SmartCarbon Terms and Conditions

Basis of the Agreement

1.1

We have developed certain software applications and platforms which we make available to businesses via the website smartcarboncalculator.com for the purpose of helping these organisations to calculate and report their carbon impact. Please read this Agreement carefully, as it sets out the terms and conditions upon which we make the Services available to you.

1.2

By signing up on our website to use the Software, you confirm that you accept the terms of this Agreement, at which point, a legally binding contract between you and us will come into force.

1.3

If you are accepting this Agreement on behalf of a corporate entity, you represent that you are authorised to do so. If you are not so authorised, nor deemed in law to have such authority, you assume sole personal liability for the obligations set out in this Agreement. Accordingly, when we say you or your in this Agreement, we refer to the legal or natural person who is the customer (Customer) under this Agreement by virtue of the preceding sentence of this paragraph. If you do not agree to be bound by the terms of this Agreement, we will not licence the Software to you and you must not use the Service.

1.4

In this Agreement, unless the context otherwise requires, the words in Schedule 1 (Part I) will have the meanings attributed to them in that Schedule. Schedule 1 (Part II) sets out additional interpretations which apply to this Agreement.

Eligibility

To be eligible to access the Software and Services, you must be registering to use it in connection with your trade, business, craft or profession and not as a consumer (as defined in section 2(3) of the Consumer Rights Act 2015). By accepting this Agreement, you warrant and represent to us that you comply with this condition.

Licence of the Software

3.1

Subject to the provisions set out in clause 5 and 8, and other terms and conditions of this Agreement, we hereby grant to you a non-exclusive, non-transferable right during the Term, without the right to grant sublicenses, to:

(a)

use the Software, Services and Documentation in accordance with this Agreement solely for your internal business operations; and

(b)

make the Software, Services and Documentation available to Authorised Users in accordance with this Agreement.

3.2

The rights provided under this clause 3 are granted to you only, and will not be considered granted to any of your subsidiaries or holding companies.

Support Services

4.1

We will use Commercially Reasonable Efforts to make the Software available in accordance with this Agreement and to provide Support Services to you during the Term on Business Days and during Normal Business Hours.

4.2

As part of the Support Services, we will:

(a)

provide remote Help Desk Support; and

(b)

use Commercially Reasonable Efforts to correct all Faults notified by you in accordance with clause 4.4, on a remote, off-site basis (which may include over the telephone, by email, or by use of remote desktop support software).

4.3

You may request Support Services by emailing us at [email protected] or such other number or email address as we may notify to you from time to time for such purposes.

4.4

Each request for Support Services must include all relevant information to enable us to diagnose and resolve the Fault:

(a)

your name and full contact details;

(b)

a description of the problem and background context, details of any error messages and the start time of the incident, a screenshot of the Fault and a copy of the URL address on which the Fault is appearing.

4.5

You will provide us with prompt notice of any Faults, and such output and other data, documents, information and assistance (subject to compliance with all your security and encryption requirements notified to us in writing) as is reasonably necessary to assist us to reproduce operating conditions similar to those present when you detected the relevant Fault and to respond to the relevant request for the Support Services.

4.6

We may reasonably determine that a support service requested by you is an Out-of-scope Service. If we make such determination, we will promptly notify you of the same. You acknowledge that we may but are not obliged to provide Out-of-scope Services. Should we decide to provide you with an Out-of –scope Service, this does not oblige us to provide any Out-of-scope Services again at any point in the future.

Operation of the Service

5.1

You shall:

(a)

comply with all Applicable Laws with respect to your activities under this Agreement;

(b)

provide us with all necessary co-operation in relation to this Agreement (including all necessary access to such information as we may require) in order to provide the Services, including but not limited to Customer Data and security access information;

(c)

take all necessary steps to ensure that the EULA is binding upon Authorised Users and is not overridden or negated. You agree to provide us on demand with details of how this is being done and will take such further steps as we may require to ensure that it is done. We will have no liability of any kind whatsoever to you or any third Party for any failure to ensure that any Authorised User is notified of and bound by the EULA (including any amendments to the same);

(d)

ensure that each Authorised User keeps a secure password for their use of the Services, and that each Authorised User keeps their password confidential and does not allow a third party to use the password;

(e)

carry out all your other responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in your provision of such assistance as agreed by the Parties, we may adjust any agreed timetables as reasonably necessary;

(f)

obtain and will maintain all necessary licences, consents, and permissions necessary for us, our contractors and agents to perform our obligations under this Agreement;

(g)

ensure that the Customer Systems comply with the relevant specifications provided by us from time to time;

(h)

use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify us; and

(i)

be solely responsible for procuring and maintaining your network connections and telecommunications links from Customer Systems to our data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your network connections or telecommunications links or caused by the internet.

5.2

You shall not:

(a)

do (or omit to do) anything which may put us in breach of Applicable Laws; or

(b)

access, store, distribute or transmit any Viruses or any Prohibited Content during the course of its use of the Services, and we reserve the right, without liability or prejudice to our other rights under this Agreement, to disable your access to any material that breaches the provisions of this clause; or

(c)

except as may be allowed by any Applicable Law which is incapable of exclusion by agreement between the Parties:

(i)

attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or (ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or

(d)

access all or any part of the Services and Documentation in order to build a product or service which competes with the Services; or

(e)

use the Services and/or Documentation to provide services to third parties; or

(f)

subject to clause 17.5, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third Party except the Authorised Users; or

(g)

attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under clause 3.

Customer Data

6.1

You will own all rights (including the Intellectual Property Rights), title and interest in and to all of your Customer Data and will have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data, subject to clause 6.2 below.

6.2

You grant us a worldwide, irrevocable, exclusive, royalty-free licence to create anonymised, aggregated and analytical data using the Customer Data and data collected by us through your use of the Software (including the use of any Authorised User) (Aggregated Data). We will own all rights (including Intellectual Property Rights), title and interest in and to all of the Aggregated Data.

6.3

We will use reasonable endeavours to ensure that Customer Data which comes into our possession or control in the course of providing the Services is protected in accordance with confidentiality and security obligations under this Agreement. In particular, we will not:

(a)

use Customer Data nor reproduce Customer Data in whole or in part in any form except as may be required by this Agreement; nor

(b)

disclose Customer Data to any third Party or persons not authorised by you to receive it, except with your prior written consent. For the avoidance of doubt, the Approved Sub-processors are deemed to be authorised by you to receive the Customer Data for the purposes set out in Schedule 2 (Data Processing Particulars).

6.4

We will (or will procure a third Party contractor to) develop the back-up schedule, perform scheduled back-ups, provide routine and emergency data recovery, and manage the archiving process. Automated back-ups are in place and are taken every 10 minutes. In the event of any loss or damage to Customer Data, your sole and exclusive remedy will be for us to use Commercially Reasonable Efforts to restore the lost or damaged Customer Data from the latest back-up of such Customer. We will not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third Party (except those third parties sub-contracted by us to perform services related to Customer Data maintenance and back-up).

6.5

In addition to clause 6.4, we would encourage you to develop your own internal back-up schedule of your Customer Data and the Results.

Data Protection

7.1

In this clause 7 and in Schedule 2:

(a)

controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures have the meanings ascribed to them in the Data Protection Legislation; and

(b)

sub-processor means a processor engaged by us on your behalf for carrying out specific processing activities in connection with the performance of this Agreement; and

(c)

Customer Personal Data means such Customer Data that constitutes personal data.

7.2

The Parties agree that:

(a)

for the purposes of the Data Protection Legislation, you are the controller and we are the processor in respect of the Customer Personal Data;

(b)

the scope, nature and purpose of the processing are as set out in Schedule 2 (Data Processing Particulars);

(c)

whilst the Software is currently hosted in UK data centres, the Customer Personal Data may be transferred or stored outside the EEA or the country where you and/or the Authorised Users are located in order to carry out the Services and our other obligations under this Agreement; and

(d)

having regard to the state of technological development and the cost of implementing any measures, each Party will ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of the Customer Personal Data and against accidental loss or destruction of, or damage to, Customer Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected.

7.3

You warrant to us that you have the legal right to disclose to us all Customer Personal Data that you do in fact disclose to us under or in connection with this Agreement, and that the processing of that Customer Personal Data by us for the purposes of this Agreement will not breach any Data Protection Legislation.

7.4

If, notwithstanding the intentions of the Parties set out at Clause 7.2(a), we process Customer Personal Data as a controller, we shall comply with the provisions of the Data Protection Legislation imposed on a Controller.

7.5

You will ensure that you have all necessary appropriate notices in place, and (where applicable) that you have obtained all necessary valid consents, to enable lawful transfer of the Customer Personal Data to us for the purposes of this Agreement.

7.6

We will, in relation to any Customer Personal Data processed in connection with the performance by us of our obligations under this Agreement:

(a)

process that Customer Personal Data for the purposes set out in Schedule 2 to this Agreement and otherwise in accordance with your lawful, reasonable and documented instructions unless we are required by the Applicable Laws to process the Customer Personal Data in which case we will, to the extent permitted by such Applicable Law, inform you of that legal requirement before processing that Customer Personal Data;

(b)

ensure that all personnel who have access to and/or process Customer Personal Data are obliged to keep it confidential;

(c)

not transfer any Customer Personal Data outside of the European Economic Area unless such transfer complies with the conditions set out in the Data Protection Legislation in force in the UK at the time of such transfer;

(d)

assist you, at your cost, in responding to any request from a data subject and in ensuring compliance with our obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

(e)

notify you without undue delay on becoming aware of a personal data breach involving Customer Personal Data; and

(f)

retain the Customer Data for the duration set out in Schedule 2 (Data Processing Particulars), unless required by Applicable Law to continue to store the data for a longer period; and

(g)

maintain complete and accurate records and information to demonstrate our compliance with this clause 7.6.

7.7

In relation to sub-processors:

(a)

You acknowledge and hereby authorise us to engage in connection with the performance of the Agreement those sub-processors set out in Schedule 2 (Data Processing Particulars) to this Agreement (“Approved Sub-processors”), which includes the identities of those sub-processors and their country of location;

(b)

We may amend and update the Approved Sub-processors list by providing written notice to you of any proposed new sub-processor. You may notify us in writing within ten (10) Business Days after receipt of our written notice, if you have a reasonable basis for objecting to a new sub-processor. We will not appoint (or disclose any Customer Personal Data to) that proposed sub-processor until reasonable steps have been taken to address the objections raised by you and you have been provided with a reasonable written explanation of the steps taken;

(c)

Prior to giving any sub-processor access to Customer Personal Data, we will ensure that such sub-processor has entered into a written agreement incorporating terms which are substantially similar to those set out in this clause 7 and the requirements of the Data Protection Legislation.

7.8

You acknowledge that we are reliant on you as controller for direction as to the extent to which we are entitled to use and process the Customer Personal Data. Consequently, we will not be liable for any unauthorised or non-compliant loss, access or other processing of Customer Personal Data or any claim brought by a data subject arising from any action or omission by us, to the extent that such action or omission resulted directly from your instructions or your failure to provide instructions. You will indemnify and hold us harmless against all losses, damages, expenses and costs (including court costs and reasonable legal fees) that we suffer or incur as a result of your instructions or your failure to provide instructions.

7.9

It is agreed between the Parties that we may store the Aggregated Data (including any elements of the Customer Personal Data that contain anonymous, aggregated and/or analytical data), and use the same to improve the Services and the different products and services which we offer to our customers. In addition, it is agreed between the Parties that we may use the same for the purposes of research and the provision of aggregated statistical data and reports for the benefit of our customers.

Fees and subscriptions

8.1

In consideration for the provision of the Services and for the grant of a licence to use the Software and the Documentation, you must pay the applicable Fees for the paid Services after you have registered for an account with our website. We will send you an acknowledgement of your order upon payment of the Fees. The contract between us for the supply of the Services shall come into force upon the issue of the order acknowledgement and you will be able to access the Services from this point.

8.2

For so long as your account and subscription remain active in accordance with these terms and conditions, and the Fees are paid for the paid Services, you will benefit from the features specified on our website in relation to your subscription type. If you cease paying the Fees for the paid Services, your account with us with be deactivated and you will no longer be able to access the Customer Data you have uploaded on to the Software or access the Results.

8.3

We may from time to time vary the benefits associated with a subscription by giving you written notice of the variation, providing that, if in our reasonable opinion such a variation results in a substantial loss of value or functionality, you shall have the right to cancel your subscription, and we will refund to you any amounts paid to us in respect of any period of subscription after the date of such cancellation.

8.4

At the end of the Initial Term and any Renewal Periods, and subject to the other provisions of these terms and conditions, your subscription will be automatically renewed and you must pay to us the applicable Fees, unless you terminate this Agreement in accordance with clause 15.2.

8.5

The Fees in respect of our paid Services will be as set out on the website from time to time. For the avoidance of doubt, the Fees do not include any international calculation factors which are chargeable in addition to the Fees on a per Customer basis at a cost to be advised.

8.6

We reserve the right to notify you of changes to Fees in the event that your use of the Services results in a change in the price bracket applicable to you as a Customer at any point during the Term. Payment of the new Fees will be applicable from the date on which our notification is sent to you.

8.7

All amounts stated in these terms and conditions or on our website are stated inclusive of VAT, excluding any free report option detailed on our website.

8.8

You must pay to us the Fees in respect of our paid Services in advance, in cleared funds, in accordance with any instructions on our website.

8.9

We may vary Fees from time to time by posting new Fees on our website, but this will not affect Fees for services that have been previously paid.

8.10

If you dispute any payment made to us, you must contact us immediately and provide full details of your claim.

8.11

If you make an unjustified credit card, debit card or other charge-back then you will be liable to pay us, within 7 days following the date of our written request:

(a)

an amount equal to the amount of the charge-back;

(b)

all third party expenses incurred by us in relation to the charge-back (including charges made by our or your bank or payment processor or card issuer);

(c)

an administration fee of GBP 25.00 including VAT; and

(d)

all our reasonable costs, losses and expenses incurred in recovering the amounts referred to in this clause 8.11 (including without limitation legal fees and debt collection fees), and for the avoidance of doubt, if you fail to recognise or fail to remember the source of an entry on your card statement or other financial statement, and make a charge-back as a result, this will constitute an unjustified charge-back for the purposes of this clause 8.11.

8.12

If you owe us any amount under or relating to these terms and conditions, we may suspend or withdraw the provision of Services to you.

8.13

We may at any time set off any amount that you owe to us against any amount that we owe to you, by sending you written notice of the set-off.

Intellectual Property Rights

9.1

All right, title and interest in or to the Intellectual Property Rights in Our Materials (including any development, update, improvement, addition, patch or fix to the same) are and will (as between the parties) remain our exclusive property and you will not acquire any right, title or interest in or to the Intellectual Property Rights, other than as set out in clause 3.

9.2

Any goodwill derived from the use by you of Our Materials will accrue to us. We may at any time call for a confirmatory assignment of that goodwill and you will immediately execute it.

10.

Publicity and promotion

10.1

Subject to clause 10.2, you grant us the non-exclusive perpetual right, for our own promotional use to communicate to third parties the fact that we supplied the Services to you, and to reproduce your trade mark for that purpose on our website and in our electronic and hard copy promotional materials.

10.2

You have the right to revoke the licence granted to us under clause 10.1 provided such revocation is in writing and gives us a reasonable timeframe of no less than 10 Business Days to remove the promotional content.

10.3

If you choose to exercise your rights pursuant to clause 10.2, you acknowledge that while we will aim to remove the promotional content from our website and other online sources we control within 10 Business Days, we cannot remove the promotional content from printed marketing materials already in distribution. We will aim to remove such materials from circulation as soon as we are able.

11.

Confidentiality

11.1

Each Party may be given access to Confidential Information from the other Party in order to perform its obligations under this Agreement. A Party’s Confidential Information will not be deemed to include information that:

(a)

is or becomes publicly known other than through any act or omission of the receiving Party;

(b)

was in the other Party’s lawful possession before the disclosure;

(c)

is lawfully disclosed to the receiving Party by a third Party without restriction on disclosure; or

(d)

is independently developed by the receiving Party, which independent development can be shown by written evidence.

11.2

Each Party will hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third Party, or use the other’s Confidential Information for any purpose other than the implementation of this Agreement (including as provided in clause 10.1).

11.3

A Party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other Party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 11.3, it takes into account the reasonable requests of the other Party in relation to the content of such disclosure.

11.4

Each Party will take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.

11.5

Neither Party will be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third Party.

11.6

This clause 11 will survive termination of this Agreement, howsoever arising.

12.

Warranties and indemnity

12.1

You hereby warrant, represent and undertake to us that:

(a)

this Agreement is validly executed by your duly authorised representative;

(b)

you have, and will maintain throughout the Term, the full capacity and authority and all necessary regulatory licences and approvals to enter into and perform your obligations contained in this Agreement;

(c)

neither you nor any of your employees or associated parties will attempt to or permit any third Party to reverse engineer, decompile, monitor or in any way replicate the coding, software or functionality of the Software or any other of Our Materials;

(d)

the Customer Data will not contain Prohibited Content; and

(e)

you will comply with all Applicable Laws in relation to your performance of this Agreement;

(f)

you will retain the responsibility and accountability for the management, conduct and operation of your business and affairs; deciding your use of, choosing to what extent you wish to rely on, or implement advice or recommendations of the Services and the delivery, achievement or realisation of any benefits directly or indirectly related to the Services;

(g)

you hold all rights and have obtained all licences and consents required to use the Customer Data in connection with the Services; and

(h)

the Customer Data will not infringe any rights of any third Party nor will it breach any Applicable Laws or regulations, including Data Protection Laws.

12.2

We hereby warrant, represent and undertake to you that:

(a)

we have, and will maintain throughout the Term, the full capacity and authority and all necessary regulatory licences and approvals to enter into and perform our obligations contained in this Agreement;

(b)

we will comply with all Applicable Laws in relation to our performance of this Agreement; and

(c)

we will update the Software on an annual basis to reflect the most up to date emission calculation factors.

12.3

Subject only to clause 4.1, you acknowledge and agree that:

(a)

we do not warrant that your use of the Service will be uninterrupted or error-free or that the Services and/or the information obtained by you through the Service will meet your requirements;

(b)

we are not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and you acknowledge that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities; and

(c)

except as expressly and specifically provided in clause 4.1, the software and services provided by us under or in connection with this Agreement (including the Software and the Service) are provided “as is” and as available. We exclude, and you waive, any and all warranties, representations, terms and conditions (to the extent that they may lawfully be so excluded) implied by law or by custom or trade practice in respect of the provision of such services.

12.4

You will defend, indemnify and hold us harmless against any claims, actions, proceedings, losses, damages, expenses and costs (including court costs and reasonable legal fees) arising out of or in connection with:

(a)

your use of the Services;

(b)

any breach by you of the provisions in clauses 2, 5, 7, 11, and/or 12.1; and

(c)

any third Party claim that the provision or use of the Customer Data pursuant to this Agreement and the performance of your other obligations infringe that third Party’s Intellectual Property Rights.

13.

Disclaimers

13.1

We do not offer financial advice nor do we purport to make specific carbon reduction recommendations based on your particular circumstances. Any Results made available through the Services are made available to you solely for the purpose of assisting you in making your own decisions.

13.2

You shall bear sole and exclusive responsibility for the accuracy of the Customer Data you input or upload on to the Software and for any activities undertaken by you in relation to the Services. You acknowledge that, we cannot, and do not, guarantee the accuracy of any Results generated from your use of the Software and Services and we disclaim any responsibility or liability in respect of any inaccuracies of the same.

13.3

Notwithstanding our obligations under this Agreement, you will retain responsibility and accountability for:

(a)

deciding whether and (if so) how to use, and choosing to what extent to rely on the Results generated from your use of the Software and Services;

(b)

deciding whether and (if so) to what extent to rely on or implement, the advice or recommendations contained in the Results; and

(c)

making any decision relating to the Results generated from your use of the Software and Services.

13.4

We do not accept any responsibility or liability for any incorrect or inaccurate statements contained in any energy use and greenhouse gas emission reports filed by any organisation when complying with their reporting requirements pursuant to any Applicable Laws.

13.5

You agree to indemnify and hold us and (as applicable) our affiliates, officers, directors, agents and employees harmless from losses arising as a result of the responsibilities outlined in this clause 13.

14.

Limitation of liability

14.1

You agree and acknowledge that the level of the Fees takes fully into account the limits of our entire financial liability (set out below) for the Services (as applicable) supplied or to be supplied to you, your use of them, and for anything else in connection with this Agreement.

14.2

Nothing in this Agreement will limit or exclude the liability of either Party to the other in respect of death or personal injury caused by negligence, fraud, any other liability which cannot by law be limited or excluded, or the indemnities in clauses 7.8, 12.4 and 13.5.

14.3

Subject to clause 14.2, neither Party will be liable to the other for any of the following types of loss or damage, even if the Party has been advised of the possibility of such loss or damage: indirect or consequential losses; loss of goodwill or reputation; loss of profits, revenue, contracts or anticipated savings; or loss or damage arising from loss, damage or corruption of data.

14.4

Subject to clause 14.2, each Party’s total aggregate liability to the other arising out of or in respect of this Agreement will not exceed:

(i)

a sum equal to the Fees which we are entitled to receive under this Agreement in respect of the period of 12 months prior to the first event giving rise to the claim (or if the event giving rise to the loss occurs during the first 12 months of the Agreement, the amount paid by you for the Services during that period); or

(ii)

£1,000 in the event where you are signed up to any free Services.

15.

Term and termination

15.1

Term. This Agreement shall, unless otherwise terminated as provided in this clause 15, commence on the Commencement Date and shall continue for the Initial Term and, thereafter, this Agreement shall be automatically renewed for the Renewal Period, unless:

(a)

either Party notifies the other Party of termination, in writing, at least 30 days before the end of the Initial Term or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the applicable Initial Term or Renewal Period; or

(b)

the Agreement is otherwise terminated in accordance with the provisions of this Agreement, and the Initial Term together with any subsequent Renewal Periods shall constitute the Term.

15.2

Termination by either Party. Without affecting any rights that have accrued under this Agreement or any of its rights or remedies, either Party may terminate this Agreement:

(a)

for convenience, by giving the other Party a 7 days’ notice in writing;

(b)

with immediate effect by giving written notice to the other Party, if the other Party commits a material or persistent breach of its obligations under this Agreement and, if such breach is remediable, fails to remedy such breach within 14 days after being notified to do so;

(c)

the other Party suffers an Insolvency Event;

(d)

the other Party ceases or threatens to cease to carry on business; or

(e)

in accordance with clause 17.2.

15.3

Our right to suspend or terminate. We may suspend or terminate this Agreement in whole or in part, immediately on written notice to you:

(a)

you fail to pay any monies due to us under this Agreement, which are not the subject of a valid dispute, within seven Business Days of notice from us of such failure to pay by the due date for payment; or

(b)

if you breach clauses 2, 5, 7, 11 and/or 12.1.

15.4

Consequences of termination. On termination of this Agreement for any reason:

(a)

all licences granted by us to you under this Agreement will immediately terminate and you shall immediately cease all use of the Services and the Documentation;

(b)

you will immediately pay to us all of our outstanding unpaid invoices (together with any accrued interest if such invoices are outside their payment terms) and, in respect of Services supplied but for which no invoice has been submitted, we may submit an invoice, which will be payable immediately on receipt of invoice (without prejudice to any other rights and remedies of Supplier);

(c)

within 14 days of termination of the Agreement, each Party will return all Confidential Information of the other Party in its possessions and will not make or retain any copies of such Confidential Information except as required by Applicable Law or to comply with any applicable legal or accounting record-keeping requirement;

(d)

the provisions of paragraph 4 Schedule 2 (Data Processing Particulars) will apply in respect of the retention and deletion of the Customer Personal Data set out in that Schedule; and

(e)

the accrued rights of the Parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, will not be affected or prejudiced.

16.

Export

16.1

For the duration of this Agreement, you may use our self-service export tools (as available) to perform a final export of the Customer Data and Results from your use of the Services in Excel file format and can download the original files where documents have been uploaded. If requested by you, we may (but shall not be obliged to) provide you with assistance in respect of any data exports or transfers (that cannot be carried out using the standard export functions) at our rates then in force. Subject to clause 15.4(d), following the termination of this Agreement, we will be entitled to retain any Customer Data and Results but for no longer than is necessary for the purposes for which the data is processed. Some Customer Data and Results may be stored for longer periods insofar as that data is processed solely for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes. We will also be entitled to destroy or otherwise dispose of any Results or Customer Data in our possession and will have no responsibility to you for any Customer Data destroyed or disposed of in accordance with this clause 16.

17.

General

17.1

Force majeure. Neither Party will be liable for any delay in performing any of its obligations hereunder if such delay is caused by circumstances beyond the reasonable control of the Party so delaying (the “Delaying Party”) and the Delaying Party will be entitled to a reasonable extension of time for the performance of such obligations. If the Delaying Party is prevented, by such circumstances beyond its reasonable control, from performance of its obligations for a continuous period in excess of three months and such prevention substantially affects the operation of this Agreement, the other Party will have the right to terminate this Agreement upon giving 30 days’ written notice of such termination to the Delaying Party, in which case neither Party will have any liability to the other except that rights and liabilities accrued prior to such termination will continue to subsist.

17.2

Waiver. No failure or delay by a Party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

17.3

Severance. If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions will remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision will apply with whatever modification is necessary to give effect to the commercial intention of the parties

17.4

Entire agreement. This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each Party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each Party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement. Nothing in this clause shall limit or exclude any liability for fraud.

17.5

Assignment. You will not, without our prior written consent, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under this Agreement. We may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of our rights or obligations under this Agreement

17.6

No partnership or agency. Nothing in this Agreement is intended to or will operate to create a partnership between the Parties, or authorise either Party to act as agent for the other, and neither Party will have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

17.7

Third Party rights. This Agreement does not confer any rights on any person or Party (other than the Parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

17.8

Notices. Any notice given under this Agreement must be in writing and must be delivered personally or sent by recorded first-class post or by email to the Party to whom it is being given to:

(a)

which in our case is 4, Teviotdale Gardens, High Heaton, Newcastle, Tyne and Wear, NE7 7PU or [email protected]; and

(b)

in your case, the name and current address or email which we hold for you in the billing page of the Software,

(c)

or to such other address or email address, or marked for the attention of such other person, as the applicable Party may from time to time notify to the other by notice given in accordance with this clause 17.8, and

(d)

A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in this clause 17.8; if sent by prepaid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by email, one Business Day after transmission. The provisions of this clause 17.8 shall not apply to the service of any proceedings or other documents in any legal action.

17.9

Governing law. This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the law of England.

17.10

Jurisdiction. The Parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).

Schedule 1 - Definitions and Interpretation

Part 1. Definitions

In this Agreement, unless the context otherwise requires:

Active Users	means users of the Software whose details are registered with the Software for the purpose of using the Services. (Please note, you are only permitted to register your organisation as an Active User of the Software and are not permitted to register third party organisations as Active Users);
Admin Users	means you, and those of your employees, agents and independent contractors who are authorised by us in writing (by way of us selecting administrative permissions for such persons on the Software) to use the Services and the Documentation for your internal business operations;
Agreement means	this software as a service agreement including the Schedules;
Applicable Law	means any law (including the Data Protection Legislation), enactment, regulation, regulatory policy, guideline, and requirement of any competent authority (including good practice codes) applicable to a Party and/or to any of the activities of a Party;
Approved Subprocessors	has the meaning given in clause 7.7(a);
Authorised Users	means, together, the Admin Users and the Active Users;
Business Day	means any day which is not a Saturday, Sunday or public holiday in the UK;
Commencement Date	means the date of your acceptance of this Agreement pursuant to clause 1.2;
Commercially Reasonable Efforts	means the same degree of priority and diligence with which we meet the support needs of our other similar customers;
Confidential Information	means the terms of this Agreement, including any amounts payable hereunder, and, in relation to either Party, all information (whether oral, written or in electronic or any other form) belonging to or relating to that Party, its business affairs or activities (including information concerning methods of design, development, marketing and distribution of the Service and/or the Software, and any trade secrets, intentions or business plans of either Party) which is marked or stated to be confidential or which, due to its character or nature, a reasonable person in a like position and under like circumstances, would treat as and/or reasonably believe to be confidential;
Customer Cause	means any of the following causes: (a) any improper use, misuse or unauthorised alteration of the Software; or (b) any use of the Software in a manner inconsistent with the then-current Documentation;
Customer Data	means the data (including files): (a) inputted or uploaded onto the Software by Authorised Users for the purpose of using the Services; (b) inputted or uploaded onto the Software by us on your behalf for the purpose of facilitating your use of the Services; and (c) otherwise provided by Authorised Users to us in connection with the Services;
Customer Systems	means such of your software systems as may interoperate with the Software from time to time;
Data Protection Legislation	means all legislation and regulatory requirements in force from time to time relating to the use of personal data and the privacy of electronic communications, including, without limitation: (a) any data protection legislation from time to time in force in the UK including the Data Protection Act 2018 or any successor legislation; and (b) the General Data Protection Regulation ((EU) 2016/679) and any other directly applicable European Union regulation relating to data protection and privacy (for so long as and to the extent that the law of the European Union has legal effect in the UK);
Documentation	means the materials which we may make available to you online via smartcarboncalculator.com or such other web address notified by us to you from time to time, setting out a description of the Services and user instructions for the Services;
End User Licence Agreement or EULA	means the terms and conditions between Authorised Users and us relating to the Software and Service as we may specify from time to time and notify to you in writing;
Fault	means any failure of the Software to operate in all material respects in accordance with the Documentation;
Fees	means the subscription fees payable by you to us either monthly or annually in advance in accordance with clause 8;
Help Desk Support	any support provided by our help desk technicians sufficiently qualified and experienced to identify and resolve most support issues relating to the Software;
Initial Term	means [12] months;
Insolvency Event	means that a person: (a) is unable to pay its debts or becomes insolvent or bankrupt or ceases to trade; (b) is the subject of an order made or a resolution passed for the administration, winding-up or dissolution (otherwise than for the purpose of a solvent amalgamation or reconstruction, which does not materially reduce that entity’s assets); (c) has an administrative or other receiver, manager, trustee, liquidator, administrator, or similar officer appointed over all or any substantial part of its assets; (d) enters into or proposes any composition or arrangement with its creditors generally (otherwise than for the purpose of a financing or solvent amalgamation or reconstruction, which does not materially reduce the entities’ assets); or (e) is the subject of any events or circumstances analogous to any of the foregoing in any applicable jurisdiction;
Intellectual Property Rights	means patents, rights to inventions, rights to use and preserve the confidentiality of information (including know-how and trade secrets), registered designs, copyrights, topography rights, all rights in computer programs, firmware, ‘apps’ and other computer software and data, database rights, rights in designs, rights in get-up, rights affording equivalent protection to copyright, database rights, design rights, trade marks, rights in service marks, logos, domain names, business names, trade names and domain names, and moral rights, in each case howsoever arising and in whatever media, whether registered or unregistered and including all applications (or rights to apply) for and to be granted, renewals or extensions of, and rights to claim priority from, such rights, which subsist or will subsist now or in the future in any part of the world;
Normal Business Hours	9.00 am to 5.00 pm local UK time, each Business Day;
Our Materials	means any and all materials, software, content, information, data or systems of any kind whatsoever created, produced or provided by us or our licensors, including the Software, any graphical, animated and other material provided by us for use in connection with the Services, and any materials relating to the Services;
Out-of-scope Services	means any support services in relation to the Software which we may agree to provide to you: (a) in connection with any apparent problem regarding the Software reasonably determined by us not to have been caused by a Fault, but rather by a Customer Cause or a cause outside our control (including any investigational work resulting in such a determination); and/or (b) outside Business Days and/or Normal Business Hours;
Prohibited Content	content or materials which: (a) infringes the Intellectual Property Rights of any third Party; (b) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (c) facilitates illegal activity; (d) depicts sexually explicit images; (e) promotes unlawful violence; (f) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or (g) in a manner that is otherwise illegal or causes damage or injury to any person or property;
Renewal Period	successive periods of 12 months;
Results	means any results returned as a result of your use of the Software and the Services;
Services	the Software subscription services and the Support Services provided by us to you under this Agreement via smartcarboncalculator.com or any other website which we may notify to you from time to time, as more particularly described in the Documentation;
Software	means the Smart Carbon Calculator software which enables us to offer the Service to you in accordance with this Agreement; Solution means either of the following outcomes: (a) correction of a Fault; or (b) a workaround in relation to a Fault (including a reversal of any changes to the Software if deemed appropriate by us that is reasonably acceptable to you;
Support Services	means the maintenance of the then-current version or release of the Software, including Help Desk Support but excluding any Out-of-scope Services;
Term	the Initial Term together with any subsequent Renewal Periods;
Virus	means any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices;
we, us, and our	means SmartCarbon Limited, a company incorporated under the laws of England and Wales under company number 10204262, whose registered office is located at 4 Teviotdale Gardens, Newcastle Upon Tyne, United Kingdom, NE7 7PU; and
you and yours	has the meaning given in clause 1.3.

Part 2. Interpretation

In this Agreement, unless the context otherwise requires:

(a)

references to clauses and Schedules are to clauses of, and schedules to this Agreement;

(b)

references to the singular include the plural and vice versa and references to one gender include all genders;

(c)

references to a "person" include any company, partnership or unincorporated association (whether or not having separate legal personality) and references to a "company" include any company, corporation or other body corporate (wherever and however incorporated or established). The expression "subsidiary" has the meaning given in the Companies Act 2006;

(d)

references to a statute or statutory provision include (i) that statute or statutory provision as modified, re-enacted or consolidated from time to time (whether before or after the date of this Agreement), (ii) any past statute or statutory provision (as modified, re-enacted or consolidated from time to time) which that statute or statutory provision has directly or indirectly replaced, and (iii) any subordinate legislation made from time to time under that statute or statutory provision;

(e)

the words including, include, in particular or any similar expression are to be construed as if followed by the words without limitation;

(f)

references to “writing” or “written” include emails (but not faxes), provided that if a notice is required to be given under this Agreement is served by email it must also be confirmed by post;

(g)

The Schedules form part of the Agreement and will have the same force and effect as if set out in the body of this Agreement and any reference to this Agreement will include the Schedules;

(h)

The headings in this Agreement are included for convenience only and will be ignored in interpreting this Agreement; and

(i)

Any obligations on a Party not to do something includes an obligation not to allow that thing to be done.

Schedule 2 - Data Processing Particulars

Scope of the processing

The processing under clause 7 of this Agreement applies to Customer Personal Data, as defined in the Agreement.

Nature of the processing

The Software enables you to:

(a)

record, calculate and analyse the carbon footprint of your business;

(b)

upload documents into the Software in relation to your employees and your business practises.

Purpose of processing

The Customer Personal Data will be processed to:

(a)

enable you to use our Software to record, calculate and analyse the carbon footprint of your business; and

(b)

enable us to provide the Services to you.

Duration of the processing

You may choose to delete Customer Personal Data from our Software at any time during the Term.

We will cease the processing of the Customer Personal Data for the purposes set out in this Schedule 2 upon termination of this agreement but we will be entitled to retain any Customer Personal Data but for a period no longer than is necessary for the purposes for which the data is processed. Some Customer Personal Data may be stored for longer periods insofar as that data is processed solely for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes. At your choice, we may either return or delete such Customer Personal Data from our systems, unless the Applicable Laws require longer storage of such Customer Personal Data.

You acknowledge that:

(a)

we may continue to process information derived from the Customer Personal Data for our own purposes in anonymised, aggregated reports during the Term and following termination of the Agreement; and

(b)

if, for the purposes of the Data Protection Legislation, you are considered to be an individual, we may process your personal data, as a controller, in accordance with our privacy notice published on our website.

Categories of data subjects and types of personal data:

Categories of data subjects	Category of data	Types of data
Authorised Users	Details of registered Admin and Active Users	For example: identity data (such as, forenames; surname etc) contact details (such as, work telephone; work mobile; address; postcode etc) log-in details (such as, email address; password etc)
Authorised Users	Related Documents	Any documents uploaded onto Software such as: kWhs of electricity and gas, litres of fuel, Kg’s of refrigerant gases, miles travelled by air, land, sea. hotel stays meter readings, energy invoices, travel expenses
Authorised Users	Details provided to us in connection with our Support Services	Any personal information which might be provided to us by Admin Users requesting our Support Services, including but not limited to name and contact details of the Admin User requesting support.

Approved sub-processors

Sub-processor	Location	Purpose of processing
Microsoft	UK data centres	Providing hosting services for the Software and data processed through the Software