Karbon Premium Customer Service Terms
Last Updated: 27 September 2023
These Premium Customer Service Terms (“Service Terms”) apply to the Services as defined below, including the Software access to and use of which Karbon, Inc. (“Karbon”) provides to you (the “Customer”), and together with the Order Details (defined below) documenting the details of your Customer subscription to the Services, are collectively referred to as the “Agreement.” When this Agreement refers to “You” or “Your,” the Agreement applies both to the individual Authorized User(s) defined below and the Customer on whose behalf the Authorized User(s) are acting. By entering Into Order Details on behalf of an entity, Customer represents and warrants that the individual person executing the Order Details has the authority to do so, and Customer further agrees that each Order Details it enters into incorporates by reference and includes these Service Terms.
Customer agrees that Karbon may change these Service Terms in its sole discretion, and any such general changes take effect on the next earliest date on which either the parties enter into the next Order Details or Subscription Service renews for a Renewal Period. Regardless of the preceding, Customer agrees that its continued use of the Services after any such changes to the Service Terms Karbon makes in response to changes in applicable law are considered accepted and effective as of the date such changes are published and posted online.
1. Definitions
“Associated Companies” means an entity that directly or indirectly controls, is controlled by, or is under common control with, a party to this Agreement. For purposes of the foregoing, “control” means the ownership of
(i) greater than fifty percent (50%) of the voting power to elect directors of the entity, or
(ii) greater than fifty percent (50%) of the ownership interest in the entity.
“Authorized User(s)” means employees, agents and independent contractors of Customer who are authorized by Customer to access and use the Services, as further described in Section 2.3 below, and in this context, use of “You” or “Your” will refer to such Authorized Users and to the Customer;
“Authorized User Data” means the personal data and information Authorized Users provide to Karbon and/or are inputted by Customer into the Subscription Service for the purpose of creating an account for an Authorized User, but excluding the Customer Data and Karbon Data;
“Karbon Data” means (i) such information or data provided by Karbon to Customer as part of the Services; (ii) any meta data extracted by Karbon from Customer’s use of the Services to be used to provide the Services; and (iii) any feedback or suggestions from Customer or Authorized Users to Karbon relating to the Services;
“Business Day” means any day that is not a Saturday, Sunday or statutory public holiday in the U.S.;
“Business Hours” means 9.00 am to 5.00 pm Pacific Standard time each Business Day;
“Customer Data” means the data and information provided by Customer to Karbon and/or inputted by Customer, Authorized Users, or Karbon on Customer's behalf for the purpose of using the Services or facilitating Customer's use of the Services or data collected and processed by or for Customer through Customer’s use of the Services, but excluding Karbon Data and Authorized User Data;
“Claim Year” means each successive period of twelve (12) months commencing on the Effective Date of this Agreement;
“Confidential Information” means information of a party that is proprietary or confidential and is either clearly labeled as such; identified as Confidential Information in Section 10; and/or a reasonable person would understand to be confidential or proprietary at the time of disclosure;
“Disaster Recovery Policy” means the Karbon disaster recovery policy currently in place as may be revised by Karbon in its sole discretion from time to time;
“Effective Date” means the date both Karbon and Customer execute an Order Details referencing this Agreement;
“Initial Subscription Term” means the initial term of an Agreement for any annual or longer subscription or other commitment to purchase any Service as set out in the Order Details;
“Inappropriate Content” means content which (a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (b) facilitates illegal activity; (c) depicts sexually explicit images; (d) promotes unlawful violence; (e) is discriminatory based on race, gender, color, religious belief, sexual orientation, disability; or (f) causes damage or injury to any person or property;
“Intellectual Property Rights” means, including without limitation, rights in patents, trademarks, service marks, trade names, other trade-identifying symbols and inventions, copyrights, design rights, database rights, rights in know-how, trade secrets and any other intellectual property rights arising anywhere in the world, whether registered or unregistered, and including applications for the grant of any such rights;
“Karbon Properties” means the Mobile Application (as defined below), the Software (as defined below), the Services, and the information and content available in the Application and the Services (as these terms are defined herein)
“Mobile Application” means the limited functionality version of the Software available via Karbon’s mobile device application.
“Order Details” means the Order Details or other transaction document that is filled out, executed, and submitted by or on behalf of the Customer, and then accepted and executed by Karbon, with details of the Services to be provided and forming part of this Agreement;
“Privacy Policy” means the Karbon privacy policy as amended from time to time and located at https://karbonhq.com/privacy-and-legal/.
“Renewal Period” means has the meaning set out in Section 13.1 below;
“SaaS Set-up Services” means the Karbon set-up services provided to Customer to configure and implement the Software pursuant to a System Set-up Order.
“Services” means (i) use of the Software in accordance with this Agreement, including the Mobile Application (ii) use of Karbon Data; (iii) the provision of the Support Services, (iv) the provision of any SaaS Set-up Services, (v) the provision of any Training Services and (vi) access to any other part of the Karbon Properties including the hosting platform;
“Software” means the collaborative professional practice management software as a service application provided by Karbon as part of the Services and as set out in the Order Details;
“Subscription Service” means (i) use of the Software in accordance with this Agreement, (ii) use of Karbon Data; (iii) the provision of the Support Services, and (iv) access to any other part of the Karbon Properties including the hosting platform;
“Services Fees” means the fees payable by Customer to Karbon for the User Subscriptions, Training Service, or SaaS Set-up Services as set out in the Order Details or a Set-up Order for SaaS Set-up Services;
“Subscription Term” means the Initial Subscription Term and any subsequent Renewal Periods;
“Support Services” means the Karbon standard support services provided by Karbon in accordance with Karbon-published or agreed-in-writing SLA Support Services Policy in respect of the Software, including any applicable Software maintenance upgrades;
“SLA Support Services Policy” means Karbon's policy for providing the Support Services to Customer and where applicable, any enhanced support services that may be purchased by Customer, as made available to Customer from time to time;
“Taxes,” means including without limitations, withholding, sales, use, excise, value added tax and similar taxes but will not include taxes based on Karbon’s gross income;
“Third-Party Applications” means online applications and offline software products that are provided by third parties and interoperate with the Subscription Service;
“Training Service” means add-on training or consulting services educating Customers about best practices in using the Subscription Service, which may be provided either live or on-demand.
“User Subscriptions” means the user subscriptions purchased by Customer in accordance with the Agreement for the number of Authorized Users as set out in the Order Details which entitles such Authorized Users to access and use the Subscription Service in accordance with this Agreement; and
“Virus” means anything or device (including any software, code, file or program) which may prevent, impair or otherwise adversely affect the access to or operation, reliability or user experience of any computer software, hardware or network, telecommunications service, equipment or network or any other service or device, including worms, Trojan horses, viruses and other similar things or devices.
2. User Subscription
2.1. Karbon will provide the Subscription Service during the Subscription Term in accordance with the terms set out in this Agreement.
2.2. Subject to the Customer purchasing the User Subscription(s), the restrictions set out in this Section 2 and the terms and conditions of this Agreement, Karbon hereby grants to the Customer a non-exclusive, non-transferable right to permit the Authorized Users to use the Services during the Subscription Term solely for Customer's internal professional collaborative practice management purposes.
2.3. In relation to the Authorized Users, Customer undertakes that,
(i) the maximum number of Authorized Users that it authorizes to access and use the Subscription Service will not exceed the number of User Subscriptions it has purchased from time to time. Customer further undertakes that it will not allow any User Subscription to be used by more than one individual per Authorized User unless it has been reassigned in its entirety to another individual Authorized User, in which case the prior Authorized User will no longer have any right to access or use the Subscription Service; and
(ii) each Authorized User will keep a secure password for his use of the Subscription Service, that such password will be changed frequently, and that each Authorized User will keep his password confidential.
2.4. Customer will not access, store, distribute or transmit any Viruses, or any material, including without limitation Customer Data and the Authorized User Data, during the course of its use of the Subscription Service that Inappropriate Content as defined in this Agreement, and Karbon reserves the right, without liability or prejudice to its other rights to Customer, to disable Customer's access to any material that breaches the provisions of this Section.
2.5. Customer will not:
(i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software, SaaS Set-up Services, or Training Services in any form or media or by any means; or
(ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
(iii) access all or any part of the Subscription Service in order to build a product or service which competes with the Subscription Service; or
(iv) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Authorized Users, or
(v) attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this Section.
3. Additional User Subscriptions
3.1. Customer may, from time to time during any Subscription Term, purchase additional User Subscriptions in excess of the number set out in the Order Details for the additional fees set out in the Order Details and Karbon will grant access to the Subscription Service and Training Service (as applicable) to such additional Authorized Users in accordance with the provisions of this Agreement.
4. Software Availability and Support
4.1. Karbon will use commercially reasonable efforts to make the Subscription Service (excluding any Third Party Applications) available 24 hours a day, seven days a week and for at least 99.9 percent of the time, excluding,
(i) any planned downtime out of Business Hours provided Customer is given 24 hour notice of such;
(ii) congestion whereby high traffic levels result in service disruption, caused by the Customer exceeding any agreed capacity;
(iii) Customer inaccessibility: if, for any reason, the Customer cannot be reached to correct an availability issue, then time will be frozen until Karbon can make contact with the Customer to begin fixing the availability issue;
(iv) issues resulting from problems caused by Customer’s failure to follow agreed procedures, or caused by unauthorized changes to the Subscription Service by the Customer;
(v) material breach by Customer of the terms of this Agreement; or
(vi) a force majeure event.
4.2. Karbon will, as part of the Subscription Service and at no additional cost to Customer, provide Customer with Karbon's standard Support Services during Business Hours in accordance with Karbon's then-current SLA Support Services Policy for standard Support Services in effect at the time that the Support Services are provided. Karbon may amend the SLA Support Services Policy in its sole and absolute discretion from time to time.
4.3. Customer may purchase enhanced support service packages separately, as may be offered by Karbon from time to time, as detailed in an Order Details, at Karbon’s then current rates for any such additional Support Services (as notified to Customer by Karbon from time to time).
5. Charges and Payment
5.1. Customer will pay to Karbon the Services Fees and any additional applicable fees related to the Services as set out in the Order Details or Set-up Order for SaaS Set-up Services in accordance with this Section 5. Unless otherwise agreed in the Order Details, Karbon may invoice Customer for the Services Fees yearly in advance on or after the Effective Date and thereafter on each anniversary of the initial invoice date for the duration of the Subscription Term.
5.2. Unless otherwise specified in the Order Details, all Services Fees and approved expenses will be paid by Customer in full and without deduction within thirty (30) days of the date of invoice.
5.3. If Karbon has not received payment for any invoices by the due dates and without prejudice to any other rights and remedies of Karbon, Karbon may,
(i) by giving fifteen (15) Business Days prior written notice to Customer, without Karbon being liable to Customer, disable Customer’s password, account and access to all or part of the Subscription Service and Karbon will be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
(ii) charge interest that will accrue on such due amounts at the higher of
(a) an annual rate equal to the greater of 1.5% per month or
(b) two percent (2%) above the prime rate as reported by Federal Reserve Bank of New York, located in New York City, New York, or
(c) the standard statutory delay interest rate under applicable law, and any such interest will be calculated as of the date such payment was due and payable.
5.4. All amounts and Services Fees stated or referred to in this Agreement, are exclusive of all Taxes, and are non-refundable (except on termination for Karbon's material breach or pursuant to Section 12.1). Customer will be solely responsible for paying all applicable Taxes relating to this Agreement, and the use or access to the Services.
5.5. Karbon will be entitled to increase the annual Services Fees for User Subscriptions with effect from the start of each Renewal Period upon sixty (60) days’ prior notice to Customer and the Agreement will be deemed to have been amended accordingly.
5.6. Services Fees for an annual or longer subscription or other commitment to purchase any Service are committed for the entire Initial Term or Renewal Period (as applicable), and early termination by the Customer of any such Service will result in the Customer being charged in full for the Services Fees and any additional applicable fees related to the Services as set out in the Order Details through the end of the Initial Subscription Term or Renewal Period (as applicable). This payment will be due within thirty (30) days of the termination of the Subscription Service.
6. Customer Obligations
6.1. General Customer Obligations. Customer will,
(i) provide all necessary co-operation and information as may be reasonably required by Karbon in order to provide the Services. In the event of any delays in Customer's provision of such assistance, Karbon may adjust any agreed timetable or delivery schedule as reasonably necessary;
(ii) ensure that its Authorized Users use the Services in accordance with the terms and conditions of this Agreement, comply with all applicable laws and regulations with respect to its activities under this Agreement and only use the Services for lawful purposes. Customer will be liable for any Authorized User’s breach of this Agreement;
(iii) be solely responsible for procuring and maintaining its network connections and telecommunications links and all problems, conditions, delays and delivery failures arising from or relating to Customer's network connections or telecommunications links;
(iv) use all reasonable efforts to prevent any unauthorized access to, or use of, the Services and, in the event of any such unauthorized access or use, promptly notify Karbon;
(v) not include any Inappropriate Content or Viruses or any other information or material with the Services, any part of which, or the accessing of which or use of which would be a criminal offense or otherwise unlawful including the breach of any Intellectual Property Rights of any other party. Karbon reserves the right, but is not obliged, to remove such content from where, in its sole and reasonable discretion, Karbon suspects such content to be Inappropriate Content, upon notice to Customer;
(vi) be solely responsible for moderating any content posted by Authorized Users and advising Authorized Users what they may and may not post through the Services by means of Customer’s own policies;
(vii) be solely responsible for the accuracy, completeness, design, appropriateness, creation, maintenance, and updating thereof of all Customer Data in the use of the Services. Karbon will not be liable for any errors or inaccuracies in any Customer Data or beyond its responsibility to accurately reproduce such Customer Data on Customer’s instruction; and
(viii) be responsible for obtaining all necessary licenses and consents required to use Customer Data (if any, and including but not limited to those from the owners or licensees of any third party information) and as part of the Services and Customer warrants and represents that such licenses and consents have been obtained.
6.2 Third-Party Functionality-specific Terms. Karbon will incorporate and implement in or with the Karbon Software certain third-party developed capabilities, functionality or services (“Third-Party Functionality”). The owners of Third-Party Functionality will sometimes require specific terms for usage and restrictions for use and require that Karbon pass those terms specific to their Third-Party Functionality on to you as the Customer and your Authorized Users. Karbon will provide below this paragraph a hyperlink to any such Third-Party Functionality supplemental terms with which Customers and Authorized Users are required to comply.
(i) Karbon AI Supplemental Terms. Karbon implemented in beta and will continue to implement and make generally available with the Karbon Software certain third-party developed generative artificial intelligence capabilities (“Generative AI”). We will refer to any Karbon Generative AI implementations in the Karbon Software as the “Karbon AI.” The first iteration of Karbon AI is based on the Azure OpenAI. However, Karbon anticipates implementing and releasing Generative AI offerings from different third parties as a part of the Karbon AI, selecting the best Generative AI solution for specific uses within the Karbon Software. All Third-Party Supplemental Terms for Karbon AI are located here.
7. Warranty
7.1. Karbon warrants that the Services (excluding any Third Party Application) will be performed with reasonable skill and care for the Subscription Term.
7.2. The warranty provided in Section 7.1 will not apply to the extent of any non-conformance which is caused by Customer’s use of the Services contrary to Karbon’s' instructions, or modification or alteration of the Services by any party other than Karbon or Karbon's duly authorized contractors or agents. If the Services do not conform with the warranty provided in Section 7.1, Karbon will, at its expense, use commercially reasonable efforts to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes Customer's sole and exclusive remedy, and Karbon’s sole and exclusive liability for any breach of the warranty.
7.3. If Customer installs or enables Third-Party Applications for use with Services, Customer acknowledges that Karbon may allow providers of those Third-Party Applications to access Customer Data and Authorized User Data as required for the interoperation of such Third-Party Applications with the Services. Karbon will not be responsible for any disclosure, modification or deletion of Customer Data and Authorized User Data resulting from any such access by Third-Party Application providers, and any such access and use of Customer Data and Authorized User Data will be subject to the privacy policies of such Third-Party Application provider. The Services will allow Customer to restrict such access by restricting Authorized Users from installing or enabling such Third-Party Applications for use with the Services.
7.4. Services may be subject to other limitations as indicated in the Order Details, such as, for example, limits on the used storage, on the used bandwidth and/or on the size of attachments such as photos or files.
7.5. NOTWITHSTANDING THE FOREGOING, KARBON,
(i) DOES NOT WARRANT THAT CUSTOMER'S USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; OR THAT THE SERVICES AND/OR THE INFORMATION OBTAINED BY CUSTOMER THROUGH THE SERVICES WILL MEET CUSTOMER'S REQUIREMENTS;
(ii) IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR ANY OTHER LOSS OR DAMAGE RESULTING FROM CUSTOMER’S ACCESS TO AND USE OF THE SERVICES THROUGH THIRD PARTY APPLICATIONS (SUCH AS GOOGLE) OR THE TRANSFER OF DATA OVER COMMUNICATIONS NETWORKS AND FACILITIES, INCLUDING THE INTERNET, AND CUSTOMER ACKNOWLEDGES THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES;
(iii) IS NOT RESPONSIBLE FOR ANY VIRUS THAT WAS NOT DETECTED BY KARBON USING REASONABLE CURRENT COMMERCIAL METHODS OF DETECTION;
(iv) AND ITS SUPPLIERS, WILL NOT HAVE ANY LIABILITY WHATSOEVER FOR THE ACCURACY, COMPLETENESS, OR TIMELINESS OF CUSTOMER DATA, OR FOR ANY DECISION MADE OR ACTION TAKEN BY CUSTOMER, ANY AUTHORIZED USER, OR ANY THIRD PARTY IN RELIANCE UPON ANY CUSTOMER DATA. EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS SECTION 7, KARBON (AND ITS ASSOCIATED COMPANIES AND ITS SUPPLIERS) PROVIDE ALL SERVICES "AS IS" AND HEREBY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND SPECIFICALLY DISCLAIM 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.
8. Customer Data
8.1. Customer will own all right, title and interest in and to all of the Customer Data and, as between Customer and Karbon, Authorized User Data, and therefore is solely responsible for the legality, appropriateness, completeness, reliability, integrity, accuracy and quality of any Customer Data and Authorized User Data.
8.2. Solely to enable Karbon to provide the Services to Customer, Customer grants Karbon and its Associated Companies a non-exclusive license for the Subscription Term and 30 days afterwards to
(i) host, copy, transmit and display Customer Data and Authorized User Data, and to incorporate the Customer Data with the Karbon Data and
(ii) where necessary, to transfer Customer Data to Third Party Application providers used by Karbon, only as required for the provision of the Services and in accordance with Karbon’s Privacy Policy.
8.3. Subject to Karbon's obligations under applicable data protection/privacy regulations, Customer acknowledges that responsibility for all Customer Data and Authorized User Data, and any communications with others or between Authorized Users using the Subscription Service is the sole and exclusive responsibility of Customer and that Karbon will not be held responsible in any way for any copyright infringement or violation, or the violation of any other person’s rights or the violation of any laws, including but not limited to infringement or misappropriation of copyright, trademark or other property right of any person or entity, arising or relating to Customer Data. Customer agrees to indemnify and hold harmless Karbon from and against all losses, damages, actions or causes of action, suits, claims, demands, penalties and interest arising in connection with or out of any such Customer Data, to the extent not caused by Karbon’s willful misconduct.
8.4. Karbon maintains a Disaster Recovery Policy as such document may be amended by Karbon in its sole discretion from time to time, which will be made available to Customer upon request. In the event of any loss or damage to Customer Data, Customer's sole and exclusive remedy will be for Karbon to use commercially reasonable efforts to restore the lost or damaged Customer Data from the latest back up of such Customer Data maintained by Karbon in accordance with the archiving procedure described in its Disaster Recovery Policy. Karbon will not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party, (except those third parties sub-contracted by Karbon to perform services related to Customer Data maintenance and back-up) unless solely caused by Karbon’ negligence or willful misconduct.
8.5. Customer acknowledges that Karbon is not obliged to edit, moderate or modify Customer Data (including third party information). However, Karbon reserves the right to remove any Customer Data (or third party information) which Karbon reasonably believes violates any laws or regulations or any third party’s rights or this Agreement and/or is deemed Inappropriate Content. Karbon will notify Customer if it removes any Customer Data (or third party information) in accordance with this Section. Karbon disclaims all liability of any kind in respect of Customer Data, third party information and any other material that can be accessed using the Services. To the extent permitted by applicable law, Karbon expressly disclaims all liability for any fraud committed in connection with the Services.
9. Data Protection
9.1. Karbon acknowledges that the Customer is acting as a data controller in respect of any Customer Data containing personal data. The extent permitted by applicable data protection and privacy regulations, Customer also agrees that Karbon is a data controller with respect to Authorized User Data because Karbon requires such data to administer and enforce appropriate use of the Subscription Service. To the extent that Karbon has access to and processes any such Authorized User Data or Customer Data containing personal data in the provision of the Subscription Service, Karbon will use reasonable efforts to:
(i) keep all personal data of Customer and Customer’s Authorized Users secure and have in place appropriate technical and organizational measures to ensure an appropriate level of security for the processing of such personal data of Customer and Customer’s Authorized Users and to protect such personal data of Customer and Customer’s Authorized Users against unauthorized or unlawful processing or accidental loss, destruction or damage;
(ii) preserve the integrity of such personal data of Customer and Customer’s Authorized Users and to prevent the loss or corruption of the personal data of Customer and Customer’s Authorized Users;
(iii) only process such personal data of Customer and Customer’s Authorized Users in accordance with the instructions and directions of the Customer where Karbon is not a data controller for such data; and
(iv) inform Customer of any security breach, potential security breach, loss, data leak, or unauthorized disclosure with respect to any personal data (collectively, “Data Breach”) In accordance with any applicable data protection and privacy regulations, investigate the Data Breach, take all necessary steps to close the cause of the Data Breach and prevent recurrence (to the extent such cause is within the control of Karbon); and
(v) if applicable provide such reasonable assistance and information to the Customer as it may reasonably require to allow the Customer to comply with its obligations under the General Data Protection Regulation (EU) 2016 / 679.
9.2. For the purposes of this Section 9 the terms "data controller", "personal data", "process" and "processing" will have the meaning set out in the General Data Protection Regulation (EU) 2016 / 679.
9.3. Karbon will comply at all times with all applicable data protection and privacy laws.
10. Confidentiality
10.1. Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. Except to the extent in conflict with applicable data protection/privacy regulations protections for Personal Data, Personal Information or the like, a party's Confidential Information will not be deemed to include information that,
(i) is or becomes publicly known other than through any act or omission of the receiving party;
(ii) was in the other party's lawful possession before the disclosure;
(iii) is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
(iv) is independently developed by the receiving party, which independent development can be shown by written evidence; or
(v) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
10.2. Each party will hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of this Agreement. Each party will take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement. Neither party will be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
10.3 Customer acknowledges that details of the Subscription Service and the results of any performance tests of the Services, constitute Karbon's Confidential Information. Karbon acknowledges that the Customer Data is the Confidential Information of Customer.
10.4. Karbon has the right to name Customer as a reference for marketing purposes except where Customer explicitly informs Karbon otherwise in writing, provided Customer is acting reasonably.
10.5 Karbon IP Ownership; Feedback
10.6. Customer acknowledges and agrees that Karbon and/or its licensors own all Intellectual Property Rights in the Services. Except as expressly provided herein, this Agreement does not grant Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licenses in respect of the Services.
10.7 You (as the Customer or Authorized User) agree that submission of any ideas, suggestions, documents, and/or proposals to Karbon through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Karbon has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. To the extent Your Feedback does not constitute Karbon Data, You hereby grant to Karbon a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Karbon Properties.
11. Indemnity
11.1. Karbon will defend or settle at Karbon’s option and expense, any claim made or action brought against Customer by a third party alleging that the use of any purchased Services in accordance with this Agreement infringes such third party’s intellectual property rights (a “Claim”), and will indemnify Customer from any settlements, damages, and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a Karbon-approved settlement of a Claim, provided Customer
(a) promptly gives Karbon written notice of any Claim,
(b) gives Karbon sole control of the defense and settlement of the Claim (except that Karbon may not unilaterally settle any Claim unless it unconditionally releases Customer of all liability and does not require Customer to perform materially adverse obligations), and
(c) gives Karbon all reasonable assistance, at Karbon’s expense. If Karbon receives information about a Claim arising from the Software, Karbon may in its discretion and at no cost to Customer
(i) modify the Software so that it no longer infringes or misappropriates, without breaching the warranty under Section 7.1 (Warranties),
(ii) obtain a license for Customer’s continued use of that Software in accordance with this Agreement, or
(iii) terminate Customer’s subscription for that Software alleged as infringing and refund Customer any prepaid Subscription Fees covering the remainder of the Subscription Term. The above defense and indemnification obligations do not apply to the extent a Claim arises from and would not have occurred but for,
(A) any Third Party Applications or Customer’s use thereof;
(B) a modification of the Services by anyone other than Karbon or its subcontractors;
(C) Customer’s use of Services otherwise than in accordance with the Agreement and/or Order Details;
(D) Customer’s use of the Services in connection with Third Party Applications or any other third party services or products where such services or products cause the Claim; or,
(E) if such Claim would have been avoided by the use of the current release of the Services, or
(F) Customer’s use of the Services after notice of the alleged or actual Claim from Karbon or the appropriate authority.
11.2. Customer will defend Karbon against any claim, demand, suit or proceeding made or brought against Karbon by a third party alleging that Customer Data, or Customer’s use of any Services infringes or misappropriates such third party’s intellectual property rights or violates applicable law (a “Claim Against Karbon”), and will indemnify Karbon from any damages, attorney fees and costs finally awarded against Karbon as a result of, or for any amounts paid by Karbon under a Karbon-approved settlement of, a Claim Against Karbon, provided Karbon
(a) promptly gives Customer written notice of the Claim Against Karbon,
(b) gives Customer sole control of the defense and settlement of the Claim Against Karbon (except that Customer may not settle any Claim Against Karbon unless it unconditionally releases Karbon of all liability and does not require Karbon to perform substantial obligations), and
(c) gives Customer all reasonable assistance, at Customer’s expense.
12. Limitation of Liability
12.1. THE EXCLUSIONS IN THIS SECTION 12 WILL APPLY TO THE FULLEST EXTENT PERMISSIBLE AT LAW BUT NEITHER PARTY EXCLUDES LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE OR THAT OF ITS OFFICERS, EMPLOYEES, CONTRACTORS OR AGENTS; FRAUD OR FRAUDULENT MISREPRESENTATION; OR ANY OTHER LIABILITY WHICH CANNOT BE EXCLUDED BY LAW.
12.2. EXCEPT WITH RESPECT TO AMOUNTS OWED BY CUSTOMER TO KARBON HEREUNDER, AND SAVE IN THE EVENT OF A CLAIM UNDER SECTION 10 OR SECTION 11, THE AGGREGATE LIABILITY OF KARBON FOR OR IN RESPECT OF ANY LOSS OR DAMAGE SUFFERED BY CUSTOMER RELATED TO THE AGREEMENT, WHETHER DUE TO BREACH OF CONTRACT, NEGLIGENCE OR ANY OTHER TORT UNDER OR IN CONNECTION WITH THIS AGREEMENT ("LOSSES"), IN ANY CLAIM YEAR WILL BE LIMITED TO THE TOTAL AMOUNT OF SUBSCRIPTION FEES PAID BY CUSTOMER DURING SUCH CLAIM YEAR. WITH RESPECT TO A CLAIM UNDER SECTION 10 OR 11, KARBON'S AGGREGATE LIABILITY FOR ANY LOSSES SUFFERED BY A CUSTOMER IN ANY CLAIM YEAR WILL BE LIMITED TO THREE TIMES (3X) THE TOTAL AMOUNT OF SUBSCRIPTION FEES PAID BY THE CUSTOMER DURING SUCH CLAIM YEAR.
12.3. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL KARBON BE LIABLE TO CUSTOMER FOR SPECIAL, CONSEQUENTIAL, INCIDENTAL OR OTHER INDIRECT DAMAGES, OR FOR LOSS OF PROFITS, ANTICIPATED SAVINGS, BUSINESS OPPORTUNITY, GOODWILL, OR LOSS OF REVENUE, LOSS OF USE OR LOSS OF DATA (INCLUDING CORRUPTION OF DATA), OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES ARISING RELATED TO THE AGREEMENT, HOWSOEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) EVEN IF KARBON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER ACKNOWLEDGES THAT THE AMOUNTS PAYABLE HEREUNDER ARE BASED IN PART ON THE LIMITATIONS IN THIS SECTION 12 AND FURTHER AGREES THAT THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
12.4. IN ADDITION TO THE OTHER EXCLUSIONS SET OUT IN THIS SECTION 12, KARBON HAS NO LIABILITY WHERE ANY FAILURE TO PROVIDE THE SERVICES IS CAUSED BY,
(i) A NETWORK, HARDWARE OR SOFTWARE FAULT IN EQUIPMENT THAT IS NOT UNDER THE CONTROL OF KARBON;
(ii) ANY ACT OR OMISSION OF CUSTOMER;
(iii) USE OF THE SERVICES CONTRARY TO THIS AGREEMENT; OR
(iv) SUBJECT TO SECTION 15.3, ANY UNAUTHORIZED ACCESS TO THE SERVICES INCLUDING A MALICIOUS SECURITY BREACH.
12.5. SUBJECT TO SECTION 15.3, IN THE EVENT OF ANY LOSS OR DAMAGE TO CUSTOMER DATA, CUSTOMER'S SOLE AND EXCLUSIVE REMEDY WILL BE AS SET OUT IN SECTION 8.4.
13. Term and Termination
13.1. This Agreement will, unless otherwise stated in the Order Details or terminated as provided in this Section 13, commence on the Effective Date and will continue for the Initial Subscription Term. Thereafter, unless stated to the contrary in an Order Details, this Agreement for the Subscription Services or with respect to any other Services requiring that the Customer commit to Fees for a period of or exceeding an entire year AUTOMATICALLY RENEWS for successive periods of 12 months (each a “Renewal Period”), unless either party terminates with fifteen (15) days written notice prior to the end of the Initial Subscription Term or relevant Renewal Period or otherwise terminates in accordance with the provisions of this Agreement. Without a Renewal Period in place, Customer’s access and use of the Subscription Services will automatically terminate. OTHER AUTO-RENEWAL TERMS:
(i) Karbon will notify Customer by email between 25 and 40 days prior to auto-renewal becoming effective that Customer's Subscription Term is subject to auto-renewal; and
(ii) in order for Customer to cancel the auto-renewal, Customer must provide Karbon written notice of non-renewal no less than fifteen (15) days prior to auto-renewal otherwise becoming effective, such written notice is sufficient if sent to legal@karbonhq.com. Unless stated otherwise in the applicable Order Details or to the extent Karbon has materially breached Its obligations to provide the applicable Service, CUSTOMER IS OBLIGATED TO PAY ALL ANNUAL SERVICES FEES FOR THE ENTIRE INITIAL SUBSCRIPTION TERM OR RENEWAL PERIOD.
13.2. Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this Agreement without liability to the other at any time with immediate effect upon written notice if the other party,
(i) is in material breach of any of its obligations under this Agreement and, in the case of a breach which is capable of remedy, fails to remedy such breach within thirty (30) days following notice of the breach; or
(ii) voluntarily files a petition under bankruptcy or insolvency law; will have a receiver or administrative receiver appointed over it or any of its assets; or if the other party will become subject to an administration order or will enter into any voluntary arrangement with its creditors or will cease or threaten to cease to carry on business; or is subject to any analogous event or proceeding in any applicable jurisdiction.
13.3. On termination of this Agreement for any reason,
(i) all right of use granted under this Agreement will immediately terminate;
(ii) Customer will cease the use of the Services;
(iii) Customer will promptly pay all Fees due under this Agreement;
(iv) each party will return and make no further use of any equipment, property, Software and Services and other items (and all copies of them) belonging to the other party;
(v) Karbon may destroy or otherwise dispose of any of Customer Data in its possession unless Karbon receives, no later than thirty (30) days after the effective date of the termination of this Agreement, a written request for the delivery to Customer of the then most recent back-up of the Customer Data. Karbon will deliver the back up to Customer following its receipt of such a written request. After such 30-day period, Karbon will have no obligation to maintain or provide Customer Data, and will thereafter delete and destroy all copies of Customer Data in Karbon’s control, unless prohibited by law.
14. Dispute Resolution By BINDING ARBITRATION
14.1. Please read this Arbitration Agreement carefully. It is part of the Customer’s Agreement with Karbon and affects the Customer’s rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
14.2. Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with this Agreement or the use of any product or service provided by Karbon that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to the Customer and Karbon, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under this Agreement.
14.3. Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Dispute Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Dispute Notice to Karbon should be sent to: legal@karbonhq.com, and also in accordance with Section 15.8 below. After the Notice is received, the Customer and Karbon may attempt to resolve the claim or dispute informally. If the Customer and Karbon do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
14.4. Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. Any Arbitration with AAA will be conducted pursuant to AAA’s Consumer Arbitration Rules. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with this Agreement. The AAA Consumer Arbitration Rules governing the arbitration are available online at adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in Reno, NV, unless the Customer resides outside of the United States, and unless the parties agree otherwise in writing. If the Customer resides outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearing. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants the Customer an award that is greater than the last settlement offer that Karbon made to the Customer prior to the initiation of arbitration, Karbon will pay the Customer $1,000 in addition to the award. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
14.5. Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
14.6. Time Limits. If the Customer or Karbon pursues arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
14.7. Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of the Customer and Karbon, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and this Agreement. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon the Customer and Karbon.
14.8. Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between the Customer and Karbon in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND KARBON WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
14.9. Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. IN ADDITION TO SIGNING THE AGREEMENT, USE OF THE SERVICES IS EVIDENCE OF CUSTOMER’S EXPLICIT CONSENT TO THIS WAIVER.
14.10. Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
14.11. Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
14.12. Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
14.13. Survival of Agreement. This Arbitration Agreement will survive the termination of Customer’s relationship with Karbon.
14.14. Small Claims Court. Notwithstanding the foregoing, either the Customer or Karbon may bring an individual action in small claims court.
14.15. Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
14.16. Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
14.17. Governing Law. This Agreement, and all dispute arising out of or related to it, will be governed by and construed under the laws of the State of New York, consistent with the Federal Arbitration Act, and without giving effect to any principles that provide for the application of the law of another jurisdiction. If New York law cannot be applied pursuant to the previous sentence, then this Agreement, and all disputes arising out of or related to it, will be governed instead by the laws of the State of Nevada, consistent with the Federal Arbitration Act, and without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.
14.18. Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Reno, Nevada, for such purpose.
15. Miscellaneous Provisions
15.1. Entire Agreement. The Agreement (including any Order Details) sets out the entire agreement and understanding between the parties and supersedes any previous agreement between the parties relating to its subject matter. Unless otherwise expressly agreed in writing the Agreement applies in place of and prevails over any terms or conditions contained in or referred to in any correspondence or elsewhere or implied by trade custom or course of dealing. Any general terms of business or other terms and conditions of any order or other document issued by Customer in connection with this Agreement will not be binding on Karbon. In entering into this Agreement, each party acknowledges and agrees that it has not relied on any representations made by the other except as set forth in this Agreement. Any such representations are excluded. Nothing in this Section will limit liability for any representations made fraudulently.
15.2. Waiver. A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given. Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.
15.3. Invalid provisions. If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions will remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision will apply with whatever modification is necessary to give effect to the commercial intention of the parties.
15.4. No Third Party Rights. A person who is not a party to this Agreement has no rights to enforce, or to enjoy the benefit of, any term of this Agreement.
15.5. Sub-contracting and Assignment. Customer may not assign or otherwise transfer this Agreement or any of its rights or obligations or purport to do any such acts under it to any third party without prior written consent from Karbon, such consent not to be unreasonably withheld.
15.6. No partnership or agency. Nothing in this Agreement is intended to or will operate to create a partnership between the parties, or authorize either party to act as agent for the other, and neither party will have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
15.7. Force Majeure. Karbon will have no liability to Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Karbon or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, fire, flood or storm. Karbon will provide Customer with notice of such an event and its expected duration.
15.8. Notices. All notices to be given under this Agreement will be given in English in writing to the address as will be given by either Party to the other in writing. Any notice involving non-performance, termination, or legal disputes or alleged claims will be hand-delivered or sent by recognized overnight courier or by certified mail, return receipt requested and for Karbon, to legal@karbonhq.com. Notices given by Karbon regarding renewal (automatic or otherwise), price changes, discount category changes, product discontinuance, product changes, and logistics center changes may, in addition, be sent by e-mail to the person(s) specified by Customer from time to time. All other notices not referred to elsewhere in this Section 15.8 may be sent by
(i) post or
(ii) e-mail, or
(iii) a message posted within the Services. All notices will be deemed to have been given and received on the earlier of actual receipt or three (3) days from the date of postmark or date and time an email is sent. Any notice sent to Karbon other than by email must be addressed to Karbon’s business mailing address at: 548 Market St #45902, San Francisco, California 94104-5401.
15.9. Variations. Save as otherwise expressly stated in this Agreement, this Agreement may only be modified or varied in writing executed by duly authorized representatives of both parties.
15.10. Survival. In addition to those provisions which by their nature are intended to survive any termination of this Agreement, Sections 8, 9, 10, 11, 12, 13.3, 14 and 15 of this Agreement will survive such termination or expiration of this Agreement.
15.11. Export Control. The Service, Software and other Karbon materials are subject to the export control laws of various countries, including without limitation the laws of the United States, Switzerland and the UK. Customer agrees that it will not submit the Service or other Karbon materials to any government agency for licensing consideration or other regulatory approval without the prior written consent of Karbon, and will not export the Service, Software, Karbon Data and Karbon materials to countries, persons or entities prohibited by such laws. Customer will also be responsible for complying with all applicable governmental regulations of the country where Customer is registered, and any foreign countries with respect to the use of the Service or other Karbon materials by Customer and its Authorized Users. Customer will not engage in any activity that would cause Karbon to be in violation of any such export control laws and regulations.
—End of Agreement—
