1. INTRODUCTION AND AGREEMENT TO TERMS
These Terms of Use, together with all Order Forms (defined below), if applicable, together constitute a legally binding agreement (the “Agreement”) made between you, whether personally or on behalf of an entity (“Customer” or “you”) and Pachama, Inc. (“Pachama”, “we”, “us”, or “our”), concerning your access to and use of the pachama.com website, app.pachama.com portal, api.pachama.com API, as well as any other media form, media channel, mobile website or mobile application related, linked, or otherwise connected thereto (collectively, the “Site”). Via the Site, Pachama offers a marketplace for purchasing and evaluating carbon credits along with related services, including but not limited to processing retirements of carbon credits, and reviewing information based on Pachama’s remote sensing monitoring technologies (collectively, the “Services”). You agree that by accessing the Site and/or the Services, you have read, understood, and agree to be bound by all of these Terms of Use.
In order to use the Services, you must (1) be 18 years or older, and (2) have the power to enter into a binding agreement with us through your acceptance of these terms.
THESE TERMS INCLUDE AN AGREEMENT TO RESOLVE DISPUTES BETWEEN YOU AND PACHAMA THROUGH BINDING ARBITRATION, AND A WAIVER OF THE RIGHT TO CONDUCT SUCH PROCEEDINGS ON A CLASS BASIS, AS SET FORTH UNDER THE HEADING “DISPUTE RESOLUTION – BINDING ARBITRATION WAIVER OF CLASS CLAIMS”
IF YOU DO NOT AGREE WITH ALL OF THESE TERMS OF USE, THEN YOU ARE EXPRESSLY PROHIBITED FROM USING THE SITE AND/OR THE SERVICES AND YOU MUST DISCONTINUE USE IMMEDIATELY.
Upon mutual execution each Order Form shall be incorporated into and form a part of the Agreement. An “Order Form” shall mean (i) the purchase order, order form, or other ordering document entered into by the parties that incorporates this Agreement by reference; or (ii) if you registered for the Service through Pachama’s standard online process, the results of such online process.
2. CHANGES TO TERMS
We reserve the right to make changes to these Terms of Use from time to time, in whole or in part, in our sole discretion, at any time without prior notice by posting an updated version of the Terms of Service on the Site or when you access the Services. When we do, we will revise the “last updated” date at the beginning of the Terms of Use. When we make material changes to these Terms of Use, we will provide you with notice as appropriate under the circumstances, e.g., by displaying a prominent notice on the Site and/or by sending you an email. In some cases, we will notify you in advance, and your continued use of the Services after the changes have been made will constitute your acceptance of the changes. Please therefore make sure you read any such notice carefully. If you do not wish to continue using the Service under the new version of the Terms of Use, you may terminate your account by contacting us at the contact information provided in these Terms of Use.
3. LIMITATIONS ON USE
The information provided on the Site and through the Services are not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject us to any registration requirement within such jurisdiction or country. Accordingly, those persons who choose to access the Site and/or use the Services from other locations do so on their own initiative and are solely responsible for compliance with local laws, if and to the extent local laws are applicable.
The Site is intended for users who are at least 18 years old. Persons under the age of 18 are not permitted to use or register for the Site or use the Services.
4. USER REGISTRATION
You may be required to register an account with the Site (your “Pachama Account”) in order to access Services. At the time of registration, you will provide us with your email address, and possibly with other information, including name, location, and associated organizations. Some Services may be accessed without the need for user registration, however we may still generate a Pachama Account for you in order to best provide said Services, such as offering a guest checkout option when purchasing carbon credits.
You agree to keep your Pachama Account secured from unauthorized access. You agree that you will be held responsible for all use of the Site and/or Services registered from your Pachama Account.
You agree to provide accurate information to us at the time of registration, and to keep your information on file with us accurate and updated going forward. If you provide any information that is untrue, inaccurate, not current, or incomplete, we have the right to suspend or terminate your Pachama Account and refuse any and all current or future use of the Site (or any portion thereof).
5. USER REPRESENTATIONS
By using the Services, you represent and warrant that: (1) all registration information you submit will be true, accurate, and complete, and such remains current at the time you use the Services; (2) you have the legal capacity to agree to these Terms of Use, and you agree to comply with these Terms of Use; (3) you are not a minor in the jurisdiction in which you reside; (4) you will not access the Site or use the Services through automated or non-human means, whether through a bot, scraper, script or otherwise; (5) you will not use the Site for any illegal or unauthorized purpose; and (6) your use of the Site or the Services will not infringe or misappropriate any third party intellectual property rights, or violate any applicable law or regulation. If a person is using the Services on behalf of an entity, that person represents and warrants that it has the requisite authority and is authorized to do so.
6. CARBON CREDIT PURCHASES
You may choose to purchase carbon credits by accessing the Services directly from the Site. In order to purchase carbon credits directly from the Site, you may be required to log in to your Pachama Account. Guest checkout options may be provided, however purchases will still be tracked with a Pachama Account, which we will create on your behalf.
The price, project location, amount of carbon credits, and additional information will be made available through the Services at the time of your purchase. All purchases made through the Services are subject to these Terms of Use. By purchasing carbon credits through the Services, you also agree to any additional information and terms provided at the time of purchase, and such information and terms are incorporated in these Terms of Use.
We reserve the right to refuse any order placed through the Site at our sole discretion. We may, in our sole discretion, limit or cancel quantities purchased per user or per purchase.
In addition, availability of credits on particular projects may change over time. In the event that Pachama is unable, within sixty (60) days of receiving a request, to fulfill a corresponding purchase, Pachama may, at its discretion, offer to fulfill the purchase with substantially equivalent credits, or may refund to you the purchase price you paid for the purchase not completed. You acknowledge that your sole remedy for Pachama’s failure to complete a purchase you have ordered within sixty (60) days of its submission will be limited to Pachama’s election to either have an alternative purchase effectuated or to receive a refund of the purchase price you paid in connection with the purchase not completed.
Except as set forth in the foregoing paragraph, all purchases made through the Services are final and no refunds are available.
The carbon credits and projects posted on our Services are listed on reputable international carbon registries including the registries operated by Verra, American Carbon Registry, Climate Action Reserve, and Gold Standard. You can access information provided by the applicable registry about projects posted on the Services via links to the applicable registry information provided through the Services. In placing an order to purchase credits through the Services, you acknowledge that you are relying on the fact of the project’s listing on the applicable registry and on any information provided by the registry regarding the applicable project(s) and the verification efforts undertaken by the carbon registries relating to the carbon credits being sold in connection with those projects (collectively, “Registry Information”). You further acknowledge that Pachama is relying on the Registry Information, that Pachama does not generate, and is not responsible for, the content of the Registry Information, and that Pachama is not liable to you for any inaccuracies or inconsistencies in the Registry Information pertaining to any carbon credits you purchase via the Services, and does not represent or warrant to you that the Registry Information is from any inaccuracies or inconsistencies.
7. CARBON CREDIT DELIVERY; ADDITIONAL SITE SERVICES
Carbon credits purchased by you via the Site, or any other means whereby the purchase is handled by the Site, shall be deemed delivered when (a) Pachama retires the ordered credits on behalf of you in Pachama’s account with the applicable Registry and, where applicable, by including a notation in your applicable account that the ordered credits are retired on your behalf or (b) when Pachama effectuates the transfer of the ordered credits to your account with the applicable registry, in each case as specified in writing (including via email) by you. Upon such delivery, all right, title and interest in the ordered carbon credits shall automatically be deemed to pass to you and we will thereafter be holding such credits on your behalf until those credits are either retired or transferred to your account at a supported registry in accordance with these Terms of Use and the functionality of the Services.
You can review the history of purchases made by logging in to your Pachama Account. Once logged in, you can administer your Pachama Account, purchase carbon credits, view your purchase and retirement activity, process retirements, withdraw your carbon credits by transferring them to your account at a supported registry, publicize information for third parties to track the impact from your carbon credit purchases (on an “Impact Page”), and perform other Services as permitted by the Site.
8. PACHAMA PROJECT INFORMATION
Pachama uses proprietary methods to develop information relating to the validation of the respective credits of all Pachama Projects (“Pachama Project Information”). In developing Pachama Project Information, Pachama reviews project documentation including project descriptions provided on registry websites as well as applies our proprietary models to project boundaries as determined by files provided to us by the project developer. These proprietary models review factors such as historical forest coverage, biomass estimates, and recent canopy loss. Pachama may provide access via the Services to certain Pachama Project Information, but unless expressly stated in an separate agreement between you and Pachama, Pachama does not commit to make available any particular Pachama Project Information in connection with a purchase or otherwise through the Services.
Although we endeavor to provide the most accurate Pachama Project Information possible, Pachama Project Information necessarily includes estimates and approximations, and we do not guarantee, represent, or warrant the accuracy or reliability of the Pachama Project Information. You acknowledge that we shall not be liable to you for any inaccuracy or inconsistency reflected in any Pachama Project Information you receive through the Services. Additionally, we reserve the right, in our sole discretion, to narrow or modify the scope and nature of the Pachama Project Information made available with respect to Pachama Projects for which you have purchased carbon credits.
9. PAYMENT PROCESSING
You may make purchases in connection with your use of the Services (and you can pay for Services we charge for), including the purchase of carbon credits associated with one or more Pachama Projects as described above. We may also offer the Services to you on a pilot or beta basis, and all applicable charges (if any) will be further specified by us.
We use a third-party payment processor (the “Payment Processor”) to bill you for payments owed in connection with using the Services provided on the Site. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to these Terms of Use. We are not responsible for error by the Payment Processor. By making a purchase through the Services, you agree to pay us, through the Payment Processor, all charges as set forth at the time of your purchase in accordance with the applicable payment terms and you authorize us, through the Payment Processor, to charge your payment provider. You agree to make payment using that selected payment method. We reserve the right to correct any errors or mistakes that it makes even if it has already requested or received payment.
Although we reserve the right to select different or additional payment processors at our discretion, our Payment Processor as of the date of these Terms of Use is Stripe.
You agree to provide current, complete, and accurate purchase and account information to the Payment Processor for all purchases you make in connection with the Services. You further agree to promptly update account and payment information, including email address, payment method, and payment card expiration date with the Payment Processor. Sales tax will be added to the price of purchases as deemed required by us. All sales are final and no refund will be issued.
10. PROHIBITED ACTIVITIES
You may not access or use the Site for any purpose other than that for which we make the Site and Services available. The Services may not be used in connection with any commercial endeavors except those that are specifically endorsed or approved by us. As a user of the Site and the Services, you agree not to:
11. CONTRIBUTION
11.1 The Site or Services may provide you with the opportunity to create, submit, post, display, transmit, perform, publish, or distribute data, documents, information, content and materials to us or on the Site or Services (collectively, “Contributions”). This Section 11 sets forth certain terms and license rights with respect to Contributions that Pachama requires to provide the Services, and which vary depending on the type of Contributions involved:
| Contribution Type | Definition |
|---|---|
| Private Contributions | Contributions stored in Customer’s own account on the Services in a manner that is accessible or viewable by only Customer. |
| Limited Contributions | Contributions that are not obtained from publicly-available sources or where Customer decides to publish or share in a manner with certain restrictions. |
| General Contributions | Contributions that Customer obtains from publicly-available sources or decides to publish or share freely on the Services without restriction. |
11.2 Customer specifically acknowledges and agrees that, to the extent that Limited Contributions and General Contributions has previously been provided to, or copied or stored by Pachama or other Pachama Service users, such Contributions may be retained by Pachama for the purpose of continuing to provide access to such Contributions to such users (and the licenses set forth herein will continue for so long as such access is provided). Conversely, if you have copied or stored Contributions that was originally provided by other Pachama Service users into your own Pachama account, Pachama will not delete your own instance of such information without your permission.
11.3 In furtherance of the foregoing, and notwithstanding anything else, Customer hereby grants Pachama the following licenses:
(a) For all Contributions, Customer hereby grants Pachama a license to display, perform, translate, modify (for technical purposes, for example, making sure Contributions are viewable on a mobile device), distribute, retain, reproduce and otherwise act with respect to such Contributions (collectively, “Use”), in each case to enable Pachama to provide the Services; provided that for clarity, Pachama will not publish, share or display your Contributions with third parties, except as set forth below.
(b) For Private Contributions, Customer also grants Pachama a license to Use such Private Contributions for the sole purpose of making those Private Contributions accessible to Customer and its authorized users.
(c) For Limited Contributions, Customer grants Pachama the licenses above, as well as a license to Use such Limited Contributions for the purpose of making those Limited Contributions accessible to the other Pachama Service users with whom Customer has decided to share or publish such Limited Contributions. Customer grants such other Pachama Service users a license to Use those Limited Contributions as permitted by the functionality of the Services.
(d) For General Contributions, Customer grants Pachama the licenses above, as well as a license to Use such General Contributions for the purpose of making those General Contributions accessible to all users of the Services or for Pachama’s own business purposes. Also, Customer grants all other users of the Services a license to Use those General Contributions as permitted by the functionality of the Services.
Customer agrees that the licenses granted in this Section 11.3 are royalty-free, sublicensable, irrevocable, and worldwide, and will in each case last for a period consistent with the applicable license purposes set forth above
11.4 We do not assert any ownership over your Contributions. You retain full ownership of all of your Contributions and any intellectual property rights or other proprietary rights associated with your Contributions. We are not liable for any statements or representations in your Contributions provided by you in any area on the Site or Services. You are solely responsible for your Contributions to the Site and you expressly agree to indemnify us from any and all responsibility and to refrain from any legal action against us regarding your Contributions.
We have the right, in our sole and absolute discretion, (1) to edit, redact, or otherwise change any Contributions, in whole or in part; (2) to re-categorize any Contributions to place them in more appropriate locations on the Site or Service; and (3) to pre-screen or delete any Contributions at any time and for any reason, without notice. We have no obligation to monitor your Contributions.
12. THIRD-PARTY ACCOUNTS
As part of the functionality of the Site, you may link your account with online accounts you have with third-party service providers (each such account, a “Third-Party Account”) by either: (1) providing your Third-Party Account login information through the Site; or (2) allowing us to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent and warrant that you are entitled to disclose your Third-Party Account login information to us and/or grant us access to your Third-Party Account, without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account, and without obligating us to pay any fees or making us subject to any usage limitations imposed by the third-party service provider of the Third-Party Account. By granting us access to any Third-Party Accounts, you understand that (1) we may access, make available, and store (if applicable) any content that you have provided to and stored in your Third-Party Account (the “Social Network Content”) so that it is available on and through the Site via your account, including without limitation any friend lists and (2) we may submit to and receive from your Third-Party Account additional information to the extent you are notified when you link your account with the Third-Party Account. Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your account on the Site. Please note that if a Third-Party Account or associated service becomes unavailable or our access to such Third-Party Account is terminated by the third-party service provider, then Social Network Content may no longer be available on and through the Site. You will have the ability to disable the connection between your account on the Site and your Third-Party Accounts at any time. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS. We make no effort to review any Social Network Content for any purpose, including but not limited to, for accuracy, legality, or non-infringement, and we are not responsible for any Social Network Content. You acknowledge and agree that we may access your email address book associated with a Third-Party Account and your contacts list stored on your mobile device or tablet computer solely for purposes of identifying and informing you of those contacts who have also registered to use the Site. You can deactivate the connection between the Site and your Third-Party Account by contacting us using the contact information below or through your account settings (if applicable). We will attempt to delete any information stored on our servers that was obtained through such Third-Party Account, except the username and profile picture that become associated with your account.
13. FEEDBACK
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback, or other information regarding the Site or the Services (“Feedback”) provided by you to us are non-confidential and shall become our sole property. We shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of Feedback for any lawful purpose, commercial or otherwise, without acknowledgment or compensation to you. You hereby waive all moral rights to any such Feedback, and you hereby warrant that any such Feedback are original with you or that you have the right to submit such Feedback. You agree there shall be no recourse against us for any alleged or actual infringement or misappropriation of any proprietary right in your Feedback.
14. THIRD-PARTY WEBSITES AND CONTENT
The Site may contain (or you may be sent via the Site or the Services) links to other websites (“Third-Party Websites”) as well as articles, photographs, text, graphics, pictures, designs, music, sound, video, information, applications, software, and other content or items belonging to or originating from third parties (“Third-Party Content”). Such Third-Party Websites and Third-Party Content are not investigated, monitored, or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Third Party Websites accessed through the Site or any Third-Party Content posted on, available through, or installed from the Site, including the content, accuracy, offensiveness, opinions, reliability, privacy practices, or other policies of or contained in the Third-Party Websites or the Third-Party Content. Inclusion of, linking to, or permitting the use or installation of any Third-Party Websites or any Third-Party Content does not imply approval or endorsement thereof by us. If you decide to leave the Site and access the Third-Party Websites or to use or install any Third-Party Content, you do so at your own risk, and you should be aware these Terms of Use no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any Third-Party Website to which you navigate from the Site or relating to any applications or other Third-Party Content you use or install from the Site. Any purchases you make through Third-Party Websites will be through other websites and from other companies, and we take no responsibility whatsoever in relation to such purchases which are exclusively between you and the applicable third party. You agree and acknowledge that we do not endorse the products or services offered on Third-Party Websites and you shall hold us harmless from any harm caused by your purchase of such products or services. Additionally, you shall hold us harmless from any losses sustained by you or harm caused to you relating to or resulting in any way from any Third-Party Content or any contact with Third-Party Websites.
15. INTELLECTUAL PROPERTY RIGHTS; YOUR LICENSE TO USE THE SERVICES
Unless otherwise indicated, the Site and the Services are our proprietary property and all source code, databases, functionality, software, website designs, audio, video, text, photographs, and graphics on the Site (collectively, the “Content”) and the trademarks, service marks, and logos contained therein (the “Marks”) are owned or controlled by us or licensed to us, and are protected by copyright and trademark laws and various other intellectual property rights and unfair competition laws of the United States, international copyright laws, and international conventions. The Content and the Marks are provided on the Site “AS IS” for your information and personal use only. Except as expressly provided in these Terms of Use, no part of the Site or the Services and no Content or Marks may be copied, reproduced, aggregated, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted, distributed, sold, licensed, or otherwise exploited for any commercial purpose whatsoever, without our express prior written permission.
Provided that you are eligible to use the Site and Services and contingent upon your compliance with these Terms of Use, upon your registration of an account with us via the Site, you are granted a limited, non-exclusive, non-transferable license (1) to access and use the Site or Service and to download or print a copy of any portion of the Content to which you have properly gained access and (2) to publish Content designated on the Site as permitted for publication by the inclusion of a “share” link or similar functionality, including information provided on any Impact Page that Pachama makes available to you through the Services, for your own internal business purposes. We reserve all rights not expressly granted to you in and to the Site, Service, Content and Marks.
16. CONFIDENTIALITY
16.1. Each Party (the “Receiving Party”) understands that the other Party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Pachama includes non-public information regarding features, functionality and performance of the Services; provided that, to the extent the parties enter into other agreements for the provision of other Pachama goods or services, the confidentiality provisions in those agreements will govern and control over such goods or services. Proprietary Information of each Customer includes non-public data about that Customer provided by that Customer to Pachama (“Customer Data”), Contributions, and any data or information derived from Customer’s use of the Services. For the avoidance of doubt, Customer Data shall not include Aggregated De-Identified Data (as defined below in Section 16.4) or any data, information or content uploaded by third parties other than Customer. The Receiving Party agrees to take reasonable precautions to protect such Proprietary Information, and, except to use or perform the Services or as otherwise permitted herein, not to use or divulge to any third person any such Proprietary Information; provided, however, the Receiving Party may disclose Proprietary Information to its contractors and/or agents who have a legitimate need to know the Proprietary Information and who are bound by obligations of confidentiality at least as stringent as those contained herein. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after three (3) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public through no action of the Receiving Party in violation of this Agreement, (b) was in its possession or known by it prior to receipt from the Disclosing Party, (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party.
16.2. The Parties hereby acknowledge and agree that any breach of or default of a Party’s obligations of confidentiality under this Agreement shall cause damage to the other Party in an amount difficult to ascertain. Accordingly, in addition to any other relief to which a Party may be entitled, the non-defaulting Party shall be entitled, without proof of actual damages, to seek any injunctive relief ordered by any court of competent jurisdiction including, but not limited to, an injunction restraining any violation of the defaulting Party’s obligations of confidentiality hereunder.
16.3. If the Receiving Party or any of its representatives is compelled by applicable law to disclose any Proprietary Information then, to the extent permitted by applicable law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy, or waive its right to confidentiality pursuant to the terms of this Agreement; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section, the Receiving Party remains required by law to disclose any Proprietary Information, the Receiving Party shall disclose only that portion of the Proprietary Information that, on the advice of the Receiving Party’s legal counsel, the Receiving Party 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 other presiding authority that such Proprietary Information will be afforded confidential treatment. No such compelled disclosure by the Receiving Party will otherwise affect the Receiving Party’s obligations hereunder with respect to the Proprietary Information so disclosed.
16.4 Notwithstanding anything else, Pachama may use, retain and disclose Aggregated De-Identified Data for its business purposes, including improving, testing, operating, promoting and marketing Pachama’s products and services. “Aggregated De-Identified Data” means data submitted to, collected by, or generated by Pachama in connection with your use of the Service, but only in aggregate, de-identified form which can in no way be linked specifically to you. If Customer does not desire for Pachama to use Customer Data to create Aggregated Anonymous Data as specified in this Section 16.4, Customer may opt out of such use by sending an email to [email protected]; provided that, Customer acknowledges that by opting out of Pachama’s use of Customer Data to create Aggregated De-Identified Data, Pachama may restrict Customer’s ability to access and use similar data created through use of data provided by Pachama’s other customers.
17. PRIVACY POLICY
We care about data privacy and security. By using the Site or the Services, you agree to be bound by our Privacy Policy posted on the Site, which is incorporated into these Terms of Use. Please be advised the Site and the Services are hosted in the United States. If you access the Site or the Services from any other region of the world with laws or subject to other requirements governing personal data collection, use, or disclosure, then through your continued use of the Site, you are transferring your data to the United States, and you agree to have your data transferred to and processed in the United States.
We will maintain certain data that you transmit to the Site for the purpose of managing the performance of the Services, as well as data relating to your use of the Services, and we will treat such data consistent with our Privacy Policy. Although we perform regular routine backups of data, you are solely responsible for all data that you transmit or that relates to any activity you have undertaken using the Services. You agree that we shall have no liability to you for any loss or corruption of any such data, and you hereby waive any right of action against us arising from any such loss or corruption of such data.
18. COPYRIGHT INFRINGEMENTS
We respect the intellectual property rights of others. If you believe that any material available on or through the Site and/or the Services infringes upon any copyright you own or control, please immediately notify us by following the steps set forth in our Copyright and Intellectual Property Policy (“Copyright Policy”). As described in more detail in the Copyright Policy, a copy of your notification will be sent to the person who posted or stored the material addressed in the notification. Please be advised that, pursuant to applicable law, you may be held liable for damages if you make material misrepresentations in a notification made under the Copyright Policy. Thus, if you are not sure that material located on or linked to by the Site and/or the Services infringes your copyright, you should consider first contacting an attorney.
19. EXPORT CONTROL
Products available through the Services may be subject to U.S. export and re-export control laws and regulations or similar laws applicable in other jurisdictions, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control (“OFAC”), and the International Traffic in Arms Regulations (“ITAR”) maintained by the Department of State. By making any purchase through the Services, you warrant that you are (1) not located in any country to which the United States has embargoed goods or has otherwise applied any economic sanctions; and (2) not a denied party as specified in any applicable export or re-export laws or regulations or similar laws applicable in other jurisdictions.
You agree to comply with all applicable export and reexport control laws and regulations, including the EAR, trade and economic sanctions maintained by OFAC, and the ITAR. Specifically, you agree that you shall not – directly or indirectly – sell, export, reexport, transfer, divert, or otherwise dispose of any products, software, or technology (including products derived from or based on such technology) received from Pachama pursuant to these Terms of Use to any destination, entity, or person prohibited by any applicable laws or regulations of the United States or any other jurisdiction without obtaining prior authorization from the competent government authorities as required by those laws and regulations.
20. TERM AND TERMINATION
The “Term” of the Agreement shall be: (a) for paid Services, the Order Form Term (as defined below); and (b) for free Services, while you use the Site or Services, until discontinued or terminated by Pachama or you.
With respect to an Order Form, the “Order Form Term” means, except as otherwise expressly set forth in such Order Form, and except as otherwise earlier terminated in accordance with these Terms of Use, (i) the period commencing on the effective date set forth in such Order Form and continuing for the initial term set forth therein (the “Order Form Initial Term”), and (ii) additional successive renewal terms of equal length to the Initial Order Form Term (each, a “Order Form Renewal Term”), unless either party gives notice of nonrenewal at least thirty (30) days prior to the end of the Order Form Initial Term or Order Form Renewal Term (as applicable).
In the case of paid Services, either party may terminate this Agreement for cause if the other Party materially breaches this Agreement, and such breach remains uncured within fifteen (15) days after receipt of written notice.
WITHOUT LIMITING ANY OTHER PROVISION OF THESE TERMS OF USE, WE RESERVE THE RIGHT TO, IN OUR SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF THE SITE AND THE SERVICES (INCLUDING BLOCKING CERTAIN IP ADDRESSES), TO ANY PERSON FOR ANY REASON OR FOR NO REASON, INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY REPRESENTATION, WARRANTY, OR COVENANT CONTAINED IN THESE TERMS OF USE OR OF ANY APPLICABLE LAW OR REGULATION. WE MAY FURTHER TERMINATE YOUR USE OR PARTICIPATION IN THE SITE AND THE SERVICES OR DELETE YOUR ACCOUNT AND ANY CONTENT OR INFORMATION THAT YOU POSTED AT ANY TIME, WITHOUT WARNING, IN OUR SOLE DISCRETION, IF WE DETERMINE IN OUR REASONABLE DISCRETION THAT THERE HAS BEEN A BREACH OF THESE TERMS OF USE.
If we terminate or suspend your account for any reason, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your account, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress. If any carbon credits are allocated to your Pachama Account at the time the account is terminated or suspended, you will have 30 (thirty) calendar days to instruct us whether to either retire such credits on your behalf or to transfer them to your account at a supported registry. If after such period you have not provided us instructions, we will retire such credits on your behalf.
If you or Pachama terminates these Terms of Use with respect to you, or if we suspend your access to the Site and Services, you agree that we shall have no liability or responsibility to you, and we will not refund any amounts that you have already paid, to the fullest extent permitted under applicable law. You may terminate these Terms of Use as applicable to you at any time by terminating your account with us. To learn how to terminate your account, please contact us through the contact information provided at the end of these Terms of Use. Sections that, by their nature, should survive termination of these Terms of Use shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us, including without limitation the Arbitration Agreement in Section 22.
21. MODIFICATIONS AND INTERRUPTIONS
We reserve the right to change, modify, or remove the contents of the Site or the functionality of the Services at any time or for any reason at our sole discretion without notice. However, we have no obligation to update any information on our Site. We also reserve the right to modify or discontinue all or part of the Services without notice at any time. Except as expressly provided in a written agreement executed by us, we will not be liable to you or any third party for any modification, price change, suspension, or discontinuance of the Site or the Services.
We cannot guarantee the Site and the Services will be available at all times. We may experience hardware, software, or other problems or need to perform maintenance related to the Site, resulting in interruptions, delays, or errors. We reserve the right to change, revise, update, suspend, discontinue, or otherwise modify the Site or the Services at any time or for any reason without notice to you. You agree that we have no liability whatsoever for any loss, damage, or inconvenience caused by your inability to access or use the Site or the Services during any downtime or discontinuance of the Site or the Services. Nothing in these Terms of Use will be construed to obligate us to maintain and support the Site or the Services or to supply any corrections, updates, or releases in connection therewith.
22. ARBITRATION AGREEMENT
Please read the following arbitration agreement in this section (“Arbitration Agreement”) carefully because it requires you to arbitrate certain disputes and claims with Pachama and limits the manner in which you can seek relief from Pachama. Both you and Pachama acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of these Terms of Use, Pachama’s officers, directors, employees and independent contractors (“Personnel”) are third-party beneficiaries of these Terms of Use, and that upon your acceptance of these Terms of Use, Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms of Use against you as the third-party beneficiary hereof.
(a) Arbitration Rules; Applicability of Arbitration Agreement. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement arising out of or relating to the subject matter of these Terms of Use directly through good-faith negotiations, which shall be a precondition to either party initiating arbitration. If such negotiations do not resolve the dispute, it shall be finally settled by binding arbitration in San Francisco County, California. The arbitration will proceed in the English language, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “Rules”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.
(b) Costs of Arbitration. The Rules will govern payment of all arbitration fees. Pachama will pay all arbitration fees for claims less than seventy-five thousand ($75,000) dollars. Pachama will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
(c) Small Claims Court; Infringement. Either you or Pachama may assert claims, if they qualify, in small claims court in San Francisco County, California or any United States county where you live or work. Furthermore, notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction, to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights.
(d) Waiver of Jury Trial. YOU AND PACHAMA WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and Pachama are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and Pachama over whether to vacate or enforce an arbitration award, YOU AND PACHAMA WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
(e) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor s is entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in (g) below.
(f) Opt-out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the following address:
Pachama Inc.
2261 Market St #4303
San Francisco, CA 94114
Your notice must be postmarked within thirty (30) days of first accepting these Terms of Use. You must include (i) your name and residence address, (ii) the email address and/or telephone number associated with your account, and (iii) a clear statement that you want to opt out of these Terms of Use’s Arbitration Agreement.
(g) Exclusive Venue. If you send the opt-out notice in (f), and/or in any circumstances where the foregoing Arbitration Agreement permits either you or Pachama to litigate any dispute arising out of or relating to the subject matter of these Terms of Use in court, then the foregoing Arbitration Agreement will not apply to either party, and both you and Pachama agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in, respectively, San Francisco County, California, or the federal district in which that county falls.
(h) Severability. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration Agreement section will be null and void. This Arbitration Agreement will survive the termination of your relationship with Pachama.
23. DISCLAIMER
EXCEPT AS EXPRESSLY STATED IN THESE TERMS OF USE OR IN ANY SEPARATE WRITTEN AGREEMENT BETWEEN YOU AND PACHAMA, THE SITE AND THE SERVICES ARE PROVIDED ON AN AS-IS AND AS- AVAILABLE BASIS. YOU AGREE THAT YOUR USE OF THE SITE AND THE SERVICES WILL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SITE AND THE SERVICES AND YOUR USE THEREOF, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, EXCEPT AS EXPRESSLY STATED IN THESE TERMS OF USE. EXCEPT AS EXPRESSLY STATED IN THESE TERMS OF USE, WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE SITE’S CONTENT OR THE CONTENT OF ANY WEBSITES LINKED TO THE SITE, AND WE WILL ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (1) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND MATERIALS, (2) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SITE, (3) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN, (4) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SITE OR THE SERVICES, (5) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SITE BY ANY THIRD PARTY, AND/OR (6) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SITE. WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SITE, ANY HYPERLINKED WEBSITE, OR ANY WEBSITE OR MOBILE APPLICATION FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND WE WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY THIRD- PARTY PROVIDERS OF PRODUCTS OR SERVICES.
24. LIMITATIONS OF LIABILITY
EXCEPT FOR INDEMNIFICATION OBLIGATIONS OR A BREACH OF SECTION 10, IN NO EVENT WILL EITHER PARTY OR ITS DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT, LOST REVENUE, LOSS OF DATA, OR OTHER DAMAGES ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, THE SERVICES, THIRD-PARTY WEBSITES, OR THIRD-PARTY CONTENT MADE AVAILABLE THROUGH THE SERVICES, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE) CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
EXCEPT FOR INDEMNIFICATION OBLIGATIONS OR A BREACH OF SECTION 10, IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF EITHER PARTY OR ITS AFFILIATES ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, THE SERVICES, THIRD-PARTY WEBSITES, OR THIRD-PARTY CONTENT MADE AVAILABLE THROUGH THE SERVICES, FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, EXCEED THE GREATER OF (1) THE AMOUNT PAID, IF ANY, BY YOU TO US DURING THE TWELVE (12) MONTH PERIOD PRIOR TO ANY CAUSE OF ACTION ARISING OR (2) $100.
THIS SECTION APPLIES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
25. INDEMNIFICATION
You agree to defend, indemnify, and hold us harmless, including our subsidiaries, affiliates, and all of our respective officers, agents, partners, and employees, from and against any loss, damage, liability, claim, or demand, including reasonable attorneys’ fees and expenses, made by any third party due to or arising out of: (1) your Contributions; (2) your use of the Services; (3) your breach of these Terms of Use; (4) any breach or inaccuracy of your representations and warranties set forth in these Terms of Use; (5) your violation of the rights of a third party, including but not limited to intellectual property rights; or (6) any overt harmful act by you toward any other user of the Site or the Services with whom you connected via the Site. Notwithstanding the foregoing, we reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate, at your expense, with our defense of such claims. We will use reasonable efforts to notify you of any such claim, action, or proceeding which is subject to this indemnification upon becoming aware of it.
26. GOVERNING LAW
These terms shall be governed by the laws of the State of California without regard to choice or conflicts of law principles. Further, you and Pachama agree to the jurisdiction of the Northern District of California to resolve any dispute, claim, or controversy that relates to or arises in connection with the Agreements (and any non-contractual disputes/claims relating to or arising in connection with them).
27. ASSIGNMENT
Pachama may assign any of its rights and/or obligations under these Terms of Use, in whole or in part. You may not assign these Terms of Use, in whole or in part, nor transfer or sub-license your rights under these Terms of Use, to any third party, except with Pachama’s written consent.
28. ENTIRE AGREEMENT
Other than as stated in this section or as explicitly agreed upon in writing between you and Pachama, these Terms of Use, all provisions incorporated by reference herein and any policies or operating rules posted by us on the Site, constitute all the terms and conditions agreed upon between you and Pachama and supersede any prior agreements in relation to the subject matter of these Terms of Use, whether written or oral.
Please note, however, that certain aspects of your use of the Services may be governed by additional agreements. When you are presented with an offer for such aspects of your use of the Services, you will be presented with any related additional agreement, and you may have an opportunity to agree to additional terms. To the extent that there is any irreconcilable conflict between any additional terms and these Terms of Use, the additional terms shall prevail.
29. FORCE MAJEURE
Pachama shall not be liable in any manner or be deemed to be in breach of these Terms of Use because of any delay in performing or any failure to perform any of Pachama’s obligations under these Terms of Use (including but not limited to the purchase of carbon credits on Pachama’s behalf) if the delay or failure was due to any cause beyond the Pachama’s reasonable control (which shall include, but not be limited to government actions, war, fire, explosion, flood, acts of terrorism, import or export regulations or embargoes, labor disputes or inability to obtain or a delay in obtaining supplies of goods or labor).
30. SEVERABILITY, WAIVER AND INTERPRETATION
Unless otherwise stated in these Terms of Use, should any provision of these Terms of Use be held invalid or unenforceable for any reason or to any extent, such invalidity or enforceability shall not in any manner affect or render invalid or unenforceable the remaining provisions of these Terms of Use, and the application of that provision shall be enforced to the extent permitted by law.
Any failure by Pachama or any third party beneficiary to enforce these Terms of Use or any provision thereof shall not waive ours or the applicable third party beneficiary’s right to do so.
As used in these Terms of Use, the words “include” and “including,” and variations thereof, will be deemed to be followed by the words “without limitation.”
31. ELECTRONIC COMMUNICATIONS, TRANSACTIONS, AND SIGNATURES
You consent to receive electronic communications, and you agree that all agreements, notices, disclosures, and other communications we provide to you electronically, via email and on the Site, satisfy any legal requirement that such communication be in writing. YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS, AND OTHER RECORDS, AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED BY US OR VIA THE SITE. You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means.
32. CONTACT US
In order to resolve a complaint regarding the Site or the Services, or to request further information regarding use of the Site or the Services, please contact us at:
Email:
Phone:+1 (415) 805-3913
Mail:
Pachama Inc
2261 Market St #4303
San Francisco, CA 94114
