Terms of Service Agreement

Last updated on: July 13, 2023

1. INTRODUCTION

Thank you for selecting the software and services offered by BMO Radicle Inc. (referred to as “BMO Radicle”, “we”, “us”, or “our”). These Terms of Service together with any Service Specific Terms or other appendices or attachments hereto, including any documents and/or additional terms they expressly incorporate by reference (collectively the “Terms of Service” or “Agreement”) is between BMO Radicle and the customer who accepts these terms (“You” or “Customer”) and governs your use of the Service. PLEASE READ THESE TERMS OF SERVICE CAREFULLY BEFORE USING THE SERVICE OFFERED BY BMO RADICLE.

BY ACCEPTING THIS AGREEMENT OR ACCESSING OR USING THE SERVICE, YOU ACCEPT AND AGREE TO BE BOUND AND COMPLY WITH THESE TERMS OF SERVICE AND OUR PRIVACY POLICY, FOUND AT HTTPS://RADICLEBALANCE.COM/PRIVACY-POLICY, INCORPORATED HEREIN BY REFERENCE. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE OR THE PRIVACY POLICY, YOU MUST NOT ACCESS OR USE THE SERVICES. You represent and warrant that you have the legal power and authority to enter into this Agreement and, if applicable, you are an employee or agent with all necessary authority to enter into this binding Agreement for your employer or principal as applicable. WE MAY MODIFY OR TERMINATE THIS AGREEMENT FROM TIME TO TIME FOR ANY REASON AT ANY TIME IN OUR SOLE DISCRETION. NOTIFICATIONS OF A CHANGE IN THIS AGREEMENT WILL BE POSTED IN THE CLIMATE SMART SOFTWARE OR SENT BY E-MAIL TO YOU.

2. DEFINITIONS

2.0 “Account” or “User” means a unique account created for You to access our Service or parts of our Service.

2.1 “Add-On” means any additional service, product or other add-ons that are used with the Service as indicated in an invoice.

2.2 “Affiliate” means an entity that controls, is controlled by or is under common control with a party, where "control" means ownership of 50% or more of the shares, equity interest or other securities entitled to vote for election of directors or other managing authority.

2.3 “Aggregate/Anonymous Data” means (i) data generated by aggregating Customer Data with other data so that results are non-personally identifiable with respect to Customer; and (ii) learnings, logs, and data regarding use of the Service.

2.4 “Certification Requirements” means the criteria for Climate Smart™ certification as prescribed by BMO Radicle as may be amended from time to time in the sole discretion of BMO Radicle.

2.5 “Climate Smart Software” means any and all proprietary technology-enabled services product(s) of BMO Radicle made available to You, including but not limited to (a) computer programs, including any and all software implementation of algorithms, models and methodologies, whether in source code, object code, human readable form or other form; (b) data, databases and compilations, including any and all data and collections of data, whether machine readable or otherwise; (c) descriptions, flow charts and other work products used to design, plan, organize and develop any of the foregoing; (d) screens, user interfaces, scripts, report formats, firmware, development tools, templates, menus, buttons and icons; and (e) documentation, including user manuals and other training documentation, relating to any of the foregoing but for certainty excluding any Add-On.

2.6 “Confidential Information” means trade secrets, information, code, calculations, know-how, product plans, including technical and financial information exchanged under this Agreement, that is intended as confidential at the time of disclosure or should reasonably be considered confidential based on circumstances surrounding the disclosure and the nature of the information disclosed. The Confidential Information of BMO Radicle includes BMO Radicle Technology. Confidential Information includes all information that the Disclosing Party, or any directors, officers, contractors, employees or agents of the Disclosing Party discloses to the Recipient, except:

  1. information that is in the public domain at the time of its disclosure to the Recipient;
  2. information that was, prior to its disclosure to the Recipient, lawfully in the Recipient's possession without any obligation to maintain its confidentiality; and
  3. information received by the Recipient from a third party who was not, to the Recipient's knowledge, under a duty of confidentiality to the Disclosing Party at the time.

2.7 “Confidential Materials” means all records or copies of Confidential Information, including, without limitation, electronic, written or printed documents, and computer data, disks or tapes, whether machine or user readable.

2.8 “Content” means any content such as text, images, videos or other information or data, including Personal Information, that can be posted, uploaded, linked to or otherwise made available, regardless of the form of that content.

2.9 “Customer Data” means any and all Content uploaded, inputted, or otherwise submitted by Customer to the Services, including Third-Party Content.

2.10 “Disclosing Party” means the Party who discloses information or materials to the other Party.

2.11 “Feedback” means feedback, innovations or suggestions sent by You regarding the attributes, performance or features of the Service or Add-Ons.

2.12 “Partner” is a program sponsor or other organization including but not limited to local and regional governments, that subsidize the cost of the Service.

2.13 “Party” means each of BMO Radicle and Customer individually, collectively the “Parties”.

2.14 “Personal Information” means any information about an identifiable individual or information that is otherwise governed by applicable privacy laws.

2.15 “Promotion” means any limited-time promotional service or product offering.

2.16 “BMO Radicle Technology” means the Service, any and all related or underlying documentation, technology, code, know-how, intellectual property, logos, data and templates (including in any reports or output obtained from the Service), anything delivered as part of support or other services, and any updates, modifications or derivative works of any of the foregoing, including as may incorporate any Feedback.

2.17 “Recipient” means the Party who receives information or materials from the Disclosing Party.

2.18 “Seal” means the Climate Smart and Climate Smart Carbon Neutral logos and wordmarks provided upon achieving certification.

2.19 “Seal Usage Guidelines” means the guidelines for use of the Seal as prescribed by BMO Radicle as may be amended from time to time in the sole discretion of BMO Radicle.

2.20 “Service” means the Climate Smart Software, any and all related or underlying documentation, technology, code, know-how, intellectual property, logos, Content and templates (including any reports or outputs obtained from the Climate Smart Software), anything delivered as part of support or other services provided by BMO Radicle in connection with the Climate Smart Software, and any updates, modifications or derivative work of any of the foregoing, including as may incorporate any feedback, but excluding any Add-On.

2.21 “Service Specific Terms” means Appendix A of these terms and conditions and any other terms and conditions which are identified as being specific to a particular part of the Services.

2.22 “Subscription” means the use of or access to the Service offered on a subscription basis by BMO Radicle to You.

2.23 “Subscription Term” means, unless indicated otherwise in an invoice, the initial term of 12-months for the subscription to the applicable Services, and each subsequent renewal terms (if any).

2.24 “Subscription Fee” means the total fees for a Subscription to the applicable Services including any applicable taxes and any other amounts indicated in an invoice, or in the event there is no invoice, as normally priced by BMO Radicle and any applicable taxes.

2.25 “Terms of Service” mean these terms and conditions, together with any Service Specific Terms or other appendices or attachments hereto, including any documents and/or additional terms they expressly incorporate by reference, that form the entire agreement between You and BMO Radicle regarding the use of the Service.

2.26 “Third-Party” means an entity other than a Party or its Affiliates.

2.27 “Third-Party Content” means any Content sourced from a Third-Party or Third-Party Product.

2.28 “Third-Party Product” means any application, integrations, software, code, online or offline service, system, data, other products, and services, and add-ons not developed by BMO Radicle.

2.29 “Third-Party Social Media Service” means any services or content (including data, information, products, or services) provided by a third-party that may be displayed, included or made available by the Service.

2.30 “You”, “Your” means the individual accessing or using the Service, or the company, or any other person or legal entity on behalf of which such individual is accessing or using the Service, as applicable.

3. Subscription

3.0 Subscription Term and Renewals. By executing an order for subscription to the Service or using the Service or accessing the Service, You agree to pay the Subscription Fee and all other fees reasonably applied by BMO Radicle for the entire Subscription Term. All sales, value-added, and excise taxes, and any similar taxes, duties and charges of any kind imposed by any federal, provincial, state or local governmental or regulatory authority applicable to the Service under this Agreement are your Responsibility. You cannot cancel or terminate this Agreement during the Subscription Term except as expressly permitted by Section 3.1 (Early Termination). Each Subscription will automatically renew after the initial term of 12-months for additional successive 12-month periods unless either Party gives written notice of non-renewal at least (30) days before the end of the current Subscription Term. Pricing for any Subscription Term renewal, new invoice, or invoice changes will be at BMO Radicle’s then-applicable rates. Subject to the other provisions of this Agreement (including Section 3.2 Service Suspension, your timely payment of the applicable Subscription Fee and your compliance with the terms of this Agreement), BMO Radicle will provide you with access to the Service until the expiry of the current Subscription Term. You shall not exceed the scope or access or use of the Service beyond what You have subscribed for.

3.1 Early Termination. You may terminate this Agreement, including any related invoice, upon and in the event that BMO Radicle: (i) fails to cure any material breach of this Agreement within thirty (30) days after receiving written notice detailing the breach; (ii) ceases operation without a successor; or (iii) if permitted by applicable law, seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any of these proceedings are instituted against BMO Radicle (and not dismissed within sixty (60) days thereafter).

3.2 Service Suspension. BMO Radicle may suspend a Your Account or use of the Service or access to the Service as follows: (a) immediately if BMO Radicle reasonably believes Your use of the Service may pose a security risk to or may adversely impact BMO Radicle or the Service; (b) immediately if You become insolvent, cease to operate in the ordinary course, make an assignment for the benefit of creditors, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding, or if You seek protection under any bankruptcy, receivership, trust deed, creditor arrangement, composition, or comparable proceeding; (c) following thirty (30) days written notice if You breach this Agreement or terms of any order (and has not cured such breach, if curable, within the thirty (30) days of such notice); or (d) You fail to pay BMO Radicle the Subscription Fee with respect to the Services in accordance with this Agreement. All Subscription Fees remain due and payable during any period of Service suspension. BMO Radicle will cooperate with You to restore access to the Services once it verifies that You have resolved the condition(s) leading to suspension. You acknowledge that the Service may also be unavailable from time to time during planned or unscheduled maintenance or interruptions.

3.3 Trials. BMO Radicle may provide You the Service on a trial basis which is optional for You to use. You acknowledge and agree that any such trial is provided on an “as-is” basis and the trial is provided without any indemnification, support, or warranties or representations of any kind.

4. Customer Data

4.0 Rights in Customer Data. You retain all right, title, and interest (including any intellectual property rights) in and to the Customer Data (excluding for certainty any BMO Radicle Technology). You hereby grant BMO Radicle a non-exclusive, worldwide, royalty-free right and license to collect, use, copy, store, transmit, modify, and create derivative works of the Customer Data solely to the extent necessary to provide the Service, Add-Ons and related services to You and as set out in Section 4.1 (Aggregate/Anonymous Data).

4.1 Aggregate/Anonymous Data. You agree that BMO Radicle will have the right to generate Aggregate/Anonymous Data, including from Customer Data and that such Aggregate/Anonymous Data is BMO Radicle Technology, which BMO Radicle may use for any business purpose during or after expiry of this Agreement (including without limitation to develop and improve BMO Radicle’s products and services and to create and distribute reports and other materials). For clarity, BMO Radicle will only disclose Aggregate/Anonymous Data externally in a de-identified (anonymous) form that does not identify You and that has had persistent identifiers (such as device identifiers, IP addresses, and cookie IDs) removed.

4.2 Confidentiality. The Recipient shall keep confidential all Confidential Information and Confidential Materials they receive during the Subscription Term and after for the longer of: a) 3 years, or b) the maximum extent permitted by law. The Recipient shall take all reasonable security precautions and exercise the degree of care that a prudent owner would reasonably be expected to exercise for their own benefit, with respect to the Confidential Information and Confidential Materials. Subject to these Terms of Service, the Recipient shall not, without the prior written consent of the Disclosing Party (which may be arbitrarily withheld), disclose any Confidential Information or Confidential Materials to any Third-Party or other entity, except as may be required by law. This obligation shall survive indefinitely upon termination of the Agreement.

The Recipient shall notify the Disclosing Party immediately on discovery of any unauthorized use or disclosure of Confidential Information or Confidential Materials, or any other breach of this Agreement. The Recipient shall fully cooperate with the Disclosing Party to help the Disclosing Party regain possession of the Confidential Information and Confidential Materials and prevent any further unauthorized use and disclosure of it.

If the Recipient is required by law or judicial or administrative process to disclose any Confidential Information or Confidential Materials, they shall first:

  1. provide the Disclosing Party with as much notice as reasonably possible;
  2. make every effort to advance a confidentiality defense, based on this Agreement, to ensure that confidential treatment is accorded the Confidential Information and Confidential Materials; and
  3. cooperate with the Disclosing Party (and any affiliate) in any application, proceeding or other action to obtain a protective order or other means of protecting the confidentiality of the Confidential Information and Confidential Materials.

The Recipient shall, forthwith upon the Disclosing Party's request, return to the Disclosing Party all originals, copies and reproductions of Confidential Materials and all summaries of Confidential Information.

4.3 Partner Use of Data. Except pursuant to Section 4.1 (Aggregate/Anonymous Data), emissions reduction data attributed to Customer will not be released outside BMO Radicle and its Affiliates or Partners without obtaining Your prior written consent, and when emissions reductions data about Customer is shared with Partners, it will be used for internal reporting purposes only, unless prior written consent to publicize that information is obtained by the Partner from Customer. Updates on Your organization’s Service status such as whether your GHG inventory is complete and whether reduction strategies have been submitted may be provided to the Partner(s).

4.4 Data Security. BMO Radicle agrees to maintain commercially reasonable technical and organizational measures designed to secure its systems and Customer Data from unauthorized access, use, disclosure and modification. BMO Radicle is not responsible for unauthorized access to Customer Data or the unauthorized use of the Services unless such access is directly due to BMO Radicle’s willful misconduct.

4.5 Customer Responsibility. Customer is solely responsible for Customer Data including, but not limited to; (i) compliance with all applicable laws and this Agreement; (ii) any claims relating to Customer Data; (iii) any claims that Customer Data infringes, misappropriates, or otherwise violates the rights of any Third-Party; and (iv) backing-up and maintaining Customer Data. You retain any and all of Your rights to any Customer Data You submit, post or display on or through the Service and You are responsible for protecting those rights. You represent and warrant that: (i) the Content of Customer Data is Yours (i.e. You own it) or You have the right to use it and grant Us the rights and license as provided in this Agreement, including Section 4.0 (Rights in Customer Data), and (ii) the posting of Your Content and Customer Data on or through the Service does not infringes, misappropriates, or otherwise violates the rights of any Third-Party, and is in compliance with all applicable laws including all applicable laws governing privacy or the processing of Personal Information. BMO Radicle provides the ability for Customer to export Customer data in Excel at any time in the Service during the Subscription Term. BMO Radicle has no obligation to retain or maintain any Customer Data after the Subscription Term.

4.6 Content Restrictions. BMO Radicle is not responsible for the Content of the Service's users. You expressly understand and agree that You are solely responsible for the Content and for all activity that occurs under your Account, whether done so by You or any Third-Party using Your Account.

You may not transmit any Content that is unlawful, offensive, upsetting, intended to disgust, threatening, libelous, defamatory, obscene or otherwise objectionable. Examples of such objectionable Content include, but are not limited to, the following:

BMO Radicle reserves the right, but not the obligation, to, in its sole discretion, determine whether any Content is appropriate and complies with this Agreement, and to refuse or remove such Content. BMO Radicle further reserves the right to make formatting and edits and change any Content. BMO Radicle can also, at its sole discretion, limit or revoke the use of the Service if You post any objectionable Content. As BMO Radicle cannot control all Content posted by users and/or third parties on the Service, you agree to use the Service at your own risk. You understand that by using the Service You may be exposed to Content that You may find offensive, indecent, incorrect, or objectionable, and You agree that under no circumstances will BMO Radicle be liable in any way for any Content, including any errors or omissions in any content, or any loss or damage of any kind incurred as a result of Your use of any Content.

4.7 Data Retention. BMO Radicle does not provide an archiving service. After the Subscription Term, Customer acknowledges that BMO Radicle may delete or otherwise dispose of Customer Data and Content no longer in active use. BMO Radicle expressly disclaims all other obligations with respect to storage.

4.8 Data Backups. Although regular backups of Content are performed, BMO Radicle does not guarantee there will be no loss or corruption of data. Corrupt or invalid backup points may be caused by, without limitation, Content that is corrupted prior to being backed up or that changes during the time a backup is performed. You acknowledge that BMO Radicle has no liability related to the integrity of Content or the failure to successfully restore Content to a usable state.

You agree to maintain a complete and accurate copy of any Customer Data and your Content in a location independent of the Service.

5. SERVICES

BMO Radicle makes available web-based support through its website. Additional support and advisory services may be made available to You over the phone and email during regular business hours upon payment of applicable fees (if any), as specified in an invoice. Any support and advisory services are subject to this Agreement and BMO Radicle’s applicable support and advisory policies and terms and conditions. BMO Radicle may also make onboarding, data migration and other services available to You. The scope, pricing, and other terms and conditions for these additional services will be specified in an invoice, invoice exhibit, agreement or other document referencing this Agreement. Among other things, BMO Radicle’s ability to deliver additional services will depend on Your reasonable and timely cooperation and the accuracy and completeness of any information from You needed to deliver these services. To ensure appropriate levels of coverage for the Service, BMO Radicle may require You to purchase additional advisory services at its sole discretion in order to continue using the Service.

6. CUSTOMER OBLIGATIONS

You agree to:

  1. complete parts of the Climate Smart training on greenhouse gases (GHG) inventory best practices and/or on using the GHG management tool.
  2. follow principles of the GHG Protocol: A Corporate Accounting and Reporting Standards to the best of your ability when gathering and entering emissions data in the Climate Smart GHG management tool.
  3. not permit access or use of the Service except as expressly permitted by this Agreement, including knowingly (i) using the Service in an unlawful manner, (ii) disrupting, in any way, the operation of the Service, (iii) using the Service to send or receive malicious code or (iv) gaining unauthorized access to the Service.
  4. not (i) except in the normal course of use for the display of information during use of the Service, copy the Service, (ii) decompile, disassemble or otherwise reverse engineer the Service (iii) distribute, sublicense or rent access to the Service; (iv) enter into a timesharing arrangement for use of the Service by third parties; or (v) operate a service bureau using the Service.
  5. not use the Service to develop similar or competing software products or services to the Service.

7. FEES AND PAYMENT

7.0 Fees. You agree to pay all Subscription Fees, fees for Add-Ons, fees for additional support and advisory services and other amounts in the currency and payment method specified as set forth in each applicable invoice(s), or if none is provided in Canadian dollars by cheque, to BMO Radicle. All amounts payable to BMO Radicle under this Agreement shall be due upon receipt. If You require a purchase order number referenced on BMO Radicle’s invoice, You must promptly provide the purchase order number. If You do not promptly provide the purchase order number, You agree to pay the invoice without a referenced purchase order number. Some customers may have the option to pay by credit card. If You are paying by credit card, You authorize BMO Radicle to charge Subscription Fees and other amounts automatically to such credit card without invoice. Late payments may be subject to a service charge equal to the lesser of 1.5% per month of the amount due or the maximum amount allowed by law. If BMO Radicle is required to initiate legal action due to nonpayment of fees, You shall bear all costs resulting from the collection of any amounts owed.

7.1 Additional Services. You may order additional Service or extend the term of the existing Service by specifying such order details in an invoice executed in writing by the Parties referencing the terms and conditions of this Agreement.

7.2 Fee change. BMO Radicle, in its sole discretion and at any time, may modify the Subscription Fee or any fee for Add-Ons. Any Subscription Fee and Add-On fee change will become effective at the end of the current Subscription period. BMO Radicle will provide You at least 30 days prior notice of any change in Subscription Fee to give You an opportunity to terminate Your Subscription before such change becomes effective. Your continued use of the Service after the Subscription Fee and Add-On fee change comes into effect constitutes Your agreement to pay the modified Subscription Fee amount.

Previously discounted Subscriptions and legacy fees will be considered and addressed on a case-by-case basis and granted at the sole discretion of BMO Radicle.

7.3 Refunds. Except when required by law, paid Subscription Fees or Add-On fees are non-refundable and non-creditable and payment obligations non-cancellable.

7.4 Promotions. Any Promotions made available through the Service may be governed by terms and conditions that are separate from these Terms of Service and shall apply in addition to and supersede these Terms of Service. If You participate in any Promotions, please review the applicable rules as well as our Privacy Policy which can be found at https://radiclebalance.com/privacy-policy. If the rules for a Promotion conflict with these Terms, the Promotion rules will apply.

8. USER ACCOUNTS

When You create an account with Us, You must provide Us with information that is accurate, complete, and current at all times. Failure to do so constitutes a breach of the Terms, which may result in immediate termination of Your account on the Service. You are responsible for safeguarding the password that You use to access the Service and for any activities or actions under Your password, whether on Our Service or a Third-Party Social Media Service.

You agree not to disclose Your password to any third party. You must notify Us immediately upon becoming aware of any disclosure of your password, breach of security or unauthorized use of Your account.

You may not use as a username the name of another person or entity or that is not lawfully available to you for use, including a name or trademark that is subject to any rights of another person or entity other than You without appropriate authorization, or a name that is otherwise offensive, vulgar or obscene.

9. THIRD-PARTY PRODUCTS AND INTEGRATIONS

If You use a Third-Party Product in connection with the Service, those products may make Third-Party Content available to You and may access Your instance of the Service, including Customer Data. BMO Radicle does not warrant or support Third-Party Content and disclaims all responsibility and liability for these items and their access to the Service, including their modification, deletion, disclosure, or collection of Customer Data. It is Your responsibility to verify the accuracy of the data once imported into the Service.

10. INTELLECTUAL PROPERTY

10.0 Intellectual Property. The Service (excluding Content provided by You or other users), features and functionality are and will remain the exclusive property of the BMO Radicle and its licensors. The Service is protected by copyright, trademark, and other laws of both Canada and foreign countries. To the maximum extent allowed by law, You shall not, directly or indirectly, reverse engineer, decompile, decode, or otherwise attempt to obtain the source code of any portion of the Service. Our trademarks, trade dress and other intellectual property may not be used in connection with any product or service without the prior written consent of BMO Radicle.

10.1 Infringement. We respect the intellectual property rights of others. It is Our policy to respond to any claim that Content posted on the Service infringes a copyright or other intellectual property of any person. If You are a copyright owner, or authorized on behalf of one, and You believe that the copyrighted work has been copied in a way that constitutes copyright infringement that is taking place through the Service, You must submit Your notice in writing to the attention of our copyright agent via email at dmca@radiclebalance.com and include in Your notice a detailed description of the alleged infringement. You may be held accountable for damages (including costs and attorney’s fees) for misrepresenting that any Content is infringing Your copyright.

10.2 DMCA Notice and DMCA Procedure for Copyright Infringement Claims. You may submit a notification pursuant to the Digital Millennium Copyright Act (DMCA) by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):

You can contact our copyright agent via email at dmca@radiclebalance.com. Upon receipt of a notification, BMO Radicle will take whatever action, in its sole discretion, it deems appropriate, including removal of the challenged Content from the Service.

11. Display of Trademarks

By using the BMO Radicle services, Customer gives BMO Radicle the right to our display of your company name and logo to identify you as a client, in association with one or more of the following promotional activities: (i) a case study, (ii) testimonials, (iii) in marketing materials, (iv) in our training to reference actions taken by your company to reduce emissions, (v) on our website on the Climate Smart business directory page where we publish a list of companies we have worked with. This consent survives the expiration of this agreement.

12. FEEDBACK

You assign all rights, title and interest in any Feedback You provide BMO Radicle. If for any reason such assignment is ineffective, You agree to grant BMO Radicle a non-exclusive, perpetual, irrevocable, royalty free, worldwide right and license to use, reproduce, disclose, sub-license, distribute, modify and exploit such Feedback without restriction.

13. LINKS TO OTHER WEBSITES

Our Service may contain links to third-party web sites or services that are not owned or controlled by BMO Radicle. BMO Radicle has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third-party web sites or services. You further acknowledge and agree that BMO Radicle shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such Content, goods or services available on or through any such web sites or services.

We strongly advise You to read the terms and conditions and privacy policies of any third-party web sites or services that You visit.

14. LIMITATION OF LIABILITY

Notwithstanding any damages or harm that You might incur, the entire liability of BMO Radicle, its Affiliates, employees, officers, directors, contractors, agents, representatives and any of its suppliers under any provision of this Terms of Service, whether based in contract, tort or any other form of action, and Your exclusive remedy for all of the foregoing shall be limited to the amount actually paid by You under this Agreement during the twelve months preceding such action, or one hundred ($100) USD if You have not actually paid any amounts under this Agreement in such preceding twelve months..

To the maximum extent permitted by applicable law, in no event shall BMO Radicle, its Affiliates, employees, officers, directors, contractors, agents, representatives or its suppliers be liable for any special, incidental, indirect, or consequential damages whatsoever (including, but not limited to, damages for loss of profits, loss of data or other information, for business interruption, for personal injury, loss of privacy arising out of or in any way related to the use of or inability to use the Service, third-party software and/or third-party hardware used with the Service, or otherwise in connection with any provision of this Terms of Service), even if BMO Radicle or any supplier has been advised of the possibility of such damages and even if the remedy fails of its essential purpose.

Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply. In these jurisdictions, BMO Radicle's liability will be limited to the greatest extent permitted by law.

15. INDEMNITY

You will indemnify us, our suppliers, Partners and contractors, and each of their respective employees, officers, directors, contractors, and representatives, and, at Our option, defend Us and Our employees, officers, directors, contractors, and representatives, from and against any claims, damages, liabilities, losses, costs and expenses (including reasonable attorney’s fees) arising from or in connection with: (i) Your use of the Service; (ii) Customer Data including Your Content; (iii) any violation of laws or rights of others by your use of the Service; (iv) operation, combination, or use of the Service in conjunction with any of Customer Data and/or in conjunction with any Third-Party Product, Third-Party content or Third-Party Social Media service; (v) an adjustment or configuration of the Service made by you or a Third-Party to which you facilitate or permit access to the Service; (vi) any claims by any user or any third party to which you facilitate or permit access to the Service; (vii) your use of Climate Smart or BMO Radicle trademarks, designations, logos and other intellectual property in breach of any authorization granted to you by Us.

16. "AS IS" AND "AS AVAILABLE" DISCLAIMER

The Service is provided to You "AS IS" and "AS AVAILABLE" and with all faults and defects without warranty of any kind. To the maximum extent permitted under applicable law, BMO Radicle, on its own behalf and on behalf of its Affiliates and its and their respective licensors and service providers, expressly disclaims all warranties, whether express, implied, statutory or otherwise, with respect to the Service, including all implied warranties of merchantability, fitness for a particular purpose, title and non-infringement, and warranties that may arise out of course of dealing, course of performance, usage or trade practice. Without limitation to the foregoing, BMO Radicle provides no warranty or undertaking, and makes no representation of any kind that the Service will meet Your requirements, achieve any intended results, be available at all times or at all, be compatible or work with any other software, applications, systems or services, operate without interruption, meet any performance or reliability standards or be error free or that any errors or defects can or will be corrected.

Without limiting the foregoing, neither BMO Radicle nor any of it’s providers makes any representation or warranty of any kind, express or implied: (i) as to the operation or availability of the Service, or the Content thereon; (ii) that the Service will be uninterrupted or error-free; (iii) as to the accuracy, reliability, or currency of any Content or information provided through the Service; or (iv) that the Service, its servers, the content, or e-mails sent from or on behalf of BMO Radicle are free of viruses, scripts, trojan horses, worms, malware, timebombs or other harmful components.

Some jurisdictions do not allow the exclusion of certain types of warranties or limitations on applicable statutory rights of a consumer, so some or all of the above exclusions and limitations may not apply to You. But in such a case the exclusions and limitations set forth in this section shall be applied to the greatest extent enforceable under applicable law.

17. GOVERNING LAW

The laws of Ontario, with the federal laws of Canada applicable therein, excluding its conflicts of law rules, shall govern this Terms of Service and Your use of the Service. Your use of the Service may also be subject to other local, provincial, state, national, or international laws.

18. DISPUTE RESOLUTION

You will attempt to resolve any dispute arising hereunder through consultation and negotiation with BMO Radicle in good faith. If those attempts fail, You agree to refer the dispute to binding arbitration for final resolution conducted in accordance with the provisions of the Arbitration Act (Ontario) in Toronto, Ontario.

19. FOR EUROPEAN UNION (EU) USERS

If You are a European Union consumer, you will benefit from any mandatory provisions of the law of the country in which you are resident in.

20. FOR UNITED STATES USERS

19.0 Federal Government End Use Provisions. If You are a U.S. federal government end user, our Service is a "Commercial Item" as that term is defined at 48 C.F.R. §2.101.

19.1 Legal Compliance. You represent and warrant that (i) You are not located in a country that is subject to the United States government embargo, or that has been designated by the United States government as a "terrorist supporting" country, and (ii) You are not listed on any United States government list of prohibited or restricted parties.

21. SEVERABILITY

If any provision of these Terms is held to be unenforceable or invalid, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect, or alternatively it will be deemed not to affect or impair the validity of any other provision of this Agreement and such void or unenforceable provision will be severable from this Agreement.

22. WAIVER

Except as provided herein, the failure to exercise a right or to require performance of an obligation under this Terms shall not effect a party's ability to exercise such right or require such performance at any time thereafter nor shall be the waiver of a breach constitute a waiver of any subsequent breach.

23. TRANSLATION INTERPRETATION

These Terms of Service may have been translated if We have made them available to You on our Service. You agree that the original English text shall prevail in the case of a dispute.

24. PRIVACY POLICY

Our privacy policy (“Privacy Policy”) can be found at https://radiclebalance.com/privacy-policy

We reserve the right, at our sole discretion, to modify or replace the Privacy Policy at any time. If a revision is material we will make reasonable efforts to provide at least 30 days' notice prior to any new policy taking effect. What constitutes a material change will be determined at our sole discretion.

By continuing to access or use our Service after those revisions become effective, you agree to be bound by the revised Privacy Policy. If you do not agree to the new Privacy Policy, in whole or in part, please stop using the website and the Service.

25. CONTACT US

If you have any questions about these Terms of Service, you can contact us:

Appendix A - SERVICE SPECIFIC TERMS

Climate Smart™ and Climate Smart Carbon Neutral™ Certifications

1. CERTIFICATION REQUIREMENTS

1.0 Baseline Certification. To obtain a Climate Smart™ or Climate Smart Carbon Neutral™ baseline certification you must do the following during your Subscription Term:

  1. meet the Customer Obligations identified in section 6 of the Agreement;
  2. complete a 12-month GHG emissions inventory, submit it for review and approval by BMO Radicle;
  3. identify and report to Climate Smart an emissions reduction plan, including actions to address your material sources of emissions included in its GHG inventory;
  4. accept and comply with this Agreement and the Seal Usage Guidelines;
  5. have paid the applicable Subscription Fee and any Add-On Fee;

In addition to the foregoing, to obtain Climate Smart Carbon NeutralTM certification, you must also do the following (“Carbon Neutral Additional Eligibility Requirements”):

  1. purchase approved carbon offsets equal or greater than the Scope 1,2 and Scope 3 carbon emissions deemed material and reliably quantifiable by BMO Radicle;
  2. apply commercially reasonable best efforts to reduce your material sources of emissions, including but not limited to those identified in your emissions reduction plan; and
  3. complete a third-party verification at Customer’s expense and BMO Radicle’s discretion, for carbon emission footprints greater than 5,000 tCO2.

1.1 Recertification. To maintain Climate Smart™ or Climate Smart Carbon Neutral™ certification you must do the following for each year of Subscription:

  1. meet the Customer Obligations identified in section 6 of the Agreement;
  2. on an annual basis, complete a 12-month GHG emissions inventory, submit it for review and approval by BMO Radicle;
  3. on an annual basis, identify and report to Climate Smart an emissions reduction plan, including actions to address the most significant sources of emissions included in its GHG inventory;
  4. accept and comply with this Agreement and the Seal Usage Guidelines;
  5. have been notified by us that you have achieved Climate Smart™ certification status;
  6. have paid the applicable Subscription Fee and any Add-On Fee;
  7. demonstrate that you are reducing your largest sources of emissions;
  8. meet Carbon Neutral Additional Eligibility Requirements;

Upon successful achievement of certification and recertification you will be notified by us. The Certification year on your Seal will reflect the 12-month period covered in your emissions inventory. If Your inventory straddles two (2) calendar years, the calendar year with the largest proportion shall be used for the Seal; in the event the proportion is identical, the later calendar year captured in the inventory shall be used for the Seal.

It is understood that while BMO Radicle may review and provide guidance on the emissions inventories of participating organizations as part of this certification, successful completion of our certification or re-certification with BMO Radicle is not a verification or audit of emissions data.

1.2 Certification Seal Use. Once certified you will be issued a GHG Impact Report and an electronic Seal acknowledging your organization as “Climate Smart™ certified”; or Climate Smart Carbon NeutralTM certified as applicable. You will be granted a worldwide, revocable, non-exclusive, non-transferrable, non-assignable, non-sublicensable license to use the appropriate Climate Smart seal and its variations (together, the “Seal”) identified by BMO Radicle to you, which must be used in compliance with the Seal Usage Guidelines.

The Seal may be used only in association with the business (or business unit) named in the GHG inventory report provided to you upon certification as Climate Smart™ or Climate Smart Carbon NeutralTM in reference to the applicable year of Subscription. You are solely responsible for keeping yourself informed of Climate Smart’s Certification Requirements, Seal Usage Guidelines or any other requirement for achieving and maintaining Climate Smart™ certification status. You agree that the goodwill arising from your use of the Seal enures exclusively to BMO Radicle, and your use of the Seal is subject to the control and discretion of Radical at all times.

Certification, use of the Seal, and any other rights granted herein may be revoked any time for any reason in the sole discretion of BMO Radicle. You will not refer to yourself as Climate Smart™ or Climate Smart Carbon NeutralTM certified and use the Seal if you are not currently Climate Smart™ certified as described herein. Previous Climate Smart™ or Climate Smart Carbon NeutralTM certification does not permit the use of the Seal in any manner.

The purposes for which we are providing you with the use of the Seal are to communicate:

  1. your organization’s participation in the Service provided by BMO Radicle;
  2. your organization’s successful completion of a 12-month GHG inventory that has been reviewed by a Climate Smart Sustainability Advisor;
  3. that your organization has made a commitment to reduce its greenhouse gas emissions by identifying the reduction strategies it plans to undertake;
  4. that your organization has purchased carbon offsets of equal or greater value than the emissions generated during the reviewed 12-month GHG inventory.

Your organization may use the Seal in association with your logo or other business identifier in any of your business communications, both in print and electronic. Because the value of the Seal lays in its integrity, if BMO Radicle feels that your use of the Seal is inappropriate or not in keeping with the purposes described above, BMO Radicle will contact you to discuss the matter. Together, we hope that we can resolve any issues we may have. However, BMO Radicle reserves the right to require that you discontinue and retract any use and issue clarifying statements regarding your use of any of the Seal. This includes the right to terminate this Agreement. If BMO Radicle exercises this right, you agree to immediately cease using the Seal, including on materials already produced, whether distributed or not and will, upon request, retract, if necessary, and destroy same. You also agree that, in light of the importance of protecting the integrity of the Seal, this obligation is reasonable and necessary and that this obligation is enforceable by way of injunction by any Court of competent jurisdiction. By way of example, using the Seal in a way that states or implies, either directly or indirectly, that your business, or its activities are endorsed, affiliated, supported, approved or sponsored by BMO Radicle would be an inappropriate use of the Seal.

Unless Climate Smart has given its express consent, the Seal may not be altered in appearance (except for size). For more information on usage, please see the document titled “Seal Usage Guidelines” (sent to you along with the Seal).

The Seal may be used only in association with the business (or business unit) named in the inventory report provided to you upon your organization’s certification as Climate Smart™ or Climate Smart Carbon NeutralTM.

The license granted to you will be construed in accordance with and governed by the laws of the Province of Ontario and the laws of Canada applicable therein and each of us hereby submit to the jurisdiction of the courts of the Province of Ontario, in the City of Toronto for the resolution of any disputes relating to this Agreement.

Indemnification. You agree to indemnify and hold BMO Radicle harmless against any loss, liability, damage, cost or expense (including reasonable legal fees) arising out of any claims or suits made against us: i) by reason of your performance or non-performance under, or any other act or omission related to, this Agreement; and/or ii) your use of the Seal in any manner whatsoever except as permitted under this Agreement.

1.4 Reservation of Rights. Climate Smart reserves all rights not expressly granted in this Agreement. You acknowledge BMO Radicle’s sole ownership of the Seal and any associated goodwill, and agree BMO Radicle retains all right, title and interest in and to the Seal and goodwill.

1.5 No Registration By You. You agree not to file any trademark, service or certification mark, or other mark, domain name, or name in any country, for any mark or name that in our opinion is similar to or that contains in whole or in part the Seal, a Climate Smart name or trade or other mark. You agree not to register or use as your own any internet domain name which contains Climate Smart’s name or Seal or which is confusingly similar thereto. This section will survive Agreement termination or expiration.

1.6 Protection of Rights. You agree to assist us, to the extent reasonably necessary and at our expense, to protect or to obtain protection for any of BMO Radicle’s rights to the Seal and other intellectual property. In addition, if we request that you discontinue using the Seal and/or substitute using a new or different mark, you will immediately cease use of the Seal and cooperate fully with us to ensure all legal obligations have been met with regards to use of the Seal.

NO WARRANTIES. BMO RADICLE MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE SERVICES OR SEAL AND HEREBY DISCLAIMS ALL WARRANTIES THAT MAY BE IMPLIED BY LAW, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE.