Local Carbon Terms and Conditions

When you purchase a subscription from Local Carbon, you consent to these terms and conditions.

If you have any questions you can email Local.Carbon@ellisrichmond.com

1. GENERAL

These General Terms govern and apply to the entire contractual relationship between the Client and Local Carbon and are incorporated in the Agreement between the Client and Local Carbon.

2. DEFINITIONS

In these General Terms except where the context otherwise requires the following words and expressions have the following meanings:

Additional Fees means $150 per hour excluding GST;

Additional Services has the meaning set out in clause 5.1(c);

Agreement means the agreement between the Client and Local Carbon on the terms and conditions set out in these General Terms;

Business Day means a day that is not a Saturday, Sunday, bank holiday or public holiday in Tasmania;

Claim includes a claim, notice, demand, action, proceeding, litigation, government investigation, judgment, damage, loss, cost, expense or liability however arising, whether present, unascertained, immediate, future or contingent and whether based in contract, tort or statute;

Client means the person who has contracted with Local Carbon to receive Services under the Agreement;

Climate Disclosure Data means information on greenhouse emission data, as well as company information provided by the Client to Local Carbon in relation to the Services. This information includes company name, country, website, company identifier, company identifier number, main sector, number of employees, yearly revenue, greenhouse gas emissions over time, carbon offsets obtained or applied and any information on the users actions for limiting emissions;

Commencement Date means the date the Client consents to these General Terms by subscribing to the Services in any form of acceptance.

Further Term means 12 months from expiry of the Initial Term or Further Term (as applicable).

General Terms means these general terms and conditions that govern the provision of the Services by Local Carbon to the Client and are incorporated into the Agreement between the Client and Local Carbon and located at www.ellircihmond.com.au;

Initial Term means a period of 12 months commencing on the Commencement Date.

Local Carbon means the entity Local Carbon Pty Ltd ACN 650 359 489;

Local Carbon Portal means the web or mobile device based ‘Local Carbon Portal’ software service, as updated or varied from time to time and any ancillary services, as applicable;

Services means the Subscription Services (including access to the Local Carbon Portal), any Additional Services and any other services specified in the Agreement;

Subscription Fee means the fee payable by the Client set out on the Local Carbon website which the Client subscribes to and as set out in the invoice provided to the Client by Local Carbon;

Subscription Services for the purposes of these General Terms are as follows:

unlimited access to Local Carbon tools and custom Local Carbon Portal;
calculation by Local Carbon of Client emissions for the current or the most recently completed financial year in accordance with Greenhouse Gas Protocol Standards based on Client data uploaded to the Local Carbon Portal or otherwise provided to Local Carbon;
up to 2 hours of carbon accounting services per month;
up to 2 hours of business analyst services per month; and
up to 2 hours of carbon analyst support per month.

Term means the Initial Term and any Further Terms; and

Users means the Client’s employees, agents or contractors, who have a need to access and use the Services on behalf of the Client and which have been approved by Local Carbon.

3. TERM

3.1. Term

These General Terms have effect from the Commencement Date and continue in force during the Term (including the Initial Term and, if applicable, each Further Term), unless terminated earlier in accordance with its provisions.

3.2. Further Terms and review of fees

At the expiry of the Initial Term and each Further Term, the Agreement will continue for successive Further Terms unless the Client gives not less than 10 days’ prior written notice that the Agreement will terminate on the expiry of the then current term. Local Carbon will use best endeavours to notify the Client of the upcoming renewal of the term, including the applicable Fees which will apply for the Further Term, not less than 30 days prior to the expiry of the Initial Term and each Further Term.

4. SERVICES

4.1. Supply of the Services

(a) Local Carbon agrees to supply the Services to the Client on the terms of the Agreement and these General Terms during the Term.

(b) Subject to the terms and conditions of the Agreement and these General Terms, the Client is given a non-transferable, nonexclusive, non-sublicensable, limited term, world-wide right to permit Users to access and use the Local Carbon Portal subject to the terms of the Agreement and these General Terms.

(c) The Services will be made available to the Client during the Term and only after entering the Agreement. The Client is aware that Local Carbon may at any time implement new versions and upgrades of the Local Carbon Portal.

(d) Local Carbon will use commercially reasonable efforts to make the Local Carbon Portal available over the Internet 24 hours a day, 7 days a week but cannot guarantee that the Local Carbon Portal will be uninterrupted or error free. Measures that may affect the accessibility include scheduled maintenance, which Local Carbon will schedule to the extent practicable during the weekend or outside normal business hours (Australian Eastern Standard Time) unscheduled emergency maintenance and any other cause beyond Local Carbon’s reasonable control, including but not limited to the User’s access to the Internet.

4.2. Client’s general obligations

The Client must:

(a) cooperate fully with Local Carbon and act reasonably and in good faith towards it, and ensure that its employees, contractors and agents do the same;

(b) comply with all applicable laws and Local Carbon’s security, administrative and ethic codes, policies and regulations as notified by email, as made available within the Services or in any other manner; and

(c) provide in a timely manner such information, data and documents free of any material errors or omission as reasonably required by Local Carbon to perform the Services.

4.3. Use of the Services

The Client:

(a) is responsible for Users’ compliance with the Agreement and the Users’ use of the Services.

(b) may only use the Services in accordance with the Agreement and any of Local Carbon’s user policies (as applicable and amended by Local Carbon from time to time);

(c) must not use, or permit the use of, the Services in any way that could damage, overburden, disable, impair or otherwise hinder or interfere with Local Carbon’s provision of the Services. The Client must ensure the security of the Users’ passwords and equipment used to access the Services; and

(d) must not provide access to the Services to any third party except for a third party that is acting as a consultant providing services to and on behalf of the Client.

5. SUBSCRIPTION FEE

5.1. Payment of Subscription Fee and Additional Fees

(a) Unless otherwise agreed by Local Carbon in writing, the price to be paid by the Client for the Subscription Services will be the Subscription Fee and any applicable taxes or charges (including any goods and services or similar taxes) levied by any governmental authority upon the supply or use of the Subscription Services. Any carbon accounting, business analyst or carbon analyst services not utilised within a calendar month will not be carried over to subsequent calendar months.

(b) The Fees will remain fixed during the current term, but will be subject to annual review for any Further Term. Local Carbon will notify the Client of any changes to the Fees that will apply to a Further Term not less than 30 days prior to the end of the then current term.

(c) Where the Client requests services to the provided by Local Carbon outside or in excess of the Subscription Services (Additional Services), the price to be paid by the Client for these Additional Services will be the Additional Fees per hour of Additional Services provided or as otherwise specified on the Local Carbon Portal, together with any applicable taxes or charges (including any goods and services or similar taxes) levied by any governmental authority upon the supply or use of the Additional Services. Local Carbon will use its best endeavours to agree the scope of any Additional Services with the Client prior to the Client incurring Additional Fees.

5.2. Time for payment of Subscription Fee and Additional Fees

(a) The Subscription Fee and any Additional Fees must be made by the Client to Local Carbon within 14 days from the date of a tax invoice from Local Carbon. Payment must be in a form acceptable to Local Carbon and without any deduction, withholding, set-off or counter claim of any nature.

(b) Local Carbon may offer the Client the ability to pay the Subscription Fees on a monthly basis or in advance for full Initial Term or Further Term (as applicable).

(c) Local Carbon may, in its absolute discretion, offer the Client the ability to pay the Subscription Fees or Additional Fees by an approved current, valid, accepted method of payment, as may be updated from time to time, and which may include payment through the Client’s account with a third party (Payment Method). If a payment is not successfully settled, due to expiration, insufficient funds, or otherwise:

(i) the Client remains responsible for payment of the Fees; and

(ii) Local Carbon may suspend the Client’s access to the Services until payment has been received.

(d) For some Payment Methods, the issuer may charge the Client certain fees relating to the processing of the Client’s Payment Method. The Client should check with its Payment Method service provider for details.

5.3. Failure to pay

If the Client does not pay an amount to Local Carbon by the due date required under the Agreement or these General Terms, then Local Carbon is entitled to suspend performance of all or part of the Services until the outstanding amount is paid in full.

6. LIABILITY

6.1. Limitation of liability

To the extent permitted by law, the liability of Local Carbon under or in connection with the Agreement and these General Terms for any and all Claims are, at the election of Local Carbon, be limited to:

(a) re-supply of all or part of the Services; or

(b) refund of an amount not exceeding an amount equal to 3 months’ worth of Subscription Fees.

6.2. Exclusion of indirect or consequential losses

Local Carbon is not liable to the Client for any Claim incurred or suffered by that other party of an indirect or consequential nature, including any economic loss or other loss of turnover, profits, business or goodwill.

7. INTELLECTUAL PROPERTY

7.1. Definitions

For the purposes of this clause, Intellectual Property Rights means:

(a) all intellectual property rights throughout the world, including all:

(i) rights in relation to inventions, including patent rights and applications;

(ii) all trade names and registered or unregistered trademarks and applications, including service marks (Marks);

(iii) copyright and analogous rights;

(iv) licences;

(v) know-how and trade secrets;

(vi) proprietary processes and formulae, source and object code, algorithms;

(vii) design;

(viii) circuit layouts; and

(ix) all documentation and media relating to the above, such as, without limitation, manuals and records; and

(b) moral rights.

7.2. IP

(a) As between the Client and Local Carbon, Local Carbon owns all Intellectual Property Rights in and to:

(i) any hardware, software, firmware, tools, documentation, reports, data, diagrams, procedures, plans or other material (Material) provided, created or developed by or on behalf of Local Carbon in connection with the Agreement; and

(ii) any modifications or enhancements to such Material, and the Client assigns to Local Carbon any modifications or enhancements made by or on behalf of the Client immediately from creation, (Local Carbon IP).

(b) As between the Client and Local Carbon, Local Carbon owns all Material provided, created or developed in connection with the Agreement and the Client and Local Carbon agree that no Material may be disseminated to any third party without the prior written consent of Local Carbon.

(i) create derivative works based on any Service;

(ii) access, copy, frame or mirror any part or content of the Services for any improper purpose, including in order to build a competitive product or service, but which, for the avoidance of doubt, does not include copying or framing on the Client’s own intranet or otherwise for its own internal business purposes;

(iii) rent, lease, reverse engineer, decompile or disassemble any Service;

(iv) directly, indirectly or take steps to register or apply for, any Local Carbon IP or any Intellectual Property Rights substantially similar to any Local Carbon IP; and

(v) remove, conceal or cover any Marks used by Local Carbon in connection with the Services.

(d) Upon termination of the Agreement, the Client must immediately cease all use of any Marks used by Local Carbon in connection with the Services.

8. DATA

8.1. Consent to disclose and use data

The Client consents to Local Carbon:

(a) disclosing the fact that the Client is a client of Local Carbon and the Client agrees that Local Carbon may use the Client’s name and logo to identify the Client as a client of Local Carbon on Local Carbon’s website and in other promotional and marketing material;

(b) using data provided by the Client, including all Climate Disclosure Data that is recorded when completing the Agreement or in connection with the Services, in accordance with Local Carbon’s privacy policy, as set out in these General Terms or as otherwise consented to by the Client in writing. Without limiting the foregoing, the Client consents to Local Carbon using Climate Disclosure Data for development and analytics purposes to develop Local Carbon’s expertise and know how, including for benchmarking purposes, development, analytics and business intelligence functions including web-site trend and performance analysis, quality assurance and thought leadership, and other purposes related to Local Carbon’s business; and

(c) using non-personal, de-identified and aggregated information collected from the Client for Local Carbon’s business functions and activities, including data analytics, research, submissions, thought leadership and promotional purposes and for developing processes, products and services. Any output will be anonymised or aggregated so that no personal information or information relating specifically to the Client is reasonably identifiable.

(d) using the primary emissions data in aggregate for the purposes of providing an emissions factor.

8.2. Future consent

From time to time, Local Carbon may identify opportunities for its clients which may require disclosing data (including Climate Disclosure Data) provided by the Client to third parties other than in accordance with clause 8.1. In this circumstance Local Carbon will contact the Client regarding the opportunity, directly or through the Local Carbon Portal (including to provide details of what data would be disclosed to third parties) and will not disclose such data before obtaining the Client’s consent.

9. CONFIDENTIALITY

9.1. Definitions

For the purposes of this clause:

Confidential Information means all confidential information obtained from or relating to a Disclosing Party and provided to, learned by, or accessed by a Recipient, including, but not limited to:

(a) the terms and conditions of the Agreement;

(b) trade secrets, know how, financial, accounting, marketing and technical information, research and development, technology, operating procedures, specifications, processes or formulae;

(d) anything else that is marked “confidential” or which is otherwise indicated expressly or impliedly to be subject to an obligation of confidence, but does not include information that was public knowledge when the Agreement was executed or became so at a later date (other than as a result of a breach of confidentiality by or involving either party); Disclosing Party means a party that is disclosing Confidential Information; and Recipient means a party that is the recipient of Confidential Information.

9.2. Use or disclosure of Confidential Information

(a) Each party covenants and undertakes that it will not either during the term of the Agreement or at any time thereafter (except in the proper course of the party’s duties under these General Terms or as required by law) use or disclose to any person any Confidential Information.

(b) A Recipient may use the Confidential Information solely for the purpose of giving effect to these General Terms and must keep this information confidential and ensure that its officers, employees, agents and advisers keep it confidential and must not disclose this information to any person except:

(i) with the prior written consent of the Disclosing Party;

(ii) to the extent required by law or the rules of any stock exchange; or

(iii) to any officers, employees, agents and advisers of the Recipient on a need to know basis in relation to the supply of the Services.

(c) Nothing in this clause confers upon the Recipient any right, licence or intellectual property in or to the Confidential Information.

(d) The Recipient will be deemed to have breached its obligations under this clause if any of its officers, employees, agents or advisers commits any act or omission that, if committed by the Recipient, would be a breach of this clause.

9.3. Return of Confidential Information

A Recipient must, on demand, immediately return to the Disclosing Party all documents and things, regardless of form, in its possession or control which contain or embody Confidential Information, delete any electronic copies of this information and cease to use this information or any part of it.

9.4. Survival of clause

The rights and obligations of the parties under this clause will survive termination of the Agreement.

10. CLIENT WARRANTIES

10.1. Client warranties The Client:

(a) warrants to Local Carbon that it has read and understood these General Terms;

(b) warrants to Local Carbon that all information supplied by or behalf of it to Local Carbon in connection with the supply of Services is true and accurate and not misleading;

(c) warrants that it has not relied on any representation or statement made by or on behalf of Local Carbon in connection with the supply of Services that has not been clearly and expressly stated in these General Terms;

(d) acknowledges that Local Carbon has relied on the information supplied by or on behalf of the Client to it in supplying the Services; and

(e) warrants that the supply of the Services by Local Carbon to the Client, and the use of Services by the Client, will not make Local Carbon liable to any prosecution, claim or other action under any applicable law.

10.2. Indemnity

The Client will fully indemnify Local Carbon in respect of all loss, damage, costs, expenses (including legal fees on a full indemnity basis), fines, penalties, claims, demands and proceedings howsoever arising, whether at common law (including negligence) or under statute, in connection with any of the following:

(a) any breach of the Agreement by the Client;

(b) the Client’s use of the of the Local Carbon Portal; or

10.3. Rights reserved

Local Carbon reserves the right (without any liability to the Client) to refuse to do or to omit to do any thing, or to refuse to comply with any request or direction of the Client, which in the reasonable opinion of Local Carbon would constitute or result in a breach of any warranty given by the Client under these General Terms.

10.4. As is basis

(a) The Client acknowledges and agrees that, unless expressly agreed by Local Carbon, the Services are provided on an “AS IS” basis and with all faults. To the furthest extent permitted under applicable law, Local Carbon expressly disclaims and excludes from the Agreement all other conditions, terms or warranties of any kind with respect to the Services, whether express or implied, including without limitation any conditions, terms or warranties for merchantability of the Services or for the fitness of the Services for a particular purpose or the correspondence of the Services to any description or that the Services will be uninterrupted or error free or completely secure. The Client acknowledges that there are risks inherent in internet connectivity that could result in the loss of privacy, confidential information and property.

(b) The Client acknowledges that Local Carbon may, in its absolute discretion, specify a level of assurance on which specific accounting engagements are provided with Local Carbon. Unless expressly agreed by Local Carbon, such engagements are intended to provide ‘audit ready information’ only and are not an audit or review under accounting and auditing standards. Local Carbon will rely on any information provided by the Client in good faith without necessarily obtaining additional verification.

11. TERMINATION

11.1. Termination by either party without cause

(a) Either party may terminate the Agreement without cause by giving at least 20 Business Days’ written notice to the other party.

(b) If the Client terminates the Agreement under this clause 11.1, it must pay the balance of the unpaid Subscription Fees for the remainder of the then current Initial Term or Further Term (as applicable) within 30 Business Days following the date of termination.

11.2. Termination by either party for cause

Either party may terminate the Agreement at any time upon 10 Business Days’ written notice to the other party, if the other party:

(a) commits a breach of its obligations under these General Terms and:

(i) if that breach is capable of being remedied, that party fails or refuses to remedy that breach upon 10 Business Days’ written notice; or

(ii) that breach is incapable of remedy;

(b) has a liquidator, provisional liquidator, receiver, receiver and manager, mortgagee in possession or administrator appointed to it or over some or all of its assets;

(d) is otherwise unable to pay its debts or presumed to be insolvent.

12. GST

12.1. Definitions

Unless the context indicates otherwise, terms in this clause that are defined or used in A New Tax System (Goods and Services Tax) Act 1999 have the same meaning as in that Act.

12.2. Gross up for GST

(a) Unless expressly stated to be inclusive of GST, the consideration for any taxable supply made by a party (Supplying Party) under or in connection with these General Terms:

(i) does not include GST; and

(ii) may be increased by the Supplying Party by an amount equal to the GST payable on that taxable supply.

(b) The recipient need not make any payment for a taxable supply unless the Supplying Party has first issued a valid tax invoice.

(c) If an adjustment event occurs in relation to any taxable supply made under or in connection with these General Terms, the Supplying Party must issue an adjustment note to the recipient and the difference between the GST payable on the supply (taking into account any adjustments) and the amount of GST included in the price for the supply must be paid by or refunded to the recipient as applicable.

(d) Any amount to be reimbursed or paid in connection with these General Terms must be reduced by an amount equal to any input tax credit to which the party being reimbursed (or its representative member) is entitled in respect of that amount.

13. GENERAL

13.1. Further Assurances

Each of the parties shall sign, execute all such further documents and do all such acts, matters and things as shall be necessary or desirable to give full effect to the Agreement.

13.2. Assignment

(a) No party to the Agreement shall assign or purport to assign any right under these General Terms without the prior written consent of the other party.

(b) Notwithstanding the above, Local Carbon may assign its rights and obligations under the Agreement without the Client’s prior consent in connection with a sale of all, or substantially all, of the assets of Local Carbon to a third party.

13.3. Entire Agreement and Variation

(a) The Agreement and these General Terms contain the entire understanding of the parties as to its subject matter and there is no other understanding, agreement, warranty or representation whether expressed or implied in any way defining or extending or otherwise relating to these provisions or any of the matters to which the Agreement relates.

(b) Local Carbon may from time to time review and update these General Terms to take account of new laws, regulations, products, technology or other relevant changes in circumstances. The Agreement will be governed by the most recent General Terms available on the Local Carbon Portal or on the website at www.ellisrichmond.com.au. By continuing to use the Services, the Client agrees to be bound by the most recent General Terms. It is the Client’s responsibility to check the Local Carbon Portal or website regularly for updated versions of the General Terms.

13.4. Modification and severability

The parties agree and acknowledge that:

(a) all the provisions of these General Terms are reasonable in all the circumstances and that each provision is and will be deemed to be severable and independent; and

(b) if all or any part of any provision is judged invalid or unenforceable in all the circumstances, it will be deemed to be deleted and will not affect the validity or enforceability of the remaining provisions.

13.5. Governing Law and Jurisdiction

(a) These General Terms is governed by and is to be construed in accordance with the laws of the State of Tasmania, Australia.

(b) Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the Courts of Tasmania, Australia, and Courts entitled to hear appeals from these Courts