Software as a Service (SaaS) Agreement

Digital Carbon Online

provided by Stonham & Stonham Prof Services Ltd.

1. Header Information:

This document should be read in conjunction with the billing and subscription terms of our payment platform (“Billing Platform”). Together they form the Agreement.

The Agreement is dated in accordance with the date of the initial payment via the Billing Platform (the “Signing Date”).

This agreement is entered into between

1.1 Stonham & Stonham Prof Services Ltd of 14 De Montfort Road, Speen, Newbury, United Kingdom, RG14 1TA (“I/We/Us” in this Agreement); and‎

1.2 The client (“You” in this Agreement),

each a “Party” and together the “Parties”.

2. Overview

2.1 We are the creator and owner of certain software products (“Software”) which are set out in annexed Schedule. Subject to the terms and conditions set out in this Agreement, You would like access to the Software via the internet (“Services”) as described in Schedule 1, and we want to provide You with access to the Services on a subscription basis.

2.2 In order to provide the Services, you grant Us rights to gather, store and process Data as defined in Section 6 relating to Your website usage.

2.3 You agree to install software (“Collection Tag”) on Your website to enable data collection.

3. Scope

3.1 Subject to the terms and conditions of this Agreement, You engage Us to provide the Services and We grant You for the duration of this Agreement a non-transferable and non-exclusive licence to use the Software in the course of accessing the Services (“Licence”).

4. Permitted Users, User Accounts and Passwords

4.1 The Licence is granted to the maximum number of authorised users set out in Schedule 1 (“Permitted Users”). Each Permitted User shall be one individual.

4.2 Each Permitted User shall be entitled to one account to access the Services (“User Account”). You shall ensure that only one Permitted User has access to each User Account at a time.

4.3 Notwithstanding clause 4.2, a Permitted User may transfer the access to the User Account to another individual who will become the Permitted User after such transfer.

4.4 Permitted Users will access the User Account using a username and secure password. We may request that the Permitted Users amend their usernames and password periodically.

4.5 You shall ensure that no username or password is disclosed by any Permitted User to any third party or other Permitted User and kept confidential for the entirety of this Agreement. We reserve the right to verify the use of usernames and passwords upon request on reasonable notice. If We have reasons to believe that any such usernames and passwords have been disclosed in breach of this Clause 4.5, We may immediately cancel the usernames and/or password that have been breached and request that You and/or the Permitted Users change the usernames and/or passwords. If We do so, You shall act promptly and in accordance with Our instructions.

4.6 We shall not be held liable for any losses or damages you may suffer as a result of or in connection if your and/or the Permitted Users’ failure to keep the usernames and passwords used to access the User Accounts safe and confidential.

5. Your use of the Services

5.1 Your use of the Services

You shall not and shall ensure that the Permitted Users shall not use the Services or access the User Accounts to:

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

5.1.2 carry out, encourage or assist anything that breaks any law or regulations;

5.1.3 do anything fraudulent, or which has a fraudulent effect;

5.1.4 disseminate or facilitate the dissemination of information that is not true (known as fake news);

5.1.5 harm or attempt to harm vulnerable people (including but not limited to minors);

5.1.6 do anything with unsolicited advertising material (known as spam);

5.1.7 transmit any data or material that is harmful to other programs, software, or hardware (for example, viruses, Trojan horses, worms, etc.)

5.1.8 copy in any way or re-sell any part of the Software;

5.1.9 not use the Services to provide a competing service;

5.1.10 interfere with or damage any part of the Software or any of our equipment, network, software or storage arrangements;

5.1.11 promote material that is sexually explicit;

5.1.12 promote violence, or discrimination based on race, sex, religion, nationality, age, disability, or sexual orientation;

5.1.13 infringe Our or any third party’s intellectual property;

5.1.14 impersonate anyone, or misrepresent anyone’s identity;

5.1.15 disseminate content that is defamatory, obscene or offensive; and

5.1.16 deceive, harass, annoy, threaten, or invade someone else’s privacy.

5.2 We shall use commercially reasonable endeavours to provide access to the Services on a 24/7 basis, except for downtime for:

5.2.1 routine maintenance, performed outside of normal business hours and subject to [6] hours’ notice; or

5.2.2 unplanned maintenance, with Us using reasonable endeavours to give You at least [4] hours’ notice.

5.3 We are not responsible for any loss or delay of access to the Services resulting from the limitations of Your communications networks (including, without limitation, internet access), hardware, software and other facilities.

6. Your Data

6.1 You shall be responsible for the quality and accuracy of the data and information You supply Us (“Your Data”) and We are not responsible for any outcomes from Your use of the Services.

6.2 We shall keep a monthly back up of Your Data. In the event of loss or damage to Your Data for whatsoever reason, our sole remedy to you shall be to use commercially reasonable endeavours to restore Your data from the last back up that we have.

6.3 We shall keep data relevant to the provision of the service for up to 12 months. Beyond this period data is subject to automated permanent deletion.

6.4 In order to provide the Services We collect, store and process data related to Your website. This data includes;

6.4.1 The URL of each webpage visited ;

6.4.2 The time and date of each visit;

6.5 When installing the Collection Tag, You have the option to enable collection additional data collection which may include information known as query parameters. By default this feature is disabled. Enabling this feature is optional and You do so acknowledging the risks involved.

6.6 The service includes a publicly accessible dashboard (“Public Dashboard”). The Public Dashboard provides information relating to the carbon dioxide emissions, and optionally carbon dioxide removals associated with Your website. You may choose whether or not to promote the Public Dashboard.

7. Data Protection

7.1 For the purpose of this Agreement:

7.1.1 “Data Protection Legislation” means:‎

(1) national laws implementing the Data Protection Directive (95/46/EC) and the ‎Directive on Privacy and Electronic Communications (2002/58/EC);‎

(2) the EU retained law version of General Data Protection Regulation (2016/679) (UK GDPR); and‎

‎(3) any other similar national privacy law, as applicable from time to time‎.

7.1.2 “Controller”, “Data Subject”, “Processor”, “Personal Data” and “Personal Data Breach” ‎in this Agreement shall have the meanings as defined in the Data Protection ‎Legislation.‎‎

7.2 Each Party will comply with Data Protection Legislation when processing Personal ‎Data as Controller or Processor and following a written request from the other ‎Party it will provide such documentary information as may reasonably be ‎requested by either party to demonstrate such compliance.‎

7.3 Processor shall only process Personal Data in accordance with ‎Controller’s documented instructions unless required to process such ‎Personal Data for other purposes by applicable laws or regulatory ‎authorities. In such circumstances, Processor shall provide notice to ‎Controller unless the relevant law or regulatory authority prohibits the ‎giving of notice on important grounds of public interest.‎

7.4 The provisions of Articles 28(3)(b) to 28(3)(h) inclusive of the UK GDPR shall ‎be incorporated into this Agreement by reference and Processor shall ‎comply with the express obligations of a processor as articulated in Articles ‎‎28(3)(b) to 28(3)(h) inclusive of the UK GDPR as so incorporated, provided ‎that Controller may not instruct Processor to delete data that Processor ‎holds on its own behalf as Controller; and (b) the requirements of Article ‎‎28(3)(b) of the UK GDPR shall not apply to persons that Processor is required ‎by applicable laws or regulatory requirements to grant access to Personal ‎Data.‎

7.5 Processor has primary responsibility to the relevant Data Subjects for the ‎processing of such Personal Data and shall notify Controller of any ‎assistance that Controller may require.‎

7.6 Controller provides a general authorisation to Processor to engage ‎further Processors to process Personal Data upon and subject to the ‎remaining provisions of this agreement. A list of those further Processors (if ‎any) will be available at [Insert Details] and Processor shall give Controller ‎prior notice of any intended addition to or replacement of those further ‎Processors by updating that list. If Controller reasonably objects to a change ‎to this list and has the right to object to such change pursuant to the express ‎terms of the Data Protection Legislation, Controller may (within 30 days of ‎such change) escalate any reasonable objection to the relationship manager ‎for discussion. Processor shall only engage Processors where they meet the ‎requirements of Article 28(1) of the UK GDPR and where Processor considers ‎them to be capable of providing the levels of protection for Personal Data ‎required by this Agreement. Processor will monitor and review the ‎performance of all such Processors regularly and Processor shall by liable ‎for the acts and omissions of such Processors as if they were the acts and ‎omissions of Processor.‎

7.7 Each Party may transfer Personal Data outside of the UK ‎only where it has a lawful basis for that transfer under Articles 44 to 49 (inclusive) ‎of the UK GDPR.‎

7.8 Each Party shall notify the other promptly and without undue delay on becoming ‎aware of a Personal Data Breach.‎

7.9 Each Party shall reimburse the other for all legal and other costs, incurred in ‎connection with any Personal Data Breach and any associated remedial action ‎‎(including without limitation any costs associated with the investigation of the ‎issue, notifications to affected individuals, regulators and other activities ‎undertaken to remedy or minimise the impact of the breach). Where any Personal ‎Data Breach occurs (either as Controller or Processor), the breaching Party shall ‎‎(at its own cost) take such actions as are reasonably required to remedy, or where ‎that is not possible, to mitigate as much as possible the effects of the Personal Data ‎Breach, including making any required notifications to affected Data Subjects and ‎any applicable regulators.‎

7.10 Insofar as either party is a Controller in relation to Personal Data, that Party shall:‎

7.10.1 provide to the other a privacy notice in relation to the Personal Data it ‎processes under this Agreement that complies with the requirements of the ‎Data Protection Legislation, along with a link to the same, and either ‎(i) incorporate a summary of the notice and a link to it in its own privacy ‎notice to relevant Data Subjects; or ‎(ii) provide such notice directly to the affected individuals; and

7.10.2 immediately notify the other Party in writing if it receives any complaint, ‎ notice or communication which relates to the processing of such Personal ‎Data, and provide the other party such information and co-operation as the ‎other may reasonably require in relation to the matter.‎

7.11 Data collected through the Collection Tag does not include personally identifiable information and is not classified as Personal Data.

8.Confidentiality

8.1 Each Party confirms that, during the course of this Agreement, either Party may receive confidential information in respect of the other. Each Party agrees to keep such confidential information in strict confidence and not to disclose it (other than to its own employees and professional advisors (on a need to know basis) or if required to do so by law.

8.2 Any press and publicity between You and Us and any announcement about this Agreement will be mutually agreed.

9. Our Warranties

9.1 We make the following promises or ‘warranties’ to You:

9.1.1 there are no claims concerning the Software or Services which would prevent or restrict You from using the Services in accordance with this Agreement;

9.1.2 we are fully entitled to enter this Agreement and perform the Agreement, and this will remain the case throughout the Term;

9.1.3 we have obtained and paid for (if applicable) all consents and approvals and clearances required to entitle Us to grant the rights in this Agreement to You; and

9.1.4 We will take reasonable skill and care in providing the Services.

9.2 We do not warrant that:  

       9.2.1 Your use of the Services will be uninterrupted or error free; or

9.2.2 the Services and information obtained by You through the Services will meet your requirements; or

9.2.3 the Services will be free from vulnerabilities or viruses.

9.3 We are 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 You acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

10. Your Warranties

10.1 You make the following promises or ‘warranties’ to Us:

10.1.1 You are fully entitled to enter this Agreement and perform the Agreement, and this ‎will remain the case throughout the Term‎;

10.1.2 You will provide Us with all necessary co-operation to fulfil Our obligations under this Agreement;

10.1.3 You will maintain communications networks, hardware and software that comply with any specifications that We may provide You with from time to time; and

10.1.4 You will ensure that Permitted Users use the Services in accordance with this Agreement and all other instructions provided by Us to You (whether in writing or orally).

10.1.5 You agree not to engage in any activities that may compromise the security or integrity of the Services.

11. Term

11.1 This Agreement will start on the Signing Date and will continue until the date set out in Schedule 1.

11.2 However, either party may terminate this Agreement immediately by written notice if:

11.2.1 the other does not comply with a significant obligation under this Agreement and that failure is not put right within 30 days of receipt of written notice of the breach;

11.2.2 the other stops doing business, or threatens to stop doing business;

11.2.3 the other suffers a serious ‘Adverse Financial Event’. A serious Adverse Financial Event means bankruptcy, liquidation, insolvency, or any of the following similar technical legal events:

11.2.3.1 a composition with its creditors;

11.2.3.2 an assignment for the benefit of its creditors;

11.2.3.3 the appointment of a receiver or administrator or an administrative receiver.

11.3 We may also terminate this Agreement:

11.3.1 for late or non-payment by You, as set out in Clause 12.2; and

11.3.2 as a remedy for a Claim, as set out in Clause 13.5.3.

11.4 If either You or Us terminate the Term of this Agreement, this is without prejudice to any other right or remedy of either Party may have against the other.

12. Payment

12.1 Our fees are set out in Schedule 1 to this Agreement. Our stated fees are exclusive of any taxes. Where applicable, we will add VAT to our invoices.‎

12.2 We will invoice You as set out in Schedule 1 in advance,and You will pay Us in full within 10 days of the invoice ‎date. Time of payment is of the essence to Us so We reserve the right to terminate this Agreement by giving You ‎notice if You fail to do so.

12.3 If You fail to pay on time, We may charge You interest at 8% per year above The Bank of England’s base rate from time to time‎, from the time that we give notice that We will be charging interest until You pay Us, and this rate applies before or after any court judgment in Our favour on the debt. The interest will be earned daily and You must pay it all with the overdue amount.

12.4 In addition to clause 12.2, if You fail to on pay on time We reserve the right to suspend the Services until the payment is made.

12.5 You are not allowed to hold back any payment due to Us as a set-off or credit or counterclaim in relation to money which You think We owe to You unless the law allows it.

13. Liability Limitations and Indemnity

13.1 Neither Party will be responsible to the other party for any loss of profit or any consequential loss arising from this Agreement, and save for a breach of the warranty at Clause 9.1.1 each Party’s total liability to the other under the Agreement will not exceed the greater of (1) 5,000 or (2) the fees actually paid by You to Us in the 3 months preceding the relevant claim is made. “Consequential loss” means “losses (including costs and reasonable fees) directly arising from or attributable to the acts or omissions including but not limited to loss of profit, loss of business opportunity, cost of rectification or remedy or impacts on third party contracts or arrangements”.

13.2 This Agreement does not limit Our responsibility for things that the law says We cannot exclude. These include death, personal injury caused by Our negligence, fraud or fraudulent misrepresentation or any other matter that the law says We can’t exclude. But otherwise, in so far as legally permitted any warranties or terms which are implied into this Agreement by any piece of law are excluded.

13.3 Neither of Us will be liable to the other for failure or delay in carrying out our obligations under this Agreement which is caused by an event beyond our reasonable control, which We could not have foreseen or which was unavoidable. This includes industrial disputes, energy or transport failures, acts of God, war, terrorism, civil unrest, explosions, epidemics, mechanical breakdown, natural disasters, deliberate damage, or failures of suppliers or sub-contractors to do what they are supposed to.

13.4 The remedies set out in this Clause 13.5 are Your sole remedies in the event of a Claim. At our sole discretion and expense, We shall either:

13.4.1 modify or replace all or the infringing part of ‎the Software or Services so that it is no longer ‎infringing‎;

13.4.2 procure the right for You to continue ‎using the infringing part of the Software or ‎Services; or

13.4.3 terminate this Agreement without any additional liability or obligation to pay liquidated damages or other additional costs ‎to You‎.‎

14. General

14.1 We are allowed at any time to assign, transfer, charge or sub-contract our rights and obligations under this Agreement, and You may also do any of these things subject to our prior written consent.

14.2 Nobody other than We and You may rely on any terms of this Agreement. The Contracts (Rights of Third Parties) Act 1999 does not apply to this Agreement.

14.3 Any changes to this Agreement will only be effective where they are in writing and signed by You and Us.

14.4 If either Party wants to give a notice to the other, it shall be in writing and signed. It should be delivered personally, or by sending it by pre-paid recorded delivery or registered post to the other party to the address at the beginning of this Agreement, or by email, to an email address nominated by each party or, if no email address has been nominated, the most recently used email address between the Parties.

14.5 If the notice is given by post, it will be treated as having been received on the second business day after posting (this excludes weekends and public holidays). If the notice is delivered personally, it will be treated as having been received on the day it is received, unless this is not a business day, in which case it will be treated as having been received on the next business day. If notice is given by email it will be treated as having been received 24 hours after it is sent, as long as it sent to the correct email address and no notice is received to indicate that the email has not been received by the other Party.

14.6 The arrangements set out in clause 14.4 and 14.5 do not apply to the service of any documents in legal proceedings.

14.7 Delay in exercising a right under this Agreement will not take away or act as a waiver of that right or any other right.

14.8 This Agreement is the whole agreement between You and Us and replaces any previous agreements, whether oral or in writing, between us in respect of the subject matter.

14.9 Each Party acknowledges that in entering into this agreement it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.

14.10 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement.

14.11This Agreement may be signed separately by you and us, in which case the separately signed copies will together be taken as the whole Agreement.

15. Dispute resolution and applicable law

15.1 This Agreement and any dispute or claim relating to or connected with it (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England and Wales.

15.2 The Parties will use their best efforts to negotiate in good faith and settle any dispute that may arise out of or relate to this Agreement or any breach of it.

15.3 If any such dispute cannot be settled amicably through negotiations between the Parties, or either or both is or are unwilling to engage in this process, either Party may propose to the other in writing that structured negotiations be entered into with the assistance of a fully accredited mediator before resorting to litigation.

15.4 Any dispute shall not affect the Parties’ ongoing obligations under this Agreement.

15.5 The Parties agree that the courts of England and Wales are the only place where disputes or claims relating to or connected with this Agreement (including non-contractual disputes or claims) may be decided.

16. Signing

Upon entering into a billing relationship as set out in Schedule 1, this Agreement is considered signed as per the commencement date of that relationship. Each of the Parties agrees to these terms and conditions.

17. Support and Maintenance

17.1. We may provide support and maintenance services for the Services at ou discretion. Such services, if offered, may be subject to additional terms and charges.

18. Force Majeure

18.1. We shall not be liable for any failure or delay in performing our obligations under this agreement due to circumstances beyond our reasonable control, including but not limited to acts of nature, war, terrorism, cyber crime or government regulations.

Schedules

SCHEDULE 1 – SOFTWARE, SERVICES, PERMITTED USERS, TERM AND FEES

Software: Digital Carbon Online

Services: Measurement and reporting of website carbon emissions to be accessed via https://digitalcarbon.online and https://webco2.io

Features: The Service is provided with the features described on Our website. We retain the right to remove, update, replace and or add Features of the Service.

Number of Permitted Users: One account will be provided per client for access to data and reports. Each subscription applies to one website only.

Term and Billing Frequency: As defined when entering into the billing agreement, and automatically renewed unless cancelled by the Client on 30 days notice.

Fees: As defined when entering into the billing agreement via the Billing Platform. We reserve the right to alter fees based on Your website size according to the pricing schedule set out on Our website. Where relevant, Fees in relation to the Carbon Removal feature will be agreed between both Parties as and when required, at such time Term and Frequency will also be agreed.

Data Accuracy: The determination of carbon dioxide emissions is an area of ongoing global research. Our Services leverage industry leading methodology as defined by https://sustainablewebdesign.org/calculating-digital-emissions/. We offer no additional warranty of accuracy of this data above and beyond that methodology.

SCHEDULE 2 – PERPETUAL, LIFE TIME DEALS

1. License Grant

1.1. We grants the Client a non-exclusive, non-transferable license to use the software or service (hereinafter referred to as “the Service”) in perpetuity or for the lifetime of the Service, subject to the terms and conditions herein.

1.2. “Perpetual” or “Lifetime” means that you are entitled to use the Service without additional payments. However, We reserve the right to revoke, amend, alter, upgrade, or downgrade the licenses with reasonable notice.

2. Modification and Discontinuation

2.1. We may, at our discretion, modify or discontinue the Service or any part thereof with or without notice. In such cases, We may offer alternatives or upgrades at an additional cost.

3. License Restrictions

3.1. The license granted herein is for your personal use only and may not be transferred or shared.

3.2. Any attempt to transfer or share the license is a breach and will result in the immediate revocation of the license.

4. No Responsibility for Consequences

4.1. We shall not be held responsible for any direct or indirect consequences, including but not limited to loss of revenue, brand damage, or any other damages, arising from the use, non-use, or discontinuation of the Service, whether or not the license is active or revoked.

5. Upgrade and Downgrade

5.1. We reserve the right to offer upgrades or downgrades to the Service at its discretion. Any such changes may be subject to additional charges.

6. Termination

6.1. We reserve the right to terminate this agreement and revoke the license if you fail to comply with any of the terms and conditions stated herein.

7. Severability

7.1. If any provision of these terms and conditions is found to be invalid or unenforceable, the remaining provisions shall continue to be valid and enforceable to the fullest extent permitted by law.

8. Changes to Terms and Conditions

8.1. We reserve the right to amend these terms and conditions at any time. Notice of any changes will be provided to you, and continued use of the Service will constitute acceptance of the modified terms.

Last update: 11 Jan 2024