Terms and Conditions
PLEASE READ THESE TERMS OF SERVICE CAREFULLY (this “Agreement”).
Thank you for signing up to receive one or more of the proprietary platforms as a service provided by clearESG, a Nevada corporation (“clearESG”, “we” or “us”). These Terms of Service constitute an agreement (this “Agreement”) by and between clearESG and the corporation, LLC, partnership, sole proprietorship, or other business entity executing this Agreement (“Customer” or “you”). This Agreement is effective as of the date Customer clicks “Accepted and Agreed To” (the “Effective Date”).
- clearESG SERVICES. The clearESG platform (collectively, the “clearESG Services”) gives licensed clients the ability to ensure the proper reporting and documentation of ESG (Environmental, Social and Governance) claims on the blockchain. This Agreement, any policies or exhibits linked to or referenced herein, and the applicable Service-Specific Terms (defined below) apply to each of the clearESG Services. Each of the clearESG Services are described in greater detail in the applicable Service-Specific Terms.
- “Add on” means integrations, applications and other add-ons that are used with the clearESG Services.
- “Affiliate” means any entity which is controlled by, in control of, or is under common control with a party to this Agreement, where “control” means either the power to direct the management or affairs of such entity or ownership of 50% or more of the voting securities of such entity.
- “Aggregate/Anonymous Data” means: (i) data generated by aggregating Customer Data with other data so that results are non-personally identifiable with respect to Customer or its Authorized Users and (ii) anonymous learnings, logs and data regarding use of the clearESG Services.
- “AUP” means clearESG’s Acceptable Use Policy.
- “Authorized Users” means Customer’s duly authorized employees and contractors who are acting for Customer’s benefit and on its behalf.
- “Confidential Information” means code, inventions, know-how, product plans, inventions, technical and financial information exchanged under this Agreement that is identified as confidential at the time of disclosure or should reasonably be considered confidential based on the circumstances surrounding the disclosure and the nature of the information disclosed. Confidential Information does not include information that: (i) is or becomes public knowledge through no fault of the Receiving Party; (ii) was known by the Receiving Party prior to receipt of the Confidential Information; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by the Receiving Party without using the Disclosing Party’s Confidential Information.
- “Customer Data” means data in electronic form input or collected through the clearESG
Services by or from Customer including, but not limited to, Submitted Data, Documents (as defined in the Service-Specific Terms); and any other Customer Data specified in the Service-Specific Terms.
- “Disclosing Party” means the party disclosing Confidential Information to the Receiving Party.
- “Documentation” means clearESG’s end user technical documentation provided with the clearESG Services.
- “clearESG Services” has the meaning assigned that term in Section 1 of this Agreement. “clearESG Services” do not include any Third Party Product.
- “Order” means any clearESG ordering documentation or online sign-up or subscription flow that references this Agreement. The process for placing an Order is described in greater detail in the applicable Service-Specific Terms.
- “Receiving Party” means the party receiving Confidential Information from the Disclosing Party.
- “Regulated Data” means: (i) any personally identifiable information (other than information about Customers or Authorized Users necessary to create user accounts); or (ii) any government IDs, financial information (including bank account or payment card numbers) or any other information subject to regulation or protection under specific laws or regulations.
- “Service-Specific Terms” means the additional or different terms and conditions (if any) specific to a clearESG Service.
- “Submitted Data” means data uploaded, inputted or otherwise submitted by Customer to the clearESG Service, including Third Party Content.
- “Subscription Term” means the initial term for the subscription to the applicable clearESG Service, as specified in an Order, and each subsequent renewal terms (if any).
- “Third Party Content” means content, data or other materials that Customer provides to the clearESG Services from its third-party data providers, including through Add-Ons used by Customer.
- “Third Party Product” means any Add-On, applications, integrations, software, code, online services, systems and other products not developed by ClearESG.
- “User” means any individual who uses the clearESG Services on Customer’s behalf or through Customer’s account or passwords, whether authorized or not.
- The “Website” means the website operated by clearESG available at http://ClearESG.app.
Other terms are defined in other Sections of this Agreement or in the Service-Specific Terms.
- ACCOUNT REGISTRATION AND USE.
- RIGHT TO USE CLEARESG SERVICES
Use by Customer. Subject to all terms and conditions of this Agreement, clearESG grants Customer a worldwide, non-exclusive, non-transferable, non-sublicensable right and license during the applicable Subscription Term to access and use the clearESG Service designated on Customer’s Order solely for Customer’s internal business purposes, but only in accordance with this Agreement (including without limitation any applicable Service-Specific Terms) and the Documentation.
Use by Others. Customer may permit its Authorized Users to use the clearESG Service provided their use is for Customer’s benefit only and remains in compliance with this Agreement. Customer will be responsible and liable for all Authorized Users’ use and access and their compliance with the terms and conditions herein.
General Restrictions. Customer must not (and must not allow any third party to): (i) rent, lease, copy, transfer, sublicense or provide access to the clearESG Service to a third party (except Authorized Users as specifically authorized above); (ii) incorporate the clearESG Service (or any portion thereof) into, or use it with or to provide, any site, product or service; (iii) use the clearESG Service (or any portion thereof) for time sharing purposes or for a third party’s benefit; (iv) publicly disseminate information regarding the performance of the clearESG Service (which constitutes clearESG’s Confidential Information); (v) modify or create a derivative work of the clearESG Service or any portion thereof; (vi) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any clearESG Service, except to the extent expressly permitted by applicable law and then only upon advance notice to clearESG; (vii) break or circumvent any security measures or rate limits for clearESG Services; (viii) distribute any portion of the clearESG Service; or (ix) remove or obscure any proprietary or other notices contained in any of the clearESG Services including in any reports or output generated thereby.
- CUSTOMER DATA.
Rights in Customer Data. Except as otherwise provided herein and in any Service-Specific Terms, Customer retains all right, title and interest (including any intellectual property rights) in and to the Customer Data. Customer hereby grants clearESG a non-exclusive, worldwide, royalty-free right and license to collect, use, copy, store, transmit, modify and create derivative works of the Customer Data solely to the extent necessary to provide the clearESG Services and related services to Customer and as otherwise provided below.
Aggregate/Anonymous Data. Customer agrees that clearESG will have the right to generate Aggregate/Anonymous Data. Notwithstanding anything to the contrary herein, the parties agree that Aggregate/Anonymous Data is clearESG’s proprietary intellectual property, which clearESG may use for any business purpose during or after the term of this Agreement (including without limitation to develop and improve clearESG’s products and services and to create and distribute reports and other materials, including, without limitation, to other Users through Insights). Except as otherwise provided in any Service-Specific Terms, clearESG will not distribute Aggregate/Anonymous Data in a manner that personally identifies Customer or any Authorized User. Without limiting the generality of the foregoing, Customer agrees that Aggregate/Anonymous Data may be used in a way that identifies products sold by Customer or its affiliates.
Security. clearESG agrees to maintain technical and organizational measures designed to secure its systems from unauthorized access, use or disclosure. These measures will include: (i) storing Customer Data on servers located in a physically secured location and (ii) using firewalls, access controls and similar security technology designed to protect Customer Data from unauthorized disclosure. clearESG takes no responsibility and assumes no liability for any Customer Data other than its express security obligations in this Section.
Storage. clearESG does not provide an archiving service. clearESG expressly disclaims all obligations with respect to storage. Additional storage terms may be specified in the applicable Service-Specific Terms.
- CUSTOMER OBLIGATIONS.
Customer agrees to: (i) obtain all necessary rights, releases and consents to allow Customer Data to be collected, used and disclosed in the manner contemplated by this Agreement and to grant clearESG the rights herein; (ii) use the clearESG Services in compliance with the AUP and these Terms; (iii) not submit, collect or use any Regulated Data to or with the clearESG Services (including from Third Party Products); (iv) comply with any third party terms applicable to any Third Party Products used in connection with the clearESG Services; and (v) not take any action that would cause clearESG or the clearESG Services to become subject to any third-party terms. Customer represents and warrants that the collection, use and disclosure of Customer Data will not violate third party rights, including intellectual property, privacy and publicity rights. Customer agrees to keep the information it provided when creating an account up-to-date so that clearESG may send notices, statements and other information by email or through Customer’s account. Customer must ensure that any user IDs, passwords and other access credentials (such as API tokens) for the clearESG Services are kept strictly confidential and not shared with any unauthorized person. If any Authorized User stops working for Customer, Customer must immediately terminate that person’s access to its account and any clearESG Service. Customer will be responsible for any and all actions taken using its and its Authorized Users’ accounts, passwords or access credentials. Customer must notify clearESG immediately of any breach of security or unauthorized use of its account. Accounts are granted to specific Customers and must not be shared with others.
- SUPPORT SERVICES.
clearESG makes available web-based support through the Website. Any support services are subject to this Agreement and clearESG’s support policies. clearESG may also provide onboarding, deployment and other services under this Agreement. The scope, pricing and other terms for these additional services may be set forth in any other document referencing this Agreement. Customer may use anything delivered as part of these additional services internally during its Subscription Term to support its authorized use of the applicable clearESG Services, subject to the restrictions in Section 4. clearESG’s ability to deliver support services under this Section 7 will depend on Customer’s reasonable and timely cooperation and the accuracy and completeness of any information from Customer needed to deliver the support services.
- FEES AND PAYMENT.
Customer shall pay clearESG the fee set forth in each Order (the “Subscription Fee”) for each Subscription Term. clearESG will not be required to refund the Subscription Fee under any circumstances.
- TERM AND TERMINATION.
Term. This Agreement is effective until all Subscription Terms for the clearESG Services have expired or are terminated as expressly permitted herein.
Subscription Term. By placing an Order for purchase of a clearESG Service, Customer is agreeing to pay the applicable Subscription Fee set forth in the applicable Order for the entire Subscription Term. Customer cannot cancel or terminate a Subscription Term except as expressly permitted by Section 9(d) hereof or any applicable Service-Specific Terms. If no subscription start date is specified when ordering a clearESG Service, such subscription will begin when Customer first obtains access to the applicable clearESG Service.
Suspension of Service. clearESG may suspend Customer’s access to any or all of the clearESG Services if: (i) Customer fails to pay any amounts due hereunder or under any Order, (ii) Customer breaches Section 4 or Section 6, or (iii) suspension is necessary to prevent harm or liability to other Users or third parties or to preserve the security, stability, availability or integrity of the clearESG Services. clearESG will have no liability for suspending or disabling Customer’s access to the clearESG Services. For avoidance of doubt, Customer will remain responsible for payment of any Subscription Fee during any period in which such Customer’s access to the clearESG Services has been suspended. Notwithstanding the foregoing, unless this Agreement has been terminated, clearESG will cooperate with Customer to restore access to the clearESG Service or clearESG Services to which the Customer has subscribed once it verifies that Customer has resolved the condition requiring suspension.
Termination for Cause. Either party may terminate this Agreement, including any Order, if the other party: (i) fails to cure any material breach of this Agreement within thirty (30) days after written notice detailing the breach; (ii) ceases operation without a successor; or (iii) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter). clearESG may also terminate this Agreement or any related Order immediately if Customer breaches Section 4 or Section 6 or for repeated violations of this Agreement.
Effect of Termination. Upon any expiration or termination of this Agreement or an Order: (i) Customer’s license rights shall terminate and it must immediately cease use of all applicable clearESG Services, and delete any clearESG documentation, passwords or access codes and any other clearESG Confidential Information in Customer’s possession, custody or control and (ii) Customer’s right to access any Customer Data in the applicable clearESG Service will cease and clearESG may delete any such data in its possession at any time. If clearESG terminates this Agreement for cause as provided in Section 9(d), any payments for the remaining portion of the Subscription Term will become due and must be paid immediately by Customer. Except where this Agreement specifies an exclusive remedy, all remedies under this Agreement, including termination or suspension, are cumulative and not exclusive of any other rights or remedies that may be available to a party.
Survival. Sections 2, 3, 4(c), 5(a), 5(b), 8, 9, 10, 11, 12, 13, 14, 15, and 16 will survive any expiration or termination of this Agreement.
- CONFIDENTIAL INFORMATION.
Nondisclosure. Receiving Party shall not use Confidential Information for any purpose other than in connection with the receipt, provision or use of the clearESG Services (the “Purpose”). Receiving Party may not: (i) disclose Confidential Information to any employee or contractor of Receiving Party unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Receiving Party with terms no less restrictive than those of this Section 10(a); and (ii) shall not disclose Confidential Information to any other third party without Receiving Party’s prior written consent. Without limiting the generality of the foregoing, Receiving Party shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Receiving Party shall promptly notify Disclosing Party of any misuse or misappropriation of Confidential Information that comes to Receiving Party’s attention. Notwithstanding the foregoing, Receiving Party may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Receiving Party shall give Disclosing Party prompt notice of any such legal or governmental demand and reasonably cooperate with Disclosing Party in any effort to seek a protective order or otherwise to contest such required disclosure, at Disclosing Party’s expense.
Injunction. Receiving Party agrees that breach of this Section 10 would cause Disclosing Party irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Disclosing Party will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.
Retention of Rights. This Agreement does not transfer ownership of clearESG’s Confidential Information or grant a license thereto. clearESG will retain all right, title, and interest in and to all Confidential Information.
Exception & Immunity. Pursuant to the Defend Trade Secrets Act of 2016, 18 USC Section 1833(b), Receiving Party is on notice and acknowledges that, notwithstanding the foregoing or any other provision of this Agreement:
An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that- (A) is made- (I) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (II) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual- (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court order.
- IP and FEEDBACK.
IP Rights to the clearESG Services. clearESG retains all right, title, and interest in and to the clearESG Services, including without limitation all software used to provide the clearESG Services and all graphics, user interfaces, logos, and trademarks reproduced through the clearESG Services. This Agreement does not grant Customer any intellectual property license or rights in or to the clearESG Services or any of its components. Customer recognizes that the clearESG Services and its components are protected by copyright and other laws.
Feedback. clearESG has not agreed to and does not agree to treat as confidential any Feedback (as defined below) Customer or Users provide to clearESG, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict clearESG’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer or the User in question. “Feedback” means any suggestion or idea for improving or otherwise modifying the Website or any of clearESG’s products or services, including the clearESG Services.
Customer shall defend, indemnify, and hold harmless clearESG and the clearESG Associates (as defined below) against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of or related to Customer’s alleged or actual use of, misuse of, or failure to use the clearESG Services, including without limitation: (a) claims by Customer’s employees, as well as by Customer’s own customers; (b) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information, including Customer Data; and (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded through the clearESG Services, including without limitation by Customer Data. Indemnified Claims include, without limitation, claims arising out of or related to clearESG’s negligence. Customer’s obligations set forth in this Section 12 include retention and payment of attorneys and payment of court costs, as well as settlement at Customer’s expense and payment of judgments. clearESG will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. “clearESG Associates” means clearESG’s officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.
THE CLEARESG SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. CLEARESG MAKES NO WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. CLEARESG MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE THAT CLEARESG SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, THAT CUSTOMER DATA WILL BE ACCURATE, COMPLETE OR PRESERVED WITHOUT LOSS, OR THAT THE CLEARESG SERVICES WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR-FREE. CLEARESG DOES NOT GUARANTEE THAT SECURITY MEASURES WILL BE ERROR-FREE AND WILL NOT BE RESPONSIBLE OR LIABLE FOR UNAUTHORIZED ACCESS BEYOND ITS REASONABLE CONTROL. CLEARESG WILL NOT BE RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY THIRD PARTY PRODUCTS, THIRD PARTY CONTENT, OR NON-CLEARESG SERVICES (INCLUDING FOR ANY DELAYS, INTERRUPTIONS, TRANSMISSION ERRORS, SECURITY FAILURES, AND OTHER PROBLEMS CAUSED BY THESE ITEMS), FOR REGULATED DATA RECEIVED FROM CUSTOMER IN BREACH OF THIS AGREEMENT, FOR THE COLLECTION, USE AND DISCLOSURE OF CUSTOMER DATA AUTHORIZED BY THIS AGREEMENT, OR FOR DECISIONS OR ACTIONS TAKEN (OR NOT TAKEN) BY CUSTOMER BASED UPON THE CLEARESG SERVICES. THE DISCLAIMERS IN THIS SECTION SHALL APPLY TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, ANY STATUTORILY REQUIRED WARRANTIES UNDER APPLICABLE LAW, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD AND MAXIMUM EXTENT PERMITTED BY LAW.
- LIMITATION OF LIABILITY.
Cap on Liability. CLEARESG’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WITH RESPECT TO ANY GIVEN CUSTOMER WILL NOT EXCEED THE TOTAL SUBSCRIPTION FEES PAID TO DATE UNDER THIS AGREEMENT UNDER ALL ORDERS BETWEEN SUCH CUSTOMER AND CLEARESG.
Other Damages. IN NO EVENT WILL CLEARESG BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
- THIRD PARTY PRODUCTS AND INTEGRATIONS. If Customer uses Third Party Products in connection with the clearESG Services, those products may make Third Party Content available to Customer and may access Customer’s instance of the clearESG Services, including Customer Data. clearESG does not warrant or support Third Party Products or Third Party Content and disclaims all responsibility and liability for these items and their access to the clearESG Services, including their modification, deletion, disclosure or collection of Customer Data. clearESG is not responsible in any way for Customer Data once it is transmitted, copied or removed from the clearESG Services.
Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf. The parties agree that no clearESG employee or contractor will be an employee of Customer.
Notices. clearESG may send notices pursuant to this Agreement to Customer’s email contact points provided by Customer, and such notices will be deemed received 24 hours after they are sent. Customer may send notices pursuant to this Agreement to support@clearESG.app, and such notices will be deemed received 72 hours after they are sent.
Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.
Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without clearESG’s express written consent. Except to the extent forbidden in this Section 16(d), this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
Choice of Law & Jurisdiction: This Agreement will be governed solely by the internal laws of the State of Nevada, including without limitation applicable federal law, without reference to: (i) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (ii) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (iii) other international laws. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of Clark County, Nevada. This Section 16(g) governs all claims arising out of or related to this Agreement, including without limitation tort claims.
Construction. The parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either party by reason of authorship.
Technology Export. Customer shall not: (a) permit any third party to access or use the clearESG Services in violation of any U.S. law or regulation; or (b) export any software provided by clearESG or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer shall not permit any third party to access or use the System in, or export such software to, a country subject to a United States embargo (as of the Effective Date, Cuba, Iran, North Korea, Russia, Sudan and Syria).
Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.