Terms of Service

Introduction

Definitions

“Loamist IP” means the Subscription Services, the underlying software, algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Subscription Services and Documentation, all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and all intellectual property rights in and to any of the foregoing.

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“Customer Materials” means all information, data, content and other materials, in any form or medium, that is provided, or otherwise uploaded, by or on behalf of Customer through the Subscription Services or to Loamist in connection with Customer’s use of the Subscription Services, but excluding, for clarity, any Loamist IP.

“Documentation” means the operator, user, and technical manuals and documentation.

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“Order Form” means a(n) (i) mutually executed order form or other mutually agreed upon ordering document; (ii) purchase order issued by Customer and accepted by Loamist in writing; (iii) online registration form made available by Loamist and accepted by Customer; or (iv) quote issued by Loamist and accepted by Customer, in each case which references this Agreement and sets forth the applicable Subscription Services to be provided by Loamist.

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“Subscription Services” means the services offered by Loamist to Customer pursuant to this Agreement including, Loamist’s proprietary map services and corresponding data, as more particularly described or identified in the applicable Order Form.

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“Use” means to use and access the Subscription Services in accordance with this Agreement and the Documentation.

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Right to Use

SUBSCRIPTION SERVICES.

Right to Use. Subject to Customer’s compliance with the terms and conditions of this Agreement, Loamist hereby grants to Customer a limited, non-exclusive, non-transferable (except pursuant to Section 12) right to Use the Subscription Services during the applicable Term. Loamist reserves and, as between the Parties will solely own, the Loamist IP and all rights, title and interest in and to the Loamist IP. No rights are granted to Customer hereunder (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth herein. All intellectual property rights relating to any Loamist IP will vest solely in Loamist upon creation by Customer, and to the extent that sole ownership does not originally vest in Loamist, such intellectual property rights are hereby automatically and irrevocably assigned by Customer to Loamist. Customer will take all actions and execute all documents reasonably requested by Loamist to give effect to the preceding sentence.

Disclaimer. THE SUBSCRIPTION SERVICES AND OTHER LOAMIST IP ARE PROVIDED ON AN “AS IS” BASIS, AND LOAMIST MAKES NO WARRANTIES OR REPRESENTATIONS TO CUSTOMER, ITS AUTHORIZED USERS OR TO ANY OTHER PARTY REGARDING THE LOAMIST IP, THE SUBSCRIPTION SERVICES OR ANY OTHER SERVICES OR MATERIALS PROVIDED HEREUNDER.

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Use Restrictions

SUBSCRIPTION SERVICES.

Use Restrictions. Customer will not and will not permit any person or entity (including, without limitation, Authorized Users) to, directly or indirectly: (i) copy, modify or create any derivative work of any portion of the Subscription Services or the Documentation; (ii) reverse engineer, decompile, decode, or disassemble or otherwise attempt to derive or gain improper access to any software component of the Subscription Services, in whole or in part; (iii) frame, mirror, sell, resell, market, sublicense, publish, distribute, reproduce, assign, transfer, rent, lease or loan any portion of the Subscription Services to any other person or entity, or otherwise allow any person or entity to use the Subscription Services for any purpose other than for the benefit of Customer in accordance with this Agreement; (iv) use the Subscription Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property rights or other right of any person or entity, or that violates any applicable law; or (v) access or search the Subscription Services (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Subscription Services features provided by Loamist use expressly for such purposes.

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Authorized Users

SUBSCRIPTION SERVICES.

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Authorized Users. Customer will not allow any person or entity other than its employees or contractors that it authorizes to use the Subscription Services on its behalf (“Authorized Users”). Customer may permit Authorized Users to Use the Subscription Services, provided that Customer is responsible for all acts or omissions by its Authorized Users in connection with their use of the Subscription Services and their compliance with the terms and conditions of this Agreement, including, without limitation, with Customer’s obligations and the restrictions set forth in Section 2(b).

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CUSTOMER MATERIALS AND DATA. As between Customer and Loamist, Customer owns and retains all right, title and interest in and to all Customer Materials. Customer agrees that Loamist may reproduce, display and perform publicly modify and otherwise use the Customer Materials solely to provide and improve the Subscription Services during the Term (as defined below). In addition, Loamist may develop or derive data or insights in deidentified form from (i) any Customer Materials; or (ii) Customer’s and/or its Authorized Users’ use of the Subscription Services, including, without limitation, any usage data or trends with respect to the Subscription Services (“Service Information”).

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Upon expiration or termination of each Order Form: (i) each Party will make no further use of any Confidential Information belonging to the other Party, and will promptly return, or destroy and provide certification of such destruction, to the other Party all Confidential Information of the other Party in its possession or control, except for any archived electronic communications which may be stored confidentially; (ii) Customer’s and its Authorized Users’ right to Use the Subscription Services pursuant to such Order Form will immediately terminate; and (iii) all Fees owed by Customer to Loamist pursuant to such Order Form will be immediately due.

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Fees

FEES. Customer will pay Loamist the fees set forth in the applicable Order Form (“Fees”) in accordance with the payment terms set forth therein and without offset or deduction. Loamist reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Term or then-current Renewal Term, upon thirty (30) days’ prior notice to Customer. Except as otherwise provided in the relevant Order Form or agreed by the Parties, Loamist will issue monthly invoices to Customer during the Term, and Customer will pay all amounts set forth on any such invoice no later than thirty (30) days after the date of such invoice. If Customer has signed up for automatic billing, Loamist will charge Customer’s selected payment method for any Fees on the applicable payment date, including any applicable taxes. If Loamist cannot charge Customer’s selected payment method for any reason (such as expiration or insufficient funds), Customer remains responsible for any uncollected amounts. All payments are non-refundable, and Customer will not have the right to set off, discount or otherwise reduce or refuse to pay any amounts due to Loamist under this Agreement.

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Limitation of Liability. EXCEPT FOR (I) BREACH OF SECTION 9, (II) BREACH OF CUSTOMER’S PAYMENT OBLIGATIONS AND (III) INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR THE COST OF COVER OR SUBSTITUTE SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. IN NO EVENT WILL LOAMIST’S TOTAL LIABILITY TO CUSTOMER OR ITS AUTHORIZED USERS IN CONNECTION WITH THIS AGREEMENT EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO LOAMIST IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION WILL APPLY WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

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Customer Materials and Data

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Representations and Warranties

REPRESENTATIONS AND WARRANTIES.

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Term and Termination

TERM. The initial term of this Agreement begins on the Effective Date and expires at the end of the Initial Term specified in the relevant Order Form (the “Initial Term”). Except as otherwise set forth in the Order Form, following the Initial Term, this Agreement will automatically renew for additional periods of the same duration as the Initial Term (each, a “Renewal Term,” and together with the Initial Term, the “Term”), unless either Party provides the other with at least thirty (30) days’ written notice of its intent not to renew this Agreement prior to the end of the Initial Term or the then-current Renewal Term.

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TERMINATION. Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and, if able to be cured, such breach remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach. Loamist may further terminate this Agreement immediately upon written notice to Customer in the event that Customer breaches Sections 2(a), 2(b), or 2(c), or infringes or otherwise violates Loamist’s intellectual property rights in and to the Subscription Services.

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EFFECT OF TERMINATION.

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Effect of Termination

EFFECT OF TERMINATION.

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Confidentiality

CONFIDENTIALITY.

Disclaimer; Limitation of Liability

DISCLAIMER; LIMITATION OF LIABILITY.

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Indemnification

INDEMNIFICATION.

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Miscellaneous

MISCELLANEOUS. Neither Party may assign, transfer or sublicense this Agreement, by operation of law or otherwise, without the other Party’s prior written consent, except to a successor entity in the event of a merger, consolidation or sale of all or substantially all of the assets of such Party, and any attempt by either Party to do so, without such consent, will be void. Subject to the foregoing, this Agreement is binding upon and will inure to the benefit of each of the Parties and their respective successors and permitted assigns. Customer affirms that it is not named on, owned by, or acting on behalf of any U.S. government denied-party list, and it agrees to comply fully with all relevant export control and sanctions laws and regulations of the United States (“Export Laws”) to ensure that neither the Subscription Services, software, any Customer Materials, nor any technical data related thereto is: (i) used, exported or re-exported directly or indirectly in violation of Export Laws; or (ii) used for any purposes prohibited by the Export Laws, including, but not limited to, nuclear, chemical, or biological weapons proliferation, missile systems or technology, or restricted unmanned aerial vehicle applications. Customer will complete all undertakings required by Export Laws, including obtaining any necessary export license or other governmental approval. Neither Party will be responsible for any failure or delay in the performance of its obligations under this Agreement (except for any payment obligations) due to causes beyond its reasonable control. If any provision of this Agreement is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the Parties, and the remaining provisions of this Agreement will remain in full force and effect. This Agreement, including its exhibits and any Order Form(s), is the complete and exclusive agreement between the Parties with respect to its subject matter and supersedes all prior or contemporaneous agreements, communications and understandings, both written and oral, with respect to its subject matter. This Agreement may be amended or modified only by a written document executed by duly authorized representatives of the Parties. Nothing in this Agreement will be construed to create a partnership, joint venture or agency relationship between the Parties. Neither Party will have the power to bind the other or to incur obligations on the other’s behalf without such other Party’s prior written consent. Except as expressly set forth in this Agreement, the exercise by either Party of any remedy under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. Either Party’s failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the Party granting the waiver. This Agreement will be governed by and construed in accordance with the laws of the State of California without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. The Parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Alameda County, California and the Parties irrevocably consent to the personal jurisdiction and venue therein. All notices required to be sent hereunder will be in writing (email being sufficient) and will be deemed to have been given when mailed by certified mail, overnight express, or sent by email, with receipt confirmed. This Agreement may be signed in counterparts, and electronic signatures will have the same weight and effect as originals.

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EXHIBIT A - Default Order Form

Upon agreeing to this Terms of Service the user agrees to the following order form conditions until the service is canceled or until a new order is placed at which time the new order form will superseded the one agreed upon herein.

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Service:

Biomass Explorer™

Subscription Plan: Yearly

Subscription Term and Renewal

The subscription term for Biomass Explorer™ begins one month after the Effective Date. The subscription will automatically convert to a paid subscription for a term of twelve (12) months ("Subscription Term").

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Payment

Upon execution of this agreement, Customer will provide a valid credit card number through a third party payment platform. Customers credit card will be billed in advance for the Subscription Term at the current rate. Payment obligations are non-cancelable, and fees paid are non-refundable. The subscriber is responsible for the full subscription fee for the twelve (12) month period, regardless of whether the subscription is actively used.

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Cancellation Policy

If the subscriber chooses to cancel the subscription any time after the free trial period, they remain responsible for payment of the entire subscription fee for the twelve (12) month Subscription Term. There will be no refunds or credits for partial months of service, or refunds for months unused with an open account.

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Automatic Renewal

Unless the subscriber notifies Loamist, Co. before the end of the applicable subscription period that they want to cancel, the subscription will automatically renew for another term of twelve (12) months. The renewal subscription term will be subject to the then-current subscription rates.

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Payment Terms: Billed monthly, payable by credit card.

This Order Form is subject to and incorporates the Loamist Software Subscription Agreement and once mutually executed, constitutes a binding agreement between Loamist and Customer. Any capitalized terms not defined and used in this Order Form will have the meaning ascribed to them in the Loamist Software Subscription Agreement.

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Subscription Term and Renewal

The subscription term for Biomass Explorer™ begins on the Effective Date. The subscription will automatically convert to a paid subscription for a term of twelve (12) months ("Subscription Term") after one month free trial.

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