AGREED TERMS

1. Definitions and Interpretation

1.1 The definitions and rules of interpretation in this clause apply in these terms and conditions:

Agreement: the agreement between ECOHEDGE and the Customer for the sale and purchase of Software in accordance with these 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;

Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 10.5 or clause 10.6;

Customer: the person or firm who subscribes to use the Software in accordance with these terms and conditions;

Customer Data: the data inputted by the Customer and its Users for the purpose of using the Software;

Data Protection Laws: means in each case to the extent applicable to the parties and as amended, superseded, replaced or updated from time to time: (i) GDPR; (ii) the UK GDPR; (iii) the Data Protection Act 2018; (iv) the Privacy and Electronic Communications (EC Directive) Regulations 2003; (v) any other applicable data protection and privacy laws;; 

ECOHEDGE: ECOHEDGE LTD., a company registered in England and Wales with company number 9392547 and with a registered office at 71-75 Shelton Street, Covent Garden, London, England WC2H 9JQ;

ECOHEDGE Generic Data: the anonymised data (aggregated with other third party data) that is, or is to be, owned by ECOHEDGE, as detailed in clause 4.5;

EEA Standard Contractual Clauses: the standard contractual clauses approved by the European Commission as a valid mechanism for the transfer of Personal Data originating from the European Economic Area to a third country from time to time in force

Effective Date: the date these terms and conditions are accepted by the Customer;

Fees: means the fees for the use of the Software, as set out at www.ecohedge.com/pricing and as updated from time to time at www.ecohedge.com/pricing; 

GDPR: means the General Data Protection Regulation ((EU) 2016/679);

Intellectual Property Rights: any current and future intellectual property rights and interests including patents, utility models, designs, design rights, copyright (including rights in software), decryption rights, database rights, trade marks, rights pursuant to passing off, service marks, business and trade names, domain names, know-how, topography rights, inventions, rights in confidential information (including technical and commercial trade secrets) and image rights, and rights of a similar or corresponding character in any part of the world, in each case whether registered or not and including any application for registration and renewals or extensions of such rights in any country in the world;

Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day; 

Software: the online software platform available via www.app.ecohedge.com provided by ECOHEDGE to the Customer;

Software Privacy Policy: the privacy policy produced by ECOHEDGE and available at www.ecohedge.com/privacy;

Subscription Term: the period commencing on the Effective Date and ending on the date the Agreement terminates in accordance with clauses 13 or 14.1;

Support Services Policy: ECOHEDGE's policy for providing support in relation to the Software as made available at www.ecohedge.com/technical-support or such other website address as may be notified to the Customer from time to time; 

UK Addendum: means the addendum to the EEA Standard Contractual Clauses approved by the Information Commissioner’s Office as a valid mechanism for the transfer of Personal Data originating from the UK to a third country;

UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.

UK ITDA: means the International Data Transfer Agreement approved by the Information Commissioner’s Office as a valid mechanism for the transfer of Personal Data originating from the UK to a third country;

Users: the Customer’s own users of the Software, being the swimming school teachers, and any other person that the Customer allows to access the Software under the terms of this Agreement;

Virus: 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; and

Vulnerability: a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term “Vulnerabilities” shall be construed accordingly. 

1.2 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns.

1.3 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.4 A reference to a statute or statutory provision is a reference to it as it is in force as at the Effective Date.

1.5 A reference to a statute or statutory provision shall include all subordinate legislation made as at the Effective Date under that statute or statutory provision.

1.6 A reference to writing or written includes email but not fax.

2. Licence

2.1 Subject to the Customer paying the Fees, the restrictions set out in this clause 2 and the other terms and conditions of this Agreement, ECOHEDGE hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Customer to use the Software during the Subscription Term solely for the Customer's internal business operations.

2.2 In relation to Users, the Customer shall procure that each User shall keep a secure password for his use of the Software, that such password shall be changed no less frequently than 3 months and that each user shall keep his password confidential;

2.3 The Customer shall not and shall ensure that its Users shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Software that:

2.3.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

2.3.2 facilitates illegal activity;

2.3.3 depicts sexually explicit images;

2.3.4 promotes unlawful violence;

2.3.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or

2.3.6 is otherwise illegal or causes damage or injury to any person or property;

and ECOHEDGE reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer's access to any material that breaches the provisions of this clause.

2.4 The Customer shall not:

2.4.1 except as may be allowed by any applicable law which is incapable of exclusion by agreement and except to the extent expressly permitted under these terms and conditions:

2.4.1.1 attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software (as applicable) in any form or media or by any means; or

2.4.1.2 attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or

2.4.2 access all or any part of the Software in order to build a product or service which competes with the Software; or

2.4.3 subject to clause 20.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Software available to any third party; or

2.4.4 attempt to obtain, or assist third parties in obtaining, access to the Software, other than as provided under this clause 2; or

2.4.5 introduce or permit the introduction of, any Virus or Vulnerability into ECOHEDGE's network and information systems. 

2.5 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Software and, in the event of any such unauthorised access or use, promptly notify ECOHEDGE.

2.6 The rights provided under this clause 2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.

3. Software

3.1 ECOHEDGE shall, during the Subscription Term, provide the Software to the Customer on and subject to these terms and conditions.

3.2 ECOHEDGE shall use commercially reasonable endeavours to make the Software available 24 hours a day, seven days a week, except for unscheduled maintenance performed outside Normal Business Hours. Where unscheduled maintenance needs to be performed, ECOHEDGE shall, to the extent possible, provide reasonable notice in advance to the Customer. 

3.3 In consideration of the relevant Fees, ECOHEDGE shall provide the Customer with support services during Normal Business Hours in accordance with the Support Services Policy in effect at the time that the Software is provided. ECOHEDGE may amend the Support Services Policy in its sole and absolute discretion from time to time. 

4. Data Protection

4.1 Each party shall comply with applicable requirements of the Data Protection Legislation. This clause 4 is in addition to and does not replace a party's obligations under the Data Protection Legislation. The terms "Controller", "Processor", “Data Subject”, "Personal Data", "Process" and "Processing" have the meanings prescribed in the Data Protection Legislation. The term “Purpose” means the provision by ECOHEDGE of the Software pursuant to this Agreement.

4.2 For the purposes of the Data Protection Legislation, the Customer is the Controller and ECOHEDGE may be the Data Processor in certain situations. Schedule 1 sets out the subject matter, nature and purpose of processing by ECOHEDGE, the duration of the processing, the types of Personal Data, categories of Data Subject and the obligations and rights of the Customer as Controller. 

4.3 The Customer acknowledges and agrees that it is the Customer’s responsibility to comply with its obligations as controller under the Data Protection Legislation, including in respect of the provision of information to the Data Subjects about the collection of Personal Data.

4.4 Where ECOHEDGE is a Processor, it shall:

4.4.1 process Personal Data only on written instructions of the Customer and only to the extent required to fulfil the Purpose. If ECOHEDGE is unable to comply with those instructions or is required by any applicable laws to process Personal Data it shall, to the extent legally permitted, notify the Customer before doing so;

4.4.2 have in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of, accidental loss or destruction of or damage to 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. ECOHEDGE shall implement such measures to ensure a level of security appropriate to the risk involved, including as appropriate: (i) the pseudonymisation and encryption of Personal Data; (ii) the ability to ensure the ongoing confidentiality, integrity, available and resilience of processing systems and services; (iii) the ability to restore the availability and access to Personal Data in a timely manner in the event of a physical or technical incident; and (iv) a process for regularly testing, assessing and evaluating the effectives of security measures;

4.4.3 the Customer hereby provides general authorisation for ECOHEDGE to engage the following categories of third-party processors: (i) providers of API services or API aggregators; (ii) providers of support services in respect of the Software or otherwise; and (iii) providers of security or customer authentication services. ECOHEDGE will provide not less than 14 days written notice prior to engaging any additional categories of third-party processor and Customer may (acting reasonably) object to the proposed additional engagement without penalty. Where ECOHEDGE engages any third party processor to process Personal Data on its behalf it shall ensure that the same data protection obligations as set out in this Agreement are imposed in a written contract on that other processor and ECOHEDGE shall remain fully liable to the Customer for performance of the other processor’s obligations to the extent the other processor fails to fulfil their data protection obligations. ECOHEDGE shall ensure that its agreement with the other processor terminates automatically on termination of this Agreement for any reason;

4.4.4 ensure that persons who have access to or process Personal Data keep the Personal Data confidential (either under contractual or statutory obligations);

4.4.5 ensure that where any Personal Data is transferred outside of the European Economic Area it does so subject to one of the following conditions:

4.4.5.1 the Personal Data is transferred a territory which is subject to a current finding by (in respect of Personal Data originating from the European Economic Area) the European Commission or (in respect of Personal Data originating from the UK) the UK Government under the Data Protection Legislation that the territory provides adequate protection for the privacy rights of individuals; or

4.4.5.2 ECOHEDGE participates in a valid cross-border transfer mechanism under the Data Protection Legislation so that ECOHEDGE (and where appropriate the Customer) can ensure that appropriate safeguards are in place to ensure an adequate level of protection with respect to the privacy rights of individuals as required by Article 46 of UK GDPR or the GDPR (as applicable). Such valid cross-border transfer mechanism may consist of EEA Standard Contractual Clauses for the transfer of Personal Data originating from the European Economic Area or the UK IDTA or the UK Addendum for the transfer of Personal Data originating from the UK, or any other approved transfer mechanism from time to time in force;

4.4.6 notify the Customer without undue delay if it receives a request from a Data Subject to exercise any of their rights under the Data Protection Legislation in relation to the personal data processed by ECOHEDGE pursuant to this Agreement;

4.4.7 notify the Customer without undue delay if it becomes aware of any accidental, unauthorised or unlawful processing of the Personal Data or a Personal Data Breach including the following information: (i) description of the nature of the accidental, unauthorised or unlawful processing and/or Personal Data Breach including where possible the categories and approximate number of the data subjects concerned and the categories of Personal Data concerned; (ii) a description of the likely cause and to the extent known the likely consequences of the Personal Data Breach; and (iii) a description of the measures taken or proposed to be taken to address the accidental, unauthorised or unlawful processing and/or Personal Data Breach together with measures to mitigate possible adverse effects;

4.4.8 following the occurrence of an event described in clause 4.4.7 above, cooperate with the Customer;

4.4.9 not inform any third party of any Personal Data Breach without first obtaining the Customer’s prior written consent, except when required to do so by law;

4.4.10 taking into account the nature of ECOHEDGE’s processing and the information available to ECOHEDGE, provide reasonable assistance to the Customer complying with its obligations pursuant to Articles 32 to 36 of GDPR including in relation to Data Subject rights, data protection impact assessments and reporting to and consulting with supervisory authorities under the Data Protection Legislation;

4.4.11 at the written direction of the Customer, delete or return Personal Data to the Customer on termination of the Agreement unless ECOHEDGE is required by law to store the Personal Data; 

4.4.12 maintain complete and accurate records and information to demonstrate its compliance with this clause and allow for audits by the Customer or the Customer's designated auditor, provided that the Customer shall provide reasonable notice of such audits and shall carry out the audits no more than once a year and the Customer shall bear the costs of such audits; and

4.4.13 inform the Customer if, in its opinion, an instruction from the Customer infringes the Data Protection Legislation and shall promptly notify the Customer of any changes to Data Protection Legislation that may adversely affect ECOHEDGE’s performance of the Agreement.

4.5 The Customer acknowledges and agrees that ECOHEDGE may anonymise and aggregate (with other customers’ data) the information identified by the Software as part of the provision of the Services (including Personal Data) and that ECOHEDGE will own the anonymised and aggregated instance(s) of that data (“ECOHEDGE Generic Data”). ECOHEDGE may use the ECOHEDGE Generic Data to provide comparator data to the Customer and for other purposes at ECOHEDGE’s discretion. 

5. Third-party providers

5.1 The Customer acknowledges that the Software may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk.

5.2 ECOHEDGE makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not ECOHEDGE. ECOHEDGE recommends that the Customer refers to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website.

5.3 ECOHEDGE does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Software.

6. ECOHEDGE's obligations

6.1 ECOHEDGE undertakes that the Software shall conform substantially in accordance with its accompanying specification and/or description.

6.2 The undertaking at clause 6.1 shall not apply to the extent of any non-conformance which is caused by use of the Software contrary to ECOHEDGE's instructions, or modification or alteration of the Software by any party other than ECOHEDGE or ECOHEDGE’s duly authorised contractors or agents. If the Software does not conform with the foregoing undertaking, ECOHEDGE will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in clause 6.1. 

6.3 ECOHEDGE:

6.3.1 does not warrant that:

6.3.1.1 the Customer's use of the Software will be uninterrupted or error-free; or

6.3.1.2 the Software and/or the information obtained by the Customer through the Software will meet the Customer's requirements;

6.3.1.3 the Software will identify all relevant carbon usage; or 

6.3.1.4 the Software will be free from Vulnerabilities or Viruses. 

6.3.2 is 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 the Customer acknowledges that the Software may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

6.4 The Agreement shall not prevent ECOHEDGE from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under the Agreement.

6.5 ECOHEDGE warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under the Agreement.

7. Customer's obligations

7.1 The Customer shall:

7.1.1 provide ECOHEDGE with:

7.1.1.1 all necessary co-operation in relation to the Agreement; and

7.1.1.2 all necessary information as may be reasonably required by ECOHEDGE;

in order to provide the Software and ensure that such information is complete and accurate in all material respects;

7.1.2 comply with all applicable laws and regulations with respect to its activities under the Agreement;

7.1.3 carry out all other Customer responsibilities set out in these terms and conditions which are otherwise agreed between the parties in a timely and efficient manner;

7.1.4 ensure that it and its Users use the Software in accordance with these terms and conditions and shall be responsible for any User’s breach of the Agreement;

7.1.5 obtain and maintain all necessary licences, consents, and permissions necessary for ECOHEDGE, its contractors and agents to perform their obligations under the Agreement; and 

7.1.6 ensure that its network and systems comply with the relevant specifications provided by ECOHEDGE from time to time.

7.2 Subject to clause 4.5, the Customer shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data. The Customer should always maintain a backed-up copy of all Customer Data independently of the Software and the Customer should never use the Software as the sole source of the Customer Data. 

8. Charges and payment

8.1 When first subscribing to the Software, the Customer shall pay the Fees to ECOHEDGE in accordance with this clause 8. the Fees. 

8.2 If the Customer subscribes to the limited trial of the Software (for the period and with the limitations described at www.ecohedge.com/pricing), then there is no charge.

8.3 All payments are due in advance of the period of service (whether the initial or any extended term), at the intervals stated at www.ecohedge.com/pricing. The Customer shall make payment by card payment using the mechanism available through the website. 

8.4 If the Agreement is extended in accordance with clause 13.1, the Customer shall pay the Fees to ECOHEDGE applicable for the extended year on or prior to the commencement of that year. ECOHEDGE will send a link to a payment page, along with the invoice, and the Customer shall pay using the card payment mechanism on ECOHEDGE’s website.

8.5 ECOHEDGE’s Fees are exclusive of VAT. Where VAT is payable in respect of the Software, the Customer must pay such additional amounts in respect of the VAT at the applicable rate at the same time as payment of the Fees.

8.6 If ECOHEDGE has not received payment within 3 days after the due date, and without prejudice to any other rights and remedies of ECOHEDGE:

8.6.1 ECOHEDGE may, without liability to the Customer, suspend or disable the Customer's password, account and access to all or part of the Software and ECOHEDGE shall be under no obligation to provide any or all of the Software while the invoice(s) concerned remain unpaid; and

8.6.2 interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of ECOHEDGE’s bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

8.7 ECOHEDGE may vary the Fees from time to time by providing the Customers with no less than 30 days’ written notice of such changes. 

8.8 All amounts due under the Agreement must be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of the tax as is required by law).

9. Intellectual Property Rights

9.1 The Customer acknowledges and agrees that ECOHEDGE and/or its licensors own all Intellectual Property Rights in the:

9.1.1 Software; and

9.1.2 ECOHEDGE Generic Data (referred to in clause 4.5). 

Except as expressly stated herein, the Agreement does not grant the Customer any rights to, or in, patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Software ECOHEDGE Generic Data.

9.2 In respect of the Customer Data, the Customer grants to ECOHEDGE a non-exclusive, non-sublicensable, non-transferable right for the Subscription Term to use such Customer Data where ECOHEDGE requires access to this in order to provide support or other technical services in relation to the Software.

9.3 The Customer confirms that it has all the rights in relation to the Customer Data that are necessary to grant all the rights it purports to grant to ECOHEDGE under clause 9.2.

9.4 ECOHEDGE grants to the Customer a perpetual, royalty free, non-assignable non-exclusive licence to use reports generated through the Customer’s use of the Software for the Customer’s internal business purposes (which includes providing such reports to third parties to demonstrate the Customer’s environmental credentials), provided that any time the report is reproduced by the Customer the statement “Powered by EcoHedge” appears in the location and style determined by the Software.

9.5 Where the Customer provides feedback to ECOHEDGE in respect of any aspect of the Software and its user experience the Customer hereby grants to ECOHEDGE an irrevocable, royalty free right to use such feedback to improve its products and services. 

10. Confidentiality

10.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Agreement. A party's Confidential Information shall not be deemed to include information that:

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

10.1.2 was in the other party's lawful possession before the disclosure;

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

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

10.2 Subject to clause 10.4, each party shall hold the other's Confidential Information in confidence and 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 these terms and conditions.

10.3 Each party shall 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 these terms and conditions.

10.4 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 10.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.

10.5 The Customer acknowledges that details of the Software, the results of any performance tests of the Software, and the ECOHEDGE Generic Data constitute ECOHEDGE's Confidential Information.

10.6 ECOHEDGE acknowledges that the Customer Data is the Confidential Information of the Customer.

10.7 No party shall make, or permit any person to make, any public announcement concerning the Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.

10.8 The above provisions of this clause 10 shall survive termination of the Agreement, however arising.

11. Indemnity

11.1 ECOHEDGE shall defend the Customer, its officers, directors and employees against any claim that the Customer’s use of the Software infringes any third party Intellectual Property Rights, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims provided that:

11.1.1 ECOHEDGE is given prompt notice of any such claim;

11.1.2 the Customer does not make any admission, or otherwise attempt to compromise or settle the claim and provides reasonable co-operation to ECOHEDGE in the defence and settlement of such claim, at ECOHEDGE’s expense; and

11.1.3 ECOHEDGE is given sole authority to defend or settle the claim. 

11.2 In the defence or settlement of any claim, ECOHEDGE may procure the right for the Customer to continue using the Software, replace or modify the same so that they become non-infringing or, if such remedies are not reasonably available, terminate the Agreement on 5 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the indemnified party.

11.3 In no event shall ECOHEDGE, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:

11.3.1 a modification of the Software by anyone other than ECOHEDGE; or

11.3.2 the Customer’s use of the Software in a manner contrary to the instructions given to the Customer by ECOHEDGE; or

11.3.3 the Customer’s use of the Software after notice of the alleged or actual infringement from ECOHEDGE or any appropriate authority.

12. Limitation of liability

12.1 Nothing in these terms and conditions limits any liability which cannot be legally be limited, including liability for: 

12.1.1 death or personal injury caused by ECOHEDGE’s negligence; 

12.1.2 fraud or fraudulent misrepresentation; or 

12.1.3 any other liability that is not permitted to be limited or excluded by law.

12.2 Except as expressly and specifically provided in these terms and conditions:

12.2.1 the Customer assumes sole responsibility for results obtained from the use of the Software by the Customer, and for conclusions drawn from such use. ECOHEDGE shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to ECOHEDGE by the Customer in connection with the Software, or any actions taken by ECOHEDGE at the Customer's direction;

12.2.2 all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Agreement; and

12.2.3 the Software is provided to the Customer on an "as is" basis.

12.3 Subject to clause 12.1 and clause 12.2:

12.3.1 ECOHEDGE shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of sale or business, sums spent by the Customer as part of carbon offsetting programmes (or similar), loss of agreements or contracts, loss of anticipated savings, loss of or damage to goodwill and/or similar losses or loss or corruption of software, data or information or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Agreement; and

12.3.2 ECOHEDGE's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Agreement shall be limited to the total Fees paid for the Software during the 12 months immediately preceding the date on which the claim arose.

13. Term and renewal

13.1 Save as set out in clause 13.2, the Agreement shall commence on the Effective Date and shall continue for an initial period of 1 year. If the Customer does not give a minimum of 1 month’s written notice prior to the 1st (or subsequent) anniversary of the Effective Date, the Agreement shall be renewed for a further year at the then current Fees (and payment must be made in accordance with clause 8.4). 

13.2 If the Customer subscribes to the limited trial of the Software (for the period and with the limitations described at www.ecohedge.com/pricing), the Agreement shall automatically terminate 3 months following the date that such subscription commenced. The Customer may only subscribe to the limited trial of Software once and any subsequent subscription for the limited trial of the Software may be terminated immediately by written notice by ECOHEDGE.

14. Termination

14.1 Notwithstanding clauses 13.1 or 13.2, ECOHEDGE may (without liability and with no obligation to refund any monies) terminate this Agreement at any time immediately following written notice if the Customer is in breach of any part of clauses 2, 7, 8, 9 or 10.

14.2 The party’ies applicable rights to terminate the Agreement pursuant to clause 13 and 14.1 shall be without prejudice to any other right or remedy available to it. 

14.3 On termination of the Agreement:

14.3.1 the Customer shall immediately cease all use of the Software; 

14.3.2 all links to reports generated by the Customer will be permanently disabled and ECOHEDGE will have no obligation to supply any historic reports (it being acknowledged that the Customer may download PDF versions of reports prior to termination and continue to use these in accordance with the licence in clause 9.4);

14.3.3 the Customer shall immediately pay any outstanding sums under the Agreement. In respect of the Software supplied but for which no invoice has been submitted, ECOHEDGE shall submit an invoice that shall be payable by the Customer immediately on receipt; 

14.3.4 the Customer shall return and make no further use of any equipment, property, and other items (and all copies of them) belonging to ECOHEDGE;

14.3.5 the Customer shall return or destroy all of ECOHEDGE’s Confidential Information or any document containing part thereof, together will all copies of such Confidential Information (including, to the extent reasonably possible, all electronic copies) and shall on reasonable request provide written confirmation that such steps have been taken; and

14.3.6 any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced.

15. Force Majeure

15.1 Neither party shall be liable to the other for any delay or non-performance of its obligations under the Agreement arising from any event beyond its reasonable control, provided that it notifies the other party of the circumstances and the extent of any resulting delay or prevention and resumes performance of its obligations as soon as reasonably possible following its end.

16. Variation

16.1 Unless stated to the contrary in this Agreement, no variation of these terms and conditions shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

17. Waiver

17.1 Failure to exercise (or to fully exercise), or any delay in exercising, any right or remedy provided under these terms and conditions or by law shall not constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict any further exercise of that or any other right or remedy under these terms and conditions or by law.

18. Severance

18.1 If any provision of these terms and conditions is found by any court or administrative body of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction then it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible that provision shall be deemed to be omitted from these terms and conditions in so far as the Agreement relates to that jurisdiction and the validity and enforceability of that provision in other jurisdictions and the other provisions of these terms and conditions shall not be affected or impaired.

19. Entire Agreement

19.1 These terms and conditions (and the documents referred to within them) contains all the terms which the parties have agreed with respect to its subject matter and supersedes all previous agreements and understandings between the parties (whether oral or in writing) relating to such subject matter. Each party acknowledges and agrees that it has not been induced to enter into the Agreement by a statement or promise which it does not contain, or is not contained in a document referenced within it. All warranties, conditions and other terms (whether express or implied) that are not set out in these terms and conditions are (to the fullest extent permitted by law) excluded from the Agreement.

20. Assignment

20.1 The Customer shall not, without the prior written consent of ECOHEDGE, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.

20.2 ECOHEDGE may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.

21. Third-Party Rights

21.1 The Agreement is between the Customer and ECOHEDGE. No other person has any rights to enforce any of its terms.

22. Notices

22.1 Any notice required to be given under the Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its registered office address, or such other address as may have been notified by that party for such purposes, or sent by email to the other party's email address as notified by each party to the other from time to time.

22.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by email shall be deemed to have been received at the time of transmission.

23. Anti-Bribery, Modern Slavery and Criminal Finances

23.1 Each party shall comply with the Bribery Act 2010, the Modern Slavery Act 2015 and the Criminal Finances Act 2017 and not do, or omit to do, any act that will cause the other to be in breach of the Bribery Act 2010, the Modern Slavery Act 2015 or the Criminal Finances Act 2017.

24. Governing Law and Jurisdiction

24.1 The Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

24.2 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims).

 

Schedule 1 - Processing, Personal Data and Data Subjects

1. Subject matter of processing

1.1 The provision of the Software by ECOHEDGE to the Customer pursuant to this Agreement.

2. Duration of processing

2.1 The duration of the provision of the Software to the Customer. 

3. Nature of processing

3.1 Accessing accounting systems and, as part of the automated review process of the Software, identifying carbon related accounting issues. As part of this process, individual’s Personal Data may be accessed and processed. 

3.2 Additionally Users may require support and their details will be recorded by ECOHEDGE’s support team.

4. Purpose of processing

4.1 As an incidental part of the Software’s processing of the accounts and any reports delivered relating to specific carbon accounting issues.

4.2 For the purposes and to the extent necessary to resolve technical problems and issues with the Software. 

5. Types of personal data

5.1 In relation to processing of accounting information by the Software: full name, employer, role, pay grades and pay, expenses claims.

5.2 In relation to service desk calls, full name, role, contact details and details of the issues highlighted. 

6. Categories of data subject

6.1 Employees, contractors and suppliers of the Customer; and

6.2 Individuals authorised to be Users by the Customer.

7. Obligations and rights of the Controller

7.1 The obligations and rights of the Customer as set out in the Data Protection Legislation and this Agreement.