These Terms and Conditions (“Terms”) supplement and govern the Marketplace Services Agreement (“Agreement”) between the Parties. Capitalized terms used but not defined in these Terms shall have the meaning designated elsewhere in the operative Agreement.
1. Partner Account
Patch will provide Partner with access to an account (“Account”) through which Partner may log in and interact with the Marketplace Services. Partner agrees that it shall be responsible at all times for access to and use of the Marketplace Services under its Account. Partner will not allow any access to or use of the Account by anyone other than Partner’s authorized users. Partner shall notify Patch immediately of any unauthorized use of any password or Account or any other known or suspected breach of security related to the Marketplace Services.
2. Intellectual Property
A. Patch Intellectual Property. As between Patch and Partner, Patch is the sole owner of and will retain ownership of all right, title, and interest in: the Marketplace Services, the underlying software, algorithms, interfaces, technology, databases, tools, know-how, processes, and methods used to provide or deliver the Marketplace Services, documentation, aggregate data related to the Marketplace Services, all improvements, modifications, or enhancements to (or derivative works of) the foregoing (regardless of inventorship or authorship), and all Intellectual Property Rights in and to any of the foregoing (“Patch IP”).
B. License Grant to Partner. Without limiting the foregoing, and subject to the terms and conditions of the Agreement, Patch hereby grants to Partner a limited, non-exclusive, non-transferable, non-assignable license to use the Marketplace Services, during the Term of the Agreement and in accordance with the terms of the Agreement, solely for Partner’s own business purposes, and not for any purpose which competes with Patch’s provision of the Marketplace Services. Except as expressly authorized in the Agreement, Partner may not copy or modify the Marketplace Services, in whole or in part. Partner acknowledge that the Marketplace Services constitute and contain trade secrets of Patch and its licensors, and, in order to protect such trade secrets and other interests that Patch may have in the Marketplace Services, Partner agrees not to disassemble, decompile, or reverse engineer the Marketplace Services nor permit any third party to do so, except to the extent such restrictions are prohibited by law.
C. Reservation of Rights. Subject to the limited rights expressly granted hereunder, Patch reserves and, as between the Parties, will solely own, the Patch IP and all right, title, and interest in and to the Patch IP. All Intellectual Property Rights created in any Patch IP will vest solely in Patch upon creation, and to the extent that sole ownership does not originally vest in Patch, such Intellectual Property Rights are hereby automatically and irrevocably assigned by Partner to Patch. No rights are granted to Partner hereunder (whether by implication, estoppel, exhaustion, or otherwise) other than as expressly set forth herein.
D. Partner Intellectual Property. As between Partner and Patch, Partner is the sole owner of and will retain ownership of all right, title, and interest in all software, algorithms, interfaces, technology, databases, tools, know-how, methods, documentation, and data developed, created, or acquired by Partner independent of the Agreement and its use of the Marketplace Services, and all Intellectual Property Rights in and to any of the foregoing (“Partner IP”). No rights are granted to Patch hereunder (whether by implication, estoppel, exhaustion, or otherwise) other than as expressly set forth herein.
E. General Intellectual Property Compliance. The materials displayed, performed, or available on or through the Marketplace Services, including, but not limited to, text, graphics, data, articles, photos, images, illustrations, and so forth (all of the foregoing, the “Content”) are protected by copyright and/or other intellectual property laws. Partner promises to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content Partner accesses through the Marketplace Services, and Partner will not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell, or otherwise exploit for any purpose any Content not owned by Partner without the prior consent of the owner of that Content.
F. Partner Content and Marks. In connection with Partner’s use of the Marketplace Services, Partner agrees to provide Patch with multimedia assets, project names and information, marketing copy and images, logos, and any other such materials reasonably requested by Patch as needed to fulfill its obligations and exercise its rights under the Agreement (the “Partner Marks”). For that purpose, Partner hereby grants Patch, during the Term of the Agreement, a perpetual, limited, royalty-free, fully paid-up, sub-licensable license to use the Partner Marks in the course of Patch’s performance under the Agreement.
4. Representations and Warranties
The Parties make the following representations and warranties:
A. Good Standing. Each Party represents and warrants that it is duly organized, validly existing, and in good standing under the laws of the jurisdiction of its organization or incorporation and is qualified to enter into the Agreement.
B. Authority. Each Party represents and warrants that it has all necessary power and authority to execute, deliver, and perform its obligations hereunder.
C. No Conflict. Each Party represents and warrants that its execution, delivery, and performance of the Agreement (i) has been duly authorized by all necessary action, (ii) does not violate any of the terms or conditions of its governing documents, or any applicable law currently in effect having applicability to the Party.
D. Binding Agreement. Each Party represents and warrants that the Agreement has been validly executed and delivered on behalf of the Party and constitutes the legal, valid, and binding obligation of the Party and is enforceable against the Party according to its terms.
E. Ability to Perform. Each Party represents and warrants that there is no pending or threatened Action that could reasonably be expected to have a material adverse effect on the Party's ability to perform its obligations under the Agreement. “Action” means any claim, demand, litigation, court action or proceeding, lawsuit, investigation, originating application to binding arbitration.
F. Accuracy of Information. Each Party represents and warrants that all data and information, including any Inventory Information, provided by itself to the other Party pursuant to the Agreement shall be accurate and truthful in all material respects and of a quality reasonably sufficient to be utilized for the purposes for which the receiving Party is requesting such data or information.
G. Credits, Free and Clear. Partner represents and warrants that all Credits Fulfilled under this Agreement shall be free and clear of all liens, security interests, claims, encumbrances, or any other interest in or to them by any person or third party and that such Credits have not been used by Partner or any third party for offsetting purposes.
5. Restrictions and Prohibitions
Partner represents, warrants, and agrees that Partner will not use the Marketplace Services or interact with the Marketplace Services in a manner that: infringes or violates the intellectual property rights or any other rights of Patch or any third party; violates any law or regulation, including any applicable export control laws; is fraudulent, deceptive, threatening, harassing, or defamatory; jeopardizes the security of Partner’s Patch account or anyone else’s (such as allowing someone else to log in to the Marketplace Services other than authorized users); attempts, in any manner, to obtain the password, account, or other security information from any third party; violates the security of any computer network, or cracks any passwords or security encryption codes; runs Maillist, Listserv, any form of auto-responder or “spam” on the Marketplace Services, or any processes that run or are activated while Partner is not logged into the Marketplace Services, or that otherwise interfere with the proper working of the Marketplace Services (including by placing an unreasonable load on the Marketplace Services’ infrastructure); “crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the Marketplace Services (through use of manual or automated means); decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Marketplace Services. Notwithstanding anything to the contrary in the Agreement, a violation of any of the foregoing shall constitute a material breach of the Agreement.
6. Marketing and Communication
During the Term, each party may use the name and logo of the other Party to promote the existence of the partnership contemplated by the Agreement (though not including contractual or commercial aspects of the Agreement), provided that any such use shall fully comply with guidelines provided to the using Party by the other. For that limited purpose, each Party hereby grants to the other Party, during the Term of the Agreement, a limited, royalty-free, fully paid-up license to use their name and logo. Further use of each Party’s name and logo, etc. by the other Party must be separately discussed and agreed upon in writing by the Parties.
7. Term, Termination, Survival
A. Term. The Initial Term, Successive Terms, and Term are as defined and agreed between the parties in the Agreement.
B. Termination Without Cause. Partner may terminate the Agreement with or without cause, at any time upon sixty (60) days’ prior written notice to Patch. Partner may terminate the Agreement without cause, if and when there are no Credits remaining outstanding to be Fulfilled and no Allocated Inventory remain for sale on the Marketplace Services, by written notice to Patch.
C. Termination for Cause. Either Party may terminate the Agreement immediately upon the occurrence of an Event of Default upon written notice of such Event of Default.
D. Event of Default. If any of the following events occur, then an "Event of Default" shall exist and the non-defaulting Party shall be entitled to terminate the Agreement immediately and exercise the remedies set out in the Agreement:
- A Party fails to make, when due, any payment required pursuant to the Agreement (other than amounts disputed in good faith), and such failure is not remedied within thirty (30) business days after written notice of such failure from the other Party;
- A Party is in material breach of its obligations under the Agreement and such breach and is not corrected or cured within thirty (30) days after written notice is received;
- A Party's representation or warranty made in the Agreement proves to have been false in any material respect when made and is not corrected or cured within thirty (30) days after written notice is received;
- A Party files a petition or otherwise commences, or authorizes the commencement of, a proceeding or cause under any bankruptcy, insolvency, receivership, or similar law for the protection of creditors, or, has such a petition filed or proceeding commenced against it, or otherwise admits in writing that it cannot make payments when due and owing; or
- With respect to Partner, Partner is involved in material Action as a defendant arising out of or related to its Fulfillment or non-Fulfillment of Partner’s credits.
E. Effect of Termination. In all events of termination, Partner’s license to the Marketplace Services shall expire and technical access to the Marketplace Services will be revoked. Further provisions relevant to the effect of termination are contained within the Agreement executed by the Parties.
F. Survival. The rights and obligations contained in the following sections of these Terms will survive any termination or expiration of the Agreement: Sections 2A, 2C, 2D (within "Intellectual Property"); Section 3D (within "Access to the Partner API"); Section 4 ("Representations and Warranties"); Section 5 ("Restrictions and Prohibitions"); Section 7E and 7F (within "Term, Termination, Survival"); Section 8C (with "Support and Service Levels"); Section 9 ("Personal Data"); Section 11 ("Confidential Information"); Section 12 ("Disclaimer of Warranties"); Section 13 ("Limitation of Liability"); Section 14 ("Indemnification"); Section 16 ("Dispute Resolution"); and any other provisions which, by their nature, are intended to survive termination.
8. Support and Service Levels
A. Support. Patch will be available to provide technical support to Partner by email (or other method agreed upon by the Parties) in connection with its use of the Marketplace Services on weekdays during the hours of 1:00 a.m. to 5:00 p.m. Pacific Time, with the exception of U.S. federal holidays (“Support Hours”), subject to the following conditions: (i) prior to initiating any support request, Partner (and its own personnel responsible for information technology support) will have first attempted to resolve the issue generating the need for such support; and (ii) Partner will reasonably cooperate with Patch support staff as needed to resolve the issue.
B. Service Levels. Patch will undertake all reasonable efforts to make the Marketplace Services available during the Term of the Agreement, twenty-four hours a day, seven days a week, except for excused downtime, which, for purposes of the Agreement, means (i) planned downtime of the Marketplace Services (with reasonable advance notice to Partner); (ii) emergency downtime of the Marketplace Services; and (iii) any unavailability of the Marketplace Services caused by circumstances beyond Patch’s reasonable control.
C. Feedback. Notwithstanding anything that Partner may note or state in connection with providing Feedback, all Feedback provided by Partner shall be received and treated by Patch on a non-confidential and unrestricted basis. Partner hereby grants Patch a perpetual, irrevocable, royalty-free, and fully-paid up license to use and exploit all Feedback in connection with Patch’s business purposes, including, without limitation, the testing, development, maintenance and improvement of the Marketplace Services.
9. Personal Data
“Personal Data” means information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household, including, but not limited to: (a) a first or last name; (b) geolocation information sufficient to identify a street name and name of city or town; (c) an email address or other online contact information, (d) a telephone number; (e) an IP address, user ID, or other persistent identifier that can be used to recognize a user over time and across different devices, websites, or online services; or (f) any information that otherwise is regarded as personal data or personal information under applicable laws and regulations. Patch hereby acknowledges and agrees that, as between Partner and Patch, Partner is and shall remain owner and controller of all Personal Data that Partner directly provides to Patch in connection with the Agreement (“Partner Personal Data”). Patch acknowledges and agrees that it shall act solely as a service provider to Partner, with respect to any Partner Personal Data, and that Patch has no independent rights to use Partner Personal Data for any purposes other than making general improvements to the Marketplace Services and providing the Marketplace Services to Partner. Notwithstanding any of the foregoing provisions of this section, Partner acknowledges and agrees that Patch may retain, use, and disclose Partner Personal Data in order to: (a) comply with applicable laws; (b) comply with a civil, criminal, or regulatory inquiry, investigation, subpoena, or summons by federal, state, or local authorities; (c) cooperate with law enforcement agencies concerning conduct or activity that Partner, Patch, or a third party reasonably believes may violate federal, state, or local law; (d) exercise or defend legal claims; (e) and create aggregated or otherwise de-identified datasets for Patch’s use.
10. Restricted Persons and Entities
Partner represents and warrants that neither Partner, any Partner subsidiaries, nor any of its officers, directors or employees, nor any agents or other third-party representatives acting on behalf of Partner or it subsidiaries or affiliates, is currently, or has been since Partner’s or the relevant subsidiary’s inception, subject to U.S. or other applicable sanctions or trade control restrictions, including those imposed by the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) and the U.S. Department of Commerce’s Bureau of Industry and Security (BIS) (collectively, “Restricted Persons). Restricted Persons include, but are not limited to: (i) persons on the List of Specially Designated Nationals or other applicable sanctions or export control lists; (ii) persons organized, resident, or located in an Embargoed Country (presently including Cuba, Iran, North Korea, Syria and the Crimea region, the Donetsk People’s Republic (“DNR”) and Luhansk People’s Republic (“LNR”) of Ukraine); (iii) persons otherwise subject to blocking or asset freeze sanctions; and (iv) persons ultimately owned, 50 percent or more, directly or indirectly or otherwise controlled by the foregoing. In connection with the Agreement, Partner shall comply with all applicable economic sanctions, export control, and anti-corruption laws, rules, and regulations, including, but not limited to, the U.S. Export Administration Regulations, the regulations administered by the Office of Foreign Assets Control, and the U.S. Foreign Corrupt Practices Act.
11. Confidential Information
Each Party agrees that during and after the Term of the Agreement it will not use or permit the use of the other Party’s Confidential Information in any manner or for any purpose not expressly set forth in the Agreement, will hold such Confidential Information in confidence and protect it from unauthorized use and disclosure, and will not disclose such Confidential Information to any Third Parties, other than its employees, contractors, and agents on a need-to-know basis who entered into a binding written agreement or are otherwise under obligations of confidentiality that are no less restrictive than the Agreement. “Confidential Information” as used in the Agreement shall mean all information disclosed by one Party (“Disclosing Party”) to the other Party (“Recipient”), whether during or before the Term of the Agreement, that is not generally known in the Recipient’s trade or industry and shall include, without limitation: (a) concepts and ideas relating to the development and distribution of content in any medium or to the current, future and proposed products or services of the Disclosing Party or its subsidiaries or affiliates; (b) trade secrets, drawings, inventions, know-how, software programs, and software source documents; (c) information regarding plans for research, development, new service offerings or products, marketing and selling, business plans, business forecasts, budgets and unpublished financial statements, licenses and distribution arrangements, prices and costs, suppliers and customers; (d) existence of any business discussions, negotiations or agreements, including the Agreement, between the Parties; and (e) any information regarding the skills and compensation of employees, contractors or other agents of the Disclosing Party or its subsidiaries or affiliates. Confidential Information also includes proprietary or confidential information of any third party who may disclose such information to Patch or Partner in the course of the Disclosing Party’s business. Confidential Information does not include information that (x) is or becomes a part of the public domain through no act or omission of Recipient, (y) is disclosed to Recipient by a third party without restrictions on disclosure, or (z) was in Recipient’s lawful possession prior to the disclosure and was not obtained by Recipient either directly or indirectly from the Disclosing Party. In addition, this section will not be construed to prohibit disclosure of Confidential Information to the extent that such disclosure is required by law or valid order of a court or other governmental authority; provided, however, that Recipient shall first have given written notice to the Disclosing Party and shall have made a reasonable effort to obtain a protective order requiring that the Confidential Information so disclosed be used only for the purposes for which the order was Issued. All Confidential Information furnished to Recipient by the Disclosing Party is the sole and exclusive property of the Disclosing Party or its suppliers or customers. Upon request by the Disclosing Party, Recipient agrees to promptly return to the Disclosing Party or destroy all original and any copies of the Confidential Information in its possession; provided, however, that Recipient may retain copies of all Confidential Information that are stored on Recipient’s disaster recovery systems until the ordinary course of deletion thereof. Recipient shall continue to be bound by the terms and conditions of this section with respect to such retained Confidential Information.
12. Disclaimer of Warranties
Except as expressly set forth herein, the Marketplace Services and any other products or services related thereto are provided “AS IS” and as available. To the maximum extent permitted by applicable law, Patch and its licensors disclaim any and all warranties, written or oral, express or implied, including but not limited to the implied warranties of title, merchantability, and fitness for a particular purpose. No employee, agent, representative or affiliate of Patch has authority to bind Patch to any oral representations or warranty concerning the Marketplace Services. Any written representation or warranty not expressly contained in the Agreement is not authorized and is unenforceable.
13. Limitation of Liability
To the fullest extent allowed by applicable law, under no circumstances and under no legal theory (including, without limitation, tort, contract, strict liability, or otherwise) shall either Party (or its licensors, partners, affiliates, agents directors, officers, or employees) be liable to the other Party or to any other person for (i) any indirect, special, incidental, or consequential damages of any kind, including damages for lost profits, loss of goodwill, loss of anticipated savings, loss of use or corruption of software, data or information, work stoppage, accuracy of results, or computer failure or malfunction, or (ii) any matter beyond the reasonable control of the Party, or (iii) any amount in excess of $10,000. The Parties hereby acknowledge and agree that the limitations of liability in this section are an essential part of the basis of the bargain between the Parties and will apply even if the remedies available hereunder are found to fail their essential purpose. The limitation of liability contained in this section shall not apply to liability arising from a Party’s willful misconduct, breach of its confidentiality obligations, nor shall it apply to a Party’s indemnification obligations.
A. Indemnification by Patch. To the maximum extent permitted by applicable law, Patch shall indemnify, defend and hold Partner, its members, directors, officers, employees, partners, agents and all other persons, firms, or entities affiliated with Partner, harmless against any third-party claim, cost, suit, liability, or expense (including attorney’s fees), arising out of or in any way connected to (i) Patch’s material breach of the Agreement (ii) Patch’s breach of any laws, regulations, or third-party rights or (iii) Patch’s fraud, willful misconduct, or intentional misrepresentation.
B. Indemnification by Partner. To the maximum extent permitted by applicable law, Partner shall indemnify, defend, and hold Patch, its members, directors, officers, employees, partners, agents and all other persons, firms, or entities affiliated with Patch, harmless from any third-party claim, cost, suit, liability, or expense (including attorney’s fees), arising out of or in any way connected to (i) Partner’s material breach of the Agreement, (ii) any actions or failures to act of Partner in connection with the Agreement or its activities thereunder, (iii) Partner’s non-Fulfillment of Credits, (iv) in the case of ex-ante Credits (if applicable), the failure of Partner's ex-ante Credits, or underlying project intended to generate the Credits, to obtain or represent the anticipated climate impact represented by Partner, (v) Partner’s breach of any laws, regulations, or third party rights, (vi) any inaccuracy or material omission in any Inventory Information or any other data or information provided by Partner to Patch hereunder, including without limitation as part of the Onboarding Assessment if applicable, (vii) Partner’s misrepresentations or material omissions in communications with Patch; or (viii) Partner’s fraud, willful misconduct, or intentional misrepresentation.
C. Indemnification Procedure. A Party seeking defense and indemnification (the “Indemnified Party”) will promptly notify the other Party (the “Indemnifying Party”) in writing of any Claim, provided that failure to give notice will only relieve the Indemnifying Party of liability to the extent the Indemnifying Party has suffered actual prejudice by such failure. The Indemnifying Party will (i) control the defense of any such claim; (ii) reimburse the Indemnified Party for any reasonable legal expenses directly incurred as a result of the Claim, as such expenses are incurred; and (iii) have the right to consent to judgment on, or otherwise settle, an indemnified claim; provided that the Indemnifying Party may not settle any claim without the Indemnified Party's prior written approval unless the settlement is for a monetary amount, unconditionally releases the Indemnified Party from all liability without prejudice, does not require any admission by the Indemnified Party, and does not place restrictions upon the Indemnified Party's business, products, or services. The Indemnified Party may participate in the defense or settlement of any such claim at its own expense and with its own choice of counsel or, if the Indemnifying Party refuses to fulfill its obligation of defense, the Indemnified Party may defend itself and seek reimbursement from the Indemnifying Party.
15. Audit and Inspection Rights
Upon Patch’s reasonable request, Partner shall timely provide Patch with relevant information and materials supporting any material representations that Partner has made to Patch (relevant to Partner’s use of the Marketplace Services) regarding Partner’s Credits, the project generating the Credits, and certification or verification of the Credits by third parties, and Patch may undertake a confidential audit of such information and materials, including audit by a third party engaged by Patch for such purposes. Any costs of such an audit shall be borne by Patch, unless Patch’s audit demonstrates that Partner provided materially inaccurate information to Patch or any third party, in which case the costs shall be borne by Partner.
16. Dispute Resolution
The Parties agree that any and all disputes or claims arising out of or relating to the Agreement or any aspect of the relationship or transactions between the Parties, including the determination of the scope or applicability of this section, (a “Dispute”) will be subject to an initial 30-day period (“Good Faith Period”) during which the Parties will attempt in good faith to resolve the Dispute. Before the end of the Good Faith Period neither Party may commence or file any legal proceeding against the other. Parties agree that any Disputes which cannot be resolved during the Good Faith Period shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this section, except that Partner may assert individual claims in small claims court if Partner’s claims qualify. Each Party agrees that by entering into the Agreement, each is waiving the right to a trial by jury or to participate in a class action. The Federal Arbitration Act governs the interpretation and enforcement of this section. Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) Commercial Arbitration Rules (the “AAA Rules”), as modified by this section of the Agreement. Unless the Parties agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both Parties with due consideration of their ability to travel and other pertinent circumstances. If the Parties are unable to agree on a location, the determination will be made by AAA. Except as otherwise provided in this section, the Agreement will be governed by the laws of the State of California, without regard to its conflict of laws provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, the Parties each hereby agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within the Northern District of California.
17. Miscellaneous Provisions
A. Governing Law. Except as otherwise provided in the Dispute Resolution section, the Agreement is governed by and will be construed under the laws of the State of California, without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. The Parties agree that the UN Convention on Contracts for the International Sale of Goods will not apply.
B. Taxes and Reporting. Each Party will be responsible for its own withholding, filing, paying, and reporting of all taxes, duties, and other governmental assessments associated with its own use or its own provision (as applicable) of the Marketplace Services and its performance under the Agreement.
C. Successors and Assigns. Neither the Agreement nor any rights under the Agreement may be assigned or otherwise transferred by either Party, in whole or in part, without the mutual written consent of both Parties, provided that assignment may occur where necessitated by merger, acquisition, or similar corporate change of control event. Subject to the foregoing provisions of this section, the Agreement will be binding upon and will inure to the benefit of the Parties and their respective permitted successors and assigns. Any purported assignment or transfer of the Agreement in violation of its terms is void.
D. Severability. Should any provisions of the Agreement be held by a court of law to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of the Agreement will not be affected or impaired thereby.
E. Waiver. Either Party’s failure to enforce any provision of the Agreement will not constitute a waiver of future enforcement of that or any other provision. No waiver of any provision of the Agreement will be effective unless it is in writing and signed by the Party granting the waiver.
F. Headings. The headings in the Agreement have been included solely for reference and are to have no force or effect in interpreting the provisions of the Agreement.
G. Relationship of the Parties. Parties are, and will remain, independent contractors. The Agreement does not constitute a partnership or joint venture relationship. Neither Party is a franchisee, agent, or legal representative of the other for any purpose, and neither Party has the authority to act for, bind, or make commitments on behalf of the other.