TERMS OF USE “CLIMAX”

Climax is an online software product (SaaS) that can be used to calculate companies' CO2e emissions through data analysis and is provided ‘as a service’ in accordance with these Terms of Use (‘ToU’). Please read these ToU carefully before you use our Platform.

  1. DEFINITIONS

  1. Account: private part of the Platform to which User has (exclusive) access.
  2. Agreement: the SaaS terms and conditions between Employer of User and Sparqing B.V., of which these ToU form part.  
  3. Climax or we or us: Sparqing B.V., having its office at Aert van Nesstraat 45 (3012 CA) in Rotterdam, The Netherlands, and registered with the Dutch Chamber of Commerce under number 80769519.
  4. Employer: the legal entity or natural person that is the customer of Climax and with whom the SaaS terms and conditions are concluded.
  5. User or you(rs): all individuals who create an account and who use the Platform, whether or not at the Employer’s request.
  6. ToU: these Terms of Use regardless of the form in which they are disclosed.
  7. Intellectual Property: patent, copyright, trademark, design and model rights and/or other (intellectual property) rights, including database rights and - whether patentable or not - technical and/or commercial know-how, methods and concepts.
  8. Platform: the landing page(s), Account(s) and further online environment including any links to Third Party Services as offered via www.climax.eco, app.climax.eco or in any other manner; the Platform does not include the Third Party Services.
  9. Services: the services provided by Climax to Employer, including (providing access to) the Platform.
  10. Third Party Services: third party services accessible via the Platform.

  1. PLATFORM

  1. You can only access and make use of our Platform when you, or your Employer have entered into an Agreement with us, in order to use our Services.
  2. These ToU apply to any Agreement and to any use of the Platform or any other Services of Climax.

  1. ACCOUNT AND PASSWORD

  1. You agree to provide us and, if applicable your Employer, with complete and accurate information necessary to create an Account and to provide you access to the Platform, and you agree to keep this information up-to-date.
  2. Access to the Platform will be granted by means of e-mail authentication. After verification you will be granted access without undue delay to our Platform.
  3. You agree to keep your login credentials confidential, whether chosen by you or allocated by us or your Employer, and to not disclose such information to any third party.
  4. You are responsible for any and all activities that occur under your Account. You shall immediately inform us of any (suspicion of) unauthorized access under your Account. You may be held responsible for any losses and damages incurred by us or any third party due to your own or someone else’s use of your Account.
  5. We reserve the right to delete your account and/or block the access to (certain parts of) our Platform at any time (temporarily) and without prior notice if we deem it necessary. We shall not be liable for any damages or costs arising out of or related to the reasonable suspension, deletion and/or limitation of your account or access to and use of the Platform.
  6. The access to and use of our Platform may depend (partly) on the Agreement we have concluded with your Employer. This means, inter alia, that you may be (temporarily) denied access to your Account in case of (any suspicion of) infringement or violation of the underlying Agreement by your Employer.

  1. INTELLECTUAL PROPERTY RIGHTS

  1. Climax hereby grants to User a limited, non-exclusive and non-transferable, non-sublicensable right, solely granted for internal business use and subject to the condition precedent of payment by Employer of all amounts owed by it under the Agreement, which right User hereby accepts, to use the Platform for its own organization and solely for the lawful and legitimate purposes for which the Platform is meant.
  2. Climax (and our licensors) own all rights, title, and interest (including, without limitation, patents, copyrights, database rights, trademarks, trade secrets, and all other industrial and intellectual property rights) in and to Platform and any end-user documentation made available to you by us.
  3. Climax reserves all rights not expressly granted to you in these ToU, and if applicable, the Agreement. We retain all title and interest in and to any and all existing and future intellectual property rights and all rights related to it.
  4. You (or your Employer) remain the owner of (all intellectual property rights relating to) the information made available by you in and for the use of the Platform. By making such information available via our Platform you grant us a worldwide, non-exclusive and royalty-free license to use, copy, distribute and disclose any such information for the provision of the Platform, including the right to:
  1. Store and display such information in your Account;
  2. Analyse this information in order to calculate (CO2e) emissions of you(r) Employer and to reformat, display, transfer and create derivative works for analyzing purposes;
  3. Share this information with others on your request.
  1. Whenever you make use of (a part of) the Platform which allows you to save, add, upload, link or share any information, you warrant and represent that you are legally entitled to make such use of the information and that such information does not violate any third party rights, in particular contractual, ownership, intellectual property and data protection rights and indemnify us against any third-party claims in this regard.
  2. In case of (any suspicion of) infringement or violation of any intellectual property rights or any other third party rights by you, we are entitled to (temporarily) suspend and/or disable your Account and the use of the Platform until clarity is obtained on the correctness of this (suspicion of) infringement or violation.

  1. DATA PROTECTION AND PRIVACY

  1. Insofar as we process your personal data and the personal data of others you may provide to us in connection with the performance of our Platform, you warrant that we (and our (sub-)processors) are entitled to process such personal data. We may process and view these data, but do not guarantee its authenticity, accuracy, completeness, compatibility, or quality.
  2. You indemnify us against any and all claims by any and all data subjects, and fines or penalty payments imposed on us by a supervisory or other governmental body, as a result of or related to a violation of this clause or breach of the GDPR or any other applicable laws and regulations concerning privacy and data protection by you.
  3. For more information on how we deal with the protection and processing of your personal data we refer you to our privacy statement available via https://climax.eco/privacy-policy.
  4. We reserve the right to monitor, review, retain and/or disclose any of your (personal) data, as necessary to satisfy any applicable law, regulation, legal process or any governmental request, as well as to disclose your identity to any person or third party stating that the information provided by you via our Platform, constitutes a violation of its rights.
  5. You acknowledge that we may use your (personal) data for developing, maintaining and improving our Platform, including activities related to products maintenance and troubleshooting (e.g. bug fixing) as well as product management and development (e.g. new features or versions), and for statistical and analytical purposes.

  1. NO RELIANCE ON INFORMATION

  1. Although we make reasonable efforts to update the information within our Platform on a regular basis, we make no representations, warranties or guarantees, whether express or implied, that the information will be accurate, complete and up-to-date.
  2. Our Platform may contain information, including personal data, and links to other websites and resources, provided by other users or third parties. We have no control over websites, resources or information uploaded by users or originating from third parties and assume no responsibility or liability for such information.

  1. AVAILABILITY

  1. Although we will make all reasonable efforts in this respect, we do not warrant that:
  1. the Platform will always be, accessible and available, or will work error-free and uninterrupted at all times;
  2. all information provided by Climax, including all information in the Platform and end-user documentation, will be accurate, complete or up-to-date;
  3. data transmission will be correct and undamaged at all times, this includes the import and export of data;
  4. the quality of any Service, documentation, data, or any other information obtained through the use of our Platform, will meet your expectations or are fit for any particular purpose; and
  5. all errors that may occur in our Platform will be fixed.
  1. We reserve the right to revise, modify, discontinue or change any facet of our Platform at any time without providing prior notification to you.
  2. Without prior notice to you, we are entitled to (temporarily) suspend the use of the Platform or to restrict the use, to the extent that this is necessary for reasonably required immediate maintenance or for necessary immediate adjustments or improvements to the Platform (e.g. in the event of a security breach).

 

  1. USER RESTRICTIONS

  1. You are responsible for the acquirement and maintenance of the equipment necessary to access and use the Platform, including hardware and internet connections.
  2. You are responsible for any use - including unauthorised use - of the Platform, and will act and behave in accordance with what may be expected of a responsible and careful Internet user. Therefore, when accessing or using the Platform, you agree not to - or permit any other person or third party to - or attempt to:
  1. modify, translate, adapt, arrange or create derivative works of the Platform, end-user documentation or any parts thereof;
  2. decompile, disassemble or reverse engineer, or otherwise attempt to derive the source code, algorithms, methods, or techniques or any part thereof of the Platform;
  3. remove, change or obscure any copyright, trademark or patent notices that appear within the Platform and any end-user documentation made available to you by us;
  4. interfere with, damage, or disrupt the normal operation or any security-related features of the Platform;
  5. gain unauthorized access to, or restrict or inhibit use by other users of the Platform;
  6. pose a security risk to the Platform or any users;
  7. use the  Platform, or any feature thereof in a way that could or will violate any law or the rights of any person or third party or expose us to legal liability;
  8. copy and/or use trademarks, domain names, trade names, logos or any other information protected by (intellectual property) rights of others, unless you have been given prior explicit consent to do so;
  9. upload, or publish in any other way, materials which you are not allowed to make public by applicable laws or which violate applicable laws, including but not limited uploading and sharing of (personal) information that belongs to another person or third party without that person’s or third party’s permission; and
  10. provide us with information, enter or share information via our Platform, that you know is false, fraudulent, deceptive, inaccurate, misleading or that misrepresents your identity.

  1. CONFIDENTIALITY

  1. You and we mutually undertake to keep confidential all information and data of which the parties become aware in the execution of the Agreement and ToU, including company data, customer data, purchase and sales data. The parties undertake not to disclose such information and data to third parties other than necessary for the performance of the Agreement and ToU without the written consent of the other party, unless applicable mandatory regulations require either party to disclose the information.

  1. LIABILITY AND INDEMNIFICATION

  1. The Application and the Platform are provided "as-is" and “as-available”, to the maximum extent permitted by applicable law. We make no warranties or representations, express or implied, as to any matter, including without limitation non-infringement of third party rights, non-infringement to use data or any other data, merchantability, integration, or fitness for any particular purpose, or that our Platform will meet your requirements or will function properly when used in conjunction with other software or hardware. Furthermore we make no warranties for any third party services or software which may be used to provide access to and use of the Platform.
  2. We are only liable for any damages or costs arising out or resulting from the intent or wilful recklessness (‘opzet of bewuste roekeloosheid’) of our management.
  3. We shall not be liable for any direct, indirect or consequential damages, whether in contract, tort, or otherwise, arising out or related to the access or use of our Platform. This includes, without limitation, loss of profits, revenue, business, goodwill, (personal) data, or costs to prevent, mitigate or determine such damages.
  4. If and insofar as for any reason we would nevertheless be liable for any costs or damage suffered by you, our total liability is limited to EUR 100,- (one hundred euro’s) per year.
  5. You agree to defend, indemnify and hold us harmless from any demands, claims, damages, liabilities, expenses or harms, including attorney’s fees, of any third party arising out or resulting from:
  1. your use of the Platform in violation of these ToU
  2. any information or other material uploaded or transmitted via your Account, smartphone or other device that infringes, violates, or misappropriates the rights of any person or third party (including any intellectual property rights or privacy rights), and  
  3. the violation of any mandatory law or regulation which applies directly to you.
  1. You shall make all reasonable efforts to aid us in defending ourselves against any claims and/or lawsuits, and provide us upon first request without undue delay, with all relevant information that may be necessary to defend ourselves against and/or settle such claims and/or lawsuits. 

  1. TERMINATION

  1. You may terminate your contractual relationship with us at any time by stopping your use of our Platform and waiving your right to access and use our Application by deleting your account. You can request the deletion of your account by contacting Climax.
  2. If and when you have deleted your account, all data in and related to your account will remain at least stored for as long as the Agreement with your Employer lasts.
  3. The access to and possibility to make use of our Platform will end when the Agreement between us and your Employer ends, for whatever reason.
  4. We may at any time at our own discretion terminate our contractual relationship with you, including without limitation, in the event you breach any provision of these ToU. In the event of such a termination, you shall destroy all copies and components of the Platform, remove the Platform from your devices and stop using the Platform.

  1. GOVERNING LAW AND COMPETENT COURT

  1. These ToU are construed in accordance with and shall be exclusively governed by the laws of the Netherlands.
  2. Any and all disputes between us that may arise under or in connection with these ToU shall be exclusively referred to the competent court in Rotterdam, the Netherlands unless mandatory law designates another court.

  1. MISCELLANEOUS

  1. If any portion of these ToU is found to be invalid, unenforceable or non-binding, the remaining portion will remain in force and full effect.
  2. Obligations that are by their nature intended to continue after the end of the Agreement and ToU, such as intellectual property, confidentiality, warranties, liability and indemnification, shall continue to exist after the ending of the Agreement and ToU for any reason whatsoever.
  3. We may assign our obligations under these ToU to a third parties, provided that such third parties shall perform all obligations and observe all rights under these ToU.

Version 2023-11-28