Terms & conditions
Last updated October 03, 2022
1. AGREEMENT TO TERMS
These Terms and Conditions constitute a legally binding agreement made between you, whether personally or on behalf of an entity (you) and Ecorithms Inc. ("Company", we, us, or our ), concerning your access to and use of the ecorithms.com website as well as any other media form, media channel, mobile website or mobile application related, linked, or otherwise connected thereto (collectively, the Site). We are registered in California, United States and have our registered office at 600 B street, San Diego, CA 92101. You agree that by accessing the Site, you have read, understood, and agree to be bound by all of these Terms and Conditions. IF YOU DO NOT AGREE WITH ALL OF THESE TERMS AND CONDITIONS, THEN YOU ARE EXPRESSLY PROHIBITED FROM USING THE SITE AND YOU MUST DISCONTINUE USE IMMEDIATELY.
Supplemental terms and conditions or documents that may be posted on the Site from time to time are hereby expressly incorporated herein by reference. We reserve the right, in our sole discretion, to make changes or modifications to these Terms and Conditions at any time and for any reason. We will alert you about any changes by updating the Last updated date of these Terms and Conditions, and you waive any right to receive specific notice of each such change. Please ensure that you check the applicable Terms every time you use our Site so that you understand which Terms apply. You will be subject to, and will be deemed to have been made aware of and to have accepted, the changes in any revised Terms and Conditions by your continued use of the Site after the date such revised Terms and Conditions are posted.
The information provided on the Site is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject us to any registration requirement within such jurisdiction or country. Accordingly, those persons who choose to access the Site from other locations do so on their own initiative and are solely responsible for compliance with local laws, if and to the extent local laws are applicable.
The Site is not tailored to comply with industry-specific regulations (Health Insurance Portability and Accountability Act (HIPAA), Federal Information Security Management Act (FISMA), etc.), so if your interactions would be subjected to such laws, you may not use this Site. You may not use the Site in a way that would violate the Gramm-Leach-Bliley Act (GLBA).
The Site is intended for users who are at least 18 years old. Persons under the age of 18 are not permitted to use or register for the Site.
2. INTELLECTUAL PROPERTY RIGHTS
Unless otherwise indicated, the Site is our proprietary property and all source code, databases, functionality, software, website designs, audio, video, text, photographs, and graphics on the Site (collectively, the Content) and the trademarks, service marks, and logos contained therein (the Mark) are owned or controlled by us or licensed to us, and are protected by copyright and trademark laws and various other intellectual property rights and unfair competition laws of the United States, international copyright laws, and international conventions. The Content and the Marks are provided on the Site AS IS or your information and personal use only. Except as expressly provided in these Terms and Conditions, no part of the Site and no Content or Marks may be copied, reproduced, aggregated, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted, distributed, sold, licensed, or otherwise exploited for any commercial purpose whatsoever, without our express prior written permission.
Provided that you are eligible to use the Site, you are granted a limited license to access and use the Site and to download or print a copy of any portion of the Content to which you have properly gained access solely for your personal, non-commercial use. We reserve all rights not expressly granted to you in and to the Site, the Content and the Marks.
3. USER REPRESENTATIONS
By using the Site, you represent and warrant that: (1) you have the legal capacity and you agree to comply with these Terms and Conditions; (2) you are not a minor in the jurisdiction in which you reside; (3) you will not access the Site through automated or non-human means, whether through a bot, script or otherwise; (4) you will not use the Site for any illegal or unauthorized purpose; and (5) your use of the Site will not violate any applicable law or regulation.
If you provide any information that is untrue, inaccurate, not current, or incomplete, we have the right to suspend or terminate your account and refuse any and all current or future use of the Site (or any portion thereof).
4. FEES AND PAYMENT
We accept the following forms of payment:
- Visa
- Mastercard
- American Express
- Discover
- ACH transfer
You may be required to purchase or pay a fee to access some of our services. You agree to provide current, complete, and accurate purchase and account information for all purchases made via the Site. You further agree to promptly update account and payment information, including email address, payment method, and payment card expiration date, so that we can complete your transactions and contact you as needed. We bill you through an online billing account for purchases made via the Site. Sales tax will be added to the price of purchases as deemed required by us. We may change prices at any time. All payments shall be in U.S. dollars.
You agree to pay all charges or fees at the prices then in effect for your purchases, and you authorize us to charge your chosen payment provider for any such amounts upon making your purchase. If your purchase is subject to recurring charges, then you consent to our charging your payment method on a recurring basis without requiring your prior approval for each recurring charge, until you notify us of your cancellation.
We reserve the right to correct any errors or mistakes in pricing, even if we have already requested or received payment. We also reserve the right to refuse any order placed through the Site.
5. CANCELLATION
All purchases are non-refundable. You can cancel your subscription at any time by contacting us using the contact information provided below. Your cancellation will take effect at the end of the current paid term.
If you are unsatisfied with our services, please email us at contact@ecorithms.com
6. PROHIBITED ACTIVITIES
You may not access or use the Site for any purpose other than that for which we make the Site available. The Site may not be used in connection with any commercial endeavors except those that are specifically endorsed or approved by us.
As a user of the Site, you agree not to:
Systematically retrieve data or other content from the Site to create or compile, directly or indirectly, a collection, compilation, database, or directory without written permission from us.
Trick, defraud, or mislead us and other users, especially in any attempt to learn sensitive account information such as user passwords.
Circumvent, disable, or otherwise interfere with security-related features of the Site, including features that prevent or restrict the use or copying of any Content or enforce limitations on the use of the Site and/or the Content contained therein.
Disparage, tarnish, or otherwise harm, in our opinion, us and/or the Site.
Use any information obtained from the Site in order to harass, abuse, or harm another person.
Make improper use of our support services or submit false reports of abuse or misconduct.
Use the Site in a manner inconsistent with any applicable laws or regulations.
Engage in unauthorized framing of or linking to the Site.
Upload or transmit (or attempt to upload or to transmit) viruses, Trojan horses, or other material, including excessive use of capital letters and spamming (continuous posting of repetitive text), that interferes with any party’s uninterrupted use and enjoyment of the Site or modifies, impairs, disrupts, alters, or interferes with the use, features, functions, operation, or maintenance of the Site.
Engage in any automated use of the system, such as using scripts to send comments or messages, or using any data mining, robots, or similar data gathering and extraction tools.
Delete the copyright or other proprietary rights notice from any Content.
Attempt to impersonate another user or person or use the username of another user.
Upload or transmit (or attempt to upload or to transmit) any material that acts as a passive or active information collection or transmission mechanism, including without limitation, clear graphics interchange formats (gifs), 1—1 pixels, web bugs, cookies, or other similar devices (sometimes referred to as spyware or passive collection mechanisms or pcms).
Interfere with, disrupt, or create an undue burden on the Site or the networks or services connected to the Site.
Harass, annoy, intimidate, or threaten any of our employees or agents engaged in providing any portion of the Site to you.
Attempt to bypass any measures of the Site designed to prevent or restrict access to the Site, or any portion of the Site.
Copy or adapt the Site’s software, including but not limited to Flash, PHP, HTML, JavaScript, or other code.
Except as permitted by applicable law, decipher, decompile, disassemble, or reverse engineer any of the software comprising or in any way making up a part of the Site.
Except as may be the result of standard search engine or Internet browser usage, use, launch, develop, or distribute any automated system, including without limitation, any spider, robot, cheat utility, scraper, or offline reader that accesses the Site, or using or launching any unauthorized script or other software.
Use a buying agent or purchasing agent to make purchases on the Site.
Make any unauthorized use of the Site, including collecting usernames and/or email addresses of users by electronic or other means for the purpose of sending unsolicited email, or creating user accounts by automated means or under false pretenses.
Use the Site as part of any effort to compete with us or otherwise use the Site and/or the Content for any revenue-generating endeavor or commercial enterprise.
Systematically retrieving data or content from your Site to create a collection or database without written permission from you.
Attempt to upload or transmit viruses, Trojan horses, or other materials (including excessive use of capital letters and spamming) that interferes with any party's uninterrupted use of your Site and its features.
Use scripts, data-mining, robots, or similar data gathering tools to send comments or messages.
Delete the copyright or other proprietary rights notice from any content.
Impersonate another user or person or use the username of another user.
Interfere, disrupt, or create an undue burden on your Site, networks, or services.
Harass, annoy, intimidate, or threaten any of our employees or agents engaged in providing any portion of your Site to you
Copy/adapt your Site's software (includes Flash, PHP, HTML, JavaScript, or other code).
Decipher, decompile, disassemble, or reverse engineer any of the software that makes up your Site.
7. USER GENERATED CONTRIBUTIONS
The Site may invite you to chat, contribute to, or participate in blogs, message boards, online forums, and other functionality, and may provide you with the opportunity to create, submit, post, display, transmit, perform, publish, distribute, or broadcast content and materials to us or on the Site, including but not limited to text, writings, video, audio, photographs, graphics, comments, suggestions, or personal information or other material (collectively, "Contributions"). Contributions may be viewable by other users of the Site and through third-party websites. As such, any Contributions you transmit may be treated as non-confidential and non-proprietary. When you create or make available any Contributions, you thereby represent and warrant that:
The creation, distribution, transmission, public display, or performance, and the accessing, downloading, or copying of your Contributions do not and will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark, trade secret, or moral rights of any third party.
You are the creator and owner of or have the necessary licenses, rights, consents, releases, and permissions to use and to authorize us, the Site, and other users of the Site to use your Contributions in any manner contemplated by the Site and these Terms and Conditions.
You have the written consent, release, and/or permission of each and every identifiable individual person in your Contributions to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of your Contributions in any manner contemplated by the Site and these Terms and Conditions.
Your Contributions are not false, inaccurate, or misleading.
Your Contributions are not unsolicited or unauthorized advertising, promotional materials, pyramid schemes, chain letters, spam, mass mailings, or other forms of solicitation.
Your Contributions are not obscene, lewd, lascivious, filthy, violent, harassing, libelous, slanderous, or otherwise objectionable (as determined by us).
Your Contributions do not ridicule, mock, disparage, intimidate, or abuse anyone.
Your Contributions are not used to harass or threaten (in the legal sense of those terms) any other person and to promote violence against a specific person or class of people.
Your Contributions do not violate any applicable law, regulation, or rule.
Your Contributions do not violate the privacy or publicity rights of any third party.
Your Contributions do not violate any applicable law concerning child pornography, or otherwise intended to protect the health or well-being of minors.
Your Contributions do not include any offensive comments that are connected to race, national origin, gender, sexual preference, or physical handicap.
Your Contributions do not otherwise violate, or link to material that violates, any provision of these Terms and Conditions, or any applicable law or regulation.
Any use of the Site in violation of the foregoing violates these Terms and Conditions and may result in, among other things, termination or suspension of your rights to use the Site.
8. CONTRIBUTION LICENSE
By posting your Contributions to any part of the Site, you automatically grant, and you represent and warrant that you have the right to grant, to us an unrestricted, unlimited, irrevocable, perpetual, non-exclusive, transferable, royalty-free, fully-paid, worldwide right, and license to host, use, copy, reproduce, disclose, sell, resell, publish, broadcast, retitle, archive, store, cache, publicly perform, publicly display, reformat, translate, transmit, excerpt (in whole or in part), and distribute such Contributions (including, without limitation, your image and voice) for any purpose, commercial, advertising, or otherwise, and to prepare derivative works of, or incorporate into other works, such Contributions, and grant and authorize sublicenses of the foregoing. The use and distribution may occur in any media formats and through any media channels.
This license will apply to any form, media, or technology now known or hereafter developed, and includes our use of your name, company name, and franchise name, as applicable, and any of the trademarks, service marks, trade names, logos, and personal and commercial images you provide. You waive all moral rights in your Contributions, and you warrant that moral rights have not otherwise been asserted in your Contributions.
We do not assert any ownership over your Contributions. You retain full ownership of all of your Contributions and any intellectual property rights or other proprietary rights associated with your Contributions. We are not liable for any statements or representations in your Contributions provided by you in any area on the Site. You are solely responsible for your Contributions to the Site and you expressly agree to exonerate us from any and all responsibility and to refrain from any legal action against us regarding your Contributions.
We have the right, in our sole and absolute discretion, (1) to edit, redact, or otherwise change any Contributions; (2) to re-categorize any Contributions to place them in more appropriate locations on the Site; and (3) to pre-screen or delete any Contributions at any time and for any reason, without notice. We have no obligation to monitor your Contributions.
9. GUIDELINES FOR REVIEWS
We may provide you areas on the Site to leave reviews or ratings. When posting a review, you must comply with the following criteria: (1) you should have firsthand experience with the person/entity being reviewed; (2) your reviews should not contain offensive profanity, or abusive, racist, offensive, or hate language; (3) your reviews should not contain discriminatory references based on religion, race, gender, national origin, age, marital status, sexual orientation, or disability; (4) your reviews should not contain references to illegal activity; (5) you should not be affiliated with competitors if posting negative reviews; (6) you should not make any conclusions as to the legality of conduct; (7) you may not post any false or misleading statements; and (8) you may not organize a campaign encouraging others to post reviews, whether positive or negative.
We may accept, reject, or remove reviews in our sole discretion. We have absolutely no obligation to screen reviews or to delete reviews, even if anyone considers reviews objectionable or inaccurate. Reviews are not endorsed by us, and do not necessarily represent our opinions or the views of any of our affiliates or partners. We do not assume liability for any review or for any claims, liabilities, or losses resulting from any review. By posting a review, you hereby grant to us a perpetual, non-exclusive, worldwide, royalty-free, fully-paid, assignable, and sublicensable right and license to reproduce, modify, translate, transmit by any means, display, perform, and/or distribute all content relating to reviews.
10. SUBMISSIONS
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback, or other information regarding the Site ("Submissions") provided by you to us are non-confidential and shall become our sole property. We shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any lawful purpose, commercial or otherwise, without acknowledgment or compensation to you. You hereby waive all moral rights to any such Submissions, and you hereby warrant that any such Submissions are original with you or that you have the right to submit such Submissions. You agree there shall be no recourse against us for any alleged or actual infringement or misappropriation of any proprietary right in your Submissions.
11. THIRD-PARTY WEBSITES AND CONTENT
The Site may contain (or you may be sent via the Site) links to other websites ("Third-Party Websites") as well as articles, photographs, text, graphics, pictures, designs, music, sound, video, information, applications, software, and other content or items belonging to or originating from third parties ("Third-Party Content"). Such Third-Party Websites and Third-Party Content are not investigated, monitored, or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Third-Party Websites accessed through the Site or any Third-Party Content posted on, available through, or installed from the Site, including the content, accuracy, offensiveness, opinions, reliability, privacy practices, or other policies of or contained in the Third-Party Websites or the Third-Party Content. Inclusion of, linking to, or permitting the use or installation of any Third-Party Websites or any Third-Party Content does not imply approval or endorsement thereof by us. If you decide to leave the Site and access the Third-Party Websites or to use or install any Third-Party Content, you do so at your own risk, and you should be aware these Terms and Conditions no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any website to which you navigate from the Site or relating to any applications you use or install from the Site. Any purchases you make through Third-Party Websites will be through other websites and from other companies, and we take no responsibility whatsoever in relation to such purchases which are exclusively between you and the applicable third party. You agree and acknowledge that we do not endorse the products or services offered on Third-Party Websites and you shall hold us harmless from any harm caused by your purchase of such products or services. Additionally, you shall hold us harmless from any losses sustained by you or harm caused to you relating to or resulting in any way from any Third-Party Content or any contact with Third-Party Websites.
12. U.S. GOVERNMENT RIGHTS
Our services are commercial items as defined in Federal Acquisition Regulation (FAR) 2.101. If our services are acquired by or on behalf of any agency not within the Department of Defense (DOD), our services are subject to the terms of these Terms and Conditions in accordance with FAR 12.212 (for computer software) and FAR 12.211 (for technical data). If our services are acquired by or on behalf of any agency within the Department of Defense, our services are subject to the terms of these Terms and Conditions in accordance with Defense Federal Acquisition Regulation (DFARS) 227.7202-3. In addition, DFARS 252.227-7015 applies to technical data acquired by the DOD. This U.S. Government Rights clause is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses government rights in computer software or technical data under these Terms and Conditions.
13. SITE MANAGEMENT
We reserve the right, but not the obligation, to: (1) monitor the Site for violations of these Terms and Conditions; (2) take appropriate legal action against anyone who, in our sole discretion, violates the law or these Terms and Conditions, including without limitation, reporting such user to law enforcement authorities; (3) in our sole discretion and without limitation, refuse, restrict access to, limit the availability of, or disable (to the extent technologically feasible) any of your Contributions or any portion thereof; (4) in our sole discretion and without limitation, notice, or liability, to remove from the Site or otherwise disable all files and content that are excessive in size or are in any way burdensome to our systems; and (5) otherwise manage the Site in a manner designed to protect our rights and property and to facilitate the proper functioning of the Site.
14. PRIVACY POLICY
We care about data privacy and security. Please review our Privacy Policy: www.ecorithms.com/privacy. By using the Site, you agree to be bound by our Privacy Policy, which is incorporated into these Terms and Conditions. Please be advised the Site is hosted in the United States. If you access the Site from any other region of the world with laws or other requirements governing personal data collection, use, or disclosure that differ from applicable laws in the United States, then through your continued use of the Site, you are transferring your data to the United States, and you agree to have your data transferred to and processed in the United States.
15. COPYRIGHT INFRINGEMENTS
We respect the intellectual property rights of others. If you believe that any material available on or through the Site infringes upon any copyright you own or control, please immediately notify us using the contact information provided below (Notification). A copy of your Notification will be sent to the person who posted or stored the material addressed in the Notification. Please be advised that pursuant to applicable law you may be held liable for damages if you make material misrepresentations in a Notification. Thus, if you are not sure that material located on or linked to by the Site infringes your copyright, you should consider first contacting an attorney.
16. TERM AND TERMINATION
These Terms and Conditions shall remain in full force and effect while you use the Site. WITHOUT LIMITING ANY OTHER PROVISION OF THESE TERMS AND CONDITIONS, WE RESERVE THE RIGHT TO, IN OUR SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF THE SITE (INCLUDING BLOCKING CERTAIN IP ADDRESSES), TO ANY PERSON FOR ANY REASON OR FOR NO REASON, INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY REPRESENTATION, WARRANTY, OR COVENANT CONTAINED IN THESE TERMS AND CONDITIONS OR OF ANY APPLICABLE LAW OR REGULATION. WE MAY TERMINATE YOUR USE OR PARTICIPATION IN THE SITE OR DELETE ANY CONTENT OR INFORMATION THAT YOU POSTED AT ANY TIME, WITHOUT WARNING, IN OUR SOLE DISCRETION.
If we terminate or suspend your account for any reason, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your account, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.
17. MODIFICATIONS AND INTERRUPTIONS
We reserve the right to change, modify, or remove the contents of the Site at any time or for any reason at our sole discretion without notice. However, we have no obligation to update any information on our Site. We also reserve the right to modify or discontinue all or part of the Site without notice at any time. We will not be liable to you or any third party for any modification, price change, suspension, or discontinuance of the Site.
We cannot guarantee the Site will be available at all times. We may experience hardware, software, or other problems or need to perform maintenance related to the Site, resulting in interruptions, delays, or errors. We reserve the right to change, revise, update, suspend, discontinue, or otherwise modify the Site at any time or for any reason without notice to you. You agree that we have no liability whatsoever for any loss, damage, or inconvenience caused by your inability to access or use the Site during any downtime or discontinuance of the Site. Nothing in these Terms and Conditions will be construed to obligate us to maintain and support the Site or to supply any corrections, updates, or releases in connection therewith.
18. GOVERNING LAW
These Terms and Conditions and your use of the Site are governed by and construed in accordance with the laws of the State of California applicable to agreements made and to be entirely performed within the State of California, without regard to its conflict of law principles.
19. DISPUTE RESOLUTION
Informal Negotiations
To expedite resolution and control the cost of any dispute, controversy, or claim related to these Terms and Conditions (each "Dispute" and collectively, the Disputes) brought by either you or us (individually, a Party and collectively, the Parties), the Parties agree to first attempt to negotiate any Dispute (except those Disputes expressly provided below) informally for at least thirty (30) days before initiating arbitration. Such informal negotiations commence upon written notice from one Party to the other Party.
Binding Arbitration
If the Parties are unable to resolve a Dispute through informal negotiations, the Dispute (except those Disputes expressly excluded below) will be finally and exclusively resolved by binding arbitration. YOU UNDERSTAND THAT WITHOUT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association ("AAA") and, where appropriate, the AAA™s Supplementary Procedures for Consumer Related Disputes ("AAA Consumer Rules"), both of which are available at the AAA website www.adr.org. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Consumer Rules and, where appropriate, limited by the AAA Consumer Rules. The arbitration may be conducted in person, through the submission of documents, by phone, or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by either Party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except where otherwise required by the applicable AAA rules or applicable law, the arbitration will take place in San Diego, California. Except as otherwise provided herein, the Parties may litigate in court to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
If for any reason, a Dispute proceeds in court rather than arbitration, the Dispute shall be commenced or prosecuted in the state and federal courts located in Georgetown, Delaware, and the Parties hereby consent to, and waive all defenses of lack of personal jurisdiction, and forum non conveniens with respect to venue and jurisdiction in such state and federal courts. Application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act (UCITA) are excluded from these Terms and Conditions.
In no event shall any Dispute brought by either Party related in any way to the Site be commenced more than one (1) years after the cause of action arose. If this provision is found to be illegal or unenforceable, then neither Party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the Parties agree to submit to the personal jurisdiction of that court.
Restrictions
The Parties agree that any arbitration shall be limited to the Dispute between the Parties individually. To the full extent permitted by law, (a) no arbitration shall be joined with any other proceeding; (b) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (c) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
Exceptions to Informal Negotiations and Arbitration
The Parties agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (a) any Disputes seeking to enforce or protect, or concerning the validity of, any of the intellectual property rights of a Party; (b) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy, or unauthorized use; and (c) any claim for injunctive relief. If this provision is found to be illegal or unenforceable, then neither Party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the Parties agree to submit to the personal jurisdiction of that court.
20. CORRECTIONS
There may be information on the Site that contains typographical errors, inaccuracies, or omissions, including descriptions, pricing, availability, and various other information. We reserve the right to correct any errors, inaccuracies, or omissions and to change or update the information on the Site at any time, without prior notice.
21. DISCLAIMER
THE SITE IS PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS. YOU AGREE THAT YOUR USE OF THE SITE AND OUR SERVICES WILL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SITE AND YOUR USE THEREOF, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE SITES CONTENT OR THE CONTENT OF ANY WEBSITES LINKED TO THE SITE AND WE WILL ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (1) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND MATERIALS, (2) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SITE, (3) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (4) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SITE, (5) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SITE BY ANY THIRD PARTY, AND/OR (6) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SITE. WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SITE, ANY HYPERLINKED WEBSITE, OR ANY WEBSITE OR MOBILE APPLICATION FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND WE WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
22. LIMITATIONS OF LIABILITY
IN NO EVENT WILL WE OR OUR DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT, LOST REVENUE, LOSS OF DATA, OR OTHER DAMAGES ARISING FROM YOUR USE OF THE SITE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO US DURING THE TWO (2) MONTH PERIOD PRIOR TO ANY CAUSE OF ACTION ARISING. CERTAIN US STATE LAWS AND INTERNATIONAL LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
23. INDEMNIFICATION
You agree to defend, indemnify, and hold us harmless, including our subsidiaries, affiliates, and all of our respective officers, agents, partners, and employees, from and against any loss, damage, liability, claim, or demand, including reasonable attorneys fees and expenses, made by any third party due to or arising out of: (1) your Contributions; (2) use of the Site; (3) breach of these Terms and Conditions; (4) any breach of your representations and warranties set forth in these Terms and Conditions; (5) your violation of the rights of a third party, including but not limited to intellectual property rights; or (6) any overt harmful act toward any other user of the Site with whom you connected via the Site. Notwithstanding the foregoing, we reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate, at your expense, with our defense of such claims. We will use reasonable efforts to notify you of any such claim, action, or proceeding which is subject to this indemnification upon becoming aware of it.
24. USER DATA
We will maintain certain data that you transmit to the Site for the purpose of managing the performance of the Site, as well as data relating to your use of the Site. Although we perform regular routine backups of data, you are solely responsible for all data that you transmit or that relates to any activity you have undertaken using the Site. You agree that we shall have no liability to you for any loss or corruption of any such data, and you hereby waive any right of action against us arising from any such loss or corruption of such data.
25. ELECTRONIC COMMUNICATIONS, TRANSACTIONS, AND SIGNATURES
Visiting the Site, sending us emails, and completing online forms constitute electronic communications. You consent to receive electronic communications, and you agree that all agreements, notices, disclosures, and other communications we provide to you electronically, via email and on the Site, satisfy any legal requirement that such communication be in writing. YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS, AND OTHER RECORDS, AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED BY US OR VIA THE SITE. You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means.
26. CALIFORNIA USERS AND RESIDENTS
If any complaint with us is not satisfactorily resolved, you can contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 North Market Blvd., Suite N 112, Sacramento, California 95834 or by telephone at (800) 952-5210 or (916) 445-1254.
27. MISCELLANEOUS
These Terms and Conditions and any policies or operating rules posted by us on the Site or in respect to the Site constitute the entire agreement and understanding between you and us. Our failure to exercise or enforce any right or provision of these Terms and Conditions shall not operate as a waiver of such right or provision. These Terms and Conditions operate to the fullest extent permissible by law. We may assign any or all of our rights and obligations to others at any time. We shall not be responsible or liable for any loss, damage, delay, or failure to act caused by any cause beyond our reasonable control. If any provision or part of a provision of these Terms and Conditions is determined to be unlawful, void, or unenforceable, that provision or part of the provision is deemed severable from these Terms and Conditions and does not affect the validity and enforceability of any remaining provisions. There is no joint venture, partnership, employment or agency relationship created between you and us as a result of these Terms and Conditions or use of the Site. You agree that these Terms and Conditions will not be construed against us by virtue of having drafted them. You hereby waive any and all defenses you may have based on the electronic form of these Terms and Conditions and the lack of signing by the parties hereto to execute these Terms and Conditions.
28. CONTACT US
In order to resolve a complaint regarding the Site or to receive further information regarding use of the Site, please contact us at:
Ecorithms Inc.
600 B street San Diego, CA 92101 United States
support@ecorithms.com
STANDARD SERVICE AGREEMENT
Last Modified: June 12, 2023
This Software as a Service Agreement (this “Agreement”) is a binding contract between you (“Client,” “you,” or “your”) and Ecorithms Inc. (“Provider,” “we,” or “us”). This Agreement governs your access to and use of the Services.
THIS AGREEMENT TAKES EFFECT BY ACCESSING OR USING THE SERVICES (the “Effective Date”). BY ACCESSING OR USING THE SERVICES YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND, IF ENTERING INTO THIS
AGREEMENT FOR AN ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICES.
1. DEFINITIONS
“Access Credentials” means any username, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device, used alone or in combination, to verify an individual’s identity and authorization to access and use the
Services. “Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise. “Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise of more than 50% of the voting securities of a Person. “Authorized Users” means Client’s employees, consultants, contractors, and agents (a) who are authorized by Client to access and use the Services under the rights granted to Client pursuant to this Agreement; and (b) for whom access to the Services has been purchased
hereunder.
“Client Data” means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly, from Client or an Authorized User by or through the Services or that incorporates or is derived from the Processing of such information, data, or content by or through the Services. For the avoidance of doubt, Client Data does not include Resultant Data or any other information reflecting the access or use of the Services by or on behalf of Client or any Authorized User.
“Client Systems” means the Client’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Client or through the use of third-party
services.
“Documentation” means any manuals, instructions, or other documents or materials that the Provider provides or makes available to Client in any form or medium and which describe the functionality, components, features, or requirements of the Services or Provider Materials, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.
“Harmful Code” means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data Processed thereby; or (b) prevent Client or any Authorized User from accessing or using the Services or Provider Systems as intended by this Agreement.
Harmful Code does not include any Provider Disabling Device.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
“Losses” means any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers. “Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
“Personal Information” means information that Client provides or for which Client provides access to Provider, or information which Provider creates or obtains on behalf of Client, in accordance with this Agreement that: (i) directly or indirectly identifies an individual; or (ii) can be used to authenticate an individual. Client’s business contact information is not by itself Personal Information.
“Process” means to take any action or perform any operation or set of operations that the Services are capable of taking or performing on any data, information, or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize,
compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or block, erase, or destroy. “Processing” and “Processed” have correlative meanings.
“Provider Disabling Device” means any software, hardware, or other technology, device, or means (including any back door, time bomb, time out, drop dead device, software routine, or other disabling device) used by Provider or its designee to disable Client’s or any Authorized User’s access to or use of the Services automatically with the passage of time or under the positive control of Provider or its designee.
“Provider Materials” means the Services, Specifications, Documentation, and Provider Systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by Provider or any subcontractor in connection with the Services or otherwise comprise or relate to the Services or Provider Systems. For the avoidance of doubt, Provider Materials include Resultant Data and any information, data, or other content derived
from Provider’s monitoring of Client’s access to or use of the Services, but do not include Client Data.
“Provider Personnel” means all individuals involved in the performance of Services as employees, agents, or independent contractors of Provider or any subcontractor.
“Provider Systems” means the information technology infrastructure used by or on behalf of Provider in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Provider or through the use of third-party services.
“Representatives” means, with respect to a party, that party’s and its Affiliates’ employees, officers, directors, consultants, agents, independent contractors, service providers, sublicensees, subcontractors, and legal advisors.
“Resultant Data” means data and information related to Client’s use of the Services that is used by Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
“Services” means the services provided by Provider under this Agreement that are detailed on Provider’s website available at https://ecorithms.com.
“Specifications” means the specifications for the Services as may be provided to Client from time to time.
“Third-Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, hardware, equipment, or components of or relating to the Services that are not proprietary to Provider.
2. SERVICES
2.1. Access and Use.
Subject to and conditioned on Client’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, Provider hereby grants Client a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 13.4 ) right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Client’s internal business purposes and solely with compatible hardware. Provider shall provide to Client the Access
Credentials within a reasonable time following the Effective Date.
2.2. Documentation License.
Provider hereby grants to Client a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 13.4 ) license to use the Documentation during the Term solely for Client’s internal business purposes in connection with its use of the Services.
2.3. Service and System Control.
Except as otherwise expressly provided in this Agreement, as between the parties: (a) Provider has and will retain sole control over the
operation, provision, maintenance, and management of the Provider Materials; and (b) Client has and will retain sole control over the operation, maintenance, and management of, and all access to and use of, the Client Systems, and sole responsibility for all access to and use of the Provider Materials by any Person by or through the Client Systems or any other means controlled by Client or any Authorized User, including any: (i) information, instructions, or materials provided by any of them to the Services or Provider; (ii) results obtained from any use of the Services or Provider Materials; and (iii) conclusions, decisions, or actions based on such use.
2.4. Reservation of Rights.
Nothing in this Agreement grants any right, title, or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services, Provider Materials, or Third-Party Materials, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Services, the Provider Materials, and the Third-Party Materials are and will remain with Provider and the respective rights holders in the Third-Party Materials.
2.5. Changes.
Provider reserves the right, in its sole discretion, to make any changes to the Services and Provider Materials that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of Provider’s services to its customers; (ii) the competitive strength of or market for Provider’s services; or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable Law.
2.6. Suspension or Termination of Services.
Provider may, directly or indirectly, and by use of a Provider Disabling Device or any other lawful means, suspend, terminate, or
otherwise deny Client’s, any Authorized User’s, or any other Person’s access to or use of all or any part of the Services or Provider Materials, without incurring any resulting obligation or liability, if: (a) Provider receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Provider to do so; or (b) Provider believes, in its sole discretion, that: (i) Client or any Authorized User has failed to comply with any term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement of the Specifications; (ii) Client or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities; or (iii) this Agreement expires or is terminated. This Section 2.6 does not limit any of Provider’s other rights or remedies, whether at law, in equity, or under this Agreement.
3. USE RESTRICTIONS
Client shall not, and shall not permit any other Person to, access or use the Services or Provider Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Client shall not, except as this Agreement expressly permits: (a) copy, modify, or create derivative works or improvements of the Services or Provider Materials; (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Services or Provider Materials to any Person, including on or in
connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services or Provider Materials, in whole or in part; (d) bypass or breach any security device or protection used by the Services or Provider Materials or access or use the Services or Provider Materials other than by an Authorized User through the use of his or her own then valid Access Credentials; (e) input, upload, transmit, or otherwise provide to or through the Services or Provider Systems, any
information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code; (f) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services, Provider Systems, or Provider’s provision of services to any third party, in whole or in part; (g) remove, delete, alter, or obscure any trademarks, Specifications, Documentation, end user license agreements, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Services or Provider Materials, including any copy thereof; (h) access or use the Services or Provider Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of
any other Provider customer), or that violates any applicable Law; (i) access or use the Services or Provider Materials for purposes of competitive analysis of the Services or Provider Materials, the development, provision, or use of a competing software service or product or any other purpose that is to the Provider’s detriment or commercial disadvantage; or (j) otherwise access or use the Services or Provider Materials beyond the scope of the authorization granted under this Section 3.
4. CLIENT OBLIGATIONS
4.1. Client Systems and Cooperation.
Client shall at all times during maintain, and operate in good repair all Client Systems necessary for use of the Services and provide all cooperation and assistance as Provider may reasonably request to enable Provider to exercise its rights and perform its obligations under and in connection with this Agreement.
4.2. Additional Services and Products.
Client agrees to independently acquire and pay for any services, hardware and software not included as part of, but necessary for the use of, the Services, including all communications, computers, cameras, and devices.
4.3. Effect of Client Failure or Delay.
Provider is not responsible or liable for any delay or failure of performance caused in whole or in part by Client’s delay in
performing, or failure to perform, any of its obligations under this Agreement (each, a “Client Failure”).
4.4. Corrective Action and Notice.
If Client becomes aware of any actual or threatened activity prohibited by Section 3 (“Prohibited Activity”), Client shall, and shall
cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the Prohibited Activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and Provider Materials and permanently erasing from their systems and destroying
any data to which any of them have gained unauthorized access); and (b) notify Provider of any Prohibited Activity.
4.5. Use of Services.
Client will remain responsible for the manner in which it uses Services, including the manner in which it interprets and acts upon any information provided through the Services. Client shall be responsible for any unauthorized creation,
collection, receipt, transmission, access, storage, disposal, use, or disclosure of Client Data and Personal Information under its control or in its possession.
4.6. Compliance with Laws.
Client agrees to comply with all applicable
Laws in connection with Client’s and its Authorized Users’ use of the Services, including, but
not limited to, data privacy and protection Laws, including Laws pertaining to the use and
collection of Client Data and any Personal Information.
4.7. Data.
The Services do not replace the need for Client to maintain
regular data backups or redundant data archives. Client acknowledges and agrees that Provider may delete any Client Data when (a) any storage period that applies to Client’s account expires, (b) this Agreement is terminated or expires, or (b) Client delivers a written request pursuant to Section 13.2 and such deletion is not prohibited by any Law. PROVIDER HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CLIENT DATA.
4.8. Third-Party Applications, Products, and Services. Client acknowledges and agrees that access to certain parts of the Services may be dependent on such third-party services used in connection with the Services. Such third-parties may have their own
terms and conditions to which Client must agree to before using such services. Client agrees to comply with such third-party terms and conditions it agrees to.
5. SECURITY
5.1. Client Control and Responsibility.
Client has and will retain sole responsibility for: (a) all Client Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Client or any Authorized User in connection with the Services; (c) Client Systems; (d) the security and use of Client’s and its Authorized Users’ Access Credentials; and (e) all access to and use of the Services and Provider Materials directly or indirectly by or through the Client Systems or its or its Authorized Users’ Access Credentials, with or without Client’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.
5.2. Access and Security.
Client shall employ all physical, administrative,
and technical controls, screening, and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Services; and (b) control the content and use of Client Data, including the uploading or other provision of Client Data for Processing by the Services. Client is responsible for keeping its passwords and access credentials associated with the Services confidential. Client shall not sell or transfer them to any other person or entity. Client shall promptly notify us about any unauthorized access to your passwords or access credentials.
6. FEES AND PAYMENT
Client shall pay Provider its then current fees for the Services (“Fees”) in accordance with the payment terms selected by Client when Client purchased the Services, without deduction or set off. If Client fails to make any payment when due, then, in addition to all other remedies that may be available: (a) Provider may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law; (b) Client shall reimburse Provider for all reasonable costs incurred by Provider in collecting any late payments or interest, including attorneys’ fees, court costs, and collection
agency fees; and (c) if such failure continues for five (5) days following written notice thereof, Provider may suspend performance of the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Client or any other Person by reason of such suspension. Provider may increase its fee schedule at any time. All Fees and other amounts payable by Client under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Client is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Client hereunder, other than any taxes imposed on Provider’s income.
7. CONFIDENTIALITY
7.1. Confidential Information.
In connection with this Agreement each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). Subject to Section 7.2 , “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, client lists, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated, or otherwise identified as “confidential.” Without limiting the foregoing, all Provider Materials are the Confidential Information of Provider, and the financial terms of this Agreement are the Confidential Information of Provider.
7.2. Exclusions.
Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
7.3. Protection of Confidential Information.
As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:
(a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement; (b) except as may be permitted by and subject to its compliance with Section 7.4 , not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 7.3 ; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 7 ; (c) safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; (d) promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and take all reasonable steps to
prevent further unauthorized use or disclosure; and (e) ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section 7 .
7.4. Compelled Disclosures.
If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 7.3 ; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice andassistance required under this Section 7.4 , the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that, on the advice of the Receiving Party’s outside legal counsel, the Receiving Party is legally required to disclose and, on the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.
8. INTELLECTUAL PROPERTY RIGHTS
8.1. Provider Materials.
All right, title, and interest in and to the Provider Materials, including all Intellectual Property Rights therein, are and will remain with Provider and, with respect to Third-Party Materials, the applicable third-party providers own all right, title, and interest, including all Intellectual Property Rights, in and to the Third-Party Materials. Client has no right, license, or authorization with respect to any of the Provider Materials except as expressly set forth in Section 2.1 or the applicable third-party license, in each case subject to Section 3. All other rights in and to the Provider Materials are expressly reserved by Provider. In furtherance of the foregoing, Client hereby unconditionally and irrevocably grants to Provider an assignment of all right, title, and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.
8.2. Client Data.
As between Client and Provider, Client is and will remain the sole and exclusive owner of all right, title, and interest in and to all Client Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 8.3 . To the extent that Client collects the Personal Information of any person for use in, or submits Personal Information to, the Services, that (a) Client has notified the individual(s) whose Personal Information is collected or held of the anticipated use of such Personal Information by Provider; (b) Client collects and/or uses Personal Information, and transfers it to Provider, only in compliance with applicable Laws, including all applicable data protection Laws; and (c) if Provider receives or processes any Personal Information on Client’s behalf in connection with the Services, Client remains the data controller in respect of such Personal Information and Provider shall be a data processor in respect of such Personal Information.
8.3. Consent to Use Client Data.
Client hereby irrevocably grants all such
rights and permissions in or relating to Client Data as are necessary or useful to Provider, its subcontractors, and the Provider Personnel to enforce this Agreement and exercise Provider’s, its subcontractors’, and the Provider Personnel’s rights and perform Provider’s, its subcontractors’, and the Provider Personnel’s obligations hereunder. Without limiting the foregoing, Client hereby grants to Provider and its successors, licensees, and assigns an unlimited, irrevocable,
fully paid and royalty-free, perpetual, worldwide right and license to host, use, distribute, store, delete, modify, run, copy, publicly perform or display, translate, create derivative works, and otherwise exploit any photographs, videos, or other images included in the Client Data for any lawful purpose and in any media formats in any media channels without any additional compensation to Client. For the avoidance of doubt, such permitted and licensed uses include, without limitation, any lawful marketing, promotional, advertising, offer, sale and trade activity, and through any manner, medium or format, electronic or otherwise.
8.4. Client Feedback.
Client may, in its sole discretion, provide feedback, enhancement requests, recommendations, or other suggestions (“Feedback”) to Provider relating to the Services or Provider’s business. Provider shall be entitled to use such Feedback for any purpose without notice, restriction, or any obligations for compensation to Client. Provider shall not be required to consider or implement any Feedback.
9. REPRESENTATIONS AND WARRANTIES; DISCLAIMERS
9.1. Client Representations, Warranties, and Covenants.
Client represents, warrants, and covenants to Provider that Client owns or otherwise has and will have the necessary rights and consents in and relating to the Client Data so that, as received by Provider and Processed in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable Law.
9.2. Disclaimer of Warranties.
ALL SERVICES AND PROVIDER MATERIALS ARE PROVIDED “AS IS.” PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR PROVIDER MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CLIENT’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY HARDWARE, SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CLIENT AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
9.3. Communication Networks.
Provider is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Client acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
10. INDEMNIFICATION
10.1. Client Indemnification.
Client shall indemnify, defend, and hold harmless Provider and its subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a “Provider Indemnitee”)
from and against any and all Losses incurred by such Provider Indemnitee resulting from any Action by a third party (other than an Affiliate of a Provider Indemnitee) that arise out of or result from, or are alleged to arise out of or result from: (a) Client Data, including any Processing of Client Data by or on behalf of Provider in accordance with this Agreement; (b) any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Client or any Authorized User, including Provider’s compliance with any specifications or directions provided by or on behalf of Client or any Authorized User to the extent prepared without any contribution by Provider; (c) allegation of facts that, if true, would constitute Client’s breach of any of its representations, warranties, covenants, or obligations under this Agreement; or (d) negligence or more culpable act or
omission (including recklessness or willful misconduct) by Client, any Authorized User, or any third party on behalf of Client or any Authorized User, in connection with this Agreement.
10.2. Mitigation.
If any of the Services or Provider Materials are, or in Provider’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Client’s or any Authorized User’s use of the Services
or Provider Materials is enjoined or threatened to be enjoined, Provider may, at its option and sole cost and expense: (a) obtain the right for Client to continue to use the Services and Provider Materials materially as contemplated by this Agreement; (b) modify or replace the Services and Provider Materials, in whole or in part, to seek to make the Services and Provider Materials (as
so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Services and Provider Materials, as applicable, under this Agreement; or (c) by written notice to Client, terminate this Agreement with respect to all or part of the Services and Provider Materials, and require Client to immediately cease any use of the Services and Provider Materials or any specified part or feature thereof.
10.3. Sole Remedy.
THIS SECTION 10 SETS FORTH CLIENT’S SOLE REMEDIES AND PROVIDER’S SOLE LIABILITY AND OBLIGATION FOR ANY
ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES AND PROVIDER MATERIALS OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
11. LIMITATIONS OF LIABILITY
IN NO EVENT WILL PROVIDER OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING
BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS,
INTERRUPTION, OR DELAY OF THE SERVICES; (c) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d) COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL OR REPUTATION; OR
(f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES
OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL THE AGGREGATE LIABILITY OF PROVIDER ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED ONE-HALF OF THE TOTAL ANNUAL FEE PAID TO PROVIDER UNDER THIS AGREEMENT IN PERIOD DURING WHICH THE EVENT GIVING RISE TO THE CLAIM OCCURRED. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
12. TERM AND TERMINATION
12.1. Term.
The initial term of this Agreement commences as of the Effective Date and continues for the term selected, or if no term was selected, one (1) year, unless earlier terminated pursuant to this Agreement. The Services will automatically renew unless earlier terminated pursuant to this Agreement’s express provisions or if written notice is provided at least thirty (30) days prior to the expiration of the then-current services period. Upon any timely notice of non-renewal, Client shall continue to have access to the Services until the end of the then-current term, and any fees will continue to be due and payable until the end of the then-current term. Client acknowledges that no refunds will be given for any portion of the Services.
12.2. Termination.
In addition to any other express termination right set forth elsewhere in this Agreement, Provider may terminate this Agreement, effective on written notice if Client: (a) fails to pay any amount when due hereunder; (b) breaches any of its obligations under Section 3, Section 5.1 , or Section 7 ; (c) breaches this Agreement; or (d) (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business. Provider may terminate this Agreement without cause by providing Client with prior written notice.
12.3. Effect of Termination or Expiration.
Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement: (a) all
rights, licenses, consents, and authorizations granted by either party to the other hereunder will immediately terminate; (b) Client shall immediately cease all use of any Services or Provider
Materials; (c) Provider may disable all Client and Authorized User access to the Provider Materials. No expiration or termination of this Agreement will affect Client’s obligation to pay all amounts due hereunder, or entitle Client to any refund.
12.4. Surviving Terms.
The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 3, Section 7 , Section 8.3, Section 8.4 Section 9.2 , Section 10 , Section 11 , Section 12.3 , this Section 12.4 , and Section 13 .
13. MISCELLANEOUS
13.1. Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and
contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
13.2. Notices.
Any notices to the Provider must be sent to its corporate headquarters at the address available at our Website and must be delivered either in person, by certified or registered mail, return receipt requested and postage prepaid, or by recognized overnight courier service, and are deemed given upon receipt by us. Notwithstanding the foregoing, Client hereby consents to receiving electronic communications from the Provider. These electronic communications may include notices about applicable fees and charges,
transactional information, and other information concerning or related to the Services. Client agrees that any notices, agreements, disclosures, or other communications that the Provider sends to Client electronically will satisfy any legal communication requirements, including that such communications be in writing.
13.3. Privacy Policy.
By accessing, using, and providing information to or
through the Services, you acknowledge that you have reviewed and accepted our Privacy Policy located at www.ecorithms.com/privacy (“Privacy Policy”), and you consent to all actions taken by us with respect to your information in compliance with the then-current version of our Privacy Policy.
13.4. Assignment.
Client shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Provider’s prior written consent. No assignment, delegation, or transfer will relieve Client of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 13.4 is void. This Agreement is binding upon
and inures to the benefit of the parties hereto and their respective successors and permitted
assigns.
13.5. No Third-Party Beneficiaries.
This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable
right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
13.6. Modification; Waiver.
Client acknowledges and agrees that the Provider has the right, in its sole discretion, to modify this Agreement from time to time, and that modified terms become effective on posting. Client will be notified of modifications through
notifications or posts on our Website. Client is responsible for reviewing and becoming familiar with any such modifications. Client’s continued use of the Services after the effective date of the modifications will be deemed acceptance of the modified terms. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
13.7. Severability.
If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable
such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated
as originally contemplated to the greatest extent possible.
13.8. Export Regulation.
The Services utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Client shall not, directly or indirectly, export, re-export, or release the
Services or the software or technology included in the Services to, or make the Services or the software or technology included in the Services accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, regulation, or rule. Client shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings
(including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services or the software or technology included in the Services available outside the US.
13.9. Governing Law; Submission to Jurisdiction.
This Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the
application of the laws of any jurisdiction other than those of the State of California. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in the city of San Diego and County of San Diego, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.
13.10. Waiver of Jury Trial.
Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or
relating to this Agreement or the transactions contemplated hereby.
13.11. Equitable Relief.
Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 7 or, in the case of Client, Section 3, Section 4.4 , or Section 5.1 , would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any
court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
ADDITIONAL TERMS AND CONDITIONS FOR EVALUATION OF SERVICES
Last updated April 03, 2023
This Evaluation Agreement (this “Agreement”) contains terms and conditions that govern your access to, and use of, the Evaluation Services and is a binding agreement between Ecorithms Inc. (the “Provider”) and the person or entity accessing the Evaluation Services (“you” or the “Client”). Please note that certain other Provider services may have additional terms and conditions regarding your use of those services, and nothing in these terms and conditions is intended to modify such additional terms and conditions.
THE PROVIDER PROVIDES THE EVALUATION SERVICES SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT CLIENT ACCEPTS AND COMPLIES WITH THEM. BY CREATING AN ACCOUNT,
LOGGING IN, OR OTHERWISE ACCESSING THE EVALUATION SERVICES, YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT CLIENT IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE 18 YEARS OF AGE
OR OLDER/OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF CLIENT IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS
AGREEMENT ON BEHALF OF CLIENT AND BIND CLIENT TO ITS TERMS. IF CLIENT DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, THE COMPANY WILL NOT AND DOES NOT TO PROVIDE THE EVALUATION SERVICES TO CLIENT AND
YOU MUST NOT ACCESS THE EVALUATION SERVICES OR DOCUMENTATION.
1. Access and Use
(a) Provision of Access. Subject to the terms and conditions of this Agreement, Provider hereby grants Client a non-exclusive, non-transferable right during the time period as expressly permitted by the Provider (the “Evaluation Period”) to: (i) access and use
WasteAID software-as-a-service offering (the “Evaluation Services”) solely for Client’s internal evaluation purposes to employees of Client that the Provider expressly authorizes and Client permits to access and use the Evaluation Services and/or Documentation (“Authorized Users”); and (ii) use the Provider’s user manuals, handbooks, and guides relating to the Evaluation Services provided by Provider to Client either electronically or in hard copy form (the “Documentation”) solely for Client’s internal evaluation purposes in connection with Client’s use of the Evaluation Services. Client will not use the Evaluation Services and Documentation for any purpose other than evaluating and testing such Evaluation Services internally in connection with assessing whether Client desires to enter into a commercial SaaS agreement with Provider for access to and use of the Evaluation Services. This Agreement does not provide
a commercial access grant, and Client’s access to and use of the Evaluation Services after the Evaluation Period is subject to the parties entering into and executing a separate SaaS agreement. Provider shall provide to Client the necessary passwords and network links or connections to allow Client to access the Evaluation Services during the Evaluation Period. Notwithstanding the foregoing, Client is required to independently acquire and pay for any services, hardware and software not included as part of, but necessary for the use of, the Evaluation Services, including all communications, computers, cameras, and devices.
(b) Use Restrictions. Client shall not use the Evaluation Services or Documentation for any purposes beyond the scope of the access granted in this Agreement. Except as otherwise set forth in this Agreement, Client shall not at any time, directly or
indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Evaluation Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Evaluation Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Evaluation Services, in whole or in part; (iv) remove any proprietary notices from the Evaluation Services or Documentation; or (v) use the Evaluation Services or Documentation in any manner or for any
purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
(c) Reservation of Rights. Provider reserves all rights not expressly granted to Client in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise,
to Client or any third party, any intellectual property rights or other right, title, or interest in or to the Evaluation Services, the Documentation, or any and all intellectual property provided to Client or any Authorized User in connection with the foregoing (“Provider IP”).
2. Client Responsibilities.
Client is responsible and liable for all uses of the Evaluation Services and Documentation resulting from access provided by Client, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the foregoing, Client is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Client will be deemed a breach of this Agreement by Client. Client shall make all
Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Evaluation Services, and shall cause Authorized Users to comply with such provisions. Client agrees to comply with all applicable laws in connection with Client’s and its Authorized Users’ use of the Evaluation Services, including, but not limited to, data privacy and protection
laws, including laws pertaining to the use and collection of Client Data and any personal information.
3. Support
Provider has no obligation under this Agreement to provide support, maintenance, upgrades, modifications, or new releases of the Evaluation Services or Documentation to Client.
4. Evaluation Fee
The parties agree that no fees will be payable under this Agreement in exchange for the access granted under this Agreement. Client acknowledges and agrees that this fee arrangement is made in consideration of the mutual covenants set forth in this Agreement, including, without limitation, the disclaimers, exclusions, and limitations of liability set forth herein.
5. Confidential Information
From time to time during the Evaluation Period, either party may disclose or make available to the other party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential
information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving party at the time of disclosure; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (d) independently developed by the receiving party. The receiving party shall not disclose the disclosing party’s
Confidential Information to any person or entity, except to the receiving party’s employees who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a
court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (ii) to establish a party’s rights under this Agreement, including to make required court filings. On the
expiration or termination of the Agreement, the receiving party shall promptly return to the disclosing party all copies, whether in written, electronic, or other form or media, of the disclosing party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing party that such Confidential Information has been destroyed. Each party’s obligations of non-disclosure with regard to Confidential Information are effective as of the date such Confidential Information is first disclosed to the receiving party and will expire five years from the date first disclosed to the receiving party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
6. Intellectual Property Ownership; Feedback.
(a) Provider IP. Client acknowledges that, as between Client and Provider, Provider owns all right, title, and interest, including all intellectual property rights, in and to the Provider IP.
(b) Client Data. Provider acknowledges that, as between Provider and Client, Client owns all right, title, and interest, including all intellectual property rights, in and to, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Client or an Authorized User through the Evaluation Services (“Client Data”). Client hereby grants to Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Client Data and perform all acts with respect to the Client Data as may be necessary for
Provider to provide the Evaluation Services to Client.
(c) Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Provider may monitor Client’s use of the Evaluation Services and collect and compile data and information related to Client’s use of the Evaluation Services that is used by
Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Evaluation Services (“Aggregated Statistics”). As between Provider and Client, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Provider. Client acknowledges that Provider may compile Aggregated Statistics based on Client Data input into the Evaluation Services. Client agrees that Provider may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Client or Client’s Confidential Information.
(d) Passwords and Access Credentials. Client is responsible for keeping its passwords and access credentials associated with the Evaluation Services confidential. Client will not sell or transfer them to any other person or entity. Client will promptly notify Provider
about any unauthorized access to Client’s passwords or access credentials.
(e) Feedback. If Client or any of its employees or contractors sends or transmits any communications or materials to Provider by mail, email, telephone, or otherwise, suggesting or recommending changes to the Provider IP, including without limitation, new
features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Provider is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. All Feedback is and will be treated as non-confidential. Client hereby assigns to Provider on Client’s behalf, and on behalf of its employees, contractors, and/or agents, all right, title, and interest in, and Provider is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Provider is not required to use any Feedback.
7. Disclaimer of Warranties.
THE PROVIDER IP IS PROVIDED “AS IS” AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED,
STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE
OF DEALING, USAGE, OR TRADE PRACTICE. PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE PROVIDER IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CLIENT’S OR ANY OTHER PERSON’S REQUIREMENTS,
OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER EVALUATION SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR
ERROR FREE.
8. Indemnification
Client shall indemnify, hold harmless, and, at Provider’s option, defend Provider from and against any losses, damages, liabilities, or costs (including attorneys’ fees) resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”)
alleging that the Client Data, or any use of the Client Data in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights and any Third-Party Claims based on Client’s or any Authorized User’s (i) negligence or willful misconduct; (ii) use of the Evaluation Services or Documentation in a manner not authorized by this Agreement; or
(iii) use of the Evaluation Services or Documentation in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing. In the event Provider seeks indemnification or defense from Client under this provision, Provider shall promptly notify Client in writing of the claim(s) brought against Provider for which Provider seeks indemnification or defense. Provider reserves the right, at its option and in its sole discretion, to assume full control of the defense of claims with legal counsel of Provider’s choice. Client may not enter into any third-party agreement which would, in any
manner whatsoever, affect Provider’s rights, constitute an admission of fault by Provider, or bind Provider in any manner, without Provider’s prior written consent.
9. Limitations of Liability
IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR
EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED,
OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR
RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR EVALUATION SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF
SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE
THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED $100.
10. Term and Termination
The term of this Agreement begins on the date that Client first accesses the Evaluation Services and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect until the expiration of the Evaluation Period. Either party may terminate this Agreement at any time, without cause. Upon expiration or earlier termination of this Agreement, Client shall immediately discontinue use of the Provider IP and, without limiting Client’s obligations under Section 5, Client shall delete, destroy, or
return all copies of the Provider IP and certify in writing to the Provider that the Provider IP has been deleted or destroyed. This Section 10 and Sections 5, 6, 7, 8, 9, and 11 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
11. Miscellaneous.
(a) Privacy Policy. Provider complies with its privacy policy available on the Provider’s website (“Privacy Policy”) in providing the Evaluation Services. The Privacy Policy is subject to change as described therein. By accessing, using, and providing information to or
through the Evaluation Services, Client acknowledges that it has reviewed and accepted the Privacy Policy, and Client consents to all actions taken by us with respect to its information in compliance with the then-current version of the Privacy Policy.
(b) Entire Agreement. This Agreement constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both
written and oral, with respect to such subject matter.
(c) Modifications. Client acknowledges and agrees that the Provider has the right, in its sole discretion, to modify this Agreement from time to time, and that modified terms become effective on posting. Client will be notified of modifications through notifications or
posts on Provider’s website. Client is responsible for reviewing and becoming familiar with any such modifications. Client’s continued use of the Evaluation Services after the effective date of the modifications will be deemed acceptance of the modified terms.
(d) Notices. Any notices to us must be sent to our corporate headquarters address available at https://www.ecorithms.com/ and must be delivered either in person, by certified or registered mail, return receipt requested and postage prepaid, or by recognized
overnight courier service, and are deemed given upon receipt by us. Notwithstanding the foregoing, you hereby consent to receiving electronic communications from us. These electronic communications may include notices about applicable fees and charges, transactional information, and other information concerning or related to the Cloud Services. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.
(e) Waiver. Any failure to act by the Provider with respect to a breach of this Agreement by you or others does not constitute a waiver and will not limit the Provider’s rights with respect to such breach or any subsequent breaches.
(f) Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or
provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally
contemplated to the greatest extent possible.
(g) Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the
application of the laws of any jurisdiction other than those of the State of California. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in the County of San Diego, and each party irrevocably submits to the [exclusive] jurisdiction of such courts in any such suit, action, or proceeding.
(h) Assignment. Client may not assign or transfer any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Provider. Any purported assignment,
transfer, or delegation in violation of this Section is null and void.
(i) Export Regulation. Client shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of
the Evaluation Services or any Client Data outside the US.
(j) Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 6 or, in the case of Client, Section 1(b), would cause the other party irreparable harm for which monetary damages would
not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.