Standard Terms of Service governing the use of Thalo Labs products and services.
These terms of service (the "Terms") apply to the Services ordered the Thalolabs.com website (the "Site") and described below (each, a "Service Order"). Customer and Thalo may enter subsequent Service Orders that incorporate these Terms by reference. This "Agreement" consists of these Terms, together with each Service Order entered by Customer.
"Covered Facility" means the location selected and used by Customer for installation of Thalo Equipment.
"Customer" the person or entity who purchased the Services on the Site.
"Facility Data" means any measurements of energy use or emissions at a Covered Facility using devices other than Thalo Equipment.
"Monitoring Data" is data generated by Thalo Equipment installed at any Covered Facility, including data relating to equipment performance and emissions associated with Covered Facilities.
"Services Term" is any Trial Period, and any renewal of the Services for a term set forth in the Service Order.
"Thalo Equipment" means all hardware and related equipment at any Covered Facility in connection with any Service Order and includes Thalo's proprietary modular emissions monitoring equipment.
"Thalo Reporting Information" means (a) continuous data collection and analysis of heating venting air conditioning (HVAC) systems via Thalo Equipment; (b) proactive issue detection and customer notification of identified issues; (c) quantitative reporting on operational improvements and energy savings (where applicable), and (d) portfolio-wide system analysis to identify optimization opportunities.
"Trial Period" is the initial period set forth in the Service Order for use of the Services.
Pursuant to the Service Order, Thalo will provide Customer with the following services (the "Services"):
Thalo grants Customer a limited, non-exclusive, non-transferable license to access, copy and use Thalo Reporting Information for Customer's internal business purposes, and to disclose Thalo Reporting Information for marketing purposes and reporting on emissions to regulatory authorities and auditors; provided, that, Customer may not disclose any modification of Thalo Reporting Information or other Monitoring Data that is not expressly authorized by Thalo, nor disclose Thalo Reporting Information or other Monitoring Data in a manner that is misleading or inaccurate, and such disclosure is not licensed. Thalo grants no other licenses or permissions under this Agreement.
Thalo will retain the perpetual the right to hold, use, disclose, process, analyze, and create derivative data from all Monitoring Data and Facility Data for any purpose; provided, that, Thalo will not disclose to any third party any Monitoring Data or Facility Data that can be reasonably identified with Customer or a Covered Facility, except as may be compelled by a court or governmental authority or as required in Thalo's own legal defense. Thalo is not required to provide Customer with Monitoring Data except as set forth in a Thalo Report.
Nothing in this Agreement otherwise requires either Thalo or Customer to assign or transfer any title or ownership rights to any intellectual property, including patent rights, other rights of inventorship, copyrights or other works of authorship, or rights to trade secrets, or other data, information or know-how rightfully within their respective possession. In the event Customer provides ideas or suggestions regarding Thalo Equipment or Thalo's performance of the Services, Customer grants Thalo the right to use or disclose such feedback in connection with making or offering its products and services without any payment or duty to account.
Thalo Equipment will at all times remain solely the property of Thalo and nothing in this Agreement assigns or transfers any right, title or interest in Thalo Equipment to Customer or any other entity. To the extent any tags, logos, or labeling identify Thalo Equipment as belonging to Thalo or any third party, Customer will not remove or obstruct them. Customer will not, and will not permit its employees, contractors, lessees or visitors to disassemble any Thalo Equipment, or otherwise attempt to discover how it operates or is manufactured, or to discover its component parts. Customer will may be invoiced for any repair or replacement if damaged by Customer personnel or contractors.
To the extent Thalo provides any documentation or other information, other than Thalo Reporting Information, about the Thalo Equipment, Services, Thalo personnel, contractors, or otherwise regarding Thalo's business that is not publicly available or previously known by Customer, Customer will not use or disclose such information except solely for the purpose of utilizing the Services and the Thalo Reporting Information as licensed.
All amounts approved by Customer in the estimate for Services provided by Thalo will be invoiced in advance of the applicable Services Term. Invoices will be due and payable within thirty (30) days of Customer's receipt using the Payment Method set forth in the Service Order. Thalo may increase any fees for any renewal of the Services Term with written notice sixty (60) days prior to the commencement of such renewal.
In order to perform the Services, Thalo requires that Customer will (a) ensure that it holds all third-party permissions required with respect to the Covered Facility to permit the installation of the applicable Thalo Equipment; (b) provide adequate space and access in at the site of installation in the Covered Facility for the installation, operation, maintenance, inspection, replacement, disconnection and removal of the Thalo Equipment and any other items, including proper electricity, heating, cooling, and ventilation; and (c) maintain and repair, at its own expense, all applicable physical property and equipment (other than Thalo Equipment) related to or necessary for HVAC and any other conditions necessary to facilitate the continued functionality of the Thalo Equipment and the provision of the Services. Customer's compliance with these obligations at all times are a condition to Thalo's performance of the Services and any other obligations under this Agreement. Customer's failure to perform these obligations constitutes a reasonable excuse for Thalo's failure to perform or cure a problem with the Services or otherwise result in unavailability of any Services.
After the Trial Period or any other expiration of the Services Term, the Services Term will automatically renewal for a twelve (12) month period, unless either Party notifies the other Party at least thirty (30) days prior to scheduled expiration of its intent not to renew. Customer may terminate at any time for any reason, provided, that, upon such termination without cause, Thalo may charge Customer for all amounts to be paid during the current and any renewed Services Term. Either Party may terminate any or all Service Orders immediately if the other Party breaches any material term of this Agreement; provided, that any amounts owed will remain due and payable, and Customer providers Thalo with reasonable access to retrieve Thalo Equipment.
The Services are provided "AS IS" "WHERE IS." Thalo makes no warranty that the Services will meet Customer's requirements or be available on an uninterrupted, secure, or error-free basis.
THALO EXPRESSLY DISCLAIMS ANY WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES OF NONINFRINGEMENT AND FREEDOM FROM MALWARE, AND ANY WARRANTIES AND CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM CONCURRENT OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT.
a. IN NO EVENT WILL THALO BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES) ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, WHETHER OR NOT THE PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE.
b. EXCEPT FOR AMOUNTS OWED FOR SERVICES UNDER THIS AGREEMENT, NEITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING THE USE OF OR ANY INABILITY TO USE THE SERVICES (INCLUDING ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES) OR OTHERWISE UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, WILL EXCEED THE AMOUNTS PAID BY CUSTOMER TO THALO FOR THE SERVICES.
c. THE LIMITATIONS SET FORTH IN THIS SECTION 10 DO NOT APPLY TO LIABILITY ARISING FROM ANY BREACH OF SECTIONS 3, 4 OR 5. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE LIMITATIONS IN THIS SECTION 10 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
a. This purchase of services does not constitute an employment relationship between Customer and Thalo. Neither party may assign this without the other party's written consent. Any use of the words "include" or "including" will mean "without limitation."
b. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York. Customer and Thalo irrevocably consent to the jurisdiction of, and venue in, the state or federal courts located in the County of New York for any disputes arising under this Agreement. Notwithstanding the foregoing, in the event of any breach of Sections 3, 4, or 5, Customer acknowledges and agrees that such breach would cause irreparable harm, damages at law may be inadequate, and Thalo may seek injunctive or other equitable relief in any court of competent jurisdiction.
c. Force Majeure. Thalo is not responsible for any failure or delay in its performance of obligations pursuant to this Agreement to the extent such failure or delay is caused by an event that or delays the performance beyond Thalo's reasonable control, including floods, hurricanes, pandemics, tornadoes, earthquakes, fires, other natural disasters, acts of war, terror, riot, or insurrection, governmental action, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, telecommunications connectivity, raw materials or supplies.
d. Notices. All notices required in connection with this Agreement and any Service Order will be in writing and, in case of Customer, will be given to the applicable contact persons at their listed address and e-mails provided on the Site, and in the case of Thalo, as listed below.
Attn: Legal
Thalo Labs, Inc.
10 E 38th Street, Floor 9
New York, NY 10016
Email: legal@thalolabs.com
Notices will be deemed given: (i) when delivered personally; or (ii) twenty-four (24) hours after having been sent via electronic mail. The parties may change the contact person and/or the contact person's contact information upon written notice in accordance with this paragraph.
e. Miscellaneous. Customer may not assign this Agreement or any rights hereunder without Thalo's prior written consent. The relationship of Customer and Thalo is that of independent contractors and neither Customer nor Thalo, nor their agents or employees, will be deemed to be the employees or agents of the other; nor may Customer or Thalo bind the other or transact any business in the other's name. This Agreement, together with any existing Service Orders or any subsequent Service Orders once fully executed by the Parties, constitute the entire and exclusive understanding and agreement between Customer and Thalo with respect to the subject matter hereof may be amended only by a written agreement signed by Thalo and Customer's authorized representatives. The failure to require performance of any provision will not affect Thalo's right to require performance at any time thereafter, nor shall a waiver of any breach or default of this Agreement or any provision of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law. Any use of the words "include," "includes" or "including" will not be exclusive nor limit the generality of the words preceding them and will mean "without limitation." No ambiguity will be construed against any party based on their role as drafter of this Agreement.