Terms & Conditions
General Terms and Conditions Scaler Platform
Version 2025.08.08
Welcome to Scaler. Please read on to learn the rules and restrictions that govern the use of the Scaler Global Inc. (“Scaler”) website, Platform, Pilot Offerings, products, services and applications (the “Services”) by you (“User”). User represents and warrants that User is an individual of legal age to form a binding contract. If User is agreeing to these Terms and Conditions on behalf of an organization or entity, User hereby represents and warrants that: (a) the organization or entity has entered into a User Agreement directly with Scaler; (b) User is authorized to agree to these Terms and Conditions on that organization’s or entity’s behalf and to bind them to these Terms and Conditions (in which case, the references to User in these Terms and Conditions, except for in this paragraph and Section 15.7. of these Terms and Conditions (in accordance with its terms), refer to that organization or entity); (c) User will only use the Services on behalf of and for the benefit of such organization or entity and not for its own benefit or the benefit of any other person, organization or entity; and (d) User will comply with all terms, conditions and use restrictions in the User Agreement.
Scaler and User shall each be referred to in these Terms and Conditions as a “Party” and collectively, as the “Parties.” User’s use of the Services is subject to these Terms and Conditions and all Order Forms that reference these Terms and Conditions. These Terms and Conditions are a binding contract between Scaler and User. User’s use of the Services in any way means that User agrees to all of these Terms and Conditions, and these Terms and Conditions will remain in effect while User uses the Services.
User’s use of and access to certain Services may also be subject to additional policies, rules and/or conditions (“Additional Terms”), which are incorporated herein by reference, and User understands and agrees that by accessing, using or participating in any such Services, User agrees to also comply with these Additional Terms. If User has any questions, comments or concerns regarding the Services or these Terms and Conditions, User should contact Scaler at info@scalerglobal.com.
These Terms and Conditions cover important information about the Services and any charges, taxes, and fees Scaler will bill User for in connection with the Services. These Terms and Conditions include information about future changes to these Terms and Conditions, automatic renewals, limitations of liability, a class action waiver and resolution of disputes by arbitration instead of in court. USER’S USE OF AND ACCESS TO THE SERVICES IS SUBJECT TO THESE TERMS AND CONDITIONS; IF USER DOES NOT AGREE TO ALL OF THE FOLLOWING TERMS AND CONDITIONS, USER MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.
ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION AGREEMENT SECTION BELOW, USER AGREES THAT DISPUTES BETWEEN USER AND SCALER WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND USER WAIVES USER’S RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
Definitions
1.1 Active Asset: an individual building or part of a building with an individual data point in the Platform, and for which current data is being processed.
1.2 Annual Term: means each one-year period that an Order Form is active, beginning on the License Start Date.
1.3 Anonymized Data: means User Data in an aggregated or anonymized manner that is rendered non-identifiable with respect to User.
1.4 Application Manager: the person employed by User who acts as a point of contact for Scaler regarding the use of the Platform and/or other Services.
1.5 Confidential Information: means, to the extent disclosed by or for either Party (the “Discloser”) to the other Party (the “Recipient”), all financial, business, legal and technical information of the Discloser or any of its affiliates, suppliers, customers and employees (including information about research, development, operations, marketing, transactions, regulatory affairs, discoveries, inventions, methods, processes, articles, materials, algorithms, software, specifications, designs, drawings, data, strategies, plans, prospects, know-how and ideas, whether tangible or intangible, and including all copies, abstracts, summaries, analyses and other derivatives thereof), that is marked or otherwise identified as proprietary or confidential at the time of disclosure, or that by its nature would be understood by a reasonable person to be proprietary or confidential. “Confidential Information” does not include any information that (a) was rightfully known to the Recipient without restriction before receipt from the Discloser; (b) is rightfully disclosed to the Recipient without restriction by a third party; (c) is or becomes generally known to the public without violation of these Terms and Conditions by the Recipient; or (d) is independently developed by the Recipient or its employees without access to or reliance on information disclosed by or on behalf of the Discloser. Information about Scaler's software, Templates, working methods and know-how, the pricing information set forth in an applicable Order Form, Documentation and Feedback are Scaler’s Confidential Information, and the User Data is User’s Confidential Information.
1.6 Documentation: means any Scaler official user documentation made available to User which may include any written Services feature descriptions incorporated into an applicable Order Form.
1.7 Feedback: means any suggestions, comments or other feedback provided by or on behalf of User to Scaler with respect to the Services.
1.8 Fees: means all fees set forth in an applicable Order Form.
1.9 Initial Term: shall have the meaning set forth in an applicable Order Form.
1.10 Losses: means all liabilities, claims, expenses (including reasonable attorneys’ fees) and damages.
1.11 Output: the data, reports and visualisations obtained from, made available through and/or displayed in the Services after the User Data has been processed by or through the Services.
1.12 Order Form: a written or online order form which may be entered into by the Parties from time to time.
1.13 Payment Terms: shall have the meaning set forth in an applicable Order Form.
1.14 Pilot Offerings: any Scaler offerings or versions of the Platform or any other Scaler products, services or applications made available to User on a, trial, beta, pilot, testing or similar basis.
1.15 Pilot Period: shall have the meaning set forth in an applicable Order Form.
1.16 Platform: the online “Scaler Platform” provided by Scaler. The Platform allows Users to: (1) collect and categorise (ESG) data using a template/portal, (2) check the collected data to ascertain that it is complete for ESG reporting purposes, and (3) analyse and process the data for visualisation and reporting purposes.
1.17 Scaler Indemnitees: means Scaler, Scaler’s affiliates and each of Scaler’s and Scaler’s affiliates’ employees, contractors, directors, suppliers and representatives.
1.18 Templates: means all templates Scaler makes available through or in connection with the Services.
1.19 Third Party Services: means any application programming interfaces (APIs), software, programs and/or other services operated or provided by third parties.
1.20 Updates: means upgrades, patches, enhancements, or fixes to or for Platform or the Services that Scaler provides to its customers and users generally without additional charge.
1.21 User: the user of the Platform or the Services who is entering into these Terms and Conditions or if a User is agreeing to these Terms and Conditions on behalf of an organization or entity, the organization or entity with whom Scaler has entered into a User Agreement.
1.22 User Agreement: the End User Licence Agreement between User and Scaler regarding the use, costs and duration of use of the Platform, which expressly incorporates these Terms and Conditions and each Order Form entered into by and between Scaler and User.
1.23 User Data: means any data, information or other material provided, uploaded, or submitted by or on behalf of User to the Services in the course of using the Services.
1.24 User Indemnitees: means User, User’s affiliates and each of User’s and User’s affiliates’ employees, contractors, directors, suppliers and representatives.
1.25 Utility Data Collection: means tools for collecting utility data via third-party software or software provided by Scaler.
Applicability of the Terms and Conditions
2.1 These Terms and Conditions apply to User’s use of the Services. User hereby accepts and agrees to be bound by these Terms and Conditions.
2.2 Scaler is entitled to and may unilaterally amend these Terms and Conditions from time to time. If these Terms and Conditions are modified or amended, Scaler will notify User by placing a notice and the most current version of these Terms and Conditions on the Scaler website available at https://www.scalerglobal.com/, or by notifying User by some other means. Subject to the foregoing or except as otherwise provided herein, no modification, amendment or waiver of any provision of these Terms and Conditions shall be effective unless either agreed by both Parties in writing or, with respect to a waiver, waived in a writing signed by the waiving Party. The failure of either Party to act with respect to a breach of these Terms and Conditions by the other Party shall not constitute a waiver and shall not limit such Party’s rights with respect to such breach or any subsequent breaches.
2.3 If User continues to use the Services in any way after an amendment, User thereby accepts the applicability of those amended Terms and Conditions. If User does not agree to any amendment, it must terminate the use of the Services in accordance with Section 13 of these Terms and Conditions.
Use of the Platform and the Services
3.1 User may only use the Services and Outputs for User’s own internal business purposes and not on behalf of or for the benefit of any third party, and only in a manner that complies with all laws, regulations and rules that apply to User (“Applicable Laws”). Subject to the requirements of the preceding sentence, the Platform allows User to, and User may, do each of the following in each case solely for User’s internal business purposes: (a) collect and categorise ESG data using a Template or portal; (b) check the collected data to ascertain that it is complete for ESG reporting purposes; and (c) analyze and process the data for visualisation and reporting purposes (collectively, the “Permitted Uses”). If User’s use of the Services or Outputs is prohibited by Applicable Laws, then User is not authorized to access or use the Services or Outputs. Scaler cannot and will not be responsible for any User’s access to or use of the Services or Outputs in a way that breaks or violates Applicable Laws.
3.2 User may be required to sign up for an account, select a password and user name (“Scaler User ID”), and provide Scaler with certain information or data, such as User’s contact information. User shall provide Scaler with accurate, complete and updated registration information. User may not select as User’s Scaler User ID a name that User does not have the right to use, or another person’s name with the intent to impersonate that person. User may not transfer User’s account to anyone else without Scaler’s prior written permission, in Scaler’s sole discretion. User will not share User’s Scaler User ID, account or password with anyone, and User must protect the security of User’s Scaler User ID, account, password and any other access tools or credentials. User is responsible for any activity associated with User’s Scaler User ID and account.
3.3 As part of the Services, User may receive communications through the Services, including messages that Scaler sends User (for example, via email or SMS). By signing up for the Services and providing Scaler with User’s wireless number, User confirms that User wants Scaler to send User information that Scaler thinks may be of interest to User, which may include Scaler using automated dialing technology to text User at the wireless number User has provided, and User agrees to receive communications from Scaler, and represents and warrants that each person User registers for the Services or for whom User provides a wireless phone number has consented to receive communications from Scaler. User agrees to indemnify, defend and hold the Scaler Indemnitees harmless from and against, and hereby releases the Scaler Indemnitees from, all Losses that may result from or in connection with User’s breach of this Section 3.1. If User elects to receive messages through the Services, data and message rates may apply. Any and all such charges, fees, or costs are User’s sole responsibility. User should consult with User’s wireless carrier to determine what rates, charges, fees, or costs may apply to User’s receipt of SMS messages in connection with the Services.
3.4 Additionally, User may be able to access certain parts or features of the Services by using account credentials from other services (each, a “Third Party Account”), including, for example, through single-sign on features such as those offered by User’s employer. By using the Services through a Third Party Account, User may permit Scaler to access certain information from such Third Party Account for use by the Services. User or, as applicable, User’s employer, is ultimately in control of how much information is accessible to Scaler and may exercise such control by adjusting User’s or User’s employer’s privacy settings within User’s Third Party Account.
3.5 User, not Scaler, is solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness and intellectual property ownership and right to use of all User Data, as well as for collecting and submitting the correct data to the Services using a Template or via direct portal input that Scaler makes available for this purpose. User represents and warrants that it has all rights necessary to provide the User Data to Scaler and for Scaler to use all User Data as contemplated hereunder, in each case without any infringement, violation or misappropriation of any third party rights (including, without limitation, intellectual property rights and rights of privacy). Scaler shall use commercially reasonable efforts to maintain the security and integrity of the Platform and User Data. Scaler is not responsible to User, and may not be held liable in any way, for unauthorized access to User Data or the unauthorized use of the Services or User Data, including but not limited to any loss of data, unless such access and use is due to Scaler’s gross negligence or willful misconduct.
3.6 The processing of User Data in or through the Platform takes place based on relevant the industry and sector-specific guidelines and standards. Scaler uses commercially reasonable efforts to align processing and reporting features within the Platform with then-current guidelines and standards, but may not be held liable in any way if the guidelines and/or standards used are not (or turn out not to be) correct.
3.7 User will designate an Application Manager in each Order Form who will be the point of contact for the rights and obligations that apply under the User Agreement and these Terms and Conditions. User must state the applicable Application Manager’s name, phone number and email address in each Order Form. If a new Application Manager is appointed, User will notify Scaler of this immediately and send Scaler the new Application Manager’s details within one (1) week of the new appointment.
3.8 User must have the software required to submit or process User Data on or through the Services, including as may be specified in applicable Documentation.
3.9 User is fully responsible and liable for the use of the Services and Outputs and for all actions performed on or related to the Services or Outputs by User and any person to whom User gives access to the Services or Outputs, even if User did not authorized such use. User shall defend, indemnify and hold the Scaler Indemnitees harmless from and against, and hereby releases the Scaler Indemnitees from, all Losses that may result in connection with the use of the Services and/or Outputs or User’s violation of these Terms and Conditions (and/or the User Agreement, as applicable).
Warranties, Warranty Disclaimer and Limitation of Liability
4.1 Each Party represents and warrants that it has the right to enter into these Terms and Conditions (and the User Agreement, as applicable) and perform its respective obligations hereunder (and thereunder). Scaler represents and warrants that the Platform will operate in material accordance with the Documentation.
4.2 EXCEPT AS OTHERWISE EXPRESSLY AND UNAMBIGUOUSLY SET FORTH IN THESE TERMS AND CONDITIONS, THE SERVICES, OUTPUTS, TEMPLATES AND DOCUMENTATION ARE PROVIDED AND MADE AVAILABLE TO USER “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. EXCEPT AS OTHERWISE EXPRESSLY AND UNAMBIGUOUSLY SET FORTH IN THESE TERMS AND CONDITIONS, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, SCALER, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICES, OUTPUTS, TEMPLATES AND DOCUMENTATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, SCALER PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND, THAT THE SERVICES, OUTPUTS, TEMPLATES OR DOCUMENTATION WILL MEET USER’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
4.3 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER SCALER NOR ANY SCALER INDEMNITEES SHALL BE LIABLE TO USER OR ANY OTHER PERSON UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THESE TERMS AND CONDITIONS (AND, AS APPLICABLE, THE USER AGREEMENT) FOR: (A) ANY LOST PROFITS OR REVENUES, BUSINESS INTERRUPTION, DATA LOSS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OR INACCURACY OF OUTPUTS OR RESULTS, COMPUTER FAILURE OR MALFUNCTION, COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND WHATSOEVER; (B) ANY BUGS, VIRUSES, TROJAN HORSES OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGIN); (C) ANY MATTER BEYOND SCALER’S REASONABLE CONTROL; OR (D) ANY AMOUNT IN EXCESS, IN THE AGGREGATE, OF THE GREATER OF (I) ONE HUNDRED UNITED STATES DOLLARS ($100.00) AND (II) FEES USER HAS PAID TO SCALER HEREUNDER DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO A CLAIM HERE. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL OR CERTAIN OTHER DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO USER.
Force Majeure
5.1 Except for payment obligations, neither Party shall be liable to the other Party for any failure to perform its obligations hereunder where such failure results from any cause beyond such Party’s reasonable control, including, but not limited to, strike, lock-out, labor dispute, the elements, fire, flood, severe weather, earthquake, vandalism, accidents, sabotage, denial of service or similar cyber-attack, Internet failure, war, acts of God and the public enemy, acts of terrorism, riots, civil or public disturbances, any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts, any defective performance of obligations by suppliers, power grid failures, failures of/at the server and other failures that impede data traffic.
Use of Pilot Offerings
6.1 User acknowledges and agrees that Pilot Offerings may be experimental in nature and are, notwithstanding anything to the contrary herein, provided to User “AS IS” solely for User’s use during the Pilot Period. Pilot Offerings may or may not be functional in a particular environment and Scaler’s indemnity obligations in these Terms and Conditions shall not apply with respect to any Pilot Offerings.
6.2 User is not allowed to use Pilot Offerings, Outputs or any reports/data generated during the Pilot Period for internal or external (official) disclosure or other submission purposes. The Pilot Offerings, Outputs and reports generated during the Pilot Period are only intended as an example of the functionality of the Pilot Offerings.
6.3 In the event that User does use the Pilot Offerings, Outputs or any reports/data generated during the Pilot Period for internal or external (official) disclosure or other submission purposes, Scaler is not liable, and hereby expressly disclaims any liability, to User or any other person on any grounds whatsoever, and User hereby agrees to indemnify, defend and hold the Scaler Indemnitees harmless from and against, and hereby releases the Scaler Indemnitees from, all Losses that may result from or in connection with this use of the Pilot Offerings and any such Outputs and reports/data.
Unlawful Use of the Platform
7.1 User represents, warrants and agrees that except as may be expressly and unambiguously permitted in these Terms and Conditions, User shall not, and shall not permit or allow any third party to, directly or indirectly: (a) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Services (except to the extent applicable laws specifically prohibit such restriction); (b) modify, translate, or create derivative works based on the Services, Outputs, Templates or Documentation; (c) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services, Outputs, Templates or Documentation; (d) use the Services, Outputs, Templates or Documentation for the benefit of a third party; (e) remove or otherwise alter any proprietary notices or labels from the Services, Outputs, Templates or Documentation or any portion of any of the foregoing; (f) use the Services, Outputs, Templates or Documentation to build an application or product that is competitive with the Services or any other Scaler product or service; (g) interfere or attempt to interfere with the proper working of the Services or any activities conducted on or through the Services; (h) bypass or attempt to bypass any measures Scaler may use to prevent or restrict access to the Services, Outputs, Templates or Documentation (or other accounts, computer systems or networks connected to the Services); (i) use or interact with the Services or Outputs in a manner that is dangerous, harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene or otherwise objectionable or that jeopardizes the security of User’s Scaler User ID, account or anyone else’s (such as allowing someone else to access the Services as User); (j) run Maillist, Listserv, any form of auto-responder or “spam” on the Services, engage in any other activity or enable any other process that runs or is activated while User is not logged into the Services, or otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure); (k) “crawl,” “scrape” or “spider” any page, data or portion of or relating to the Services or Outputs (through use of manual or automated means) or otherwise copy or store any significant portion of any Outputs, content, data or information made available through the Services; or (l) otherwise use the Services, Outputs, Templates or Documentation illegally, in violation of any Applicable Laws (including, without limitation, any applicable export control laws or privacy laws), in any manner that infringes, misappropriates or violates any Scaler or third party intellectual property, contractual, proprietary or other rights or for any other purpose not reasonably intended by Scaler. What is, in any case, considered to be unlawful is the use of the Services, Outputs, Templates or Documentation in violation of these Terms and Conditions (and/or the User Agreement), as well as use in violation of Applicable Laws. In the event that any claims, actions, demands or proceedings are made or brought against any Scaler Indemnitees due to illegal actions by User, User will defend, indemnify and hold the Scaler Indemnitees harmless from and against any Losses resulting therefrom.
7.2 Scaler is entitled to and reserves the right to suspend or unilaterally terminate User’s use of and access to the Services in each case without being obliged to provide any further explanation and without being liable for any damage if Scaler becomes aware of or is of the reasonable opinion that there has been (a) a breach of these Terms and Conditions (and/or the User Agreement); (b) any use of the Services that has resulted in (or is reasonably likely to result in) damage to or material degradation of the Services; or (c) any use of the Services in a manner which may interfere with Scaler’s ability to provide other customers with access to the Services. In that case, User must immediately stop using the Services. Scaler may also impose temporary limits on certain features and services or temporarily restrict User’s access to parts of the Services for maintenance, support or system administration purposes without notice or liability. To the extent that Scaler suspends User’s access to the Platform, Scaler agrees to use commercially reasonable efforts to provide notice under the circumstances of any such suspension of access to the Platform and to use reasonable good faith efforts to work with User to resolve or mitigate any issue prompting the suspension and reinstate User’s use of or access to the Platform, as applicable, if User remediates the issue.
7.3 If User knows or reasonably suspects that unlawful or unauthorized use is being made of the Services, Outputs, Templates or Documentation, then it must immediately report this to Scaler, by email. If required, User will cooperate and make every effort to put an end to the unlawful or unauthorized use of the Services, Outputs, Templates or Documentation.
Intellectual Property Rights
8.1 Except for the limited licenses granted herein, as between the Parties, Scaler and its licensors own and shall retain all right, title and interest, including all intellectual property rights (including but not limited to copyrights, trademark rights, copyrights, trade name rights and database rights) in and to the Services, Outputs, Documentation and Templates, as well as all materials displayed or made available on or through the Services, and any copies and derivatives works of any of the foregoing. Nothing in these Terms and Conditions (and/or the User Agreement) is intended to effect any transfer of right, title or interest in or to the Services, Outputs, Documentation or Templates, and no rights or licenses are granted except as expressly and unambiguously set forth in these Terms and Conditions (and/or the User Agreement).
8.2 For each Order Form, subject to User’s compliance with the User Agreement (including these Terms and Conditions and any limitations and restrictions set forth in an applicable Order Form), Scaler grants to User, and User accepts, a limited, personal, revocable, non-exclusive, non-sublicensable and non-transferable right to internally access and use the Services that Scaler makes available to User and the Outputs thereof in each case solely during the applicable Order Form Term (as defined below) or, with respect to Pilot Offerings, Pilot Term, solely for the Permitted Uses or such other purposes expressly specified in the applicable Order Form and in accordance with any applicable Documentation.
8.3 User may not take any actions that infringe, misappropriate or violate Scaler's intellectual property rights in or to the Services, Outputs, Documentation and Templates, or otherwise use the Services, Outputs, Documentation and Templates for any purpose outside of the rights expressly granted in these Terms and Conditions (and/or the User Agreement). Without limiting the restrictions in the preceding sentence, User may not make the Services, Outputs, Documentation or Templates available to, or otherwise share access to any of the foregoing with, any third parties except as expressly permitted in these Terms and Conditions (and/or the User Agreement). The Services may allow User to copy or download certain Outputs, materials, data or information, but even where these functionalities exist, all the restrictions in this Section 8.3 still apply.
8.4 Except for the limited licenses granted herein, as between the Parties, User retains all right, title and interest, including any intellectual property rights, in and to the User Data.
8.5 Notwithstanding anything to the contrary, User acknowledges and agrees that Scaler is entitled to, and hereby grants Scaler a limited, non-exclusive, non-transferable (subject to Section 15.2 of these Terms and Conditions) right and license to (a) internally use and modify (but not disclose) User Data for the purposes of (i) providing the Services to User and (ii) generating Anonymized Data; and (b) freely use, retain and make available Anonymized Data for Scaler’s business purposes (including, without limitation, for purposes of improving, testing, learning, operating, promoting and marketing Scaler’s products and services), in each case without User being entitled to any compensation (on any grounds whatsoever).
8.6 User hereby grants Scaler a limited, non-exclusive, non-transferable (subject to Section 15.2 of these Terms and Conditions) right and license to use and include User’s name, trade name and/or standard logo within its customer lists and for Scaler’s marketing purposes subject to Scaler’s compliance with any trademark or brand usage guidelines that User provides to Scaler.
8.7 User may provide Feedback and any Feedback provided, even if designated as confidential by User, shall not create any confidentiality obligation for Scaler notwithstanding anything else. User hereby assigns and agrees to assign to Scaler all right, title and interest in and to any Feedback. Nothing in the User Agreement will impair Scaler’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with, any products, software or technologies that User may develop, produce, market, or distribute.
Confidentiality
9.1 Each of the Parties must maintain strict confidentiality with regard to all Confidential Information of the other Party. The Parties must not share confidential information of the other Party with third parties and must only use it in accordance with the User Agreement and these Terms and Conditions, unless the Parties have explicitly agreed otherwise in writing. The Recipient shall use at least the same degree of care which it uses to prevent the disclosure of its own confidential information of like importance to prevent the disclosure of the Discloser’s Confidential Information, but in no event less than reasonable care
9.2 When the User Agreement ends or these Terms and Conditions are otherwise terminated, each Party will ensure that all of the other Party’s Confidential Information and any copies of it are handed over to the other Party or securely deleted (or, with respect to User Data, made available for retrieval as described in Section 13.6); provided however, that the Recipient may retain copies of the Discloser’s Confidential Information for routine backup and archival purposes subject to the confidentiality, non-use and non-disclosure obligations set forth herein. The Recipient may make disclosures required by law or court order provided that, if permissible pursuant to applicable law, the Recipient shall promptly notify the Discloser of any disclosure requirement and provide reasonable assistance to the Discloser in the Discloser’s efforts to prevent and/or limit the disclosure.
Fees and Terms of Payment
10.1 Parties have agreed in the Order Form on a number of assets and/or the volume of usage, being the minimum number of assets and usage User agrees to pay for (hereinafter referred to as the “Baseline Volume”). Within 30 days of the beginning of each Annual Term, Scaler shall issue an invoice for the Fees of that Annual Term based on the Baseline Volume.
10.2 If the actual usage of the Platform during the Annual Term exceeds the Baseline Volume for that Annual Term, Scaler shall issue an invoice for the usage exceeding the Baseline Volume. Actual usage is determined based on the number of Active Assets or the actual usage. The calculation of the Active Assets per month is based on the highest number of Active Assets in the respective calendar month. If usage is not specified on a per-asset basis but based on actual consumption/use (e.g., in the case of Utility Sync or Smart Bill Scrape), then the calculation for the use of the data collection module(s) shall be based on actual usage during a given month.
10.3 If the actual usage of the Platform during an Annual Term exceeds the Baseline Volume for that Annual Term, Scaler shall have the right to adjust the Baseline Volume for the next Annual Term accordingly. In the event that, during any Annual Term, the actual usage of the Platform exceeds the Baseline Volume by more than ten percent (10%), Scaler shall have the right to adjust the Baseline Volume during the Annual Term accordingly and invoice the User for the updated amount.
10.4 Scaler reserves the right to increase Fees at the end of the Initial Term as well as at the end of each subsequent renewal period.
10.5 If Utility Data Collection is performed by third parties and their pricing changes, Scaler reserves the right to adjust its own prices accordingly.
10.6 All invoices must be paid within fourteen (14) days after they were sent to the User. All fees and amounts payable under the Agreement are exclusive of any taxes, including any direct or indirect local, state, federal or foreign taxes, levies, duties or similar government assessments of any nature (such as VAT, GST, excise, sales, use or withholding taxes).
10.7 On January 1 of each year, the Fees shall increase by U.S. Bureau of Labor Statistics 12-month Consumer Price Index for All Urban Consumers. This adjustment shall only apply to increases in Fees; decreases or reductions in Fees shall not be applied.
10.8 All Fees paid are non-refundable and are not subject to set-off. If User’s account is more than five (5) days past due or as otherwise set forth in these Terms and Conditions, Scaler reserves the right to suspend, terminate or limit User’s access to or use of the Services.
10.9 User shall pay Scaler all Fees as set forth in each applicable Order Form in accordance with the Payment Terms set forth therein.
Services/Updates
11.1 Subject to User’s payment of all applicable Fees, Scaler will provide support, maintenance and uptime for the Platform in accordance with Scaler’s then-current standard Service Level Agreement, the current version of which is attached hereto as Appendix 4 (the “SLA”). The SLA applies only to the Platform and does not, for the avoidance of doubt, apply to any Pilot Offerings or other Services.
11.2 Except as otherwise expressly and unambiguously set forth in an applicable Order Form, Scaler does not provide User with any service(s) for the purpose of using the Platform. Scaler reserves the right to charge an additional fee for, and User agrees to pay any such additional fee, in connection with any additional service(s), tools, features and/or applications that Scaler may make available to User that are not specified in an applicable Order Form.
11.3 From time to time, Scaler may provide Updates and such Updates will become part of the Services and subject to these Terms and Conditions; provided that Scaler shall have no obligation under the User Agreement or otherwise to provide any such Updates. User acknowledges and agrees that Scaler may make Updates and modifications to the Services at any time in its sole discretion. Scaler will use commercially reasonably efforts to give User reasonable prior notice of any major changes that may adversely impact User’s use of the Services. Scaler is not liable to User or any other person, and User is not entitled to compensation, for any non-accessibility to/operation of the Services due to an Update.
11.4 Without limiting the foregoing, Scaler is entitled to suspend or discontinue any part of the Services or to change the location where the Platform is hosted or the Services are performed.
11.5 If there are any problems accessing or using the Platform, User can send an email to: info@scalerglobal.com. Scaler will use commercially reasonable efforts respond to User within a reasonable time and solve the problem.
Third Party Services and data collection
12. 1 User acknowledges and agrees that the Services may operate on, with or using Third Party Services, including without limitation through integrations or connectors to such Third Party Services that are provided by Scaler. The costs for the Third Party Services may be included in an applicable Order Form. User’s access to or use of any Third Party Services in connection with the Services is subject to prior written approval by Scaler, in Scaler’s sole discretion, and User may only use Third Party Services in connection with the Services to the extent that integration or connection to such Third Party Services can be set up and maintained with reasonable effort and Scaler determines, in its sole discretion, that the Third Party Services are compatible with the Services. Scaler reserves the right, at Scaler’s option, to undergo a data quality review of Third Party Services and subject use of Third Party Services to certain terms and conditions to be included in an applicable Order Form. Scaler is not responsible for the operation of any Third Party Services, nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third Party Services. User is solely responsible for procuring any and all rights necessary for it to access Third Party Services (including any rights to submit User Data thereto or to receive any information or Outputs relating thereto) and for complying with any applicable terms or conditions thereof. Scaler does not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between User and a provider of any Third Party Services is solely between User and such provider, and is governed by such third party’s terms and conditions.
12.2 In the event the Parties have agreed to a module relating to Utility Data Collection in the Order Form, the following shall apply. Scaler shall, on behalf of the User, collect data via the module as agreed in the Order Form. The collection of data is subject to the condition that such collection is actually (automatically) possible and Scaler reserves the right to conclude additional terms with User regarding the collection of data (for example: where such terms are required due to the type of data, the involvement of Third Parties, the method of collection, or the nature of the data itself). The collection of data does not apply to retrieval of historical data, but only to data relevant from the commencement of this Agreement onwards. The collection of data shall occur using software (depending on what is agreed in the Order Form such as via an API, bill scraping, survey or logging into smart meters). The number of meters per building, the APIs, and the frequency of data collection are set out in the Order Form, in the absence thereof, market standards shall apply. If the collection of data requires the use of Third Parties (such as, but not limited to, where an API connection must be established between Scaler and a third party), this Agreement does not cover any costs charged by such party and such costs shall be borne by the User, and Scaler reserves the right, in its sole discretion, to suspend such third-party services, conduct a data quality review thereof, and/or subject their use to additional terms and conditions. Where data is to be obtained via APIs, this shall be subject to the restriction that the number of APIs (with different third parties) to be set up shall not exceed ten percent (10%) of the Baseline Volume as specified in the Order From. It is understood that, while Scaler strives to obtain the data, it may not always be feasible, and Scaler shall have no obligation to guarantee the collection of all data and cannot be held liable in that respect. The User must fully cooperate, including but not limited to providing necessary information, (login) details, or access to the relevant provider or asset manager as needed. Content/information/data/ (login) details provided to Scaler must comply with the standards specified by Scaler. Any changes to (login) details or to the method of access, including other security/authentication measures, or any failure to provide content/information/data/(login) details (in the correct manner) may result in non-functioning of the service (without any liability of Scaler) and may incur additional costs for User. User agree that Third Parties may be engaged if required and that data will be shared with these Third Parties. Scaler is never responsible or liable for the content, obtaining, correctness, timeliness or completeness of the data, or for the performance of Third Parties. User must always verify the data before using it and is solely responsible for ensuring that all rights, permissions, and authorizations required to obtain, process, share and use the relevant data, (login) details, information and access (including by Scaler and (to) relevant Third Parties) have been duly secured and for complying with any applicable terms, laws or conditions. User shall indemnify, defend, and hold Scaler harmless from and against any and all claims, liabilities, damages, losses, penalties, and expenses (including reasonable attorneys’ fees) arising out of or related to (i) the use, processing or collection of any data, information, content; (ii) the engagement or performance of any Third Parties; (iii) any access credentials, (login) details or information provided by User; (iv) any breach of applicable laws (including data protection laws) by User; or (v) any failure by User to obtain and secure the necessary rights, permissions, licences, or authorizations. Scaler reserves the right to engage alternative or additional third parties to perform the relevant activities, or to perform them itself, at any time.
Term, Termination and End of Use
13.1 Each Order Form will commence on its respective License Start Date. At the end of the Initial Term, the Order Form will automatically renew for successive one-year terms and will remain in effect indefinitely unless terminated in accordance with this section. Either Party may terminate the Order Form by providing Scaler with written notice at least 30 days prior to the start of any renewal term.
13.2 Scaler is entitled to unilaterally terminate the Agreement in writing if Scaler is of the opinion that there has been a breach of it and/or these Terms and Conditions, without being obliged to provide any further explanation and without being liable for any damage. In that case, the User must immediately stop using the Platform and remove it (and all versions of it) from its server/computer permanently, in accordance with Article 8 of these Terms and Conditions.
13.3. Either Party may terminate these Terms and Conditions (and, as applicable, the User Agreement) upon notice to the other Party if the other Party files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law that is not dismissed within sixty (60) days of the commencement thereof, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property.
13.4 For the avoidance of doubt, if the Parties have entered into a User Agreement, then any termination of the User Agreement will also terminate these Terms and Conditions, and these Terms and Conditions may not be terminated separate and apart from the User Agreement.
13.5 Upon expiration or termination of these Terms and Conditions (or the User Agreement, as applicable) for any reason, User shall: (a) immediately cease access to the Services (subject to Section 13.6) and any reports, Outputs or any other data, information or visualizations created in connection with use of the Services; (b) permanently remove all versions of the Services, including the associated Templates and Documentation, from its computers, servers and other data storage media within five (5) days of termination; and (c) after completing the removal described in (b), confirm compliance with this Section 13.5 to Scaler in writing. For the avoidance of doubt, following the expiration or termination of these Terms and Conditions (or the User Agreement, as applicable) for any reason, User shall not transfer any reports, Outputs or any other data, information or visualizations created in connection with use of the Services to itself or any third parties.
13.6 For a period of thirty (30) days after any expiration or termination of these Terms and Conditions (or the User Agreement, as applicable) for any reason, upon User’s prior written request, Scaler will allow User limited access to retrieve any User Data remaining on the Services. After such thirty (30) day period, User will have no further rights to access the Services. For clarity, any transition or post-termination services provided by Scaler to User, including the data export set out above, and any assistance in exporting the User Data, shall be billable at Scaler’s standard rates then in effect.
13.7 Sections 1 (“Definitions”), 3.3, 3.5, 3.9, 4 (“Warranties, Warranty Disclaimer and Limitation of Liability”), 5 (“Force Majeure”), 6 (“Use of Pilot Offerings”), 7 (“Unlawful Use of the Platform”), 8 (“Intellectual Property Rights”) in accordance with its terms, 9 (“Confidentiality”), 10 (“Fees and Terms of Payment”), 12 (“Third Party Services”), 13.5, 13.6, 14 (“Dispute Resolution and Arbitration Agreement”) and 15 (“Miscellaneous”) of these Terms and Conditions and this Section 13.7 will survive and remain in full force and effect following expiration or termination of these Terms and Conditions (or the User Agreement) in accordance with their respective terms. Without limiting the foregoing, upon termination of these Terms and Conditions (or the User Agreement) all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such termination will survive, including the restrictions and terms and conditions relating to confidential information and proprietary rights, disclaimers, indemnification, limitations of liability, termination and the general provisions below.
Dispute Resolution and Arbitration Agreement
14.1 These Terms and Conditions, the User Agreement and the use of the Services are governed by the laws of the State of New York, without regard to the conflict of laws provisions thereof.
14.2 Please read the following ARBITRATION AGREEMENT carefully because it requires User to arbitrate certain disputes and claims with Scaler and limits the manner in which User can seek relief from Scaler. The Parties acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of these Terms and Conditions (and/or the User Agreement), Scaler's officers, directors, employees and independent contractors (“Personnel”) are third-party beneficiaries of these Terms and Conditions, and that upon User’s acceptance of these Terms and Conditions, Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms and Conditions against User as the third-party beneficiary hereof.
14.3 The Parties shall use their best efforts to settle any dispute, claim, question, or disagreement arising out of or relating to the subject matter of these Terms and Conditions (and/or the User Agreement) directly through good-faith negotiations, which shall be a precondition to either Party initiating arbitration. If such negotiations do not resolve the dispute, it shall be finally settled by binding arbitration in New York, New York. The arbitration will proceed in the English language, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “Rules”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.
14.4 The Rules will govern payment of all arbitration fees. Scaler will pay all arbitration fees for claims less than seventy-five thousand ($75,000) dollars. Scaler will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
14.5 Either User or Scaler may assert claims, if they qualify, in small claims court in New York, New York or any United States county where User lives or works (or if User is an entity, where User’s business is based). Furthermore, notwithstanding the foregoing obligation to arbitrate disputes, each Party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction, to prevent the actual or threatened infringement, misappropriation or violation of a Party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.
14.6 USER AND SCALER WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. User and Scaler are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between User and Scaler over whether to vacate or enforce an arbitration award, USER AND SCALER WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
14.7 ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither User nor Scaler is entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in Section 14.9 below.
14.8 User has the right to opt out of the provisions of this Section 14 (other than Section 14.1) by sending written notice of User’s decision to opt out to the following address: 119 W 24th St., 4th Floor, New York, New York 10011 postmarked within thirty (30) days of first accepting these Terms and Conditions. User must include (a) User’s name and business or residence address; (b) the email address and/or telephone number associated with User’s account; and (c) a clear statement that User wants to opt out of these Terms and Conditions’ arbitration agreement.
14.9 If User sends the opt-out notice in Section 14.8, and/or in any circumstances where the foregoing arbitration agreement permits either User or Scaler to litigate any dispute arising out of or relating to the subject matter of these Terms and Conditions (and/or the User Agreement) in court, then the foregoing arbitration agreement will not apply to either Party, and both User and Scaler agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in, respectively, New York, New York, or the federal district in which that county falls.
14.10 If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration Agreement section will be null and void. This arbitration agreement will survive the termination of User’s relationship with Scaler.
Miscellaneous
15.1 All notices under these Terms and Conditions and the User Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notices must be sent to the contacts for each Party set forth on an applicable Order Form, if any. Either Party may update its address or contact information set forth above by giving notice in accordance with this section.
15.2 Scaler is entitled to assign and transfer these Terms and Conditions (and, as applicable, the User Agreement) and the rights and obligations ensuing from these Terms and Conditions (and the underlying User Agreement) to an affiliated party of Scaler or to a successor in connection with a sale of all or substantially all of Scaler’s assets or business to which these Terms and Conditions (and/or the User Agreement) relates and to subcontract its obligations hereunder to any third party, but may otherwise assign or transfer its right and obligations hereunder to other third parties only with prior consent of User. User shall not have the right to transfer or assign, including by operation of law, these Terms and Conditions or the underlying User Agreement or any rights or obligations arising thereunder without the prior written consent of Scaler.
15.3 Except to the extent that an Order Form or any other documentation included in the User Agreement expressly references a particular section of these Terms and Conditions to be modified thereby, these Terms and Conditions will control in any conflict with any Order Form or any other documentation that differs from the provisions in these Terms and Conditions.
15.4 The Privacy Statement posted https://scalerglobal.com/privacy-statement/11, as may be updated and amended from time to time, is hereby incorporated by reference and applies to Scaler’s use/processing of any User Data that is personal data, including to the extent collected through the use of cookies.
15.5 In the event of unreasonable amounts of questions from User regarding governance, cdd, audit, compliance or similar questions/topics, Scaler is entitled to charge User for the hours worked or costs incurred for this purpose at Scaler’s then-current rates.
15.6 These Terms and Conditions (including any Order Forms issued hereunder) and, as applicable, the User Agreement constitute(s) the entire agreement of the Parties concerning the subject matter hereof and is/are intended to be the final expression of their agreement, and supersede all prior and contemporaneous agreements, proposals, or representations, whether written or oral.
15.7 No agency, partnership, joint venture, or employment relationship is created as a result of the User Agreement and neither Party (nor User in User’s individual capacity to the extent that User is agreeing to these Terms and Conditions on behalf of an organization or entity) has any authority of any kind to bind the other in any respect.
15.8 If any provision of the User Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable.