Ts & Cs
Ecollective Travel Ltd. General Terms and Conditions for the supply of Services (“Terms and Conditions of Service”)
These Terms and Conditions of Service are designed to ensure that both Ecollective Travel Ltd (“We”, “Us” or the “Supplier”) and the customer (“You” or the “Customer”) understand the basis on which we are to work together and that there are clear and fair protections in place to minimise risk for all involved. If any element of these Terms and Conditions of Service are unclear or appear inappropriate to Your business or project, please don’t hesitate to discuss it with Us.
1. Our Agreed Terms
1.1 We carry on the business of selling the Services (as defined in Annex 1) and providing services like the Products (as defined in Annex 1).
1.2 You wish to buy, and We wish to supply the Products and the Services on the terms and conditions set out in these Terms and Conditions of Service.
1.3 The terms agreed here (including Annex 1, the attached Additional Terms and Conditions at Annex 2 and all other attached annexes (as applicable)), set out the basis on which these agreed Terms and Conditions of Service will operate.
2. Definitions and interpretations
2.1 If any word, phrase or explanation used within the Agreement is not clear, it will be defined and interpreted according to the definitions and interpretations set out in these Additional Terms and Conditions at Annex 1.
3. What does an Order mean?
3.1 An Order constitutes a binding offer by You to Us for the purchase of Services and/or Products (as identified in such Order), on the terms outlined in these Terms and Conditions of Service. All Orders must be signed by You (or Your authorised representative) and may be accepted or rejected by Us. Any template order form provided by Us for You to complete will not (under any circumstances) constitute an offer or public offer by Us.
3.2 If We elect to accept an Order, the Order shall only be deemed to be accepted when We issue an Order Number to You at which point these Terms and Conditions of Service shall come into effect. We shall use our reasonable endeavours to accept or reject any Order as soon as reasonably practicable and notify You accordingly.
3.3 Each Order received from You and accepted by Us will be assigned an Order Number by Us at which point and on which date the Agreement shall come into existence (“Confirmed Order”) and We will notify these Order Numbers to You as soon as possible. You will be required to use the relevant Order Number in all subsequent correspondence relating to each Order.
3.4 Unless the Agreement is terminated, We will supply all Services and Products listed in Annex 1 as agreed, and You agree to purchase all of the agreed requirements for the Products and Services as listed in Annex 1.
3.5 All Confirmed Orders are final and binding on You and shall be subject to the Terms and Conditions of Service (including Annex 1, the attached Additional Terms and Conditions at Annex 2 and all other attached annexes (as applicable)).
3.6 Any quotation given by Us shall not constitute an offer and is only valid for a period of 30 days from its date of issue.
4. Our Responsibility
4.1 We want to ensure that We provide you with the highest level of service and therefore in supplying the Services, We shall ensure that:
We perform the Services with reasonable care and skill;
the Deliverables, and all goods, materials, standards and techniques used in providing the Services are of satisfactory quality and are fit for purpose;
We comply with all applicable laws from time to time in force;
We observe all reasonable health and safety rules and security requirements at Your premises which have been notified in writing to the Us;
We take reasonable care of all Customer Materials and make them available for collection by You on reasonable request; and
We allocate suitable personnel with appropriate levels of experience to supervise and to perform the Services.
4.2 We need to work as a team and can’t do our job without Your corporation. To allow Us to provide you with the Service and/or Products We require You to:
co-operate with Us and our team in all matters relating to the Services;
ensure that the terms of the Order and any information it provides in Annex 1 are complete and accurate;
provide Us with access to Your premises, data and other facilities as reasonably required by Us for the purposes of performing the Services provided that the access to data shall at all times be covered by the provisions of UK GDPR and other data protection legislation; and
provide access, materials or information that is reasonably required by Us in a timely manner.
If the performance of Our obligations under the Agreement is prevented or delayed by any of Your act or omission, or the act or omission of Your agents, sub‑contractors, consultants or employees, We will work with You and give You 7 days’ notice in writing to rectify the delay. If the 7 days’ notice has passed and You have failed to rectify the delay, you acknowledge that We shall:
not be liable to You for such prevention or delay;
be entitled to payment of the Charges despite any such prevention or delay; and
be entitled to recover any additional costs, charges or losses that We sustain due to such prevention or delay.
4.3 You agree to not use the operating systems or any Service in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with these terms, or act fraudulently or maliciously, for example, by hacking into or inserting malicious code, such as viruses, or harmful data, into any Service or any operating system; not infringe our intellectual property rights or those of any third party in relation to your use of the operating system or any Service (to the extent that such use is not licensed by these terms) and not transmit any material that is defamatory, offensive or otherwise objectionable in relation to the use of the platform, operating system or any Service and not use the platform or any Service in a way that could damage, disable, overburden, impair or compromise our systems or security or interfere with other users; or not collect or harvest any information or data from any Service or our systems or attempt to decipher any transmissions to or from the servers running any Service.
5. When changes are requested
5.1 There are times during projects when You might need to change your requirements or ask for something extra. A change request is defined as anything not written in the original Order.
5.2 When You make a change request, it might mean that the amount of work involved in the project will change. If extra work is incurred, then We will charge for the extra time that We spend on it, and You agree to pay for this time unless otherwise agreed in writing. If the job gets smaller then we will discount your next invoice by the amount of time saved.
5.3 You might have also figured out that different work takes different time, so any changes to the Order could affect your project timeline.
5.4 If either of us wishes to propose a change to the Services or any other provision of these Terms and Conditions of Service, either of us shall inform the other of the proposed change and We will work with You in determining the terms that are necessary to implement the change.
6. Prices and charges
6.1 The Charges for the Service and the Product Prices for the period from the Commencement Date shall be as set out in Annex 1.
6.2 All prices and charges are exclusive of VAT. You are required on receipt of a valid VAT invoice from Us, to pay Us such additional amounts in respect of VAT as are chargeable on a supply of the Products or the Services.
6.3 The Product Prices are exclusive of the costs of packaging, insurance and carriage of the Products, which shall be paid by You.
6.4 We both will be required to comply with the payment and invoicing arrangements agreed in Clause 4 of the Additional Terms and Conditions at Annex 4.
6.5 On the anniversary of each year of Your Order, We are happy to meet with You to review and, where appropriate, agree changes to the Product Prices and the Charges.
Additional terms and conditions
The Additional Terms and Conditions set out at Annex 2 form an important and integral part of the Agreement, as do all the other Annexes.
We may modify these Terms and Conditions of Service and the Additional Terms and Conditions at any time without notice and You agree to be bound by the Terms and Conditions of Service (as updated) along with the Additional Terms and Conditions (as updated) each time you use/purchase our Service and/or place an Order.
Annex 1 – The Deliverables
This section will be different for each project. Annex 1 will consist of the details listed in the ecollective proposal. This document will state the deliverables and charges for these services. These services will be stated on your first invoice.
Annex 2 – Additional Terms and Conditions
Interpretation
The following definitions and rules of interpretation in this clause apply in the Agreement.
Agreement: means the Terms and Conditions of Service (including all Annexes) and these Additional Terms and Conditions.
Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Charges: the charges for the Services set out in Annex 3.
Commencement Date: the date of the Agreement.
CO2 certificate: means a certificate in either written or electronic form evidencing the verified mitigation of the number of tonnes of carbon dioxide equivalent greenhouse gas (CO2-eq GHG) specified therein by a project certified as satisfying the criteria for registration by a certifying standards body globally recognised for such purposes.
Customer Materials: all materials, equipment and tools, drawings, specifications and data supplied by the Customer to the Supplier.
Deliverables: all documents, products and materials developed by the Supplier or its agents, sub-contractors and personnel as part of or in relation to the Services in any form, including without limitation computer programs, data, reports and specifications.
Delivery Date: the date for delivery of Products specified in an Order.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trademarks, trade, business and domain names, rights in goodwill and to sue for passing off, rights in design, rights in computer software, database right, moral rights and other intellectual property rights, in each case whether registered or unregistered and including all applications for and all renewals or extensions of such rights and all similar or equivalent rights or forms of protection in any part of the world;
Minor Defect: means deficient operation in or unavailability of the software provided as part of the Services for up to five (5) days per year during the Agreement.
Order: an order for Products and/or Services submitted by the Customer.
Order Number: the reference number to be applied to an Order by the Supplier.
Products: the products set out in Annex 2 and, where the context requires, the Products ordered by and supplied to the Customer.
Product Prices: the prices of the Products as determined in accordance with clause 6.1 and Product Price means the price of an individual Product as determined in accordance with that clause.
Services: the services set out in Annex 1.
Software as a Service or Cloud Service Model: means the Supplier provides the Services as software or software services (in either case, in the then-current release version) within the area over which the Supplier has control (being from the interface between the data centre and the internet) for use by the Customer via the internet.
Specification: the specification of the Products as published by the Supplier or agreed in writing with the Customer.
Supplier IPR: means the Intellectual Property Rights in the Product, Services and Deliverables but excluding the Customer Materials.
VAT: value added tax chargeable in the UK.
Clause, Annex and paragraph headings shall not affect the interpretation of the Agreement.
A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
The Annexes form part of the Agreement and shall have effect as if set out in full in the body of the Agreement. Any reference to this Agreement includes the Annexes.
A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
A reference to a holding company or a subsidiary means a holding company or a subsidiary (as the case may be) as defined in section 1159 of the Companies Act 2006.
Unless the context otherwise requires, words in the singular shall include the plural and, in the plural, shall include the singular.
A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of the Agreement under that statute or statutory provision.
Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2. Acceptance and defective products
2.1 The Customer shall not be deemed to have accepted any Products until it has had a reasonable time to inspect them following Delivery, or, in the case of a hidden or non-obvious defect in the Products, until a reasonable time after that latent defect has become apparent.
2.2 If any Products delivered to the Customer do not conform to the Specification of Annex 1 of the Terms and Conditions of Service above or are otherwise not in conformity with the terms of the Order, then, without limiting any other right or remedy that the Customer may have, the Customer may reject those Products and:
require the Supplier to replace the rejected Products at the Supplier’s risk and expense within 20 Business Days of being requested to do so; or
require the Supplier to credit the price of the rejected Products in full.
The Customer’s rights and remedies under clause 2.2 shall be its sole and exclusive remedy against the Supplier.
The terms of this clause 2 shall apply to any replacement Products supplied by the Supplier.
3. Title and risk
3.1 The risk in Products delivered to the Customer shall pass to the Customer on delivery.
3.2 Title to Products delivered to the Customer shall pass to the Customer on full payment pursuant to clause 4 of these Additional Terms and Conditions below.
4. Terms of payment
4.1 The Supplier shall be entitled to invoice the Customer for each Order on or at any time after delivery. Each invoice shall quote the relevant Order Numbers.
4.2 The Supplier shall submit invoices for the Charges plus VAT if applicable to the Customer monthly at the intervals specified in Annex 1.
4.3 The Customer shall pay invoices in full within 14 days of receipt. Payment shall be made to the bank account nominated in writing by the Supplier.
4.4 If the Customer fails to make any payment due to the Supplier under the Agreement by the due date for payment, then, without limiting the Supplier’s remedies under clause 7 (Termination):
the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Bank of England’s base rate from time to time; and
without prejudice to any of the Supplier’s rights and remedies under the Agreement, the Supplier may suspend all Services and any delivery of Products until payment has been made in full.
4.5 In relation to payments disputed in good faith, interest under this clause is payable only after the dispute is resolved, on sums found or agreed to be due, from the date the dispute is resolved until payment.
4.6 All sums payable to the Supplier under the Agreement:
are exclusive of VAT, and the Customer shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice; and
shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
5. Intellectual property
5.1 The Supplier and its licensors shall retain ownership of all Supplier IPRs
5.2 The Supplier grants the Customer or shall procure the direct grant to the Customer of, a non-exclusive, non-transferable, royalty-free licence to use the Supplier IPRs solely for the purpose of receiving and using the Services and the Deliverables in the Customer’s business.
5.3 Customer must not remove, alter or change any copyright notices, serial numbers or other features or markings associated with and for identification of software made accessible under the Services.
5.4 Except as provided for in this clause 5, neither party shall reproduce or use any trademark or intellectual property of the other, without the other’s express written consent.
5.5 All Intellectual Property Rights that are created in the course of the provision of the Services and in the Deliverables shall belong to the Supplier; the Customer shall have a royalty-free, non-exclusive, non-transferable licence to use those rights as envisaged by the Agreement to enable the Customer to have the benefit of the Services and the Deliverables for use within the Customer’s own business during the term of the Agreement or the purpose of providing the Services to the Customer.
5.6 Any data that is collected in the course of the provision of the Services and in the Deliverables shall belong to the Supplier; the Customer shall have a royalty-free, non-exclusive, non-transferable licence to access that data as envisaged by the Agreement to enable the Customer to have the benefit of the Services and the Deliverables for use within the Customer’s own business during the term of the Agreement or the purpose of providing the Services to the Customer.
5.7 For the avoidance of doubt, the Customer shall not sub-license, assign or otherwise transfer the rights granted in clause 5.5 and 5.6.
5.8 Any raw energy or carbon data that is collected from the Customer’s supply chain in the course of the provision of the Services and in the Deliverables (“Carbon Data”) shall belong to the Supplier; the Customer shall have a royalty-free, non-exclusive, transferable licence to access that Carbon Data to enable the Customer to have the benefit of the Services and the Deliverables for use within the Customer’s own business during the term of the Agreement or the purpose of providing the Services to the Customer.
6. Termination
6.1 Either party may terminate the Agreement by giving notice in writing to the other party if the other party:
commits a material breach of the Agreement and, if the breach is capable of being remedied, fails to remedy it within 30 days after receipt of a written notice specifying the breach and requiring it to be remedied;
fails to pay any sum payable by it under the Agreement within 7 days of the due date for payment;
is unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986 (http://www.legislation.gov.uk/ukpga/1986/45/section/123) or otherwise becomes insolvent or suspends making payments to all or any class of its creditors or announces an intention to do so;
any distress, diligence, execution, attachment or other legal process affects the whole or a material part of its assets and is not discharged within 14 Business Days;
a receiver or similar officer is appointed over the whole or any part of its assets or it requests any person to appoint such a receiver or similar officer or any other steps are taken to enforce any security over any of its property;
any order is made, or resolution is passed, or a petition is presented, or application is made, or notice filed, or other steps are taken in any jurisdiction for:
the winding up, dissolution or liquidation of it (other than a winding‑up petition that is vexatious or frivolous and is discharged within 10 Business Days of issue;
the making of an administration order against it or there is given to any person a notice (whether formal or informal) of an intention to appoint an administrator or any such appointment is made in relation to it;
any proposal is made for a voluntary arrangement or composition with its creditors;
any event analogous to any of the above takes place under another jurisdiction;
the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
there is a change of control of the other party (within the meaning of section 1124 of the Corporation Tax Act 2010 – https://www.legislation.gov.uk/ukpga/2010/4/section/1124); or
(being an individual) is the subject of a bankruptcy petition, application or order or dies or due to incapacity becomes unable to perform his obligations under the Agreement.
7. Consequences of Termination
7.1 On termination or expiry of the Agreement the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of the Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt.
7.2 Customer right to access and use the software ceases at the end of the term of the Agreement or in the event of earlier or other termination by either Party on the date such termination takes effect or in the event of termination upon default by the Customer, the Supplier may withdraw access to the software upon or at any time after giving notice of termination for default.
8. Limitation of liability
8.1 the Supplier shall not be liable to the Customer (whether in contract, tort, breach of statutory duty or otherwise) for:
any loss of profit;
any loss of revenue, anticipated savings or goodwill, any loss of data; or
any indirect or consequential loss.
8.2 the total liability of the Supplier for damage to property caused by the negligence of the Supplier in relation to the Agreement shall be limited to £1000 for any one claim or series of connected claims.
8.3 the total liability of the Supplier in respect of all other loss or damage under or in relation to the Agreement (whether in contract, tort, breach of statutory duty or otherwise) shall be limited to £1000.
8.4 Nothing in the Agreement shall operate to exclude or limit the liability of the Supplier for death or injury caused by its negligence or for fraud.
9. Force majeure
9.1 The Supplier will not be in breach of the Agreement nor liable for delay in performing, or failure to perform, any obligation under the Agreement if such delay or failure results from a cause beyond its reasonable control. If the period of delay or non-performance continues for 3 months, subject to clause 7.1, the party not affected may terminate the Agreement by giving 30 days’ written notice to the affected party.
10. Anti-bribery
10.1 The Supplier shall comply with all applicable laws and regulations relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010.
11.Confidentiality
11.1 Each Party agrees to keep confidential and not disclose to any third party any technical or commercial information (‘confidential information’) provided to it by the other Party in relation to the Services or for the purpose of the Agreement both during the Agreement and for a period of forty eight (48) months after the termination or expiry of the Agreement (for whatever reason it ends) where technical information includes all product and business data, structuring, models, software or other information concerning that Party’s business operations and where commercial information includes prices, costs, or other financial data concerning that Party’s business operations except as permitted by clause 11.2 below.
11.2 Each party may disclose the other party’s confidential information:
to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or connected with the Agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause; and
as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
11.3 No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or connected with the Agreement.
12. Notices
12.1 Any notice given to a party under or connected with the Agreement shall be in writing and shall be:
delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
sent by email to the address in set out below (or such other address as notified in writing by that party to the other):
For Supplier: info@ecollectivecarbon.com.
For Customer: as notified by the Customer to the Supplier. Any notice shall be deemed to have been received:
if delivered by hand at the time the notice is left at the proper address;
if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service;
if sent by e-mail, at 9.00 am on the next Business Day after transmission.
This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
13. Assignment and Sub-Contracting
13.1 The Supplier shall without the prior written consent of the Customer:
assign, charge or deal in any other manner with; or
sub-contract any, or all, of its rights or obligation under the Agreement.
13.2 The Agreement is personal to the Customer and the Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Agreement.
14. Personnel
14.1 The Customer shall not without the prior written consent of the Supplier at any time during the Agreement or for a period of 6 months following its expiry or termination employ or solicit for employment or engage on any basis any member of the Suppliers’ personnel (whether employed or engaged on some other basis by the Supplier).
14.2 Any consent given by the Supplier in accordance with shall be subject to the Customer paying to the Supplier a sum equivalent to the greater of (i) £50,000; and an amount equal to the then current annual remuneration of the Supplier’s personnel.
15. Carbon Offsets
15.1 The Supplier will perform offsetting services for the benefit of the Customer by purchasing and retiring/cancelling CO2 certificates representing the number of tonnes of greenhouse gas emissions that the Customer has agreed to offset in a particular time period, for instance, annually (“Offsetting Services”). In addition to the other terms and conditions set out in the Agreement, the conditions of this clause 15 apply to offsetting services as follows:
15.2 The Supplier is using the Customer’s contact details only for the generation and / or acquisition of Verified Emission Reductions (VERs) under the Verified Carbon Standard or the Gold Standard (VCUs or GS VERs). The verification of VCUs and GS VERs is carried out by independent UN accredited auditors, such as TUV, SGS and DNV. The generated and / or acquired emission rights will be retired by the Supplier through an independent registry (such as Markit or APX) and thus will be withdrawn permanently and irrevocably in the market for emission rights.
15.3 Upon receipt of remuneration undertaken to the Supplier for the desired VERs by the Customer to purchase set above and to close down, so that they are permanently withdrawn from the market, the VCUs and GS VERs are taken from a project portfolio defined by the Supplier.
15.4 The Customer will receive a non-transferable CO2 certificate, sent by email, to confirm that the emissions will be compensated. The CO2 certificate does not imply carbon neutrality or anything other than the retirement of the specified number of VERs. The Customer will not receive title to the VERs achieved by any emission reduction projects. The formal retirement of the VERs purchased shall be carried out by the Supplier in the calendar year following the year in which the VER purchase is made by the customer. The Customer acknowledges that the Supplier will retire the VERs purchased together with the VERs purchased by other customers and hence the VERs purchased by the Customer shall not be retired individually and no individual formal retirement of the CO2 certificate will be provided by the Supplier. Should the Customer require an individual formal retirement of the CO2 certificate the Customer should contact the Supplier prior to making any purchase as such requirement may result in an additional charge.
15.5 the Customer may specify the project or type of project from which the Supplier should source the CO2 certificates for the purpose of the Offsetting Services, however, while the Supplier will use best endeavours to do so the Supplier does not guarantee being able to source CO2 certificates from a particular project or particular type of project in all instances in which case the Supplier will source CO2 certificates registered by a certifying standards body globally recognised for such purposes as being of comparable, equivalent or not lesser standing;
15.6 for the purpose of performing the Offsetting Services for the Customer, the Supplier will retain control at all times over the CO2 certificates from acquisition to cancellation to ensure that the CO2 certificates cannot be reused, resold or otherwise double-counted whether fraudulently or inadvertently and will provide confirmatory evidence to the Customer in relation to each stage of the Offsetting Services process (that is, including project verification, registry certification, acquisition and retirement/cancellation);
15.7 If not explicitly agreed otherwise the Customer acknowledges and agrees that the in general does not own or operate any project from which CO2 certificates are sourced and as such the Supplier does not guarantee the performance, standard or reliability of any project to generate CO2 certificates on a continuing basis and in relation to which Customer acknowledges that the Supplier relies on the project operator and other third party providers of validation, verification, certification and registration services.
15.8 In any event where a project from which CO2 certificates are being sourced for the purposes of Offsetting Services under the Agreement is determined by the Supplier to be unable to deliver CO2 certificates or CO2 certificates of a particular standard the Supplier will discontinue sourcing from that project and use best endeavours to source CO2 certificates of comparable, equivalent or not lesser standing.
15.9 the Supplier does not guarantee the reliability or accuracy of mitigation data and other project information supplied to the Supplier by any third party providers of validation, verification, certification and registration services.
15.10 The Customer represents and warrants that the emissions data and other information relevant to the performance by the Supplier of the Offsetting Services (including licensing the Customer to use climate-neutral trade marks) is to the best of the Customer’s knowledge and belief true and accurate in all material respects. The Customer authorises the Supplier at the Customer’s cost:
to carry out independent verification of data supplied to the Supplier; and
in the event that the Customer emissions volume exceeds the tonnes value of CO2 certificates proposed to be cancelled in respect thereof for any specific period under the Offsetting Services, to acquire CO2 certificates to a value necessary to offset the shortfall.
16. Entire agreement
16.1 The Agreement contains the entire agreement between the parties and supersedes all previous agreements and understandings between them, whether written or oral, relating to its subject matter.
16.2 Each party agrees that it shall have no remedies in respect of any statement, representation or warranty (whether made innocently or negligently) that is not set out in the Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Agreement.
17. Severance
17.1 If any part of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant part shall be deemed deleted. Any modification to or deletion of such part under this clause shall not affect the validity and enforceability of the rest of the Agreement.
18. Waiver
18.1 A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not:
waive that or any other right or remedy.
prevent or restrict the further exercise of that or any other right or remedy.
20. Third party rights
20.1 The Agreement does not give rise to any rights under the Contracts (Third Party Rights) Act 1999 to enforce any of its terms.
21. Announcements
21.1 Save as required by law, neither party shall make or permit any public announcement relating to the Agreement or its terms without the prior written consent of the other party (which will not be unreasonably withheld or delayed).
21.2 The Customer may link to the Supplier homepage, provided it does so in a way that is fair and legal and does not damage the reputation or take advantage of it, or suggest any form of false association, approval or endorsement by the Supplier.
21.3 The Supplier may disable all or any social media features and any links at any time without notice at the Supplier’s discretion.
22. Law and jurisdiction
22.1 The Agreement is governed by the laws of England and Wales.
22.2 If a dispute or claim arises out of, or connected with, the Agreement, the parties will use their reasonable endeavours to resolve it within 7 days. If it is not resolved within 7 days, it will be referred to the managing directors (or persons of their equivalent title) of each party, who will use their reasonable endeavours to resolve it within a further 7 days.
22.3 The parties agree to submit to the jurisdiction of the courts of England and Wales in relation to any dispute or claim arising out of or connected with the Agreement.
23. Data Protection
23.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
23.2 The Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Supplier for the duration and purposes of the Agreement.
23.3 To the extent the Supplier has access to any personal data collected by the Customer, or from the Customer’s information technology (IT) platform, the following provisions shall apply:
the Supplier will process such personal data only for the purpose of it performing its obligations under the Agreement;
the Supplier will follow instructions of the Customer for the handling of such personal data;
the Customer shall bear any adverse consequences on the performance of the Agreement related to such instructions;
the Customer will reach agreement with the Supplier regarding the Supplier’s handling of Customer data in accordance with applicable data protection laws and regulations;
the Customer remains the controller of personal data for its own purposes both with regard to the general contractual relationship and for purposes of data protection laws and regulations;
if the Customer processes personal data in connection with the Agreement (including collection and use), it is responsible for ensuring that it is entitled to do so in accordance with the applicable provisions, in particular provisions of data protection law, and shall indemnify the Supplier against claims by third parties in the event of a breach; and
the Supplier remains the controller of personal data collected for its own business purposes in order to provide the Services.
23.4 Further to clause 23.3 above, the following applies with regard to the relationship between the Supplier and the Customer:
such personal data; with regard to data subjects, the Customer is responsible for the processing (including the collection and use) of personal data, unless the Supplier is responsible for any claims asserted by data subjects due to a breach of duty for which it is responsible;
the Customer will assume responsibility for reviewing, processing and responding to any enquiries, requests and claims from data subjects: this also applies if a data subject asserts a claim against the Supplier;
the Supplier will assist the Customer to the extent possible within the scope of the Agreement;
unless otherwise advised, the Supplier warrants that customer data will be processed and stored in the United Kingdom and within the European Economic Area;
the Customer consents to the Supplier engaging other processors, in which case the Supplier will advise the Customer;
the Supplier will use appropriate technical and organisational measures to protect personal data which it processes on behalf of the Customer; and
the Supplier shall provide data transfers mechanisms under applicable data protection laws.
24. Status
24.1 The Supplier and the Customer are each independent contractors and nothing contained in the Agreement shall or shall be capable of creating or constituting between them any partnership or joint venture or any relationship of employment or agency.
24.2 The Supplier shall have no authority to incur any liability or expense on behalf of the Customer or to make any promise, representation or commitment that might be binding on the Customer without the prior written consent of the Customer.
25. Disclosure for CO2 calculations
25.1 The Supplier’s emissions calculations are based on best available information and are used to determine an appropriate amount of CO2 for carbon offset purposes.
25.2 The calculations are subject to regular annual review to reflect reasonable practice at the time. If this information changes, The Supplier holds no liability to offset any further emissions from previous transactions.
25.3 The Supplier offsets emissions based solely upon figures provided by the customer and is not responsible for the offset of any CO2 emitted from products, services or processes outside the scope of those agreed or as a result of errors in your reporting or calculations. Whilst every effort has been made to ensure the accuracy of data presented, the Supplier makes no representation or warranty express or implied, as to the completeness, accuracy, adequacy, quality or fitness of the information for any particular purpose or use and all such representations or warranties are expressly excluded to the fullest extent that such representations
26. Further Obligations and responsibilities of the Parties
26.1 The Supplier will use all commercially reasonable efforts to provide the Services in accordance with any agreed timetable or schedule for delivery of the Services. Nevertheless, any such timetable or schedule remains indicative only and non-binding except to the extent that the Parties have agreed that delivery of a specifically nominated element or elements of the Services are time critical in which case the Supplier will use best endeavours to ensure any such deadline is met.
26.2 The Supplier does not guarantee the suitability of the Services for any particular purpose or outcome of the Customer. Customer is responsible for assessing the suitability of the Services for any particular purpose or outcome.
26.3 Software:
the Supplier does not guarantee that the Customer’s hardware and software environment is appropriate for the Services or will function adequately under the additional load due to the provision of the Services including in relation to adequate internet connection. Customer is responsible for establishing a functional hardware and software environment including adequate internet connection to enable proper functioning of the Services.
In relation to Software as a Service or Cloud Service Model, the Supplier does not guarantee uninterrupted availability of the software. In the event of interruption of software availability, the Supplier will take all technically and commercially reasonable steps within its capacity to restore Software availability in a timely manner.
During the Agreement the Customer may:
(a) access the software via the internet;
(b) use the functionalities associated with the software by means of
a browser; or
(c) use the functionalities associated with the software by means of another suitable application (for example, a mobile ‘app’), provided only that:
only the Customer or the agreed number of users may use the software and only for the purposes set out in the Agreement;
no further rights to the software or to infrastructure services from the relevant data centre are granted to the Customer over and above those set out in the Agreement;
the Customer may not use the software beyond the agreed scope of use in the Agreement and must not permit use of the software by or make the software accessible to any unauthorised third party and must not reproduce, sell, temporarily transfer, rent or lend the software or any part thereof and must take reasonable precautions to ensure the software cannot be accessed by unauthorised third parties;
Customer must keep software access codes secure from unauthorised third parties; and
the Customer must refrain from action (for example, such as installation of automated call procedures or execution of load tests) that unreasonably burdens stability of the infrastructure used by the Supplier to operate the software.
4. Customer must notify the Supplier immediately and, if requested by the Supplier, provide to the Supplier all information relevant to the Supplier taking action in relation to the event, upon becoming aware of:
(a) an end user exceeding the scope of their authorised use; or
(b) unauthorised third party use of the software.
5. In light of the fact that software made available by the Supplier is subject to a dynamic development process, the Customer is advised that new services may be added and existing services modified from time to time. The Supplier will inform the Customer about updated versions and corresponding terms of use.
6. Rights in the event of default
The Supplier is entitled to take appropriate technical measures to protect against use of the software by the Customer outside the permitted uses under the Agreement.
If the Customer exceeds its use permitted under the Agreement or otherwise breaches the terms of the Agreement protecting against unauthorised use of the software, the Supplier may:
revoke access authorisation of the Customer thereby suspending the Services; and/or
terminate the Agreement.
Prior to taking action under clause 26.3(6)(b) above, the Supplier must notify the Customer and provide a reasonable period of grace (not less than seven (7) days) within which to rectify the breach.
Withdrawal of access authorisation pursuant to clause 26.3(6)(a) above, does not of itself terminate the Agreement and the obligations of the Customer hereunder are continuing notwithstanding that withdrawal of access. The Supplier will reinstate access authorisation to the software upon the Customer establishing to the satisfaction of the Supplier that the authorised use has been stopped and that measures have been put in place by the Customer to prevent such unauthorised use in future.
Upon becoming aware that there has been an event of default as set out in this clause 26.3(6), the other Party may give notice to the Party committing the event of default calling on that Party to rectify the default and any damage caused thereby within a reasonable period specified in the notice and indicating the consequences of failure to comply with such demand.
For the avoidance of doubt, a Minor Defect does not constitute an event of default and does not entitle the Customer to assert any breach by the Supplier under the Agreement or to claim compensation.
The Supplier may add to, alter or modify elements of the Services from time to time in the course of software upgrades that the Supplier may undertake from time to time, provided only that the Supplier will provide reasonable notice to the Customer of the upgrade and take reasonable account of the Customer’s legitimate interests under the Agreement in carrying out the upgrade.
In the event that the Services or any part thereof are made available online on the Supplier’s website, the Customer orders saved in draft form are not valid until a final order is placed and the Supplier may delete drafts stored on the Supplier website for more than 30 days without a final order having been placed by the Customer.
The Customer warrants that:
that it has familiarised itself with the essential functional features of the software for the Software as a Service or Cloud Service Model and that the Customer bears the risk of whether this corresponds to Customer’s requirements or if it is uncertain that it will seek appropriate advice; and
not to integrate the Supplier’s software into the systems and/or software environment of the Customer, or directly into Customer’s website for use by third party end users unless subject to specific agreement by the Supplier.