Terms of Service

Crux Climate, Inc. Terms of Service

Last Updated: March 13, 2024

Welcome, and thank you for your interest in Crux Climate, Inc. (“Crux,” “we,” or “us”) and our website at www.cruxclimate.com (“Public Website”), along with our related websites, platform (“Platform”), and other services provided by us (collectively, the “Service”). These Terms of Service are a legally binding contract between you and Crux regarding your use of the Service.

PLEASE READ THE FOLLOWING TERMS CAREFULLY:

BY CLICKING “I ACCEPT,” OR BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICE, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, INCLUDING CRUX’S PRIVACY POLICY (“PRIVACY POLICY”) (TOGETHER, THESE “TERMS”). IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THE TERMS, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE SERVICE. YOUR USE OF THE SERVICE, AND CRUX’S PROVISION OF THE SERVICE TO YOU, CONSTITUTES AN AGREEMENT BY CRUX AND BY YOU TO BE BOUND BY THESE TERMS.

ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 17 (Dispute Resolution and Arbitration), you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND CRUX ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING.)

1. Crux Service Overview.
~~1. 1. We operate a Platform that, among other activities, facilitates the purchase, sale, intermediation, and syndication of certain federal income tax credits eligible to be transferred pursuant to section 6418 of the United States Internal Revenue Code (the “Code”, such credits, “Tax Credits”, and each purchase and sale, a “Transaction”) that originate from eligible projects in the United States (each such facility a “Project”). Unless otherwise specified, Crux is not a party to Transactions between Buyer Clients, Seller Clients, and/or other third parties transacted on the Platform. As part of the Service we offer, you may be subject to a separate Cloud Services Agreement (a “CSA”).

~~1.2 If you are a representative of a seller of Tax Credits in a Transaction (a “Seller Client”), then you can use our Platform to, among other uses:

~~~A. Create and manage your Crux profile and account;
~~~B. Upload and structure Project-related information relevant to the potential sale of Tax Credits;
~~~C. Distribute Project-related information to potential purchasers of Tax Credits in a Transaction (“Buyer Clients”);
~~~D. Survey the marketplace and collect interest related to a Project, which allows you to interact with Buyer Clients;
~~~E. Facilitate the negotiation and execution of term sheets, Tax Credit Transfer Agreements, binding Tax Credit sale agreements, definitive assignment agreements in connection with the transfer of Tax Credits, and other related transaction documents with Buyer Clients;
~~~F. Streamline the sharing of Project-level information after the completion of the Transaction;
~~~G. Manage your aggregate financial, tax-related, and impact reporting; and
~~~H. Interact and transact with intermediaries on the Platform.

~~1.3 If you are a representative of a Buyer Client, then you can use our Platform to, among other uses:

~~~I. Create and manage an account and profile;
~~~J. Source potential Tax Credits for purchase;
~~~K. Match those Tax Credits with your estimated tax capacity;
~~~L. Survey the marketplace and indicate interest related to a Project(s);
~~~M. Invite advisors and other service providers to your account;
~~~N. Facilitate the negotiation and execution of term sheets, Tax Credit Transfer Agreements, binding Tax Credit sale agreements, definitive assignment agreements in connection with the transfer of Tax Credits, and other related transaction documents with Seller Clients;
~~~O. Facilitate the sharing of needed information with Seller Clients for compliance purposes; and
~~~P. Manage your aggregate financial, tax-related, and impact reporting.

~~1.4. If you are a representative of an intermediary, such as a syndicator, bank, tax advisor, or other party that facilitates Transactions by connecting Buyer Clients and Seller Clients (“Intermediary Client”), then you can use our Platform to, among other uses:

~~~A. Create and manage an account and profile;
~~~B. Maintain a branded portal of credits;
~~~C. Invite buyers and sellers of credits into your branded portal;
~~~D. Access and add Projects listed to the Platform in your branded portal;
~~~E. Create Projects on behalf of clients, and distribute them on the Platform; and
~~~F. Monitor pending and executed transactions, where applicable.

~~1.5. Any guidance we provide as part of our Service, such as pricing, listing, and sourcing, is solely informational and you may decide to follow it or not. We may help facilitate the resolution of disputes between Buyer Clients and Seller Clients through various programs. Unless otherwise expressly provided, we have no control over and do not guarantee: the existence, quality, safety, or legality of items advertised; the truth or accuracy of users’ claims or representations regarding Tax Credits (including without limitation, information about risk of Tax Credit recapture) or any Project listing that appears on the Platform (“Listing”); the ability of Seller Clients to sell Tax Credits; the ability of Buyer Clients to pay for Tax Credits; or that a Buyer Client or Seller Client will actually complete a transaction.
~~1.6. Unless expressly stated, Crux does not, either through these Terms, or in any other forum or by any other means, purport to: (a) make a commitment to extend credit or make a loan or otherwise fund the purchase of Tax Credits; (b) except through counsel engaged in connection with a particular Transaction and where expressly stated, provide legal opinions or legal advice, including with respect to Tax Credits or other tax benefits that may be available in connection with any Project; or (c) provide escrow services for documents or funds.

2. Eligibility. You must be at least 18 years old to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years old; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms.
3. Accounts and Registration. To access the Platform, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your name, company email address, and information about Buyer Client, Seller Client, or Intermediary Client. You agree that the information you provide to us is accurate, complete, and not misleading, and that you will keep it accurate and up to date at all times. When you register, you will be asked to create a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you should immediately notify us at support@cruxclimate.com.
4. Licenses

~~4.1. Limited License. Subject to your complete and ongoing compliance with these Terms, Crux grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Service on behalf of the Buyer Clients and/or Seller Clients that you work for or otherwise represent.
~~4.2. License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, duplicate, distribute, publicly display, or create derivative works of the Service or any components thereof (including, without limitation, form transaction documents developed by or on behalf of Crux such as the Tax Credit Transfer Agreement); (b) make modifications to the Service; or (c) interfere with or circumvent any feature of the Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, then you may not use it.
~~4.3. Feedback. We respect and appreciate the thoughts and comments from our users. If you choose to provide input and suggestions regarding existing functionalities, problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant Crux an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right and license to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services. We will have no obligation to provide you with attribution for any Feedback you provide to us.

5. Ownership; Proprietary Rights. The Service is owned and operated by Crux. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service provided by Crux (“Materials”) are protected by intellectual property and other laws. All Materials included in the Service are the property of Crux or its third-party licensors. Except as expressly authorized by Crux, you may not make use of the Materials. There are no implied licenses in these Terms and Crux reserves all rights to the Materials not granted expressly in these Terms.
6. Non-Circumvention

~~6.1. For purposes of these Terms:

~~~A. “Non-Circumvention Period” means the period of time beginning at the time you first agree to be bound by the Terms and ending on the later of: (i) the two (2)-year anniversary of the last recorded date on which you accessed the Platform and (ii) the last date on which a Buyer Client, Seller Client, or Intermediary Client is required to fulfill obligations under the Tax Credit Transfer Agreement applicable to a Transaction.
~~~B. “Introduced Party” means any third party that you first meet through the Service. Introduced Party expressly excludes any third party that you invite to the Service or with whom you had a bona fide pre-existing relationship (as evidenced by written documentation provided to Crux within three (3) days of becoming connected on the Platform).

~~6.2. During the Non-Circumvention Period, you shall not, and shall cause your affiliates, customers, clients, partners, and representatives not to, directly or indirectly, (i) contact or enter into any discussions or contractual arrangements with any Introduced Party for the sale or purchase of Tax Credits, or (ii) invest or receive an investment (including through a Tax Credit Transfer Agreement, other purchase or sale of Tax Credits, or pursuant to a tax equity partnership, inverted lease, or sale leaseback structure), in any Project or transaction that is materially identical to any Transaction or Listing that you viewed within the Platform within the past twelve (12) months, other than through the Platform.
~~6.3. If you complete any transaction in violation of Section 6.2, the fees that Crux would have received in connection with such Transaction(s) if completed on the Platform pursuant to these Terms will be due and payable by you to Crux in accordance with the standard payment terms provided for herein and in any applicable Order Forms.

7. Your Warranties. You represent, warrant, and covenant to Crux that:

~~7.1. You are legally formed and domiciled in the United States, are a “United States person” within the meaning of Code section 7701(a)(30), and are acting on your own behalf.
~~7.2. As applicable to you under applicable laws, you have established anti-money laundering policies and procedures as required by the Bank Secrecy Act, as amended by the USA PATRIOT Act (the “Patriot Act”) and are in full compliance with the Financial Crimes Enforcement Network of the U.S. Department of Treasury regulations or, as applicable, the regulations of your federal functional regulator, i.e., the Board of Governors of the Federal Reserve System; the Federal Deposit Insurance Corporation; the National Credit Union Administration; the Office of the Comptroller of the Currency; Office of Thrift Supervision; the Securities and Exchange Commission; and/or the Commodity Futures Trading Commission.
~~7.3. As applicable to you under applicable laws, you are in compliance with the Patriot Act and do not provide services to any U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) named targets or entities, countries sanctioned under Section 311 of the Patriot Act or foreign shell banks.
~~7.4. You are not and shall not be prohibited from transacting business of the type contemplated by these Terms, pursuant to any federal regulations and executive orders and lists administered or published by OFAC.
7.5. If you are a Seller Client, you (i) will carry out all actions necessary to ensure that the Tax Credits being transferred comply with the transfer requirements set forth in Code section 6418 and the Treasury Regulations thereunder; (ii) will not cause any portion of the Projects subject to any tax credit transfer agreement to be ineligible for the Tax Credits contemplated to be transferred thereunder; and (iii) will take all necessary actions to ensure the Tax Credits are not subject to recapture within the meaning of Code section 50.
~~7.6. The information you provide to Crux and/or third parties in connection with your use of the Platform and/or in connection with any Project and/or proposed Transaction is accurate and complete, and you have not withheld any information that could reasonably be interpreted as material in determining the value of the Tax Credits, the risk of tax credit recapture, or any other significant risks relating to the Project(s).
~~7.7. While you are using the Services and/or in the performance of any Tax Credit Transfer Agreement or other transaction document in connection with a Transaction, you will not (i) violate any applicable laws or third-party rights, or (ii) fail to deliver payment for any Tax Credits purchased by a Buyer Client or Tax Credits that are agreed to be sold by a Seller Client.

8. Third-Party Services and Linked Websites. Crux may provide tools through the Service that enable you to export information, including User Content, to third-party services, including through features that allow you to link your account on the Service with an account on the third-party service or through our implementation of third-party buttons. By using one of these tools, you hereby authorize Crux to transfer that information to the applicable third-party service. Third-party services are not under Crux’s control, and, to the fullest extent permitted by law, Crux is not responsible for any third-party service’s use of your exported information. The Service may also contain links to third-party websites. Linked websites are not under Crux’s control, and Crux is not responsible for their content. Please be sure to review the terms of use and privacy policy of any third-party services before you share any User Content or information with such third-party services. Once sharing occurs, Crux will have no control over the information that has been shared.
9. User Content

~~9.1. User Content Generally. Certain features of the Service may permit users to submit, upload, publish, broadcast, or otherwise transmit (“Post”) content to the Service, including messages, photos, video or audio, images, folders, documents, data, text, and any other works of authorship or other works (“User Content”). As between the parties, you retain any copyright and other proprietary rights that you may hold in the User Content that you Post to the Service, subject to the licenses granted in these Terms.
~~9.2. Limited License Grant to Crux. By Posting User Content to or via the Service, you grant Crux a worldwide, non-exclusive, revocable, royalty-free, fully paid right and license (with the right to sublicense through multiple tiers) to host, store, transfer, publicly display, publicly perform (including by means of a digital audio transmission), communicate to the public, reproduce, modify for the purpose of formatting for display, create derivative works as authorized in these Terms, and distribute your User Content, in whole or in part, through the Platform to facilitate Transactions.
~~9.3. Usage Data; Aggregated Data. We may collect, access, use, disclose, transfer, transmit, store, host, or otherwise process your Usage Data (as defined below) and Aggregated Data (as defined below) for internal business purposes, such as to: (a) track use of the Service; (b) provide support for the Service; (c) monitor the performance and stability of the Service; (d) prevent or address technical issues with the Service; (e) improve the Service, our other products and services, and to develop new products and services; and (f) for all other lawful business practices, such as analytics, benchmarking, and reports. You will not interfere with the collection of Usage Data. “Aggregated Data” means User Content that has been deidentified or aggregated with other data such that the resulting data no longer reasonably identifies you or a specific individual or business. “Usage Data” means information generated from the use of the Service, which data does not identify users, any other natural human persons, or you, such as technical logs, data, and learnings about your use of the Service, but excluding any identifiable User Content.
~~9.4. You Must Have Rights to the Content You Post; User Content Representations and Warranties. You must not Post User Content if you are not the owner of or are not fully authorized to grant rights in all of the elements of that User Content. Crux disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Service. By providing User Content via the Service, you affirm, represent, and warrant to us that:

~~~A. you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Crux and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by Crux, the Service, and these Terms;
~~~B. your User Content, and the Posting or other use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, misappropriate, or otherwise breach any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property, contract, or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Crux to violate any law or regulation or require us to obtain any further licenses from or pay any royalties, fees, compensation or other amounts or provide any attribution to any third parties; and
~~~C. your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.

~~9.5. Monitoring Content. Crux does not control and does not have any obligation to monitor: (a) User Content; (b) any content made available by third parties; or (c) the use of the Service by its users. You acknowledge and agree that Crux reserves the right to, and may from time to time, monitor any and all information transmitted or received through the Service for operational and other purposes, as well as make selective revisions to User Content to correct or revise typographical errors or remove identifying information. If at any time Crux chooses to monitor or revise the content, then Crux still assumes no responsibility or liability for content or any loss or damage incurred as a result of the use of content. During monitoring, information may be examined, recorded, copied, and used in accordance with our Privacy Policy (defined below). Crux may block, filter, mute, remove or disable access to any User Content uploaded to or transmitted through the Service without any liability to the user who Posted such User Content to the Service or to any other users of the Service.

10. Communications. We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.
11. Prohibited Conduct. BY USING THE SERVICE, YOU AGREE NOT TO:

~~11.1. use the Service for any illegal purpose or in violation of any local, state, national, or international law;
~~11.2. harass, threaten, demean, embarrass, bully, or otherwise harm any other user of the Service;
~~11.3. violate, encourage others to violate, or provide instructions on how to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right or by violating these Terms and, if applicable, the terms of a CSA, including terms therein regarding non-circumvention;
~~11.4. access, search, or otherwise use any portion of the Service through the use of any engine, software, tool, agent, device, or mechanism (including spiders, robots, crawlers, and data mining tools) other than the software or search agents provided by Crux;
~~11.5. interfere with security-related features of the Service, including by: (i) disabling or circumventing features that prevent or limit use, printing or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
~~11.6. interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service, including for the purchase or sale of Tax Credits; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
~~11.7. perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation or identity, accessing any other Service account without permission, or falsifying your age or date of birth;
~~11.8. sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 5 (Ownership; Proprietary Rights)) or any right or ability to view, access, or use any Materials; or
~~11.9. attempt to do any of the acts described in this Section 11 (Prohibited Conduct) or assist or permit any person in engaging in any of the acts described in this Section 11 (Prohibited Conduct).

12. Modification of Terms. We may, from time to time, change these Terms. Please check these Terms periodically for changes. Revisions will be effective immediately except that, for existing users, material revisions will be effective 30 days after the earlier of (i) posting such revisions or (ii) notice to you of the revisions unless otherwise stated. We may require that you accept modified Terms in order to continue to use the Service. If you do not agree to the modified Terms, then you may be asked to remove your User Content and discontinue your use of the Service. You may only amend these Terms through a written agreement signed by authorized representatives of the parties to these Terms.
13. Term, Termination, and Modification of the Service

~~13.1. Term. These Terms are effective beginning when you accept the Terms or first access or use the Service, and ending when terminated as described in Section 13.2 (Termination).
~~13.2. Termination. If you violate any provision of these Terms, then Crux may immediately suspend your access to the Service. In addition, Crux may, at its sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, if: (a) you are in breach of these Terms and such breach remains uncured for 30 days after receiving notice, or (b) your relationship with the entity on whose behalf you are using the Service has been terminated. You may terminate your account and these Terms at any time by contacting customer service at support@cruxclimate.com.
~~13.3. Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your account or the Service; and (c) each of Sections 4.3 (Feedback), 5 (Ownership; Proprietary Rights), 6 (Non-Circumvention); 7 (Your Warranties); 13.3 (Effect of Termination), 14 (Indemnity), 15 (Disclaimers; No Warranties by Crux), 16 (Limitation of Liability), 17 (Dispute Resolution and Arbitration), 18 (Confidentiality), and 19 (Miscellaneous) will survive. You are solely responsible for retaining copies of any User Content you Post to the Service since upon termination of your account, you may lose access rights to any User Content you Posted to the Service. If your account has been terminated for a breach of these Terms, then you are prohibited from creating a new account on the Service using a different name, email address or other forms of account verification.

14. Indemnity. To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify Crux, its affiliates, and their respective shareholders, directors, managers, members, officers, employees, consultants, and agents (collectively, the “Crux Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including attorneys’ fees and costs, arising out of or connected with: (1) your unauthorized use of, or misuse of, the Service; (2) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (3) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (4) any dispute or issue between you and any third party, including, without limitation, any claims related to Tax Credit recapture or other circumstances where Tax Credits are worth less than anticipated at the time of a Transaction. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims. IF YOU HAVE A DISPUTE WITH ONE OR MORE TRANSACTION COUNTERPARTIES OR OTHER USERS OF THE PLATFORM, YOU ON BEHALF OF YOURSELF AND YOUR AFFILIATES, CLIENTS, CUSTOMERS, AND OTHER ASSOCIATED PARTIES, AND THEIR RESPECTIVE CONTRACTORS, OFFICERS, DIRECTORS, AND EMPLOYEES HEREBY RELEASE THE CRUX ENTITIES FROM CLAIMS, DEMANDS, DAMAGES (ACTUAL AND CONSEQUENTIAL) AND LIABILITIES OF ANY KIND AND NATURE, KNOWN AND UNKNOWN, CONTINGENT OR NOT, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
15. Disclaimers; No Warranties by Crux

~~15.1. THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. CRUX DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (a) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (b) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. CRUX DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND CRUX DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. CRUX DOES NOT WARRANT OR GUARANTEE THE ACCURACY OF ANY STATEMENTS MADE BY USERS REGARDING THE TAX ATTRIBUTES OF ANY PROJECT DESCRIBED OR REFERRED TO ON THE PLATFORM.
~~15.2. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR CRUX ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE CRUX ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY LOSS OR DAMAGES THAT MAY RESULT FROM THE SERVICE AND YOUR DEALINGS WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY LOSSES, INCLUDING DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
~~15.3. THE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS IN THIS SECTION 15 (DISCLAIMERS; NO WARRANTIES BY CRUX) APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Crux does not disclaim any warranty or other right that Crux is prohibited from disclaiming under applicable law.

16. Limitation of Liability

~~16.1. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE CRUX ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY CRUX ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE. FOR THE AVOIDANCE OF DOUBT, THE FOREGOING LIMITATION EXTENDS TO LOSSES IN CONNECTION WITH TAX CREDITS IDENTIFIED, PURCHASED, SOLD OR TRANSFERRED ON THE PLATFORM. THE CRUX ENTITIES WILL NOT BE LIABLE TO YOU FOR ANY LOSS IN CONNECTION WITH TAX CREDITS, INCLUDING WITHOUT LIMITATION DAMAGES FROM RECAPTURE, LOSS OF PROFITS, OR REDUCTION IN VALUE OF TAX CREDITS COMPARED TO THE VALUE YOU EXPECTED TO RECEIVE.
~~16.2. EXCEPT AS PROVIDED IN SECTIONS 17.5 (COMMENCING ARBITRATION) AND 17.7 (ARBITRATION RELIEF) AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE CRUX ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO $100.
~~16.3. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 16 (LIMITATION OF LIABILITY) WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

17. Dispute Resolution and Arbitration

~~17.1. Generally. Except as described in Section 17.2 (Exceptions) and 17.3 (Opt-Out), you and Crux agree that every dispute arising in connection with these Terms, the Service, or communications from us will be resolved through binding arbitration. Arbitration uses a neutral arbitrator instead of a judge or jury, is less formal than a court proceeding, may allow for more limited discovery than in court, and is subject to very limited review by courts. This agreement to arbitrate disputes includes all claims whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. Any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement will be resolved by the arbitrator. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND CRUX ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

~~17.2. Exceptions. Although we are agreeing to arbitrate most disputes between us, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) file suit in a court of law to address an intellectual property infringement claim.
~~17.3. Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 17 (Dispute Resolution and Arbitration) within 30 days after the date that you agree to these Terms by sending an email to legal-notices@cruxclimate.com that specifies: your full legal name, the email address associated with your account on the Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Crux receives your Opt-Out Notice, this Section 17 (Dispute Resolution and Arbitration) will be void and any action arising out of these Terms will be resolved as set forth in Section 19.2 (Governing Law). The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
~~17.4. Arbitrator. This arbitration agreement, and any arbitration between us, is subject to the Federal Arbitration Act and will be administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at +1-800-778-7879, or by contacting Crux.
~~17.5. Commencing Arbitration. Before initiating arbitration, a party must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Crux’s address for Notice is: legal-notices@cruxclimate.com. The Notice of Arbitration must: (a) identify the name or account number of the party making the claim; (b) describe the nature and basis of the claim or dispute; and (c) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Crux may commence an arbitration proceeding. If you commence arbitration in accordance with these Terms, Crux will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000 or if the Company has received 25 or more similar demands for arbitration, in which case the payment of any fees will be decided by the JAMS Rules. If the arbitrator finds that either the substance of the claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the JAMS Rules and the other party may seek reimbursement for any fees paid to JAMS.
~~17.6. Arbitration Proceedings. Any arbitration hearing will take place in the county and state of your residence/billing address unless we agree otherwise or, if the claim is for $10,000 or less (and does not seek injunctive relief), you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a telephonic or video hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your residence/billing address. During the arbitration, the amount of any settlement offer made by you or Crux must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based.
~~17.7. Arbitration Relief. Except as provided in Section 17.8 (No Class Actions), the arbitrator can award any relief that would be available if the claims had been brought in a court of competent jurisdiction. If the arbitrator awards you an amount higher than the last written settlement amount offered by Crux before an arbitrator was selected, Crux will pay to you the higher of: (a) the amount awarded by the arbitrator and (b) $10,000. The arbitrator’s award shall be final and binding on all parties, except (1) for judicial review expressly permitted by law or (2) if the arbitrator’s award includes an award of injunctive relief against a party, in which case that party shall have the right to seek judicial review of the injunctive relief in a court of competent jurisdiction that shall not be bound by the arbitrator's application or conclusions of law. Judgment on the award may be entered in any court having jurisdiction.
~~17.8. No Class Actions. YOU AND CRUX AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Crux agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
~~17.9. Modifications to this Arbitration Provision. If Crux makes any substantive change to this arbitration provision, you may reject the change by sending us written notice within 30 days of the change to Crux’s address for Notice of Arbitration, in which case your account with Crux will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected, will survive.
~~17.10. Enforceability. If Section 17.8 (No Class Actions) or the entirety of this Section 17 (Dispute Resolution and Arbitration) is found to be unenforceable, or if Crux receives an Opt-Out Notice from you, then the entirety of this Section 17 (Dispute Resolution and Arbitration) will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 19.2 (Governing Law) will govern any action arising out of or related to these Terms.

18. Confidentiality

~~18.1. Definition. “Confidential Information” means information disclosed to or by you under these Terms that is designated by the third party disclosing the information as proprietary or confidential or that should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure. For purposes of these Terms, the recipient of Confidential Information is the “Recipient” and the discloser is the “Discloser.” Crux’s Confidential Information includes: any technical or performance information about the Services; presentations describing Crux’s offerings; the identity of any of Crux’s clients or prospective clients shared with Recipient by Discloser or its affiliates; information relating to any planned or completed Projects, including the location, nature, ownership, or expected operating dates of such Projects; pricing information and transaction terms and conditions (whether final or indicative) provided by Crux or any Crux client or prospective Crux client relating to Tax Credits or the use of any Services; any draft, final, form, or template documents (including draft legal agreements and supporting documents and exhibits) shared in connection with a proposed Transaction; and proprietary information relating to the market for transferable federal income tax credits created under Code section 6418.
~~18.2. Obligations. As Recipient, you will: (a) hold Confidential Information in confidence and not disclose it to third parties except as permitted in under these Terms, and (b) only use Confidential Information to fulfill your obligations and exercise your rights under these Terms. At Discloser’s request, you will delete all Confidential Information, except, in the case where Crux is the Recipient, Crux may retain your Confidential Information to the extent required to continue to provide the Services. Recipient may disclose Confidential Information to its employees, agents, contractors, attorneys, advisors, accountants, and other representatives having a legitimate need to know (including, for Crux, its subcontractors, intermediary partners, and customers), provided it remains responsible for their compliance with this Section 18 and they are bound to confidentiality obligations no less protective than this Section 18.
~~18.3. Exclusions. These confidentiality obligations do not apply to information that Recipient can document: (a) is or becomes public knowledge through no fault of the receiving party; (b) it rightfully knew or possessed prior to receipt under these Terms; (c) it rightfully received from a third party without breach of confidentiality obligations; or (d) it independently developed without using Confidential Information.
~~18.4. Remedies. Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone are an insufficient remedy. The Discloser may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Section 18.

19. Miscellaneous

~~19.1. General Terms. These Terms, including the Privacy Policy and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and Crux regarding your use of the Service. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms and all rights granted under these Terms, including with respect to your User Content, at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of Section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. Throughout these Terms the use of the word “including” means “including but not limited to.” If any part of these Terms is held to be invalid or unenforceable, then the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
~~19.2. Governing Law. These Terms, and the rights and obligations of the parties, shall be construed, interpreted, and enforced pursuant to the laws of the State of New York, and exclusive venue in any and all actions existing under these Terms shall be laid in the federal and state courts located in the State of New York, City of New York, Borough of Manhattan.
~~19.3. Privacy Policy. Please read the Privacy Policy carefully for information relating to our collection, use, storage, and disclosure of your personal information. The Crux Privacy Policy is incorporated by this reference into, and made a part of, these Terms.
~~19.4. Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
~~19.5. Consent to Electronic Communications. By using the Service, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
~~19.6. Contact Information. The Service is offered by Crux Climate, Inc. You may contact us by sending an email to us atsupport@cruxclimate.com

Terms of Service

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