Terms of Service
Last Updated: September 20, 2022
PLEASE READ THESE TERMS OF SERVICE (THIS “AGREEMENT”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY GRAVITY CLIMATE CO. (“GRAVITY”). BY EXECUTING ONE OR MORE STATEMENTS OF WORK WITH GRAVITY, OR OTHERWISE USING THE GRAVITY SERVICE, YOU (“CUSTOMER”) AGREE TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED UNDER THIS AGREEMENT.
1.1 “Confidential Information” means any and all technical and non-technical information disclosed by one party to the other in connection with this Agreement, whether in electronic, written, graphic, oral, machine readable or other tangible or intangible form, that is marked or identified at the time of disclosure as “Confidential” or “Proprietary” or in some other manner so as to clearly indicate its confidential nature, or which, by its nature, the receiving party would reasonably deem to be confidential or proprietary. Without limiting the foregoing, Customer Data (as defined below) shall be deemed the Confidential Information of Customer and the Gravity Service and any related documentation or materials, including any feedback provided by Customer, shall be deemed the Confidential Information of Gravity.
1.2 “Gravity Service” means the Gravity-proprietary carbon accounting platform and service as further described in the applicable SOW, which may include a discovery process to determine Customer’s Scope 1 and Scope 2 emissions and the sources of emissions and providing reports via the Gravity Service platform to Customer. The results of such discovery process will be deemed to be Customer Data.
2. The Gravity Service
2.1 Statements of Work. This Agreement will be implemented through one or more written statements of work or order forms incorporating the terms of this Agreement and executed by the parties from time to time (each, an “SOW”), and provides the terms and conditions applicable to all SOW. Any modification of these terms and conditions within an SOW will apply only to that SOW in which the modification is set forth.
2.2 Technical Support. Gravity will provide email and telephonic support during normal business hours in New York to answer questions regarding the installation and use of the Gravity Service. Gravity will have no other support obligations absent specific written agreement of the parties in the applicable SOW.
3. License Grants
3.1 Data. As between the parties, Customer shall remain the owner of all data it uploads to the Gravity Service or any data that the Gravity Service accesses from Customer’s systems, including information regarding Customer’s carbon emissions (collectively, “Customer Data”) in the operation and performance of the Gravity Service. No title to, or ownership of, Customer Data is transferred to Gravity pursuant this Agreement. Subject to the terms and conditions of this Agreement, Customer grants Gravity the right to access and use the Customer Data (a) in order to provide the Gravity Service to Customer and for internal purposes to improve the Gravity Service, and (b) to anonymize and de-identify the Customer Data for use by Gravity on an anonymized and aggregated basis for any purpose so long as Customer is not identified as the source of such data. Any such anonymized and de-identified data shall be deemed owned by Gravity and shall not constitute the Confidential Information of Customer. Customer represents and warrants that Customer owns or otherwise has the right to use such Customer Data in connection with the Gravity Service and that use of the Customer Data by Gravity in connection with providing the Gravity Services to Customer will not infringe or violate the rights of any third party.
3.2 License. Subject to the terms and conditions of this Agreement and the applicable SOW, Gravity hereby grants Customer a non-exclusive, non-transferable, royalty-free right, without right of sublicense, to access and use the Gravity Service during the term set forth in the applicable SOW.
3.3 Restrictions. Customer agrees not to: (a) make or have made any copies, in whole or in part, of the documentation for or screenshots of the Gravity Service, except as necessary to use the Gravity Service as permitted by this Agreement; (b) modify, adapt, alter, translate, or create derivative works of the Gravity Service or any documentation or materials provided by Gravity relating to the Gravity Service; (c) sublicense, lease, rent, loan, or otherwise transfer the Gravity Service to any third party or export the Gravity Service in violation of United States federal law or regulations; (d) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Gravity Service; or (e) disclose benchmarks or other comparisons of the Gravity Service.
3.4 Ownership. Customer acknowledges and agrees that nothing in this Agreement or in the performance of this Agreement conveys to Customer any ownership, intellectual property right, or other proprietary interest in or to the Gravity Service or any Confidential Information. Customer will not delete or alter any copyright, trademark, and other proprietary rights, notices or markings appearing on the Gravity Service. If the Customer makes any suggestions, recommendations or feedback regarding the Gravity Service (“Feedback”), Gravity is free to use such Feedback, and Customer hereby assigns to Gravity the Feedback and all intellectual property rights therein. Except as expressly set forth herein, all rights in the Gravity Service not granted herein by Gravity are reserved.
All Confidential Information disclosed by one party to the other party shall be held in confidence by the recipient to the same extent and in at least the same manner as the recipient protects its own Confidential Information of a similar nature, but in no event less than reasonable care, and shall be used by the recipient only for the purposes of this Agreement. Neither party may disclose, publish, release, transfer, or otherwise make available the Confidential Information of, or obtained from, the other in any form to, or for the use or benefit of, any person or entity without the disclosing party’s consent, except that each party shall be permitted to disclose relevant aspects of the other’s Confidential Information to its employees to the extent that such disclosure is not restricted under this Agreement, but only to the extent that such disclosure is reasonably necessary for the exercise of its rights or performance of its obligations under this Agreement. The obligations in this Section 4 shall not restrict any disclosure pursuant to any applicable law or by order of any court or governmental authority; provided that the recipient shall to the extent permitted give prompt notice to the disclosing party of such order. The obligations set forth in this Section 4 shall not apply to any information that: (a) is already in the public domain or becomes available to the public through no breach of this agreement or other confidentiality obligation by the receiving party, (b) was in the receiving party’s possession prior to receipt from the disclosing party as proven by the receiving party’s written records, or (c) is received independently on a non-confidential basis from a third party free to disclose such information to the receiving party. Upon request of the disclosing party, or upon termination of the Agreement, copies and embodiments of the disclosing party’s Confidential Information shall be promptly returned to the disclosing party or destroyed.
5.1 Fees. Customer agrees to pay fees in the amounts and at the times specified in the applicable SOW. Unless specified otherwise, all amounts due hereunder shall be paid within 30 days after invoice in U.S. dollars at Gravity’s address (or, at its option, to an account specified by Gravity).
5.2 Taxes. All payments required by this Agreement are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes), and Customer agrees to bear and be responsible for the payment of all such charges, excluding taxes based upon Gravity’s net income.
6. Term; Termination
6.1 Term. The term of this Agreement shall commence on the effective date set forth in the applicable SOW and continue in effect until the expiration or termination of all SOWs hereunder (the “Term”).
6.2 Termination. This Agreement may be earlier terminated (in whole, or in respect of any SOW) by either party (a) if the other party materially breaches a provision of this Agreement and fails to cure such breach within 30 days (10 days in the case of any non-payment) after receiving written notice of such breach from the non-breaching party or (b) immediately upon written notice, if the other party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party’s property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within 90 days, or the other party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course.
6.3 Effect of Termination. Within 10 days following the termination or expiration of the Agreement, Customer will certify in writing that it has destroyed or returned all Gravity Service to Gravity. Sections 1, 3.1, 3.4, 4 (for a period of one year following termination or expiration), 6.3, 7, 8, 9 and 10 shall survive any termination or expiration of this Agreement.
7. Disclaimer of Warranty
CUSTOMER ACKNOWLEDGES AND AGREES THAT THE GRAVITY SERVICE MAY NOT BE ERROR FREE. FURTHER, CUSTOMER ACKNOWLEDGES THAT THE GRAVITY SERVICE IS PROVIDED ON AN “AS IS” BASIS, WITHOUT ANY WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, GRAVITY EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE GRAVITY SERVICE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. CUSTOMER ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES IN THIS AGREEMENT AND THAT NO WARRANTIES ARE MADE BY GRAVITY.
8. Limitation of Liability
IN NO EVENT WILL GRAVITY BE LIABLE TO CUSTOMER, OR TO ANY PARTY CLAIMING THROUGH OR UNDER CUSTOMER, FOR ANY LOST PROFITS, LOST DATA OR EQUIPMENT DOWNTIME, OR FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, ARISING FROM OR RELATING TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION, EVEN IF GRAVITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IN NO EVENT SHALL GRAVITY’S LIABILITY HEREUNDER EXCEED $1000. CUSTOMER ACKNOWLEDGES THAT THESE LIMITATIONS OF LIABILITY REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT GRAVITY WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.
All notices, consents and approvals under this Agreement must be delivered in writing by courier, or by certified or registered mail (postage prepaid and return receipt requested), to the other party at the address set forth beneath such party’s signature, and will be effective upon receipt or three business days after being deposited in the mail as required above, whichever occurs sooner. Either party may change its address by giving notice of the new address to the other party.
The headings to the clauses, sub-clause and parts of this Agreement are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement. The terms “this Agreement,” “hereof,” “hereunder” and any similar expressions refer to this Agreement and not to any particular Section or other portion hereof. The parties hereto agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party will not be applied in the construction or interpretation of this Agreement. As used in this Agreement, the words “include” and “including,” and variations thereof, will be deemed to be followed by the words “without limitation.” The parties are independent contractors and neither party is the agent, representative, joint venturer or partner of the other party. This Agreement will be governed by and interpreted in accordance with the laws of new york, without regard to conflict of interest provisions. The sole jurisdiction and venue for actions related to this Agreement will be the state or federal courts located in new york having jurisdiction over gravity’s facility, and both parties consent to the jurisdiction of such courts with respect to any such action. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Customer agrees to comply with all applicable export and import control laws and regulations in its use of the Gravity Service and, in particular, Customer shall not export or re-export the Gravity Service without all required United States and foreign government licenses. In the event any provision of this Agreement is held by a proper authority to be prohibited by law or unenforceable, such provision shall be amended and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. This Agreement may not be changed, modified, amended or supplemented except by a written instrument signed by both parties. Failure or neglect by either party to enforce at any time any of the provisions hereof shall not be construed nor shall be deemed to be a waiver of such party’s rights hereunder nor in any way affect the validity of the whole or any part of this Agreement nor prejudice such party’s rights to take subsequent action. This Agreement may not be assigned by Customer without the prior written consent of Gravity. Any assignment in violation of the foregoing shall be null and void from the beginning. This Agreement contains the final, complete and exclusive agreement of the parties relative to the subject matter hereof and supersedes all prior and contemporaneous understandings and agreements relating to its subject matter.