or your Users. In the event this Agreement is terminated (other than by reason of your breach), User Data will be available on the System for 30 days after termination. Carbonflow reserves the right to withhold, remove and/or discard User Data without notice for any breach, including, without limitation, non-payment. Upon termination for cause, your right to access or use User Data immediately ceases, and Carbonflow shall have no obligation to maintain or forward any User Data.
Notwithstanding your exclusive ownership of User Data, you hereby grant to Carbonflow a right to use and copy your User Data in order to provide the Services to the Client. In addition, Carbonflow shall have the right to utilize User Data for the purpose of abstracting Use Data. Examples of Use Data include averages and reports based on User’s internal Service Elements, duration of time a Service Element has been in Carbonflow’s systems, etc. Further, you grant to Carbonflow the perpetual right to use such User Data to generate Meta Data or to provide Services to the applicable Client and their authorized Users. All of the foregoing are subject to rights of confidentiality as set out in Carbonflow’s security policy.
Carbonflow shall have sole and exclusive ownership of all Meta Data; provided, however, any use by Carbonflow of Meta Data shall exclude individual User and/or Service Element identities and any information that would be reasonably likely to result in these identities being established by a third party, unless such disclosure is required by applicable laws, used to provide the Services to, or authorized by, the Client who owns or whose authorized Users provided the User or Use Data in question. Carbonflow may use Meta Data to provide certain of the Services or for any other purpose in perpetuity.
In the event that any User Data is generally known to the public or to Carbonflow when disclosed to Carbonflow or becomes known without Carbonflow violating this Agreement, Carbonflow shall have the right to use and/or disclose such User Data without limitation. In the event that User Data is disclosed by an authorized User in the System to another User, Carbonflow shall have the unrestricted right to continue to provide access to such User Data to the other User for such period of time and to the extent necessary given the nature of the access originally granted by User. Further, Carbonflow shall have the unrestricted right to disclose User Data if required by applicable law or regulation or a court of competent jurisdiction. Carbonflow shall have the right to maintain indefinitely copies of all User Data and Use Data, subject to the restrictions on disclosure set forth above, regardless of whether you continue to use the Service or not.
6. Intellectual Property Ownership
You agree and acknowledge that Carbonflow is the sole and exclusive owner of all right, title and interest, including all related Intellectual Property Rights, in and to the Carbonflow Technology, the Content and the Service. Further, you hereby assign to Carbonflow any and all suggestions, ideas, enhancement requests, feedback, recommendations or other information relating to the Service provided to Carbonflow by you and you agree to execute and deliver such documentation as may be reasonably requested by Carbonflow from time to time to evidence or perfect such assignment. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the Carbonflow Technology, Content or the Intellectual Property Rights therein. The Carbonflow name, the Carbonflow logo, and the product names associated with the Service are trademarks of Carbonflow or third parties, and no right or license is granted to such trademarks under this Agreement.
7. Third Party and Other User Interactions
During use of the Service, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers, sponsors or other Users showing their goods and/or services through the Service, or otherwise. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third-party or other User. Carbonflow and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third-party or other User. Carbonflow does not endorse any sites on the Internet that are linked through the Service. Carbonflow provides these links to you only as a matter of convenience, and in no event shall Carbonflow or its licensors be responsible for any content, products, or other materials on or available from such sites. Carbonflow provides the Service to you pursuant to the terms and conditions of this Agreement. You recognize, however, that certain third-party providers (including other Users) of ancillary software, hardware or services may require your agreement to additional or different license or other terms prior to your use of or access to such software, hardware or services.
8. Development Work
Any and all development work or customization requested by you shall be initiated by the completion of a separate Order Form and/or Statement of Work and shall be accomplished by Carbonflow in accordance with the applicable Statement of Work agreed to between Carbonflow and Client prior to Carbonflow commencing such work.
9. Training, Consulting and Support
Any and all training, consulting and/or support provided by Carbonflow either as part of an order for the Service or initiated by the completion of a separate Order Form shall be provided in accordance with Carbonflow’s training and support terms and conditions as in effect from time to time, the current version of which can be viewed at http://www.carbonflow.com/en/legal/product-service-terms, or any other written agreement regarding provision of training to you by Carbonflow (the “Training Agreement”).
10. Charges and Payment of Fees
You, as the Client, shall pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable, as set forth on the Order Form, Statement of Work and/or Training Agreement. Your obligation to make payment under this Agreement commences solely upon your execution of an Order Form, Statement of Work and/or Training Agreement.
To the extent that you are utilizing a Service Element and have not executed an Order Form for that Service Element, or otherwise executed an Order Form or other incorporated agreement permitting use of that Service Element, your use of that Service Element is limited by the rights and subject to payment of Fees and performance of the Client who started such Service Element and has executed an Order Form for that Service Element.
If you have executed an Order Form, Statement of Work or Training Agreement, unless otherwise stated therein, payment of all Fees shall be made to Carbonflow in the amounts and on terms as indicated on the applicable Order Form, Statement of Work or Training Agreement. All Fees shall be due as set forth on the Order Form, Statement of Work or Training Agreement and shall accrue interest at the lesser of (i) the highest rate permitted by applicable law and (ii) a rate of 1.5% per month until paid in full for all unpaid amounts more than thirty (30) days past due. If the Order Form, Statement of Work or Training Agreement includes different or additional payment terms, such terms shall take precedence over the terms of this Section 10.
All pricing terms are confidential information of Carbonflow, and you agree not to disclose them to any third party.
11. Data Storage
The maximum disk storage space provided to you at no additional charge is as specified at http://www.carbonflow.com/en/legal/product-service-terms (“Storage Limits”). If the amount of disk storage required exceeds these limits, you will be charged the then-current storage fees set forth on the Website or as may be agreed in the applicable Order Form or Statement of Work. Carbonflow will use reasonable efforts to notify you when the average storage used per Service Element reaches approximately 90% of the maximum; however, any failure by Carbonflow to so notify you shall not affect your responsibility for such additional storage charges. Carbonflow reserves the right to establish or modify its general practices and limits relating to storage of files and User Data.
12. Billing and Renewal
Carbonflow charges and collects fees for use of the Service as set forth on the applicable Order Form, Statement of Work or Training Agreement. Carbonflow will automatically issue an invoice to you each year or other timeframe set forth in the applicable Order Form, Statement of Work or Training Agreement, unless this Agreement or a contract for a particular Service are completed or terminated, bill your credit card or as otherwise mutually agreed upon. Fees for other services will be charged on an as-quoted basis. Unless otherwise provided in the applicable Order Form, Statement of Work or Training Agreement, all fees shall be due no later than 30 days after Client’s receipt of an invoice from Carbonflow. Carbonflow’s fees are exclusive of all taxes, levies, VAT or duties imposed by taxing or other authorities, and you shall be responsible for payment of all such taxes, levies, VAT or duties, relating to the Services only.
You agree to provide Carbonflow with complete and accurate billing and contact information. This information includes your legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact and organization administrator. You agree to update this information within 30 days of any change to it. If the contact information you have provided is false or fraudulent, Carbonflow reserves the right to terminate your access to the Service in addition to any other legal remedies.
Unless Carbonflow in its discretion determines otherwise, all Clients will be billed in Euros (€).
If you believe your bill is incorrect, you must contact us in writing within 30 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
13. Non-Payment and Suspension
In addition to any other rights granted to Carbonflow herein, Carbonflow reserves the right to suspend or terminate this Agreement and your access to the Service if your account becomes delinquent (falls into arrears). Client will continue to be charged for use of the Service during any period of suspension. If you or Carbonflow initiates termination of this Agreement, Client will be obligated to pay the balance due on the account computed in accordance with the Charges and Payment of Fees section above. Client agrees that Carbonflow may charge such unpaid fees to Client’s credit card (if applicable) or otherwise bill Client for such unpaid fees.
Carbonflow reserves the right to impose a reconnection fee in the event you are suspended and thereafter request access to the Service. You agree and acknowledge that Carbonflow has no obligation to retain User Data and that such User Data may be irretrievably deleted if Client account is 30 days or more delinquent.
14. Term and Termination
These Terms and Conditions of Service shall be effective beginning on the Effective Date and ending on the one (1) year anniversary of the Effective Date (the “Initial Term”) and shall renew for successive one (1) year periods thereafter (each, a “Renewal Term,” and together with the Initial Term, the “Term”) unless and until either party provides written notice of non-renewal at least thirty (30) days prior to the end of the then-current Initial Term or Renewal Term, unless earlier terminated pursuant to this Section 14, subject to modification by Carbonflow in Section 23 below. Either party may provide notice of non-renewal for any or no reason. Each applicable Order Form, Statement of Work or Training Agreement shall continue in effect for the term set forth in such documents or, if no term is provided therein, until these Terms and Conditions of Service are terminated or not renewed.
A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
Any breach of your payment obligations, where applicable, or unauthorized use of the Carbonflow Technology or Service will be deemed a material breach of this Agreement. Carbonflow, in its sole discretion, may terminate your password, account or use of the Service if you breach or otherwise fail to comply with this Agreement. Upon any termination for cause by you, Carbonflow shall refund you any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. Upon any termination for cause by Carbonflow, you shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve you of the obligation to pay any fees payable to Carbonflow for the period prior to the effective date of termination. You agree and acknowledge that Carbonflow has no obligation to retain the User Data, and may delete such User Data, if you have materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach.
Carbonflow reserves the right to suspend the rights of any User that Carbonflow believes is not in compliance with this Agreement. Further, Carbonflow reserves the right to terminate any User and/or Client for any or no reason upon thirty (30) days prior written notice, except to the extent Carbonflow agrees to provide services for a specified period in an Order Form, Statement of Work or Training Agreement. Carbonflow shall not be responsible for any damages arising from such termination.
15. Representations & Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Carbonflow represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct.
16. Additional Warranties and Disclaimers
Carbonflow warrants that the Service shall perform materially in accordance with the online User Guide. For any breach of such warranty, your exclusive remedy shall be as provided in Section 14 (Termination for Cause).
EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, CARBONFLOW DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED.
17. Mutual Indemnification
You shall indemnify and hold Carbonflow, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with: (i) a third party claim alleging that use of the User Data infringes the rights of, or has caused harm to, a third party; or (ii) a third party claim arising from your use of the Services, except to the extent such claim arises from Carbonflow’s breach of this Agreement, provided in any such case that Carbonflow (a) gives written notice of the claim promptly to you; (b) gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release Carbonflow of all liability arising from such claim and such settlement does not affect Carbonflow’s business or Service); (c) provides to you all available information and assistance; and (d) has not compromised or settled such claim.
Carbonflow shall indemnify and hold you and your parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with a third party claim alleging that the Service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; ; provided that you (a) promptly give written notice of the claim to Carbonflow; (b) give Carbonflow sole control of the defense and settlement of the claim (provided that Carbonflow may not settle or defend any claim unless such third party unconditionally releases you of all liability arising from such claim); (c) provide to Carbonflow all available information and assistance; and (d) have not compromised or settled such claim. Carbonflow shall have no indemnification obligation, and you shall indemnify Carbonflow pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of your products, service, hardware or business process(s).
18. Internet Delays
CARBONFLOW’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. CARBONFLOW IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, DATA LOSE, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
19. Limitation of Liability
EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 17 ABOVE, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY FOR ALL CLAIMS ARISING UNDER THIS AGREEMENT EXCEED THE LOWER OF (i) THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CLIENT IN THE THEN-PRIOR TWELVE (12) MONTH PERIOD; OR (ii) €100,000 (EUROS).
EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 17 ABOVE, IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
20. Additional Rights
Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.
21. Local Laws and Export Control
Carbonflow and its licensors make no representation that the Service is appropriate or available for use in other locations. If you use the Service from outside Switzerland, you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. None of the Content, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical or biological weapons, or missile projects.
22. Notice
Carbonflow may give notice by means of a general notice on the Service, electronic mail to your e-mail address on record in Carbonflow’s account information, or by written communication sent by first class mail or pre-paid post to your address on record in Carbonflow’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to Carbonflow (such notice shall be deemed given when received by Carbonflow) at any time by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Carbonflow at the following addresses (whichever is appropriate): Carbonflow Switzerland, Ltd., Technopark 1, Zürich 8005, Switzerland, addressed to the attention of: Chief Executive Officer.
23. Modification to Terms and Conditions of Service
CarbonFlow reserves the right to modify these Terms and Conditions of Service or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on the Website. You are responsible for regularly reviewing these Terms and Conditions of Service as posted on the Website. Continued use of the Service after any such changes shall constitute your consent to such changes.
24. Assignment; Change in Control
This Agreement may not be assigned, delegated or subcontracted by you without the prior written approval of Carbonflow. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of you that results or would result in a direct competitor of Carbonflow directly or indirectly owning or controlling 5% or more of you shall entitle Carbonflow to terminate this Agreement for cause immediately upon written notice. This Agreement shall be binding upon your successors and assigns.
25. General
This Agreement shall be governed by the law of Switzerland, without regard to its choice or conflicts of law provisions to the extent such provisions would apply the laws or regulations of any other jurisdiction. Any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Zürich, Switzerland.
No text or information set forth on any other purchase order, preprinted form or document (other than an Order Form, Statement of Work or Training Agreement signed by both you (or the Client on whose behalf you access and use the Services) and Carbonflow, if applicable) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and Carbonflow as a result of this agreement or use of the Service. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by the other party in writing. This Agreement, together with any applicable Order Form, Statement of Work or Training Agreement, comprises the entire agreement between you and Carbonflow and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. In the event of a conflict between this Agreement and the Order Form, Statement of Work or Training Agreement, the special provisions set forth in the Order Form, Statement of Work or Training Agreement shall govern.
Questions or Additional Information:
If you have questions regarding this Agreement or wish to obtain additional information, please send an e-mail to info@carbonflow.com
Version Effective October 1, 2011.