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Standard Terms and Conditions
1.1 In these Standard Terms, the following terms shall have the meanings set forth below: 1.2 In these Standard Terms: (a) reference to any statute or statutory provision includes a reference to it as from time to time consolidated, modified, re-enacted (with or without modification) or replaced; (b) reference to a person includes all forms of legal entity including an individual, company, unincorporated association, governmental entity and a partnership; (c) reference to the singular includes the plural and reference to one gender includes all other genders; (d) the words "other", "otherwise", "include", "including" and "in particular" are not to be construed so as to limit the generality of any words preceding them; and (e) the clause headings are to be ignored in construing these Standard Terms.
2.1 Each Contract shall incorporate these Standard Terms, unless otherwise expressly agreed in writing between the Customer and the Company. 2.2 A Contract is made when a Customer places an order with the Company. 2.3 Any term or condition set forth in any document provided to the Company by Customer or any of its agents or representatives which is in any way different from, inconsistent with or in addition to the terms and conditions set forth in these Standard Terms will not become a part of a Contract or be binding upon the Company and is expressly deemed rejected by the Company. The Company’s failure to object to terms contained in any communication from Customer will not be a waiver of the terms set forth herein. 2.4 All quotations and tenders by the Company (which are valid only for the period stated or, if no period is stated, for 30 days after their date of issue) are indicative only and do not constitute an offer capable of acceptance so as to give rise to a binding contract. 2.6 Each Contract constitutes the entire agreement between the Company and the Customer relating to the matters covered by the order and supersedes any previous agreements, arrangements and understandings relating thereto. Both parties acknowledge that, in entering into a Contract, they are not relying upon any Pre-contractual Statement and neither party shall have any right of action against the other arising out of or in connection with any Pre-contractual Statement (except in the case of fraud, including fraudulent misrepresentation). 3. Fees & Pricing 3.1 All amounts due under any Contract are payable in any one currency supported by the Company’s web site at the time of sale. All amounts due are exclusive of any applicable taxes, including without limitation, sales, use, value-added, and withholding taxes, and Customer shall pay all such taxes when due. 3.2 The CarbonNeutral Company’s consumer carbon offsets are ZERO rated. VAT charges are therefore not applicable. As a result, all of The CarbonNeutral Company’s consumer carbon offset prices are Ex-VAT. 4. Payment 4.1 The Customer must make payment upon order. If any amount is not paid by the Customer when due, the Company may levy, and the Customer shall pay, late payment interest on the past due amount at the lesser of (a) 1.5% per month calculated on a daily basis or (b) the highest rate permitted under applicable law. 4.2 The Company’s Retirement of any Carbon Instruments on Customer’s behalf under any Contract shall be conditioned upon Customer’s payment in full to the Company of all fees applicable to the Retirement of such Carbon Instrument, unless otherwise expressly agreed to in writing by the Company. 5. Services: 5.1 Offset Services: “Offset Services” means the Company’s commitment to arrange either for an Emissions Reduction Project to be carried out or the acquisition, holding and Retirement of Carbon Instruments. If the Order indicates that Offset Services are to be provided, then: (a) The Company will either (i) arrange for an Emissions Reduction Project to be carried out, verify the resulting Emissions Reductions and Retire the resulting applicable Carbon Instruments, or (ii) acquire from third parties Carbon Instruments equal to the quantity stated on the Customer Order and hold and Retire such Carbon Instruments so that they are not available to be traded or acquired by third parties (unless the Company acquires and holds or arranges for the Retirement of other Carbon Instruments equivalent in quantity to those disposed of by the Company). (b) Emissions Reduction Project(s) or Emissions Rights may be located or obtained, as the case may be, from anywhere in the world and will meet the Third Party Standard selected by the Company for the Customer. The Customer shall not acquire any rights of ownership in any Carbon Instruments, Emissions Reduction Projects, Emissions Reductions or Emission Rights. (c) In the event (a) any Emissions Reduction Project fails to deliver sufficient Emissions Reductions (e.g. through technical or financial failure or otherwise), or (b) there is a procedural delay in the verification of such Emissions Reductions, the Company shall cause alternative Emissions Reductions Projects to be carried out or acquire, hold and Retire, or arrange for the Retirement of, alternative Carbon Instruments to the extent necessary to make up the resulting shortfall in Emissions Reductions. While the Company will make reasonable efforts to acquire, hold and Retire, or arrange for the Retirement of Carbon Instruments similar to those identified in the Customer Order, the Company reserves the right to acquire, hold, and Retire or arrange for the Retirement of Carbon Instruments of any kind. (d) The Emissions Reductions achieved by an Emissions Reduction Project are calculated and verified in accordance with the methodologies and procedures set out in the rules that govern the Third Party Standard to which the Emissions Reductions have been contracted. The Company shall not be liable for any dispute relating to the validity of an Emissions Reduction once that Emissions Reduction has been verified and issued. 6. Verification. All Emissions Reductions provided by the Company shall be subject to third party verification. Verification reports shall be made available either via the Company’s website or by request to the Company after delivery of such reports to the Company. 7. Intellectual Property 7.1 The Company and its licensors shall retain ownership of all intellectual property rights in or relating to any materials supplied or delivered by or on behalf of the Company as part of the Services. 7.2 If Customer is granted a license to use CarbonNeutral® or any other trademarks, trade names and service marks of the Company (collectively, the "Trademarks”), such license shall be a limited, non-exclusive, terminable license to use such Trademarks solely in relation to the use, event and/or activity set out in the Order and only for the period specified in such Order consistent with the CarbonNeutral Protocol as amended from time to time and published on the Company’s website at the time of such use. All licenses of the Trademarks are conditioned upon Customer payment of any license fees. Customer is not authorized to sublicense the Trademarks and any license of the Trademarks may be terminated by the Company at any time upon notice to the Customer, and Customer agrees to cease any further use of the Trademark. Customer agrees that any use of the Trademark shall conform to the quality standards used by the Company with respect to the Company's own goods and services. Prior to any use of the Trademarks, Customer shall submit to the Company samples of such use for the Company’s approval. Customer may not use the Trademarks or any confusingly similar words or mark in any other way. Customer may not challenge the validity of any Trademark. The Customer hereby assigns by way of future assignment (to the greatest extent permitted by law, and agrees to assign on demand to the extent not so assignable) all goodwill associated with its use of the Trademarks to the Company. The Trademarks are the Company’s property with no rights transferring to the Customer. 8. Confidentiality. “Confidential Information” means: (a) any business or technical information of the Company or Customer, including but not limited to any information relating to the Company’s or Customer's business plans, fees, costs, prices, customer lists, supplier lists, finances, marketing plans, business opportunities, personnel information, research, development or know-how which is either designated by the disclosing party as proprietary or confidential information (either in written, oral or electronic format) or information which, by its nature or context, would reasonably be known to be confidential without specific designation. Confidential Information does not include information that: (a) is or becomes public through no fault or breach by the receiving party; (b) is known to the receiving party at the time of disclosure without an obligation of confidentiality; (c) is independently developed by the receiving party without use of the disclosing party's Confidential Information; (d) the receiving party rightfully obtains from a third party without restriction on use or disclosure; or (e) is disclosed with the prior written approval of the disclosing party. Neither party will use the other party's Confidential Information except as permitted herein, and will not, at any time, disclose such Confidential Information to any third party except as is reasonably required to exercise its rights and perform its obligations any Contract (and only subject to binding use and disclosure restrictions at least as protective as those set forth herein executed in writing by such employees and consultants). Each party will take all reasonable measures to maintain the confidentiality of all of the other party’s Confidential Information in its possession or control, but in any event such measures as a party employs to protect its own Confidential Information. However, each party may disclose Confidential Information of the other party: (a) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the disclosing party gives reasonable notice to the other party to contest such order or requirement; and (b) on a confidential basis to its legal or financial advisors, provided such advisors are advised that they must maintain the confidentiality of the Confidential Information as set forth herein. It is understood and agreed that money damages would not be sufficient remedy for either party’s breach of this section and that each party shall be entitled to seek injunctive relief as remedies for any such breach. Such remedies shall not be deemed to be the exclusive remedies of the parties but shall be in addition to all of the remedies available at law or in equity to the parties. 9. Publicity. Each party shall not issue press releases concerning the other party without prior written approval of the press release from the other party (such approval not to be unreasonably withheld, conditioned, or delayed). Notwithstanding the foregoing, the Company may include the Customer's name on its Customer lists. 10. Customer's Obligations. The Customer warrants that all information provided to the Company will be up to date and accurate and that the Company may rely on such information. The Customer further warrants that the Customer is entitled to provide the same to the Company for its use without recourse or liability to any third party. 11. Limited Warranty 11.1 The Company hereby represents and warrants to Customer that the Services will be provided in a commercially reasonable manner in accordance with accepted industry practice. 11.2 If Customer notifies the Company that any Services within 90 days of the Company’s performance of such Services that such Services failed to comply with the standard set forth in section 11.1, such notice to the Company includes full details of the non-compliance and the Company reasonably determines that the Service in fact did not comply with section 11.1, then Customer’s sole remedy and the Company’s sole liability for such non-compliance shall be the Company’s re-performance of the non-conforming Services. 11.3 THE LIMITED WARRANTY SET FORTH IN THIS SECTION 11 IS IN LIEU OF ANY OTHER WARRANTY, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL (INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM A COURSE OF DEALING). 12. No Set-off. All amounts owed by the Customer to the Company shall be paid without any deduction or deferment on account of any dispute, cross claim or lien and without exercising any rights of set-off. Each Contract is a separate and independent contract entered into between the Company and the Customer, and no breach by the Company of any Contract with the Customer will affect the Customer’s obligations under any other Contract with the Company. 13. Limitation of Liability. 13.1 IN NO EVENT SHALL THE COMPANY BE LIABLE TO ANY OTHER PARTY FOR (a) SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, MULTIPLE OR OTHER INDIRECT DAMAGES, OR (b) LOSS OF PROFITS, LOSS OF DATA OR LOSS OF USE DAMAGES, IN EACH CASE, ARISING OUT OF THE COMPANY’S PERFORMANCE OR NON-PERFORMANCE OF ITS OBLIGATIONS UNDER ANY CONTRACT, ANY SALE, SUPPLY OR FAILURE OR DELAY IN ANY SALE OR SUPPLY OF THE GOODS, INFORMATION OR SERVICES RELATED THERETO, WHETHER BASED UPON WARRANTY, CONTRACT, TORT, STATUTE, STRICT LIABILITY OR OTHERWISE, EVEN IF REASONABLY FORESEEABLE OR IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES, PROVIDED THAT NOTHING IN THESE STANDARD TERMS (INCLUDING THIS SECTION 13 AND SECTION 11) SHALL LIMIT OR EXCLUDE THE LIABILITY OF THE COMPANY FOR DEATH OR PERSONAL INJURY CAUSED BY THE WILLFUL OR NEGLIGENT ACTS OR OMISSIONS OF THE COMPANY, ITS SUB-CONTRACTORS, SERVANTS OR AGENTS IN CONNECTION WITH ANY CONTRACT. 13.2 IN NO EVENT SHALL THE COMPANY’S LIABILITY UNDER ANY CONTRACT EXCEED THE AMOUNT PAID BY THE CUSTOMER UNDER THE CUSTOMER SPECIFICATION AND ORDER FORM APPLICABLE TO SUCH CONTRACT.
14.1 Each party will have the right to terminate a Contract if the other party breaches any material term of such Contract, and fails to cure such breach within thirty (30) days after receipt of written notice of such breach. 14.2 The Company shall be entitled to treat any Contract as repudiated and (without prejudice to any of its other rights) to recover from the Customer all resulting losses and damages if the Customer fails to perform when due to be performed any obligation (including a payment obligation) under such Contract (or under any other contract with the Company) or if any of the following events occur in respect of the Customer: (a) the Customer is unable to pay its debts as they become due or makes any arrangement or composition with its creditors, or any class of them, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; (b) the appointment of or taking possession by a receiver, administrative receiver, liquidator, assignee, custodian, trustee, or other similar official of some or all of the business or property of the Customer, or any person becoming entitled to effect such an appointment; (c) the holder of any security over all or substantially all of the assets of the Customer takes any step to enforce that security; or (d) the institution by or against the Customer of any winding-up, liquidation, administration, reorganization, arrangement, insolvency or similar or equivalent processes or proceedings under the laws of any jurisdiction. 14.3 This section 14 and sections 1 (Definitions and Interpretation), 7.1 (Intellectual Property), 8 (Confidentiality), 10 (Customer’s Obligations), 12 (No Set-off), 13 (Limitation of Liability) and 15 (Miscellaneous) as it relates to any Contract and any unpaid fees under any Contract shall survive the termination or expiration of such Contract. 15. Miscellaneous 15.1 The governing law of all Contracts shall be that of England and Wales excluding: (i) its conflicts of laws principles; and (ii) the United Nations Convention on Contracts for the International Sale of Goods. 15.2 The parties agree that any controversy or claim arising out of or relating to any Contract, or the breach thereof, will be settled by binding arbitration in accordance with the then current rules and procedures of the International Chamber of Commerce. The arbitration will take place in London, England, before a single arbitrator who shall have background and experience relevant to the transaction formalized in any Contract. The decision rendered by the arbitrator will be binding upon the parties hereto, and any judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. For the purpose of enforcing any arbitration award, the parties consent to the exclusive jurisdiction of the English courts in London, England. Venue will lie exclusively in London, England. 15.3 No delay, neglect or forbearance on the part of the Company in enforcing any term or condition of any Contract shall constitute a waiver of or otherwise affect any right of the Company under the Contract. 15.4 The Company shall not be liable for any failure or delay in its performance under any Contract due to any cause beyond its reasonable control, including, without limitation, acts of war, acts of God, earthquake, flood, fire, embargo, riot, sabotage, governmental act or failure of third party power or telecommunications networks. The Company reserves the right to defer the date of delivery or supply of the Services or to cancel any Contract or reduce the volume of the Services if it is prevented from or delayed in the carrying out of its business by circumstances beyond its reasonable control. 15.5 If a court of competent jurisdiction finds any provision of any Contract or these Standard Terms to be invalid or unenforceable, such provision will be enforced to the maximum extent permissible and the other provisions of any Contract or these Standard Terms will remain in full force and effect. 15.6 Customer shall pay all of the Company’s costs and expenses (including reasonable attorneys’ and auditors’ fees) if legal action is required to collect outstanding balances or to enforce any of the Company’s other rights hereunder or at law. 15.7 The Customer shall not be entitled to assign any Contract or any rights thereunder without the prior written consent of the Company. Any assignment made in violation of these Standard Terms shall be wholly void and invalid, the assignee shall acquire no rights whatsoever, and the non-assigning party shall not recognize, nor shall it be required to recognize, the assignment. The Company shall be entitled to sub-contract any of its obligations and to assign any of its rights under any Contract without requiring consent, but shall remain liable for its performance. 15.8 The Company and the Customer do not intend that the Contract should be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 or otherwise by any person who is not a party to the Contract. No Contract shall confer any rights or remedies upon any person other than the Company and the Customer and their respective successors and permitted assigns. Nothing in any Contract shall create any relationship of partnership, agency or trust and, unless expressly provided to the contrary, no party may enter into any binding agreement on behalf of any other party. 15.9 Any notice, request, demand or other communication to be given in connection with a Contract shall be delivered personally, or sent by first class mail, by facsimile or next business day delivery via a reputable international overnight courier service, to the other party at the address given for it on the Order applicable to such contract (or such other address as it may notify the other party of from time to time) and shall be deemed received when delivered personally, five days after posting if sent by first class post or one day after facsimile or next business day delivery. 15.10 The Company’s UK company number is 2979872. The Company’s registered office is Bravington House, 2 Bravington Walk, Regent Quarter, Kings Cross, London, N1 9AF. Customer service’s email address is shop@carbonneutral.com and the Company main phone number is +44 (0)207 833 6000. |
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