In this Agreement, the following terms shall have the meanings set forth below:
“Carbon Instrument” means evidence of either (a) a unique identification of Emissions Reduction verified to a Third Party Standard or (b) Emission Rights;
“Carbon Dioxide Equivalent” or “CO2e” means the base reference for the determination of global warming potential of Greenhouse Gases in units of carbon dioxide determined in accordance with the methodologies, procedures, formulae, assumptions and information selected by The CarbonNeutral Company;
“Emission Rights” means any right, interest, credit, entitlement, benefit or allowance to emit (present or future) GHG Emissions that may be created under any regulatory or legal regime;
“Emissions Reduction” means the removal, limitation, reduction, destruction, avoidance, sequestration or mitigation of GHG Emissions;
“Emissions Reduction Project” means any activity or project that does, or is expected to, result in the issuance of a Carbon Instrument;
“GHG Emissions” means emissions of Greenhouse Gases measured in CO2e;
“Greenhouse Gases” or “GHGs” means the six gases listed in Annex A to the protocol to the United Nations Framework Convention on Climate Change ("UNFCCC") adopted in New York on May 9, 1992 at the Third Conference of the Parties to the UNFCCC in Kyoto, Japan on December 11, 1997, as amended from time to time;
“Retire”, “Retired” or “Retirement” means that, in connection with a Carbon Instrument, the action taken by The CarbonNeutral Company to document in the The CarbonNeutral Company’s books and records that such Carbon Instrument has been removed from commercial circulation;
“Third Party Standard” means an Emissions Reduction quality standard governed by an independent organization including but not limited to the European Union Emission Trading Scheme, the Clean Development Mechanism, Joint Implementation, the Voluntary Carbon Standard and the Gold Standard.
2. Offset Services.
2.1 Fees. Any Offset Services will be provided in consideration of the fees and in the amounts indicated at the Website in accordance with the results of the Personal Offset Calculator and/or the Business Offset Calculator, as applicable and if ever, on a case-by-case basis. Users shall pay any and all fees immediately by credit card and such fees shall be non-refundable. All taxes now or hereafter imposed with respect to the Offset Services shall be the responsibility of the user, and if paid or required to be paid by The CarbonNeutral Company, the amount thereof shall be added to and become a part of the amounts payable by the user in connection with the Offset Services.
2.2 Retirement. Any applicable Offset Services include The CarbonNeutral Company’s commitment to arrange either for an Emissions Reduction Project to be carried out or the acquisition, holding and Retirement of Carbon Instruments as follows:
(a) The CarbonNeutral Company will either (i) arrange for an Emissions Reduction Project to be carried out, verify the resulting Emissions Reductions and Retire the resulting applicable Carbon Instruments, or (ii) acquire from third parties Carbon Instruments, equal to the quantity measured and transacted under the Personal Offset Calculator and/or the Business Offset Calculator, as applicable, and hold and Retire such Carbon Instruments so that they are not available to be traded or acquired by third parties (unless The CarbonNeutral Company acquires and holds or arranges for the Retirement of other Carbon Instruments equivalent in quantity to those disposed of by The CarbonNeutral Company). Retirement will occur upon a regular interval, to be defined by The CarbonNeutral Company in its sole and absolute discretion, aggregating transactions with various users for the sake of efficiency
(b) Emissions Reduction Project(s) or Emissions Rights may be located or obtained, as the case may be, from anywhere in the world and will meet the Third Party Standards selected by The CarbonNeutral Company in its sole and absolute discretion. The users shall not acquire any rights of ownership in any Carbon Instruments, Emissions Reduction Projects, Emissions Reductions or Emission Rights. Accordingly and, for the sake of clarity, no user may resell or otherwise dispose of any Carbon Instruments, Emissions Reduction Projects, Emissions Reductions or Emission Rights hereunder in any way and such purported activity is expressly prohibite
(c) In the event any Emissions Reduction Project fails to deliver sufficient Emissions Reductions (e.g. through technical or financial failure or otherwise), The CarbonNeutral Company shall cause alternative Emissions Reductions Projects to be carried out or acquire, hold and Retire, or arrange for the Retirement of, alternative Carbon Instruments to the extent necessary to make up the resulting shortfall in Emissions Reductions. The CarbonNeutral Company reserves the right to acquire, hold, and Retire or arrange for the Retirement of Carbon Instruments of any kind
(d) The Emissions Reductions achieved by an Emissions Reduction Project are calculated and verified in accordance with the methodologies and procedures set out in the rules that govern the Third Party Standard to which the Emissions Reductions have been contracted. Upon Retirement of the Carbon Instruments corresponding to the quantity measured and transacted under the Personal Offset Calculator and/or the Business Offset Calculator, as applicable, The CarbonNeutral Company shall have fulfilled its obligations with respect to the contracted Offset Services. The CarbonNeutral Company shall not be liable for any dispute relating to the validity of an Emissions Reduction once that Emissions Reduction has been verified and issued;
(e) Carbon Instruments shall be Retired by The CarbonNeutral Company only in accordance with the quantity measured and actually transacted under the Personal Offset Calculator and/or the Business Offset Calculator, as applicable, on a case-by-case basis. For the sake of clarity, The CarbonNeutral Company shall have no obligation to Retire any Carbon Instruments (a) unless and until The CarbonNeutral Company’s fees have been paid in full by the applicable user in connection with the Retirement of such Carbon Instruments; and (b) outside of its normal Retirement scheduling in accordance with Section 2.2(a) hereunder.
By using the The CarbonNeutral Company Online Services, you represent and warrant that: (a) all information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; (c) you are over the age of majority in your jurisdiction of residence and 18 years of age or older in any event; and (d) your use of the Website does not violate any applicable law or regulation. Recognizing the global nature of the Internet, you further represent and warrant that you will comply with all local rules regarding online conduct and applicable Contributions (as defined below). Specifically, you represent and warrant that you will comply with all applicable laws regarding the transmission of data exported from the United States or the country in which you reside.
4. User Representations and Warranties.
You are entirely responsible for the content of, and any harm resulting from, your submissions to the Website including without limitation any feedback (collectively, “Contribution”). When you create or make available a Contribution, you thereby represent and warrant that:
(a) the creation, distribution, transmission, public display and performance, accessing, downloading and copying of your Contribution does not and will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark or trade secret rights of any third party;
(b) your Contribution does not contain any viruses, worms, Trojan horses, malicious code or other harmful or destructive content;
(c) your Contribution is not obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable, libelous or slanderous, does not advocate the violent overthrow of a government, including without limitation the governments of the United Kingdom and the United States, does not incite, encourage or threaten immediate physical harm against another, does not violate any applicable law, regulation, or rule, and does not violate the privacy or publicity rights of any third party;
(d) your Contribution does not contain material that solicits personal information from anyone under 18 or exploit people under the age of 18 in a sexual or violent manner, and does not violate any applicable law or regulation concerning child pornography or otherwise intended to protect the health or well-being of minors;
(e) if your employer has rights to intellectual property you create, you have either (i) received permission from your employer to make available the Contribution, or (ii) secured from your employer a waiver as to all rights in or to your Contribution;
(f) your Contribution does not constitute, contain, install or attempt to install or promote spyware, malware or other computer code, whether on The CarbonNeutral Company’s or others computers or equipment, designed to enable you or others to gather information about or monitor the online or other activities of another party;
(g) your Contribution does not inundate the Website with communications or other traffic suggesting no serious intent to use the Website for its stated purpose; or
(h) your Contribution does not otherwise violate, or link to material that violates, any provision of this Agreement or any applicable law or regulation.
5. Prohibited Activities.
You may not access or use the Website for any other purpose other than that for which The CarbonNeutral Company makes it available. Certain activities, even if legal, may violate the common rules of etiquette governing Website use, as determined by The CarbonNeutral Company in The CarbonNeutral Company’s sole discretion. Prohibited activity includes, but is not limited to:
(a) criminal or tortious activity, including child pornography, fraud, trafficking in obscene material, drug dealing, gambling, harassment, stalking, spamming, copyright infringement, trademark infringement, patent infringement, or theft of trade secrets;
(b) using any information obtained from the Website in order to contact, advertise to, solicit, or sell to any user, person, or entity without their prior explicit consent;
(c) interfering with, disrupting, or creating an undue burden on the Website or the networks or services connected to the Website;
(d) attempting to impersonate another user, person or entity;
(e) using the username or password of another user;
(f) using a false email address;
(g) selling or otherwise transferring your profile;
(h) using any information obtained from the Website in order to harass, abuse, or harm any user, person, or entity;
(i) using the Website in a manner inconsistent with any and all applicable laws and regulations; or
(j) providing material support or resources (or concealing or disguising the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act.
6. Grant of License to The CarbonNeutral Company.
By making a Contribution to the Website, you hereby grant to The CarbonNeutral Company a perpetual, non-exclusive, fully-paid, royalty free, sublicensable (through multiple tiers), worldwide license to use, modify, create derivative works of, publicly perform, publicly display, reproduce, rent, resell and distribute such Contribution in all media now known or hereafter created and in any other manner in The CarbonNeutral Company’s sole discretion. Where applicable, you waive any moral rights in and to your Contribution in favor of The CarbonNeutral Company.
7. Intellectual Property Rights.
The content on the Website, except for all Contributions, including without limitation, the text, software, scripts, graphics, photos, videos, interactive features and the like (“Materials”) and the trademarks, service marks and logos contained therein (“Marks”), are owned by or licensed to The CarbonNeutral Company, subject to copyright and other intellectual property rights under all applicable laws and international conventions. Materials on the Website are provided to you AS IS for your information and personal use only and may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners. The CarbonNeutral Company reserves all rights not expressly granted in and to the Website and the Materials. You agree to not engage in the use, copying, or distribution of any of the Materials other than expressly permitted by The CarbonNeutral Company, including any use, copying, or distribution of third parties’ materials obtained through the Website for any commercial purposes. If you download or print a copy of the Materials for personal use, you must retain all copyright, trademark, and other proprietary notices contained therein. You agree not to circumvent, disable or otherwise interfere with security related features of the Website or features that prevent or restrict use or copying of any Materials or enforce limitations on use of the Website or the Materials therein.
8. The CarbonNeutral Company’s Right to Manage the Website and Terminate Users.
8.1 The CarbonNeutral Company Website Management. The CarbonNeutral Company reserves the right but does not have the obligation to: (a) monitor the Website for violations of this Agreement; (b) take appropriate legal action against anyone who, in The CarbonNeutral Company’s sole discretion, violates this Agreement, including without limitation, reporting you to applicable law enforcement authorities; (c) in The CarbonNeutral Company’s sole discretion and without limitation, refuse, restrict access to or availability of, or disable (to the extent technologically feasible) any user’s Contribution or any portion thereof that may violate this Agreement or any policy of The CarbonNeutral Company; and (d) otherwise manage the Website in a manner designed to protect the rights and property of The CarbonNeutral Company and others and to facilitate the proper functioning of the Website.
8.2 The CarbonNeutral Company’s Right to Terminate Users. WITHOUT LIMITING ANY OTHER PROVISION OF THIS AGREEMENT, THE CARBONNEUTRAL COMPANY RESERVES THE RIGHT TO, IN THE CARBONNEUTRAL COMPANY’S SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY DENY ACCESS TO AND USE OF THE WEBSITE AND THE CARBONNEUTRAL COMPANY ONLINE SERVICES TO, ANY USER, PERSON, OR ENTITY FOR ANY REASON OR FOR NO REASON AT ALL, INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY REPRESENTATION, WARRANTY OR COVENANT CONTAINED IN THIS AGREEMENT, OR OF ANY APPLICABLE LAW OR REGULATION.
This Agreement shall remain in full force and effect while you use the The CarbonNeutral Company Online Services. You may terminate your use or participation at any time by ceasing to use the The CarbonNeutral Company Online Services. The CarbonNeutral Company may terminate your use or participation at any time, without warning. Even after your use and participation is terminated, this Agreement will remain in effect, including Sections 1, 2, 3, 4, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15, 16, and 17.
10. Non-Commercial Use by Users.
The CarbonNeutral Company Online Services are for the personal use of users only and may not be used in connection with any commercial endeavors except those that are specifically endorsed or approved by The CarbonNeutral Company. You shall not do the following without the express written consent of The CarbonNeutral Company in each instance: (a) make any unauthorized use of the The CarbonNeutral Company Online Services, including without limitation collecting usernames and/or email addresses of users by electronic or other means for the purpose of sending unsolicited email; and (b) engage in unauthorized framing or linking to the Website.
The CarbonNeutral Company may modify this Agreement from time to time. The CarbonNeutral Company will also post any revised versions of this Agreement on the Website along with a redline showing changes to this Agreement. If you have provided The CarbonNeutral Company with an email address, The CarbonNeutral Company will email you any revised versions of this Agreement along with a redline showing changes to this Agreement. You agree to be bound to any changes to this Agreement when you use the The CarbonNeutral Company Online Services after any such modification is posted. It is therefore important that you regularly review this Agreement and keep your contact information current to ensure you are informed of any changes. If you do not agree with any changes you may terminate this Agreement with The CarbonNeutral Company and immediately cease use of this Website and the The CarbonNeutral Company Online Services.
12. Disputes Between Users.
You are solely responsible for your conduct. The CarbonNeutral Company reserves the right, but has no obligation, to monitor disputes between you and other users.
13. Disputes with The CarbonNeutral Company.
13.1 Mutual Binding Arbitration. SUBJECT AT ALL TIMES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT (INCLUDING WITHOUT LIMITATION, SECTION 13.2 HEREUNDER), ALL DISPUTES ARISING OUT OF OR RELATING TO THIS AGREEMENT (INCLUDING ITS FORMATION, PERFORMANCE, OR ALLEGED BREACH) AND/OR YOUR CONTRIBUTIONS AND YOUR USE OF THE WEBSITE, MATERIALS AND/OR THE CARBONNEUTRAL COMPANY ONLINE SERVICES IS SUBJECT TO CONFIDENTIAL BINDING ARBITRATION HELD IN LONDON, ENGLAND BEFORE AND IN ACCORDANCE WITH THE THEN CURRENT RULES AND PROCEDURES OF THE INTERNATIONAL COURT OF ARBITRATION OF THE INTERNATIONAL CHAMBER OF COMMERCE.
A PARTY THAT WISHES TO INITIATE ARBITRATION (“INITIATING PARTY”) AS A PRECONDITION TO INITIATING ARBITRATION MUST OFFER TO SCHEDULE A MEETING BETWEEN REPRESENTATIVES OF ALL PARTIES INVOLVED IN THE DISPUTE. THE PARTIES THEREAFTER SHALL MEET WITHIN 10 BUSINESS DAYS. IF THE RECEIVING PARTY REFUSES TO PARTICIPATE IN SUCH A MEETING WITHIN THE 10-DAY PERIOD OR OTHERWISE FAILS TO RESPOND TO SUCH A REQUEST, THE INITIATING PARTY WILL BE DEEMED TO HAVE MET ITS OBLIGATION TO SCHEDULE AND ATTEND SUCH A MEETING AND SHALL BE FREE TO INITIATE ARBITRATION.
NO ARBITRATION WILL BE JOINED TO AN ARBITRATION INVOLVING ANY OTHER PARTY SUBJECT TO THIS AGREEMENT, WHETHER THROUGH CLASS ARBITRATION PROCEEDINGS OR OTHERWISE. THE PARTIES ALSO MAY SEEK AN ORDER OR JUDGMENT BY A COURT OF COMPETENT JURISDICTION COMPELLING ARBITRATION OR CONFIRMING ANY ARBITRATION AWARD SECURED UNDER THIS SECTION 13.1.
THE LAWS OF CERTAIN JURISDICTIONS PROHIBIT BINDING ARBITRATION AND THE EXCLUSION OF THE RIGHT TO CLASS PROCEEDINGS, THEREFORE THIS SECTION 13.1 MAY NOT APPLY TO YOU.
13.2 Injunctive Relief and Confirmation Proceedings. Notwithstanding anything to the contrary contained herein, The CarbonNeutral Company will have the right to seek injunctive relief to enforce this Agreement or to stop or prevent an infringement of proprietary or other third-party rights in any court of the United Kingdom, the United States, or any other court having jurisdiction over the parties and the matter, in addition to any other remedy which The CarbonNeutral Company may be entitled, at law, in equity or otherwise.
13.3 Jurisdiction and Venue. The parties hereby irrevocably consent and submit to the personal jurisdiction and venue of the courts located in London, England and New York, New York, USA.
13.4 Applicable Law. EXCEPT TO THE EXTENT APPLICABLE LAW, IF ANY, PROVIDES OTHERWISE, THIS AGREEMENT AND ANY ACCESS TO OR USE OF THE CARBONNEUTRAL COMPANY ONLINE SERVICES AND/OR WEBSITE, INCLUDING WITHOUT LIMITATION YOUR OR OTHERS' USE OF CONTENT AVAILABLE BY MEANS OF THE WEBSITE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE DOMESTIC LAWS OF ENGLAND, EXCLUDING ITS CONFLICT OF LAWS PROVISIONS.
BY OPERATING THE WEBSITE, THE CARBONNEUTRAL COMPANY DOES NOT REPRESENT OR IMPLY THAT THE CARBONNEUTRAL COMPANY ENDORSES ANY CONTENT AVAILABLE ON THE WEBSITE, OR THAT THE CARBONNEUTRAL COMPANY BELIEVES SUCH CONTENT TO BE ACCURATE, USEFUL OR NON-HARMFUL.
YOU AGREE THAT YOUR USE OF THE WEBSITE AND THE CARBONNEUTRAL COMPANY ONLINE SERVICES WILL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, THE CARBONNEUTRAL COMPANY, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND LICENSORS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE WEBSITE AND THE CARBONNEUTRAL COMPANY ONLINE SERVICES AND YOUR USE THEREOF. THE CARBONNEUTRAL COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE WEBSITE’S CONTENT OR THE CONTENT OF ANY WEBSITES LINKED TO THIS WEBSITE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (A) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND MATERIALS, (B) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE WEBSITE, (C) ANY UNAUTHORIZED ACCESS TO OR USE OF THE CARBONNEUTRAL COMPANY’S SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN, (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE WEBSITE, (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE WEBSITE BY ANY THIRD PARTY, AND/OR (F) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE WEBSITE.
THE CARBONNEUTRAL COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE WEBSITE OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND THE CARBONNEUTRAL COMPANY WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
THE LAWS OF CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
15. Limitation on Liability.
IN NO EVENT SHALL THE CARBONNEUTRAL COMPANY BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT DAMAGES ARISING FROM YOUR USE OF, OR INABILITY TO USE, THE WEBSITE, THE MATERIALS, THE CARBONNEUTRAL COMPANY ONLINE SERVICES, AND/OR YOUR CONTRIBUTIONS TO THE WEBSITE. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE CARBONNEUTRAL COMPANY'S LIABILITY TO YOU IN RESPECT OF ANY LOSS OR DAMAGE SUFFERED BY YOU AND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR FOR BREACH OF STATUTORY DUTY OR IN ANY OTHER WAY SHALL NOT EXCEED SEVENTY FIVE POUNDS STERLING (£75).
You agree to indemnify, defend, and hold The CarbonNeutral Company, its subsidiaries, affiliates, and licensors and their respective officers, agents, partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your use of the Website, your Contributions and/or The CarbonNeutral Company Online Services in violation of this Agreement and/or arising from a breach of this Agreement and/or any breach of your representations and warranties set forth above and/or if any Contribution you make through the Website or through The CarbonNeutral Company Online Services causes The CarbonNeutral Company to be liable to another.
This Agreement constitutes the entire agreement between you and The CarbonNeutral Company regarding the use of the Website and The CarbonNeutral Company Online Services. The failure of The CarbonNeutral Company to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. You may not assign your rights under this Agreement to any third party; The CarbonNeutral Company may assign its rights under this Agreement without condition. This Agreement operates to the fullest extent permissible by law. If any provision or part of a provision of this Agreement is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions. This Agreement is effective as of and was last updated on 21st May, 2012.