This Agreement (“Agreement“) sets forth the terms on which Climax Community Limited, a company incorporated in the United Kingdom under company registration number 12007941, whose registered office address is Stag Gates House, 63/64 The Avenue, Southampton, Hampshire, United Kingdom, SO17 1XS (“Climax Community“) will permit "Client" to use the Services, from the agreed upon Effective Date, as specified on the Initiation of Contract.
The parties agree as follows:
1.1 Definitions. The following definitions apply in this Agreement:
All confidential information disclosed by a Party to the other Party, whether orally or in writing, and whether before or after the Effective Date, which is either designated as confidential by the disclosing party at the time of disclosure or otherwise which would be understood to be confidential given the nature of the information. Confidential Information includes all Client Data and all Reports, as originally compiled by the Services. Confidential Information excludes any aggregated or anonymized information derived by Climax Community from the Reports that is irreversibly disassociated with the Client.
All data submitted by Client to Climax Community as a result of Client’s use of the Services.
Any user documentation, in all forms, provided to Client by Climax Community relating to the Services.
The subscription start date as stated in this Agreement.
Intellectual Property Rights
Patents, rights to inventions, copyright and neighbouring and related rights, trademarks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer Service, database rights, rights to use, and protect the confidentiality of, Confidential Information (including know-how) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Climax Community and Client, each referred to respectively as a Party.
Any information relating to an identified or identifiable natural person, who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
The results and outcomes of the Client’s use of the Services, specifically the carbon emission data and related carbon savings compiled by the Services on the basis of the Client Data.
The web-based services made available by Climax Community, specifically the Climate Essentials platform, including any system updates which Climax Community may make available during the Licence Period.
Third Party Applications
Any online applications or offline Service products or Services that interoperate with the Services which are not provided by Climax Community.
2. ACCESS TO AND USE OF THE SERVICES
2.1 Use of the Services.
Subject to Climax Community’s receipt of full payment by the Client of the Licence Fees and the other terms and conditions of this Agreement, Climax Community hereby grants to the Client a worldwide, non-exclusive, non-transferable (except as permitted by this Agreement), licence, without the right to grant sub-licence, for the Term of this Agreement, to use the Services and the Documentation solely in connection with Client’s internal operations. Client’s right to use the Services is subject to and contingent upon Client’s compliance with this Agreement and Climax Community reserves all rights not expressly granted herein.
2.2 Technical Support Services. Climax Community may provide Client with reasonable technical support as described in the Proposal.
2.3 Use Restrictions. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Client will not, and will not permit or authorise third parties to:
2.4 Use Breach. Client acknowledges that any breach of clause 2.3 (Use Restrictions) shall be treated as a material breach by Client, entitling Climax Community to terminate Client’s access to the Services.
2.5 Compliance with Laws. Client will use the Services, Documentation and the Reports in compliance with all applicable laws and regulations.
2.6 Protection against Unauthorised Use. Client will use its best endeavours to prevent any unauthorised use of the Services and Documentation and promptly notify Climax Community in writing of any unauthorised use that comes to Client’s attention. If there is unauthorised use by anyone who obtained access to the Services directly or indirectly through Client, Client will take all steps reasonably necessary to terminate the unauthorised use. Client will cooperate and assist with any actions taken by Climax Community to prevent or terminate unauthorised use of the Services or Documentation.
2.7 Reservation of Rights. Climax Community grants to Client a limited right to use the Services and Documentation under this Agreement. Client will not have any rights to the Services or Documentation except as expressly granted in this Agreement. Climax Community reserves to itself all rights to the Services and Documentation not expressly granted to Client in accordance with this Agreement.
2.8 Third Party Applications. Client acknowledges and agrees that, where it uses Third-Party Applications with the Services, such Third Party Applications may need to access Client Data in order to interoperate with the Services. Client acknowledges and agrees that Climax Community shall not be liable for any disclosure, modification, or deletion of Client Data resulting from any such access by Third Party Applications.
2.9 Feedback. If Client provides any feedback to Climax Community concerning the functionality and performance of the Services (including identifying potential errors, modifications and improvements), Client hereby assigns to Climax Community all rights, title and interest in and to such feedback, including any Intellectual Property Rights therein.
3.3 Client shall pay the Fees into the Climax Community’s bank account.
3.4 Invoices issued by Climax Community for the Services are due for payment no later than 30 days from the issue date. If payment is not received by this date Climax Community reserves the right to withhold the Services and any related support until payment has been received.
3.5 All sums payable by the Client to Climax Community under this Agreement are exclusive of value added tax or any similar taxes, levies or duties, for which the Client shall be responsible at the appropriate rate.
3.6 The Client shall make all payments to be made by it without any withholding or deduction for or on account of any present or future taxes or duties of whatever nature imposed or levied by any jurisdiction, unless such withholding or deduction is required by applicable law. In such an event, the amount of such payment due from the Client shall be increased to an amount which (after making such withholding or deduction) leaves an amount equal to the payment which would have been due if no such withholding or deduction had been required.
4. CLIENT OBLIGATIONS AND ACKNOWLEDGEMENTS
4.1 Client Obligations. In using the Services, Client agrees that:
5. CLIMAX COMMUNITY OBLIGATIONS AND ACKNOWLEDGEMENTS
Climax Community shall use reasonable endeavours to ensure that the Service will perform substantially in accordance to the description of the Services. Climax Community
6. PROPRIETARY RIGHTS
6.1 Rights in the Services. Climax Community (and its licensors, where applicable) shall own all right, title and interest in and to the Services and Documentation, including to any and all enhancements, modifications, extensions and derivative works thereof.
6.2 Client Data. Client Data will be used and disclosed solely as required to perform the Services and in accordance with this Agreement. Client will own Client Data.
6.3 Aggregated or Anonymised Data. Climax Community may derive aggregated or anonymized data from the Reports that is irreversibly disassociated with the Client and use such information for commercial purposes (“Climax Community Data“). Climax Community shall own all right, title and interest in and to the Climax Community Data. For the avoidance of doubt, Climax Community Data shall not be considered Confidential information.
6.4 Reports. Climax Community shall own all right, title and interest in and to the Reports. Climax Community hereby grants to Client a worldwide, perpetual, royalty-free, fully paid, transferable and irrevocable right to use the Reports for its commercial purposes in accordance with this Agreement.
6.5 Other Works. Except for any Client Data, all Intellectual Property Rights in works of authorship, inventions, discoveries, improvements, methods, processes, formulas, designs, techniques, and information conceived, discovered, developed or otherwise made (as necessary to establish authorship, inventorship, or ownership) by Climax Community, solely or in collaboration with others, in the course of performing the Services, whether developed as part of the Services or separately, will be the sole property of Climax Community.
6.6 Third Party Products. Any third-party products that are provided by Climax Community in connection with the Services are provided pursuant to the terms of the applicable third-party agreement, and Climax Community assumes no responsibility for, and specifically disclaims any liability or obligation with respect to, any third party products.
7. PERSONAL DATA
8.1 Non-disclosure. Each Party undertakes that it shall not at any time during this agreement, and for a period of three years after termination of this agreement, disclose to any person any Confidential Information concerning the business, affairs, Clients, clients or Climax Community of the other party or of any member of the group of companies to which the other party belongs, except as permitted by subsection two of this clause.
8.2 Allowed disclosure. Each Party may disclose the other Party’s Confidential Information: (a) 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 in connection with this 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 (b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
8.3 Allowed use. 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 in connection with this Agreement.
8.4 Climax Community reserves the right to use the Client’s name and logo to promote Climax Community’s work.
9. WARRANTIES AND DISCLAIMER
9.1 Mutual Warranties. Each Party represents and warrants to the other that: this Agreement has been duly executed and delivered and constitutes a valid and binding Agreement enforceable against such Party in accordance with its terms; and no authorisation or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement.
9.2 Client warranties. Client warrants that:
9.3 Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN CLAUSE 9.1, CLIMAX COMMUNITY MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OR GUARANTEE OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. CLIMAX COMMUNITY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (INCLUDING FOR THE PURPOSE OF ANY REPORTING OBLIGATIONS STEMMING FROM APPLICABLE LAW), QUALITY OR ACCURACY. CLIMAX COMMUNITY DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SERVICES. CLIMAX COMMUNITY DOES NOT WARRANT THAT THE SERVICES ARE ERROR-FREE OR THAT OPERATION OF THE SERVICES WILL BE SECURE OR UNINTERRUPTED. CLIMAX COMMUNITY DOES NOT WARRANT THAT ANY INFORMATION PROVIDED THROUGH THE CLIMAX COMMUNITY SERVICES IS ACCURATE OR COMPLETE OR THAT ANY INFORMATION PROVIDED THROUGH THE SERVICES WILL ALWAYS BE AVAILABLE. CLIMAX COMMUNITY EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF Client’S USE OF THE SERVICES.
10. INTELLECTUAL PROPERTY INFRINGEMENT
10.1 Indemnification of Infringement Claims. Client will indemnify Climax Community from and pay all damages, costs, losses and expenses (including reasonable legal fees) finally awarded against Climax Community in any claim, proceeding or suit brought by a third party against Climax Community alleging that the Client Data infringe any Intellectual Property Rights.
11. LIMITATIONS OF LIABILITY
11.1 Disclaimer of Indirect Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, CLIMAX COMMUNITY WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO Client FOR ANY REGULATORY FINES, LOSS OF PROFITS, LOSS OF SALES OR BUSINESS, LOSS OF AGREEMENTS OR CONTRACTS, LOSS OF ANTICIPATED SAVINGS, LOSS OF OR DAMAGE TO GOODWILL, LOSS OF USE OR CORRUPTION OF SERVICE, DATA OR INFORMATION, OR ANY INDIRECT OR CONSEQUENTIAL LOSS ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING OUT OF Client’S USE OF THE SERVICES.
11.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL CLIMAX COMMUNITY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, BREACH OF STATUTORY DUTY OR OTHERWISE, EXCEED (A) THE TOTAL AMOUNT PAID BY Client TO CLIMAX COMMUNITY DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM, OR (B) IF NO FEES HAVE BEEN PAID, £100.
12. TERM AND TERMINATION
12.1 Initial Term. This Agreement will commence on the Effective Date and run for the agreed License Period.
12.2 Termination. After the Initial Term, this agreement renews automatically. Both parties may terminate this Agreement giving the other Party a notice of three months minimum. Termination in accordance with this clause 12.2 will take effect when the Party receives written notice of termination.
12.3 Post-Termination Obligations. If this Agreement is terminated for any reason, any and all liabilities accrued prior to the effective date of the termination will survive.
13.1 Relationship. Each Party will be and shall act as an independent contractor (and not as the agent or representative of the other Party) in the performance of this Agreement.
13.2 Assignability. Client may not assign its right, duties, and obligations under this Agreement without Climax Community’s prior written consent.
13.3 Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by email to the email address provided by the Parties respectively. Notices sent by email shall be deemed given on the date of transmission.
13.4 Force Majeure. Climax Community will not be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control.
13.5 Governing Law and Jurisdiction. This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales. Each Party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.
13.6 Waiver. The waiver by either Party of any breach of any provision of this Agreement does not waive any other breach. The failure of any Party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
13.7 Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect.
13.8 Counterparts. This Agreement may be executed in any number of identical counterparts, notwithstanding that the parties have not signed the same counterpart, with the same effect as if the parties had signed the same document. All counterparts will be construed as and constitute the same Agreement. This Agreement may also be executed and delivered by facsimile and such execution and delivery will have the same force and effect of an original document with original signatures.
13.9 Entire Agreement. This Agreement, including all schedules is the final and complete expression of the agreement between the Parties regarding Client’s use of the Services.
13.10 Interpretation. The Parties have had an equal opportunity to participate in the drafting of this Agreement and the attached schedules. No ambiguity will be construed against any Party based on a claim that the Party drafted the language. The headings appearing at the beginning of the clauses contained in this Agreement have been inserted for reference purposes only and must not be used to construe or interpret this Agreement. Any reference to any agreement, document, or instrument will mean such agreement, document, or instrument as amended or modified and in effect from time to time in accordance with the terms thereof. Whenever the words “include,” “includes,” or “including” are used in this Agreement, they will be deemed to be followed by the words “without limitation.” Whenever the words “hereunder,” “hereof,” “hereto,” and words of similar import are used in this Agreement, they will be deemed references to this Agreement as a whole and not to any particular clause, or other provision hereof. The word “or” is used in the inclusive sense of “and/or.” The terms “or,” “any” and “either” are not exclusive.
13.11 Exclusion of implied terms. Any and all terms implied by statute that may apply to this Agreement are hereby expressly excluded to the fullest extent permissible by law.