These Terms and Conditions for the Supply of Services ("Conditions") set out the basis upon which we (Aardvark EM) supply the Computatis Services (as more fully described below) to you (the "Customer"). These Conditions apply to the contract between Aardvark EM Ltd and you for the supply of the Computatis Services to the exclusion of any other terms (including any that you may seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing).
1. Structure of these Conditions
Part A of these Conditions applies to Voluntary Users (not contracting for consultancy services) and Users under the '30 day free trial' only.
Part B of these Conditions applies to Compliance Users and Voluntary Users contracting for consultancy services only.
All other terms (including those set out in Part C) of these Conditions apply to both Voluntary Users and Compliance Users in all circumstances (unless stated otherwise).
2. Interpretation
The following definitions apply in these Conditions:
30 Day Free Trial User: means a Compliance User who is using the Computatis Services under the 30 day free trial period as further described in, and in accordance with, Part A of these Conditions.
Aardvark EM: means Aardvark EM Ltd registered in England and Wales with company number 3473012, whose registered office is at 21 Silver Street, Ottery St Mary, Devon EX11 1DB and whose principal trading address is Higher Ford, Wiveliscombe, Taunton, Somerset, TA4 2RL.
Business Day: means a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Charges: means the charges payable by the Customer for the supply of the Computatis Services (including, if applicable, the Licence Fee) in accordance with clause 5.
Commencement Date: has the meaning set out in clause 3.2 or 4.2 (as applicable).
Compliance User: means any Customer to whom the Computatis Services are supplied in consideration of payment by the Customer of an annual licence fee and to whom the provisions of Part B of these Conditions apply. Any organisation which is mandated to report its emissions by law or regulation or which is subject to any other mandatory obligation to report its emissions may only receive the Computatis Services from Aardvark EM as a Compliance User (such organisations are not entitled to receive the Computatis Services as Voluntary Users).
Computatis Services: means the online carbon accounting platform and associated consultancy services provided by Aardvark EM subject to these Conditions.
Contract: means the contract between Aardvark EM and the Customer for the supply of Computatis Services which incorporates these Conditions and, where applicable the terms of the Engagement Letter as further described in clause 3.2 (in respect of Voluntary Users (not contracting for consultancy services) and 30 Day Free Trial Users) and clause 4.2 (in respect of Compliance Users and Voluntary Users contracting for consultancy services).
Engagement Letter: means the letter issued by Aardvark EM to Customers who are (i) Compliance Users; or (ii) Voluntary Users contracting for consultancy services, accepting the Customers' offer and setting out the terms of the Licence Fee and/or any Charges relating to the consultancy services (as applicable).
Intellectual Property Rights: means all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Licence Fee: means the element of the Charges payable by Compliance Users as set out in the Engagement Letter and payable in accordance with clause 5.
Part A: means clauses 3.1 to 3.10 (inclusive) of these Conditions.
Part B: means clauses 4 to 6 (inclusive) of these Conditions.
Part C: means clauses 7 to 10 (inclusive) of these Conditions.
Voluntary User: means any Customer to whom the Computatis Services are supplied by Aardvark EM at no charge and to whom the provisions of Part A of these Conditions apply (unless such Voluntary User also receives consultancy services from Aardvark EM, in which case, the provisions of Part B of these Conditions shall apply to such Voluntary User).
2.1 The following rules of construction apply in these Conditions:
(a) references to clauses are to the clauses of these Conditions;
(b) references to a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
(c) a reference to a party includes its personal representatives, successors or permitted assigns;
(d) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
(e) any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
(f) a reference to writing or written includes faxes and e-mails.
PART A — APPLICABLE TO VOLUNTARY USERS (NOT CONTRACTING FOR CONSULTANCY SERVICES), OR USERS ON A 30 DAY FREE TRIAL
3. Supply of services
3.1 Subject to complying with these Conditions, Voluntary Users and/or 30 Day Free Trial Users may access and use all features of the [website] OR [Computatis Services] for their own and/or internal business purposes only.
3.2 By checking the box labelled 'I AGREE TO THE TERMS AND CONDITIONS FOR THE SUPPLY OF SERVICES, THE PRIVACY POLICY, AND THE TERMS OF WEBSITE USE' (available at http://www.computatis.com/SignUp/Start), the Customer enters a legally binding contract with Aardvark (which is subject to these Conditions and Aardvark EM's Privacy Policy and Terms of Website Use and will be given access to the Computatis Services. For the purposes of these Conditions, this is the point and date on which the Contract shall come into existence (the "Commencement Date").
3.3 From the Commencement Date, Aardvark EM will supply the Computatis Services to Voluntary Users via its website at www.computatis.com (the "Website").
3.4 From the Commencement Date, Aardvark EM will supply the Computatis Services to 30 Day Free Trial Users for a period of 30 days (the "Free Trial Period"). At the end of the Free Trial Period, the 30 Day Free Trial Users' access to the Computatis Services will automatically cease. Thereafter, if the 30 Day Free Trial User wishes to continue receiving the Computatis Services, it must enter into a new contract (as described in clause 4.2 below) with Aardvark EM to receive the Computatis Services as a Compliance User.
3.5 Only one Free Trial Period per organisation/household is permitted.
3.6 Aardvark EM endeavours to provide the Computatis Services to Voluntary Users and 30 Day Free Trial Users with reasonable care and skill. However, Aardvark EM cannot guarantee (and does not warrant) that the Computatis Services will be available at all times or that the Computatis Services will be provided uninterrupted or error-free.
3.7 Aardvark EM provides the Computatis Services on an 'as is' and 'as available' service. Other than as set out in these Conditions, all warranties, terms and conditions (express and implied) are, to the fullest extent permitted by law, excluded from the Contract.
3.8 Aardvark EM reserves the right to withdraw the Computatis Services at any time and will have no liability to Customers for doing so. Customers' attention is drawn to Aardvark EM's Terms of Website Use which include additional terms relating to the Website (and which are incorporated into the Contract between the Customer and Aardvark EM).
3.9 Subject to clause 3.10, Aardvark EM shall have no liability to the Customer whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract for any loss (whether direct or indirect) arising out of or in connection with the Customer's use of the Computatis Services.
3.10 Nothing in these Conditions limits or excludes Aardvark EM's liability for:
(a) death or personal injury caused by its negligence;
(b) fraud or fraudulent misrepresentation; or
(c) any other matter for which liability cannot be excluded as a matter of law.
PART B — APPLICABLE TO COMPLIANCE USERS OR VOLUNTARY USERS CONTRACTING FOR CONSULTANCY SERVICES
4. Supply of Computatis Services
4.1 Compliance Users and/or Voluntary Users contracting for consultancy services [may access and use all features of the Website] OR [use the Computatis Services] for their own and/or internal business purposes only, subject to these Conditions and in accordance with any terms set out in the Engagement Letter.
4.2 Unless otherwise stated in the Engagement Letter, the contract between Aardvark EM and the Customer comes into existence on the date of the Engagement Letter (the "Commencement Date") and shall continue for such period as stated in the Engagement Letter or, if no such period is stated, shall continue until terminated by Aardvark EM or the Customer in accordance with clause 9 (the "Term").
4.3 During the Term, Aardvark EM will supply the Computatis Services to the Customer with reasonable care and skill.
4.4 Aardvark EM will endeavour to meet any performance dates specified in the Engagement Letter, but any such dates shall be estimates only and time shall not be of the essence for performance of the Computatis Services.
4.5 Aardvark EM has the right to make any changes to the Computatis Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Computatis Services. Aardvark EM will notify the Customer of such changes if they can reasonably be expected to have a material impact of the Customers' use of the Computatis Services.
4.6 Any observations and/or recommendations made by Aardvark EM in the course of providing the Computatis Services are for information purposes only and do not constitute any form of advice on which reliance should be placed.
5. Charges and payment
5.1 The Customer will pay the following Charges (if applicable) in accordance with the terms of the Engagement Letter:
(a) the Licence Fee; and
(b) the charges for the consultancy and/or any additional services. Subject to clause 5.2 below, such charges shall be calculated on a time and materials basis at Aardvark EM's standard daily rates.
5.2 Aardvark EM's standard daily rates for each individual are calculated on the basis of an eight-hour day from 8.30 am to 5.30 pm worked on Business Days. Aardvark EM reserves the right to charge an overtime rate of 1.5 per cent on a Business Day, and 2 per cent on a day which is not a Business Day, of the standard daily rate on a pro-rata basis for each part day or for any time worked outside the hours of 8.30 am and 5.30 pm.
5.3 Aardvark EM is entitled to charge the Customer for any expenses reasonably incurred by the individuals whom Aardvark EM engages in connection with providing the Computatis Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by Aardvark EM for the performance of the Computatis Services, and for the cost of any materials.
5.4 Aardvark EM reserves the right to increase its standard daily rates, provided that such charges will not be increased more than once in any 12 month period. Aardvark EM will give the Customer written notice of any such increase at least 30 days before the proposed date of the increase. If such increase is not acceptable to the Customer, the Customer must notify Aardvark EM in writing within 30 days of the date of Aardvark EM's notice and Aardvark EM shall have the right without limiting its other rights or remedies to terminate the Contract by giving 30 days written notice to the Customer.
5.5 Aardvark EM will invoice the Customer monthly in arrears.
5.6 The Customer will pay each invoice submitted by Aardvark EM:
(a) within 30 days of the date of the invoice; and
(b) in full and cleared funds (without deduction or set-off) to the bank account nominated by Aardvark EM.
5.7 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (VAT). Where any taxable supply for VAT purposes is made under the Contract by Aardvark EM to the Customer, the Customer will, on receipt of a valid VAT invoice from Aardvark EM, pay to Aardvark EM such additional amounts in respect of VAT as are chargeable on the supply of the Computatis Services at the same time as payment is due for the supply of the Computatis Services.
5.8 Without limiting its other rights or remedies, if the Customer fails to make any payment due to Aardvark EM under the Contract by the due date for payment ("Due Date"), Aardvark EM.
(a) may suspend provision of the Computatis Services to the Customer (by blocking the Customer's access to the Website or otherwise); and
(b) will be entitled to charge interest on the overdue amount at the rate of 3 per cent per annum above LIBOR base rate accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.
6. Liability
Customers are reminded that this section applies to Compliance Users and Voluntary Users who have contracted for consultancy services only.
6.1 Nothing in these Conditions limits or excludes Aardvark EM's liability for:
(a) death or personal injury caused by its negligence;
(b) fraud or fraudulent misrepresentation; or
(c) any other matter for which liability cannot be excluded as a matter of law.
6.2 Subject to clause 6.1, Aardvark EM shall not, under any circumstances whatsoever, be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract for any:
(a) losses (whether direct or indirect) arising from the results (or from any reliance placed on the results) of using the Computatis Services in circumstances where the information and/or data provided or inputted by the Customer is incorrect, inaccurate and/or incomplete;
(b) loss of profits, sales, business, or revenue;
(c) loss or corruption of data, information or software;
(d) loss of business opportunity;
(e) loss of anticipated savings;
(f) loss of goodwill; or
(g) any indirect or consequential loss.
6.3 Subject to clauses 6.1 and 6.2, Aardvark EM's total liability in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed £20,000.
PART C — GENERAL TERMS (these terms apply to all users in all circumstances)
7. Customer's obligations
7.1 The Customer shall:
(a) co-operate with Aardvark EM in all matters relating to the Computatis Services;
(b) provide Aardvark EM with such information and materials as Aardvark EM may reasonably require in order to supply the Computatis Services, and shall ensure that all such information is accurate;
(c) obtain and maintain all necessary licences, permissions and consents which it requires to receive the Computatis Services;
(d) maintain the confidentiality of login details, accept responsibility for all activity under a designated account login, and promptly notify Aardvark EM Ltd of any unauthorised access to the account.
7.2 The Customer is solely responsible for the accuracy and completeness of the information and data provided to Aardvark EM. The results produced by the Computatis Services are entirely dependant on the information and data inputted by the Customer. As such Aardvark EM gives no warranty as to the accuracy, reliability or completeness of the results produced by the Customer using the Computatis Services.
7.3 Other than as set out in these Conditions, all warranties, terms and conditions (express and implied) are, to the fullest extent permitted by law, excluded from the Contract.
8. Intellectual property rights and confidentiality
8.1 All Intellectual Property Rights in or arising out of or in connection with the Computatis Services shall be owned by Aardvark EM.
8.2 The Customer will keep all confidential information of Aardvark EM (including any and all technical or commercial know-how, specifications, processes and data) in strict confidence and will not disclose such confidential information without Aardvark EM's prior written consent other than to those of its employees who need to know the confidential information for the purposes of making use of the Computatis Services.
9. Termination
9.1 Without limiting its other rights or remedies, either party may terminate the Contract at any time and with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach;
(b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due;
(c) the other party (being an individual) is the subject of a bankruptcy petition or order;
(d) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
(e) the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
9.2 Without limiting its other rights or remedies, Aardvark EM may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the Due Date.
9.3 Aardvark EM may terminate the Contract at any time by giving not less than one months' written notice to the Customer.
9.4 On termination of the Contract for any reason:
(a) the Customer will immediately pay to Aardvark EM all amounts outstanding in respect of Computatis Services supplied up to the date of termination;
(b) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination will not be affected; and
(c) clauses which expressly or by implication have effect after termination will continue in full force and effect.
10. General
10.1 Aardvark EM will not be liable to the Customer as a result of any delay or failure to perform its obligations under the Contract if it is prevented from doing so by an event beyond its reasonable control (a "Force Majeure Event"). If the Force Majeure Event prevents Aardvark EM from providing any of the Computatis Services for more than 5 weeks, Aardvark EM will, without limiting its other rights or remedies, be entitled to terminate the Contract immediately by giving written notice to the Customer.
10.2 The Customer will not, without the prior written consent of Aardvark EM, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
10.3 No failure or delay by either party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
10.4 If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected. If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
10.5 Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between the parties, nor constitute either party the agent of the other for any purpose.
10.6 A person who is not a party to the Contract shall have no rights under or in connection with it.
10.7 Except as set out in these Conditions, no variation to the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
10.8 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous drafts, agreements, arrangements and understandings between them, whether written or oral, relating to its subject matter.
10.9 The Customer agrees that it shall have no remedies in respect of any representation or warranty (whether made innocently or negligently) that is not set out in the Contract. Neither party shall have any claim for innocent or negligent misrepresentation based upon any statement in the Contract.
10.10 The Contract 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.
10.11 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).