1.1 The definitions and rules of interpretation set out in schedule 1 apply to this Agreement.
2. COMMENCEMENT AND DURATION
2.1 This Agreement will begin on the Commencement Date and will, unless terminated on notice by the Customer, continue for the Trial Term. This Agreement will automatically terminate on the expiry of the Trial Term.
3. BEZERO PLATFORM TRIAL AND SERVICES
3.1 BeZero hereby grants to the Customer a non-exclusive, non-transferable, revocable right to: use and access, and to permit the Trial Users to use and access, the BeZero Platform and any Information made available via the BeZero Platform solely for the Customer's internal business purposes (the "BeZero Platform Services").
3.2 The Customer may permit Trial Users up to the Trial User Limit, to access and use the BeZero Platform Services always in accordance with the terms of this Agreement.
4.1 Nothing in this Agreement, or the Customer's, or any Trial User's, use of the BeZero Platform Services, or any Information will constitute advice of any kind, and all Information should be used for information purposes only. BeZero does not give any guarantee as to the completeness, accuracy, timeliness, or availability of any Information, and are not responsible for any errors or omissions (however arising) in the Information. BeZero obtains data from third party sources and does not audit or independently verify such data. All BeZero Carbon Ratings and other analyses, ratings, and other statements, included in the Information and BeZero Platform Services and made available to the Customer are statements of opinion as of the date expressed, are not provided as statements of fact, and are not recommendations to purchase, hold, or sell any carbon credits, securities or to make any investment decisions.
4.2 The Information and BeZero Platform Services should not be relied upon, and are not a substitute for the use of the independent skill and judgment of the Customer and any Trial User in relation to the making of investments or other business decisions. Under no circumstances shall BeZero or any BeZero Personnel have any liability whatsoever to any party in relation to any investments, other business decisions made, or any advice taken or given, by the Customer, any Trial Users, or any third party, or any calculations arrived at, when using or relying on any Information (even if BeZero has been advised in advance of the possibility of such liability).
4.3 BeZero does not warrant, represent, undertake or agree that the use of any BeZero Platform Services and/or Information by the Customer or any Trial Users will meet the Customer's requirements, nor that any recommendations derived from use of any BeZero Platform Services or receipt of Information will deliver any particular benefits if implemented.
5. CUSTOMER'S OBLIGATIONS
5.1 In relation to the BeZero Platform Services the Customer shall not, and shall procure that its Trial Users shall not, unless expressly permitted in this Agreement or otherwise agreed in writing with BeZero:
a) access, resell, develop, supply or market all or any part of the BeZero Platform Services or any other BeZero IPR to build a product or offer any service which replicates, competes with or is substantially similar to any part of the BeZero Platform Services;
b) prevent any unauthorised access to, or use of, the BeZero Platform Services and shall notify BeZero promptly of any such unauthorised access or use.
5.2 Notwithstanding any other provision in this Agreement, Customer acknowledges and agrees that it is responsible for the compliance of this Agreement and its terms by each Trial User.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 The Customer acknowledges and agrees that BeZero and its licensors own all Intellectual Property Rights in the BeZero Platform, Information (including, without limitation, all BeZero Carbon Ratings, criteria, methodologies, summary reports, risk factor write-ups and data analytics), Software, and Documentation including all subsequent copies of, and modifications, adaptations, amendments and additions to the same regardless of who made them (together, the "BeZero IPR"). Except as expressly stated in this Agreement the Customer will not have any rights to, or in, any Intellectual Property Rights in any BeZero IPR.
7. DATA PROTECTION
7.1 The provisions of Annex 1 shall apply to all processing of personal data undertaken in connection with this Trial Agreement. Where applicable the provisions of Annex 1 shall survive termination of this Agreement.
8.1 The Recipient shall protect all Confidential Information which the Discloser provides to it (whether orally, in writing or in any other form) using generally accepted industry standards, but in no event less than reasonable measures. The Recipient may only use Confidential Information in connection with this Agreement and to the extent necessary for the purposes of this Agreement. The Recipient may provide its Trial Users with access to Confidential Information on a strict "need to know" basis only. The Recipient shall ensure that each of its Trial Users are bound to hold all Confidential Information in confidence to the standard required under this Agreement.
8.2 The Recipient's confidentiality obligations will not apply to information: (a) already known to it at the time of disclosure without restrictions on disclosure; (b) in the public domain or publicly available other than as a result of a breach of this Agreement; (c) provided to it by a third party who is under no such obligation of confidentiality; or (d) evidenced by contemporaneous written records as independently developed by it. The Recipient may disclose Confidential Information to its legal advisers to protect its own legitimate interests or to comply with any legal or regulatory requirements. If any court, regulatory authority or legal process requires the Recipient to disclose information covered by this confidentiality obligation, then the Recipient may make any such disclosure, provided that the Recipient will to the extent permitted by law: (a) advise the Discloser promptly of any such requirement; (b) cooperate with the Discloser, at the Discloser's expense, in responding to the requirement; and (c) use all reasonable endeavours to consult with the Discloser with a view to agreeing the timing, manner and extent of the disclosure. If the Recipient is unable to inform the Discloser before the Confidential Information is disclosed, it shall (to the extent permitted by law) fully inform the Discloser immediately afterwards in writing of the disclosure and the Confidential Information that was disclosed.
8.3 Subject to the confidentiality provisions of this Clause 8, the Customer shall not prevent BeZero from disclosing the existence, but not the content, of this Agreement, for their own marketing purposes.
8.4 All Confidential Information shall remain the property of the Discloser and the Discloser reserves all rights in its Confidential Information. Nothing in this Agreement or the disclosures envisaged by this Agreement shall (except as expressly agreed otherwise in this Agreement) operate to transfer, or operate as a grant of any licences or right to use, any Intellectual Property Rights in the Confidential Information.
8.5 Each party acknowledges that damages alone would not be an adequate remedy in the event of breach by the other party of the provisions of this Clause 8. Accordingly, it is agreed that either party shall be entitled, without proof of special damages, to seek an injunction or other interim remedy for any threatened or actual breach of this Clause 8 by the other party, without prejudice to any other rights and remedies which that first party may have.
8.6 This Clause 8 shall remain in full force and effect notwithstanding any termination of this Agreement.
9. LIMITATION OF LIABILITY
9.1 Nothing in this Agreement excludes or limits the liability of either party to the other for:
a) death or personal injury caused by negligence;
b) fraud or fraudulent misrepresentation by it or its employees or other third party's on its behalf; or
c) any other liability that cannot be excluded or limited by law.
9.2 Subject to Clause 9.1, neither BeZero nor the Customer will be liable whether in tort (including for negligence), breach of statutory duty, contract, misrepresentation (whether innocent or negligent), restitution or otherwise for:
a) any third party content accessed through the BeZero Platform Services, or
b) in respect of BeZero, the Customer's use of and reliance on the Information or the BeZero Platform Services,
in each case however arising under or in connection with this Agreement and even if BeZero or the Customer (as applicable) were aware of the possibility that such loss or damage might be incurred.
9.3 Subject to Clause 9.1, each party's total aggregate liability under this Agreement in relation to any claim (including under any indemnity) shall be limited to £1000.
10.1 On termination or expiry of this Agreement for any reason all rights and licences granted under this Agreement shall immediately terminate and the Customer and any Trial Users shall immediately cease all use of the BeZero Platform Services, and all other BeZero IPR in the Customer's possession.
10.2 BeZero may terminate the Customer's and any Trial User's, right to access and use the BeZero Platform Services immediately if, acting reasonably, it determines that the Customer or any Trial User breaches the Acceptable Use Policy.
10.3 BeZero may at any time terminate this Agreement on written notice to the Customer of not less than 1 day.
11. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties in relation to its subject matter. It replaces and extinguishes all prior agreements, collateral warranties, collateral contracts, statements, representations and undertakings made by or on behalf of the parties, whether oral or written, in relation to that subject matter. Nothing in this Agreement shall limit or exclude liability for fraud or fraudulent misrepresentation.
12.1 Subject to Clause 1.1, any notice required to be given under this Agreement shall be in writing in English and shall be delivered by hand, sent by pre-paid first-class or recorded delivery post or by email to the other party at its postal or email address (as applicable) set out in the Trial Service Terms, or such other address as may have been notified by that party for such purposes in accordance with this Clause 12.
12.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9am (GMT) 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 and date of transmission shown on the saved sent copy kept by the sender (or if delivery is not in business hours, at 9am (GMT) on the first Business Day following delivery.
13.1 Force Majeure. Neither party will be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of BeZero or any other party), failure of a utility service or transport or telecommunications network or the internet, act of God, war, riot, civil commotion, global pandemic, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations.
13.2 No Waiver. The failure to exercise, or delay in exercising, a right, power or remedy provided by this Agreement or by law shall not constitute a waiver of that right, power or remedy. If a party waives a breach of any provision of this Agreement, this shall not operate as a waiver of a subsequent breach of that provision, or as a waiver of a breach of any other provision.
13.3 Assignment. The Customer shall not, without the prior written consent of BeZero, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement. BeZero may at any time sub-contract, assign, transfer, charge or deal in any other manner with all or any of its obligations under this Agreement.
13.4 Variation. No variation of this Agreement shall be effective unless made in writing and signed by or on behalf of each of the parties or by their duly authorised representatives.
13.5 Conflicts. In the event of any conflict between the Trial Access Terms and the the BeZero Terms and any variation agreed in accordance with clause 13.5, the conflict shall be resolved by giving priority: (a) first, the Trial Access Terms, (b) second, to the written variation; and (c) third, to the BeZero Terms.
13.6 Authority. The parties declare that they each have the right, power and authority and have taken all action necessary to execute and deliver, and to exercise their rights and perform their obligations under, this Agreement.
14. THIRD PARTY RIGHTS
14.4 A person who is not a party to this Agreement may not enforce any of its provisions under any legislation otherwise entitling it to do so nor bring a claim for the recovery of any losses, liabilities, expenses or costs arising out of or relating to this Agreement or any BeZero Platform Services. The consent of any third party is not necessary for any variation (including any release or compromise in whole or in part of any liability) or termination of this Agreement.
15. GOVERNING LAW AND JURISDICTION
15.1 This 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.
15.2 The parties irrevocably agree that the courts of England and Wales have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
Definitions and Interpretation
1.1 The following definitions apply in this Agreement:
2.1 The following rules of interpretation shall apply in this Agreement:
a) The Clause and Schedule headings are for convenience only and shall not affect the interpretation of this Agreement.
b) A reference to writing or written includes e-mail.
c) References to Clauses are to the Clauses of the BeZero Terms.
d) Any phrase introduced by the expressions including, includes, in particular or any similar expression shall be construed as illustrative only and shall not limit the sense of the words preceding those terms.
Annex 1 – Data Processing
1 For the purposes of this Annex 1, the terms "Commissioner", "controller", "data subject", "personal data", "personal data breach", "processor", and "processing", shall have the meaning given to them in the UK GDPR.
2 Each party shall comply with all the obligations imposed on it under the Data Protection Legislation, and any material breach of the Data Protection Legislation by one party shall, if not remedied within 30 days of written notice from the other party, give grounds to the other party to terminate this agreement with immediate effect.
3 The parties have determined that, for the purposes of the Data Protection Legislation, BeZero shall process the personal data set out in Part 1 of Annex 1 (Data processing details) to these BeZero Terms ("Customer Personal Data") as processor on behalf of the Customer.
4 Without affecting Clause 2.2, the Customer will ensure that it has all necessary appropriate consents, notices or lawful basis to enable lawful transfer of any personal data to BeZero.
5 Part 1 of Annex 1 to these BeZero Terms sets out the scope, nature and purpose of processing of Customer Personal Data by BeZero, the duration of the processing and the types of personal data and categories of data subject.
6 Without affecting the generality of Clause 2.2, BeZero shall, in relation to any Customer Personal Data processed on behalf of the Customer in connection with the performance by BeZero of its obligations under this Agreement:
a) process Customer Personal Data only for the purposes set out in this Annex 1, or otherwise on the documented written instructions of the Customer unless BeZero is required by any applicable laws to otherwise process that Customer Personal Data. Where BeZero is relying on any applicable laws as the basis for processing Customer Personal Data, BeZero shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those applicable laws prohibit BeZero from so notifying the Customer;
b) implement appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Customer Personal Data and against its accidental loss, damage or destruction, including inter alia as appropriate:
i) the pseudonymisation and encryption of Customer Personal Data;
ii) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;
iii) the ability to restore the availability and access to Customer 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 effectiveness of technical and organisational measures for ensuring the security of the processing;
c) ensure that all BeZero Personnel who have access to and/or process Customer Personal Data are obliged to keep the Customer Personal Data confidential;
d) not transfer any Customer Personal Data outside of the United Kingdom without ensuring that the transfer is undertaken in accordance with the Data Protection Legislation;
e) assist the Customer, at the Customer's cost, in responding to any request from a data subject and in ensuring compliance with its obligations under Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
f) notify the Customer without undue delay on becoming aware of a Personal Data Breach;
g) at the written direction of the Customer, delete or return Customer Personal Data and copies thereof to the Customer on termination of the agreement unless required by any applicable law to store the Customer Personal Data; and
h) maintain records to demonstrate its compliance with this Annex 1, and allow for reasonable audits by the Customer or the Customer's designated auditor, for this purpose, on reasonable written notice.
7 The Customer provides its prior, general authorisation for BeZero to:
a) appoint processors to process the Customer Personal Data (including those processors set out in Annex 1), provided that BeZero shall:
i) ensure that the terms on which it appoints such processors comply with the Data Protection Legislation, and are consistent with the obligations imposed on the Supplier in this Annex 1;
ii) remain responsible for the acts and omission of any such processor as if they were the acts and omissions of BeZero; and
iii) inform the Customer of any intended changes concerning the addition or replacement of the processors, thereby giving the Customer the opportunity to object to such changes provided that if the Customer objects to the changes and cannot demonstrate, to BeZero's reasonable satisfaction, that the objection is due to an actual or likely breach of any Data Protection Legislation, the Customer shall indemnify BeZero for any losses, damages, costs (including legal fees) and expenses suffered by BeZero in accommodating the objection; and
b) transfer Customer Personal Data outside of the UK as required for the delivery of the BeZero Platform Services, provided that BeZero shall ensure that all such transfers are effected in accordance with the Data Protection Legislation. For these purposes, the Customer shall promptly comply with any reasonable request of BeZero, including any request to enter into standard data protection clauses pursuant to the Data Protection Legislation.
8 Either party may, at any time on not less than 30 days' notice, revise this Annex 1 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this Agreement).
Part 1: Processing
Subject-matter of processing:
The provision of the BeZero Platform Services to the Customer.
Nature and purpose of the processing:
Processing in accordance with the rights and obligations of the parties under the Agreement;
Processing as reasonably required to provide the BeZero Platform Services; and
Processing as initiated, requested or instructed by the Customer and any Trial Users in connection with their use of the BeZero Platform Services, in each case in a manner consistent with this Agreement.
Type of Personal Data:
Customer personnel first name and surname, email address, username and similar identifiers, job title, IP address.
Other personal data as uploaded by the Customer or Trial Users during their use of the BeZero Platform Services.