Introduction

Welcome to the Terms of Service (these “Terms”) for the Cloverly carbon credit supplier platform (“Platform”) operated on behalf of Cloverly, Inc. (“Company”, “we” or “us”).  The Platform and any products, services, content, tools, features and functionality offered on or through the Platform are collectively referred to as the “Services”.

These Terms govern your access to and use of the Services including any Services set forth on one or more separately executed order forms (each, an “Order Form”).  Please read these Terms carefully, as they include important information about your legal rights. By clicking “I AGREE”, accessing and/or using the Services, you are agreeing to these Terms. If you do not understand or agree to these Terms, you are not permitted to use the Services.

For purposes of these Terms, “you” and “your” means you as the user of the Services. If you use the Services on behalf of a company or other entity then “you” includes you and that entity, and you represent and warrant that (a) you are an authorized representative of the entity with the authority to bind the entity to these Terms, and (b) you agree to these Terms on the entity’s behalf.

Notice on Section 10

SECTION 10 CONTAINS AN ARBITRATION CLAUSE AND CLASS ACTION WAIVER. BY AGREEING TO THESE TERMS, YOU AGREE (A) TO RESOLVE ALL DISPUTES (WITH LIMITED EXCEPTION) RELATED TO THE COMPANY’S SERVICES AND/OR PRODUCTS THROUGH BINDING INDIVIDUAL ARBITRATION, WHICH MEANS THAT YOU WAIVE ANY RIGHT TO HAVE THOSE DISPUTES DECIDED BY A JUDGE OR JURY, AND (B) TO WAIVE YOUR RIGHT TO PARTICIPATE IN CLASS ACTIONS, CLASS ARBITRATIONS, OR REPRESENTATIVE ACTIONS, AS SET FORTH BELOW. YOU HAVE THE RIGHT TO OPT-OUT OF THE ARBITRATION CLAUSE AND THE CLASS ACTION WAIVER AS EXPLAINED IN SECTION 10.

1. The Services

1.1 Supplier Platform. The Services allow you to (i) manage carbon project (“Projects”) information, (ii) manage carbon credits, carbon removal credits and similar products (“Carbon Credits”) that you produce; (iii) sell and deliver the Carbon Credits through connected channels (“Distribution Channels”) to third-party buyers (“Buyers”); and (iv) and track sales agreements made against your Carbon Credits (“Sales Agreements”).

1. (a) Content.  In connection with your use of the Services, you may upload, send, publish or display content on or through the Service, including (i) your branding, logos or trademarks, (ii) marketing content, images, descriptions, impact claims, removal time periods, registry certification information and Project documentation, (iii) Carbon Credit inventory, including existing and future credit issuances, estimated issuance periods and delivery dates, serial numbers and notes and (iv) Sales Agreement information, including buyers, revenue, delivery dates, direct-sold credit inventory, emissions reduction payment agreements and associated notes (collectively, “Content”). In order to operate the Services, we must obtain from you certain license rights in the Content so that actions we take in operating the Services are not considered legal violations. Accordingly, by using the Services and uploading the Content, you grant us a license to access, use, host, cache, store, reproduce, transmit, display, publish, distribute, and modify (for technical purposes, e.g., making sure content is viewable on smartphones as well as computers and other devices) the Content to be able to operate and provide the Services. You agree that these rights and licenses are royalty free, transferable, sub-licensable, worldwide, and irrevocable (for so long as the Content is stored with us), and include a right for us to make the Content available to, and pass these rights along to, others with whom we have contractual relationships related to the provision of the Services, solely for the purpose of providing such Services, and to otherwise permit access to or disclose the Content to third parties if we determine such access is necessary to comply with our legal obligations.  By posting or submitting the Content through the Services, you represent and warrant that you have, or have obtained, all rights, licenses, consents, permissions, power, and/or authority necessary to grant the rights granted herein for the Content. You agree that the Content will not contain material subject to copyright or other proprietary rights, unless you have the necessary permission or are otherwise legally entitled to post the material and to grant us the license described above.  You are solely responsible for, and will at all times be the owner of, the Content.  We take no responsibility and assume no liability for any Content that you or any other user or third party sends over the Service.  We reserve the right to, but have no obligation to, monitor, delete, access, read, preserve, disclose or take other action with respect to the Content.
   
2. (b) Without limiting the foregoing Section 1.1(a), you hereby represent and warrant that (i) at the time you make available the Carbon Credits to Buyers through the Services, you will have obtained, all rights, licenses, consents, permissions, power, and/or authority necessary to provide such Carbon Credits to Buyer, including good and marketable title thereto, free and clear of all encumbrances and (ii) any information you enter into the Services in respect of the Sales Agreements shall be complete and correct. We take no responsibility for, and assume no liability to you or any third party in respect of, any Carbon Credits made available through the Services or any Sales Agreements to which you are a party, and you agree to indemnify us against any claims by any third party (including your customers or end users) relating to such Carbon Credits or Sales Agreements.

1.2 Distribution Channels. The Services allow you to activate Distribution Channels to sell your Carbon Credits to their Buyers, including the Cloverly Marketplace and any other Distribution Channels that we make available for connection to the Services.

1. (a) Cloverly Marketplace. The Company has a carbon credit marketplace (the “Cloverly Marketplace”) that allows Buyers to (i) purchase and/or retire Carbon Credits from the Company that are provided by the Company and/or by third-party suppliers (“Suppliers”). The Services allow you to activate the Marketplace as a Channel to sell your Carbon Credits to Buyers on the Marketplace through Cloverly. Without limiting or modifying the terms and conditions herein, you acknowledge and agree that notwithstanding your use of the Cloverly Marketplace the availability of your Carbon Credits through the Cloverly Marketplace is not an endorsement, recommendation or sponsorship of you or your Carbon Credits by the Company. The Company shall not be responsible to you for any liability arising from any acts or omissions by or any interactions with a Buyer on the Cloverly Marketplace, including any negligence, misrepresentations or misconduct by a Buyer.
   
2. (b) Other Distribution Channels.  The Cloverly Marketplace is currently the only Distribution Channel made available by the Company through the Services.  We may from time to time make available other Distribution Channels by way of the Services and we may make corresponding changes to these Terms in accordance with Section 11.2.

1.3 Listing, Delivery and Settlement of Carbon Credits on the Cloverly Marketplace.

1. (a) Project Listing Application.  From time to time, you may submit an application (a “Project Listing Application”) to the Company requesting the Company to list your carbon projects as having available carbon credits for spot sale (a “Current Listing”) or as having pre-issuance carbon credits available for future sale (a “Forward Listing,” and together with Current Listing, each a “Listing”) on the Cloverly Marketplace. Each Project Listing Application shall include any information requested by the Company regarding the Listing. The Company will promptly review your Project Listing Application and, in the event that the Company approves your Project Listing Application, you may list carbon credits (“Listed Credits”) pursuant to an approved Listing as available for sale to Buyers on the Cloverly Marketplace.
   
2. (b) Listing. You must not sell, transfer, retire or otherwise dispose of the Listed Credits to any person other than a Buyer through the Company while the Listing is active on the Cloverly Marketplace.  For any Forward Listing, you must provide on the Cloverly Marketplace an estimated issuance date of all Listed Credits that are subject to a Forward Listing (the “Estimated Issuance Date”) and must use commercially reasonable efforts to effectuate the issuance of the applicable Listed Credits by the Estimated Issuance Date.  You must promptly update the Estimated Issuance Date of the Listed Credits on the Cloverly Marketplace.  The Company may separately request an update related to the status of the carbon projects underlying any Forward Listing, and the Supplier must promptly respond to the Company’s request.
   
3. (c) Cloverly Marketplace Order.  Buyers may purchase Listed Credits by processing an order with the Company for such Listed Credits and paying the applicable purchase price designated in the Listing (the “Purchase Price”), plus the applicable Fee (as defined below). Once Buyer completes such an order in the Cloverly Marketplace (a “Marketplace Order”), including payment of the purchase price plus the Fee, the Company will process the Marketplace Order and the applicable Listed Credits will become “Purchased Credits.”
   
4. (d) Delivery and Settlement. The purchase, sale, delivery and payment of all Purchased Credits will be governed by the terms and conditions of a separate agreement between you and Cloverly (the “Marketplace Agreement”) which you must review and accept prior to listing any Listed Credits on the Cloverly Marketplace.  You can view the terms of the Marketplace Agreement here at https://www.cloverly.com/supplier-agreement.  Upon the occurrence of an Event of Default under the Marketplace Agreement, the Company shall have the right to remove you from the Cloverly Marketplace without further obligation or liability to you, except with respect to any Marketplace Orders subject to such Event of Default.
   
5. (e) Representations and Warranties.  At each of the time that you submit a Project Listing Application, and the time that you post a Listing on the Marketplace,, you represent and warrant as follows:
   
   1. (i) each Listed Credit subject to a Current Listing has been validly issued by the applicable registry set forth in the Project Listing Application, and such Listed Credits are held in your registry account(s);
   2. (ii) with respect to Prepaid Credits, you are not aware of any facts or circumstances that will be reasonably expected to prevent issuance of the Listed Credits by the Estimated Issuance Date into your registry account(s);
   3. (iii) all information, including any project pictures, provided in the Listing and Project Listing Application is true and accurate with respect to the applicable offset project and Listed Credits, and there is no material omission or misleading information;
   4. (iv) you have the right to use and publish all information provided in the Project Listing Application;
   5. (v) you have not sold, transferred or otherwise disposed of the Listed Credits and such Listed Credits have not otherwise been retired by any person; and
   6. (vi) such Listing is in compliance with all applicable laws, including the applicable registry rules.
   
   
6. (f) Auditing. The Company may request supporting documentation or conduct a third-party audit of your Listings at its sole discretion. Buyers or the Company may have questions from time to time related to your Listings or Project Listing Application. You will respond to Buyers’ and the Company’s questions and provide required documentations within one (1) business day.
   
7. Pricing. You may set the pricing of the Listed Credits in US Dollars and update the pricing up to one time every month.

1.4 Changes to the Services. We retain the right to change the form and functionality of the Service with or without notice to you. We also retain the right to create limits on and related to use of the Service in our sole discretion at any time with or without notice. We may change, suspend or discontinue any parts of or the entire Service at any time, including the availability of any product, service, feature or content. You agree that we shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service or any part thereof. Unless explicitly stated otherwise, any modifications to the current Service shall be subject to these Terms.

1.4 Additional Terms. Depending on the Services purchased from the Company, your use of such Services may be subject to additional terms and conditions which will be provided to you at the time of purchase.

2. Eligibility and User Accounts

2. 1 Who May Use the Services. You must be 18 years of age or older to use the Services. By using the Services, you represent and warrant that you meet these requirements.

2.2 Creating and Safeguarding your Account. To use certain Services, you need to create an account (“Account”). You agree to provide us with accurate, complete and updated information for your Account. You can access, edit and update your Account via the settings page of your account profile. You are solely responsible for any activity on your Account and for maintaining the confidentiality and security of your password. We are not liable for any acts or omissions by you in connection with your Account. You must immediately notify us at support@cloverly.com if you know or have any reason to suspect that your Account or password have been stolen, misappropriated or otherwise compromised, or in case of any actual or suspected unauthorized use of your Account. You agree not to create any Account if we have previously removed your Account, or we previously banned you from any of our Services, unless we provide written consent otherwise. You may request termination and deletion of your Account by emailing support@cloverly.com.

3. Orders for Products and/or Services

3.1 Payment.

1. (a) The Services permit you to access our supplier platform products or services through the Services (“Products”).  You agree to pay all costs and fees (if any) associated with your use of the Services (“Fees”) that (i) we present to you on our Platform, (ii) we invoice to you, or (iii) are otherwise agreed between the parties in an Order Form. You acknowledge and agree that all information you provide with regards to a purchase of Products, including, without limitation, credit card, PayPal, ACH, information included on an invoice or any other payment information, is accurate, current and complete. You represent and warrant that you have the legal right to use the payment method you provide to us or our payment processor (i.e., Stripe), including, without limitation, any credit card you provide when completing a transaction. The Company assumes no liability or responsibility for any payments you make on the Services through a payment processor or third party payment mechanism. We reserve the right, with or without prior notice and in our sole and complete discretion, to (a) discontinue, modify, or limit the available quantity of, any Products, and (b) refuse to allow any user to purchase any Products. Unless otherwise noted, all currency references are in U.S. Dollars. You are responsible for the payment of all taxes related to purchase of the Products. All Fees are payable in accordance with payment terms in effect at the time the Fees. Without limiting any other rights provided for herein, all overdue payments, including those resulting from breach, shall bear interest from (and including) at a rate equal to the lesser of (A) two percent (2%) per month, and (B) the maximum rate permitted by applicable laws.
   
2. (b) The Company will charge a transaction fee per Marketplace Order (the “Fee”), which the Company will add on to your Purchase Price and will be paid by the Buyers in respect of such Marketplace Order, provided, however, that the Company may change the Fee applicable to any Listing or any Marketplace Order at any time prior to execution of such Marketplace Order.

3.2 Changes and Pricing.

1. (a) The Company may, at any time, revise or change the pricing, availability, specifications, content, descriptions, form, functionality or features of any Products or the Services. While we attempt to be as accurate as we can in our descriptions for the Products and Services, we do not warrant that Product descriptions are accurate, complete, reliable, current, or error-free. The inclusion of any Products for purchase through the Services at a particular time does not imply or warrant that the Products will be available at any other time. You agree that we shall not be liable to you or to any third party for any modification, suspension or discontinuance of any Products or the Services or any part thereof. Unless explicitly stated otherwise, any modifications to the current Services shall be subject to these Terms. We reserve the right to change Fees charged for Products or the Services, and to correct pricing errors that may inadvertently occur (and to cancel any orders in our sole discretion that were purchased with pricing errors). All such changes shall be effective immediately upon posting of such new Fees to the Services and/or upon making the customer aware of the pricing error.

4. Use of Service Data & Privacy Policy

4.1 Service Data. The Services may involve the submission of data, information and other content (“Service Data”) by you and other users, including transactional data pertaining to any transactions made through the Services. Except as otherwise provided in these Terms, the Company does not acquire any ownership of any intellectual property rights in the Service Data that you submit through the Services. Notwithstanding the foregoing, you hereby grant the Company a limited, nonexclusive, perpetual, irrevocable, worldwide, sublicensable and royalty-free license to use the Service Data submitted, posted or displayed by you through the Service, solely to the extent needed to provide, enhance and promote the Services (and the related benefit of the Services), in accordance with applicable data privacy laws, rules or regulations. You represent and warrant that you shall not provide the Company any Service Data that includes any personally identifiable information.

4.2 Privacy Policy. Our Privacy Policy describes how we handle the information you provide to us when you use the Services. For an explanation of our privacy practices, please visit our Privacy Policy located at https://www.cloverly.com/privacy-policy.

5. Rights We Grant You

5.1 Right to Use Services. We hereby permit you to use the Services provided that you comply with these Terms in connection with all such use.  If any software, content or other materials owned or controlled by us are distributed to you as part of your use of the Services, we hereby grant you, a non-assignable, non-sublicensable, non-transferrable, and non-exclusive right and license to access and display such software, content and materials provided to you as part of the Services, in each case for the sole purpose of enabling you to use the Services as permitted by these Terms. Your access and use of the Services may be interrupted from time to time for any of several reasons, including, without limitation, the malfunction of equipment, periodic updating, maintenance or repair of the Service or other actions that Company, in its sole discretion, may elect to take.

5.2 Restrictions On Your Use of the Services. You may not do any of the following in connection with your use of the Services, unless applicable laws or regulations prohibit these restrictions or you have our permission to do so:

1. (a) download, modify, copy, distribute, transmit, display, perform, reproduce, duplicate, publish, license, create derivative works from, or offer for sale any information contained on, or obtained from or through, the Services, except for temporary files that are automatically cached by your web browser for display purposes, or as otherwise expressly permitted in these Terms;
   
2. (b) duplicate, decompile, reverse engineer, disassemble or decode the Services (including any underlying idea or algorithm), or attempt to do any of the same;
   
3. (c) use, reproduce or remove any copyright, trademark, service mark, trade name, slogan, logo, image, or other proprietary notation displayed on or through the Services;
   
4. (d) use automation software (bots), hacks, modifications (mods) or any other unauthorized third-party software designed to modify the Services;
   
5. (e) exploit the Services for any unauthorized commercial purpose, including without limitation communicating or facilitating any commercial advertisement or solicitation;
   
6. (f) access or use the Services in any manner that could disable, overburden, damage, disrupt or impair the Services or interfere with any other party’s access to or use of the Services or use any device, software or routine that causes the same;
   
7. (g) attempt to gain unauthorized access to, interfere with, damage or disrupt the Services, accounts registered to other users, or the computer systems or networks connected to the Services;
   
8. (h) circumvent, remove, alter, deactivate, degrade or thwart any technological measure or content protections of the Services;
   
9. (i) use any robot, spider, crawlers, scraper, or other automatic device, process, software or queries that intercepts, “mines,” scrapes, extracts, or otherwise accesses the Services to monitor, extract, copy or collect information or data from or through the Services, or engage in any manual process to do the same;
   
10. (j) introduce any viruses, trojan horses, worms, logic bombs or other materials that are malicious or technologically harmful into our systems;
    
11. (k) violate any applicable law or regulation in connection with your access to or use of the Services; or
    
12. (l) access or use the Services in any way not expressly permitted by these Terms.

6. Ownership and Content

6.1 Ownership of the Services. The Services, including their “look and feel” (e.g., text, graphics, images, logos), proprietary content, information and other materials, are protected under copyright, trademark and other intellectual property laws. You agree that the Company and/or its licensors own all right, title and interest in and to the Services (including any and all intellectual property rights therein) and you agree not to take any action(s) inconsistent with such ownership interests.  Subject to your rights in the Content, we and our licensors reserve all rights in connection with the Services and its content, including, without limitation, the exclusive right to create derivative works.

6.2 Ownership of Trademarks. The Company’s name, trademarks and logos and all related names, logos, product and service names, designs and slogans are trademarks of the Company or its affiliates or licensors.  Other names, logos, product and service names, designs and slogans that appear on the Services are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by us.  

6.3 Ownership of Feedback. We welcome feedback, comments and suggestions for improvements to the Services (“Feedback”). You acknowledge and expressly agree that any contribution of Feedback does not and will not give or grant you any right, title or interest in the Services or in any such Feedback. All Feedback becomes the sole and exclusive property of the Company, and the Company may use and disclose Feedback in any manner and for any purpose whatsoever without further notice or compensation to you and without retention by you of any proprietary or other right or claim. You hereby assign to the Company any and all right, title and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights and any and all other intellectual property right) that you may have in and to any and all Feedback.

6.4 Publicity. You agree that the Company may identify you as a user of the Services, including but not limited to using or disclosing your name and corporate logo on the Platform, our website, our social media pages and other promotional and marketing materials, including in press releases and on the internet. We will promptly cease any further promotional use of your name and logo if you terminate the Service and provide notice to us. Subject to the limited permission granted herein, all title and interest to your name and logo will remain your exclusive property, and all goodwill arising from our use of your name and logo will inure to your benefit. You agree that you will not publicly identify Cloverly or make any references to the Services without the Company’s prior written consent, including in any promotional and marketing efforts. Any content, materials or marketing efforts referencing any Suppliers, shall be subject to the applicable Supplier’s prior written approval.

7. Third-Party Services and Materials

7.1 Use of Third Party Materials in the Services. Certain Services may display, include or make available content, data, information, applications or materials from third parties (“Third Party Materials”) or provide links to certain third party websites. By using the Services, you acknowledge and agree that the Company is not responsible for examining or evaluating the content, accuracy, completeness, availability, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or websites. We do not warrant or endorse and do not assume and will not have any liability or responsibility to you or any other person for any third-party services, Third Party Materials or third-party websites, or for any other materials, products, or services of third parties. Third Party Materials and links to other websites are provided solely as a convenience to you.

8. Confidentiality

8.1 Disclosure.  Each party (the “Disclosing Party”) may disclose to the other party (“Recipient”) certain Confidential Information of such party or of such party’s associated companies, distributors, licensors, suppliers, or customers.  “Confidential Information” means any information that is of value to its owner and is treated as confidential, including trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing.  You acknowledge that the Services are the Confidential Information of the Company. Confidential Information shall not include information that: (i) is already known to the Recipient without restriction on use or disclosure prior to receipt of such information from the Disclosing Party; (ii) is or becomes generally known by the public other than by breach of these Terms by, or other wrongful act of, the Recipient; (iii) is developed by the Recipient independently of, and without reference to, any Confidential Information of the Disclosing Party; or (iv) is received by the Recipient from a third party who is not under any obligation to the Disclosing Party to maintain the confidentiality of such information.  

8.2 Requirement of Confidentiality. The Recipient agrees: (i) not to disclose or otherwise make available Confidential Information of the Disclosing Party to any third party without the prior written consent of the Disclosing Party, provided that the Recipient may disclose the Confidential Information of the Disclosing Party to its, and its affiliates, officers, employees, consultants and legal advisors who have a “need to know”, who have been apprised of this restriction and who are themselves bound by nondisclosure obligations at least as restrictive as those set forth in this Section 8.2; (ii) to use the Confidential Information of the Disclosing Party only for the purposes of performing its obligations or as otherwise authorized under these Terms; and (iii) to promptly notify the Disclosing Party in the event it becomes aware of any loss or disclosure of any of the Confidential Information of Disclosing Party.  

8.3 Compelled Disclosure. If the Recipient becomes legally compelled to disclose any Confidential Information, the Recipient shall provide: (i) prompt written notice of such requirement so that the Disclosing Party may seek, at its sole cost and expense, a protective order or other remedy; and (ii) reasonable assistance, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure.  If, after providing such notice and assistance as required herein, the Recipient remains required by law to disclose any Confidential Information, the Recipient shall disclose no more than that portion of the Confidential Information which, on the advice of the Recipient’s legal counsel, the Recipient is legally required to disclose and, upon the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or agency that such Confidential Information will be afforded confidential treatment.

9. Disclaimers, Limitations of Liability and Indemnification

9.1 Disclaimers.

1. (a) Your access to and use of the Services are at your own risk. You understand and agree that the Services are provided to you on an “AS IS” and “AS AVAILABLE” basis. Without limiting the foregoing, to the maximum extent permitted under applicable law, the Company, its parents, affiliates, related companies, officers, directors, employees, agents, representatives, partners and licensors (the “Company Entities”) DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. The Company Entities make no warranty or representation and disclaim all responsibility and liability for: (i) the completeness, accuracy, availability, timeliness, security or reliability of the Services; (ii) any harm to your computer system, loss of data, or other harm that results from your access to or use of the Services; (iii) the operation or compatibility with any other application or any particular system or device; and (iv) whether the Services will meet your requirements or be available on an uninterrupted, secure or error-free basis; and (e) any conduct of any third party on the Services, including any Suppliers, not under our control. Any information, whether oral or written, obtained from the Company Entities or through the Services, including from any Suppliers, is for informational purposes only and does not create any warranty or representation not expressly made herein. Any reliance you place on such information is at your own risk, and the Company disclaims all liability arising from any such reliance.
   
2. (b) THE LAWS OF CERTAIN JURISDICTIONS, INCLUDING NEW JERSEY, 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, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
   
3. (c) THE COMPANY ENTITIES TAKE NO RESPONSIBILITY AND ASSUME NO LIABILITY FOR ANY CONTENT THAT YOU, ANOTHER USER, OR A THIRD PARTY CREATES, UPLOADS, POSTS, SENDS, RECEIVES, OR STORES ON OR THROUGH OUR SERVICES.

9.2 Limitations of liability. TO THE EXTENT NOT PROHIBITED BY LAW, YOU AGREE THAT IN NO EVENT WILL THE COMPANY ENTITIES BE LIABLE (A) FOR DAMAGES OF ANY KIND, INCLUDING INDIRECT SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA OR PROFITS, BUSINESS INTERRUPTION OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SERVICES), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER UNDER THESE TERMS OR OTHERWISE ARISING IN ANY WAY IN CONNECTION WITH THE SERVICES OR THESE TERMS AND WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) EVEN IF THE COMPANY ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, OR (B) FOR ANY OTHER CLAIM, DEMAND OR DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE DELIVERY, USE OR PERFORMANCE OF THE SERVICES.  SOME JURISDICTIONS (SUCH AS THE STATE OF NEW JERSEY) DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU. THE COMPANY ENTITIES’ TOTAL LIABILITY TO YOU FOR ANY DAMAGES FINALLY AWARDED SHALL NOT EXCEED THE GREATER OF ONE HUNDRED DOLLARS ($100.00), OR THE AMOUNT YOU PAID THE COMPANY ENTITIES, IF ANY, IN THE PAST SIX (6) MONTHS FOR THE SERVICES GIVING RISE TO THE CLAIM (EXCLUDING ANY AMOUNTS PAID BY YOU FOR ANY CARBON CREDITS HEREUNDER). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

9.3 Force Majeure. We will not be liable or responsible to you, nor be deemed to have defaulted under or breached these Terms, for any failure or delay in fulfilling or performing any of our obligations under these Terms or in providing the Services, including operating the Platform or providing access to our APIs or Marketplace, when and to the extent such failure or delay is caused by or results from any events beyond our control, including acts of God, flood, fire, earthquake, epidemics, pandemics, tsunami, explosion, war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, government order, law, or action, embargoes or blockades, strikes, labor stoppages or slowdowns or other industrial disturbances, shortage of adequate or suitable Internet connectivity, telecommunication breakdown or shortage of adequate power or electricity, and other similar events beyond our control.

9.4 Indemnification. By entering into these Terms and accessing or using the Services, you agree that you shall defend, indemnify and hold the Company Entities harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) incurred by the Company Entities arising out of or in connection with: (i) your violation or breach of any term of these Terms or any applicable law or regulation; (ii) your violation of any rights of any third party, including any intellectual property rights; (c) your use of, misuse of or access to the Services; (iii) your Content; or (iv) your negligence or wilful misconduct. If you are obligated to indemnify any Company Entity hereunder, then you agree that Company (or, at its discretion, the applicable Company Entity) will have the right, in its sole discretion, to control any action or proceeding and to determine whether Company wishes to settle, and if so, on what terms, and you agree to fully cooperate with Company in the defense or settlement of such claim.

10. ARBITRATION AND CLASS ACTION WAIVER

10.1 PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. IT CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.

10.2 Informal Process First.  You and the Company agree that in the event of any dispute between you and the Company Entities, either party will first contact the other party and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution, including without limitation, any court action, after first allowing the receiving party 30 days in which to respond.  Both you and the Company agree that this dispute resolution procedure is a condition precedent which must be satisfied before initiating any arbitration against the other party.

10.3 Arbitration Agreement and Class Action Waiver.  After the informal dispute resolution process, any remaining dispute, controversy, or claim (collectively, “Claim”) relating in any way to the Company’s services and/or products, including the Services, and any use or access or lack of access thereto, will be resolved by arbitration, including threshold questions of arbitrability of the Claim. You and the Company agree that any Claim will be settled by final and binding arbitration, using the English language, administered by JAMS under its Comprehensive Arbitration Rules and Procedures (the “JAMS Rules”) then in effect (those rules are deemed to be incorporated by reference into this section, and as of the date of these Terms).  Because your contract with the Company, these Terms, and this Arbitration Agreement concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit. Arbitration will be handled by a sole arbitrator in accordance with the JAMS Rules. Judgement on the arbitration award may be entered in any court that has jurisdiction. Any arbitration under these Terms will take place on an individual basis – class arbitrations and class actions are not permitted. You understand that by agreeing to these Terms, you and the Company are each waiving the right to trial by jury or to participate in a class action or class arbitration.

10.4 Exceptions. Notwithstanding the foregoing, you and the Company agree that the following types of disputes will be resolved in a court of proper jurisdiction:

(1) Disputes or claims within the jurisdiction of a small claims court consistent with the jurisdictional and dollar limits that may apply, as long as it is brought and maintained as an individual dispute and not as a class, representative, or consolidated action or proceeding;

(2)  Disputes or claims where the sole form of relief sought is injunctive relief (including public injunctive relief); or

(3)  Intellectual property disputes.

10.5 Costs of Arbitration. Payment of all filing, administration, and arbitrator costs and expenses will be governed by the JAMS Rules, except that if you demonstrate that any such costs and expenses owed by you under those rules would be prohibitively more expensive than a court proceeding, the Company will pay the amount of any such costs and expenses that the arbitrator determines are necessary to prevent the arbitration from being prohibitively more expensive than a court proceeding (subject to possible reimbursement as set forth below).

Fees and costs may be awarded as provided pursuant to applicable law. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the JAMS rules. In that case, you agree to reimburse the Company for all monies previously disbursed by it that are otherwise your obligation to pay under the applicable rules. If you prevail in the arbitration and are awarded an amount that is less than the last written settlement amount offered by the Company before the arbitrator was appointed, the Company will pay you the amount it offered in settlement.  The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.

10.6 Opt-Out. You have the right to opt-out and not be bound by the arbitration provisions set forth in these Terms by sending written notice of your decision to opt-out to support@cloverly.com or to the U.S. mailing address listed in the “How to Contact Us” section of these Terms. The notice must be sent to the Company within thirty (30) days of your first registering to use the Services or agreeing to these Terms; otherwise you shall be bound to arbitrate disputes on a non-class basis in accordance with these Terms. If you opt out of only the arbitration provisions, and not also the class action waiver, the class action waiver still applies.  You may not opt out of only the class action waiver and not also the arbitration provisions.  If you opt-out of these arbitration provisions, the Company also will not be bound by them.

10.7 WAIVER OF RIGHT TO BRING CLASS ACTION AND REPRESENTATIVE CLAIMS. To the fullest extent permitted by applicable law, you and the Company each agree that any proceeding to resolve any dispute, claim, or controversy will be brought and conducted ONLY IN THE RESPECTIVE PARTY’S INDIVIDUAL CAPACITY AND NOT AS PART OF ANY CLASS (OR PURPORTED CLASS), CONSOLIDATED, MULTIPLE-PLAINTIFF, OR REPRESENTATIVE ACTION OR PROCEEDING (“CLASS ACTION”).  You and the Company AGREE TO WAIVE THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS ACTION.  You and the Company EXPRESSLY WAIVE ANY ABILITY TO MAINTAIN A CLASS ACTION IN ANY FORUM.  If the dispute is subject to arbitration, THE ARBITRATOR WILL NOT HAVE THE AUTHORITY TO COMBINE OR AGGREGATE CLAIMS, CONDUCT A CLASS ACTION, OR MAKE AN AWARD TO ANY PERSON OR ENTITY NOT A PARTY TO THE ARBITRATION.  Further, you and the Company agree that the ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS FOR MORE THAN ONE PERSON’S CLAIMS, AND IT MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CLASS ACTION.  For the avoidance of doubt, however, you can seek public injunctive relief to the extent authorized by law and consistent with the Exceptions clause above.

IF THIS CLASS ACTION WAIVER IS LIMITED, VOIDED, OR FOUND UNENFORCEABLE, THEN, UNLESS THE PARTIES MUTUALLY AGREE OTHERWISE, THE PARTIES’ AGREEMENT TO ARBITRATE SHALL BE NULL AND VOID WITH RESPECT TO SUCH PROCEEDING SO LONG AS THE PROCEEDING IS PERMITTED TO PROCEED AS A CLASS ACTION.   If a court decides that the limitations of this paragraph are deemed invalid or unenforceable, any putative class, private attorney general, or consolidated or representative action must be brought in a court of proper jurisdiction and not in arbitration.

11. Additional Provisions

11.1 SMS Messaging and Phone Calls. Certain portions of the Services may allow us to contact you via telephone or text messages. You agree that the Company may contact you via telephone or text messages (including by an automatic telephone dialing system) at any of the phone numbers provided by you or on your behalf in connection with your use of the Services, including for marketing purposes. You understand that you are not required to provide this consent as a condition of purchasing any Product. You also understand that you may opt out of receiving text messages from us at any time. If you do not choose to opt out, we may contact you as outlined in our Privacy Policy.

11.2 Updating These Terms. We may modify these Terms from time to time in which case we will update the “Last Revised” date at the top of these Terms.  If we make changes that are material, we will use reasonable efforts to attempt to notify you, such as by e-mail and/or by placing a prominent notice on the first page of the Website. However, it is your sole responsibility to review these Terms from time to time to view any such changes.  The updated Terms will be effective as of the time of posting, or such later date as may be specified in the updated Terms. Your continued access or use of the Services after the modifications have become effective will be deemed your acceptance of the modified Terms. If you do not agree to the modified Terms, you are no longer authorised to use the Service.  No amendment shall apply to a dispute for which an arbitration has been initiated prior to the change in Terms.

11.3 Termination of License and Your Account. If you are using a Service which requires payment of fees for use, you are only permitted to access such Service for the period of time or for the level of service for which you have paid or agreed to pay pursuant to an Order Form. If you breach any of the provisions of these Terms, the Company may immediately terminate any licenses granted hereunder, with or without notice to you. Additionally, the Company may suspend, disable, or delete your Account and/or the Services (or any part of the foregoing) with or without notice, for a breach of these Terms or as otherwise determined by the Company in its reasonable discretion.. If the Company deletes your Account for any suspected breach of these Terms by you, you are prohibited from re-registering for the Services under a different name. Termination of your access to the Services or any part thereof shall not relieve you of any obligations arising or accruing prior to such termination or limit any liability that you may otherwise have to us or any third party. All sections which by their nature should survive the termination of these Terms shall continue in full force and effect subsequent to and notwithstanding any termination of these Terms by the Company or you. Termination will not limit any of the Company’s other rights or remedies at law or in equity.

11.4 Injunctive Relief. You agree that a breach of these Terms will cause irreparable injury to the Company for which monetary damages would not be an adequate remedy and the Company shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security or proof of damages.

11.5 California Residents. If you are a California resident, in accordance with Cal. Civ. Code § 1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210.

11.6 Export Laws. You agree that you will not export or re-export, directly or indirectly, the Services and/or other information or materials provided by the Company hereunder, to any country for which the United States or any other relevant jurisdiction requires any export license or other governmental approval at the time of export without first obtaining such license or approval. In particular, but without limitation, the Services may not be exported or re-exported (a) into any U.S. embargoed countries or any country that has been designated by the U.S. Government as a “terrorist supporting” country, or (b) to anyone listed on any U.S. Government list of prohibited or restricted parties, including the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Services, you represent and warrant that you are not located in any such country or on any such list. You are responsible for and hereby agree to comply at your sole expense with all applicable United States export laws and regulations.

11.7 Miscellaneous. If any provision of these Terms shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions. These Terms and the licenses granted hereunder may be assigned by the Company but may not be assigned by you without the prior express written consent of the Company. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for reference only and shall not be read to have any legal effect. No agency, partnership, joint venture, employer-employee or franchisor-franchisee relationship is intended or created by these Terms, and you do not have any authority of any kind to bind the Company in any respect whatsoever. The Services are operated by us in the United States. Those who choose to access the Services from locations outside the United States do so at their own initiative and are responsible for compliance with applicable local laws. These Terms are governed by the laws of the State of New York, without regard to conflict of laws rules, and the proper venue for any disputes arising out of or relating to any of the same will be the arbitration venue set forth in Section 10, or if arbitration does not apply, then the state and federal courts located in New York City, New York.

11.8 How to Contact Us.  You may contact us regarding the Services or these Terms by email at support@cloverly.com.

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