Terms of Service

Crux Climate, Inc. Terms of Service

Last Updated: September 3, 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 https://www.cruxclimate.com/privacy-policy (“PRIVACY POLICY”) (TOGETHER, THESE “TERMS”); PROVIDED, THAT TO THE EXTENT THESE TERMS DIRECTLY CONFLICT WITH ANY SEPARATE AGREEMENT THAT YOU HAVE PREVIOUSLY MADE WITH CRUX RELATED TO THE SERVICE AND THE PLATFORM OUTSIDE OF THE STANDARD VERSION OF THESE TERMS (INCLUDING VIA AN ADDENDUM TO THESE TERMS, A CLOUD SERVICES AGREEMENT OR A PLATFORM SERVICES AGREEMENT), SUCH SEPARATE AGREEMENT WILL CONTINUE TO GOVERN AND CONTROL ANY SUCH CONFLICT OTHER THAN AS NECESSARY TO COMPLY WITH LAW. 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”). Crux is not a party to Transactions between any Buyer, Seller, and/or other third parties transacted on the Platform, though Crux may be a third party beneficiary of such Transactions for purposes of paying certain Fees or as otherwise stated in the definitive transaction agreements.

~~1.2 If you are a seller of Tax Credits in a Transaction (a “Seller”), 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 (each, a “Buyer”);
~~~D. Survey the marketplace and collect interest related to a Project, which allows you to interact with Buyers;
~~~E. Facilitate the negotiation and execution of term sheets, definitive transaction documents in connection with the transfer of Tax Credits, and other related transaction documents;
~~~F. Streamline the sharing or receiving of Project and tax information before or after the completion of a Transaction, including for purposes of due diligence and tax filings;
~~~G. Manage your aggregate financial, tax-related, and impact reporting; and
~~~H. Interact and transact with Intermediaries (as defined below) on the Platform.

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

~~~A. Create and manage your Crux profile and account;
~~~B. Source potential Tax Credits for purchase;
~~~C. Match those Tax Credits with your estimated tax capacity;
~~~D. Invite advisors and other service providers to your account;
~~~E. Facilitate the negotiation and execution of term sheets, definitive transaction documents in connection with the transfer of Tax Credits, and other related transaction documents;
~~~F. Streamline the sharing or receiving of Project and tax information before or after the completion of a Transaction, including for purposes of due diligence and tax filings;
~~~G. Manage your aggregate financial, tax-related, and impact reporting; and
~~~H. Interact and transact with intermediaries on the Platform.

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

~~~A. Create and manage your Crux profile and account;
~~~B. Maintain a branded portal of credits;
~~~C. Invite buyers and sellers of credits into your branded portal;
~~~D. Create Listings on behalf of clients, and distribute them on the Platform, including through your branded portal; and
~~~E. Monitor pending and executed transactions, where applicable.
Please note that where you are an Intermediary, any obligations set forth herein to the extent applicable to you shall, where applicable, also apply to any Buyer or Seller that you are representing.

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; Crux fees.
~~3.1 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 the Buyer, Seller, or Intermediary, as applicable. 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, please immediately notify us at support@cruxclimate.com.
~~3.2 You are not required to pay any fees to Crux solely as a result of your agreement to these Terms. However, Crux charges fees in connection with Transactions executed on the Platform, and you may be required to agree to separate fee documentation (including an Order Form) in order to continue to use the Platform. Crux will not charge you any out of pocket fees that are not explicitly agreed to by you. However, Crux reserves the right to discontinue the Services of any user, including by removing a Transaction from the Platform, if such fee arrangements are not entered into at the appropriate time. In addition, Crux has the right to modify the terms of any bid submitted on the Platform in order to account for payment of fees to Crux or to other fee collecting parties, including Intermediaries (including by delivering a bid that is “net” of any such fees) on the subject Transaction.
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 and/or Seller 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, or 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, without any requirement of attribution.

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. There are no implied licenses in these Terms and Crux reserves all rights to the Materials not granted expressly in these Terms.
6. Referrals; Non-Circumvention

~~6.1. For purposes of these Terms:

~~~A. “Covered Period” means a two (2)-year period beginning and running from the date on which you (or any person for which you are serving as an Intermediary on the Platform) (i) meet an Introduced Party (in the case of Section 6.2) or (ii) discover an Introduced Transaction (in the case of Section 6.3). In any case where both (i) and (ii) are applicable, the Covered Period shall begin and run from the later of the two.

~~~B. “Introduced Party” means any third party that you (or any person for which you are serving as an Intermediary on the Platform) first meet on the Platform or through the Services, including any introduction by Crux. Introduced Party expressly excludes any third party that you invite to the Service or with whom you (or any person for which you are serving as an Intermediary on the Platform) had a bona fide pre-existing commercial relationship whereby you (or such other person) and the third party have entered into transactions for the purchase and sale of Tax Credits or other capital markets, development or other significant commercial transactions related to Projects, or that you (or such other person) and such third party have engaged in communications or activities that are reasonably likely to lead to entering into one or more of such transactions. Crux may request reasonable documentation and other backup information to substantiate any such pre-existing commercial relationship.
~~~C. “Introduced Transaction” means (i) in the case of Buyer (or any person when acting as Intermediary on behalf of Buyer), any Transaction that Buyer is first made aware of through use of the Platform or through an introduction by Crux or (ii) in the case of Seller (or any person when acting as Intermediary on behalf of Seller), any Transaction for which a Buyer has first been made aware of through use of the Platform or through introduction by Crux, but only with respect to such Buyer. A Buyer will not be deemed to be previously aware of a Transaction if such awareness is based solely on publicly available information or information that is widely available in the industry.
~~~D. “Non-Platform Transaction” means any direct or indirect investment, purchase and sale or other transaction to monetize Tax Credits (including through a transfer or purchase and sale of Tax Credits, or pursuant to a tax equity partnership, inverted lease, or sale leaseback structure) by you or any of your affiliates, subsidiaries, or clients (if you are an Intermediary) that does not take place on the Platform.

~~6.2 Introduced Party Referral Fee. During the Covered Period, if you (or any person for which you are serving as an Intermediary on the Platform) participate in a Non-Platform Transaction with an Introduced Party, you will be required to pay to Crux 1.00% of the notional value of tax credits being sold of transferred (or equivalent amount as part of any tax equity partnership, inverted lease or sale leaseback transaction) in such Non-Platform Transaction. The amounts payable to Crux under this Section 6.2 with respect to a particular Non-Platform Transaction shall constitute the total amount payable to Crux from all parties collectively, including Buyer and Seller, for any amounts due under this Section 6.2 with respect to such Non-Platform Transaction. In addition, if any Non-Platform Transaction under this Section 6.2 would also be covered by Section 6.3, it shall be addressed exclusively by Section 6.3.
~~6.3.Transaction Non-Circumvention. During the Covered Period, you (or any person for which you are serving as an intermediary on the Platform) shall not participate in any Non-Platform Transaction that is the same as, or substantially similar to, some or all of any Introduced Transaction (including where this is overlap on some or all of the tax credits or Projects included in such Introduced Transaction and such Non-Platform Transaction). If you (or such person) complete any such Non-Platform Transaction, you will be required to pay to Crux the greater of (x) 1.00% of the notional value of tax credits being sold of transferred (or equivalent amount as part of any tax equity partnership, inverted lease or sale leaseback transaction) and (y) the fees that Crux would have received in connection with such Transaction(s) if completed on the Platform pursuant to any fee documentation agreed to between Crux and any transacting party, including Order Forms. The amounts payable to Crux under this Section 6.3 with respect to a particular transaction shall constitute Crux’s maximum recovery from all parties collectively, including Buyer and Seller, for a breach of Section 6.3 with respect to such transaction.

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. The information you provide to Crux in connection with your use of the Platform and/or in connection with any Project and/or proposed Transaction is accurate and complete; to the extent you subsequently learn or discover that any information previously submitted is inaccurate or incomplete, you will promptly inform Crux of the same and update such information to make it accurate and complete.
~~7.6. 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 violate any applicable laws or third-party rights.

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, and transferable right to use, copy, store, disclose, transmit, transfer, publicly display, modify, and create derivative works from Customer Data only as necessary to: (a) provide the Services; (b) derive, generate, create or compile Usage Data or Aggregated Data and to use such data as set forth in Section 9.3; and (c) as otherwise required by Laws or as agreed to in writing between the parties.
~~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 lawful 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, marketing and reports. You will not interfere with the foregoing processing of Usage Data and Aggregated Data. “Aggregated Data” means User Content that has been aggregated with other data. “Usage Data" means information generated from the use of the Service, such as technical logs, bid information, pricing information and other transaction terms, data, and learnings about your use of the Service. To the extent Crux shares Aggregated Data or Usage Data publicly, it shall have been deidentified or aggregated such that the resulting data no longer reasonably identifies you, any specific Project or other identifying information. Crux’s rights regarding Usage Data and Aggregated Data hereunder shall survive the termination of these Terms.
~~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, compliance, legal and other purposes, as well as make selective revisions to User Content to correct or revise typographical errors or remove identifying information. Crux may also remove User Content, including any Listing, or choose not to proceed with publishing a Listing for the same or similar reasons, if Crux believes that any party is prohibited, or may be prohibited, from entering into a Transaction on the Platform due to violation of law or any third party right or contract. If at any time Crux chooses to monitor or revise or remove 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 or loss of any content, including any loss of revenues, profits or business opportunity as a result of any Transaction that is not consummated. 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, or by violating any third party contract, including any contract that prohibits you from engaging in a Transaction on the Platform (as a result of an exclusivity provision or otherwise);
~~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;
~~11.9. when engaging in bidding activities on the Platform, submit bids, respond to bids, or otherwise communicate in respect of a Transaction in a manner that does not reflect your good faith intention to enter into a Transaction based on such communicated terms and conditions;
~~11.10. submit bids or respond to bids for informational purposes only or in any other matter if you do not have a good faith intent to enter into a Transaction consistent with the terms of any bid or response to any bid;
~~11.11. take any effort to manipulate terms, conditions, pricing, or other elements of the Platform (including the “Cruxtimate” or pricing otherwise on the Platform), whether in respect of a particular Transaction or multiple Transactions; or
~~11.12 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 30 days after we provide notice to you of the revisions, which may be done, without limitation, via e-mail or through an acknowledgement on the Platform. To the extent any revisions directly conflict with any separate agreement that you have previously made with Crux related to the Service and the Platform outside of the standard version of these Terms (including via an addendum to these Terms, a cloud services agreement or a platform services agreement), such separate agreement will continue to govern and control in the case of any conflict, except to the extent such revisions are necessary to comply with law. If you do not otherwise accept such revisions and notify Crux of your rejection thereof within such 30 day period, Crux reserves the right to discontinue the Service, though will make commercially reasonable efforts (taking into account legal and operational requirements) to agree with you on arrangements whereby you may continue to use the Service and the Platform without the effect of such revisions, including if you are participating in any Projects or Transactions that were initiated and remain in process prior to you receiving notice of such revisions.
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 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.

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. 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. WE DO NOT GUARANTEE THE EXISTENCE, QUALITY, OR SAFETY OF ITEMS ADVERTISED ON THE PLATFORM, INCLUDING TAX CREDITS; THE TRUTH OR ACCURACY OF USERS’ CLAIMS OR REPRESENTATIONS REGARDING TAX CREDITS (INCLUDING WITHOUT LIMITATION, THE VALUE OF ANY TAX CREDIT) OR ANY PROJECT LISTING THAT APPEARS ON THE PLATFORM (“LISTING”); THE ABILITY OF SELLERS TO SELL TAX CREDITS; THE ABILITY OF BUYERS TO PAY FOR TAX CREDITS; THAT A BUYER OR SELLER WILL ACTUALLY COMPLETE A TRANSACTION; THE ABILITY OF BUYERS TO OFFSET THEIR FEDERAL TAX INCOME LIABILITY THROUGH THE PURCHASE OF TAX CREDITS (OR THAT ANY SUCH ACTIVITY WILL NOT BE SUBSEQUENTLY CHALLENGED BY THE INTERVAL REVENUE SERVICE).
~~15.2. YOU ACKNOWLEDGE, AGREE AND UNDERSTAND THAT THE MARKET FOR TRANSFERABLE TAX CREDITS IS RELATIVELY NEW, AND THAT RISKS RELATED TO TRANSACTIONS FOR TRANSFERABLE TAX CREDITS ARE STILL BEING DISCOVERED AND UNDERSTOOD, INCLUDING THE CIRCUMSTANCES IN WHICH THE INTERNAL REVENUE SERVICE MAY AUDIT, DISPUTE, QUESTION OR OTHERWISE CHALLENGE ANY SUCH TRANSACTION, EACH OF WHICH COULD HAVE A MATERIALLY ADVERSE FINANCIAL IMPACT ON ANY PARTICIPANT TO SUCH A TRANSACTION, INCLUDING YOU. YOU ACKNOWLEDGE THAT YOU ARE ACCEPTING SUCH RISKS, AND AGREE THAT CRUX WILL NOT BE RESPONSIBLE FOR ANY SUCH RISKS OR HAVE ANY LIABILITY TO YOU IN CONNECTION WITH THE FOREGOING. TO THE EXTENT CRUX PROVIDES ANY MATERIALS OR OTHER INFORMATION IN THE COURSE OF A TRANSACTION, YOU ACKNOWLEDGE AND AGREE THAT IT HAS BEEN PREPARED FOR GENERAL INFORMATIONAL PURPOSES ONLY AND IS NOT INTENDED TO BE RELIED UPON AS ACCOUNTING, TAX, LEGAL, BUSINESS OR OTHER PROFESSIONAL ADVICE. THE MATERIALS PROVIDE GENERAL INFORMATION BASED ON OUR MARKET OBSERVATIONS AND OTHER INFORMATION WE HAVE GATHERED, AND DOES NOT GUARANTY OR PROVIDE ASSURANCES AS TO ANY OUTCOME OR RESULT OF A PARTICULAR TRANSACTION, INCLUDING TRANSACTION TIMING, PRICING, OTHER COMMERCIAL TERMS, OR THE EXTENT TO WHICH ANY TRANSACTION COMPLIES WITH LEGAL, TAX, ACCOUNTING OR OTHER APPLICABLE REQUIREMENTS. WE STRONGLY ENCOURAGE YOU TO CONSULT WITH YOUR ADVISORS, INCLUDING LEGAL COUNSEL, FOR SPECIFIC ADVICE, INCLUDING PRIOR TO PARTICIPATING IN ANY TRANSACTION FOR THE PURCHASE AND SALE OR TAX CREDITS.
~~15.3. 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. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ANY INFORMATION WE PROVIDE AS PART OF OUR SERVICE, SUCH AS PRICING, LISTING, AND SOURCING INFORMATION, OR ANY INFORMATION RELATED TO THE TERMS AND CONDITIONS, NEGOTIATION OR EXECUTION OF ANY TRANSACTION, IS, IN EACH CASE, SOLELY FOR INFORMATIONAL PURPOSES AND YOU MAY DECIDE TO TAKE SUCH INFORMATION INTO ACCOUNT OR NOT. 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.
~~15.4. 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) 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. CRUX MAY FROM TIME TO TIME MAKE REFERRALS TO USERS ON THE PLATFORM FOR PROVIDERS OF PROFESSIONAL SERVICES IN CONNECTION WITH TRANSACTIONS, INCLUDING LEGAL COUNSEL, ACCOUNTANTS, TAX ADVISORS, INSURERS, COMPLIANCE SPECIALISTS, FINANCING PARTIES OR OTHERWISE. CRUX SHALL ACT IN GOOD FAITH WHEN MAKING ANY SUCH REFERRALS BUT SHALL OTHERWISE HAVE NO LIABILITY OR OBLIGATIONS RELATED TO ANY SUCH REFERRAL, INCLUDING FOR THE PERFORMANCE OF SERVICES BY ANY SUCH REFERRED PARTY.
~~15.5. THE RELATIONSHIP BETWEEN YOU AND CRUX SHALL BE ONE OF INDEPENDENT CONTRACTORS, NOT AGENTS, PARTNERS, OR JOINT VENTURERS, AND YOU AGREE THAT THE SERVICES TO BE PERFORMED HEREUNDER BY CRUX WILL NOT BE CONSIDERED ADVISORY SERVICES OF ANY NATURE OR RESPECT, AND THAT CRUX IS NOT AN ADVISOR, BROKER, DEALER OR FIDUCIARY, AND IT DOES NOT OWE ANY FIDUCIARY OR SIMILAR DUTIES TO YOU IN PERFORMING THE SERVICES. WITHOUT LIMITING THE FOREGOING, PLEASE NOTE THAT IN PERFORMING THE SERVICES CRUX MAY INTERACT WITH MANY PARTIES, INCLUDING MULTIPLE BUYERS OR MULTIPLE SELLERS, IN RESPECT OF A TRANSACTION, AND AS A RESULT MAY POSSESS INFORMATION AND TAKE RELATED ACTIONS THAT CONFLICTS WITH THE INTERESTS OF ANOTHER PARTY. AS A RESULT, ACTION TAKEN BY CRUX WITH RESPECT TO ANY SUCH TRANSACTION MAY BE PERCEIVED TO BE ADVERSE TO OR NOT IN THE BEST INTEREST OF ONE OR MORE PARTIES. IN ADDITION, CRUX MAY PROVIDE INFORMATION RELATED TO THE TERMS AND CONDITIONS OF A PROPOSED TRANSACTION THAT WE BELIEVE WILL BE HELPFUL IN ADVANCING A TRANSACTION, INCLUDING TARGETED PRICING (E.G., THE “CRUXTIMATE”), BUT THERE IS NO GUARANTEE THAT ANY SUCH INFORMATION IS ACCURATE, WILL LEAD TO A TRANSACTION, IS IN YOUR BEST INTERESTS, OR THAT YOU COULD NOT HAVE OBTAINED TERMS AND CONDITIONS THAT ARE MORE ADVANTAGEOUS TO YOU THAN THE INFORMATION THAT WE HAVE PROVIDED. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE USING ALL SUCH INFORMATION AT YOUR OWN DISCRETION AT YOUR OWN RISK. CRUX DISCLAIMERS ANY LIABILITY IN CONNECTION WITH THE FOREGOING AND YOU HEREBY ACKNOWLEDGE AND AGREE THAT ACTIONS TAKEN BY CRUX ON TRANSACTIONS MAY NOT BE IN YOUR BEST INTEREST.
~~15.6. YOU HEREBY ACKNOWLEDGE AND AGREE THAT, UNLESS EXPLICITLY AGREED TO BETWEEN YOU AND ANY RELEVANT TRANSACTING PARTY, YOU WILL NOT BE ENTITLED TO ANY EXCLUSIVITY RIGHTS IN RESPECT OF A LISTING OR TRANSACTION, AND SUCH RELEVANT TRANSACTION PARTY MAY BE DISCUSSING OR PURSUING ALTERNATIVE TRANSACTIONS WITH OTHER BUYERS, SELLER OR OTHER PARTIES, AS APPLICABLE, WHETHER VIA THE PLATFORM OR OTHERWISE, AND THAT CRUX MAY BE INVOLVED IN THE FACILITATION OF SUCH ALTERNATE TRANSACTIONS. 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. 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 FIVE PERCENT (5%) OF THE TOTAL FEES PAID BY YOU TO THE CRUX ENTITIES WITHIN THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO ANY SUCH CLAIM ARISING.
~~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. 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.
~~17.6. 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.

~~17.7. Enforceability. If Section 17.5 (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 or through the use of the Platform that is designated by the 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.” Confidential Information includes: any technical or performance information about the Services; presentations describing Crux’s offerings; the identity of any of customers or user or prospective customers or users 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) 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. Each recipient will: (a) hold Confidential Information in confidence and not disclose it to third parties except as permitted in under these Terms, including Section 9 (User Content), and (b) only use Confidential Information to fulfill its obligations and exercise its rights under these Terms and in using the Platform. At Discloser’s request, Recipient 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 and as otherwise permitted under these Terms, including Section 9 (User Content). 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; (d) it independently developed without using Confidential Information, (e) is shared by Discloser with any third party through Discloser’s actions taken during its usage of the Platform, including the posting of any Listing, bid activities in connection with any Listing, or exchanging information through a data room or any other part of the Platform or (f) is used by Crux in a manner expressly provided for under these Terms, including Section 9 (User Content). You further acknowledge and agree that Crux shall be permitted to make public announcements regarding your activity on the Platform, including the closing of a Transaction, but that any such announcements shall not include your name, the name of any Project, or any other identifying information without your consent, which shall not be unreasonably withheld, conditioned or delayed. You agree to reasonably cooperate with Crux on any such announcements, including review and input on any press releases, case studies or similar items, and that upon your approval of any public announcement, Crux shall be entitled to use the information contained in such public announcement for other public purposes, including speaking engagements, reports or otherwise.

~~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 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. 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.

~~19.5. Contact Information. The Service is offered by Crux Climate, Inc. You may contact us by sending an email to us at support@cruxclimate.com.

Terms of Service

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