Terms of Service

BY CLICKING ON THE “I AGREE” (OR SIMILAR BUTTON) OR ACCESSING AND AVAILING THE SOFTWARE (DEFINED BELOW), YOU INDICATE YOUR UNDERSTANDING, ACCEPTANCE AND CONSENT TO THE FOLLOWING TERMS OF SERVICE IN RELATION TO AVAILING OR ACCESSING THE SOFTWARE.   

THE TERMS OF SERVICE (THE “TOS”) ARE A BINDING CONTRACT BETWEEN YOU – THE USER OF SOFTWARE AND ENERLLY INC, (“LICENSOR”, “WE” “OUR” OR “US”) IN FURTHERANCE TO THE SUBSCRIPTION OF THE SOFTWARE. FOR SAKE OF BREVITY, “YOU/USERS/LICENSEE” WILL INCLUDE ANY PARTY WHICH HAS AVAILED SUBSCRIPTION FROM THE LICENSOR OF THE SOFTWARE. 

THE TOS PROVIDES AND CAPTURES IMPORTANT LEGAL INFORMATION ABOUT THE SUBSCRIPTION TO THE LICENSOR’S SOFTWARE, NAMELY “CARBONMINUS “, AND YOUR USAGE, AND ACCESS OF THE SOFTWARE AND SUBSCRIPTION OF THE SAME. BY ACCESSING AND USING THE SOFTWARE AND SUBSCRIPTION, YOU CONFIRM AND AGREE TO BE BOUND BY THE THE TOS. IF YOU DO NOT AGREE TO BE BOUND BY THE TOS, WE ENCOURAGE YOU NOT TO USE OR ACCESS THE SOFTWARE.

1. DEFINITIONS

1. “Affiliates” shall mean any corporation, association, or other entity that directly or indirectly owns, is owned by, or is under common ownership with either party, respectively, either currently or during the validity of the TOS. As used in this definition, the terms “own”, “owned”, or “ownership” mean the direct or indirect possession of more than 50% of the voting securities, or equity in such a business entity.
2. “TOS” shall mean and include the terms of service as outlined in this TOS in addition to any and all Orders, to the TOS.
3. “Documentation” shall mean any accompanying documents, content, data provided by Licensor to Licensee along with the Subscription to the Software that describes or supports the use of the Software. 
4. “Error” shall mean any verifiable and reproducible failure or inability of the Software to perform any material functions set forth in the Documentation due to any programming defect in the Software when used by Licensee as specified under the TOS or the Documentation by Licensor. The term “Error” shall not include any failure or inability of the Software that (i) results from the misuse or improper use of the Software, (ii) does not materially affect the operation and use of the Software, (iii) results from any modification to the Software that is not a Licensor authorized change, (iv) results from any cause beyond reasonable control of Licensor including third party cloud environment, hardware, software, firmware, malicious code like virus, trojan or malware.
5. “Fees” shall mean the fees payable by Licensee to Licensor for availing the Subscription to use the Software, as set forth in the applicable Order.
6. “Fixes” shall mean any modification or addition to the Software that, when made or added to the solution or modules currently being used by Licensee, corrects Errors but does not change the overall utility, functional capability, or application, where such modifications or additions are generally made available by Licensor to all its customers.
7. “Licensable Activity” shall mean any activity encompassed by any intellectual property rights and absent a license, would give rise to liability for infringement (or inducement of infringement or contributory infringement) of such intellectual property rights.
8. “Licensee Content” means all data and materials provided by Licensee to the Software for use in connection with the Subscription. 
9. “Licensor Content” means all content accessible on the Software, which is not Licensee Content (as defined above) including without limitation the Reports (as defined below).
10. “Order” means a written order, that the Parties may enter into from time to time under these TOS to place an order for the license to access the Software and avail the Subscription, setting forth the details of the Software to be provided by Licensor, the Subscription Term start date, the Subscription Term end date, any configuration, training or other services to be provided by Licensor, the applicable Fees, and such other terms as the Parties may agree related to the transactions contemplated by the TOS. 
11. “Permitted Users” shall mean an employee of Licensee or its Affiliates who may access the Software and use the Subscription pursuant to the license granted herein. 
12. “Software” shall mean Carbonminus, as described in an Order including enhancements (if any).
13. “Purpose” shall mean use of the Software by Licensee for the sole purpose of its internal business use . For clarity, nothing contained in the TOS grants Licensee the right to resell, distribute, sublicense the Subscription to any third-party.
14. “Subscription” means the limited license to use and access the Software and its related services in accordance with the Order executed between the Parties including the internet accessible service offered by Licensor.

2. GRANT OF LICENSE AND RESTRICTIONS
3. Grant of License:

Subject to Licensee’s compliance with the TOS and in consideration of the Fees for the Subscription, during the Subscription Term, Licensor hereby grants Licensee a fixed-term, non-exclusive, non-transferable, revocable, non-sub licensable and a limited license to use the Software and the services through the Subscription provided under the applicable Order of the TOS, provided, Licensee shall cause each Permitted User to abide by the terms and conditions of the TOS. 

2. Restrictions:

Licensee shall not, directly or indirectly, i) copy, modify, adapt, translate, reverse engineer, decompile, decrypt, disassemble, alter, reproduce or otherwise make any changes to the Software or make any attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Software; ii) use the Subscription in any manner to provide time-sharing or service bureau purposes, or other computer services to third parties, except as expressly provided herein, or allow any third party to access or benefit from the functionality of the Software; iii) use the Subscription or portion thereof in violation of any applicable export control laws or regulations; iv) use the Subscription for any purpose other than the Purpose; v) allow use of the Subscription by anyone other than the Permitted Users; vi) use the Subscription to develop any competing or similar product; vii) engage in any Licensable Activity; viii) use any of the Software’s components, add-ons, files, modules, externals, contents including associated license material separately from the Software; ix) modify, translate, or create derivative works based on the Software and services (except to the extent expressly permitted by Licensor or authorized within the Subscription; x) incorporate any open source software into the Software in such a way that the Software would become subject to any licensing obligations associated with open source software; xi) sell, distribute, rent, lease, lend, sublicense, upload to or host on any website, the Software, in whole or in part; xii) use the Software and/or services for any unlawful or illegal activity; xiii) create internet links to the  Software or frame or mirror any content on any other server or device; xiv) do anything that disrupts or endangers the Software; or xv) delete, alter or remove any disclaimers, warnings, copyright or proprietary notices or labels accompanying the Software. All rights, not specifically and unequivocally granted to Licensee are reserved by Licensor. 

3. LICENSEE’S RESPONSIBILITIES
4. Account Management: 

As a condition for using the Subscription, the Permitted Users may be required to register with Licensor and select a password and enter his/her email address on the Software. This account management will be facilitated through an admin appointed by Licensee. Licensee shall ensure that the Permitted Users shall provide accurate, complete, and updated registration information. Failure to do so shall constitute a breach of the TOS, which may result in immediate termination of Permitted User’s account. 

2. Compliance with Laws: 

Licensee shall comply with all applicable local, state, national and foreign laws in connection with its use of the Subscription, including those laws related to data privacy, international communications, and the transmission of technical or personal data. 

3. Unauthorized Use; False Information: 

Licensee shall: (i) notify Licensor immediately of any unauthorized use of any password or user id or any other known or suspected breach of security; (ii) report to Licensor immediately and use reasonable efforts to stop any unauthorized use of the Subscription that is known or suspected by Licensee or any Permitted Users; and (iii) not provide false identity information to gain access to the Software or use the Subscription.

4. Access: 

The Licensee shall be solely responsible for its own acts and the acts and omissions of its Permitted Users while accessing the Software. The Licensor shall not be liable for any loss of data, information or functionality, including the Licensee Content, caused directly or indirectly by the Permitted Users. 

5. Licensee Content: 

Licensee is solely responsible for all Licensee Content transmitted on the Software, and for ensuring that Licensee Content does not (i) include anything that actually or potentially infringes or misappropriates the copyright, trade secret, trademark or other intellectual property right of any third party; or (ii) contain anything that is obscene, defamatory, harassing, offensive or malicious; or (iii) upload, post, reproduce or distribute any information, software or other material protected by copyright, privacy rights, or any other intellectual property right without first obtaining the permission of the owner of such rights. 

6. System requirements: 

The Licensee acknowledges that, for accessing and use of the Subscription, the Licensee may be required to use one or more compatible devices, internet services and certain software and may require obtaining updates or upgrades of the Software from time to time. Because the access and use of the Subscription involves hardware, software, and internet access, the Licensee’s ability to access and use of the Subscription may be affected by the performance of these factors. 

4. FEES

1. In consideration of the Subscription to access the Software contemplated in the TOS, Licensee shall pay the Fees as set forth in the applicable Order.
2. All Fees and charges under the TOS shall be exclusive of taxes and shall be borne by Licensee. 
3. Licensee agrees that Fees charged under an Order are non-refundable and shall be valid for the Term. 
4. The Subscription shall begin only upon the payment of the Fees and automatically terminate on the expiry of the Subscription Term. 
5. Licensee shall not set-off or offset against Licensor’s invoices, amounts that Licensee claims are owed to it by Licensor under the TOS, or any Order/SOW and Licensor will bring any claims or cause of action it may have in a separate action.

5. DISCLAIMER OF WARRANTY
6. Authority. Each party represents and warrants that (i) the TOS has been duly entered into and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; (ii) no authorization or approval from any third party is required in connection with such party’s entering into or performance of the TOS; and (iii) the entering into and performance of the TOS does not violate the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.

2. Limited Warranty. During an applicable subscription term, Licensor warrants that the services and Software will perform substantially in accordance with the applicable published specifications when used in accordance with the TOS and the Documentation. Non-substantial variations of performance from the published specifications or other Documentation do not establish a warranty right. This limited warranty is void if failure of the Software has resulted from, (i) force majeure; or (ii) any material breach of the TOS by Licensee or a Permitted User (other than non-payment). In the event of a Software warranty claim under this Section 5(b), Licensee’s sole and exclusive remedy and Licensor’s entire obligation and liability shall be, at Licensor’s sole option, to either (x) provide a correction, update or upgrade of the Software; (y) correct or replace the Software; or (z) terminate Licensee’s subscription for the impacted Software (by written notice) and refund Licensee, the unused fees pre-paid by Licensee for the impacted Subscription covering the whole months remaining after the effective date of termination. Any corrected, upgraded or updated version of the Software will be warranted for the remainder of the applicable Subscription term. All warranty claims must be made to Licensor in writing within such a Subscription term.

3. EXCEPT AS STATED IN CLAUSE 5(B) ABOVE LICENSEE ACKNOWLEDGES THAT THE SOFTWARE AND ITS SUBSCRIPTION ARE PROVIDED “AS IS” WITHOUT ANY REPRESENTATIONS, CONDITIONS, WARRANTIES OR COVENANTS WHATSOEVER, INCLUDING WITHOUT LIMITATION, ANY EXPRESS, STATUTORY OR IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ARISING OTHERWISE IN LAW OR EQUITY OR FROM A COURSE OF DEALING OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED AND EXCLUDED. THE SOFTWARE AND ITS SUBSCRIPTION MAY CONTAIN DEFECTS, BUGS OR ERRORS. LICENSOR DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE AND ITS SUBSCRIPTION WILL MEET LICENSEE’S REQUIREMENTS, THAT THE OPERATION OF THE SUBSCRIPTION WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE SUBSCRIPTION WILL BE CORRECTED.  LICENSEE ACKNOWLEDGES THAT LICENSOR DOES NOT CONTROL THE ACCURACY, TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SUBSCRIPTION MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES.  

6. PRIVACY AND SECURITY

1. The Licensor, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing undertakes to implement measures to protect the privacy, integrity and security of personal information.
2. The personal information collected by the Licensor is subject to and governed by Privacy Policy available at https://carbonminus.com/privacy-policy/. To the extent applicable to the processing activities, Company’s Data Processing Addendum available at [Insert the link for the Online DPA] (as updated from time to time), is incorporated and agreed as a part of the TOS.

7. INTELLECTUAL PROPERTY RIGHTS

1. Any and all rights to the Subscription, Software, Documentation, enhancements, and branding thereof including title, ownership rights and intellectual property rights such as copyrights, trademarks, service marks and patents therein is the sole and exclusive property of Licensor. The TOS does not grant Licensee any rights, title and interest in and to the Software, Documentation, enhancements, its contents and branding thereof including Licensor’s intellectual property rights except where expressly and unequivocally licensed herein.
2. From time to time, Licensee may provide feedback, suggestions, requirements or recommendations (“Feedback”) regarding the Software or the Subscription. Licensee hereby assigns to Licensor all right, title and interest into such Feedback and an exclusive right to create any developments based on such Feedback. 
3. Licensee shall retain the title to and all ownership rights in Licensee Content.  Licensee shall grant to Licensor a worldwide, non-exclusive, and non-transferable limited-term license to host, copy, transmit, analyze, process, display, store, configure, and perform Licensee Content solely as necessary to provide the Subscription to Licensee. 
4. Licensee acknowledges and agrees that the Software may generate certain reports (“Reports”) with the use of Licensee Content provided by Licensee while availing the Subscription. All intellectual property rights including the ownership rights in all such Reports generated during the provision of Subscription shall vest solely with Licensee. 

8. CONFIDENTIALITY
   1. “Confidential Information” shall mean information disclosed by one party to the other and which includes, without limitation Software, Documentation, financial, business, technical and marketing information, business plans, methods, processes, inventions, techniques, designs, data, know-how, ideas, concepts, strategies, trade secrets, software product and services and such other information. Confidential Information does not include information which: (a) is in the public domain; (b) was known to the party of such disclosure or becomes known to the party without breach of any confidentiality agreement; (c) is independently developed by either party without violating any confidentiality obligations stated herein; (d) is disclosed pursuant judicial order or requirement of the governmental agency or by operation of law.
   2. The receiving party shall keep Confidential Information and proprietary information and data received from the disclosing party in strict confidence and shall not disclose it to any third parties except to a limited group of receiving party’s directors, officers, agents, authorized representatives on a need-to-know basis. Each party will use the same degree of care and discretion (but in any event no less than a reasonable degree of care and discretion) to avoid unauthorized disclosure or use of the other party’s Confidential Information as that receiving party uses to protect its own information of a similar nature from unauthorized disclosure or use.
   3. Upon request by the disclosing party, the receiving party shall immediately return to the disclosing party, all Confidential Information disclosed by the disclosing party and all copies thereof. All such information shall be and shall remain the sole property of the disclosing party.
   4. The confidentiality obligations stated herein shall survive for a period of three (3) years from the date of termination or expiration of the TOS.
   5. The receiving party agrees that any violation of the confidentiality obligations will cause irreparable injury to the disclosing party, entitling disclosing party to obtain injunctive relief in addition to all legal remedies.

9. CLOUD HOSTING

Licensee acknowledges that Licensee Data may be uploaded on the Software and is stored on the public or the private clouds services. Licensee agrees and acknowledges that Licensor shall not be responsible or liable for any performance or security issues, or vulnerabilities arising out of or related to private or public cloud servers.

10. INDEMNITY

Licensee shall indemnify, hold harmless and defend Licensor against any costs or damages arising out of or in connection with any claim relating to (i) Licensee’s breach of or violation of applicable laws and regulations; (ii) Licensee’s use of the Software or the Subscription other than as permitted under the TOS; (iii) the acts or omissions of the Permitted Users; or (iv) a third party claim made against Licensor for infringement or misappropriation based upon following conduct of Licensee: (a) Licensee’s combination or use of the Subscription with software, services, or products developed by Licensee or third parties; (b) Licensee Content infringes any patent, copyright or trademark, or misappropriates any trade secret.

11. LIMITATION OF LIABILITY

NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR SPECIAL DAMAGES (INCLUDING LOSS OF BUSINESS, GOODWILL, REVENUE, USE OR OTHER ECONOMIC ADVANTAGE, BUSINESS INTERRUPTION, OR ANY ALTERATION, COMPROMISE, CORRUPTION OR LOSS OF LICENSEE CONTENT), HOWSOEVER CAUSED IN CONNECTION WITH THE TOS EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE MAXIMUM LIABILITY OF LICENSOR (WHETHER IN CONTRACT, TORT, OR UNDER LAW OR IN EQUITY) HEREUNDER FOR ALL DIRECT DAMAGES, UNDER OR IN CONNECTION WITH THE TOS, REGARDLESS OF THE FORM OF ACTION, SHALL BE LIMITED TO THE FEES RECEIVED BY LICENSOR FROM LICENSEE FOR THE SUBSCRIPTION IN THE THREE (03) MONTH PERIOD IMMEDIATELY PRECEDING EVENT GIVING RISE TO SUCH CLAIM. THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED WARRANTY OR REMEDY HEREIN.

12. TERM AND TERMINATION
13. Term: The Subscription to use, and access the Software and services is granted to Licensee for a subscription period opted by Licensee under the Order (“Initial Subscription Term”) and unless Licensee’s Subscription is terminated in accordance with the TOS, Licensee’s Subscription shall automatically be renewed for a period of similar duration as that of the Initial Subscription Period (each “Renewal Term”).  The Initial Subscription Term and /or each Renewal Term shall be collectively referred to as the (“Subscription Term”). The Subscription Term shall be effective from the actual date of Licensee’s Subscription to the Software. 

2. Termination for Cause: 

1. Either party may terminate The TOS or the applicable Order in the event that the other party is in default of any of its material obligations hereunder and such default is not remedied within sixty (60) days of receipt of written notice thereof.
2. Either party may terminate the TOS and applicable Order immediately with a written notice to the other party if the other party is adjudicated bankrupt or becomes insolvent, makes any assignment for the benefit of creditors, proceedings are instituted by the other party seeking relief, reorganization or rearrangement under any laws relating to insolvency, bankruptcy or similar laws of any jurisdiction, a receiver, liquidator or trustee is appointed in respect of any property or assets of the other party or an order is made for the liquidation, dissolution or winding up of the other party.

3. Consequences of Termination: 

1. Upon the expiry or any termination of the TOS, Licensee’s right to use the Subscription shall immediately cease and at Licensor’s discretion, Licensee will return/ delete/ destroy any materials provided by Licensor to Licensee including Licensor Content.
2. Any Fees due for the Subscription prior to the expiration or termination date will become due and payable immediately but no later than seven (7) days from the receipt of the invoices thereof, and Licensor shall cease to render any further services. 
3. If or any Order is terminated by Licensee on account of any of the termination events set out under clause 11(c), Licensee shall be entitled for a refund of the Fees (if any) for any unutilized part of the Subscription for the remainder of the Subscription Term, on a pro-rata basis. 

13. GENERAL
14. The TOS constitutes the entire or sole legal agreement between You and Licensor and will govern the use of the Software and Subscription and will supersede and prevail over any prior agreements, whether oral or written, regarding the subject matter hereof.

2. All notices, demands, or consents required or permitted under the TOS will be in writing. Notice will be considered effective on the earlier of actual receipt or: (i) the day following transmission if sent by facsimile or email with pdf followed by written confirmation; (ii) one day (two days for international addresses) after posting when sent via an express commercial courier; or (iii) five days after posting when sent via post. Notice will be sent to the address for each party set forth on the first page of the TOS, or at such other address as will be provided by either party to the other in writing.

3. Neither party will be liable for any failure or delay in performing any of its obligations mentioned in the TOS, if such delay or failure is due to a cause beyond its reasonable control including but not limited to natural catastrophes, acts of God, governmental acts or omissions or strikes or difficulties, epidemics, pandemic.

4. If any court of law, having the jurisdiction to decide on this matter, rules that any provision contained under the TOS is invalid, then that provision will be removed from the TOS without affecting the rest of the TOS. The remaining provisions of the TOS will continue to be valid and enforceable.

5. The Licensor will have a right to assign the TOS to its Affiliates or any third parties at any time without notice to You.

6. The TOS shall be construed and governed by and in accordance with the laws of India. The parties shall resolve any difference or dispute arising out of the TOS by way of negotiations. If such negotiation process fails, then all disputes arising from or related to the TOS shall be resolved by litigation and the courts of Pune shall have the exclusive jurisdiction to resolve the disputes between the parties. 

7. Any waivers and modifications must be in writing and signed by both parties. No delay or omission by either party in exercising any right or remedy under the TOS or existing at law or equity will be considered a waiver of such right or remedy.

8. By registering the details with Licensor, You agree that We may contact You with important information relating to the Software or Subscription. 

9. No agency, partnership, joint venture, or employment is created between You and the Licensor as a result of the TOS, and You do not have any authority of any kind to bind Licensor in any respect whatsoever.

10. Licensor may update the TOS, at its own discretion. Licensor hereby encourages You to check these terms and conditions on a regular basis to be aware of the changes made to it which are also available on [Insert hyperlink] for the most recent version.