CREDIT OWNERSHIP TERMS AND CONDITIONS
Last Modified: January 31, 2025
Welcome to the BCarbon ecosystem. Please read these Credit Ownership Terms and Conditions (the “Agreement” or “Terms”) carefully as it governs your ownership of carbon credits issued by BCarbon and your use of any services we offer. These Terms define the relationship between you (the “Holder”, “you”, or “your”, also a “Party”) and BCarbon, Inc. (“BCarbon”, “Certifier,” “we”, “us”, or “our”, also a “Party”), a Texas nonprofit corporation and charitable organization under section 501(c)(3) of the Internal Revenue Code, (collectively the “Parties”).
By applying to have issued or coming to hold carbon credits issued by BCarbon, you accept all the terms, conditions, restrictions, and obligations of this Agreement. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the legal authority to bind such company or other legal entity to this Agreement. You and BCarbon hereby agree as follows.
1. CREDITS AND SERVICES
a. BCarbon has developed methodologies, processes, and technologies to issue credits representing the avoidance, capture or reduction of carbon dioxide (CO2) or other greenhouse gasses, collectively “Credits”, that may be issued by BCarbon and may be sold, assigned, placed in custody, or otherwise transferred. Credits are unique property rights that include all credits, benefits, emissions reductions, offsets, and allowances, however entitled, attributable to or arising from the reduction, sequestration or avoidance of emissions. Each Credit represents one (1) metric ton of carbon dioxide (CO2) or equivalent emissions captured, removed or avoided.
b. By applying to have Credits issued by BCarbon or by coming to own Credits through purchase, assignment, or other transfer or by administering Credits on behalf of another party, you are considered a Holder and agree to adhere to all provisions of these Terms.
c. The purpose of Credits is to account for environmental and climate practices. As a Holder you agree that all Credits are owned for your own account (or for the account of a party for whom you are providing administrative services) and for the purposes of carrying out environmental commitments. The purchase, ownership, receipt, or holding of the Credits carries no express or implied rights other than the right to use the Credits as described herein subject to limitations and conditions in this Agreement and other applicable terms, conditions or policies, which may and likely will be implemented by BCarbon at a later date. The Credits are not intended to be nor should be construed as to be a loan contract, digital currency, or security, or as any form of option, derivative, future, or forward. You are purchasing the Credits exclusively for the purposes described herein, and you are aware of the risks associated with BCarbon, its Associated Projects, and the Credits, such as changes in buyer preferences and key market criteria, fluctuations in voluntary carbon credit price and demand, as well as the prospect of increased international and domestic regulation of the voluntary carbon credit market. You acknowledge and agree that BCarbon and the Credits are in an early stage of development and may undergo significant changes over time. In particular, please note that BCarbon continues and will continue to comply with and update the legal and regulatory requirements related to the functionalities of the Credits, which might eventually affect the intended functionality of and any legal rights associated with the Credits, with the aim of ensuring legal and regulatory compliance. BCarbon undertakes to publish any and all changes in the functionality of the Credits on the website. It is your responsibility to periodically check the website for any such notices.
d. The process of retirement is central to the Credit lifecycle. Active Credits are Credits that may still be sold or transferred and have not yet been claimed by a Holder in the reduction of environmental or climate impact. The process of retiring Credits is permanent and irreversible, and therefore Retired Credits are Credits that may no longer be sold, transferred, or otherwise updated or transacted.
e. BCarbon operates a Digital Wallet and Registry platform (the “Services”) for the purposes of allowing Holders and other parties to view and interact with Credits. By clicking “I Agree” or similar button or by using the Services, you likewise agree to adhere to these provisions along with any additional materials incorporated herein by reference as well as all applicable laws and regulations.
2. CUSTODY OF THE CREDITS
a. Credits acquired through the Services may be kept by you in custody either (a) directly, or (b) with a third-party custodian, depository or professional service provider (each a “Custodian”) in your name, acting as nominee (fiduciary), but for your account and at your sole risk. Custodians are to be selected by you and at your own risk. All Credits issued from time to time to your Account and deposited with a Custodian will be held by you or BCarbon solely as a nominee on behalf of you, which remains the legal and beneficial owner of such Credits. You agree to notify BCarbon in advance of directing your Credits to be held at a Custodian and agree to provide any information regarding the Custodian that BCarbon may reasonably deem necessary to comply with applicable law and its own internal policies.
b. The Custody of your Credits through Custodians is subject to the laws, customs, rules and conventions applicable to the Custodian, in particular the jurisdiction of the Custodian.
c. BCarbon shall; not be liable for any loss directly or indirectly attributable to an action or omission, or for the insolvency, bankruptcy or similar event affecting any custodian.
d. You acknowledge and agree that you bear the risk of credits held through a Custodian being compromised for any reason (e.g., hacking, theft, fraud, cyber-attack, loss of private key, etc. (each a “Loss Event”). In particular, BCarbon shall have no liability in connection with a Loss Event resulting from any action, omission, or otherwise attributable to you or any Custodian.
3. LIMITATIONS AND CONTROLS
a. Credits are issued at the full and sole discretion of BCarbon. The quantity and form of Credits minted are determined by BCarbon in accordance with our methodologies and processes and supported by both internal and third-party expertise and may not be altered by the Holder.
b. All sales, transfers, and retirements of Credits must be approved in advance by BCarbon. Provided that all Holders comply with these Terms, approval will not be unreasonably withheld. Any Credit transactions that do not comply with these Terms will be deemed null and void and BCarbon will be under no obligation to honor any rights or claims of the recipient.
c. Under these Terms, Credits, whether active or retired, may not be used (i) in any tokenization or securitization schemes that would see a separate token or security incorporate Credits by reference or (ii) as a constituent item in a collection of assets. As such, Credits may not be referenced, indexed, or bundled as part of any fungible or non-fungible blockchain token. BCarbon may, in its sole discretion, grant particular exceptions to this restriction and make certain Credits available via third party marketplaces or other forums either alone or packaged.
d. Only Credits that have been retired in accordance with these Terms may be referenced as part of a claim toward environmental or climate impact. In the event BCarbon discovers any public claims involving our Credits that give the appearance of Credits having been retired, BCarbon reserves the right to confirm that such Credits have been retired and, in the case Credits remain active, to retire the appropriate number of Credits from the balance of the Holder.
e. Except as expressly permitted under this Agreement or any open-source licenses that may control the source code underlying the Services, you must not yourself, nor permit any other party to: (i) reproduce, modify, translate, adapt or create derivative works based upon the Services; (ii) reverse engineer, decode, decompile, disassemble or otherwise attempt to access or derive the source code or architectural framework of the Services; (iii) access the Services for purposes of benchmarking or developing, marketing, selling or distributing any product or service that competes with or includes features substantially similar to the Services; (iv) take any action that imposes an unreasonable or disproportionately heavy load on the Services or its infrastructure or that negatively affects the ability of others to access or use the Services; (v) use the Services in any way that does not comply with all applicable laws and regulations; (vi) access or use the Services in a way intended to avoid incurring fees or exceeding usage limits or quotas; (vii) attempt to disable or circumvent any security mechanisms used by the Services; or (viii) use the Services in a way that poses a risk to BCarbon or Holders.
4. SERVICES, SUSPENSION OR TERMINATION
a. BCarbon reserves the right, in our sole discretion, to suspend or terminate your access to all or any part of the Services at any time, with or without notice, effective immediately, including but not limited to as a result of your violation of any of these Terms or any law or regulation. All fees owed to BCarbon before such termination will be immediately due and payable, including any liabilities that may have been incurred prior to termination.
b. Notwithstanding anything to the contrary, this Agreement may be terminated as follows: (i) by the non-breaching Party upon a material breach of this Agreement by the other Party, which breach is not cured within thirty (30) days after receipt of written notice from the non-breaching Party; or (ii) by either Party in the event the other party becomes insolvent or bankrupt; becomes the subject of any proceedings under bankruptcy, insolvency or debtor’s relief law; has a receiver or manager appointed; makes an assignment for the benefit of creditors; or takes the benefit of any applicable law or statute in force for the winding up or liquidation of such Party’s business.
c. All provisions of this Agreement which by their nature should survive termination will survive termination, including, without limitation, warranty disclaimers, indemnity, and limitations of liability.
5. AVAILABILITY AND ISSUANCE TIMING
BCarbon will make commercially reasonable efforts to maximize the availability of the Services defined herein. We endeavor to provide uptime available to the Services of at least 99.5% on an annualized basis. Additionally, BCarbon’s internal policies and processes are intended to realize Credit transactions including but not limited to minting, issuance, transfer, and retirement within an average of five (5) business days after BCarbon has received all necessary materials, including written confirmation from the Project Developer to proceed. In no case shall BCarbon’s failure, despite commercially reasonable efforts, to compile with the targets set in this section be construed to negate or supersede any disclaimer or limitation of liability found in this Agreement.
6. INTELLECTUAL PROPERTY AND DATA
a. All information, data, and other materials accessible or calculated through the Services (“Data”) are the sole responsibility of the Party from whom such materials originated. The Services may provide access to or rely on Data from third parties, and such third parties, and not BCarbon, are entirely responsible for such Data. You, and not BCarbon, are solely responsible for: (i) all Data that you calculate, submit, upload, transmit, process or otherwise make available to BCarbon for the issuance of Credits (“Credit Data”); and (ii) giving all required notices and obtaining all necessary consents and rights (including all required permissions from intellectual property holders) before submitting Credit Data to BCarbon. BCarbon expressly disclaims any guarantees or assurances of accuracy or validity regarding Data.
b. You acknowledge and agree that, as between you and BCarbon, BCarbon owns all rights, titles, and interests (including all intellectual property) in and to the Services, and all improvements, enhancements or modifications thereto, including all data therein (except for Registration Data and Credit Data).
c. BCarbon acknowledges and agrees that, as between you and BCarbon, you own all right, title and interest (including all intellectual property) in and to Credit Data you provide. You hereby grant BCarbon and its service providers a worldwide, royalty-free, non-exclusive license to store, parse, use, reproduce, modify, adapt, create derivative works from, perform, display, distribute, make and have made Credit Data as necessary for BCarbon to provide access to and use of the Services to Holders and other parties. This includes, without limitation, the right to: (i) make backups and store Credit Data on BCarbon’s databases; (ii) display Credit Data to you, Holders, and other users of the Services; (iii) parse Credit Data into a search index or otherwise analyze it on BCarbon’s servers; and (iv) publish Credit Data either in full or part to the publicly accessible BCarbon Registry. This license does not grant BCarbon the right to sell Credit Data or otherwise distribute or use it outside of the Services. You grant to BCarbon the rights it needs to use Credit Data without attribution and to make reasonable adaptations of Credit Data as necessary to provide the Services.
d. In the event that you provide any Suggestions (as hereinafter defined) to BCarbon, you hereby grant BCarbon and its service providers a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sub licensable, transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made Suggestions for any lawful purpose, without credit or compensation to you. For the purpose hereof, “Suggestions” means any suggestions, comments, ideas, improvements or other feedback relating to the Services that you elect to provide or make available to BCarbon.
e. Each of the Parties reserves all rights not expressly granted under this Agreement.
7. REPRESENTATIONS AND WARRANTIES
You represent and warrant to BCarbon that: (i) Holder has the necessary power and authority to enter into this Agreement; (ii) the execution and performance of this Agreement have been authorized by all necessary corporate or institutional action; (iii) entry into and performance of this Agreement will not conflict with any provision of law or the certificate of incorporation, bylaws or comparable organizational documents of such Party; (iv) no action by any governmental organization is necessary to make this Agreement valid and binding upon such Party; and (v) it possesses all governmental licenses and approvals necessary to perform its obligations under this Agreement.
8. PROVISION OF SERVICES; DISCLAIMERS
a. We may change or discontinue any or all of the Services or change or remove functionality of any or all of the Services from time to time. We will make reasonable efforts to notify you of any material change to or discontinuation of the Service in advance of such a change.
b. BCARBON PROVIDES THE SERVICES “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THIS, WE EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SERVICES INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, SECURITY, ACCURACY, AND NON-INFRINGEMENT. BCARBON DOES NOT WARRANT THAT: (I) THE SERVICES WILL MEET YOUR REQUIREMENTS; (II) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (III) THAT THE INFORMATION PROVIDED THROUGH THE SERVICES IS ACCURATE, RELIABLE OR CORRECT; (IV) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (V) THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; OR (VI) THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
c. Without limitation to anything in this Agreement, BCarbon will make commercially reasonable efforts to maximize the availability and security of our Services.
9. LIMITATION OF LIABILITY
(I) IN NO EVENT WILL BCARBON BE LIABLE TO YOU FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS OR COST OF COVER, INCLUDING DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS OR FINANCIAL LOSS OCCASIONED BY OR RESULTING FROM ANY USE OF OR INABILITY TO USE THE SERVICES PROVIDED UNDER THIS AGREEMENT, SUCH AS ANY MALFUNCTION, DEFECT OR FAILURE OF THE SERVICES OR ITS DELIVERY VIA THE INTERNET, EVEN IF BCARBON HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE; AND (II) IN NO EVENT SHALL BCARBON’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED $100 UNDER THIS AGREEMENT IN THE TWELVE (12)-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENTS GIVING RISE TO LIABILITY AROSE.
10. THIRD PARTY SUPPLIERS
CERTAIN COMPONENTS OF THE SERVICES INCLUDE FUNCTIONALITY SUPPLIED BY THIRD PARTIES. IN NO EVENT SHALL SUCH THIRD PARTIES, INCLUDING BCARBON’S THIRD PARTY DEVELOPERS, VENDORS, SUPPLIERS, CONTRACTORS, OR CONSULTANTS, BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES ARISING FROM THIS AGREEMENT. SUCH THIRD PARTIES ARE BENEFICIARIES OF THE SERVICES PROVIDED TO YOU HEREUNDER. THIRD PARTY COMPONENTS IN THE BCARBON CREDIT SERVICES OR OTHERWISE SUPPLIED BY BCARBON MAY NOT BE USED INDEPENDENTLY OF THE [BCARBON CREDITS/TECHNOLOGY/SERVICES, EXCEPT AS OTHERWISE PERMITTED BY OPEN-SOURCE LICENSES.
11. MODIFICATIONS TO THESE TERMS
We reserve the right, in our sole discretion, to amend these Terms at any time and will update these Terms in the event of any such amendments. We will notify you of material changes to these Terms at least 30 days prior to the change taking effect by posting a notice on our Website. With regard to both material or non-material modification, your continued use of the Services beyond the effective date of any changes will constitute acceptance of our revisions.
12. MISCELLANEOUS
a. Additional Restrictions. You represent that you and your financial institutions, or any party that owns or controls you or your financial institutions, are: (i) not subject to sanctions or otherwise designated on any list of prohibited or restricted parties, including but not limited to the lists maintained by the United Nations Security Council, the U.S. Government (e.g., the Specially Designated Nationals List and Foreign Sanctions Evaders List of the U.S. Department of Treasury and the Entity List of the U.S. Department of Commerce), or other applicable government authority; and (ii) not located in any country to which the United States has embargoed goods or has otherwise applied any sanctions. Additionally, you agree that you will comply with all applicable import, re-import, sanctions, anti-boycott, export, and re-export control laws and regulations as may be appropriate for the Services.
b. Assignment. You may not assign any of your rights under this Agreement, or sublicense, assign or delegate any right or obligation hereunder, by operation of law or otherwise without the prior written consent of BCarbon and any such attempt will be void. BCarbon may assign its rights to any of its affiliates or subsidiaries, or to any successor in interest of any business associated with the Services. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns.
c. Disputes. Before filing a claim, each Party agrees to try to resolve the dispute by contacting the other Party through the notice procedures in this Agreement. If a dispute is not resolved within thirty (30) days of notice, you or BCarbon may bring a formal proceeding. You and BCarbon agree to resolve any claims relating to the Agreement through final and binding arbitration, except as set forth in these Terms. The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules. Notwithstanding anything herein, the arbitration will be held in Harris County, Texas or any other location both Parties agree to in writing. Either Party may bring a lawsuit in the federal or state courts of Harris County, Texas solely for injunctive relief to stop unauthorized use or abuse of the Services or infringement of intellectual property rights without first engaging in the informal dispute notice process described above.
d. Entire Agreement. This Agreement, together with all incorporated references, represent the complete and exclusive statement of the Agreement between you and BCarbon relating to the subject matter herein. Except in cases where you and BCarbon have executed an agreement that explicitly replaces or modifies any terms herein, these Terms supersede any proposal or prior agreement oral or written, and any other communications between you and BCarbon.
e. Force Majeure. Neither Party shall be responsible for a delay or disruption in, or inability to provide its respective performance under this Agreement, other than a delay in payment for Services already performed, if such delay is caused by events or contingencies, existing or future, beyond the reasonable control of the claiming Party, including “acts of God,” abnormal weather conditions or other natural catastrophes, war (whether declared or not), terrorism, sabotage, computer viruses, civil unrest, strikes, lockouts or other industrial disturbances, pandemics, epidemics, health emergencies, virus (e.g. SARS Cov-2), disease (e.g. Covid-19), plague, changes in laws or regulations, quarantine, travel restrictions, discovery of hazardous materials, differing or unforeseeable site conditions, acts of governmental agencies or authorities (whether or not such acts are made in response to other Force Majeure Events), or any other events or circumstances not within reasonable control of the Party affected, whether or not of similar kind or nature to any of the foregoing (a “Force Majeure Event”). The Party seeking application of this provision shall notify the other Party in writing promptly upon learning of the impact of the Force Majeure Event upon the notifying Party’s performance of its obligations under this Agreement. Upon the occurrence of a Force Majeure Event, Parties shall be entitled to an equitable adjustment to the project schedule and compensation sufficient to compensate Certifier for any increase in the time or costs necessary to perform the Services under this Agreement. Should a Force Majeure Event substantially prevent or be reasonably likely to substantially prevent Certifier’s performance of the Services for more than thirty (30) days, then Certifier shall be entitled to terminate this Agreement without breach. In case of such termination, Certifier shall be entitled to compensation for those Services performed as of the date of termination.
f. Governing Law. These Terms will be governed by the laws of the State of Texas, without regard to conflict of laws principles. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the Southern District of Texas. Each Party hereby submits to the personal jurisdiction and venue of such courts and waives any objection on the grounds of venue, forum non-conveniens or any similar grounds with respect to any action or proceeding. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.
g. Indemnification. You must defend, indemnify and hold harmless BCarbon against any claim, demand, suit or proceeding made or brought against BCarbon by a third party arising from or in any way related to: (i) your breach of these terms; (ii) your use of the Services; (iii) your violation of applicable laws, rules, or regulations in connection with the Services; or (iv) User Acts (as defined below). You must reimburse BCarbon for any damages, reasonable attorney fees, and amounts awarded in a court or arbitration approved settlement against BCarbon as a result of such a suit of proceeding.
In order to receive the benefits under this Section 12(g), Certifier must promptly notify the other Party of the claim and cooperate with the other Party in defending the claim. The indemnifying Party will have full control and authority over the defense, except that: (i) any settlement requiring the Party seeking indemnification to admit liability requires prior written consent, not to be unreasonably withheld or delayed; and (ii) the other Party may join in the defense with its own counsel at its own expense.
h. Independent Contractors. The relationship between you and BCarbon established by these Terms is solely that of independent contractors. Neither Party is in any way the partner or agent of the other, nor is either Party authorized or empowered to create or assume any obligation of any kind, implied or expressed, on behalf of the other Party.
i. Interpretation. For the purposes of this Agreement: (i) the words “such as,” “include,” “includes” and “including” are to be deemed to be followed by the words “without limitation;” (ii) the word “or” is not exclusive; and (iii) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted.
j. No Class Action. You may only resolve disputes with us on an individual basis and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed. If this specific section is held unenforceable, then Section 12(g) will be deemed void.
k. No Waiver. Any failure or delay by BCarbon to enforce any provision of this Agreement will not be considered a waiver of our right to enforce such provision.
l. Notices. All communications and notices to be made or given pursuant to this Agreement must be in English. We may provide any notice to you under this Agreement by posting a notice on our Website, within the Services, or by sending a message to the email address below as provided in your Registration Data. You will be deemed to have received any email sent to the email address then associated with your Account when we send the email, whether or not you actually receive the email. To give us notice under this Agreement, you must: (i) email us using the addresses provided below; or (ii) send us your notice by certified mail, return receipt requested, to 4709 Austin St., Houston, Texas 77004, Attn: James B. Blackburn Jr., Email: jim.blackburn@bcarbon.org with a copy to bryan.french@bcarbon.org.
m. Publicity. As a Holder, you grant BCarbon the right to identify you in promotional materials. You may revoke this permission by notifying BCarbon in writing to stop using you in promotional materials. However, BCarbon will have no obligation to remove or recall any prior use or distribution of the promotional materials.
n. Severability. If any provision of these Terms is held to be invalid or unenforceable, that provision shall be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability. All remaining portions will remain in full force and effect.
o. Website. The term Website, or any similar terms, refers collectively to any information published or made available by BCarbon to www.bcarbon.org and bcarbon.changecode.io.
p. Compliance with the Law. Under this Agreement, it is the intent of the Parties that the obligations of the Parties under this Agreement shall not conflict with any law, regulation or ruling of an environmental nature of any federal, state, county, municipal or other governmental body. Holder agrees to comply substantially in the performance of this Agreement with all governmental laws, rules, ordinances and regulations, including the Corporate Transparency Act.