Reforest the Future
Biodiversity. Forest restoration. People. Community. Together on social.
73-4485 Kahilihili Street, Kailua-Kona, HI 96740
Last Revised: September 30, 2024
Terraformation Inc. (“Terraformation” “us” or “we”) provides a seed-collecting mobile application known as Terraware and associated services (collectively, the “Software”). This End User License Agreement, together with the Privacy Policy (which is available at https://www.terraformation.com/privacy-policy), and any documents referenced herein or in our Privacy Policy (the terms of which are incorporated as if their full text were set forth hereunder), in each case as amended from time to time (collectively, this “Agreement”), sets forth the terms and conditions pursuant to which we will provide you, the individual or entity who is an end user of the Software, with access to and use of the Software.
ANY INDIVIDUAL AGREEING TO BE BOUND BY THIS AGREEMENT ON BEHALF OF AN ORGANIZATION OR OTHER LEGAL ENTITY REPRESENTS THAT SUCH INDIVIDUAL HAS THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT.
If you are an Organization (as defined hereunder), your use of and access to the Software may be subject to additional terms set forth in a project development agreement, addendum, and/or other agreement(s) mutually executed and effected by and between Terraformation and you (“Supplemental Terms”). If this Agreement is inconsistent with the Supplemental Terms, the Supplemental Terms shall control.
Acceptance. By downloading or installing the Software, clicking to accept this Agreement or by otherwise using or accessing the Software, you agree on behalf of yourself or, if applicable, your Organization (defined below) to be bound by this Agreement, effective as of the date of your agreement (the “Effective Date”). YOUR ACCESS TO, AND USE OF, THE SOFTWARE AND TERRAFORMATION’S OBLIGATIONS WITH RESPECT THERETO ARE EXPRESSLY CONDITIONED ON YOUR ACCEPTANCE OF THIS AGREEMENT, INCLUDING ARBITRATION ON AN INDIVIDUAL BASIS IN SECTION 24.
Changes. We may make changes to this Agreement, or any of our terms or practices, at any time with or without specific notice to you other than by our posting such changed or updated Agreement on this page. Any modifications that we make are effective as of the date stated in the modification, or if no such modification is stated, then immediately upon posting. The most recent date of revision of this Agreement is indicated at the top of this page. You are responsible for reading this Agreement whenever you access the Software so that you are aware of any modifications. From time to time, we may also notify you of changes or updates to the Agreement using other methods such as pop-up, push notifications, or e-mail. By continuing to use the Software after modifications have been posted, you are agreeing to abide by such amendments. If you do not agree to this Agreement, your only recourse is to immediately cease your use of the Software.
We also reserve the right to change, modify, or discontinue any features or portions of the Software without notice, on a temporary or permanent basis, and you agree that we will not be liable to you or to any third party for any such modification, suspension, or discontinuance.
License Grant. Subject to the terms and conditions of this Agreement, Terraformation hereby grants you a limited, non-sublicensable, revocable, non-exclusive and nontransferable license to download, install and use the Software on a smartphone, tablet or other mobile device that you own or control. All rights and licenses not expressly granted to you in this Agreement are reserved.
Contact. By creating an account for the Software, you authorize us to contact you about administrative, maintenance, and other e-mails related to the Software. If you do not wish to receive certain e-mails or notifications from us, you can follow the opt-out instructions included in our e-mails. Note that you will not be able to opt out of e-mails or notifications for important notices relating to maintenance or administration of the Software (such as notices regarding your account).
Restrictions On Use of The Software. You may use the Software solely for its intended purpose in accordance with this Agreement. You may not: (i) modify, disassemble, decompile or reverse engineer the Software, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Software to any third party to use the Software; (iii) modify, make derivative works based upon, or make any copies of the Software; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Software, features that prevent or restrict use or copying of any content accessible through the Software, or features that enforce limitations on use of the Software; (v) interfere with or disrupt the integrity or performance of the Software, (vi) attempt to gain unauthorized access to the Software or its related systems or networks, or (v) use the Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law, including by deleting the copyright and other proprietary rights notices on the Software.
Representations About You. You represent and warrant to us that you have the power and authority to enter into this Agreement. As a condition to using the Software, you further represent and warrant that: (a) you have read and understand this Agreement, (b) you are 18 years of age or older, (c) the information that you provide to us in connection with the Software will be current, true, accurate, supportable and complete, (d) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, (e) you are not listed on any U.S. Government list of prohibited or restricted parties, (f) you have all rights, permissions, and consents necessary to submit all Content, including personal information, to the Software and to grant to Terraformation the limited rights to process Content as set forth herein, (g) your use of the Software otherwise complies with this Agreement and with all applicable laws, including but not limited to privacy regulations such HIPAA, COPPA and FERPA, or in willful violation of any third party proprietary rights, including, without limitation, any rights of privacy or intellectual property rights.
Without limiting the foregoing, you agree that in conjunction with your use of the Software, you will maintain safe and appropriate contact with other people both on our Software and in the real world, and will not otherwise take any action that harms or risks harm to yourself or others in connection with your use of the Software. You will remain responsible for your safety and aware of your surroundings while using the Software. You will not trespass, or in any manner attempt to gain or gain access to any property or location where you do not have a right or permission to be, and will not otherwise engage, in any activity that may result in injury, death, property damage, nuisance, or liability of any kind in conjunction with your use of the Software.
Location-Based Features. The Software includes certain mapping and tracking features that use your location and route information to create a history of routes that you take while enabled. Those mapping features use your detailed location and route information to operate, and will only be enabled if you turn on those features during each login session. Use of these features is optional; however, if enabled, these features may not function properly or at all without collecting and utilizing this information from you. Your route history is associated with your account, and is retained and processed in accordance with the Privacy Policy.
The Organization. The Software is designed to help foresters and restoration organizations keep track of the tree and plant species that they collect. The “Organization” is the forestry or other restoration organization, which may be a non-governmental organization (NGO), for-profit company or other entity, that is using the Software.
Authorized Users. The Organization may allow its employees and agents (referred to as “Authorized Users'' in this Agreement) to use the Software on the Organization’s behalf.
Examples of Authorized Users include the Organization’s administrative users who have authority to manage and administer the Organization’s account (“Admins”) and the Organization’s field technicians and other Organization-affiliated personnel (“Basic Users”). Any breach by an Authorized User will be deemed to be a breach by the Organization.
You are solely responsible for maintaining the confidentiality of your account and password, and for all activities occurring under your account. You agree to let us know if you learn of any unauthorized access to your account. We are not responsible for any unauthorized access to your account and/or any consequences that come from your failure to keep your account information confidential.
It is your responsibility to make sure that the Software is compatible with your requirements (including, without limitation, business and system requirements). You are also responsible for ensuring (i) the accuracy, quality, legality, completeness, and integrity of the Content as well as the means by which you acquired that data; (ii) that the Content is current, accurate, and complete; and (iii) appropriate review, maintenance, and other processes for your hardware, network, internet connectivity, and software.
Cooperation. You agree to cooperate with Terraformation as may be reasonably required to enable the provision of the Software. Any Content (as defined below) which qualifies as “personal data" and/or “personal information” will be processed in accordance with our Privacy Policy.
You acknowledge and agree that we are not responsible for Content provided by you or by a third party, including the accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, and/or quality of such Content.
Notwithstanding the foregoing, we reserve the right, in our sole discretion, to refuse to post, to remove, and/or to change any Content you submit to or through the Software, and to restrict, suspend, or terminate your access to all or any part of the Software at any time and for any reason.
For example, we may suspend or terminate your access if we reasonably suspect that your use of the Software breaches this Agreement, or the information provided in connection with your account is false, inaccurate, not current, or incomplete.
We also reserve the right to take reasonable steps to ensure the security of the Software and your account as we deem advisable. Restriction, suspension, or termination may take place with or without prior notice to you.
If we terminate your access to the Software, you may not create or obtain a new account for the Software or otherwise access or use the Software without our permission.
Reservation of Rights. You acknowledge that the Software is licensed, not sold, to you. We reserve all rights in and to the Software and all related intellectual property not expressly granted under this Agreement. “Terraformation,” and all associated logos displayed within the Software are our trademarks (unless otherwise noted).
Without limiting the generality of the foregoing, subject to the limited rights granted hereunder, you acknowledge and agree that, as between you and Terraformation, all right, title and interest, including all copyright, trademark, patent, trade secret (including all modifications, improvements, upgrades, and derivative works thereof) and other intellectual property or proprietary rights, related to the Software belong exclusively to Terraformation.
Feedback. If you submit any comments, suggestions, or other feedback regarding the Software (“Feedback”), you agree that we will be free to use such Feedback for any purpose.
Limitations on Availability; Third Party Providers. The Software, or some aspects thereof, may not be available in all languages or in all countries. We make no representation that the Software is available or permitted in any particular location. Use of the Software is void where prohibited.
The Organization uses the Software at the Organization’s own initiative and is responsible for compliance with any applicable laws. We may also impose limits on the use or access to the Software as required by law. Further, the Organization acknowledges that elements of the platform that make the Software possible are provided by third parties.
Updates. You acknowledge that Terraformation may from time to time issue upgraded versions of the Software, and may automatically electronically upgrade the version of the Software that you are using on your mobile device. Our updates may include upgrades, bug fixes, patches, other error corrections, new features, and similar modifications and changes (collectively, "Updates").
Updates may also modify or delete in their entirety certain features and functionality. You consent to such automatic downloading of Updates on your mobile device, and agree that the terms and conditions of this Agreement will apply to all such Updates.
You acknowledge and agree that Terraformation has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Any third-party code that may be incorporated in the Software is covered by the applicable open source or third-party license, if any, authorizing use of such code. Using any version of the Software which does not include all relevant Updates made available to you may not be secure, may malfunction, or may function improperly.
Support, Maintenance and Updates. Please direct any support inquiries to our support team via this link:
https://www.terraformation.com/contact-us/terraware-support
Scheduled system maintenance shall take place from time to time, and during such time, the Software may be unavailable. Emergency maintenance may be required at other times in the event of system failure. We make no guarantees about uptime.
Third-Party Websites and Content. The Software may contain links to other websites (“Third-Party Websites”). Such Third-Party Websites are not investigated, monitored, or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Third-Party Websites accessed through the Software, including the content, accuracy, offensiveness, opinions, reliability, privacy practices, or other policies of or contained in the Third-Party Websites.
Inclusion of, linking to, or permitting the use or installation of any Third-Party Websites does not imply approval or endorsement thereof by us. If you decide to leave the Software and access or use the Third-Party Websites, you do so at your own risk, and you should be aware this Agreement will not govern such access or use.
Termination. This Agreement is effective until terminated by you or Terraformation. Your rights under this Agreement will terminate automatically if you fail to comply with any of its terms. Upon termination of this Agreement: (i) all license and other rights granted to you under this Agreement will terminate, and (ii) you must cease all use of the Software and destroy all copies of the Software. Even after your rights under this Agreement are terminated, all provisions of this Agreement which by their nature should survive, will survive, including, but not limited to, ownership provisions, warranty disclaimers, limitations of liability, and dispute resolution terms. All other rights and obligations shall be of no further force or effect.
Content and Data.
(a) Content. The Organization owns all right, title, and interest in and to any text, images, photos, audio or video files, and other forms of data or communication that are provided by or on behalf of the Organization or its Authorized Users in connection with their use of the Software (the “Content”).
To the fullest extent permissible under applicable law, the Organization grants to Terraformation a non-exclusive, worldwide, transferable, sublicensable, perpetual, royalty free license to use and prepare derivative works from the Content without the requirement of any permission from or payment to you or to any other person or entity, in connection with providing the Software to you (including, without limitation, to use, store, display, publish, reproduce, distribute, and modify your Content for purposes relating to the Software), and to track species for research and for other legitimate business purposes.
For example, Terraformation may use information about plants to track the growth rate and calculate the amount of carbon sequestered. Except for the foregoing license, and as otherwise specified herein, you retain all rights to the Content that you create and post to the Software.
You may delete your Content at any time, subject to the limitations specified in our Privacy Policy. You are solely responsible for the Content you submit, and assume all risks and liability related to it.
(b) Accuracy. Terraformation is under no obligation to review or screen the Content or other users’ Content. Terraformation has no responsibility or liability for the accuracy of any Content submitted to or transmitted through the Software by you or another user.
(c) Right to Retain. You must not rely on the Software for backup or storage of the Content. Terraformation may retain the Content even if you are no longer using the Software, but Terraformation is not required to give you copies of the Content.
Collection and Use of Your Information. You acknowledge that when you download, install, access, or use the Software, Terraformation may use automatic means (including, for example, cookies and web beacons) to collect information about your mobile device and about your use of the Software. You also may be required to provide certain information about yourself as a condition to downloading, installing, or using the Software or certain of its features or functionality.
All information we collect through or in connection with this Software is subject to our Privacy Policy. By downloading, installing, using, and providing information to or through this Software, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.
We use reasonable security measures that are designed to protect user data from loss, disclosure, misuse, and destruction. Please be aware, however, that no data security measures can guarantee that the Software is free of threats or other vulnerabilities. Terraformation will not be liable in any manner in the event of data loss, data corruption, or data destruction. You use the Software and transmit information to us at your own risk.
Software from Apple App Store. The following applies to if you download the Software from the Apple App Store (“Apple-Sourced Software”):
You acknowledge and agree that this Agreement is solely between you and Terraformation, not Apple, Inc. (“Apple”). Your right to access and to use the Software, as provided under the Agreement, is limited to a non-transferable license which permits you to use the Software on such Apple-branded products as you own or control, as permitted by the Usage Rules set forth in the Apple Media Software Agreement and Conditions (available at https://www.apple.com/legal/internet-services/itunes/, as amended from time to time); provided that the Software may also be accessed, acquired, and used by other accounts associated with your Apple account via such features and functions as Apple, at its sole discretion, may make available to you. In the event of any conflict between the Agreement and the Apple Media Software Agreement and Conditions, the Apple Media Software Agreement and Conditions will control with respect to your use of or access to the Software.
You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple-Sourced Software. In the event of any failure of the Apple-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Sourced Software to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by this Agreement and any law applicable to Terraformation as provider of the software.
You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the Apple-Sourced Software or your possession and/or use of the Apple-Sourced Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by this Agreement and any law applicable to Terraformation as provider of the software.
You acknowledge that, in the event of any third-party claim that the Apple-Sourced Software or your possession and use of that Apple-Sourced Software infringes that third party’s intellectual property rights, Terraformation, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement.
You and Terraformation acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement as relates to your license of the Apple-Sourced Software, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as relates to your license of the Apple-Sourced Software against you as a third-party beneficiary thereof.
Software from Google Play Store. The following applies to if you download the Software from the Google Play Store (“Google-Sourced Software”):
(i) you acknowledge that this Agreement is between you and Terraformation only, and not with Google, Inc. (“Google”); (ii) your use of Google-Sourced Software must comply with Google’s then-current Google Play Store Terms of Service; (iii) Google is only a provider of the Google Play Store where you obtained the Google-Sourced Software; (iv) if you download or purchase a copy of the Software using a Google account that is part of a “family group” (as such term is used in the Google Play Software), the license granted to you under the Agreement to access and to use the Software shall extend to all members of your family group, and each member of your family group who accesses and/or otherwise uses the Software shall be subject to the Agreement; (v) Google has no obligation or liability to you with respect to Google-Sourced Software or this Agreement; and (vi) you acknowledge and agree that Google is a third-party beneficiary to this Agreement as it relates to Terraformation’s Google-Sourced Software.
Terraformation shall have the right to access, monitor, use, or disclose certain personal information that is available to you, and/or provided by you, in your account, and the right to provide such personal information to its service providers, subcontractors, sub-processors, and other third parties in connection with its provision of the Software to you, subject to the terms of the Privacy Policy and applicable laws.
You consent to the access, monitoring, use and disclosure of your personal information by Terraformation and by Google, solely to the extent necessary to provide the Software, and subject to applicable laws.
Additionally, to the extent that personal information is submitted, posted, or displayed to or from any Google APIs by the Software, you consent to the use, hosting, storage, modification, communication, and publication of such personal information for the sole purpose of enabling Google to provide, secure, and improve the Google APIs (and the related service(s)) and only in accordance with the applicable Google privacy policies (available at https://policies.google.com/privacy).
If you provide personal information to the Software which relates to your Google account, the Software will only use such information to access your Google account with your authorization, and for the limited purposes that you have authorized; provided that Terraformation’s use of personal information relating to a Google account may be deemed to have been authorized based on applicable privacy settings in your Google account.
Disclaimer of Warranties. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE IS PROVIDED "AS IS" AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND WE HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT THERETO, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND OF NON INFRINGEMENT OF THIRD-PARTY RIGHTS. WE DO NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE, THAT THE FUNCTIONS CONTAINED IN OR THE SOFTWARE PERFORMED OR PROVIDED BY THE SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE THAT WE GIVE SHALL CREATE A WARRANTY. WITHOUT DEROGATING FROM THE ABOVE, WE DISCLAIM ANY REPRESENTATIONS OR WARRANTIES RELATING TO THE RELIABILITY, CREDIBILITY, ACCURACY OF THE MAPS, ROUTES, LOCATION DATA, OR OTHER GEOGRAPHICAL INFORMATION OR CONTENT PRESENTED OR DISPLAYED IN OR BY THE SOFTWARE. INFORMATION PROVIDED BY THE SOFTWARE WITH RESPECT TO THE FOREGOING MAY BE INACCURATE, INCOMPLETE OR OUTDATED, AND IS NOT INTENDED TO REPLACE THE INFORMATION PROVIDED ON THE ROAD, SUCH AS TRAVEL DIRECTION, TRAFFIC SIGNS, POLICE INSTRUCTIONS, AND OTHER SIMILAR INFORMATION OR DATA. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE SOLELY, EXCLUSIVELY, AND FULLY RESPONSIBLE FOR YOUR USE OF AND RELIANCE ON THE SOFTWARE IN ACCORDANCE WITH APPLICABLE LAWS, RULES, AND REGULATIONS, AND YOUR USE OF OR RELIANCE ON THE SOFTWARE IS MADE ENTIRELY AT YOUR OWN RISK.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY.
Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TERRAFORMATION (INCLUDING, WITHOUT LIMITATION, OUR EMPLOYEES, OFFICERS, REPRESENTATIVES, SERVICE PROVIDERS, SUPPLIERS, LICENSORS, OR AGENTS) WILL NOT BE LIABLE FOR ANY INCIDENTAL, EXEMPLARY, PUNITIVE, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OF OR INABILITY TO USE THE SOFTWARE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL TERRAFORMATION’S AGGREGATE LIABILITY TO CUSTOMER FOR DAMAGES SOFTWARE EXCEED THE LESSER OF $50 OR THE AMOUNT CUSTOMER PAID FOR THE SOFTWARE, IF ANY, IN THE SIX (6) MONTHS PRECEDING THE CLAIM. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY OR EXCLUSION OF CERTAIN DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU.
You acknowledge that this limitation of liability is an essential term between you and us with respect to our provision of the Software to you (including the Software and/or any Content, in whole or in part), and we would be unable to provide the Software to you without this limitation.
Indemnification. You agree to indemnify, hold harmless and, at our option, defend Terraformation (including our officers, directors, employees, and agents) from and against all damages, claims, demands, liabilities, losses, costs, and expenses, including reasonable attorney’s fees in connection with or arising out of your violation of this Agreement, your use of the Software, any Content created and/or otherwise provided by you, and/or your violation of any law or the rights of any person or entity. We reserve the right to assume the defense and control of any matter subject to indemnification by you, and you may not settle any matter subject to indemnification without our prior written consent. These obligations will survive any termination of your use of our Software.
Government Use. If Software is being acquired on behalf of the United States Government, then the following provision applies. The Software will be deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, reproduction, release, performance, display or disclosure of the Service and any accompanying documentation by the U.S. Government will be governed solely by this Agreement and is prohibited except to the extent expressly permitted by this Agreement.
Export and Other Restrictions. The Software originates in the United States, and is subject to United States export laws and regulations. The Software may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Software may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Software and the Service.
Reference. Terraformation may identify the Organization as a user of the Software, and may include the name, logo, and trademarks of the Organization on Terraformation’s website, promotional and sales literature, and lists of customers, for purposes of promoting or marketing the Software.
Upon the Organization’s written request, Terraformation will use commercially reasonable efforts to use the Organization’s name, logo, and trademarks in accordance with the Organization’s standard trademark usage guidelines, to the extent applicable.
Furthermore, the Organization shall use commercially reasonable efforts to cooperate with Terraformation to provide one or more of the following: testimonial quote, case study discussing the benefits, press release, or other sales or marketing materials reasonably requested by Terraformation.
In the event that Organization desires to withdraw its consent to such use, Organization may contact Terraformation using the contact information in this Agreement to request the removal of its name, logo, and trademarks.
Governing Law; Arbitration. This Agreement shall in all respects be governed by the laws of the State of California without reference to its principles of conflicts of laws, and without regard to the United Nations Convention on the Sale of Goods.
In the event of any dispute between the parties in connection with this Agreement, the parties agree to first attempt to mutually resolve the dispute informally and in good faith via negotiations. If such dispute has not been resolved after thirty (30) days, the parties agree to resolve any claim, dispute, or controversy arising out of or in connection with or relating to this Agreement, or the breach or alleged breach, by binding arbitration by JAMS, under the Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules or pursuant to JAMS' Streamlined Arbitration Rules and Procedures then in effect, except as provided herein.
The arbitration will be conducted in San Francisco, California, unless otherwise agreed. Each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator may include costs of arbitration, reasonable attorneys’ fees, and reasonable costs for expert and other witnesses. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Notices. Unless otherwise specifically indicated, any notices to Terraformation that are required or permitted under this Agreement should be directed to Terraformation at the following address:
Terraformation Inc.
1441 Kapiolani Boulevard, Suite 1114
PMB 15777
Honolulu, Hawaii 96814-4406
USA
We may give notice to you at the e-mail address associated with your account on the Software, using such other contact information as you may make available to us, or as otherwise specified herein. In the case of any notices that we are required to provide to you and to other users in relation to the Software, notice will also be deemed to have been received and properly served upon you immediately upon being posted within the Software.
General. Headings to this Agreement are for convenience only and will not be construed to limit or otherwise affect the terms of this Agreement. This Agreement, together with the Supplemental Terms (where applicable), constitutes the entire agreement between the parties and supersedes any prior or contemporaneous understandings, whether written or oral.
This Agreement, or the rights granted hereunder, may not be assigned, sold, leased, or otherwise transferred in whole or part by any party; except that Terraformation may assign this Agreement to its affiliate or in connection with a merger, reorganization, consolidation, amalgamation, sale of assets or similar transaction. No party is authorized to act on behalf of any other party, and none shall be considered the agent of another party.
This Agreement may be executed in any number of separate counterparts (including electronic counterparts), each of which when so executed shall be deemed an original, and all said counterparts taken together shall be deemed to constitute but one and the same instrument.
Upon the receipt of a written request from a party, each party shall execute such additional documents, instruments, estoppels, and assurances, and take such additional actions, as are reasonably necessary and desirable to carry out the terms and intent hereof.
The waiver of a breach of any provision of this Agreement is not a waiver of any other or subsequent breach. A party’s failure to exercise, or delay in exercising, any right or any power under this Agreement will not operate as a waiver of such right or power.
If any provision of this Agreement is found to be invalid or unenforceable for any reason, the remaining provisions will continue in full effect. Even after your rights under this Agreement are terminated, all provisions of this Agreement which by their nature should survive, will survive, including, but not limited to, ownership provisions, warranty disclaimers, and limitations of liability.