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CAPTURIANT PLATFORM TERMS OF SERVICE
These CAPTURIANT PLATFORM TERMS OF SERVICE (the "Terms of Service") are a legal contract between the Person named in the online application as the Account holder (the "Account Holder") and Capturiant, Capturiant Ltd., Capturiant Analytics, Capturiant Marketing, and Capturiant, LLC (collectively referred to as "Capturiant"), (individually referred to as a "Party" and collectively the "Parties") in connection with the use of the Capturiant platform services ("Platform"). The following documents (collectively, the "Platform Rules") are hereby incorporated by reference into the Terms of Service, as each may be updated from time-to-time at Capturiant's sole discretion:
2) Validation Body and Verification Body Requirements;
3) Registry Rules;
4) Marketplace Rules; and
5) Fee Schedule.
These Terms of Service and the Platform Rules outline the obligations of an Account Holder with respect to such Account Holder's use of the Platform to publicly list Projects that follow the Capturiant Program Requirements and to record the minting of Environmental Asset Credits (“EACs”) and Performance Environmental Asset Credits (“PEACs”, collectively, "Assets" and each an "Asset"), store such Assets, conduct the purchase and sale of such Assets, and track the delivery and transfer, collateralization, retirement, and/or cancellation of such Assets.
Capitalized terms shall have the meanings assigned herein and in Schedule 1 attached hereto.
1.1 Each Account Holder that accesses, uses, and/or integrates with the Platform shall cause an authorized Person of Account Holder to accept these Terms of Service and, in so doing, agrees to be bound by the terms and conditions set forth in these Terms of Service and the Platform Rules that govern the access and use of, or integration with, the Platform.
1.2 All Account Holders acknowledge and agree that the Platform serves as the definitive source of information for the Account Holder, the Projects and each Project's status as Validated, the quantity and Unit Type of Assets minted in connection with any Project, and the status of such minted Assets as in Buffer Status or Dispute Status, and all Verification information associated with EACs. A portion of the Platform also provides storage of minted Assets on behalf of Account Holders (the "eVault") as custodial assets held for the Account Holder's benefit.
1.3 The portion of the Platform which serves as the system of record (the "Capturiant Registry"), identifies the Account Holder that is entitled to control the benefits of an Asset held in the eVault (the "Controller") (as either the holder of legal title to the Asset (the "Owner") or as holding a security interest in the collateralized Asset (the "Secured Party")), and enables such Controller to record the minting or collateralization of, or retire such Asset, as applicable, or track the delivery and transfer of control of such Asset to another Account Holder (or, after the Exclusivity Period, a non-Account Holder) as the new Controller.
1.4 A portion of the Platform enables Account Holders to conduct the purchase, sale, and other transfer (each a "Transaction") of Assets (the "Marketplace"). When a Transaction is completed in the Marketplace, the Asset is delivered and transferred to the Account of the recipient Account Holder, the Asset is at all times maintained in the eVault, and the Capturiant Registry is updated to reflect such recipient as the new Controller.
1.5 All Account Holders acknowledge and agree that the Capturiant Registry is the definitive source of information for the current Controller, Owner and Secured Party, information about the delivery and transfer, collateralization, retirement, and cancellation of an Asset, as applicable, registered on the Capturiant Registry and maintained in the eVault.
1.6 Each Account Holder is responsible for determining that all the functions of the Platform, including the Marketplace, the Capturiant Registry, the Capturiant Website and the eVault, utilized by Account Holder meet the needs of Account Holder to establish and evidence ownership of, and legal and beneficial interests in, an Asset.
1.7 Capturiant shall not be deemed to have any beneficial interest in any Asset registered on the Capturiant Registry or stored in the eVault, and Capturiant expressly disclaims any such interest. Capturiant is not party to any Transaction.
1.8 No information available on the Platform constitutes legal advice, financial advice, trading advice, tax advice, or any related recommendation. Capturiant does not recommend that any Asset should be bought, sold, or held by any Person. Capturiant will not be held responsible for the decisions Account Holder makes to buy, sell, or hold Assets based on the information provided by Capturiant, any other Account Holder or Person. Account Holder must consult with its own financial, tax, legal and other advisors before using the Platform and before receiving any Asset to determine if the Platform or such Asset are sufficient for Account Holder's purposes. Account Holder is solely responsible for determining whether any Project, Asset, or Transaction is appropriate for Account Holder based on Account Holder's objectives, financial circumstances and risk tolerance. Account Holder is further solely responsible for determining the characterization and treatment of any Asset under Applicable Law.
2.1 Account Holder acknowledges and agrees that, when using the Platform, Account Holder will be subject to, and must comply with, these Terms of Service and the Platform Rules, each as modified from time to time in accordance with the terms herein, and the requirements of the Capturiant Standard and any Applicable Standard.
2.2 Account Holder shall ensure that all Persons it authorizes to access or use the Platform on its behalf have been provided with a copy of and comply with these Terms of Service and the Platform Rules.
2.3 Account Holder appoints Capturiant as its registry provider for the Assets Account Holder registers and/or manages on the Capturiant Registry and appoints Capturiant as its storage provider for Assets Account Holder maintains in the eVault as Controller.
2.4 All Assets registered by Capturiant and maintained in the eVault, and the Tokens evidencing such Assets, shall constitute and shall irrevocably remain, to the extent eligible under Applicable Law, "financial assets" under Chapter 8 of the Texas Uniform Commercial Code ("Chapter 8"). Capturiant and its subcontractors are each a “securities intermediary” as used in Chapter 8 with respect to the Assets and the Tokens, and each Account, as integrated with the Registry, is a “securities account” as used in Chapter 8. As stated in Chapter 8, “the characterization of a person, business, or transaction for purposes of this chapter does not determine the characterization of the person, business, or transaction for purposes of any other law, regulation, or rule,” including the United States Commodity Exchange Act and any federal, state, or foreign securities law or regulation.
2.5 For the avoidance of doubt, other than in relation to Chapter 8, the election for the Membership Interest to be treated as a "financial asset" in Section 2.4 above shall have no bearing on whether the Membership Interest is a "financial asset" or "security" as used in any other context or regulation, nor shall it constitute an admission that the Asset is a security for any purposes. It is the intent of the parties that the Asset shall be deemed a commodity for purposes of the United States Commodity Exchange Act, and shall not be a security for purposes of US federal securities laws (including the Securities Act of 1933 and Securities Exchange Act of 1934), Texas securities laws, or any other Applicable Laws.
2.6 To the extent Assets are not eligible for treatment as "financial assets" under Chapter 8, such Assets will be treated, to the extent eligible, as "controllable electronic records" under Article 12 of the Uniform Commercial Code as adopted and amended by the Uniform Law Commission 2022, to the extent not prohibited by Applicable Law.
3.1 To use the Platform, a prospective Account Holder must create an Account and select a password, which will require Account Holder to submit certain information through the Account registration page on the Capturiant Website.
3.2 Capturiant may, in its absolute discretion, refuse to open an Account for an Account Holder. To qualify to open an Account, a prospective Account Holder must meet all requirements established by Capturiant, including and not limited to:
3.2.1 indicating their acceptance of these Terms of Service; and
3.2.2 providing sufficient identification information including satisfying any relevant Know-Your-Client (KYC) or other background check requirements in accordance with the procedures set out by Capturiant including the Platform Rules.
3.3 An Account Holder may open an Account for its own behalf or on behalf of another Person. Account Holders operating Accounts on behalf of other Persons must have the express authority to bind such Persons to these Terms of Service and the Platform Rules. By opening an Account on behalf of another Person, the Account Holder acknowledges and agrees that Capturiant has the right to rely upon such Account Holder's representation and warranty that such Account Holder has the express authority of such Person to open and operate the Account, to request minting and registration of Assets, and to conduct Transactions with respect to such Assets, all on behalf of such Person, and that such Person has granted to Account Holder the express authority to bind such Person to these Terms of Service, the Platform Rules, and all Transactions conducted on the Platform with respect to the Account and the Assets maintained therein.
4.1 An Account Holder who is also a Project Developer must meet all requirements of Capturiant in the Program Requirements to seek listing of its Project on the Capturiant Website and Validation Services, including and not limited to, submission to Capturiant of an accurate and complete Uniform Project Description.
4.2 Through the Platform, Project Developer must select a Validation Body to provide Validation Services and Validate that the Project conforms to the Uniform Project Description, the Capturiant Standard, the terms specified in these Terms of Service, and the Program Requirements.
4.3 Projects may be listed prior to Validation in the sole discretion of Capturiant, however such Projects will be designated as not Validated.
4.4 Project Developer acknowledges and agrees that all data and information submitted to Capturiant in a Uniform Project Description will be publicly displayed and disclosed on the Capturiant Website by Capturiant, except to the extent included in the Exhibit to the Uniform Project Description designated for sensitive, confidential, or proprietary information and data of Project Developer. Once posted, a Uniform Project Description may not be modified or amended (except to correct non-material, administrative errors), but new versions of a Uniform Project Description may be posted to reflect necessary updates and revisions.
4.5 Project Developers with existing Projects that were previously validated by an Applicable Standards Body under an Applicable Standard may seek to have the Projects Validated by a Validation Body or otherwise have the Project's existing Validation Report accepted by Capturiant, and have the Projects listed by Capturiant under the Capturiant Program Requirements.
4.6 Capturiant may, in its absolute discretion, refuse to list any Project, whether or not the Project was successfully Validated by a Validation Body.
5.1 Through the Platform, Project Developer must engage a Capturiant-approved Verification Body to Verify the Environmental and Sustainable Development Benefits generated by or resulting from the Validated Project in accordance with these Terms of Service, the Platform Rules, the Capturiant Standard, and any Applicable Standard. For Clarity, Capturiant is not party to any agreement between Project Developer and any Verification Body.
5.2 Upon request by Project Developer made via the Platform, Capturiant will mint EACs based on Verified Environmental and Sustainable Development Benefits generated by or resulting from Validated Projects listed on the Capturiant Website, under Capturiant's authority under the Capturiant Standard or under the authority given by an Applicable Standards Body under the Applicable Standard, in accordance with these Terms of Service, the Platform Rules, and any other Applicable Standards Body Requirements.
5.3 Capturiant will only mint such EACs if Capturiant is satisfied (based solely on the Uniform Project Description provided by Project Developer and information provided by the Validation Body and the Verification Body) that the Validated Project for which EACs are to be minted meets the Capturiant Standard or any Applicable Standard, and otherwise meets with the Program Requirements and all other requirements of Capturiant.
5.4 Minted EACs are associated with the Account of the Project Developer. Project Developer acknowledges and agrees that some EACs may be minted in Buffer Status by Capturiant, as required by the Program Requirements, and may therefore not be collateralized, sold or transferred, or retired by Project Developer unless and until such Buffer Status designation is removed by Capturiant.
5.5 At Minting, each Asset is registered on the Capturiant Registry and assigned a unique identification number (the "Serial Number") by the Capturiant Tokenization Process, and the Serial Number is associated with the Project listing and Project Developer's Account.
5.6 Project Developer authorizes Capturiant to obtain information about EACs previously held on any other registry, database, administrator, trading platform, and/or exchange, and such authorization shall continue and remain in effect until such EACs are retired or cancelled pursuant to these Terms of Service and for seven (7) years thereafter.
5.7 Capturiant may, in its absolute discretion, may enter into any necessary arrangements with any Applicable Standards Body to facilitate listing of Projects on the Capturiant Website and/or the transfer of minted units of Environmental and Sustainable Development Benefits to an Account on the Platform for registration as EACs on the Capturiant Registry.
5.8 Capturiant may, in its absolute discretion, refuse to mint any EACs generated from any Validated Project listed on the Platform.
5.9 PEACs
5.9.1 Subject to this Section 5.9, upon request by Project Developer and in Capturiant's sole discretion, Capturiant may mint PEACs based on projected Environmental and Sustainable Development Benefits to be generated by or to result from Validated Projects listed on the Capturiant Website, in the same manner and subject to the same requirements as described in Sections 5.2 through 5.8 above with respect to EACs, other than Verification. Any such request to mint PEACs must include a schedule for anticipated generation of the Environmental and Sustainable Development Benefits underlying such PEACs and for Verification of such Environmental and Sustainable Development Benefits.
5.9.2 All PEACs minted by Capturiant will expire upon the Expiration Date of such PEACs, causing the Asset to be automatically destroyed in the eVault. If the Environmental and Sustainable Development Benefit underlying a PEAC is Verified prior to the Expiration Date of the PEAC, Capturiant will update the Capturiant Registry to reflect that the PEAC has been Verified, thereby converting the PEAC into an EAC as more fully described in the Program Requirements.
5.9.3 All Account Holders agree that, upon Verification of the Environmental and Sustainable Development Benefits underlying the PEACs, Capturiant will convert the PEACs into EACs regardless of whether the Project Developer is still the Controller of such PEACs or if the PEACs have been sold or transferred to any other Account Holder as Controller.
5.9.4 The Account Holder that is the current Controller of PEACs at the time of Verification will maintain the PEACs in the Account Holder's Account as EACs of the same Unit Type of Environmental Benefits; provided, however, that if Verification results in fewer Verified EACs than PEACs outstanding in both active and Buffer Status, Capturiant will convert only those minted PEACs that correspond to the amount Verified and will cancel all PEACs minted in excess of such amount, including those PEACs in Buffer Status. Conversion and cancellation, if applicable, of such PEACs will occur in accordance with the Platform Rules. By purchasing or accepting transfer of a security interest in an PEAC in the Marketplace, Account Holder accepts the risk that the PEAC may be subject to conversion and cancellation in accordance with this Section and the Platform Rules.
5.9.5 PEACs minted by Capturiant may not be transferred from the Platform or otherwise listed on any registry other than the Capturiant Registry. Account Holder shall not list or attempt to list any PEACs on any exchange or other kind of trading, market or any external transaction or registry platform.
6.1 Project Developers are the initial Controllers and Owners of Assets generated from the operation of their Validated Projects listed on the Capturiant Website and are identified in the Capturiant Registry.
6.2 All Project Developers acknowledge and agree that all minted Assets generated by or resulting from Validated Projects listed on the Capturiant Website shall be registered on the Capturiant Registry in accordance with the Program Requirements.
6.3 Each Project Developer further agrees that it shall offer for sale in the Marketplace at least seventy-five percent (75%) of the EACs minted and registered to such Project Developer which Assets are not in Buffer Status, as required in the Marketplace Rules.
6.4 Capturiant may, in its absolute discretion, refuse to register any Asset on the Capturiant Registry or refuse to maintain the registration of any Asset on the Capturiant Registry.
6.5 Assets minted and registered by Capturiant in accordance with these Terms of Service may only be retired by the Controller, or cancelled by Capturiant, in accordance with these Terms of Service, the Platform Rules, and the requirements of any Applicable Standards Body.
7.1 An Account Holder who is the current Controller or Owner of an Asset can request and be provided with documentation of its status as Controller or Owner which the Account Holder may provide to third parties as proof of its control of, and interest in, the Asset (an "Interest Certificate").
7.2 An Account Holder who is the Owner of an Asset may designate another Account Holder as having a security interest in the Asset by transferring and delivering the Asset to the Secured Party's Account, as described in the Platform Rules. Upon completion of such transfer, the Secured Party becomes the Controller of the Asset. The Owner and Secured Party are responsible to ensure that no Asset transferred to the Secured Party as Controller is retired or further assigned, sold, delivered, or transferred except in accordance with the terms of the separate written security and collateralization agreement between such parties.
7.3 All Account Holders acknowledge and agree that, in the event that Capturiant, the selected Validation Body, the selected Verification Body, the Applicable Standards Body, or a relevant Governmental Authority determines that Environmental and Sustainable Development Benefits for a Project were incorrectly quantified or reported (either at initial minting or at a subsequent Verification) for any reason, including a Reversal, such that the number of Assets minted to the Project Developer and registered, including those in Buffer Status, was in excess of the correct number according to the requirements of: (i) the Capturiant Standard or any Applicable Standard, (ii) the Platform Rules, or (iii) the requirements of any Applicable Standards Body; it is Project Developer's responsibility to replace the cancelled Assets with an equivalent and comparable amount of Assets or financially compensate the Controller of the Assets for the difference, irrespective of whether the Assets are still held by Project Developer as Controller.
7.4 All Account Holders acknowledge and agree to the provisions of Section 7.3, 5.9.3, and 5.9.4 and recognize that Assets purchased by or otherwise under the control of an Account Holder as Controller may be subject to reduction via cancellation and may be subject to alternative compensation under the circumstances described in Section 7.3, 5.9.3 and 5.9.4 at any time prior to the Expiration Date of such Assets.
7.5 Account Holders can take no action with respect to the Assets unless the Capturiant Registry is updated upon collateralizing, transferring, selling, assigning, disposing of, retiring, or otherwise dealing with or acting upon Assets by recording the action in the Capturiant Registry. The Capturiant Registry will be updated with respect to cancellation of Assets by Capturiant and Transactions that are conducted in the Marketplace, as appropriate based on the Transaction.
7.6 All Controllers (including Project Developers and Secured Parties) acknowledge and agree that they are required to maintain registration on the Capturiant Registry of the Assets in the Controller's Account, including those in Buffer Status or Dispute Status, for the duration of the Exclusivity Period established in the Program Requirements.
7.7 All Assets minted by Capturiant or otherwise registered on the Capturiant Registry will be subject to expiration and the Expiration Date of such Asset will be clearly described on the Capturiant Registry. Upon the occurrence of such Expiration Date, the Asset will be automatically destroyed in the eVault, and the expiration will be reflected on the Capturiant Registry.
7.8 Sale or Transfer of Assets
7.8.1 Controllers will determine the acceptable conditions of collateralization, sale, or transfer of an Asset in such Controller's Account. Payment of funds in conjunction with any sale or other transfer of an Asset is subject to the arrangements and agreements of Account Holders and is not included in the operations of the Marketplace.
7.8.2 All Account Holders acknowledge and agree that Transactions are initiated, negotiated, and completed in the Marketplace in accordance with the Marketplace Rules. If a Transaction is initiated but not successfully settled on the Marketplace, the Assets that were the subject of the Transaction will remain in the Controller's Account on the Platform and the Controller will continue to be identified on the Capturiant Registry as the Controller. If the Transaction is successfully settled, the transacting Account Holders are notified, the Capturiant Registry is updated to reflect the recipient Account Holder as the new Controller of the Assets, and the Account of the new Controller is updated to include the Assets assigned, sold, purchased and delivered.
7.8.3 Assets that have been retired or cancelled pursuant to these Terms of Service, or which are in a Buffer Status or Dispute Status, are not eligible for collateralization, sale or transfer, and any request for collateralization, sale or transfer of any such Assets will be denied or prohibited by the Marketplace.
7.8.4 EACs may be collateralized, sold, or transferred to non-Account Holders in accordance with Section 7.10 of these Terms of Service and the Platform Rules.
7.8.5 PEACs may be collateralized, sold, or transferred only to other Account Holders and only in accordance with the Marketplace Rules.
7.9 Retirement and Cancellation of Assets
7.9.1 Retirement
7.9.1.1 The Controller of any Asset may retire the Asset on its own behalf or on behalf of another Person using functionality of the Capturiant Registry in accordance with the Platform Rules. Assets which are collateralized (i.e., held by a Secured Party as Controller) may not be retired until the security interest is released or terminated. Controller agrees that it will take appropriate steps to clearly demonstrate that the retirement of EACs was made in accordance with the Capturiant Standard, the Platform Rules and the requirements of any Applicable Standards Body, and that any such claim or representation is in no way misleading, deceptive, or may constitute a misrepresentation.
7.9.2 Cancellation
7.9.2.1 Controller acknowledges and agrees that Capturiant may cancel any Asset of Controller to the extent permitted in these Terms of Use or otherwise in the Platform Rules, and Capturiant shall have no liability to any Account Holder with respect to Assets cancelled by Capturiant in accordance with the Platform Rules. In the relevant circumstances and prior to cancelation of any Asset, Capturiant may place the Asset in Disputed Status. Reasons for cancellation may include, but are not limited to, the closure of an Account or the delivery and transfer of the Asset to a non-Account Holder as described in Section 7.10. Additionally, Capturiant may at any time cancel any Assets on the Capturiant Registry if Capturiant forms a reasonable belief that:
7.9.2.1.1 Such Assets do not have or no longer represent legal title to a sustainable impact or other Environmental and Sustainable Development Benefit;
7.9.2.1.2 Controller has not complied fully with these Terms of Service; or
7.9.2.1.3 Capturiant or any Applicable Standards Body revokes the accreditation or approval of the underlying Project represented by such Assets.
7.9.3 General Terms Applicable to Retirement and to Cancellation.
7.9.3.1 Retired Assets are not subject to subsequent collateralization, sale, or transfer, and cancelled Assets are not subject to retirement or subsequent collateralization, sale, or transfer.
7.9.3.2 Cancellation of an Asset triggers destruction of the Asset in the eVault. Any Interest Certificate requested with respect to an Asset that has been retired or cancelled will indicate the that such Asset has been retired or cancelled, as applicable.
7.9.3.3 Controller acknowledges and agrees that if Controller retires, or Capturiant cancels, Assets in the Capturiant Registry:
7.9.3.3.1 Such Assets are retired or cancelled permanently;
7.9.3.3.2 Neither Controller nor any third party has any further rights to take, claim and/or rely upon the Environmental and Sustainable Development Benefit of such EAC;
7.9.3.3.3 Neither Controller nor any third party has any further rights to Verify any such PEAC or otherwise obtain any EAC based on the Environmental and Sustainable Development Benefit underlying any such PEAC; and
7.9.3.4 Controller will procure or has procured the agreement of all relevant third parties as are necessary to ensure that neither Controller nor any such third parties have any further rights to take, claim and/or rely upon the Environmental and Sustainable Development Benefit of such retired or cancelled Assets, or of Assets that have expired.
7.9.3.5 An instruction by Controller to the Capturiant Registry to retire Assets, and any instruction by Capturiant to cancel Assets, in accordance with these Terms of Service and the Platform Rules is irrevocable, and Controller acknowledges that any such action cannot be reversed.
7.9.3.6 Capturiant and all Account Holders acknowledge and agree that, with respect to Assets retired or cancelled on the Capturiant Registry, and with respect to Assets that have expired, no Person, including any Account Holder or Controller, has any rights to take the Environmental and Sustainable Development Benefit of such Assets, and such Assets are not subject to further retirement or cancellation, as applicable, or collateralization, sale or transfer.
7.9.4 Transfer of EACs from the Capturiant Platform
7.9.4.1 After the Exclusivity Period, an Account Holder that is the Controller may transfer EACs from the Platform to another registry or program under processes that are specific to the receiving registry/program. Such a transfer will result in the Capturiant Registry being updated to reflect that the Asset is no longer registered on the Capturiant Registry and will result in cancellation of the Asset in the eVault as described in the Registry Rules.
7.9.4.2 If a Controller wishes to collateralize, sell, or otherwise transfer control of an EAC to a non-Account Holder after the Exclusivity Period, the Asset will be delivered and transferred to such non-Account Holder by transfer of the Asset from the Platform and out of the eVault, and the Capturiant Registry will be updated to reflect that the Asset is no longer registered on the Capturiant Registry, each as described in the Registry Rules.
8.1 Account Holder may request the closure of an Account at any time by declaring Account closure through the Platform.
8.2 Account Holder will retain access to its other Accounts on the Platform (if any) and these Terms of Service will continue to apply until terminated in accordance with these Terms of Service.
8.3 Closure of an Account containing PEACs will cause all such PEACs to be automatically cancelled by the operation of the Capturiant Registry in accordance with Section 7.9 above. If the Account to be closed is held by a Project Developer that generated PEACs from its Validated Projects associated with such Account, all PEACs generated by such associated Validated Projects and minted by Capturiant will be automatically cancelled upon closure of the Project Developer's Account, regardless of whether the PEACs remain in the Project Developer's Account at the time of Account closure and regardless of which Account Holder is the Controller of such PEACs at the time of cancellation.
8.4 Closure of an Account containing EACs will cause all such EACs to be automatically cancelled by the operation of the Capturiant Registry. The Controller of EACs in an Account to be closed assumes the sole responsibility to ensure retirement or registration on another registry of all such EACs prior to closure of the Controller's Account.
8.5 Capturiant shall not be deemed liable in any way for damages, costs, or liability incurred by Account Holder, Controller, Project Developer, Secured Party, Owner, or any third party resulting from EACs or PEACs being cancelled due to closure of an Account at the Account Holder's request.
9.1 These Terms of Service commence on the date on which Account Holder accepts these Terms of Service, and these Terms of Service shall continue in effect until terminated in accordance with these Terms of Service.
9.2 Suspension
9.2.1 Capturiant reserves the right, in its sole discretion, to suspend Account Holder's access to the Platform, or any portion thereof, and Account Holder’s Account(s) at any time with or without cause and without prior notice to Account Holder. Without limiting any other remedies or limiting the foregoing, Capturiant may suspend Account Holder's access if:
9.2.1.1 Capturiant reasonably suspects that Account Holder has engaged in fraudulent, unethical, or illegal activity in connection with the Platform, Capturiant, the Services, or any Project;
9.2.1.2 It has received instructions to do so from any Applicable Standards Body or Governmental Authority;
9.2.1.3 Account Holder has failed to pay any Fees required to be paid under these Terms of Service within sixty days of the applicable due date;
9.2.1.4 Account Holder has breached any representation, warranty, covenant, or agreement contained herein, or otherwise failed to abide by these Terms of Service, the Platform Rules, the Capturiant Standard or any Applicable Standard;
9.2.1.5 Approval of any PEACs, Verification of any Project generating Assets, or Validation of any EACs, of Account Holder is withdrawn or threatened to be withdrawn for any reason other than such Assets having been minted in error or such Project having been Verified in error;
9.2.1.6 A material quantity of Assets registered by Account Holder are the subject of, or become the subject of, a Dispute, other than for reasons of having been minted in error; or
9.2.1.7 If Account Holder is operating its Account on behalf of another Person that is the Controller of any Assets on the Capturiant Registry, Capturiant is notified or otherwise has reason to believe that authorization to act in that capacity has been revoked by such Person.
9.2.2 Capturiant shall provide Account Holder with written notice via email of any suspect circumstances identified under this Section within thirty (30) days following such suspension.
9.2.3 While an Account Holder’s access to the Platform and/or Account is temporarily suspended, Account Holder will have no right to deal with any registered Assets in the Capturiant Registry or in the Marketplace, and Account Holder will not be able to register, record the transfer or collateralization of, or retire Assets on the Capturiant Registry.
9.2.4 When Capturiant forms a reasonable belief that Account Holder has engaged in fraudulent, unethical, or illegal activity in connection with the Platform, Capturiant, the Services, or any Project in accordance with Section 9.2.1.1, Capturiant may exercise one or more of the following rights:
9.2.4.1 A notation may be made in the Capturiant Registry or otherwise on the Platform indicating the temporary suspension and indicating the Disputed Projects, or placing the Disputed Assets into Dispute Status; and
9.2.4.2 Where the Dispute concerns Assets transferred, or purportedly transferred, by Controller to another Account Holder, Capturiant may require such Controller to supply replacement EACs or PEACs of a quality and quantity specified by Capturiant.
9.2.5 Upon notification by Capturiant of temporary suspension, Account Holder will have fifteen (15) days to:
9.2.5.1 Show cause in writing as to why Account Holder should not be permanently suspended from the Platform, and why the Assets generated by the Disputed Projects, or the Assets in Dispute Status, should not be cancelled; and
9.2.5.2 Where requested by Capturiant in accordance with Section 9.2.4.2, supply to Capturiant replacement Assets of a quality and quantity specified by Capturiant.
9.2.6 If within the fifteen (15) day period Account Holder fails, to the satisfaction of Capturiant, to show cause and/or provide replacement Assets, as applicable, Capturiant may exercise one or more of the following rights:
9.2.6.1 Permanently suspend Account Holder from the Platform or any portion thereof;
9.2.6.2 Close Account Holder’s Account(s);
9.2.6.3 Cancel the Assets in Dispute Status; and/or
9.2.6.4 Terminate the Terms of Service in accordance with Section 9.3.1.
9.2.7 For the avoidance of doubt, in the event that a registration on the Capturiant Registry or a Transaction on the Marketplace is found to be fraudulent or illegal, Capturiant reserves the right to refer the matter to the appropriate governmental and legal authorities.
9.3 Termination
9.3.1 Capturiant may terminate these Terms of Service by giving ten (10) days’ notice to Account Holder except in the event of a breach of the Terms of Service, in which case Capturiant may terminate these Terms of Service immediately.
9.3.2 Account Holder remains liable to Capturiant for all outstanding Fees due and owing to Capturiant as of the date of termination. Upon the effective date of termination of these Terms of Service, all Accounts of Account Holder will be closed and the provisions of Sections 8.3, 8.4 and 8.5 shall apply.
9.3.3 If these Terms of Service are terminated, the following Sections shall survive Termination: 2.3, 7.9.2, 7.9.3, 8.5, 11, 12, 13, 14, 15.4 through and including 15.8, 16 through and including 20, 22.5 and 24.,
10.1 During the time period that Project Developer lists Projects on the Capturiant Website and has Assets generated by or resulting from such Projects registered on the Capturiant Registry, Project Developer agrees not to register or list those same Projects or Assets on another website or registry.
10.2 During the time period that Controller controls Assets registered on the Capturiant Registry, Controller agrees not to register those same Assets on another registry except through the processes described in Section 7.10 above.
11.1 Capturiant may require any Controller who has retired EACs on the Capturiant Registry in accordance with Section 7.8 on its own behalf as Owner and who is found not to have legal title to those EACs (or in the case of an Account Holder who is operating an Account on behalf of another Person, where such other Person is found not to be the Owner of those EACs), to provide to Capturiant replacement EACs of a quality and quantity specified by Capturiant.
12.1 Fees
12.1.1 Fees payable for use of the Platform will be published by Capturiant from time to time on the Capturiant Website or otherwise notified to Account Holder by Capturiant in Section 12.1.1.1. Such Fees will be updated from time to time and made available to Account Holder on the Capturiant Website.
12.1.1.1 Initial Fee: Counterparty agrees to pay Capturiant, according to the attached Fee Schedule, upon execution of this Agreement for onboarding its project on the Platform. This is in addition to the Fees payable for use of the Platform.
12.1.2 All Fees are quoted in US Dollars and must be paid in US Dollars. Fees are not subject to offset or reduction and are payable, in full, in accordance with the invoicing schedule published by Capturiant from time to time on the Capturiant Website or otherwise notified to Account Holder by Capturiant. Capturiant may assess late charges equal to the lesser of eighteen percent (18%) of the unpaid balance per month or the highest rate permitted by Applicable Law.
12.1.3 Account Holder shall provide Account Holder’s billing information prior to opening an Account. Invoices will be sent to Account Holder by email.
12.1.4 All Fees relating to listing, Validation, Verification, minting and registration are due prior to listing, Validation, Verification, minting and registration, as applicable.
12.1.5 Account Holder is liable for any and all Fees incurred as a result of any use of the Platform through Account Holder's access credentials, whether or not such activity or use was authorized by Account Holder.
12.2 Changes in Fees
12.2.1 Capturiant may, upon thirty (30) days' notice to Account Holder and in its sole discretion, increase or decrease any or all of the Fees payable hereunder at any time. In no event shall any portion of such Fees be prorated or refunded to Account Holder upon termination of these Terms of Service, upon cancellation or retirement of any Assets, or upon termination or suspension of Account Holder's Account or access to the Platform.
12.2.2 Any use of the Platform by Account Holder after the effective date set forth in the notice shall be deemed to constitute acceptance of such changes to the Fees payable hereunder.
12.3 Taxes and Other Charges
12.3.1 Account Holder shall be responsible for all taxes and charges imposed by a governmental authority or agency related to the use of the Platform and all related Services, and any other costs Account Holder incurs, in connection with the listing of the Project or the minting, registration, purchase, sale, transfer or delivery of Assets, or any other use of the Platform or Capturiant Website. Account Holders are solely responsible for reporting and paying any applicable taxes arising from Transactions using the Platform, and acknowledge that Capturiant does not provide investment, legal, or tax advice governing these Transactions. Account Holder should conduct its own due diligence and consult its own tax advisors before making any decisions with respect to Asset Transactions.
12.3.2 For the purposes of these Terms of Service, "taxes" includes, but is not limited to, any or all ad valorem, property, occupation, severance, first use, conservation, gross receipts, privilege, sales, use, consumption, excise, lease, and transaction taxes, value added taxes, and any other taxes and governmental charges, fees, and assessments, or increases therein, other than taxes based on Capturiant’s net income or net worth.
12.3.3 In addition to the Fees, Account Holder will pay to Capturiant or to the relevant taxing authority, as appropriate, any applicable taxes payable under these Terms of Service so that, after payment of such taxes, the amount Capturiant receives is not less than the Fees. Account Holder shall hold Capturiant harmless from all claims and liability arising from Account Holder’s failure to pay any such taxes, including penalties, interest, duties, tariffs, or charges.
13.1 By (i) accepting these Terms of Service and becoming an Account Holder, (ii) listing a Project with Capturiant, (iii) requesting or receiving minting or registration of, or (iv) by collateralizing or selling or delivering, an Asset on the Capturiant Registry, Account Holder warrants and represents to Capturiant and to all other Account Holders that, as of the applicable date with respect to (i)-(iv), above:
13.1.1 It is duly organized, validly existing, and in good standing under the laws of the jurisdiction of its formation;
13.1.2 It is the Project Developer of all Projects for which Account Holder submits a Uniform Project Description to Capturiant, and Project Developer shall submit updated Uniform Project Descriptions as necessary to ensure that the Uniform Project Description reflects current and up-to-date information with respect to the associated Project;
13.1.3 Project Developer has, and continues to have, (or if operating an Account on behalf of another Person as the Project Developer, such Person represents has and continues to have) full legal and beneficial title to any Assets registered to such Account Holder as Owner in accordance with these Terms of Service and the underlying Environmental and Sustainable Development Benefits corresponding to such Assets, and it has not sold, transferred, assigned, licensed, disposed of, granted, or otherwise created any interest or encumbrance in or agreed to sell, assign, license, dispose of, grant, or otherwise create any interest or encumbrance in the Assets or the underlying Environmental and Sustainable Development Benefits corresponding to such Assets, other than as contemplated under these Terms of Service and the Platform Rules;
13.1.4 It has acted in compliance with any underlying regulatory scheme of any applicable Governmental Authority, or requirements of Capturiant or of any Applicable Standards Body, relating to the Assets, and will continue to do so;
13.1.5 There is no security, encumbrance, or third-party interest in relation to any Assets at the time of sale, transfer and delivery, except as otherwise disclosed on the Capturiant Registry;
13.1.6 No claim has been made by any third party to be entitled to an interest in any Assets of which Account Holder is Controller, except a claim as Owner of Assets held by Secured Party as Controller;
13.1.7 There are no legal or Governmental Authority proceedings pending or threatened to which Account Holder is a party that would affect the ability or power of Account Holder to list Projects, register Assets, and execute Transactions on the Capturiant Platform;
13.1.8 It has the power and authority to enter into and perform these Terms of Service and has obtained all necessary approvals to do so;
13.1.9 It has all requisite corporate power and authority, with all necessary consents, approvals, authorizations, orders, registrations, qualifications, licenses, and permits of and from all public, regulatory or governmental agencies and bodies, to register, collateralize, sell, deliver or purchase Assets, if and as applicable, and execute Transactions on the Platform;
13.1.10 The officers, employees, and agents of Account Holder listing Projects on the Capturiant Website, or obtaining registration of Assets on the Capturiant Registry, collateralizing Assets or executing Transactions on the Marketplace, were duly authorized and acting within the scope of their authority;
13.1.11 The registration and any collateralization of Assets and execution of Transactions on the Platform are legal, valid, and binding on and enforceable against Account Holder;
13.1.12 Any information or data provided to Capturiant by Account Holder, or any third party on behalf of Account Holder, is current, true, accurate, and correct;
13.1.13 Capturiant and all other Account Holders are entitled to rely on the information and data submitted to or through the Platform by Account Holder, and the agreements, representations and warranties of Account Holder set forth herein;
13.1.14 It will use the Platform for lawful purposes only and in a manner that does not infringe the rights of Capturiant, any third party or any other Account Holder;
13.1.15 Its business activities in relation to its use of the Platform will be those notified by Account Holder to Capturiant either as part of the Account opening process or subsequently in accordance with these Terms of Service;
13.1.16 It has not registered its Assets on another registry or similar information source;
13.1.17 It has acted in compliance with any regulatory system, or jurisdictional system or other requirements underlying the Environmental and Sustainable Development Benefits for which Account Holder is seeking to have minted as Assets or to retire;
13.1.18 It has not sold or otherwise used, transferred, assigned, attributed, claimed, or otherwise disposed of the Environmental and Sustainable Development Benefits that underlie the Assets to any other Person, except as otherwise disclosed on the Capturiant Registry;
13.1.19 To the extent Account Holder as Project Developer lists Projects on the Capturiant Website or obtains minting and registration of Assets on the Capturiant Registry, Project Developer is not insolvent or bankrupt and has no knowledge of any impending insolvency or bankruptcy;
13.1.20 It will follow all policies and instructions applying to its use of the Platform, including but not limited to these Terms of Service and the Platform Rules;
13.1.21 Where Account Holder provides information or data to Capturiant electronically or otherwise interacts with the Platform, Account Holder will not interfere with or disrupt the operation of the Platform (or its underlying software); and
13.1.22 It complies with all Applicable Laws.
14.1 Account Holder acknowledges and agrees that:
14.1.1 Account Holder is solely responsible to perform sufficient due diligence in connection with any proposed Transaction on the Marketplace as necessary to satisfy the needs of Account Holder with respect to the nature of the Transaction;
14.1.2 Capturiant is not party to any Transaction on the Marketplace, does not hold title to, purchase or sell any Assets, and is not party to any agreements relating to a Project, including without limitation to agreements between Project Developers and Verification Bodies;
14.1.3 Capturiant does not assume any duty or responsibility for the performance or settlement of any Transaction on the Marketplace, and all Transactions in Assets shall be performed or settled by the Controller and another Account Holder in accordance with such separate agreements as may exist between such Account Holders regarding the Transaction;
14.1.4 Capturiant may not give Account Holder access to the Platform until Capturiant is satisfied of the information obtained in carrying out the obligations set out in Section 3.2.2 above;
14.1.5 Use of the Platform or any portion thereof by Account Holder in no way creates any right or entitlement on the part of Account Holder to make any claim in relation to any Asset regarding offsetting of emissions, protection of the environment or biodiversity, or any other Environmental and Sustainable Development Benefit by Account Holder, and Account Holder is entirely responsible for ascertaining (based on the Capturiant Standard or any Applicable Standard and its own commercial arrangements), the benefits associated with the use and benefits of any Assets;
14.1.6 Capturiant does not warrant that the Platform software is free of bugs or errors or that the Platform is available and accessible at all times;
14.1.7 It will take all appropriate steps and precautions to safeguard and maintain the security and confidentiality of its Account access credentials (e.g., username and password) at all times. Account Holder must immediately notify Capturiant in writing if it believes the confidentiality of the Account access credentials are or have been compromised;
14.1.8 It shall be fully responsible and liable to Capturiant and all other Account Holders for all Persons accessing the Platform via Account Holder's Account using credentials authorized by Capturiant, as well as the activities of such Persons, including any negligent acts or omissions or any breach of these Terms of Service;
14.1.9 The information contained in the Uniform Project Descriptions, the Project listings, the Marketplace, and the Capturiant Registry is derived from information supplied by various sources and Capturiant does not represent or make any warranty in respect of, and has no liability for, the accuracy, reliability and/or completeness of any such information;
14.1.10 Capturiant has the authority and power to update information in relation to Account Holder's Account(s) and any registered Assets, and to reverse any transaction on the Capturiant Registry in accordance with the Platform Rules upon instruction from an Applicable Standards Body or any Governmental Authority, without the authorization of Account Holder;
14.1.11 Any Disputes that may arise between Account Holders or between Account Holder(s) and a third party (including without limitation any Disputes relating to the validity of a Project Uniform Project Description, transactions in Assets on the Capturiant Registry, or ownership of or any security or proprietary interest in Assets on the Capturiant Registry) shall be addressed between such Account Holders or such Account Holder(s) and the third party, and Capturiant shall have no obligations or liability in respect of such Disputes, and Account Holder agrees not to join Capturiant in any litigation or arbitration of such Disputes;
14.1.12 In the event that any licenses held by Capturiant to list and/or enable the trading, transfer, and delivery of Assets pursuant to any Applicable Standard are amended or terminated, the provision of any Services relating to that Applicable Standard may immediately be terminated, in which event Capturiant agrees to refund Account Holder any pre-paid Fees for such terminated Services on a pro rata basis;
14.1.13 It has the duty and the obligation to immediately notify Capturiant of any incorrect, incomplete or inaccurate information related to Account Holder or any of its Projects on the Capturiant Website or the Platform;
14.1.14 It has not relied upon any warranty, guaranty or representation (express or implied) made by Capturiant, its affiliates or any third party data provider or vendor, except the representations made by Capturiant specifically set forth in these Terms of Service;
14.1.15 Except to the extent of the Limited Warranty provided in Section 15.4 below, Capturiant does not in any way guarantee legal title to, or an effective grant or perfection of any security interests in, the Assets, and Account Holder relies on any content or information obtained through the Capturiant Registry, the Marketplace, the Platform or the Capturiant Website at its own risk;
14.1.16 It will not intentionally commit any act or omission that can or would reasonably cause or threaten to cause harm to Capturiant or its good name or reputation, including but not limited to obtaining registration of Assets that are the subject of any Dispute or which have been used for other offsetting purposes, and it will cooperate reasonably and in good faith with Capturiant to help maintain Capturiant's good name and reputation; and
14.1.17 Any Project information included in a Uniform Project Description or otherwise uploaded to the Capturiant Website or Platform cannot and shall not be deleted, removed, expunged or altered, except in accordance with these Terms of Service and the Platform Rules.
14.2 Account Holder is responsible for providing and maintaining all equipment and technology necessary for Account Holder to access and use the Platform, and all costs and expenses associated with its accessing and using the Platform. Account Holder is solely responsible for any damage to computer systems or loss of data that may result from Account Holder's access to the Platform.
15.1 Capturiant shall use reasonable efforts to perform its obligations hereunder in accordance with the degree of skill, diligence, prudence, foresight, and operating practice which would reasonably and ordinarily be expected from a reasonably skilled and experienced provider of equivalent services and/or data of a similar type to that provided pursuant to these Terms of Service under the same or similar circumstances and conducted in accordance with all Applicable Laws.
15.2 Capturiant will use reasonable efforts to cause the Platform to be available to Account Holder for access at all times during the operation of the Platform. Capturiant does not represent or warrant that the Platform or any portion thereof, or the Assets, will be available on a 24/7 basis.
15.3 Capturiant represents and warrants to all Account Holders that:
15.3.1 It is duly organized, validly existing, and in good standing under the laws of the jurisdiction of its formation; and
15.3.2 It has all requisite corporate power and authority to provide the Platform and the Services, and it or its corporate affiliates have and shall maintain the following licenses with the Securities Commissions of the Bahamas: Registered Digital Asset Business, Registered Digital Token Exchange, Registered CEO and Registered Compliance Officer of a Registered Digital Asset Business, and Registered Carbon Trading Business.
15.4 Capturiant provides to Secured Parties and those Account Holders that purchase and receive delivery of Assets from another Account Holder (each such Secured Party and purchasing Account Holder a "Warranty Beneficiary") the warranties set forth in this Section 15.4 (collectively, the "Limited Warranty"), solely with respect to those Assets purchased or secured by the Warranty Beneficiary:
15.4.1 Capturiant represents and warrants that:
15.4.1.1 A Project that has been Validated by a Validation Body complies with the Capturiant Program Requirements, the Platform Rules, and these Terms of Service based on the information presented to Capturiant and the Validation Body in the Uniform Project Description and otherwise in writing at the time of Validation;
15.4.1.2 EACs that have been Verified by a Capturiant-certified Verification Body and generated by a Project Validated by a Validation Body conform with the Capturiant Standard or an Applicable Standard and the requirements of these Terms of Service and the Program Requirements based on the information presented to Capturiant and the Verification Body in the relevant Uniform Project Description and otherwise in writing at the time of Validation;
15.4.1.3 At the time of purchase or receipt of delivery of such EACs which have been Verified by a Capturiant-certified Verification Body and generated by a Project Validated by a Validation Body, the Account Holder making delivery:
15.4.1.3.1 has good title to, or contractual rights to deliver, such EACs to the Warranty Beneficiary, and
15.4.1.3.2 has warranted to Capturiant that it has uploaded onto the Platform all information relating to all liens, encumbrances, and adverse claims with respect to such EACs and, except as otherwise indicated on the Platform, such EACs are free and clear of all liens, encumbrances, or adverse claims of any kind that have been asserted or which have been otherwise disclosed prior to the time of purchase or delivery; and
15.4.1.4 The status of EACs and PEACs listed on the Capturiant registry is accurate to the best of Capturiant’s knowledge and conforms with the Capturiant Standard or an Applicable Standard and the requirements of these Terms of Service and the Program Requirements based on the information presented to Capturiant during the lifetime of the EACs and PEACs. Capturiant has taken reasonable measures to prevent, identify, and mitigate unauthorized access to the registry.
15.5 Capturiant has and will maintain insurance policies covering its operations and any breach of the warranties made herein, including the Limited Warranty[PM1] , and will make available to Warranty Beneficiaries current certificate(s) from its insurers indicating the amount of insurance coverage in force, the nature of such coverage and the expiration date of each applicable policy.
15.6 In the event of any breach of the Limited Warranty, a Warranty Beneficiary may elect to notify Capturiant that it requests indemnification under this Section 15.6. Such notification must be received by Capturiant within one (1) calendar year of the date the events giving rise to the claim arose. If a Warranty Beneficiary provides timely and sufficient notice to Capturiant of a claim of breach of the Limited Warranty, and the Warranty Beneficiary has provided to Capturiant all requested documentation supporting the breach and the Loss, Capturiant will: (a) take all actions reasonably necessary to remedy the breach and (b), if such steps are not sufficient to remedy the breach within ninety (90) days of Capturiant's receipt of the Warranty Beneficiary's notice, as determined in the reasonable discretion of Capturiant, Capturiant will indemnify the Warranty Beneficiary for such Loss up to a maximum aggregate amount equal to the Fees paid by the Warranty Beneficiary to Capturiant in connection with the purchase or delivery transaction for the EACs impacted by the breach.
15.7 Capturiant is not responsible for the content, availability, or reliability of the Platform or any portion thereof, or any other websites that are linked to the Platform.
15.8 Capturiant has the right to engage affiliates, suppliers, or subcontractors in the provision of the Platform and the Services.
15.9 Capturiant may, at Capturiant’s discretion, link the Platform, or any portion thereof, to registries under existing and future environmental regulations and/or agreements or to trading platforms. Capturiant is not responsible for the content, availability, or reliability of such other registries, trading platforms, or other systems linked to the Platform.
15.10 Except as otherwise expressly provided herein: (i) Capturiant does not warrant the accuracy, completeness, or validity of data and information associated with an Asset or any underlying Project; (ii) Capturiant is not acting as a legal custodian in providing eVault storage functionality for Assets registered on the Capturiant Registry, (iii) Capturiant assumes no fiduciary duties to any Account Holder under these Terms of Service; and (iv) Capturiant does not in any way guarantee legal title to, or an effective grant or perfection of any security interest in, the Assets. Additionally, Capturiant is not Account Holder's agent or advisor.
15.11 Account Holder agrees that the Platform and the Services are provided on an “AS IS” basis and that, to the maximum extent allowed by law, except as unambiguously and expressly set forth in these Terms of Service, neither Capturiant, its affiliates nor any third party data provider or vendor makes any representation, warranty, condition, undertaking or term, whether express, implied or statutory, and expressly disclaims any such warranties, regarding or relating to the Platform, the Capturiant Standard or the Services (including maintenance and support) or any of the data, documentation, or materials provided or made available to Account Holder under these Terms of Service including merchantability or that the Platform, the Capturiant Standard or Services is fit for any particular purpose; or as to the continuity, accuracy, timeliness or completeness of the Platform, Capturiant Standard or Services (including any data therein) or any of the results to be attained by Account Holder or others from the use of the Platform, Capturiant Standard or the Services.
16.1 Confidential Information will be kept secure, private, and confidential by both Parties. Project Developer acknowledges and agrees that the only information and data included in a Uniform Project Description which shall be deemed Confidential Information of Project Developer is the information and data contained in the Exhibit to the Uniform Project Description designated for sensitive, confidential or proprietary information and data of Project Developer.
16.2 Both Parties will protect any Confidential Information disclosed pursuant to these Terms of Service using the same security measures and standard of care that they would apply to safeguard their own Confidential Information.
16.3 Capturiant and Account Holder each agree not to use or disclose Confidential Information of the other Party except to the extent that such use or disclosure is:
16.3.1 Reasonably necessary to perform under the procedures set out by Capturiant including the Platform Rules or these Terms of Service (including, without limitation, in connection with the production of reports or information requested and required by a relevant regulator); or
16.3.2 Authorized in writing by the other Party.
16.4 Neither Capturiant nor Account Holder shall be deemed to have breached these Terms of Service on account of the use or disclosure of any Confidential Information of the other Party if:
16.4.1 such use or disclosure is reasonably necessary to comply with any Applicable Laws or other legally enforceable requirement, or any request by any Governmental Authority having jurisdiction (including a relevant regulator) over Capturiant; and
16.4.2 the Party using or disclosing such Confidential Information provides to the other Party, as soon as reasonably practicable and, in any event, in advance of such use or disclosure, to the extent permitted by law, written notice of such use or disclosure so that the other Party may seek a protective order or other appropriate remedy. With respect to requests from a relevant regulator for Confidential Information relating to a particular Project in connection with the relevant regulator's review or crediting of that Project, Capturiant may disclose Project Developer information to the relevant regulator, including the Exhibit to the Uniform Project Description designated for sensitive, confidential or proprietary data and information of Project Developer, without providing prior written notice to Project Developer.
16.5 Capturiant and Account Holder will each be entitled to all remedies available at law or in equity to enforce, or seek relief in connection with, the obligations of the other Party under this Section. Absent written consent of the disclosing Party to the disclosure, the recipient Party, in the case of a breach of this Section, has the burden of proving that the disclosing Party's Confidential Information is not, or is no longer, confidential or a trade secret and that the disclosure does not otherwise violate this Section.
16.6 If an Account Holder retires or Capturiant cancels one or more Assets, notwithstanding anything to the contrary in these Terms of Service, certain information related to such cancellation or retirement shall be subject to public disclosure by or at the direction of Capturiant, in such manner (including, without limitation, by inclusion in one or more reports posted on the Capturiant Website) and at such times as Capturiant may determine in its sole discretion in the Registry Rules.
17. Force Majeure
17.1 Capturiant will not be liable for any failure or delay in the performance of its obligations under these Terms of Service if that failure or delay is due to a Force Majeure.
17.2 If Capturiant is, by reason of Force Majeure, unable to perform any obligation or condition under these Terms of Service, Capturiant must promptly notify Account Holder. Capturiant will use all commercially reasonable endeavors to remedy the Force Majeure and resume performance after cessation of the Force Majeure. Capturiant will further notify Account Holder when the Force Majeure has terminated.
18. Dispute Resolution
18.1 If Account Holder has a complaint with Capturiant, Account Holder agrees to first contact Capturiant through its support team to attempt to resolve any such Dispute amicably. Except where injunctive or other equitable relief is sought, the Parties must use reasonable, good-faith efforts to resolve any Dispute which arises between them in connection with these Terms of Service within thirty (30) days of such Dispute arising.
18.2 If the Parties cannot resolve the Dispute through Capturiant support within such thirty (30) day period, Account Holder agrees to submit the Dispute to formal mediation before filing any litigation or other lawsuit seeking damages. If Account Holder fails to submit the Dispute to mediation, then Account Holder agrees that its claim or action seeking damages must be dismissed from court.
18.3 Mediation shall be requested in writing, at a cost to be borne equally by the Parties. The mediator shall be designated by the International Institute for Conflict Prevention and Resolution. The mediator shall conduct the mediation as he or she determines. The Parties shall discuss their differences in good faith and attempt, with the mediator’s assistance, to reach an amicable resolution of the Dispute. The mediation shall be treated as a settlement discussion and shall therefore be confidential. The mediator may not testify for either Party in any later proceeding relating to the Dispute. The mediation proceedings shall not be recorded or transcribed.
18.4 Each Party shall bear its own costs in the mediation. The Parties shall share equally the fees and expenses of the mediator. If the parties have not resolved the Dispute within 90 days after written notice beginning mediation (or a longer period, if the Parties agree to extend the mediation), the mediation shall terminate and the Parties may seek all remedies available to them under these Terms of Service, at law or in equity.
18.5 To protect Capturiant or the Platform, Capturiant may suspend Validation of Account Holder's Project(s), minting and registration of, or collateralization, sale or transfer of, Assets, or Verification of Account Holder's Asset(s), which become the subject of a Dispute, until the Dispute is resolved. minted Asset(s) subject to a Dispute may be flagged by Capturiant as in Dispute Status without prior notice to Account Holder. Account Holder acknowledges and agrees that Capturiant may exercise this right, and this right applies even if Capturiant is not a named party to the Dispute.
18.6 Payment Disputes Exception: Not withstanding the above, in cases where the Dispute involves non-payment of platform fees by the Account Holder, Capturiant may bypass mediation and proceed directly to litigation or other legal action to recover the unpaid fees. This exception applies solely to claims of non-payment of platform fees and does not affect the requirement for mediation in other types of Disputes.
19. Limitation of Liability
19.1 Except to the extent provided in Section 15.6 above, Account Holder assumes full responsibility and risk of loss resulting from its use of the Platform and the Services, and will have no claim whatsoever against Capturiant, its affiliates, or either of their directors, agents, employees or contractors, other than where liabilities are determined by final adjudication to have been caused by Capturiant's or its contractors' fraud, gross negligence or willful misconduct.
19.2 Except to the extent provided in Section 15.6 above, Capturiant's sole liability to Account Holder relating in any way, whether directly or indirectly, to the Platform, the Services or these Terms of Service (including without limitation the performance or non-performance by Capturiant of its obligations), whether caused by the negligence of Capturiant or otherwise, and regardless of whether any claim for damages is based on contract, tort, strict liability or otherwise, is limited to an aggregate amount equal to the Fees paid or payable by the Account Holder to Capturiant during the one-year period immediately preceding the earliest date on which any such claim(s) are made by the Account Holder.
19.3 Except to the extent provided in Section 15.6 above, in no event shall Capturiant be liable to Account Holder or any third party, whether in contract (including under any indemnity), in tort (including negligence), under a warranty (express or implied), under statute or otherwise, in respect of any loss or damage suffered by Account Holder or any third party arising in respect of, or in connection with:
19.3.1 Any inaccuracy, error or omission, regardless of cause, in the Capturiant Website, the Platform (including any data contained in the Capturiant Registry or the Marketplace), any Uniform Project Description, or the provision of the Services; or
19.3.2 Any advice, opinion, recommendation, guidance, forecast, judgment, publication, conclusion or any course of action (or inaction) of Account Holder or third party, made or taken in reliance of, or based on, any report, data or information provided by Capturiant, the use of the Platform or Capturiant Website (including any data contained thereon), or the Services, or any information contained in any Uniform Project Description, the Capturiant Registry or the Marketplace; or
19.3.3 The matters set out below:
19.3.3.1 any use of the Platform by Account Holder, Account Holder's authorized representative or a third party;
19.3.3.2 any claim by any third party arising from any act or omission of Account Holder;
19.3.3.3 any imperfection, invalidity or defect of any kind with respect to any Asset, including in relation to the legal title of, or the grant or perfection of any security interests in, Assets or any claims related to the use or characteristics of Assets;
19.3.3.4 Account Holder entering into any contracts, agreements or arrangements with third parties in reliance on representations made by Capturiant or contained in the Platform, Capturiant Website or any Uniform Project Description;
19.3.3.5 any third party who gains authorized or unauthorized access to or otherwise makes use of the Platform through Account Holder's access credentials;
19.3.3.6 any changes in market conditions;
19.3.3.7 any technical problems with Capturiant’s computer hardware or software; or
19.3.3.8 any breach by Account Holder of any part of these Terms of Service.
19.4 IN NO EVENT SHALL CAPTURIANT BE LIABLE TO ACCOUNT HOLDER OR ANY THIRD PARTY UNDER ANY CIRCUMSTANCES ARISING FROM CONTRACT (INCLUDING UNDER ANY INDEMNITY), IN TORT (INCLUDING NEGLIGENCE), UNDER ANY WARRANTY (EXPRESS OR IMPLIED) UNDER STATUTE OR OTHERWISE, NOR SHALL CAPTURIANT OWE INDEMNITY FOR LOSS UNDER SECTION 15.6 ABOVE, IN EACH CASE FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, CONSEQUENTIAL, OR PUNITIVE LOSSES OR DAMAGES ARISING UNDER THESE TERMS OF SERVICE, INCLUDING ANY FAILURE OF PERFECTION OF ANY SECURITY INTEREST, LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE, LOSS OF DATA, OR PROPERTY DAMAGES, SUSTAINED BY ACCOUNT HOLDER OR ANY THIRD PARTIES, REGARDLESS OF WHETHER SUCH DAMAGES OR LOSSES COULD HAVE BEEN FORESEEN OR PREVENTED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO ACCOUNT HOLDER.
19.5 The foregoing limitations of damages, liability and no warranty provisions set forth in this Section 19 and in Section 15.6 above are fundamental elements of the basis of the bargain between Account Holder and Capturiant.
19.6 Nothing in these Terms of Service will or purport to exclude or limit any liability of either Party (or their affiliates) for death or personal injury resulting from negligence or intentional misconduct, or for fraud.
20.1 To the extent permissible by Applicable Law, Account Holder agrees to indemnify, defend and hold harmless Capturiant and Capturiant’s employees, directors, officers, agents, contractors, representatives, subsidiaries, affiliates, successors and assigns (collectively, the "Indemnified Party") from and against all proceedings, actions, claims, demands, losses (including any decrease in the value of the Assets, whether or not realized), liabilities, damages, judgments, awards, penalties, fines, costs and expenses, including, without limitation, any amounts paid in settlement or compromise and any fees and costs of counsel and experts, (collectively, "Losses") incurred, directly or indirectly, in connection with or by reason of, or in any way relating to, arising out of or attributable to Account Holder's use of the Platform, breach of these Terms of Service, or violation of Applicable Law or the rights of any third Person, including without limitation:
20.1.1 any inaccuracy of a representation or breach of a warranty made by Account Holder or Account Holder's authorized representatives;
20.1.2 any failure of any Asset registered, collateralized or transferred by Project Developer to conform with the Capturiant Standard, the Platform Rules, these Terms of Service, or any Applicable Standard or Applicable Standards Body requirements;
20.1.3 any dispute between Account Holder and any third party with respect to any Assets or any underlying Environmental and Sustainable Development Benefit; and
20.1.4 any failure to perform any covenant, obligation or agreement under these Terms of Service or the Platform Rules.
20.2 The indemnities in these Terms of Service are: (1) continuing obligations of Account Holder, separate and independent from its other obligations and survive the termination of these Terms of Service; (2) subject to the extent that any such Losses result from the Indemnified Party's fraudulent conduct, gross negligence or willful misconduct; and (3) except as provided herein, absolute and unconditional and unaffected by anything that might have the effect of prejudicing, releasing, discharging or affecting in any other way the liability of Account Holder.
20.3 It is not necessary for Capturiant to incur Losses, expense or make payment before enforcing a right of indemnity under these Terms of Service.
21.1 Capturiant processes information about Account Holder and its Projects in accordance with its Privacy Policies.
21.2 By using the Capturiant Website and the Platform, Account Holder consents to such processing and warrants that all data and information provided by or on behalf of Account Holder is accurate, complete and up-to-date.
22.1 Each Party acknowledges and agrees that, except for the rights expressly provided for in these Terms of Service and any rights otherwise agreed upon between the Parties, neither Party shall acquire any rights, title, or interest in or to any pre-existing Intellectual Property Rights of the other Party including without limitation any tools and any methodologies used by the Parties in the performance of these Terms of Service.
22.2 Capturiant and its affiliates and licensors own all right, title, and interest in and to any and all Intellectual Property Rights in and to the Platform, the Services, the Platform Rules, the Capturiant Website and the Capturiant Standard, and any improvements, design contributions, or derivative works thereto, and any knowledge or processes related thereto and/or provided hereunder (collectively, the "Capturiant Materials").
22.3 Other than with Capturiant’s written permission, reproduction of part or all of the contents in any form of the Capturiant Materials is prohibited other than for internal business purposes only and may not be copied and shared with a third party. The permission to copy by an Account Holder does not allow for incorporation of material or any part of it in any work or publication, whether in hard copy, electronic, or any other form.
22.4 Unless otherwise noted, all materials in the Platform are protected as Intellectual Property Rights owned by Capturiant, or by other parties that have licensed their material to Capturiant, and are included in the Capturiant Materials. Nothing in these Terms of Service grant Capturiant any ownership, security interest, or other beneficial rights in or to the Assets or any Project, or any information or data contained in any Uniform Project Description Exhibit designated for sensitive, confidential or proprietary information and data of Project Developer.
22.5 Capturiant reserves the right to utilize, analyze, and publish anonymized and/or aggregated data derived from the Platform and the Uniform Project Descriptions (including any Exhibits thereto) in any form and for any purpose, and for any fee, that Capturiant determines in its sole discretion. For the avoidance of doubt, the Intellectual Property Rights of the foregoing derived, anonymized and/or aggregated data shall be owned by Capturiant and included in the Capturiant Materials.
22.6 Neither Party shall use the other Party’s name or trademarks without the express written consent of such other Party; provided however that either Party may use the other’s name and associated logo in listings on such Party’s website and in other marketing materials to indicate that such other Party is an Account Holder or vendor, as applicable, and to indicate that Account Holder is the Controller of Assets in such Account Holder's Account. Additionally, the Capturiant Materials bear certain marks of Capturiant (the “Marks”). Account Holder acknowledges that the Marks and all other trademarks and logos displayed on the Capturiant Materials are trademarks of Capturiant or its applicable vendors, and that these Terms of Service do not grant to Account Holder any proprietary rights in, or any right to modify or alter, any such Marks, trademarks or logos, or any copyright designations of Capturiant on or in the Capturiant Materials. In addition to the above, Account Holder shall: (i) cooperate with Capturiant in jointly developing and issuing a press release announcing the Parties' relationship and the business value of the Platform and the Services; and (ii) assist in the preparation of step-by-step documentation of Account Holder's transition to the Platform and the Services for inclusion in a business case study to be published and utilized for marketing purposes by either or both Parties.
23.1 Capturiant may at any time amend or modify these Terms of Service, the Capturiant Standard, and the Platform Rules at any time at Capturiant's discretion. Any such amendment or modification will be posted on the Capturiant Website along with the effective date of such modification. Any such amendment or modification takes effect at the time specified by Capturiant and without Account Holder's prior consent.
23.2 It is Account Holder's responsibility to check the Capturiant Website from time to time in relation to such amendment and modifications. Capturiant will notify Account Holder regarding any amendment or modifications to these Terms of Service, the Capturiant Standard, or the Platform Rules either via the Capturiant Website or by such other means Capturiant may determine.
23.3 By using the Platform after Capturiant has amended or modified the Terms of Service or the Platform Rules, Account Holder is deemed to have accepted the amended or modified Terms of Service or Platform Rules and to ensure compliance with them by all authorized representatives. Submission by Account Holder of a Uniform Project Description after any amendment or modification of the Capturiant Standard or Platform Rules will be deemed Account Holder's acceptance of the amended or modified Capturiant Standard and Platform Rules. If Account Holder does not agree with the amended or modified Terms of Service, Capturiant Standard, or Platform Rules, Account Holder must stop using the Platform and must not pursue listing of any new or pending Projects or minting or registration of any Assets. No such amendment or modification shall affect Account Holder's right to close Account Holder's Account and terminate use of the Platform in accordance these Terms of Service before such amendment or modification becomes effective.
24.1 Assignment Account Holder shall not assign these Terms of Service or any of its rights, benefits, duties, and obligations hereunder without the prior written consent of Capturiant, which consent Capturiant may withhold in its sole discretion. These Terms of Service shall be binding upon and inure to the benefit of the respective Parties and their respective successors and permitted assigns.
24.2 No Third-Party Beneficiaries Except as set forth elsewhere in these Terms of Service, these Terms of Service confer no rights whatsoever upon any Person other than the Parties and shall not impose, or be interpreted as imposing, any standard of care, duty, or liability upon any Person other than a Party.
24.3 Severability If any term of these Terms of Service is held to be illegal, unenforceable or void, then each other provision will remain in effect and the illegal, unenforceable or void provision will be amended to the extent required to make it legal and enforceable. If no such amendment is possible, then such term will be stricken from these Terms of Service and all other provisions will remain in full force and effect.
24.4 Audit Capturiant has the right, at its sole expense, upon reasonable notice and during normal working hours, to examine, audit, and obtain copies of the records of Account Holder to the extent reasonably necessary to verify:
24.4.1 the accuracy of any representation, warranty, or attestation made by Account Holder to Capturiant, including the accuracy and completeness of each Uniform Project Description submitted by Account Holder; and
24.4.2 Account Holder's performance during the prior twelve (12) month period of its obligations under the Platform Rules, these Terms of Service, and the Capturiant Standard or Applicable Standard and the requirements of any Applicable Standards Body applicable to Assets held by such Account Holder or minted by Capturiant or registered on the Capturiant Registry on behalf of such Account Holder.
24.5 Notice
24.5.1 Any notice required to be provided to Capturiant under these Terms of Service must be sent by email to legal@capturiant.com. The email notice from Account Holder to the specified Capturiant address(es) is deemed received at the time the confirmation email from Capturiant to Account Holder, acknowledging receipt of the notice, is sent to Account Holder.
24.5.2 Any notice required to be provided by Capturiant to Account Holder may be sent to any email address provided by Account Holder on its Account and shall be deemed received when sent.
24.6 Electronic Documents Electronic records and electronic signatures may be used in connection with the execution of these Terms of Service. To the extent permitted by law, the Parties understand and agree that any record that is signed, executed, accepted, agreed, or submitted using electronic means will be legally valid and will have the same force and effect of law as if the same process had been conducted using paper documents and handwritten signatures.
24.7 Injunctive Relief Account Holder acknowledges that money damages would not adequately compensate Capturiant in the event of a breach by Account Holder of its obligations hereunder and that injunctive relief may be essential for Capturiant to adequately protect itself hereunder. Accordingly, Account Holder agrees that, in addition to any other remedies available to Capturiant or at law or in equity, including but not limited to any monetary damages, Capturiant shall be entitled to seek injunctive relief in the event of any breach by Account Holder of any covenant, agreement, representation or warranty contained herein or in the Platform Rules.
24.8 Rights Cumulative The rights, remedies, and powers of the Parties under these Terms of Service are cumulative and do not exclude any other rights, remedies, or powers.
24.9 Entire Agreement These Terms of Service, the Capturiant Website Terms of Use, and the Privacy Policies constitute the entire agreement between the parties with respect to its subject matter and (to the extent permitted by Applicable Law) supersedes all prior representations, writings, negotiations, or understandings with respect to that subject matter. All terms, conditions and warranties not stated expressly in these Terms of Service, and which would in the absence of this provision be implied into these Terms of Service by statute, common law, equity, trade, custom or usage, or otherwise, are excluded to the maximum extent permitted by law. If there is any inconsistency between these Terms of Service and the requirements of any Applicable Standards Body, these Terms of Service will prevail with respect to the access to and use of the Platform.
24.10 Governing Law All matters relating to the Platform, the Services and these Terms of Service, and any Dispute arising therefrom or related thereto, shall be governed by and construed in accordance with the federal laws of the United States of America, including without limitation the Electronic Signatures in Global and National Commerce Act and, to the extent that state law applies, the laws of the state of Texas, USA without giving effect to any choice or conflict of law provision or rule (whether the state of Texas or any other jurisdiction). Each Party submits to the exclusive jurisdiction of the federal courts of the United States or the courts of the State of Texas, in each case located in the City of Houston and County of Harris, for the purposes of determining any Dispute arising out of these Terms of Service or the transactions contemplated by it. These laws and venue will apply no matter where in the world Account Holder is located or incorporated, and Account Holder waives any and all objections to the exercise of jurisdiction over Account Holder by such courts and to venue in such courts[PM3] [NM4] .
24.11 Sovereign Immunity To the extent that Account Holder or any of its authorized representatives enjoys any right of immunity from set-off, suit, execution, attachment or other legal process with respect to its assets or its obligations under these Terms of Service, Account Holder waives all such rights to the fullest extent permitted by law.
Notwithstanding anything to the contrary contained in this Terms of Service or in any other agreement executed or to be executed by Counterparty and Capturiant or a third-party buyer (“TP Buyer”) or a Controller:
PROJECT VALIDATION AND VERIFICATION OF THE ENVIROMENTAL ASSET CREDITS (EAC), PERFORMANCE ENVIRONMENTAL ASSET CREDITS (PEAC), AND ENVIROMENTAL AND SUSTAINABLE DEVELOPMENT BENEFITS ARE EXPRESSLY SET FORTH THROUGH REPORTS DELIVERED BY INDEPENDENT THIRD PARTIES SATISFYING TERMS OF SERVICE REQUIREMENTS. TO THE KNOWLEDGE OF COUNTERPARTY THE REPORTS ARE TRUE AND CORRECT IN ALL MATERIAL ASPECTS AS OF THE DATE FURNISHED.
IF (i) PEACS OR EACS IN A PROJECT WERE INCORRECTLY QUANTIFIED OR REPORTED (EITHER AT THE INITIAL VERIFICATION OR AT A SUBSEQUENT VERIFICATION) FOR ANY REASON OR (ii) THE PROJECT FAILS TO OPERATE AND THAT RESULTS A REDUCTION OF PEACS OR EACS LESS THAN REPORTED VOLUME, THE IDENTIFIED DEFICIT(S) AND THE COMPENSATION REMEDIES SHALL BE TREATED AS A REVERSAL EVENT AS DEFINED IN EXHIBIT A SECTION 10¹.
THE COUNTERPARTY INTERESTS SHALL BE TRANSFERRED “AS IS, WHERE IS, WITH ALL FAULTS.” COUNTERPARTY MAKES NO REPRESENTATION OR WARRANTY, EXPRESS, STATUTORY OR IMPLIED, INCLUDING REPRESENTATIONS AND WARRANTIES AS TO (i) TITLE TO THE INTERESTS; (ii) MERCHANTABILITY; (iii) FITNESS FOR A PARTICULAR PURPOSE; (iv) THE ACCURACY, COMPLETENESS OR MATERIALITY OF ANY INFORMATION, DATA OR RECORDS FURNISHED TO CAPTURIANT OR TP BUYER OR CONTROLLER IN CONNECTION WITH THE INTERESTS OR OTHERWISE CONSTITUTING A PORTION OF THE INTERESTS; (v) THE PRESENCE, QUALITY, QUANTITY AND RECOVERABILITY OF HYDROCARBON RESOURCES (IF ANY) ATTRIBUTABLE TO THE INTERESTS; (vi) THE ABILITY OF THE INTERESTS TO PRODUCE HYDROCARBONS, INCLUDING PRODUCTION RATES, DECLINE RATES AND RECOMPLETION OPPORTUNITIES; (vii) GEOLOGIC OR GEOPHYSICAL CHARACTERISTICS OR INTERPRETATIONS; (viii) THE PRESENT OR FUTURE VALUE OF THE ANTICIPATED INCOME, COSTS OR PROFITS, IF ANY, TO BE DERIVED FROM THE INTERESTS; (ix) THE ENVIRONMENTAL CONDITION OF THE INTERESTS; (x) ANY PROJECTIONS AS TO EVENTS THAT COULD OR COULD NOT OCCUR; (xi) THE TAX ATTRIBUTES OF ANY INTERESTS; (xii) ANY OTHER MATTERS CONTAINED IN OR OMITTED FROM ANY INFORMATION OR MATERIAL FURNISHED TO CAPTURIANT OR TP BUYER OR CONTROLLER BY COUNTERPARTY OR ANYONE ACTING ON COUNTERPARTY’S BEHALF; AND (xiii) THE COMPLETENESS OR ACCURACY OF THE INFORMATION CONTAINED IN THE FILES, DATA OR RECORDS OF COUNTERPARTY. ANY DATA, INFORMATION OR OTHER RECORDS FURNISHED BY COUNTERPARTY ARE PROVIDED AS A CONVENIENCE, AND CAPTURIANT OR TP BUYER’S OR CONTROLLER’S RELIANCE ON OR USE OF THE SAME IS AT THEIR SOLE RISK. COUNTERPARTY AND CAPTURIANT TOGETHER WITH TP BUYER AND CONTROLLER AGREE THAT, TO THE EXTENT REQUIRED BY APPLICABLE LAW TO BE OPERATIVE, THE DISCLAIMERS OF CERTAIN WARRANTIES CONTAINED IN THIS PARAGRAPH ARE “CONSPICUOUS.”
“Account” means a unique account established by an Account Holder to access and use the Platform. An Account Holder may have more than one Account, and such related Accounts may be associated with one another.
“Account Holder” means the Person named in the Capturiant online application as the Account holder and shall include a Person making use of the Platform on its own behalf and Persons who obtain the express authority of another Person to make use of the Platform and to manage Assets on behalf of such other Person.
“Applicable Law” means any international, federal, state, provincial, local or municipal law, regulation, code, order or other requirement or rule of law or the rules, policies, orders, regulations, judgments, rulings, decrees, injunctions, authorization, approvals or other directions or requirements of any Governmental Authority or stock exchange, including any judicial or administrative interpretation thereof and any international treaty obligation of any Governmental Authority, applicable to a Person or any of its properties, assets, business or operations.
“Applicable Standard” means a set of standards, definitions, laws, rules, or Methodologies of an Applicable Standards Body with respect to which projects and programs are validated and Environmental and Sustainable Development Benefits are verified, as such set may be amended, modified, or replaced from time to time.
“Applicable Standards Body or ASB” means a Person that is the governing body making final and binding determinations under an Applicable Standard, which body may also have an agreement in place with Capturiant with respect to Validation of Projects, Validation of EACs, and minting and registration of Assets compliant with such Applicable Standard.
“Asset” means either an EAC or PEAC which is eligible to be subjected to the Tokenization Process and registered on the Capturiant Registry as determined by Capturiant, and which has been assigned by Capturiant a Serial Number, an Expiration Date, and a Unit Type. An Asset may be assigned Buffer Status in accordance with the Program Requirements, or Dispute Status in accordance with these Terms of Service.
“Buffer Status” means a status assigned to an Asset as required by the Program Requirements, which status prohibits the Asset from being collateralized, sold, transferred, delivered, or retired by the Project Developer.
“Capturiant” means, collectively, Capturiant Ltd. and its affiliates and subsidiaries.
“Capturiant Materials” means any and all Intellectual Property Rights in and to the Platform, the Services, the Platform Rules, the Capturiant Website and the Capturiant Standard, and any improvements, design contributions, or derivative works thereto, and any knowledge or processes related thereto and/or provided hereunder, and shall include all Intellectual Property Rights owned by Capturiant and all materials in the Platform owned by Capturiant or by other parties that have licensed their material to Capturiant, as well as all anonymized and/or aggregated data derived from the Platform and the Uniform Project Descriptions.
“Capturiant Registry” means the portion of the Platform which is blockchain-based and serves as the system of record for Transactions on the Marketplace and, as such, tracks the registration, transfer and delivery, retirement, cancellation and collateralization of Assets minted with respect to Validated Projects listed on the Capturiant Website.
“Capturiant Standard” means the rules, processes, and procedures, as amended and supplemented from time to time, administered by Capturiant under which Projects are Validated, Environmental and Sustainable Development Benefits are Verified and Assets are minted as defined in the Program Requirements.
“Capturiant Website” means https://www.capturiant.com.
“Confidential Information” means:
a. All information provided by one Party to another Party in accordance with these Terms of Service, including but not limited to:
i. information concerning the business and affairs of a Party and its affiliates and customers, any analysis, information, pricing or other information related to any underlying Assets or transactions, any Account information, and
ii. any information to which Account Holder, Capturiant, or any third party (to the extent such third party owes a duty of confidence to Account Holder or Capturiant) has rights,
b. Which information is marked to expressly indicate its confidential, restricted, or proprietary nature by the Party having rights in the same, or which, under all of the circumstances, a reasonable businessperson should know to treat as confidential, restricted, and/or proprietary, and
c. Shall not include information:
i. That is, as of the time of its disclosure or thereafter becomes part of the public domain through a source other than the receiving Party that is not under any obligation of confidentiality with respect to such information;
ii. That was known to the receiving Party without obligation of confidentiality as of the time of its disclosure;
iii. That is independently developed by the receiving Party without reference to or use of the Confidential Information of the disclosing Party;
iv. That subsequent to its disclosure is received by the receiving Party from a third party not subject to an obligation of confidentiality with respect to the information disclosed; or
v. With respect to which the disclosing Party provides to the receiving Party in accordance with Section 16 or through an electronic interface comprising part of the Platform an express waiver of any confidentiality protection under these Terms of Service.
“Controller” means the Account Holder, acting on its own behalf or acknowledged as acting on behalf of another Person, that is identified by the Capturiant Registry as having the power to avail itself of substantially all the benefit of an Asset, and the exclusive power to (i) prevent others from availing themselves of substantially all the benefit from the Asset and (ii) transfer control of the Asset to another Person; and which Account Holder is enabled by the Capturiant Platform to exercise such powers.
“Dispute” means any disagreement, claim, allegation, concerning the generation, creation, ownership, validity, legality, minting, listing, or registration of any Project, or Assets, as applicable that may arise between Account Holder and any third party including Capturiant or any other Account Holder, or any disagreement, claim, or allegation arising in connection with these Terms of Service.
“Dispute Status” means a status assigned to an Asset by Capturiant under the Platform Rules, which prohibits the Asset that is the subject of a Dispute from being collateralized, sold, transferred or delivered, changed in status, or retired.
“Environmental and Sustainable Development Benefit(s) or ESDB(s)” means all legal and equitable right, title, interest, and benefit arising from or associated with:
a. the protection, conservation, or enhancement of the environment and/or biodiversity,
b. GHG Reductions,
c. any positive impacts, other than GHG Reductions, resulting from a Project, including but not limited to, the contribution to sustainability as monitored through the application of the UN Sustainable Development Goals ("SDGs"), including but not limited to SDG 13 (Climate Action), SDG 1 (End Poverty) and SDG 3 (Good Health), or
d. any other legal and equitable right, title, interest, or benefit relating to the benefits descripted in subpart a through c above, as may be created either by law, contract or otherwise between the Project Developer and Capturiant, or between the Project Developer and any Applicable Standards Body, and as accepted by Capturiant.
“Environmental Asset Credits or EACs” means each individual unit of a Unit Type relating to a Verified Environmental and Sustainable Development Benefit minted in accordance with the Capturiant Standard or an Applicable Standard, as applicable.
“Exclusivity Period” means the period during which Controllers are required to maintain registration on the Capturiant Registry of an Asset, including those in Buffer Status or Dispute Status, which period is established in accordance with the Program Requirements.
“Expiration Date” means the date established upon minting of an Asset on which the Asset may no longer be collateralized, sold, transferred and delivered, or retired, and the Asset is cancelled by Capturiant.
“eVault” means the portion of the Platform on which the tokenized Assets are stored. The Assets remain in the eVault at all times after minting and registration until: (i) those Assets that are EACs are transferred off the Platform (e.g., through a sale of the Asset to a non-Account Holder) or (ii) the Assets are earlier destroyed in accordance with these Terms of Service and the Platform Rules.
“Fee” means the rates, amounts or charges assessed by Capturiant for the Platform or other Services provided by Capturiant.
“Force Majeure” means an event or circumstance that:
a. was unforeseeable at the date of these Terms of Service;
b. was not within the reasonable control of the Parties; and
c. cannot reasonably be overcome by a Party affected by it, and includes, without limitation, drought, landslides, volcanic eruption, storm, epidemic, fire, flood, earthquake, epidemic, or similar naturally occurring event or catastrophe, act of terror, or a declared act of war or state of emergency.
The following events and circumstances are not Force Majeure: (i) the loss or failure of the markets for the sale or resale of Assets; (ii) Account Holder’s inability economically to use or resell the Assets; (iii) Account Holder’s ability to generate Environmental and Sustainable Development Benefits and be provided credits or other offsets with another platform or registry on terms superior to terms herein; or (iv) any Reversal. With respect to a Party's obligation to make payments hereunder, Force Majeure will be only an event or act of a Governmental Authority that on any day disables the banking system through which a Party makes such payments.
“GHG Reductions” means the removal, limitation, reduction, avoidance, sequestration, or mitigation of one metric ton of emissions of any of the six gases listed in Annex A to the Kyoto Protocol, measured in carbon dioxide equivalent from the atmosphere.
“Governmental Authority” means any domestic or foreign federal, provincial, regional, state, municipal or other government, governmental department, agency, authority or body (whether administrative, legislative, executive or otherwise), court, tribunal, commission or commissioner, bureau, minister or ministry, board or agency, or other regulatory authority, including any securities or commodities regulatory authorities or stock exchange.
“Indemnified Party” means, collectively, Capturiant and Capturiant’s employees, directors, officers, agents, contractors, representatives, subsidiaries, affiliates, successors and assigns.
“Intellectual Property Rights” means all rights in any patent, copyright, database rights, registered design or other design right, utility model, trade mark (whether registered or not and including any rights in get up or trade dress), brand name, service mark, trade name, eligible layout right, chip topography right and any other rights of a proprietary nature in or to the results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields, whether registrable or not and wherever existing in the world, including all renewals, extensions and revivals of, and all rights to apply for, any of the foregoing rights owned, used, or intended to be used, by a Party whether or not registered, registrable or patentable.
“Interest Certificate” means documentation evidencing the status of an Account Holder as the current Controller, Owner or Secured Party of an Asset which the Account Holder may provide to third parties as proof of its control of, and interest in, the Asset.
“Losses” means, collectively, all losses (including any decrease in the value of the Assets, whether or not realized), liabilities, damages, judgments, awards, penalties, fines, costs and expenses, including, without limitation, any amounts paid in settlement or compromise and any fees and costs of counsel and experts, incurred in connection with any proceedings, actions, claims or demands. For the avoidance of doubt, Losses include, and are not limited to, any Losses arising out of or related to:
i. any inaccuracy, error, or delay in or omission of any data, information, or Service, or the transmission or delivery of any data, information, or Service;
ii. any interruption of any such data, information, or service (whether or not caused by such Indemnified Party); or
iii. any financial, business, commercial or other judgment, decision, act or omission based upon or related to the information or the Platform.
“Marketplace” means the portion of the Platform that enables Account Holders to list offers to buy and sell, and to conduct Transactions of, Assets held in the eVault.
“Marketplace Rules” means the Account Holder user guidelines provided by Capturiant or published on the Capturiant Website which govern the access and use of, or integration with, the Marketplace, and the conduct of Transactions in the Marketplace.
“Marks” means, collectively, the names, logos, trademarks and service marks of Capturiant.
“Methodology” means the process, under the Capturiant Standard or an Applicable Standard, to assess the quality of the Environmental and Sustainable Development Benefits produced or generated by a Project against different quality objectives and criteria, and which will indicate the confidence or likelihood that the Environmental and Sustainable Development Benefits meet each criterion or quality objective.
“Owner”, with respect to an Asset, means the Account Holder with legal title to the Environmental and Sustainable Development Benefit underlying such Asset. The Asset Owner is designated on the Capturiant Registry as the Controller of the Asset if no security interest has been granted to a Secured Party with respect to the Asset.
“Party or Parties” means, individually and collectively, Capturiant and Account Holder.
“Performance Environmental Asset Credits or PEACs” means an EAC which has not yet been Verified by a Verification Body. Once the EACs underlying the PEACs are Verified, the PEACs will be converted to such number of EACs as determined by the Verification process.
“Person” means and includes individuals, corporations, bodies corporate, limited or general partnerships, joint stock companies, limited liability companies, joint ventures, associations, companies, trusts, banks, trust companies, Governmental Authorities or any other type of organization or entity, whether or not a legal entity.
“Platform” means the Capturiant platform Services provided through the Capturiant Website, and includes the Capturiant Registry, the Marketplace, and the eVault.
“Platform Rules” has the meaning set forth in the preamble and includes all other rules, requirements and procedures regarding the Platform, the Services or the Capturiant Website, adopted by Capturiant and made available to Account Holder, as such rules, requirements and procedures may be modified, amended or supplemented by Capturiant from time to time.
“Privacy Policies” means the privacy policies of Capturiant available at the Capturiant Website or as may be made available by Capturiant from time to time.
“Program Requirements” means the Account Holder guidelines provided by Capturiant or published on the Capturiant Website which explain how Project Developers may comply with the Capturiant Standard or an Applicable Standard and obtain Validation of Projects, and which otherwise describe the requirements for listing Projects with Capturiant and obtaining minting and registration of Environmental and Sustainable Development Benefits generated by or resulting from such Projects.
“Project” means a project or program that is projected to produce Environmental and Sustainable Development Benefits that will qualify as Assets under the Capturiant Standard or an Applicable Standard in accordance with the Program Requirements.
“Project Developer” means an Account Holder that has the overall control of, and responsibility for, a Project.
“Registry Rules” means the Account Holder user guidelines provided by Capturiant or published on the Capturiant Website which govern the access and use of, or integration with, the Capturiant Registry.
“Reverse, Reversed, or Reversal” means an intentional or unintentional event which results in a net reduction in Environmental and Sustainable Development Benefits generated by a Project than those supported by the Assets minted.
“Reversal Events” has the meaning provided in Program Requirements.
“Secured Party” means, with respect to an Asset, an Account Holder with a security interest in the Asset pursuant to a written agreement between such Account Holder and the Asset Owner. The Secured Party is designated on the Capturiant Registry as the Controller of the Asset if a security interest has been granted by the Owner with respect to the Asset and the Owner has transferred control of the Asset to the Secured Party.
“Serial Number” means a unique identification number created and assigned to the Asset through the Tokenization Process.
“Service” means a service offering provided by Capturiant under these Terms of Service.
“Terms of Service” means the Capturiant Platform Terms of Service agreed to and accepted by the Account Holder during the Account opening process, on its own behalf and on behalf of any other Person on whose behalf such Account Holder is making use of the Platform and managing Assets in such Account.
“Token” means a blockchain-based ERC-721 non-fungible digital asset.
“Tokenization Process” means the process utilized by Capturiant to mint a Token on a blockchain and associate that Token with an Asset by creation and assignment of the Serial Number, as more fully described in the Program Requirements.
“Transaction” means the purchase, sale, delivery and other transfer of Assets held in the eVault.
“Uniform Project Description” means the form that must be completed and submitted by a Project Developer to Capturiant which adequately and completely describes the Project, the Environmental and Sustainable Development Benefits generated and expected to be generated by the Project, and their conformance to the Capturiant Standard, any Applicable Standard, the terms of these Terms of Service, and the Program Requirements.
“Unit Type” means the unit of measurement applicable to a particular type of Environmental and Sustainable Development Benefit as defined by the Methodology underlying the Capturiant Standard or the Applicable Standard, as applicable to the Project (e.g., 1 metric tonne of CO2e, 1 tonne per year of plastic waste avoided, 1 acre of land under productive and sustainable agriculture, etc.). Each Asset will have an assigned Unit Type.
“Validate, Validation and Validated” means the act of a Validation Body to confirm that a Project meets the Program Requirements.
“Validation Body” means the Person accredited to perform Validation of a Project under the ISO 14065 standard or the International Standard on Assurance Engagements (ISAE) 3000, and which has been certified by Capturiant to perform Validation Services in accordance with the Program Requirements.
“Validation Body and Verification Body Requirements” or “VVB Requirements” means those requirements applicable to Validation Bodies and Verification Bodies, which are provided by Capturiant or published on the Capturiant Website, and which establish the standards and requirements for such bodies to become approved by Capturiant to provide Validation Services and Verification services to Project Developers in accordance with the Capturiant Program Requirements.
“Verify, Verification, and Verified” means the act of a Verification Body to confirm that Environmental and Sustainable Development Benefits of a Validated Project meet the Capturiant Standard or an Applicable Standard.
“Verification Body” means the Person accredited to perform Verification of Environmental and Sustainable Development Benefits under the ISO 14065 standard or the International Standard on Assurance Engagements (ISAE) 3000, and which has been certified by Capturiant to perform Verifications in accordance with the Program Requirements.
[Last updated on 06.21.2024]