By submitting payment for or otherwise downloading the Database (defined below) through the download page on this website (the “Download Page”), you acknowledge that you have read these Database License Terms (this “Agreement”), you agree to be bound by the terms hereof, and you represent and warrant that you have the authority to bind Licensee (defined below) to the terms of this Agreement.  If you do not agree with the terms of this Agreement or are intending to bind Licensee but are not authorized, you must not remit payment for or download the Database.

Optera, Inc. (“Licensor”) has compiled certain data regarding downstream emissions of consumer products (the “Data”) into its proprietary database (the “Database”), and Licensor desires to license the Database to the entity on whose behalf you are paying for the Database (“Licensee”), and Licensee desires to license the Database from Licensor, subject to the terms and conditions of this Agreement. Licensee hereby agrees as follows:

1.              License.

1.1            License Grant. Subject to and conditioned on Licensee’s compliance with all terms and conditions of this Agreement, Licensor hereby grants Licensee a non-exclusive, non-sublicensable, and non-transferable license during the Term to access, use, display, and distribute (to Authorized Users only) the Database solely for the lawful, internal, non-commercial purposes of Licensee, subject to Sections 1.2 and 1.3 below. For purposes of this Agreement, “Authorized Users” means the specific number of entities with which Licensee is permitted to share the Database, if and as indicated on a Licensor-issued invoice (the “Invoice”).

1.2            Special License Grant. If and only if the Invoice indicates that Licensee is in the Commercial Use pricing tier, the license grant in Section 1.1 above also permits Licensee to embed the Database into Licensee’s commercially available products; provided, however, that Licensee is not permitted to sell or distribute the Database as a standalone product.

1.3            Use Restrictions. Licensee shall only use the Database for the uses permitted by this Section 1. Any purpose or use not specifically authorized herein is prohibited unless otherwise agreed to in writing by Licensor. Without limiting the foregoing and except as otherwise expressly set forth in this Agreement, Licensee shall not at any time, directly or indirectly: (i) copy, modify, or create derivative works of the Database or Data, in whole or in part (except for lawful, internal, non-commercial purposes as permitted by Section 1.1); (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Database or Data; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source of the Data or methods used to compile the Database, in whole or in part; (iv) remove any proprietary notices included within the Database; (v) use the Database or Data in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right, privacy right, or other right of any person, or that violates any applicable law.

1.4            Citation. In the event that Licensee distributes, publishes, or otherwise disseminates any derivative reports, analyses, or works that use, incorporate, or rely on the Database, Licensee agrees to properly cite the Database as the source of such information in all such instances.

1.5            Reservation of Rights. Licensor reserves all rights not expressly granted to Licensee in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Licensee or any third party any intellectual property rights or other right, title, or interest in or to the Database or any Data.

2.                 Fees and Payment. In consideration of the license granted hereunder, Licensee shall pay fees if and as set forth on the Invoice, based on the pricing tier indicated on such Invoice (“Fees”). Licensee shall pay the Fees, without any right of offset, in full in advance, and as a condition of the license grant in Section 1. All Fees are exclusive of sales, use, value added, and similar taxes, which are the responsibility of Licensee.

3.              Confidential Information and Data Security.

3.1            Confidential Information. From time to time during the Term (defined below), Licensor may make available to Licensee information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Without limiting the foregoing, for purposes of this Agreement, the Database and all Data will be deemed Confidential Information. Licensee shall not disclose Confidential Information to any person or entity, except to its employees and Authorized Users who have a need to know the Confidential Information in order to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, Licensee may disclose Confidential Information to the limited extent required in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that Licensee shall first have given written notice to Licensor and made a reasonable effort to obtain a protective order.

3.2            Data Security. Licensee shall use all reasonable legal, organizational, physical, administrative, and technical measures, and security procedures to safeguard and ensure the security of the Database and to protect the Database from unauthorized access, disclosure, duplication, use, modification, or loss.

4.              Intellectual Property Ownership. Licensee acknowledges that, as between Licensee and Licensor, Licensor owns all right, title, and interest, including all intellectual property rights, in and to the Database and Data. Licensee further acknowledges that: (i) the Database is an original compilation; (ii) Licensor has dedicated substantial resources to collect, manage, and compile the Data; and (iii) the Database and Data each constitutes trade secrets of Licensor. Licensee acknowledges and agrees that it will be considered a material breach by Licensee under this Agreement if Licensee contests any of Licensor’s right, title, or interest in or to the Database, including without limitation, in a judicial proceeding anywhere throughout the world.

5.              Disclaimer of Warranties. THE DATABASE AND ALL DATA ARE PROVIDED “AS IS” AND LICENSOR HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. LICENSOR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. LICENSOR MAKES NO WARRANTY OF ANY KIND THAT THE DATA, OR ANY PRODUCTS OR RESULTS OF ITS USE, WILL MEET LICENSEE’S OR ANY OTHER PERSON’S REQUIREMENTS OR ACHIEVE ANY INTENDED RESULT.

6.               Indemnification. Licensee shall indemnify, hold harmless, and, at Licensor’s option, defend from and against any third-party claim, suit, action, or proceeding (“Third-Party Claim”) to the extent resulting from or arising out: (i) Licensee’s negligent or more culpable conduct; or (ii) Licensee’s breach of this Agreement, provided that Licensee may not settle any Third-Party Claim against Licensor unless such settlement completely and forever releases Licensor from all liability with respect to such Third-Party Claim or unless Licensor consents to such settlement, and further provided that Licensor shall have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.

7.              Limitations of Liability. EXCEPT FOR (I) A PARTY’S INDEMNIFICATION LIABILITY ARISING UNDER SECTION 6, (II) A PARTY’S BREACH OF SECTION 1, (III) A PARTY’S VIOLATION OF APPLICABLE LAW, OR (IV) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT IN CONNECTION WITH THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, (B) INCREASED COSTS, DIMINUTION IN VALUE, OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS, (C) LOSS OF GOODWILL OR REPUTATION, (D) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA OR BREACH OF DATA OR SYSTEM SECURITY, OR (E) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.

8.              Term and Termination.

8.1            Term; Termination. The term of this Agreement begins on the Effective Date and will continue in effect for a period of one (1) year thereafter (the “Term”), without option to renew. Licensor may terminate this Agreement, effective immediately upon written notice to Licensee, if Licensee breaches any of its obligations under this Agreement.

8.2            Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, the license granted hereunder will also terminate, and Licensee shall cease using and delete all copies of the Database, except that Licensee may retain one (1) copy of the Database solely for archival purposes. No expiration or termination will entitle Licensee to any refund. Any rights, obligations, or required performance of the parties in this Agreement which, by their express terms or nature and context are intended to survive termination or expiration of this Agreement, will survive any such termination or expiration, including the rights and obligations set forth in this Section 8.2 and Sections 3-7 and 9.

9.              Miscellaneous.

9.1            Entire Agreement. This Agreement, together with the Download Page and Invoice, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.

9.2            Notices. Licensor may give notice to Licensee by electronic mail to the e-mail address provided by Licensee to Licensor.  Such notice will be deemed to have been given 12 hours after sending by email.

9.3            Amendment and Modification; Waiver and Severability. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

9.4            Governing Law; Venue. This Agreement is governed by and construed in accordance with the internal laws of the State of Colorado without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Colorado. Any controversy or claim arising out of, or relating to, this Agreement, or the breach thereof, will be settled exclusively in the federal courts of the United States or the courts of the State of Colorado, in each case located in Denver, Colorado and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

9.5            Assignment. Licensee may not assign or transfer any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without the prior written consent of Licensor. Any purported assignment, transfer, or delegation in violation of this Section is null and void. No assignment, transfer, or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective permitted successors and assigns.

9.6            Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Sections 1 or 3 would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

9.7            No Partnership. The Parties hereto are acting as independent contractors, and this Agreement shall not create a partnership, joint venture, agency or employment relationship between the Parties.

9.8            Third-Party Beneficiaries. All the provisions of this Agreement are intended to bind and to benefit only the parties hereto and their permitted successors and assigns. Except as provided in the immediately preceding sentence, it is not intended that any such provisions benefit and it shall not be construed that these provisions benefit or are enforceable by, any creditors, contractors, brokers or other third parties.