TERMS OF SERVICE
EARTHSTER USER AGREEMENT 2022
This Earthster User Agreement (this "Agreement") is between Earthster Oy. ("Earthster") and the individual or entity that has executed this Agreement ("You"). This Agreement sets forth the terms and conditions that govern orders placed by You for Services under this Agreement.
"Aggregate Data" refers to compiled Data that is processed into aggregates to create product specific representations or averages. The Aggregate Data is fully anonymized and generated when there is enough Life Cycle Assessment (LCA) data available from various sources and it is non reverse engineerable. Data that Earthster processes are used to generate LCAs. The LCAs are stored internally and individual LCAs are aggregated onto the appropriate industry sector (including a hierarchy of subsectors, the depth of which depends upon the volume of use our system is exposed to in each sector). Aggregate Data is shared publicly inside Earthster as part of Earthster Data. No connection between Aggregate Data and user Data is stored in Earthster.
"Auto Renew" or "Auto Renewal" is the process by which the Services Period of certain Cloud Services under an order is automatically extended for an additional Services Period unless such Services are otherwise terminated in accordance with the terms of the order or this Agreement. The Service Specifications incorporated into Your order define which Cloud Services are eligible for Auto Renewal as well as any terms applicable to any such renewal.
"Cloud Services" means, collectively, the Earthster cloud services (e.g., Earthster software as a service offerings and related Earthster Programs) listed in Your order and defined in the Service Specifications. The term "Cloud Services" does not include Professional Services.
"Earthster Data" or "Earthster Data Libraries" refers to data owned or licensed by Earthster to which Earthster grants You access as part of the Cloud Services, including Program Documentation. It covers all data in the Earthster system, except Your Data.
"Earthster Programs" refers to the software products owned or licensed by Earthster to which Earthster grants You access as part of the Cloud Services, including Program Documentation, and any program updates provided as part of the Cloud Services. The term "Earthster Programs" does not include Separately Licensed Third Party Data.
"Professional Services" means, the consulting and other professional Services which You have ordered. Professional Services include any deliverables described in Your order and delivered by Earthster to You under the order. The term "Professional Services" does not include Cloud Services.
"Program Documentation" refers to the program user manuals for the Earthster Programs referenced within the Service Specifications for Cloud Services, as well as any help windows and readme files for such Earthster Programs that are accessible from within the Services. The Program Documentation describes technical and functional aspects of the Earthster Programs.
"Separate Terms" refers to separate license terms that are specified in the Program Documentation, Service Specifications, readme or notice files and that apply to Separately Licensed Third Party Technology or Data./
"Services" means, collectively, both the Cloud Services and Professional Services that You have ordered.
"Service Specifications" means the descriptions specified by Earthster, that are applicable to the Services under Your order, including any Program Documentation, and Delivery Policies (e.g., support and security policies), and other descriptions referenced or incorporated in such descriptions.
"Services Period" refers to the period of time for which You ordered Cloud Services as specified in Your order.
"Third Party Content" means all text, files, images, graphics, illustrations, information, data, audio, video, photographs and other content and material, in any format, that are obtained or derived from third party sources outside of Earthster and made available to You through, within, or in conjunction with Your use of, the Cloud Services. Examples of Third Party Content include data feeds from social network services, rss feeds from blog posts, and data libraries and dictionaries. Third Party Content does not include Separately Licensed Third Party Technology.
"Third Party Data" or "Third Party Data Library" refers to commercial Data Libraries licenced by Third Parties (e.i. Ecoinvent) that Earthster grants You access as part of the Cloud Services. Third Party Data Libraries are licensed under Separate Terms and not under the terms of this Agreement. Earthster may add new Data Libraries, delete existing ones and/or limit access to any of them.
"Users" means those employees, contractors, and end users, as applicable, authorized by You or on Your behalf to use the Cloud Services in accordance with this Agreement and Your order.
"You" and "Your" refers to the individual or entity that has executed this Agreement.
"Your Data" refers to raw data You input in the Earthster system for the calculation of LCAs.
TERM OF AGREEMENT
This Agreement is valid for the order which this Agreement accompanies. This Agreement may also be referenced for any purchase that increases of the original Services ordered, for any Cloud Services options offered by Earthster for the original Services ordered, and for any renewal or Auto Renewal of the Services Period of the original order.
For the duration of the Services Period and subject to Your payment obligations, and except as otherwise set forth in this Agreement or Your order, You have the non-exclusive, non-assignable, royalty free, worldwide limited right to access and use the Services that You ordered, including anything developed by Earthster and delivered to You as part of the Services, and subject to the terms of this Agreement and Your order. You may allow Your Users to use the Services for this purpose and You are responsible for Your Users’ compliance with this Agreement and the order.
You do not acquire under this Agreement any right or license to use the Services, including but not limited to the Earthster Programs and Data, in excess of the scope and/or duration of the Services stated in Your order.
To enable Earthster to provide You and Your Users with the Services, You grant Earthster the right to use, process and transmit, in accordance with this Agreement and Your order, Your Data for the duration of the Services Period plus any additional post-termination period during which Earthster provides You with access to retrieve an export file of Your Data.
You may choose to publish or unpublish any part of Your Data by selecting the publicity level to certain groups or to any or all entities, groups of entities e.g. your suppliers, customers or investors or named entities of Your decision. You have full discretion for choosing the publicity. Such publicity decision power is not available for the Free Licenses.
As part of certain Cloud Services offerings, Earthster may provide You with access to Third Party Data. The type and scope of any Third Party Data is defined in the Service Specifications applicable to Your order. The third party owner, author or provider of such Third Party Data retains all ownership and intellectual property rights in and to that content, and Your rights to use such Third Party Data are subject to, and governed by, the terms applicable to such content as specified by such third party owner, author or provider.
OWNERSHIP AND RESTRICTIONS
You retain all ownership and intellectual property rights in and to Your Data. Earthster or its licensors retain all ownership and intellectual property rights to the Services, including Earthster Data and derivative works thereof, and to anything developed or delivered by or on behalf of Earthster under this Agreement.
You have the right to use the Earthster Data including databases, datasets or specific parts of such datasets and processes that are provided by Earthster to You according to Your order. In no event shall You reproduce, disseminate or publicly display the Data Libraries as a whole or any substantial part thereof, as determined by their nature and quantity even in case of insignificant portions.
You may not, or cause or permit others to:
remove or modify any program markings or any notice of Earthster’s or its licensors’ proprietary rights;
modify, make derivative works of, disassemble, decompile, or reverse engineer any part of the Services (the foregoing prohibition includes but is not limited to review of data structures or similar materials produced by programs), or access or use the Services in order to build or support, and/or assist a third party in building or supporting, products or Services competitive to Earthster;
perform or disclose any vulnerability, security or infrastructure testing without Earthster’s prior written consent, including but not limited to network discovery, port and service identification, vulnerability scanning, password cracking, remote access testing, or penetration testing.; and
license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the Services, Earthster Programs, or materials available, to any third party, other than as expressly permitted on Your Order.
The rights granted to You under this Agreement are also conditioned on the following:
except as expressly provided herein or in Your order, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means; and
It is specifically prohibited to copy the Earthster Data into databases of other software packages without the prior written consent of Earthster.
You make every reasonable effort to prevent unauthorized third parties from accessing the Services.
The Services are subject to and governed by Service Specifications applicable to Your order. Service Specifications may define provisioning and management processes applicable to the Services, types and quantities of system resources (such as access to Third Party Data), functional and technical aspects of the Earthster Programs, as well as any Services deliverables. You acknowledge that use of the Services in a manner not consistent with the Service Specifications may adversely affect Services performance and/or may result in additional fees. If the Services permit You to exceed the ordered quantity (e.g., soft limits on Data access or similar), then You are responsible for promptly purchasing additional quantity to account for Your excess usage. For any month that You do not promptly purchase such additional quantity, Earthster may require You to pay, in addition to the fees for the additional quantity, an excess usage fee for those Services equivalent to 10% of the total fees for the period in which such excess usage occurred.
Earthster may make changes or updates to the Services (such as data sources, infrastructure, security, technical configurations, application features, etc.) during the Services Period, including to reflect changes in technology, industry practices and patterns of system use. The Service Specifications are subject to change at Earthster’s discretion; however, the changes to the Service Specifications will not result in a material reduction in the level of performance or availability of the applicable Services provided to You for the duration of the Services Period unless security or similar reasons on Earthster’s sole discretion so require.
USE OF THE SERVICES
You are responsible for approving access by Users to your purchased Services, and for maintaining the confidentiality of usernames, passwords and account information. By federating or otherwise associating Your and Your Users’ usernames, passwords and accounts with Earthster, You accept responsibility for the timely and proper termination of user records in Your local (intranet) identity infrastructure or on Your local computers. Earthster is not responsible for any harm caused by Your Users, including individuals who were not authorized to have access to the Services but who were able to gain access because usernames, passwords or accounts were not terminated on a timely basis in Your local identity management infrastructure or Your local computers. You are responsible for all activities that occur under Your and Your Users’ usernames, passwords or accounts or as a result of Your or Your Users’ access to the Services, and agree to notify Earthster immediately of any unauthorized use.
FEES AND TAXES
All fees payable to Earthster are due within 30 days from the invoice date. Once placed, Your order is non- cancelable and the sums paid nonrefundable, except as provided in this Agreement or Your order. You will pay any sales, value-added or other similar taxes imposed by applicable law that Earthster must pay based on the Services You ordered, except for taxes based on Earthster’s income. Also, You will reimburse Earthster for reasonable expenses related to providing any Professional Services. Fees for Services listed in an order are exclusive of taxes and expenses.
You agree and acknowledge that You have not relied on the future availability of any Services, programs or updates in entering into the payment obligations in Your order; however, the preceding does not relieve Earthster of its obligation during the Services Period to deliver Services that You have ordered per the terms of this Agreement.
SERVICES PERIOD; END OF SERVICES
Services provided under this Agreement shall be provided for the Services Period defined in Your order, unless earlier suspended or terminated in accordance with this Agreement or the order. If stated in the Service Specifications, certain Cloud Services that are ordered will Auto Renew for additional Services Periods unless (i) You provide Earthster with written notice no later than thirty (30) days prior to the end of the applicable Services Period of your intention not to renew such Cloud Services, or (ii) Earthster provides You with written notice no later than ninety (90) days prior to the end of the applicable Services Period of its intention not to renew such Cloud Services.
Upon the end of the Services, any of Your Data that was held private will be deleted, and any of Your Data that was shared will be made public. You may also eliminate any such Data prior or after the termination of the Service. For clarification, no Aggregate Data generated using Your Data will be deleted. After the termination of the service, any modification to your Data will be subject to restrictions applicable to Earthster’s free tier, e.g. limitations on the use of new Ecoinvent processes.
Earthster may temporarily suspend Your password, account, and access to or use of the Services if You or Your Users violate any provision within the ‘Rights Granted’, ‘Ownership and Restrictions’, ‘Fees and Taxes’, ‘Use of the Services’, or ‘Export’ sections of this Agreement, or if in Earthster’s reasonable judgment, the Services or any component thereof are about to suffer a significant threat to security or functionality. Earthster will provide advance notice to You of any such suspension in Earthster’s reasonable discretion based on the nature of the circumstances giving rise to the suspension. Earthster will use reasonable efforts to re-establish the affected Services promptly after Earthster determines, in its reasonable discretion, that the situation giving rise to the suspension has been cured; as existing in the Services Environment on the date of suspension. Earthster may terminate the Services under an order if any of the foregoing causes of suspension is not cured within 30 days after Earthster’s initial notice thereof. Any suspension or termination by Earthster under this paragraph shall not excuse You from Your obligation to make payment(s) under this Agreement.
If either of us breaches a material term of this Agreement and fails to correct the breach within 30 days of written specification of the breach, then the breaching party is in default and the non-breaching party may terminate the order under which the breach occurred. If Earthster terminates the order as specified in the preceding sentence, You must pay within 30 days all amounts that have accrued prior to such termination, as well as all sums remaining unpaid for the Services ordered under this Agreement plus related taxes and expenses. Except for nonpayment of fees, the nonbreaching party may agree in its sole discretion to extend the 30 day period for so long as the breaching party continues reasonable efforts to cure the breach. You agree that if You are in default under this Agreement, You may not use those Services ordered.
Provisions that survive termination or expiration of this Agreement are those relating to limitation of liability, infringement indemnity, payment and others which by their nature are intended to survive.
By virtue of this Agreement, the parties may have access to information that is confidential to one another ("Confidential Information"). We each agree to disclose only information that is required for the performance of obligations under this Agreement. Confidential information shall be limited to the terms and pricing under this Agreement, Your Data and all information clearly identified as confidential at the time of disclosure.
A party’s Confidential Information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (d) is independently developed by the other party.
You agree to provide any notices and obtain any consents related to Your use of the Services and Earthster’s provision of the Services, including those related to the collection, use, processing, transfer and disclosure of Personal Data.
WARRANTIES, DISCLAIMERS AND EXCLUSIVE REMEDIES
EARTHSTER DOES NOT GUARANTEE THAT (A) THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT EARTHSTER WILL CORRECT ALL SERVICES ERRORS, (B) THE SERVICES WILL OPERATE IN COMBINATION WITH ANY OTHER SOFTWARE, SYSTEMS OR DATA NOT PROVIDED BY EARTHSTER, AND (C) THE SERVICES WILL MEET YOUR REQUIREMENTS, SPECIFICATIONS OR EXPECTATIONS. YOU ACKNOWLEDGE THAT EARTHSTER DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. EARTHSTER IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. EARTHSTER IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION OR SECURITY OF THE SERVICES THAT ARISE FROM THIRD PARTY CONTENT. EARTHSTER DOES NOT MAKE ANY REPRESENTATION OR WARRANTY REGARDING THE RELIABILITY, ACCURACY, COMPLETENESS, CORRECTNESS, OR USEFULNESS OF THIRD PARTY CONTENT, AND DISCLAIMS ALL LIABILITIES ARISING FROM OR RELATED TO THIRD PARTY CONTENT.
FOR ANY BREACH OF THE SERVICES WARRANTY, YOUR EXCLUSIVE REMEDY AND EARTHSTER’S ENTIRE LIABILITY SHALL BE THE CORRECTION OF THE DEFICIENT SERVICES THAT CAUSED THE BREACH OF WARRANTY, OR, IF EARTHSTER CANNOT SUBSTANTIALLY CORRECT THE DEFICIENCY IN A COMMERCIALLY REASONABLE MANNER, YOU MAY END THE DEFICIENT SERVICES AND EARTHSTER WILL REFUND TO YOU THE FEES FOR THE TERMINATED SERVICES THAT YOU PRE-PAID TO EARTHSTER FOR THE PERIOD FOLLOWING THE EFFECTIVE DATE OF TERMINATION.
TO THE EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS INCLUDING FOR SOFTWARE, HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS OR FOR MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.
LIMITATION OF LIABILITY
NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS (EXCLUDING FEES UNDER THIS AGREEMENT), DATA, OR DATA USE. EARTHSTER’S MAXIMUM LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR YOUR ORDER, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO EARTHSTER FOR THE SERVICES UNDER THE ORDER THAT IS THE SUBJECT OF THE CLAIM IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM LESS ANY REFUNDS OR CREDITS RECEIVED BY YOU FROM EARTHSTER UNDER SUCH ORDER.
You have the right to share the link to your results in Earthster publicly. You are free to publish Earthster Data related reports, if so agreed in Your Order or otherwise agreed in writing with Earthster. However, you may share the link to your results to Earthster or publish Your Data and your LCA results utilizing Earthster material or format stating Earthster as the source of the LCA results.
Earthster may compile statistical and other information related to the performance, operation and use of the Services, and use data in aggregated form for security and operations management, to create statistical analyses, and for research and development purposes ("Service Analyses"). Earthster may make Service Analyses publicly available; however, Service Analyses will not incorporate Confidential Information in a form that could serve to identify You or any individual, and Service Analyses do not constitute Personal Data. Earthster retains all intellectual property rights in Service Analyses.
Neither of us shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; natural disaster; pandemic; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancelation of any export, import or other license); or other event outside the reasonable control of the obligated party. We both will use reasonable efforts to mitigate the effect of a force majeure event. If such an event continues for more than 30 days, either of us may cancel unperformed Services and affected orders upon written notice. This Section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or Your obligation to pay for the Services. Earthster is not liable, in any situation, for any decisions You make based on the Earthster Data.
GOVERNING LAW AND JURISDICTION
This Agreement is governed by the substantive and procedural laws of Finland and You and Earthster agree to submit to the exclusive jurisdiction of, and venue in, the courts in Helsinki in any dispute arising out of or relating to this Agreement.
Any notice required under this Agreement shall be provided to the other party in writing. If You have a dispute with Earthster or if You wish to provide a notice under the Indemnification Section of this Agreement, or if You become subject to insolvency or other similar legal proceedings, You will promptly send written notice at Earthster.org
To request the termination of Services in accordance with this Agreement, You must submit a service request to Earthster.org.
Earthster may give notices applicable to Earthster Cloud Services customer base by electronic mail to Your email address on record in Earthster’s account information or by written communication sent by first class mail or pre-paid post to Your address on record in Earthster’s account information.
You may not assign this Agreement or give or transfer the Services or an interest in them to another individual or entity. If You grant a security interest in any portion of the Services, the secured party has no right to use or transfer the Services or any deliverables.
Earthster is an independent contractor and we agree that no partnership, joint venture, or agency relationship exists between us. We each will be responsible for paying our own employees, including employment related taxes and insurance. You shall defend and indemnify Earthster against liability arising under any applicable laws, ordinances or regulations related to Your termination or modification of the employment of any of Your employees in connection with any Services under this Agreement. You understand that Earthster’s business partners, including any third party firms retained by You to provide consulting services or applications that interact with the Cloud Services, are independent of Earthster and are not Earthster’s agents. Earthster is not liable for nor bound by any acts of any such business partner, unless the business partner is providing Services as an Earthster subcontractor on an engagement ordered under this Agreement and, if so, then only to the same extent as Earthster would be responsible for Earthster resources under this Agreement.
If any term of this Agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with another term consistent with the purpose and intent of this Agreement.
Except for actions for nonpayment or breach of Earthster’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than two years after the cause of action has accrued.
You remain solely responsible for Your regulatory compliance in connection with Your use of the Services. You are responsible for making Earthster aware of any technical requirements that result from Your regulatory obligations prior to entering into an order governed by this Agreement. Earthster will cooperate with your efforts to determine whether use of the standard Earthster Services offering is consistent with those requirements. Additional fees may apply to any additional work performed by Earthster or changes to the Services.
Earthster may audit Your use of the Services (e.g., through use of software tools) to assess whether Your use of the Services is in accordance with Your order. You agree to cooperate with Earthster’s audit and provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with Your normal business operations. You agree to pay within 30 days of written notification any fees applicable to Your use of the Services in excess of Your rights. If You do not pay, Earthster can end Your Services and/or Your order. You agree that Earthster shall not be responsible for any of Your costs incurred in cooperating with the audit.
The purchase of Cloud Services, Professional Services, or other service offerings, data, programs or products are all separate offers and separate from any other order. You understand that you may purchase Cloud Services, Professional Services, or other service offerings, programs or products independently of any other order. Your obligation to pay under any order is not contingent on performance of any other service offerings or delivery of programs or products.
You agree that this Agreement and the information which is incorporated into this Agreement by written reference, together with the applicable order and Earthster policies, is the complete agreement for the Services ordered by You and supersedes all prior or contemporaneous agreements or representations, written or oral, regarding such Services.
It is expressly agreed that the terms of this Agreement and any Earthster order shall supersede the terms in any purchase order, procurement internet portal, or other similar non-Earthster document and no terms included in any such purchase order, portal, or other non-Earthster document shall apply to the Services ordered. In the event of any inconsistencies between the terms of an order and the Agreement, the order shall take precedence; however, unless expressly stated otherwise in an order, the terms of the Earthster User Agreement shall take precedence over any inconsistent terms in an order. Agreement and orders hereunder may not be modified and the rights and restrictions may not be altered or waived except in a writing signed by authorized representatives of You and of Earthster. No third party beneficiary relationships are created by this Agreement.
August 08, 2022
Company id: 3173060-4
03220 Tervelampi, Finland