Aclima

© 2020 Aclima Inc.

Legal & Privacy

Legal & Privacy

Terms of Service

Aclima Terms of Service

(Last Updated: February 2020)

Thanks for visiting and/or using the Aclima.io website. Aclima, Inc. provides a platform where users may obtain information about hyperlocal environmental conditions derived from technologies and services owned, licensed and provided by Aclima, Inc. (referred to as “Site” and described below). Any visitors to this Site are collectively referred to as "users" in these Terms. By purchasing, accessing or using the Services offered by Aclima, Inc. (“Aclima”, “we” or “us”), you (”you “ or “user”) are confirming that you have read, understand and accept this Agreement. This Agreement includes the Terms of Service (“Terms”) covering your use of and access to any of our websites, services, client software or data sources ("Services") as well our Privacy Policy and published Information Guidelines (see below).

Our Privacy Policy explains how we collect and use your information while these Terms outline your responsibilities when using our Services including Information Guidelines and interactions with third parties. By using our Services, you’re agreeing to be bound by these Terms, our Privacy Policy and our Guidelines. If you’re using our Services for an organisation (“Customer”), you’re agreeing to these Terms on behalf of that organization. This Agreement may be updated from time to time in accordance with its terms and conditions. You are responsible for regularly reviewing the most current version of this Agreement. When we change this Agreement, we will modify the “Last Update” date above. You will only be notified as to any updates as required by applicable law. By using, accessing or logging in to the Services after the date of any update, you will be deemed to have agreed to all such updated Terms.

Your Responsibilities

You’re responsible for your conduct. You must comply with our terms in the use of our Sites and Services and likewise comply with the accompanying Guidelines. Content in the Services may be protected by others’ intellectual property rights. Please don’t copy, upload, download for distribution or share content unless you have the right to do so and these Terms do not provide such permissions.  Portions of our Services may be made available through social sharing features enabled on our Sites (e.g. Twitter and Facebook) but only content and information tagged for such functionality is available for sharing.

We may review your conduct and content for compliance with these Terms and our Information Guidelines and any other policies. That said, we have no obligation to do so.

You may use our Services only as permitted by applicable law, including export control laws and regulations. For example, to use our Services in the United States, you must be at least 13 years old. If you live in the European Union, you must be at least 16 years old. Please check your local law for the age of digital consent. If you don’t meet these age requirements, you may not use the Services.

Software

Some of our Services allow you to download or access our client software (“Software”) or various subscription services related to our Software or platform, which may be updated automatically. As long as you comply with these Terms, we give you a limited, non-exclusive, non-transferable, revocable licence to access and download the Software, solely to access the Services, and use of such Software will be governed by further agreements between you and Aclima which you must accept in order to use the Software. To the extent any component of the Software may be offered under an open source license, we’ll make that license available to you and the provisions of that license may expressly override some of these Terms. Unless the following restrictions are prohibited by law, you agree not to reverse engineer or decompile the Services or the Software, attempt to do so or assist anyone in doing so.

Beta Services

We may release products and features that we are still testing and evaluating. Those Services will be marked as beta, preview, early access or evaluation (or words or phrases with similar meanings) and may not be as reliable as other services and may be terminated at any time. By accessing such releases, you agree to their use solely for Aclima internal purposes and evaluation.

Third Party Services

Parts of our Services will require access to services or APIs or other functionality provided by third parties including but not limited to surveys and questionnaires, marketing analytics including those provided by Google, customer relationship management and communications software, and other service providers related to our Sites or Software. By using or accessing our Services you understand that your use of our Sites may involve access by such third party service providers and as such you may be subject to the terms and conditions related to such service providers.

Accessibility

Aclima’s services and its related features may not be available in all languages and/or all countries or in translation to all methods of online accessibility for those with various disabilities. Given this possibility, Aclima makes no representation that its services and related features are appropriate or available for use in any specific location or by any specific person. In your election to use and access the Services despite these possible conditions, you do so upon your own initiative and with understanding of and agreement to such limitations.

Aclima’s Property and Proprietary Information

The Services are protected by patent, copyright, trademark, and other US and foreign laws. These Terms don’t grant you any right, title or interest in the Services, others’ content in the Services, in Aclima’s trademarks, logos and other brand features or proprietary information. We welcome feedback, but please note that we may use comments or suggestions without any obligation to you.

You may not reproduce, copy, transfer, give access to, distribute, sell, rent, lease, assign, sublicense, nor create derivative works from our Services. Access to the Services is licensed, not sold, to you and is owned by Aclima and its licensors. You agree not to obscure or alter or remove any patent, copyright, trademark or other proprietary notice or legend contained on or in the Services for any reason.  Aclima chooses to make available portions of our Sites and Services to social sharing applications and other shareable features for data and reports (e.g. Twitter and Facebook) and content sharing features and you may share content that is enabled with such functionality.

Specifically, unless stated otherwise:

  • you may not cache, store, or export any map content from the Services;
  • you may not redistribute any map content from the Services, including from a cache, by proxying, or by using a screenshot or other static image, instead of directly accessing via our APIs and other sources of licensed data dissemination;
  • you may not resell or re-syndicate the Services to any third party (e.g., act as a reseller or service bureau) except with the express permission of Aclima to do so.

Copyright

We respect the intellectual property of others and ask that you do too. We respond to notices of alleged copyright infringement if they comply with the law, and such notices should be reported by emailing legal@alima.io. We reserve the right to delete or disable content alleged to be infringing and terminate accounts of repeat infringers. Our designated agent for notice of alleged copyright infringement on the Services is: Attention: Legal, 10 Lombard Street, Suite 300,San Francisco, CA 94111.

Third Party Content

Other than content you may contribute to our Sites, all content displayed on the site or accessible through the Services, including text, images, maps, software or source code, are the property of Aclima and/or third party partners and are protected by United States and international intellectual property laws. Logos and product names appearing on or in connection with the Services are proprietary to Aclima and/or our licensors. You may not remove any proprietary notices or product identification labels from the Services.

Mobile User Access

If you access our Services via a mobile device or application, location and usage data (telemetry) may be sent to us, which we may use to improve our Services, provide information back to you about how your app is being used, and for other purposes consistent with our Privacy Policy and Information Guidelines.


Termination

You’re free to stop using our Services at any time. We reserve the right to suspend or terminate your access to the Services on notice to you if:

(a) you’re in breach of these Terms, or

(b) your use of the Services is in a manner that would cause a real risk of harm or loss to us or other users.

We won’t provide notice before termination where:

(a) you’re in material breach of these Terms,

(b) doing so would cause us legal liability or compromise our ability to provide the Services to our other users, or

(c) we're prohibited from doing so by law.

Discontinuation of Services

We may decide to discontinue the Site, the Services or access to the Software in response to unforeseen circumstances beyond our control or to comply with a legal requirement. If we do so, we’ll give you reasonable prior notice if possible. If we discontinue Services in this way before the end of any fixed or minimum term you have paid us for, we’ll refund the portion of the fees you have pre-paid but haven't received Services for.

Disclaimers

TO THE FULLEST EXTENT PERMITTED BY LAW, ACLIMA AND ITS AFFILIATES, SUPPLIERS AND DISTRIBUTORS MAKE NO WARRANTIES, EITHER EXPRESS OR IMPLIED, ABOUT THE SERVICES. THE SERVICES ARE PROVIDED "AS IS". WE ALSO DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

ACLIMA DOES NOT GUARANTEE OR WARRANT THAT THE SERVICES WILL BE FREE FROM CORRUPTION, LOSS, VIRUSES, ATTACK, HACKING, INTERFERENCE, OR OTHER SECURITY INTRUSIONS. ACLIMA DISCLAIMS ANY RELATED LIABILITY WITH RESPECT TO THESE THIRD PARTY ACTS. TO THE EXTENT THESE EXCLUSIONS ARE SPECIFICALLY PROHIBITED BY LAW IN INDIVIDUAL JURISDICTIONS, THEY  MAY NOT APPLY TO YOU.

YOU AGREE AND ACKNOWLEDGE THAT YOUR DOWNLOADING OF ANY MATERIAL OBTAINED THROUGH THE SERVICES IS AT YOUR OWN RISK. ANY RESULTING OR ALLEGED DAMAGES TO YOUR COMPUTER, DEVICE, OR DATA LOSS THAT RESULTS SHALL BE YOUR SOLE RESPONSIBILITY.

Limitation of Liability

WE DON’T EXCLUDE OR LIMIT OUR LIABILITY TO YOU WHERE IT WOULD BE ILLEGAL TO DO SO – THIS INCLUDES ANY LIABILITY FOR ACLIMA’S OR ITS AFFILIATES’ FRAUD OR FRAUDULENT MISREPRESENTATION IN PROVIDING THE SERVICES. IN COUNTRIES WHERE CERTAIN TYPES OF EXCLUSIONS AREN’T ALLOWED, WE'RE RESPONSIBLE TO YOU ONLY FOR LOSSES AND DAMAGES THAT ARE A REASONABLY FORESEEABLE RESULT OF OUR FAILURE TO USE REASONABLE CARE AND SKILL OR OUR BREACH OF OUR CONTRACT WITH YOU. THIS PARAGRAPH DOESN’T AFFECT CONSUMER RIGHTS THAT CAN'T BE WAIVED OR LIMITED BY ANY CONTRACT OR AGREEMENT.

IN COUNTRIES WHERE EXCLUSIONS OR LIMITATIONS OF LIABILITY ARE ALLOWED, ACLIMA, ITS AFFILIATES, SUPPLIERS OR DISTRIBUTORS WON’T BE LIABLE FOR:

i. ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR

ii. ANY LOSS OF USE, DATA, BUSINESS OR PROFITS, REGARDLESS OF LEGAL THEORY.

THESE EXCLUSIONS OR LIMITATIONS WILL APPLY REGARDLESS OF WHETHER OR NOT ACLIMA OR ANY OF ITS AFFILIATES HAVE BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES. ACLIMA, ITS AFFILIATES, SUPPLIERS OR DISTRIBUTORS WILL HAVE NO LIABILITY TO YOU FOR ANY LOSS OF PROFIT, LOSS OF BUSINESS, BUSINESS INTERRUPTION OR LOSS OF BUSINESS OPPORTUNITY. ACLIMA AND ITS AFFILIATES AREN’T RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USERS OF THE SERVICES. TO THE EXTENT THESE EXCLUSIONS ARE SPECIFICALLY PROHIBITED BY LAW IN INDIVIDUAL JURISDICTIONS, THEY  MAY NOT APPLY TO YOU.

Indemnification

You agree to indemnify and hold harmless Aclima and its subsidiaries, affiliates, officers, directors, agents, partners, and employees from any claim or demand, including reasonable attorneys' fees, arising out of:

  • Your use of the Services;
  • Your violation of these Terms;
  • Your end users’ use of the Services in or through an application or service you provide;
  • Content you or your end users submit, post to, extract from, or transmit through the Services.

Unlawful and other unauthorized uses

You agree to comply with all applicable laws, regulations, and third party agreements in your use of the Services. You are not (and your organization is not 50% or more owned by one or more individuals, organizations or entities that are): (1) organized or located in a country or territory that is the target of sanctions imposed or (2) listed on any restricted or sanctioned party list maintained by the U.S. Government or any other country.

You may not use the Services in any manner that could damage or overburden the Services or interfere with any other party's use of the Services.

You may not use the Services to:

  1. Disseminate material that is abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening, or malicious;
  2. Aid or implement practices violating basic human rights or civil liberties. For the avoidance of doubt, you may not use the Services to assist in the creation of databases of identifying information for any government to abrogate any human rights, civil rights, or civil liberties of individuals whether on the basis of race, gender or gender identity, sexual orientation, religion, or national origin or otherwise;
  3. Disseminate or store material that infringes the copyright, trademark, patent, trade secret, or other intellectual property right of any person;
  4. Create a false identity or otherwise attempt to mislead others as to the identity or origin of any communication or data communicated through our Services;
  5. Export, re-export, or permit downloading of any content in violation of any export or import law, regulation, or restriction of the United States and its agencies or authorities, or without all required approvals, licenses, or exemptions;
  6. Interfere with or attempt to gain unauthorized access to any computer network;
  7. Host with, transmit to or provide to us any information that is subject to specific government regulation, including, without limitation, Protected Health Information (as defined in the U.S. Health Insurance Portability and Accountability Act, as amended), financial information (as regulated by the U.S. Financial Services Modernization Act, as amended), consumer reports and consumer-reporting information (as regulated by the U.S. Fair Credit Reporting Act, as amended) and information subject to export control or economic sanction laws;
  8. Operate dangerous businesses using our Services such as emergency services or air traffic control, where the use or failure of the Services could lead to death, personal injury or significant property damage;
  9. Transmit viruses, trojan horses, or any other malicious code or program; or
  10. Engage in any other activity reasonably deemed by Mapbox to be in conflict with the spirit or intent of these Terms.
  11. Use the Services to develop, test, validate and/or improve any service or dataset that is a substitute for, or substantially similar to, the Services (including any portion thereof).

Resolving Disputes

Aclima will attempt to resolve any dispute with you informally by contacting you via email. If a dispute is not resolved within 15 days of submission, a formal proceeding may follow such as arbitration.

Judicial forum for disputes. You and Aclima agree that any judicial proceeding to resolve claims relating to these Terms or the Services will be brought in the federal or state courts of San Francisco County, California. Aclima and you both consent to venue and personal jurisdiction in such courts. If you reside in a country (for example, European Union member states) with laws that give consumers the right to bring disputes in their local courts, this paragraph doesn’t affect those requirements.

NO CLASS ACTIONS. You may only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or a member in a class, in a consolidated or representative action. Class arbitrations, class actions, private attorney general actions and consolidation with other arbitrations aren’t allowed.

Controlling Law

These Terms will be governed by California law, in the United States of America, except for its conflicts of laws principles. However, some countries (including those in the European Union) have laws that require agreements to be governed by the local laws of the consumer's country. This paragraph doesn’t override those laws.

Entire Agreement

These Terms constitute the entire agreement between you and Aclima with respect to the subject matter of these Terms, and supersede and replace any prior or contemporaneous agreements, or terms and conditions applicable to the subject matter of these Terms. These Terms create no third-party beneficiary rights or rights of survivorship.

Waiver, Severability & Assignment

Aclima’s failure to enforce a provision is not a waiver of its right to do so later. If a provision is found to be unenforceable, the remaining provisions of the Terms will remain in full effect and an enforceable term will be substituted reflecting our intent as closely as possible. You may not assign any of your rights under these Terms, and any such attempt will be void. Aclima may assign its rights to any of its affiliates or subsidiaries, or to any successor in the interest of any business associated with the Services.

Feedback

You agree that we may freely exploit and make available any and all feedback, suggestions, ideas, enhancement requests, recommendations or other information you provide to us relating to the Services.

Modifications

We may revise these Terms, and policies related to it like our Privacy Policy or Information Guidelines, from time to time to better reflect:

(a) changes to the law,

(b) new regulatory requirements, or

(c) improvements or enhancements made to our Services.

If an update materially affects your use of the Services or your legal rights as a user of our Services, we’ll notify you prior to the update's effective date by sending an email to the email address associated with your account or via an in-product notification. These updated terms will be effective no less than 30 days from when we notify you. You may not be notified of non-material changes to our terms or policies.

If you don’t agree to the updates we make, please cancel your account before they become effective. By continuing to use or access the Services after the updates come into effect, you agree to be bound by the revised Terms.

***Supplemental Terms For Enterprise Services Users***

This Supplemental Terms section of the Terms of Services applies solely only to users (“you” or “Enterprise Users”) of Aclima’s Enterprise Services, as further defined below (“Supplemental Terms”) who are not otherwise subject to a Services Agreement for the license and use of our Services. To the extent any provision of this set of Supplemental Terms conflicts with any agreement by and between any Customer and Aclima, the terms of that agreement shall supercede and be controlling. Other additional or different terms may apply to the users of Enterprise Services of Aclima’s publicly available or community websites, APIs or Apps or use of other services (in this section, referred to as the “Self-Serve Services”). By purchasing, accessing or using the Enterprise Services, you confirm that:

A. You will only use our Enterprise Services for business and professional reasons (the Enterprise Services are not for use by or distributed to others or to consumers and may only be used for business and professional purposes);

B. You accept and will comply with this Agreement; and

C. You are responsible for anyone that uses our Enterprise Services through your account (“Authorized Users”), which may include your employees, consultants or contractors, or the employees, consultants or contractors of your “Affiliates”, which are companies or entities that you own, that own you, or that have the same owner or corporate parent as you.

1. Definitions.

(a) We use capitalization for terms that have a special meaning in this Agreement. While some terms are defined elsewhere, this section sets out the definitions of some key terms.

“Access Period” means, with respect to each application of Aclima Software and any Data Product Module, the period of time specified above for which Enterprise User is authorized to access such Aclima Software and Data Product Modules; such access may be for the term noted in an Order Form or a shorter or longer period of time. For all licenses of the Aclima Software, the Access Period is defined as the expiration as set forth in the Task Order or Order Form. For any Output Reports, the license shall be perpetual beyond the Access Period, provided that Enterprise User is otherwise in compliance with all other license terms and conditions of the Agreement.

“Aclima Datasets” means Data Product Modules consisting of the specific collections of data and information Enterprise User is expressly authorized to access and/or download though the Aclima Software under this Addendum.

“Aclima Software” means the web-based software application/s made available by Aclima  hereunder that permits Enterprise User to utilize various Data Product Modules, and includes, without limitation, any related documentation, data, code, and other materials made available by Aclima, as may be updated from time to time. The specific Aclima Software application(s) included under this Addendum is identified under the applicable Task Order.

“Capacity Limitations” means the usage limitations specified and defined in any Task Order with respect to Enterprise User’s use of the Aclima Software or Data Product Modules.  Such limitations may include seat or user limits for access to the Aclima Software or limits regarding the quantity of data Enterprise User is permitted to access or the number of queries or calls Enterprise User is authorized to make with respect to a Data Product Module.

“Customer Datasets” means Data Product Modules representing collections of data and information provided by Enterprise User, if applicable, that may be input into the Aclima Software. “Data Product Modules” means either the Aclima Datasets, Customer Datasets, or Third Party Datasets that the Enterprise User is expressly authorized to access and/or download through the Aclima Software during the Term and subject to the terms and conditions of this Addendum including Access Period limitations. Data Product Modules may include range measurements, range-rate measurements, meta-data, and other data and information that Enterprise User is authorized by Aclima to access and/or download through Aclima Software or by another means specified in writing by Aclima. The applicable Data Product Modules are identified under the Task Order.

“Enterprise Services” means services included in Aclima’s Enterprise Services and any other Aclima products or services made available to you through an Order Form or an Online Order, but does not include: i) Aclima’s Professional Services; or ii) any Third-Party Services.

“Order Form” is a document that we issue and that is signed or otherwise agreed to by you, which describes the Enterprise Services you are purchasing, including the fees, the quantities purchased, and any other details specifically related to those services.

“Output Reports” means any static, fixed format reports containing or utilizing the Aclima Software and any Data Product Modules.

“Third Party Datasets” means any third party collections of data information  provided or sourced by either Aclima or the Enterprise User including public municipal/state/federal sources, hardware providers, and vetted third-party monitoring programs, provided that the sourcing party shall be responsible for the use of such Third Party Datasets in connection with the Aclima Software.

“Third-Party Services” are services that are not provided by Aclima that you may access or use in connection with our Enterprise Services. They may include the extensions and applications available in the Aclima platform or those services specifically identified as “Partner Services”.

 (b) Headings used in this Agreement are for convenience of reference only and do not affect the construction or interpretation of this Agreement.

1. Aclima’s Enterprise Services.

1.1 Enterprise Services. During the Term of any Order Form or agreement, we will: (a) make the Enterprise Services available to you in accordance with the applicable Order Form; and (b) host and serve the Enterprise Services in accordance with any Service Level Agreement by and between the parties.

1.2 Aclima Professional Services. If your Order Form includes professional services (such as account set-up, provisioning, or training) (“Aclima Professional Services”), these Terms also apply to and govern all Aclima Professional Services.

1.3 Updates. Our Enterprise Services evolve constantly. So long as we do not breach the warranty set out herein, we may change our Enterprise Services (such as by changing, adding or removing features) at any time, for any reason, and may or may not provide notice of those changes to you.

2. Your Responsibilities.

2.1 Acceptable Use. You and your Authorized Users must comply with the Guidelines (published in these Terms and updated from time to time) and all applicable laws. If you or any of your Authorized Users do not comply with the Guidelines or any applicable laws, we may remove temporarily suspend or restrict your access to the Enterprise Services without prior notice. In any such case, we will then notify you and, where applicable, will work with you in good faith to resolve the issue.

2.2 Account Information. You are responsible for the completeness, security, confidentiality and accuracy of the account information you provide to us. You will promptly notify us of any unauthorized access to or use of your log-in credentials or account.

2.3 Affiliates. Your Affiliates may use the Enterprise Services that you purchase, subject to the quantities or other usage limits set out in your Order Form. If an Affiliate wishes to have a separate account or wishes to be billed separately for its use of the Enterprise Services, that Affiliate will need to sign a separate Order Form, which will form a separate contract between Aclima and that Affiliate, which will also be subject to this Agreement.

3. Third-Party Services.

3.1 Third-Party Services. If you access or purchase a Third-Party Service, such as technology licenses, tools or APIs, in order to access or use the Services or to use data found in or downloaded from the Services, you do so at your own risk. Your relationship with the Third-Party Service provider is an agreement between you and them. If you access or enable a Third-Party Service, you grant them permission to access or otherwise process your data as required for the operation of the Third-Party Services. We will not be liable for disclosure, use, changes to, or deletion of your data or for losses or damages you may suffer from access to your data by a Third-Party Service. We make no representation and will have no liability or obligation whatsoever in relation to the content or use of, or correspondence, agreements or transactions with, any Third-Party Services. You must comply with all agreements and other legal requirements that apply to Third-Party Services.

3.2 Partner Services. Without limiting the generality of Section 4, if you purchase any Partner Services, you: (a) acknowledge and agree that we are acting solely as an authorized reseller for such Partner Services; and (b) expressly agree to be bound by the terms and conditions applicable to such services listed in these Terms of Service or as otherwise set out in the applicable Order Form.

4. Limited Licenses

4.1 Scope of Licenses. Subject to Enterprise User’s compliance with the Terms, Aclima hereby grants to Enterprise User a limited, non-exclusive, non-sublicensable, non-transferable license during the Term to (i) access the Aclima Software, subject to the Capacity Limitations, (ii) use the Data Product Modules solely for its internal and technical business purposes including without limitation for assessment of accuracy and other metrics and benchmarking performance of the Aclima Software or any Output Reports against existing tools, datasets or sources, and for no other use or purpose, (iii) use the Output Reports for any business purposes, including without limitation the dissemination and publication for the Output Reports (or any portion thereof) to the general public; provided however that Enterprise User use the attribution language for such Output Reports as set forth below. For the avoidance of doubt, Enterprise User shall not distribute, publish, or otherwise make available to any third party the Aclima Datasets except that Enterprise User may share reports and presentations containing analyses or summaries that comprise the Output Reports as derived from the Data Product Modules for any non-commercial purpose; provided that Enterprise User shall not share or distribute portions or excerpts of the Data Product Modules themselves without Aclima’s prior written approval. Enterprise User represents and warrants that the execution, delivery and performance of this Addendum does not and will not conflict with any agreement, instrument, judgment, law, rule or regulation or understanding, oral or written, to which it is a party or by which it may be bound or subject.  For purposes of and with reference to these Terms, Enterprise User shall retain all right, title and interest in and solely to any Customer Datasets provided by Enterprise User, including all intellectual property rights therein. Enterprise User, not Aclima, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Datasets. Notwithstanding anything to the contrary, Enterprise User acknowledges and agrees that Aclima may internally use and modify Customer Datasets without limitation for the purposes of providing the Aclima Software, Data Product Modules and any support or consultation services to Enterprise User, including publication and distribution of any Aclima Community website services. Subject to Enterprise User’s compliance with these Terms, Aclima hereby grants to Enterprise User a perpetual, non-exclusive, non-sublicensable, non-transferable license to the Output Reports created by Aclima and delivered to Enterprise User during the Term, provided however that Enterprise User may not use such Output Reports for any commercial purpose. To the extent Enterprise User publicly displays or shares the Output Reports or otherwise creates derivative works from such Output Reports, Enterprise User shall attribute the source of any Data Products Modules found in the Output Reports and affix such source attribution to the Aclima Software and Data Product Modules.

4.2 License and Use Restrictions. Except as expressly set forth in these Terms, Enterprise User shall not (and shall not permit any third party to), directly or indirectly: (i) rent, lease, distribute, pledge, assign, sell, license or otherwise transfer or encumber rights to or make available to any third party the Aclima Software or any incorporated Data Product Modules (including without limitation for the purpose of the third party distributing, commercializing or publishing any Data Product Modules); (ii) use the Aclima Software or Data Product Modules for the commercial benefit of a third party; (iii) remove or otherwise alter any proprietary notices or labels from the Aclima Software or the Data Product Modules or any portion thereof; or (iv) use the Aclima Software or the Data Product Modules to build or enable a commercial application or product that is competitive with any Aclima product or service; (v) exceed any Capacity Limitations or Term restrictions imposed by Aclima upon use of the Aclima Software or Data Product Modules; or (vi) use or provide the Aclima Software or any Data Product Modules as part of any service bureau, time sharing, software as a service or other similar means. Enterprise User is responsible for all of Enterprise User’s activity in connection with the Aclima Software and the Data Product Modules and shall be solely responsible for any breach of obligations in this Addendum by its employees, agents, and Aclimas. Enterprise User (a) shall use the Aclima Software and the Data Product Modules in compliance with all applicable local, state, national and foreign laws, treaties and regulations (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), and (b) shall not use the Aclima Software or the Data Product Modules in a manner that violates any third party intellectual property, contractual or other proprietary rights. Aclima may monitor Enterprise User’s use of the Aclima Software or Data Product Modules to improve Aclima’s products and services and to ensure Enterprise User’s compliance with this Addendum. Enterprise User expressly acknowledges that any breach of this Section 3 shall constitute a material breach of the Addendum, subject to Aclima’s immediate termination and Enterprise User’s immediate return or destruction of the Data Product Modules, as set forth in Section 9 below. In no event shall Aclima be liable for any data loss, loss profits or cost of procurement of substitute goods or services resulting from such return or destruction of the Data Product Modules.  Enterprise User acknowledges and agrees that, notwithstanding anything to the contrary, the Aclima Software and Aclima Datasets, including any and all intellectual and proprietary rights therein, are and shall at all times remain the sole and exclusive property of Aclima, and to which Aclima grants no rights except those rights expressly and unambiguously set forth herein. Nothing in this Addendum or the Contract shall restrict Aclima’s rights to publish and distribute the Aclima Software and Data Product Modules.

5. Intellectual Property.

5.1 Enterprise Services. Aclima retains all right, title and interest in our Enterprise Services and any any all intellectual property contained therein. The Enterprise Services, the Aclima Software, Aclima Datasets, the Customer Datasets, the Output Datasets and Data Product Modules are protected by copyright, trademark, patent, trade secret and other laws, and, as between you and Aclima, we own and retain all rights in all intellectual property associated with such Services.

5.2 Feedback. Aclima welcomes your suggestions, comments, bug reports, feature requests or other feedback (“Feedback”). We do not have to keep Feedback confidential, even if you tell us it is confidential, provided we do not disclose that you are the source of any Feedback. If you provide Feedback, you grant Aclima a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use the Feedback for any purpose.

6. Term and Termination.

6.1 Term of Agreement. This Agreement will commence on the first day of the initial term set forth in any services agreement or on your Task Order or Order Form, and will continue in effect until the earlier of: (a) the expiration of all Task Orders or Order Forms applicable to you (including any renewal periods); and (b) the termination of the services agreement in accordance with its terms (the “Term”).

6.2 Term of Order. The term will start on the first day of the initial term specified on the Order Form, and will continue for the specified term. Aclima reserves the right to increase the Fees for Enterprise Services on any renewal by providing Customer written notice thereof (which notice may be provided by email).

6.3 Termination for Cause. A party may terminate this Agreement for cause (a) immediately if the other party has failed to cure a material breach within thirty (30) days of receiving written notice of that material breach from the other party and for the avoidance of doubt non-payment of Fees when due shall constitute a material breach; or (b) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.

6.4 Effects of Termination. Upon termination for any reason: (a) all Order Forms will automatically terminate; (b) your access to Aclima accounts, Enterprise Services and Partner Services will be terminated and you will immediately cease all use thereof; and (c) you will pay all unpaid amounts you owe to Aclima. In no event will termination relieve you of your obligation to pay any amounts payable to Aclima for the period prior to the date of termination.

6.5 Survival. Any provision, either by its terms or to give effect to its meaning, must survive and such other provisions that expressly or by their nature are intended to survive termination will survive the expiration or termination of this Agreement.

7. Fees and Payment.

7.1  Order Forms. The following terms apply to any purchase made by signing an Order Form:

(a) Fees. You will pay all fees as and when described in the Order Form(s) (the “Fees”).

(b) Invoicing. We will invoice you for the Fees in the currency set forth on the applicable Order Form. Unless otherwise stated on the Order Form, all undisputed invoices are payable within thirty (30) days of the invoice date.

(c) Late Payment. If any undisputed amounts invoiced are not received by Aclima by the due date, then, at our discretion, such charges may accrue late interest at the lower of: (a) the rate of 12% per year; or (b) the maximum rate permitted by law from the date such payment was due until the date paid. In addition, upon thirty (30) days’ written notice to you provided after the due date of any undisputed amount, we may suspend your access to the Enterprise Services if we have not received the amounts invoiced in full.

(d) Taxes. You are responsible for paying all taxes, assessments, charges, fees, and levies that may be levied on or applicable to the sale or license of goods or services, as the case may be, including all sales, use, goods and services, value added, and excise taxes, customs duties, and assessments, together with any installments and any interest, fines, and penalties with respect thereto, imposed by any governmental authority, including federal, state, provincial, municipal, and foreign governmental authorities (collectively, “Taxes”) associated with your subscription to the Enterprise Services, which for clarity does not include any taxes based on Aclima’s income. If we have the legal obligation to pay or collect Taxes for which you are responsible under this provisions the appropriate amount will be invoiced to and paid by you, unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority. Any and all payments by or on account of the compensation payable under this Agreement will be made free and clear of and without deduction or withholding for any Taxes. If you are required to deduct or withhold any Taxes from such payments, then the sum payable will be increased as necessary so that, after making all required deductions and withholdings, we receive an amount equal to the sum we would have received had no such deduction or withholding been made.

8. Confidentiality, Security & Data Protection.

8.1 Confidential Information. Aclima and you may exchange “Confidential Information” in the course of your negotiation and use of our Enterprise Services. Aclima’s Confidential Information may include non-public information about our pricing, personnel, or partnerships, our product roadmap, our security documentation, or other non-public information we identify as confidential. Your Confidential Information may include non-public information about your policies, personnel (including names and email addresses of your Authorized Users), or plans or strategies or business practices. When either you or we (the “recipient”) receive Confidential Information from the other (the “discloser”), the recipient will use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but in no event less than reasonable care) and will not disclose or use any Confidential Information of the discloser for any purpose outside of the scope of this Agreement. Information will not be considered Confidential Information if (i) it was lawfully in the recipient's possession before receiving it from the discloser; (ii) it is provided in good faith to the recipient by a third party without breaching any rights of the discloser or any other party; (iii) it is or becomes generally available to, or accessible by, the public through no fault of the recipient; or (iv) it was or is independently developed by the recipient without reference to the discloser’s Confidential Information. In the event that the recipient or any representative of the recipient becomes legally compelled (by law, rule, regulation, subpoena, or similar court process) to disclose any of the Confidential Information, the recipient will (if permitted to do so) provide the discloser with notice of such circumstances and will limit such disclosure to the required disclosure.

8.2 Enterprise Security and Continuity Standards. During the Term, we will use commercially reasonable efforts to maintain the following “Enterprise Security Standards”:

(a) Security Practices. Aclima will implement and maintain industry standard security and data protection practices; and

(b)  Disaster Recovery and Business Continuity. Aclima has and will maintain a disaster recovery and business continuity plan.

9. Enterprise Services Warranties, Indemnities & Limitations of Liability.

9.1 Mutual Warranties. Each of Aclima and Customer represents and warrants that (a) it has the power and authority to enter into this Agreement and to perform its obligations and duties under this Agreement; and (b) it will perform its obligations and duties and exercise its rights under this Agreement in compliance with all laws applicable to it.

 9.2 Aclima Warranties. Aclima warrants that: (a) the functionality of the Enterprise Services will not be materially decreased during the term of the applicable Order Form; (b) to its knowledge, the Enterprise Services do not contain any malicious code or viruses; and (c) Aclima is an authorized reseller of any Partner Services sold to Customer by Aclima.

9.3 Indemnification by Aclima. Subject to Customer’s compliance with this provision, Aclima will defend Customer from and against any and all third-party claims that the use of the Enterprise Services as permitted hereunder directly infringes a valid U.S. or Canada patent or copyright or misappropriates a third party’s trade secret (a “Claim”) and will indemnify Customer for any damages awarded by final non-appealable judgment against, and for reasonable legal fees incurred by, Customer in connection with any such Claim.

Aclima will have no liability for any Claim to the extent it arises from:

(i) a modification of the Enterprise Services by or at the direction of any person other than Aclima;

(ii) use of the Enterprise Services in violation of this Agreement or applicable law;

(iii) use of the Enterprise Services after Aclima notifies Customer to discontinue use because of an infringement or misappropriation claim;

(iv) the combination, operation, or use of the Enterprise Services with any other software, program, or device not provided or specified by Aclima to the extent such infringement would not have arisen but for such combination, operation, or use; or

(v) use of the Enterprise Services in a manner that is inconsistent with their intended use.

If the Enterprise Services or any part thereof have become, or in Aclima’s opinion are likely to become, the subject of any Claim, Aclima may at its option and expense:

(1) procure for Customer the right to continue using the Enterprise Services as set forth hereunder;

(2) replace or modify the Enterprise Services or applicable functionalities to make them non-infringing; or

(3) if options (1) or (2) are not reasonably practicable, terminate either or both this Agreement or the Order Form or Online Order for such Enterprise Services and refund to Customer any unearned Fees that Customer paid in advance for such Enterprise Services.

This provision sets forth Aclima’s sole liability (and Customer’s sole remedy) regarding infringement or misappropriation of third-party rights.

9.4 Indemnification by Customer. Were not otherwise prohibited by applicable statute, Customer will defend, indemnify, and hold harmless Aclima, its Affiliates, and its or their directors, officers, employees, agents, shareholders, successors and assigns from and against all claims, losses, damages, penalties, liability, and costs, including reasonable legal fees, of any kind or nature that are incurred in connection with or arising out of a third-party claim: arising from Customer’s breach of any of these Terms or those applicable to any Third-Party Services.

9.5 Indemnification Procedure. The indemnified party will: (a) give written notice of the claim to the indemnifying party promptly and in any event no later than ten (10) days after the indemnified party receives the claim; (b) give the indemnifying party sole control of the defense and settlement of the claim (provided that the indemnifying party may not enter into any settlement, compromise or consent to judgment with respect to any claim without the indemnified party’s prior written consent unless such settlement, compromise or consent to judgment unconditionally releases the indemnified party of all liability); and (c) provide the indemnifying party with reasonable cooperation and assistance at the indemnifying party’s expense.

9.6 EXCEPT AS MAY BE EXPRESSLY PROVIDED IN A SEPARATELY NEGOTIATED ENTERPRISE SERVICES AGREEMENT, AND NOT INCLUDING CUSTOMER’S OBLIGATION TO PAY ALL FEES OWED TO ACLIMA HEREUNDER, IN NO EVENT WILL EITHER PARTY'S AGGREGATE LIABILITY TO THE OTHER PARTY FOR ALL CLAIMS OF ANY KIND, INCLUDING ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BY STATUTE, CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE FEES PAID BY ANY CUSTOMER FOR THE SERVICES SUBJECT TO THE CLAIM DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE. THE LIMITATIONS OF LIABILITY IN THIS PROVISION ALSO APPLY TO OUR AFFILIATES AND THE DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS OF ACLIMA AND OUR AFFILIATES (THE “ACLIMA PARTIES”) AND TO CLAIMS BROUGHT BASED ON ANY CAUSE OF ACTION, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR OTHER LEGAL OR EQUITABLE THEORY.

9.7 Excluded Damages.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY, ITS DIRECTORS, EMPLOYEES, AGENTS, OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, OR FOR LOSS OF PROFITS, GOODWILL OR DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE ENTERPRISE SERVICES OR ANY OTHER ASPECT OF THIS AGREEMENT.

YOUR EXCLUSIVE REMEDY FOR ANY BREACH, INTERRUPTION OR CESSATION OF ACCESS OR TRANSMISSION TO OR FROM THE SERVICES ARE SET FORTH IN HEREIN.

10. Export Control(s). 

The use of the services may be subject to import and export laws of the United States and other countries. You agree and acknowledge that you will comply with all import and export laws and regulations. Specifically, you warrant and represent that the services and/or related software may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the US Treasury Department’s List or Entity List. As a registered user of the services, you warrant and represent that you are not located in any such country or on any such list. This assurance and communication shall survive termination of Services.


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INFORMATION REQUESTS AND LEGAL GUIDELINES

(Last Update January 2020)

Legal and Law Enforcement Information Requests

Aclima will review and respond to properly served requests for user information in accordance with its privacy policy, terms of service, and applicable law. Aclima reserves the right to object to requests that are improperly served, burdensome, overly broad or vague or inappropriate as determined in its discretion. Aclima will notify its customers and users of relevant requests for information in its sole discretion unless legally prohibited.

Discovery Requests

Non-content confidential and proprietary information generated from Aclima Services will not be released to third parties in the absence of valid subpoena, court order or other legal process.

Law Enforcement Requirements

Non-content user information will not be released to law enforcement except in response to a valid subpoena, court order, or other legal process. Content information will only be disclosed in response to a probable cause search warrant from an agency with proper jurisdiction. Under US law, including the federal Stored Communications Act, 18 U.S.C. Sections 2701-2712:

  1. A valid subpoena issued in connection with an official criminal investigation is required for Aclima to disclose non-content user information as defined in 18 US Code section 2703(c)(2) -- e.g. name, means of payment, and length of service.
  2. A court order issued under 18 US Code section 2703(d) is required for Aclima to disclose other non-content information.
  3. A probable cause search warrant issued under the procedures described in the Federal Rules of Criminal Procedure or equivalent state warrant is required for Mapbox to disclose user content information -- e.g. maps, data, and/or communications with Aclima or its services  -- or other location specific information.

If, in our good faith judgment, there is an emergency involving the danger of death or severe physical injury, we may also provide the limited information necessary to prevent that harm.

Information Preservation Requests

If not unduly burdensome or otherwise inappropriate, Aclima will take reasonable steps to preserve a snapshot of any existing time sensitive Services  information in connection with a criminal investigation for up to 90 days, pending receipt of a properly served law enforcement request or valid subpoena.

Format of Requests

Requests for user information must include:

  1. User email address
  2. Details of the specific information being requested and its relationship to a valid investigation
  3. Requester's name, title, agency, office, official email address, and direct phone number
  4. Deadline to respond, which must be reasonable and on not less than 30 days notice

Where to Send Requests

Law enforcement officials can submit requests by mail or in person at: Aclima, Inc. Attn: Legal, 10 Lombard Street, Suite 300, San Francisco, CA 94111 or via email to legal@aclima.io.  While we agree to accept service of law enforcement requests by these methods, neither Aclima nor our users waive any legal rights based on this accommodation.

Digital Millennium Copyright Act

If you are a copyright owner or an agent thereof, and believe that any user submission or other Aclima content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing Our Copyright Agent available at legal@aclima.io with the following information in writing (see 17 U.S.C § 512(c)(3) for further detail):

  1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
  2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on Aclima are covered by a single notification, a representative list of such works from Aclima;
  3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Aclima to locate the material;
  4. Information reasonably sufficient to permit Aclima to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address;
  5. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
  6. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.