THIS DOCUMENT CONTAINS IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS AND LIMITATIONS THAT MIGHT APPLY TO YOU. PLEASE READ IT CAREFULLY.
These eCommerce Terms and Conditions (the “Terms”) are entered into between LevelTen Energy, Inc, on behalf of itself and its affiliates (collectively, “LevelTen”) and you, whether on behalf of an entity or in your personal capacity (“Customer”) in connection with one or more Products ordered by Customer through the LevelTen website or an order form. This Agreement governs Customer’s access to and use of each Product ordered hereunder.
BY PLACING AN ORDER FOR, ACCEPTING DELIVERY OF, OR USING ANY PRODUCT, CUSTOMER AFFIRMS THAT (i) IT HAS READ AND UNDERSTANDS THESE TERMS; (ii) IF CUSTOMER AGREES TO THESE TERMS ON BEHALF OF AN ENTITY, CUSTOMER HAS FULL LEGAL AUTHORITY TO ACCEPT THESE TERMS ON BEHALF OF SUCH ENTITY; AND (iii) CUSTOMER AGREES TO BE BOUND BY THESE TERMS. IF CUSTOMER DOES NOT HAVE SUCH AUTHORITY, OR IF CUSTOMER DOES NOT AGREE WITH THE TERMS, CUSTOMER MUST NOT ACCEPT THE TERMS AND MAY NOT OBTAIN, ACCESS, OR USE ANY LEVELTEN PRODUCT.
1. Definitions
1.1 “Agreement” means the Terms, the LevelTen website Terms and Conditions, and the applicable provisions set forth in any Order Form.
1.2 “Fee” means the amount displayed on the Order Form to be paid to LevelTen to access or use a Product.
1.3 “Product” means information or data provided by LevelTen to Customer under an Order Form which may be delivered or accessed electronically or in physical format. A Product may include reports (each, a “Report”), a subscription to a series of Reports as they are issued (“Report Subscription”), and subscription access to certain data and information through the LevelTen website (“Data Product”).
1.4 “Order Form” means the document executed by both parties specifying the Product(s) being licensed, applicable Fees, and other associated terms and conditions, or with respect to any Product ordered via the LevelTen website, the displayed Product(s), along with the listed Fees and associated terms and conditions and Customer’s consent thereto.
1.5 “Subscription Term” means, with respect to a Report Subscription for a particular series of Reports, the period of time during which Customer will receive Reports issued by LevelTen in connection with such series, and with respect to a Data Product, the period of time during which Customer will have access to such Product.
2. Grant of License
2.1 Limited License. For each Product for which Customer pays the applicable amount Fee, LevelTen grants Customer for the duration of the applicable Product license term a revocable, non-transferrable, and non-exclusive license to, solely for Customer’s internal business purposes: (i) use such Product in accordance with the terms of the Agreement; (ii) copy such Product, or portion thereof (including any embedded information or data contained in such Product) into new files (whether or not such new files constitute derivative works) if properly attributed to LevelTen in accordance with Section 5.2 below; (iii) if Customer is a corporation, limited liability company, partnership, or other legal entity, distribute electronic or printed copies of such Product or new files to Customer’s employees, provided that Customer ensures that any employee that receives a copy is made aware of and complies with the obligations set forth in these Terms; and (iv) distribute electronic or printed copies of such files to a third party, provided that (x) distribution of such copies, alone or in the aggregate, results in the disclosure of only an insubstantial amount of information from the Product, (y) each such copy contains, in addition to information from the Product, information not contained in the Product, and (z) LevelTen is properly attributed in accordance with Section 5.2 below.
2.2 License Restrictions. Except as expressly authorized in Section 2.1: (i) any use, copying, distribution of, or access to, the Product, any portion thereof, or new files containing the same, is prohibited without LevelTen’s prior written consent; (ii) Customer may not use, transfer, rent, lease, assign, sub-license, sell, loan, or create a derivative work based upon, the Product, any portion thereof, or new file containing the same; and (iii) no license hereunder is granted to any third party. Notwithstanding any other provision of this Agreement, Customer shall not use nor permit to be used any Product, portion thereof, or new files containing the same to develop, create, improve, or commercialize any data product, service or offering competitive with any LevelTen product, service or offering. Each Product and all information contained therein is proprietary and confidential to LevelTen and Customer shall ensure that the Product and all information therein is protected as a trade secret.
2.3 License Duration. Unless earlier terminated pursuant to Section 7: (i) for each Report ordered under this Agreement (whether as a part of a Report Subscription or not), the license term will be perpetual; and (ii) for each Data Product ordered under this Agreement, the license term will be for the applicable Subscription Term.
3. Representations and Warranties
3.1 EACH PRODUCT AND ALL INFORMATION CONTAINED THEREIN IS PROVIDED ON AN AS-IS BASIS AND LEVELTEN MAKES NO WARRANTY ABOUT THE ACCURACY OR COMPLETENESS OF ANY INFORMATION IN THE PRODUCT OR ANY INFORMATION CONTAINED THEREIN. LEVELTEN MAKES NO WRITTEN, ORAL, STATUTORY, EXPRESS, OR IMPLIED WARRANTIES, CONDITIONS OR REPRESENTATIONS, CONCERNING THE PRODUCT OR ITS CONTENTS INCLUDING, WITHOUT LIMITATION, CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE.
3.2 WITH RESPECT TO EACH PRODUCT, CUSTOMER WARRANTS AND REPRESENTS THAT: (i) CUSTOMER IS ACTING FOR PURPOSES WHICH ARE WHOLLY IN CONNECTION WITH ITS INTERNAL BUSINESS PURPOSES AND NOT IN CONNECTION WITH ANY PERSONAL PURPOSES OR WITH ANY DATA PRODUCT, SERVICE, OR OFFERING COMPETITIVE WITH ANY LEVELTEN PRODUCT, SERVICE, OR OFFERING; (ii) ALL NECESSARY CORPORATE ACTIONS HAVE BEEN TAKEN AND ALL NECESSARY THIRD PARTY CONSENTS AND LICENSES OBTAINED TO ENABLE CUSTOMER TO ENTER INTO THE AGREEMENT; (iii) CUSTOMER WILL COMPLY WITH ALL APPLICABLE LAWS AND REGULATIONS IN CONNECTION WITH ITS USE OF THE PRODUCT AND THE PERFORMANCE OF ITS OBLIGATIONS UNDER THE AGREEMENT, INCLUDING WITHOUT LIMITATION ANY EXPORT CONTROL RESTRICTIONS AND LAWS RELATING TO ANTI-BRIBERY AND ANTI-MONEY LAUNDERING.
4. Limitation of Liability
4.1 UNDER NO CIRCUMSTANCES SHALL LEVELTEN BE LIABLE FOR: (i) SPECIAL, INCIDENTAL OR PUNITIVE LOSSES OR DAMAGES; (ii) INDIRECT OR CONSEQUENTIAL LOSSES OR DAMAGES; OR (iii) LOSS OF BUSINESS, REVENUE, GOODWILL, PROFITS, CONTRACTS OR ANTICIPATED SAVINGS (WHETHER SUCH LOSS IS DIRECT OR INDIRECT, FORESEEABLE OR OTHERWISE), IN ANY SUCH CASE ARISING FROM OR IN CONNECTION WITH OR OTHERWISE RELATING TO THE PRODUCT OR THE AGREEMENT, WHETHER ON THE BASIS OF NEGLIGENCE, TORT, BREACH OF CONTRACT, MISREPRESENTATION OR OTHERWISE. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, UNDER NO CIRCUMSTANCES SHALL LEVELTEN BE LIABLE FOR ANY CLAIMS ARISING OUT OF OR IN CONNECTION WITH THE PRODUCT OR THIS AGREEMENT, ON WHATSOEVER BASIS, IN AN AMOUNT IN EXCESS OF THE AMOUNT ACTUALLY PAID BY CUSTOMER (EXCLUDING TAX) UNDER THE AGREEMENT.
4.2 No Product nor the information therein, includes, nor shall be construed as including, advice, guidance, or recommendations from LevelTen to take, or not to take, any actions or decisions in relation to any matter, including in relation to the purchase or sale of renewable energy or any renewable energy project assets, or investments or the purchase or sale of any securities, shares, or other assets of any kind. Should Customer or any other person take any such action or decision based on information in a Product, Customer or such other person does so entirely at its own risk and LevelTen shall have no liability whatsoever for any loss, damage, costs, or expenses incurred or suffered by Customer or any other person as a result.
4.3 Notwithstanding anything to the contrary herein, LevelTen does not limit or exclude its liability for fraud or fraudulent misrepresentation or willful misconduct hereunder, or any liability which cannot by law be restricted or limited.
5. Proprietary Rights
5.1 Except as set forth herein, as between the parties, LevelTen shall retain all right, title, and interest in and to any and all intellectual property rights, including without limitation copyrights, patents, trademarks, trade secrets, moral rights, goodwill, know-how and all rights and forms of protection of a similar nature (“Intellectual Property Rights”) in each Product and portion and copy thereof.
5.2 Customer shall not alter, obscure, remove, interfere with, or add to any of the LevelTen trademarks, trade names, markings or notices affixed to or contained in any Product, and Customer shall ensure that all such LevelTen trademarks, trade names, markings and notices are reproduced completely and legibly on all copies of such Product. If Customer copies any portion of a Product or uses any information contained in a Product in any new file (to the extent expressly permitted hereunder), such copy or information must be expressly attributed to LevelTen (e.g., “Source: LevelTen Energy, Inc.”).
6. Indemnification
6.1 Customer agrees to indemnify, hold harmless, and defend LevelTen and its officers, directors, employees, shareholders, agents, consultants, or other representatives, with counsel acceptable to LevelTen, at Customer’s expense, from and against all losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to this Agreement or Customer’s use of the Product or any portion thereof (including any claims relating to non-payment of taxes in connection with any license fee).
6.2 LevelTen agrees to indemnify, hold harmless, and defend all suits, actions and claims brought against Customer in respect of, and shall pay all settlements and judgments directly resulting from or relating to any suits, actions or claim that a Product infringes any Intellectual Property Right of any person not licensed hereunder, except for any claim which arises from breach of this Agreement by Customer or from a modification to any material from a Product not made by LevelTen. LevelTen’s obligations under this Section 5.2 are contingent upon Customer: (a) promptly notifying LevelTen of such alleged infringement or violation; (b) making no admission as to liability in respect of any such claim, or otherwise prejudicing LevelTen's defense of any suit, action or claim; (c) allowing and appointing LevelTen’s representatives by way of power of attorney, if required, to arrange the conduct, settlement, negotiation or litigation of such claim to be solely handled by LevelTen; and (d) reasonably cooperating with LevelTen, at LevelTen’s reasonable expense, in the defense of any such claim to the extent requested to do so by LevelTen. In no event shall LevelTen be liable for any compromise or settlement entered into by Customer without LevelTen’s prior consent. Notwithstanding any other provision of this Agreement, if any such infringement shall be alleged LevelTen shall have the right, in its discretion, to (i) modify or replace a Product (or portion thereof) to avoid the infringement, (ii) procure the right for Customer to continue using such Product or (iii) terminate Customer’s license to the Product and/or this Agreement.
7. Term and Termination.
7.1 Subscription Term. Unless otherwise specified in the Order Form, the Subscription Term for a Report Subscription or Data Product shall begin on the effective date of the Order Form and continue for a one-year initial term, which shall automatically renew for additional one-year terms, provided that either party may terminate the Subscription Term (i) by providing written notice to the other party of its election to terminate access to such Subscription Product at least 30 days before the end of the applicable term, or (ii) if LevelTen no longer has the necessary rights from third parties to distribute the Subscription Product.
7.2 Agreement Term and Termination. Either party may terminate this Agreement if: (i) the other Party commits a breach of any material term or condition of this Agreement and (if such breach is capable of cure) does not cure such breach within 10 business days of written notice; or (ii) the other Party’s assets are transferred to an assignee for the benefit of creditors, to a receiver or to a trustee in bankruptcy, a proceeding is commenced by or against the other Party for relief under bankruptcy or similar laws and such proceeding is not dismissed within 60 days, or the other Party is adjudged bankrupt. Notwithstanding the foregoing, LevelTen may terminate this Agreement (a) immediately and unilaterally without written notice to Customer if LevelTen reasonably concludes that Customer is in breach of the license terms and restrictions set forth in Section 1 hereof; and (b) immediately upon written notice to Customer if LevelTen considers such termination necessary to comply with a legal or regulatory requirement.
7.3 Upon termination of this Agreement: (i) Customer’s license to access and use each Data Product licensed hereunder, and all information contained therein, will terminate immediately and Customer shall make no further use whatsoever of such Data Product and the information contained therein, and Customer shall within five (5) days destroy all copies of each such Data Product and any part of any document or electronic file held by Customer that contains data and other information extracted, exported or reproduced from such Data Product; (ii) if the Agreement was terminated due to Customer’s breach under Section 7.2, Customer’s license to access and use all Reports licensed hereunder, and all information contained therein, will terminate immediately and Customer shall make no further use whatsoever of such Reports and the information contained therein, and Customer shall within five (5) days destroy all copies of such Reports and any part of any document or electronic file held by Customer that contains data and other information extracted, exported or reproduced from such Reports.
7.4 Except as set forth herein, the termination of this Agreement shall not affect any rights or obligations of either party which have accrued prior to the date of termination. Any terms and obligations, which by their nature, are intended to survive the termination of this Agreement, shall survive.
8. Fees;
Taxes.8.1 Customer shall pay the Fee for each Product licensed hereunder pursuant to the terms set forth in the Order Form or invoice. Unless otherwise stated on the Order Form or invoice, Fees exclude, and Customer shall pay, all sales or use tax, value added tax or any other tax or other governmental charge payable in connection with Customer’s use and access of the Product.
8.2 If LevelTen elects to provide Customer any Product prior to Customer having paid the applicable Fee, such election by LevelTen shall not relieve Customer of Customer’s obligation to pay such Fee. No Fee is refundable for any reason.
8.3 Each Fee is net of any applicable withholding taxes that may be imposed by governmental authorities of any country from which payment of such Fee may be made. If any such withholding taxes are imposed or collected in connection with such Fee in a manner that results in the amount received by LevelTen being reduced below the amount of the applicable Fee, Customer shall be responsible for paying to LevelTen such additional amounts that are necessary to cause LevelTen to have received the full amount of the applicable Fee net of such taxes.
8.4 Unless otherwise agreed in the Order Form, LevelTen reserves the right to modify the Fees for subscription Products at the time the Subscription Term renews by providing notice of such modification to Customer at least 30 days prior written notice; provided such change will occur no more than once in any 12 month period.
9. Injunctive Relief
Customer agrees that there can be no adequate remedy at law for any breach of the license terms and restrictions hereunder and that LevelTen, in addition to whatever other remedies it might have at law or in equity, shall be deemed to have suffered irreparable harm, and shall be entitled to appropriate equitable relief to prevent the use of any Product in breach of this Agreement or the unauthorized use, copying, or distribution of any Product or portion thereof.
10. Notices
All notices or other communications pursuant to this Agreement shall be made in writing and shall be delivered by personal delivery, by prepaid registered or certified mail (return receipt requested), by overnight courier (with receipt for delivery), to the applicable address specified, in Customer’s case, on the Site or in the applicable order form or invoice in connection with Customer’s order of any Product licensed hereunder, or in the case of LevelTen, to LevelTen at LevelTen Energy, Inc., Attn: Legal Department, 837 N. 34th Street, Suite 200, Seattle, WA, 84103, or as otherwise notified to Customer from time to time.
11. Miscellaneous
This Agreement will be interpreted and construed in accordance with the laws of the State of New York, without application of any principles of choice of laws. This Agreement embodies the entire understanding of the parties and supersedes all previous communications, representations, or understandings, either oral or written, between the parties relating to the subject matter of this Agreement. If any provision, clause, or application of this Agreement to any party or circumstance is held invalid and unenforceable, this shall not affect any other provision, clause, or application of this Agreement. This Agreement may not be amended unless such amendment is made in writing and signed by both parties. No failure or delay by either party in exercising any right, power or privilege under this Agreement will operate as a waiver of such right, power or privilege. Customer may not assign any of its rights and privileges under this Agreement without LevelTen’s prior written consent.
12. Data Privacy
12.1 In this section 12, (i) "Data Protection Law" means all data protection and privacy laws and regulations applicable to the processing of personal data under the Agreement, as amended, repealed, consolidated, or replaced from time to time, including without limitation and as applicable, the General Data Protection Regulation (EU) 2016/679 (the “GDPR”); and (ii) "controller", "processor", "data subject", "personal data", "processing" and "process" shall have the meanings given in applicable Data Protection Law.
12.2 In relation to any personal data processed in connection with this Agreement, each party shall be responsible for complying with the obligations that apply to it as a controller under applicable Data Protection Law. In particular, (and without limitation), Customer shall comply with all necessary transparency and lawfulness requirements under applicable Data Protection Law in order for Customer to disclose personal data, and for LevelTen to process the personal data Customer discloses, for the purpose of providing the Product and as otherwise described in this Agreement.
12.3 Each party shall provide the other party with all reasonable and timely assistance to enable the other party to respond to: (i) any request from a data subject to exercise any of its rights under applicable Data Protection Law (including its rights of access, correction, objection, erasure and data portability, as applicable); and (ii) any other correspondence, inquiry or complaint received from a data subject, regulator or other third party in connection with the processing of personal data in connection with this Agreement. If any such request, correspondence, inquiry, or complaint is made directly to either party, that party shall promptly inform the other party providing full details of the same.
Last updated August 21, 2023
