Terms and Conditions
Introduction
This Agreement sets forth the terms and conditions between Customer (as defined in the paragraph below) and forward earth GmbH (“forward earth,” “we,” “our,” or “us”) which govern Customer’s and its Affiliates’ access and use forward earth’s Services. forward earth and Customer may individually be referred to as a “Party” and collectively “The Parties.” The Agreement is effective as of the date that you sign up for any Service online or submit an Order Form that references this Agreement (the “Effective Date”).
By accepting this Master Subscription Agreement (“Agreement”), either by clicking a box indicating your acceptance, executing an Order Form or other document that references this Agreement, by using (or making any payment for) the Services, or by otherwise indicating your acceptance of this Agreement, you: (1) agree to this Agreement on behalf of the customer indicated on the Order Form (if applicable) or the organization, business, or other legal entity for which you act (“Customer,” “you,” or “your”); and (2) represent and warrant that you have the authority to bind Customer to this Agreement. If you do not have such authority, or if you do not agree with this Agreement, you must not accept this Agreement and may not use the Services.
Many organizations, such as businesses, use forward earth’s Services. As we know how important it is to test a software, you can test the software without any cost for your company with limited functionality. Generally, if you are accessing or using the Service on behalf of an organization, then your organization is legally and financially responsible for your access to and use of the Service as well as for the use of your forward earth account by others affiliated with the organization, including any employees, agents or contractors. Further, if a Company Account is created by an administrative User that uses an Organization Email and such Company Account maintains an administrative User whose account uses an Organization Email, that organization may gain access to Account Information associated with such Company Account or may claim control and ownership of such Company Account.
Table of Contents
Definitions
“Affiliate” means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such entity, whether through the ownership of voting securities, by contract, or otherwise.
“Account Information” means information about your forward earth account and information that you and your Users provide to forward earth in connection with (1) the creation or administration of your forward earth account; or (2) forward earth’s maintenance of your account or the Services. For example, Account Information includes names, usernames, passwords, phone numbers, email addresses, Company Accounts metadata, support communications, billing information, and usage information associated with your forward earth account.
“Add-on” means enhanced features or services that are purchased separately and provide extra functionality or usage rights. Add-ons are Subscription-based and when purchased attached to the corresponding Subscription and Subscription Term.
Confidential Information” means information that either Party (“Discloser”) discloses to the other Party (“Recipient”) under this Agreement, and that is conspicuously marked, or orally, and if applicable, visually stated as confidential or would normally be considered confidential information by a reasonable Party under the circumstances. “Confidential Information” does not include information that Recipient can document: (1) is independently developed by Recipient; (2) is rightfully given to Recipient by a third Party without confidentiality obligations; or (3) becomes public through no fault of Recipient. forward earth’s Confidential Information includes non-public information regarding features, functionality, performance, and pricing of the Services, the Documentation, API(s), and other forward earth products or services.
“Documentation” means forward earth-provided user documentation relating to the Services (e.g. user guides) found in the “Services”, as may be updated by forward earth from time to time. Documentation does not include content published in user or community forums.
“Customer Data” means all data stored by or on behalf of Customer or at Customer’s direction in the Services. Customer Data does not include Account Information. forward earth sometimes refers to “User Content” in its policies and Documentation. To the extent User Content is stored in or transferred into a Customer Workspace, such User Content shall be considered Customer Data.
“Force Majeure Event” means any circumstances beyond forward earth’s reasonable control, including, but not limited to, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving forward earth’s employees), Internet service provider failure or delay, Non-forward earth Application failure, or acts undertaken by third Parties, including without limitation, any denial of service attack or third Party domain name system event.
“Intellectual Property Rights” means all patent rights (including utility models), copyrights, moral rights, trademark and service mark rights, trade secret rights, and any other similar proprietary or intellectual property rights (registered or unregistered) throughout the world, together with all applications for any of the foregoing.
“Non-forward earth Service(s)” means any third-Party service, connection, data, software, application, or integration that interoperates with the Service that is provided or made available by Customer or a third Party, including those provided through the Services or a third Party. Non-forward earth Services include embedded content where the Services may display a preview or link to the content, but does not store the content from the third Party service.
“Organization Email” means an email address provisioned by Customer.
“Order Form” means any ordering documentation or online sign-up or subscription pages, regardless of form, agreed to between the Parties which sets forth the Services accessed by the Customer and any relevant pricing. Multiple Order Forms may be entered into under this Agreement.
“Services” means forward earth’s online software-as-a-service platform and services including any related APIs provided by forward earth, together with all related mobile and desktop applications, and Add-ons to which you subscribe. “Services” exclude Non-forward earth Services.
“Subscription Fees” means all fees associated with your Subscription Plan.
“Subscription Plan” means the applicable subscription level of packaged functionality and services as detailed in the applicable Documentation.
“Subscription Term” means the period during which you have agreed to subscribe to a Service.
“Supplementary Terms” means additional terms and conditions that apply to your access and use of certain features or functionality when you purchase, use, or enable such features or functionality. For example, forward earth may present you with Supplementary Terms if you purchase or enable an Add-on.
“Usage Data” means information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including information concerning Customer’s and Users’ use of the various features and functionality of the Services and analytics and statistical data derived therefrom).
“User” means any individual who is authorized to access the Services by Customer. Each User must use a unique identity to access and use the Services, and may access the Services only to the extent accessed by Customer.
“Company account” means the separated sections of the Service where Users may submit, post or modify Customer Data.
General Terms and Conditions
1. Services.
1.1 Subscriptions and Subscription Terms. Customer and its Affiliates may subscribe to Services by executing an Order Form. Unless otherwise specified, all Order Forms shall be governed by this Agreement. In the event of a conflict between this Agreement and an Order Form, the Order Form shall prevail. forward earth grants access to the Services pursuant to Subscriptions. Subscriptions will be for the Subscription Term agreed to in the applicable Order Form. Unless otherwise provided for in an Order Form, each Order Form shall automatically renew for a period equal in duration to the then expiring Subscription Term unless either Party notifies the other in writing of its intent not to renew the applicable Order Form at least thirty (30) days prior to the end of the then-current Subscription Term.
1.2 Subscription Plans and Add-ons. forward earth will provide the Services to you according to the Subscription Plan to which you subscribe. Additional features and functionality may be made available in the form of Add-ons. If you subscribe to any Add-on, the Subscription Term for such Add-on shall be coterminous with your primary Subscription to the core forward earth Service.
1.3 Provision of the Services. The method and means of providing the Services shall be under the exclusive control, management, and supervision of forward earth. forward earth will comply with all laws applicable to forward earth’s role as a software-as-a-service provider. forward earth will use commercially reasonable efforts to make the Services available in accordance with the Service Level Agreements (SLA) in 1.11. forward earth may modify or update the Services from time to time in its sole discretion.
1.4 Access to the Services. Subject to Customer’s payment of all Subscription Fees and compliance with this Agreement, forward earth grants to Customer a worldwide, non-exclusive, non-transferable, non-sublicensable right during the Subscription Term of the applicable Order Form to use the Services in accordance with the applicable Subscription Plan and Documentation, and solely in connection with Customer’s internal business operations. Customer may allow its Users to use the Services for this purpose, and Customer is responsible for its Users compliance with this Agreement.
1.5 Support. Subject to payment of all Subscription Fees and compliance with this Agreement, We will provide technical support to you via electronic mail 24 hours a day, 7 days a week. You may initiate a help desk ticket by messaging in app, or any time by emailing support@forward-earth.com
1.6 Subcontractors. We may use subcontractors or other third Parties to perform our obligations under this Agreement. We will remain responsible for all such obligations.
1.7 forward earth app. The service includes the analysis of Scope 1 and 2 emissions according to the Greenhouse Gas Protocol (GHG Protocol), as well as selected Scope 3 emissions, depending on the selected subscription plan, according to the quality of the data provided by the customer. From the contract start date, the aforementioned emissions can be analyzed for the current year as well as for up to 5 years retrospectively. The information contained in the product description is to be understood as a performance description and not as guarantees. forward earth is entitled to provide further functionalities and performance improvements during the course of the service life.
forward earth offers an independent inventory analysis of harmful emissions based on the information provided by the customer on the platform. By entering their Customer Data, the Customer grants forward earth the right to process this data to calculate the emissions referred to in this section. In order to supplement customer data that may not be available, forward earth uses models that calculate emissions based on publicly available as well as own statistical data of comparable companies and sectors. The results of the analysis can be viewed by the customer via the user interface on the website.
1.8 forward earth API. We may offer an application programming interface that provides additional ways to access and use the Service (“API“). Such API is considered a part of the Service, and your use of the API is subject to the terms of this Agreement. We reserve the right at any time to modify or discontinue your access to the API (or any part of it) with or without notice. The API is subject to changes and modifications, and you are solely responsible to ensure that your use of the API is compatible with the current version.
1.9 Responsibility for Systems. Each Party shall retain sole responsibility for such Party’s information technology infrastructure, including computers, servers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by such Party or through the use of third-Party services.
1.10 Account Information. We may collect Account Information about your use of the Services and about Users that Users (or Customer): (i) provide to forward earth in connection with the creation or administration of their account; or (ii) generate in connection with their use of the Services. Customer acknowledges and agrees that certain Subscription Plans may require monitoring of Account Information during the Subscription Term in order to reconcile the number of Users and/or usage of the Services with Customer’s then-current Subscription and Subscription Plan.
1.11 forward earth SLA. During the Contract period, the forward earth shall provide the Customer with the SaaS Services with an availability of 99% (per calendar year). This means the availability of the SaaS Services at the handover point where the system interfaces with the internet.
1.12. Availability. Availability shall be calculated according to the following formula: Availability = (total time - total downtime) / (total time) * 100
1.13. Exclusion. The following times shall not be considered when calculating the total downtime:
A. Periods of unavailability due to scheduled maintenance work on the Platform.
B. Periods of unavailability due to essential unscheduled maintenance work required to eliminate faults; if possible, forward earth shall inform the Customer of this by means of a notice on the Website.
C. Periods of unavailability that are due to internet faults or other circumstances beyond forward earth’s control, in particular Force Majeure.
2. Use of the Services.
2.1 Use Restrictions. Except as expressly permitted in this Agreement, the Customer will not, and will not permit or authorize third Parties to: (1) license, sub-license, sell, transfer, distribute, share, rent, lease, or otherwise permit third Parties to use the Services or Documentation; (2) use the Services or Documentation to provide business process outsourcing services to third Parties (e.g., as a service bureau); (3) use the Services or Documentation in a way that would violate the applicable Subscription Plan, Documentation, or this Agreement; (4) circumvent or disable any security or other technological features of the Services; (5) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, know-how, or algorithms related to the Services (except to the extent this restriction is prohibited by applicable law); (6) modify, translate, or create derivative works based on the Services or Documentation; (7) remove any proprietary notices or labels from the Services; (8) use the Services in a manner that violates or attempts to circumvent applicable law; (9) use the Services in a manner that infringes any third Parties’ Intellectual Property Rights; (10) use the Services to transmit any content that is offensive, harassing, libelous, abusive, threatening, harmful, or otherwise objectionable; (11) upload or introduce to, or use the Services to distribute, any viruses or other malicious code, or to transmit large amounts of data in a way that would be expected to have a detrimental effect on the Services; (12) perform or attempt to perform any actions that would interfere with the proper working of the Services, prevent access to or use of the Services by forward earth’s other customers; (13) access or use the Services to develop or sell a competing product or service; (14) access or use the Services for purposes that are competitive with forward earth; When you use the Service’s domain management functionality, you agree that you are responsible for ensuring that your use complies with all applicable laws and any policies you maintain, including those involving employee privacy. If we reasonably suspect that you or your Customer Data are in violation of the foregoing, we may investigate that violation and suspend or terminate your access to the Services.
2.2 Authorized Users; Accounts; Customer Responsibilities. Customer is responsible for all actions and inactions by its Users or by any third Party that Customer or a User permits to access or use the Services, as if such action or inaction were an action or inaction of Customer. Customer is responsible for maintaining control over Customer’s account, including the confidentiality of any login credentials, and is responsible for all activities that occur on or through Customer’s account and its Users’ accounts. Customer will not, and will not permit Users to, share User account credentials, or use them in multiple locations at the same time. Each User must use a unique identity to access and use the Services, and may access the Services only to the extent purchased by Customer and in accordance with the applicable Subscription Plan. Customer will provide accurate, current and complete information required to enable its Users to access and use the Service and will maintain the accuracy of such information during the Subscription Term. Customer acknowledges that it is solely responsible for maintaining its configurations of the Services, including its sharing and permission settings.
3. Ownership of Intellectual Property; License Grant.
3.1 Customer Data. Customer and its licensors own the Customer Data, including all Intellectual Property Rights therein. No ownership rights in the Customer Data are transferred to forward earth by this Agreement. Customer hereby grants forward earth a worldwide, non-exclusive, irrevocable, royalty-free, fully-paid, sublicensable (to forward earth’s third-Party service providers) license to host, store, transfer, display, perform, reproduce, modify, create derivative works of, and distribute Customer Data in connection with its provision of the Services to Customer. At any time during the Subscription Term, Customer may export Customer Data from the Services using forward earth’s self-service export functionality in an industry-standard format then-supported by the Services and as specified in the applicable Documentation.
3.2 Ownership by forward earth. forward earth and its licensors retain all right, title, interest and ownership of the Services, Documentation, API, Usage Data, forward earth’s websites, and all deliverables created by forward earth and delivered to Customer, including all Intellectual Property Rights therein (the “forward earth IP”). No ownership rights in the forward earth IP are transferred to Customer by this Agreement. Customer does not have any rights in or to the forward earth IP except for the limited express rights granted in this Agreement.
A. Feedback. If Customer provides forward earth feedback, comments, or suggestions concerning the Services (collectively, “Feedback”), Customer hereby assigns to forward earth all right, title, and interest in and to the Feedback, and forward earth is free to use the Feedback without payment, attribution, or restriction.
B. Usage Data. forward earth may (i) collect, analyze and otherwise process Usage Data internally for its business purposes, including for the purposes of security and analytics, to improve and enhance the Services, or for other development, diagnostic and corrective purposes in connection with the Services or other forward earth products or services, and (ii) disclose Usage Data only in an aggregated and/or de-identified form in connection with its business in a manner that does not identify Customer or any of its Users.
4. Subscription Fees; Taxes.
4.1 Subscription Fees. The applicable Subscription Fees to your Subscription shall be as specified in the Order Form. Unless otherwise specified in an Order Form, the Subscription Fees applicable to any renewal Subscription Term shall be forward earth’s standard Subscription Fees for the applicable Subscription Plan in effect at the time such subsequent Subscription Term commences. Subscription Fees are due and payable upon the commencement of the applicable Subscription Term. Except in the case of uncured material breach of this Agreement by forward earth, all Subscriptions are non-cancelable and Subscription Fees are nonrefundable. Customer’s use of the Services are subject to the rights and limitations in the applicable Subscription Plan. Some features are provided pursuant to a usage based subscription model. You acknowledge and agree that if you exceed the usage permitted by your Subscription and Subscription Plan: (i) you may be required to upgrade your Subscription Plan or purchase additional usage to continue accessing and using such feature(s); and (ii) forward earth may disable or degrade performance of such features.
4.2 Downgrades Prohibited. You may not downgrade your Subscription Plan during any Subscription Term. If you desire to downgrade your Subscription Plan under any Subscription Plan for a subsequent Subscription Term, you must provide forward earth with sixty (60) days’ written notice prior to the end of your then current Subscription Term. Downgrading your Subscription Plan may cause loss of content, features, or capacity of the Service and forward earth is not responsible for such loss.
4.3 Invoicing and Payment. Unless specified otherwise in an Order Form, Subscription Fees shall be due and payable in full at the time of purchase. In the case of non-payment or delinquent payment of any Subscription Fees, forward earth may, at its sole discretion: (i) suspend Customer access to the Services; (ii) terminate this Agreement or the applicable Order Form; or, (iii) continue to provide the Services, for a period solely determined by forward earth, in anticipation of full and prompt payment by Customer. Any amount which is unpaid when due shall be subject to interest equal to the lower of 1.5% per month or the highest applicable legal rate. forward earth shall be entitled to reimbursement for any costs associated with the collection of any past-due balance.
4.4 Taxes. You are responsible for paying all other taxes assessed in connection with your Subscription. Unless otherwise stated with respect to terms and conditions for a specific Subscription, all stated prices are exclusive of any taxes, fees, and duties or other amounts, however designated, and including without limitation value added and withholding taxes that are levied or based upon such charges, or upon this Agreement. We will invoice you for such Taxes if we believe we have a legal obligation to do so unless you present an exemption certificate acceptable to the taxing authorities. You will not be liable for taxes imposed on forward earth based on forward earth’s income.
4.5 Domain Management. The Services include functionality whereby account administrators may manage Company Accounts that are associated with email addresses provisioned by their organization, including to claim control and ownership of Company Accounts where the Company Accounts is both (i) created by a User that is registered for forward earth with an email address provisioned by you; and (ii) where a User that is registered for forward earth with an email address provisioned by you is listed as an administrator. When your Account administrators claim such Company Accounts, you acknowledge that you assume all rights and obligations associated with that Company Account, including the obligation to pay Subscription Fees for any additional Users resulting from such claimed Company Account.
5. Warranties.
5.1 Mutual Warranties. Each Party represents and warrants to the other that: (1) this Agreement has been duly executed and delivered and constitutes a binding agreement enforceable against the executing Party in accordance with its terms; (2) no authorization or approval from any third Party is required in connection with the execution, delivery, or performance of this Agreement by the executing Party; and (3) the execution, delivery, and performance of this Agreement by the executing Party does not violate the terms of any other agreement to which it is a Party or by which it is otherwise bound.
5.2 forward earth guarantees that the forward earth platform complies with the product description and has been created with due care and expertise. Nevertheless, the complete exclusion of software errors is not possible with the current state of the art.
5.3 forward earth will correct errors in the forward earth platform that significantly impair the intended use.
5.4 forward earth also warrants that the customer can use the forward earth platform without infringing third-party rights.
5.5 The warranty does not apply to defects which are inherent in the software or hardware environment of the Licensee.
6. Confidentiality.
Each Party as Recipient will take reasonable precautions to protect Discloser’s Confidential Information, and will not use (except as expressly permitted in this Agreement) or divulge to any third Party any Confidential Information. Notwithstanding any provision of this Agreement, Recipient may disclose Discloser’s Confidential Information, in whole or in part (i) to its employees, officers, directors, consultants and professional advisers (e.g., attorneys, auditors, financial advisors, accountants and other professional representatives) who have a need to know and are legally bound to keep such Confidential Information confidential by confidentiality obligations, or, in the case of professional advisors, are bound by ethical duties, to keep such Confidential Information confidential consistent with the terms of this Agreement; and (ii) as required by law, in which case, to the extent permitted by applicable law, Recipient will (A) provide Discloser with prior written notification thereof, (B) provide Discloser with the opportunity to contest such disclosure, and (C) use its reasonable efforts to minimize such disclosure. Recipient is responsible and liable for its employees’ and representatives’ compliance with this Section 6, as if their actions or inactions were an action or inaction of Recipient. The foregoing will not apply with respect to any Confidential Information seven years after the disclosure thereof (or, with respect to trade secrets, once such Confidential Information no longer constitutes a trade secret under applicable law).
7. Privacy and Security.
(1) The customer is fully responsible for the content and data processed with the forward earth platform. The customer hereby undertakes to use the forward earth platform of forward earth only in accordance with the contract and within the framework of the applicable statutory regulations and not to violate the rights of third Parties when using it. The customer shall inform forward earth immediately, if possible, in writing, of (i) the misuse or suspicion of misuse of the contractually agreed service; (ii) a risk or suspicion of a risk to data protection or data security which arises in the course of providing the contractually agreed service; (iii) a risk or suspicion of a risk to the service provided by forward earth, e.g. through loss of access data or hacker attack.
(2) The customer undertakes not to process personal data via the forward earth platform. The processing of personal data of the customer's contact person by forward earth for the purposes of implementing this contract is based on Art. 6 Para. 1 S. 1 lit. b GDPR. For further details, reference is made to the forward earth data protection agreement, available at https://www.forward-earth.com/privacy-policy.
(3) Neither of the contracting Parties is entitled to pass on confidential information of the other contracting Party to third Parties without express consent (at least in text form). Subcontractors of forward earth who require access to the customer's information in order to provide the services are not considered "third Parties" in this sense. Such subcontractors, such as in particular Amazon Web Services and Google Ireland Ltd., have in turn obliged forward earth to maintain confidentiality. All information, whether written or verbally transmitted, which (i) by its nature is considered confidential or secret or (ii) which the contractual partner to whom the information is transmitted must already recognize as confidential or secret due to the external circumstances of the transmission. Confidential information includes in particular product descriptions and specifications as well as prices. Both contractual partners undertake to use confidential information only for contractually agreed purposes. Both contractual partners shall take at least the same precautionary measures as they take with regard to their own confidential information. Such precautionary measures must at least be appropriate to prevent disclosure to unauthorized third Parties. In addition, both contractual partners are obliged to prevent the unauthorized disclosure or use of confidential information by their customers, employees, subcontractors or legal representatives. The contracting Parties will inform each other in writing if there is any misuse of confidential information. Exempted from the above obligation is such information which (i) was already known to the other Party prior to its transmission and without an existing non-disclosure agreement, (ii) is transmitted by a third Party not subject to a comparable non-disclosure agreement, (iii) is otherwise publicly known, (iv) was developed independently and without use of the Confidential Information, (v) is released for publication in writing or (vi) must be transmitted due to a court or governmental order, provided that the Party affected by the transmission is informed in time to enable legal action to be taken. The obligation to confidentiality shall also apply beyond the duration of the contract until two years after the effective termination of the contract.
(4) forward earth points out that forward earth stores the customer's data for a period of 10 years from the date of the final report in order to be able to fulfil its contractual obligations. forward earth will not store data that does not serve to validate the results of the final report.
8. Indemnification.
8.1 Indemnification by forward earth. forward earth shall (i) defend or (at its option) settle, any claim brought against Customer by a third Party alleging that the Services as provided under this Agreement infringe any third Party Intellectual Property Right (a “Claim”) and (ii) indemnify Customer against damages and costs finally awarded against and payable by Customer in any such Claim. If the Services are held to infringe (or if forward earth reasonably believes the Services will be held to infringe) any third-Party Intellectual Property Rights, forward earth may, at its option and expense: (1) contest the claim, (2) modify the Services to make it non-infringing; (3) obtain a license that permits Customer to continue using the Services; or (4) replace the Services with non-infringing substitutes provided that such substitutes do not entail a material reduction in the overall functionality of the Service. If none of the foregoing are commercially reasonable, in forward earth’s discretion, forward earth may terminate this Agreement and issue to Customer a pro rata refund of Subscription Fees for Services not provided. This Section 8.1 states forward earth’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for the actual or alleged infringement of any third-Party Intellectual Property Rights arising from Customer’s use of the Services.
8.2 Exceptions. forward earth will have no liability to Customer under Section 8.1 to the extent a Claim arises out of (1) any breach of Customer’s obligations under this Agreement; (2) Customer’s continued use of the allegedly infringing portion of the Services after: (a) being notified thereof; or (b) being provided, at no additional charge, modifications that would have avoided the alleged infringement without materially reducing the overall functionality of the Service; (3) Customer’s use of the Services in combination with other products, services, data, or processes not recommended or provided by forward earth, where the alleged infringement would not have occurred in the absence of such use; (4) designs, requirements, or specifications required by or provided by Customer; (5) Customer’s use of the Services in breach of this Agreement, in violation of applicable law, or outside the scope of Customer’s Subscription Plan; (6) Customer’s failure to use the Services in accordance with the Documentation; (7) any modification of the Services not made or authorized in writing by forward earth, where the alleged infringement would not have occurred in the absence of such modification; or (8) Customer’s use of the Services where there has been no charges or fees, including where Customer is using Beta Services.
8.3 Indemnification by Customer. Customer will defend and indemnify forward earth from and against any losses, liabilities, damages, demands, suits, causes of action, judgments, costs or expenses (including court costs and reasonable attorneys' fees) arising out of or relating to (1) Customer’s use of the Service in a manner that infringes the Intellectual Property Rights of any third Party (excluding any claim for which forward earth is responsible under Sections 8.1 and 8.2); (2) violation of law or privacy rights attributable to Customer Data; (3) forward earth’s processing of Customer Data, except to the extent forward earth’s processing is in breach of this Agreement; and (4) any other claim relating to any Customer Data.
8.4 Indemnification Procedure. Each Party’s obligations under Section 8 shall be valid only if the Party requesting indemnification:
(a) gives notice to the indemnifying Party of any claim promptly upon becoming aware of the same;
(b) gives the indemnifying Party the sole control of the defense and settlement of any claim and does not at any time admit liability or otherwise settle or compromise or attempt to settle or compromise the said claim or action except upon the express instructions of the indemnifying Party; and
(c) provides to the indemnifying Party such assistance as it shall reasonably require in respect of the conduct of the said defense.
8.5 Settlement. Neither Party may settle a claim that results in liability or admission of liability by the indemnified Party without the indemnified Party’s written consent.
9. Limitation of Liability.
9.1 Exclusion of Damages. Neither forward earth nor its suppliers, officers, affiliates, representatives, contractors, or employees will be liable to Customer for any consequential, incidental, special, or exemplary damages arising out of or related to this agreement, including lost profits, loss of business, or loss of data, even if forward earth is apprised of the likelihood of such damages occurring.
9.2 Damages Cap. forward earth's total liability of all kinds arising out of or related to this agreement (including warranty claims), regardless of the forum and regardless of whether any action or claim is based on contract, tort, or otherwise, will not exceed the subscription fees paid by Customer to forward earth during the twelve (12) months immediately preceding the events giving rise to the claim. Multiple claims will not enlarge this limit.
9.3 Basis of the Bargain. Each provision of this agreement that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is to allocate the risks of this agreement between the parties. This allocation is reflected in the pricing offered by forward earth to Customer and is an essential element of the basis of the bargain between the parties. Each of these provisions is severable and independent of all other provisions of this agreement. The limitations in this Section 9 (Limitations of Liability) will apply notwithstanding the failure of the essential purpose of any limited remedy in this agreement.
9.4 Applicability. Some jurisdictions do not allow the exclusion or limitation of damages. This Section 9 (Limitations of Liability) will apply to Customer solely to the extent not prohibited by applicable law.
9.5. Calculations. The customer is responsible to provide complete and correct information for the calculation of CO2 emissions according to the data request formulated by forward earth. forward earth is not liable for incorrect results due to incomplete or incorrect information provided by the customer. In addition, forward earth is not liable for subsequent changes in the analysis result due to new methodological or scientific findings. forward earth's liability for damages resulting from an incorrect calculation result due to errors in forward earth's own models shall be limited to the agreed annual compensation of this Agreement.
10. Term and Termination.
10.1 Term of Agreement. This Agreement shall begin on the Effective Date and shall continue for so long as Customer maintains an active Subscription to the Services or the Agreement is otherwise terminated in accordance with the terms herein.
10.2 Effect of Termination. Termination of this Agreement will automatically terminate all active Order Forms, but termination of a single Order Form will not result in termination of this Agreement or any other Order Forms. Upon the termination of this Agreement, or an Order Form, all rights and licenses granted by forward earth to Customer under this Agreement or the applicable Order Form will terminate. Either Party’s termination of this Agreement is without prejudice to any other remedies it may have at law or in equity and does not relieve either Party of liability for breaches occurring prior to the effective date of termination. Neither Party will be liable to the other for damages arising solely as a result of terminating this Agreement in accordance with its terms.
10.3 Termination. This Agreement and any Order Form may be terminated by either Party upon notice if the other Party (i) breaches any material term of this Agreement and fails to remedy the breach within thirty (30) days after being given notice thereof, or (ii) ceases to function as a going concern or to conduct operations in the normal course of business, or (iii) has a petition filed by or against it under any bankruptcy or insolvency laws which petition has not been dismissed or set aside within sixty (60) days of filing. Termination is not an exclusive remedy for breach of this Agreement by either Party. Unless otherwise specified in this Agreement, all other remedies will be available to the non-breaching Party whether or not the non-breaching Party terminates this Agreement for breach by the other Party.
10.4 Post-Termination Obligations; Customer Data Retrieval. Upon any termination of this Agreement, forward earth will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days. After such period, forward earth may delete all Customer Data and forward earth will have no obligation to Customer to continue storing such Customer Data. If Customer terminates this Agreement for forward earth’s uncured material breach, forward earth will issue to Customer a pro rata refund of Subscription Fees for Services not provided. If this Agreement is terminated for any other reason, within ten (10) days after such termination, Customer will pay forward earth all remaining Subscription Fees owed through the end of the Subscription Term under any terminated Order Forms.
11. Beta Services; Free Trials.
11.1 Access. This Section describes the additional terms and conditions under which you may access and use certain features, technologies, and services made available to you by forward earth that are not yet generally available, including, but not limited to, any products, services, or features designated or labeled as “alpha,” “beta,” “early access,” “preview,” “pilot,” or similar designation (each, a “Beta Service”).
11.2 Beta Terms. You must comply with all terms related to any Beta Service that forward earth posts on its website or provides to you. forward earth may add or modify terms, including lowering or raising any usage limits, related to access to or use of any Beta Service at any time. Service Level Agreements do not apply to Beta Services.
11.3 Beta Feedback. You may provide forward earth with feedback relating to the Beta Services. forward earth will own and may use and evaluate all feedback for its own purposes.
11.4 Termination and Suspension of Beta. forward earth may suspend or terminate your access to or use of any Beta Service at any time. Your access to and use of each Beta Service will automatically terminate upon the release of a generally available version of the applicable Beta Service or upon notice of termination by forward earth.
11.5 Disclaimer. WITHOUT LIMITING ANY DISCLAIMERS IN THE AGREEMENT, BETA SERVICES ARE NOT READY FOR GENERAL COMMERCIAL RELEASE, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT, forward earth PROVIDES BETA SERVICES “AS IS.” forward earth MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE REGARDING BETA SERVICES, INCLUDING ANY WARRANTY THAT THE BETA SERVICES WILL BECOME GENERALLY AVAILABLE. EXCEPT TO THE EXTENT PROHIBITED BY LAW, forward earth DISCLAIMS ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
11.6 Free Trials. If you register for a free trial, we will make the Services available to you on a trial basis free of charge until the earlier of (a) the end of the free trial period; (b) the start date of any Subscription; or (c) termination of the trial by us. Free trials are for evaluation purposes only. We may terminate your free trial at any time in our sole discretion.
12. General.
12.1 Waiver. The waiver by either Party of a breach or default of any of the provisions of this Agreement by the other Party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either Party to exercise or avail itself of any right power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other Party.
12.2 Notices. All notices must be in writing and in the English language and will be deemed given only when sent by mail (return receipt requested), hand-delivered, or sent by documented overnight delivery service to the Party to whom the notice is directed. Notice to Customer shall be provided to the mailing address or email address you provide when registering your forward earth account and notice to forward earth shall be sent to forward earth GmbH, Lychener Str. 6, 10437 Berlin, Attn: Legal Department (or to such other address as to which the other Party has been notified). Despite any of the foregoing, notices of updates to license terms, terms of use, privacy terms or other terms related to the forward earth’ website and any product or service accessed via forward earth’ website may be delivered by forward earth posting such updates on its website or through in-product message.
12.3 Invalidity and Severability. If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of this Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect.
12.4 Assignment. Customer may not assign this Agreement without forward earth’s prior written consent, and any attempt to do so is void. Notwithstanding the foregoing, either Party may assign this Agreement to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets to which this Agreement relates; provided that, in Customer’s case, Customer will be required to complete forward earth’s assignment process. This Agreement is binding upon and inures to the benefit of the Parties’ permitted successors and assigns.
12.5 Headings. Headings to paragraphs or sections in this Agreement are for the purpose of information and identification only and shall not be construed as forming part of this Agreement.
12.6 Governing Law; Venue. The contractual relationship existing between the contracting Parties shall be governed exclusively by the law of the Federal Republic of Germany, expressly excluding the UN Convention on Contracts for the International Sale of Goods. The exclusive place of jurisdiction for all disputes arising from and/or in connection with this contractual relationship between forward earth and the customer is, as far as legally permissible, the registered office of forward earth.
12.7 Attorneys’ Fees. If any legal action or other proceeding is brought to enforce the provisions of this Agreement, the prevailing Party shall be entitled to recover reasonable attorney fees and other costs incurred in the action or proceeding, in addition to any other relief to which the prevailing Party may be entitled.
12.8 Injunctive Relief. If either Party breaches Sections 2 (Use of the Services) or 6 (Confidentiality), the other Party may suffer irreparable harm, and monetary damages may be inadequate to compensate the non-breaching Party. Accordingly, either Party may, in addition to any other remedies available, seek injunctive or other equitable relief in response to any such breach.
12.9 Independent Contractors. The Parties agree that each is an independent contractor and neither Party has the right or authority to assume or create any obligation or responsibility on behalf of the other Party.
12.10 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be considered an original, but all of which together will constitute one and the same instrument.
12.11 Amendments. We may amend this Agreement, including any Supplementary Terms, from time to time, in which case the new Agreement will supersede prior versions. Your continued use of the Services following the effective date of any such amendment may be relied upon by forward earth as your consent to any such amendment.
12.11 Survival. Sections 1-4, 5.1, 5.3, 5.4, 6, 7, 8.2-8.5, 9, 10, 11.5, 12, all associated definitions, and all accrued rights to payment shall survive after termination or expiration of this Agreement.
THIS AGREEMENT, INCLUDING ALL ATTACHMENTS, SCHEDULES, AND EXHIBITS, CONSTITUTES THE COMPLETE AND EXCLUSIVE UNDERSTANDING OF THE Parties, AND SUPERSEDES ALL PRIOR AND CONTEMPORANEOUS SALES PROPOSALS, NEGOTIATIONS AND AGREEMENTS, AND ALL OTHER REPRESENTATIONS OR COMMUNICATIONS, WHETHER ORAL OR WRITTEN, WITH RESPECT TO THE SUBJECT MATTER HEREOF. THIS AGREEMENT SHALL APPLY IN LIEU OF ANY TERMS AND CONDITIONS IN ANY VENDOR REGISTRATION FORM OR REGISTRATION PORTAL, PURCHASE ORDER OR OTHER ORDER DOCUMENT THAT YOU PROVIDE AND ALL SUCH TERMS ARE EXPRESSLY REJECTED AND SHALL NOT BE CONSIDERED AN AMENDMENT TO THIS AGREEMENT.
Updated: 2024/01/15
