General Terms and Conditions

CarbonCloud’s tool for climate footprint calculations (the “Calculation Tool“) is made available to Client on a software as a service (SaaS) basis through a web portal on CarbonCloud’s website and includes the non-downloadable software that Client may access via the website and any other products, software, services and features made available or provided to Client by CarbonCloud (jointly the “Service”). You acknowledge that you, on behalf of your employer or another legal entity (collectively, “you” or “your”), have read and understood and agree to comply with these General Terms and Conditions (together with an Order Form the “Agreement”), and are entering into a binding legal agreement with CarbonCloud AB, a Swedish corporation with registered number 559091-0716 (“CarbonCloud”). The access and use of the Service is subject to this Agreement and if you are entering into this Agreement on behalf of your employer or another legal entity, you represent and warrant that you have full authority to bind said employer or other legal entity to the Agreement.

CarbonCloud and Client are each referred to as a “Party” and jointly as the “Parties”.

Definitions
As used in this Agreement, the following terms shall have the meaning specified below:

“Agreement” means the applicable Order Form and these General Terms and Conditions;
“Affiliate” means with respect to a Party, any entity which directly or indirectly controls, is controlled by or is under common control with such Party (where “control”, “controlled by” or “under common control” means the direct or indirect possession of more than fifty (50) per cent of the votes of holders of a corporation’s voting securities, or a comparable equity or other ownership interest in any other type of entity
“Applicable Law” means any local, state, national and/or foreign law, treaties, and/or regulations applicable to the respective Party;
“Calculation” means a climate footprint calculation available via the Calculation Tool (including the result of the calculation);
“Calculation Tool” means CarbonCloud’s proprietary tool for climate footprint calculations made available on a software as a service (SaaS) basis;
“CarbonCloud” means CarbonCloud AB;
“Client” means the legal entity entering into this Agreement;
“Climate Label” means the climate label designed by CarbonCloud available in the Calculation Tool;
“Data” means Primary Data and Secondary Data collectively as applicable;
“Feedback” means suggestions, ideas, improvements or other feedback with respect to the Service provided by Client to CarbonCloud;
“General Terms and Conditions” means these general terms and conditions for the Service;
“Initial Subscription Period” means a subscription period of twelve (12) months from the date CarbonCloud confirms an Order and provides Client access to the Service;
“Interface” means the user interface of the Calculation Tool made available online via CarbonCloud’s from time to time applicable web portal;
“License” shall have the meaning as prescribed to it under Section 5.1.3;
“License Fee” shall have the meaning as prescribed to it under Section 8.1;
“Order” means an order for a subscription to access and use the Service submitted by Client to CarbonCloud online via the Calculation Tool, CarbonCloud’s website, an Order Form or any other way from time to time made available by CarbonCloud;
“Order Form” means an order form containing the details of an Order and any special terms and conditions as agreed between the Parties, online via the Calculation Tool, CarbonCloud’s website or any other way applicable from time to time;
“Primary Data” means data provided by Client regarding the Client’s internal processes as requested by the Interface;
“Product” means a food product made up of one specific recipe (a combination of different ingredients) or one single specific ingredient;
“Renewal Term” shall have the meaning prescribed in Section 15.1;
“Report” means an automatically generated web report containing the results of the Calculations from the Calculation Tool as well as other information provided by CarbonCloud for Products under this Agreement;
“SCC” means the Stockholm Chamber of Commerce;
“Secondary Data” means data regarding the processes of the Client’s suppliers;
“Service” means collectively the Calculation Tool, the Interface and ancillary products, software, services and features provided or made available by CarbonCloud in connection with the Subscription and as set out in this Agreement from time to time; and
“Subscription” means a subscription for a license to access and use the Service in relation to applicable Products to which the provisions of this Agreement shall apply.
Order procedure
CarbonCloud provides the Service, and the rights granted herein applies, for one or several Products as specified in an Order Form for the Service submitted by Client to CarbonCloud (each an “Order“). The Client may submit additional Orders and extend a previously granted license for additional Products. Each such Order shall be submitted online via the Calculation Tool, CarbonCloud’s website or via separate Order Forms. In the event of any conflict between this Agreement and an Order Form, the provisions of the Order Form shall prevail.
Client account
1. To access and use the Service, Client may be required to create an account. Client hereby acknowledges and agrees to: (i) provide accurate and complete account information, as requested by CarbonCloud; (ii) keep, and ensure that, all login details and passwords are secured at all times; (iii) remain solely responsible and liable for the activity arising out of any failure to keep account details confidential; and (iv) to promptly notify CarbonCloud in writing if Client becomes aware of any unauthorized access or use of Client’s account or the Service.
2. The Client has the possibility to create several accounts to access and use the Service. Each account shall be personal and only be used by an individual user as designated by the Client. Client undertakes to ensure that account login details and passwords are not shared between the designated users.
Description of the service
1. The Calculation Tool is a climate footprint (“CF”) calculator for food products and food processes that offers a high level of precision for CF calculations, combined with a consistency between calculations that allow for fair comparisons between products. The Calculation Tool also allows for time-efficient CF- calculations that makes it possible for food producers to label their products with CF data. All CF calculations available via the Calculation Tool (including the result of the calculations) are hereinafter referred to as the (“Calculations”).
2. On the terms and conditions of this Agreement CarbonCloud will provide Client with a subscription based license to access and use the Service where the Client input Data in order to perform Calculations for specific Products. Client is hereunder granted the right to label its Products with the results of the Calculations for the purpose of presenting the CF of its Products to its customers. CarbonCloud also provides ancillary products, software, services and features in connection with the Calculation Tool as set out in this Agreement.
License grant and restrictions
1. License
  1. A Product shall for the purposes of this Agreement mean a product made up of one specific recipe (a combination of different ingredients) or one single specific ingredient. For the avoidance of doubt, the same recipes or ingredients may result in different Products depending on production methods, suppliers and markets.
  2. The Products encompassed by the license shall be specified in an Order where the Client shall list the number of Products, the name of the Products, as well as any other information which CarbonCloud may from time to time require for the submission of an Order. Client may request that the license granted under this Agreement shall be extended to new Products by submitting a new Order to CarbonCloud. All such Orders and any applicable Order Form shall be approved by CarbonCloud in its sole discretion and shall be subject to the provisions of this Agreement.
  3. Subject to Client’s compliance with this Agreement, CarbonCloud hereby grants Client a non-exclusive, non-sublicensable, non-transferable license to access and use the Service for Client’s internal business purposes to input Data for the Products encompassed by the license and as specified in an applicable Order, perform Calculations and model production processes as well as use the results from the Calculations and the CF output for CF labelling for such Products (the “License“).
2. Restrictions
  1. Unless explicitly stated otherwise in this Agreement, Client may not, and shall not allow any third party to: (i) license, sublicense, resell, rent, lease, transfer, assign, distribute, show, or otherwise commercially exploit or make the Service available to any third party; (ii) circumvent, disable or otherwise interfere with security-related features of the Service or features that prevent or restrict use or copying of any content or that enforce limitations on use of the Service; (iii) reverse engineer, decompile or disassemble, decrypt or, attempt to derive the source code of the Service, or any components thereof; (iv) copy, modify, translate, patch, improve, alter, change or create any derivative works of the Service, or any part thereof; (v) send to, or store in, the Service any infringing, inappropriate, unlawful material or content or any malicious code; (vi) take any action that imposes or may impose an unreasonable or disproportionately large load on the Service support infrastructure (vii) interfere or attempt to interfere with the integrity or proper working of the Service or any related activities; (viii) remove, deface, obscure, or alter CarbonCloud’s identification, attribution or copyright notices, trademarks, or other proprietary rights affixed to the Calculation Tool or provided as part of the Service; (ix) use the Service to develop a competing service or product and/or; (x) use the Service in any unlawful manner, for any harmful or inappropriate purpose, or in breach of this Agreement, any applicable third party terms and conditions.
  2. If CarbonCloud believes, in its sole discretion, that the Client is using the Service in a manner that may cause harm to CarbonCloud or any third party, or in breach of this Agreement, CarbonCloud will provide Client with notice of such harmful or breaching use, and to the extent Client does not remedy such breach or ceases such harmful use within seven (7) days from such notice, CarbonCloud may, without derogating from the right to terminate this Agreement, suspend or terminate Client’s access to and use of the Service, or parts thereof.
Climate footprint calculations and data
1. The process for Calculations for specific Products is comprised of the following steps (as amended by CarbonCloud in its sole discretion from time to time:
  1. The Client shall perform an initial mapping of the Client’s production process for the Products encompassed by the License. To the extent required, and upon Client’s reasonable request, CarbonCloud may assist the Client with this mapping.
  2. Client is responsible for the input of Data for each Product as specified and requested by the Interface. The Client shall also at this stage add additional information regarding the applicable production processes, to facilitate the review process.
  3. Upon complete input of Data as requested by the Interface, CarbonCloud shall undertake commercially reasonable efforts to review the Calculations provided by the Calculation Tool within thirty (30) business days from the date CarbonCloud receives notice by the Client that the Calculations for a specific Product are ready for review. Client acknowledges that CarbonCloud’s review may exceed thirty (30) business days in the event the Data input by Client is incomplete, there are discrepancies in the Data or CarbonCloud otherwise requires supplementary Data or clarifications to perform the review.
  4. A Calculation requested by Client may be dependent on other Calculations and Client hereby acknowledges that CarbonCloud may be unable to perform a certain Calculation (in such time as stipulated under Section 6.1.3 or at all) if such underlying Calculations have not already been reviewed and approved by CarbonCloud and agrees that CarbonCloud shall not be held liable for such delay or inability.
  5. Once the Calculations have been reviewed by CarbonCloud in accordance with Section 6.1.3 and approved (in CarbonCloud’s sole discretion and based on CarbonCloud’s from time to time applicable approval criteria), CarbonCloud will provide Client with an automatically generated web report for each Product (“Report”) for use for its external communication purposes.
2. Client shall have the right to use the Report for its internal purposes before making the Report publicly available and shall always have the right to share, disclose or communicate a Report and its content with its Affiliates before publication. However, Client shall not share, or otherwise disclose or communicate a Report, or any part thereof with any third party without making the Report publicly available on the Internet. Client may, in its own discretion, make the Report publicly available via the Service and CarbonCloud shall, upon Client’s request assist with such publication. Upon such request by Client, CarbonCloud will undertake commercially reasonable efforts to assist the Client in making the Report publicly available on the Internet as soon as possible. For the avoidance of doubt, CarbonCloud shall keep the Report confidential and not make the Report publicly available without Client’s consent. In the event Client breaches its obligations under this Section 6.2 and communicates a Report, or part thereof, to a third party without making a Report publicly available, CarbonCloud shall have the right to make a Report publicly available.
3. The Calculations are based on both primary data for the Client’s internal processes as requested by the Interface (“Primary Data”) and secondary data for the processes of the Client’s suppliers (“Secondary Data”).
4. The Client shall provide Primary Data to the Interface as requested. In the event CarbonCloud does not have access to Secondary Data, as a whole or in part, necessary to perform the Calculations, Client shall upon notice by CarbonCloud undertake commercially reasonable efforts to make available, or obtain such Secondary Data to the extent such data can be obtained by Client without cost. If Secondary Data cannot be obtained by Client or CarbonCloud, Client hereby acknowledges and agrees that CarbonCloud may use freely available approximate, generic but representative data to perform the Calculations and that this may affect the results of the Calculations. CarbonCloud shall under no circumstances have any liability to Client or to any third party as a result of CarbonCloud’s inability to obtain or access Secondary Data or approximate, generic and representative data.
5. The Client hereby warrants and represents that all Data and any information regarding underlying processes provided by Client under this Agreement, to the best of its knowledge, is correct and complete. Client is solely responsible for keeping and maintaining its own copies of its Data. CarbonCloud shall use commercially reasonable efforts to maintain the security and integrity of Data provided by Client under this Agreement but shall under no circumstance be liable for any loss of Data.
6. CarbonCloud shall undertake commercially reasonable efforts to ensure that the Calculations are correctly performed. Client acknowledges that the outcome of the Calculations is dependent on that the Data provided by Client is correct and complete and that the Client has provided correct information about the underlying processes. CarbonCloud does not take any responsibility for Client’s input of Data and other information to the Calculations and the variations in the outcome thereof.
7. Since the Data may change over time, Calculations may have to be updated to take into account the variable underlying Data. It is the Client’s sole responsibility to perform new Calculations by updating Data provided via the Interface as necessary. After each new or updated Calculation, Client undertakes to send the calculation for review so that CarbonCloud may review the Calculations. Under no circumstances shall CarbonCloud be liable for the outcome of Calculations to the extent such Calculations are performed on non-up to date Data provided by Client.
Climate footprint labelling
1. The Client shall have the right to label Products encompassed by the License with the CF of the respective Product as well as the climate label designed by CarbonCloud (the “Climate Label”). The Climate Label includes both the name CarbonCloud, and CarbonCloud’s logotype. The aforementioned shall also apply for any marketing material applicable to Products encompassed by the License. Client shall include CarbonCloud’s name in all external communication of the CF and in the event of communication by electronic and/or digital means Client shall include a link to the Report for a specific Product. For the avoidance of doubt, Client shall have the right to use the design of the CF as provided by CarbonCloud from time to time when labelling its Products and applicable marketing material. If Client wishes to use a design of the CF not provided by CarbonCloud, CarbonCloud may, subject to separate agreement between the Parties assist Client in creating such a design.
2. The labelling may be made on the packaging for the respective Product and any marketing material, as applicable. The name of CarbonCloud shall be included and clearly indicated as the originator of the CF. The placement of the label must be such that Client’s customers are not misled. The Client hereby acknowledges and agrees to adhere to any reasonable requests, directions and instructions communicated from time to time by CarbonCloud regarding the use of the Climate Label. The Climate Label for the respective Product is available for download in the Calculation Tool after the review under Section 6.1.3 in this Agreement is completed. CarbonCloud reserves the right to in its sole discretion change or alter the design of the Climate Label provided which will be notified to the Client.
3. The Client shall not label its Product, packaging or marketing material with any misleading information as regards the CF and shall not label any Product, packaging or marketing material for which the Client does not have an active License with any CF output. The right to label a Product and marketing material with the CF shall only apply during the period Client has an active License for the relevant Product.
4. If any changes will be, or are, made in the Data for a Product encompassed by the License and Client has reason to believe that such Data in Client’s reasonable opinion may affect the Calculations to a not insignificant extent, the Client hereby undertakes to immediately, but under no circumstances later than twenty (20) business days after such change has been carried out, inform CarbonCloud and update the Data in the Interface. Upon such notice, CarbonCloud shall perform a new review in accordance with Section 6.1.3. The Client must not label any Product, packaging or marketing material with the old CF after changes in the Data has been made, and must wait until the Calculation for the Product with the new Data has been performed and reviewed and approved by CarbonCloud in order to label Products, packaging and marketing material with the new CF. Products, packages or marketing material which have been labeled before the changes took place but which have not yet been sold may continue to be sold with the old CF provided that the CF is correct and not misleading. Under no circumstances shall CarbonCloud be liable in any way in relation to Products, packaging and marketing material labeled with the old CF.
5. Client hereby acknowledges that Data for a Product may be updated on an on-going basis, including but not limited to as a result of updated or new Calculations by the Client’s suppliers, and that this may result in automatic updates to a Report. The information in a Report may therefore differ from the Climate Label on a Product. This process ensures that the Calculations are kept updated and correct and CarbonCloud shall have no liability for any discrepancies between the CF labelled on a Product and a Report.
Fees and payment
1. In consideration for the License and the use of the Service provided by CarbonCloud under this Agreement, Client shall pay CarbonCloud a subscription and/or license fee per Product and month along with any additional fees agreed between the Parties in the applicable Order Form or otherwise (the “License Fee”). The costs for CarbonCloud’s assistance with the initial mapping in accordance with Section 6.1.1 and the costs for CarbonCloud’s review of the Calculations in accordance with Section 6.1.3 are included in the License Fee.
2. All fees are non-refundable and exclusive of any taxes, levies, or duties, which are Client’s responsibility. To the extent Client is required by applicable rules or regulations to deduct or withhold taxes or other amounts from any amounts due to CarbonCloud, Client must notify CarbonCloud in writing. CarbonCloud hereby reserves the right to assess any withheld amount or to increase the gross amount of the applicable payment so that, after the deduction or withholding, the net amount received by CarbonCloud will not be less than the amount CarbonCloud would have received without the required deduction or withholding.
3. Client may pay the License Fee by invoice. The License Fee for the first twelve (12) months of a Subscription (“Initial Subscription Period”) will be charged on a quarterly, twice yearly or annual basis. The License Fee will be charged immediately in connection with the confirmation of an Order. Thereafter, Client will be invoiced the License Fee in advance for the period. Client payments may be processed through a third party payment processing service, and additional terms may apply to such payments. CarbonCloud hereby reserves the right to use such third party payment processing services in its sole discretion and Client hereby acknowledges and agrees that, in addition to this Agreement, such third parties’ terms and conditions may apply to its payment.
4. In case of overdue payment, Client shall pay CarbonCloud interest at the rate of 10 (ten) percent per year counted from the due date until it has been paid. Client shall also compensate CarbonCloud for any actual fees in connection with debt collection.
5. CarbonCloud reserves the right to modify the License Fee in its discretion, at any time after the Initial Subscription Period, upon at least one (1) months prior notice to Client, provided that any such modification will not take effect until the start of a Renewal Term immediately following the term in which CarbonCloud notified Client of the modification. Notwithstanding the aforementioned, if CarbonCloud notifies Client of a price modification one (1) month or less before the start of a Renewal Term, Client may provide CarbonCloud with a notice of non-renewal at any time prior to the start of such Renewal Term if Customer does not agree to the price modification.
6. If payment is overdue in accordance with this Section 8, CarbonCloud shall have the right to (in addition and without prejudice to any other remedies CarbonCloud may have under this Agreement or Applicable Laws or regulations) suspend and/or discontinue Client’s access to the Service with immediate effect upon notification to Client.
Intellectual property rights
1. Unless otherwise explicitly stated in this Agreement, neither Party is granted any right, title or interest in and to, and/or the right to use the other Party’s intellectual property rights for any purposes whatsoever without the prior written consent of the other Party and no acts or omissions by the Parties shall be construed as a transfer or granting of any right, title or interest in and to such intellectual property rights.
2. CarbonCloud does not make any ownership claims to Data provided by Client. The ownership of such Data is held by Client or applicable third parties.
3. The ownership to the Service (including the Calculation Tool, Interface, all content, information, features and material contained or displayed therein) and any intellectual property rights connected thereto (including, but not limited to, inventions, designs, copyright and neighboring rights) as well as the resulting Calculations belong to CarbonCloud. Any rights not explicitly granted to Client under this Agreement, are reserved to and shall remain solely and exclusively proprietary to CarbonCloud (or applicable third-party providers).
4. Client hereby grants CarbonCloud an irrevocable, non-exclusive, non-transferable, royalty-free right to use the Data and any other information uploaded to the Interface as necessary to provide and improve the Service, perform Calculations and to improve the calculation method. The right granted to CarbonCloud to use Data and other information for the purpose of improving the Service and the calculation method shall survive any termination or expiration of this Agreement without limitation in time.
5. In the event that Client provides CarbonCloud with any suggestions, ideas, improvements or other feedback with respect to the Service (“Feedback”), Client hereby grants CarbonCloud a non-exclusive, perpetual, irrevocable, sublicensable, transferable, royalty-free, fully paid-up worldwide right and license to copy, reproduce, modify, create derivatives of, display, perform, sell, offer for sale, distribute and otherwise exploit such Feedback for any purpose, including without limitation, using and incorporating such Feedback into the Service.
6. Each Party shall have the right to use the name and logotype of the other Party under this Agreement. With regard to CarbonCloud, this includes mentioning the Client’s name as a partner or customer on CarbonCloud’s website or in other marketing material. Any such use shall be in accordance with any trademark guidelines and instructions from the Party owning the name and logotype.
Confidentiality
1. Each Party agrees to treat as trade secrets, hold in confidence and not disclose the Agreement or the content thereof and any and all technical or commercial information, including but not limited to the Service, Client’s account, Data, Calculations, results of Calculations, information connected to how the Calculations are made and any other non-public information in any form that the other Party designates as confidential or should be reasonably known by the receiving Party to be confidential due to the nature of the information disclosed and/or the circumstances surrounding the disclosure, received from the other Party in connection with this Agreement, whether marked as “confidential” or not (“Confidential Information”). This Agreement and any Order Form (but not the existence of the contractual relationship between the Parties) shall also be considered Confidential Information. Each Party agrees not to disclose Confidential Information to third parties, unless such disclosure is required by Applicable Law, and to use Confidential Information only for the purposes of fulfilling its obligations under this Agreement.
2. Confidential Information shall not be deemed to include information that:
  1. is or becomes public knowledge without breach of the provisions of this Agreement;
  2. is already known to the Party to which it is disclosed without breach of the provisions of this Agreement, such knowledge being documented prior to the date of disclosure;
  3. is lawfully received from a third party which has no obligation to keep the information confidential; or
  4. is independently developed by one Party without reference to Confidential Information provided by the other Party.
  5. The obligations of this Section 10 shall survive the termination or expiration of this Agreement and remain in effect for a time period of five (5) years from the date of termination or expiration.
Force majeure
Neither Party shall be liable for failure to perform, or delay in performing, an obligation under this Agreement (except for Client’s obligation to pay the License Fee) in case the performance thereof is prevented or delayed by any cause beyond the affected Party’s reasonable control which shall include industrial disputes, riots, wars, terrorist acts, epidemics, embargo, fire, explosion, lock-out, natural disasters, extreme weather conditions and similar. The affected Party shall immediately inform the other Party thereof. If such causes prevent a Party from substantially performing its obligations hereunder for a period of sixty (60) days or more, either Party may terminate this Agreement or the affected portion of the Service with immediate effect upon written notice.
Limitation of liability
1. The Client is solely responsible, and CarbonCloud shall not be liable, for any conclusions or actions based on the results from the Calculations.
2. To the extent legally permitted, in no event will CarbonCloud be liable to Client or to any third party for any special, indirect, punitive, incidental, compensatory or consequential damages (including, without limitation, any damages or costs due to loss of profits, data, use, goodwill, personal or property damage, or the cost of procuring substitute products or services) resulting from or in connection with the Agreement or Client’s use of the Service, regardless of the cause of action or the theory of liability, whether in tort, contract, strict liability or otherwise, and even if CarbonCloud has been notified of the possibility of such damages.
3. Except with respect to CarbonCloud’s indemnification obligation under Section 14.2, CarbonCloud’s total maximum liability under this Agreement shall be limited to the compensation actually paid by Client to CarbonCloud during a time period of twelve (12) months immediately preceding the date on which the claim was made, regardless of the theory or basis of liability (such as, but not limited to, breach of contract or tort).
4. Client hereby acknowledges that the pricing of the Service is set to fairly and reasonably reflect CarbonCloud’s liability under this Agreement and if Client objects to any provision of this Agreement, or any subsequent modification hereto, or otherwise becomes dissatisfied with the Service, Client’s only recourse is to discontinue the use of the Service and terminate its Subscription in accordance with the provisions herein.
Warranties
THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. THE CLIENT ASSUMES ALL RESPONSIBILITY FOR ACCESSING AND USING THE SERVICE AND FOR ITS USE OF THE SERVICE TO ACHIEVE CLIENT’S INTENDED RESULTS. CARBONCLOUD HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY AND NON-INFRINGEMENT. CARBONCLOUD DOES NOT WARRANT THAT THE SERVICE IS ERROR-FREE OR THAT CLIENT WILL BE ABLE TO ACCESS OR USE THE SERVICE WITHOUT PROBLEMS OR INTERRUPTIONS. CLIENT HEREBY ACKNOWLEDGES THAT THE PRICING OF THE SERVICE IS SET TO FAIRLY AND REASONABLY REFLECT THIS LIMITED WARRANTY UNDERTAKING.
Indemnification
1. Client shall defend, indemnify and hold harmless CarbonCloud from and against any and all third party claims asserted against CarbonCloud (and all resulting, to the extent payable to unaffiliated third parties, damages, losses, liabilities, penalties, costs and expenses, including reasonable attorneys’ fees and costs) arising out of Client’s use of the Service and/or Client’s violation of this Agreement.
2. CarbonCloud shall defend, indemnify and hold harmless Client from and against any and all third party claims asserted against Client (and all resulting, to the extent payable to unaffiliated third parties, damages, losses, liabilities, penalties, costs and expenses, including reasonable attorneys’ fees and costs) arising out of the alleged infringement or misappropriation of a copyright, trade secret, trademark, patent or other third party intellectual property right by the Service when used as permitted under this Agreement. For the avoidance of doubt, the indemnity undertaking in this Section 14.2 shall not apply to claims arising out of the alleged infringement of a third party intellectual property right arising out of Client’s use of the Climate Label and/or CarbonCloud’s name, brand or logo on a Product put on the market by Client.
3. The indemnifying Party’s indemnification obligation is subject to the indemnifying Party receiving (i) prompt written notice from the indemnified party of such claim (but in any event, notice in sufficient time for the indemnifying party to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all reasonable necessary cooperation of the indemnified party at the indemnifying Party’s expense.
4. If the Service becomes, or in CarbonCloud’s reasonable opinion is likely to become, the subject of a third party infringement or misappropriation claim as set out in Section 14.2 above, CarbonCloud may, at its sole discretion: (a) procure for Client the right to continue using the Service; (b) replace or modify the Service to the extent necessary to avoid such a claim; or (c) if (a) and (b) cannot be accomplished with reasonable efforts, CarbonCloud may terminate Client’s Subscription and provide a pro-rata refund for any amount pre-paid by Client for the remaining unused period of the Subscription. Notwithstanding the aforementioned, CarbonCloud shall have no liability for third party claims arising out of: (i) modifications or alterations to the Service made by a party other than CarbonCloud; (ii) continued allegedly infringing activity after being informed of a modification that would avoid the alleged infringement; or (iii) use of the Service other than in accordance with this Agreement.
Term and termination
1. This Agreement shall remain in force until terminated by either Party in accordance with this Section 15. Each Order will be subject to an Initial Subscription Period of twelve (12) months from the date CarbonCloud confirms an Order and provides Client access to the Service unless agreed otherwise between the Parties. Unless terminated in writing by either Party at the latest three (3) months prior to the expiry of the Initial Subscription Period, the Client’s Subscription will be automatically renewed for consecutive periods of twelve (12) months each until terminated in writing by either Party at the latest three (3) months prior to the expiry of the then current twelve (12) month period (each a “Renewal Term”).
2. Either party may terminate a Subscription upon thirty (30) days’ written notice in the event of a material breach by the other party, unless the defaulting party cures the breach within the thirty-day notice period.
3. Either Party shall have the right to terminate a Subscription and an Order (approved or not), with immediate effect upon written notice if the other Party shall become insolvent, or enter into receivership, liquidation, provisional liquidation or a voluntary arrangement with its creditors, or if the other Party ceases or threatens to cease to carry on business or has an encumbrancer take possession of, or a receiver or administrative receiver appointed over, all or any part of its assets or any event occurs, or process commences with respect to the other Party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the aforementioned events.
4. CarbonCloud shall have the right to terminate a Subscription for one or several Products with immediate effect if CarbonCloud cannot perform a Calculation with reasonable commercial efforts and/or if neither Client nor CarbonCloud can obtain Secondary Data for the relevant Product in accordance with Section 6.3 and to the extent that the absence of such Secondary Data would, in CarbonCloud’s reasonable opinion, render the results of the Calculations meaningless and generic representative data cannot be relied on either.
5. Upon termination of a Subscription, all applicable licenses granted by CarbonCloud under this Agreement with respect to the Service shall be terminated. CarbonCloud shall not be liable to Client or any third party for termination of Client’s use of or access to the Service, or any portion thereof. Client shall immediately pay all outstanding fees due to CarbonCloud through the date of termination or expiration and each Party will promptly return to the other Party any Confidential Information of such Party. Any provision which is intended to survive shall survive the termination or expiration of this Agreement, including without limitation, Section 10 and Section 14.
6. Any up-front payments will not be refunded because of a termination of a Subscription, with the exception of termination by Client due to a material breach by CarbonCloud in accordance with this Section 15.
Disclosure and collection of information
1. CarbonCloud may collect, use and publish certain information relating to Client’s use of the Service and on an aggregated and de-identified basis disclose it, to provide, improve and publicize CarbonCloud’s products and services as well as for other business purposes.
2. CarbonCloud reserves the right to access, read, preserve, and disclose any information that CarbonCloud obtain in connection with the Service as CarbonCloud reasonably believes necessary to: (i) satisfy any Applicable Law, regulation, legal process, subpoena or governmental request, (ii) enforce this Agreement, including to investigate potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to support requests, and/or (v) protect the rights, property or safety of CarbonCloud, its users or the public.
3. Client acknowledges and agrees that CarbonCloud will use any personal information that is collected or obtained in connection with the Service in accordance with CarbonCloud’s privacy policy made available on CarbonCloud’s website.
Assignment
Client may not assign subcontract, delegate, or otherwise transfer its rights, interests and obligations under this Agreement without the prior written consent of CarbonCloud, which shall not be unreasonably withheld. Any attempted assignment, subcontract, delegation, or transfer in violation of this Section 17 will be null and void. Notwithstanding the aforementioned, Client may upon written notice to CarbonCloud, assign the Agreement in its entirety without the requirement to obtain consent, to an Affiliate or in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets.
Severability
The invalidity or unenforceability of any provision in this Agreement shall not affect the validity or enforceability of this Agreement or of any other provision hereof. The provision held to be invalid and/or unenforceable shall only be ineffective to the extent of such unenforceability or invalidity.
Miscellaneous
1. This Agreement supersedes and replaces any and all prior agreements or representations whether or not in writing, between the Parties with respect to the subject matter of this Agreement, and shall apply to the exclusion of any other terms and conditions.
2. CarbonCloud reserves the right, at its discretion, to discontinue or modify any aspect of the Service and to change the terms and conditions of this Agreement at any time. Changes to the Agreement will be effective thirty (30) days following notice thereof to Client or posting of the amended Agreement on CarbonCloud’s website. Client’s continued use of the Service thereafter constitutes an acceptance of such changes.
3. Client is responsible for updating its information in the Calculation Tool, including providing CarbonCloud with an up-to-date e-mail address for the provision of notices under the Agreement. In the event that the e-mail address provided to CarbonCloud by Client is not valid, or for any reason is not capable of delivering any notice required by the Agreement, Client acknowledges and agrees that CarbonCloud’s dispatch of an e-mail to such address will nonetheless constitute effective notice.
Governing law and dispute resolution
1. This Agreement shall be governed and construed in accordance with the laws of Sweden, without regard to its conflict of law principles.
2. Any dispute, controversy or claim arising out of or in connection with this Agreement, or the breach, termination or invalidity thereof, shall be finally settled by arbitration administered by the Arbitration Institute of the Stockholm Chamber of Commerce (the “SCC”).
3. The Rules for Expedited Arbitrations shall apply, unless the SCC in its discretion determines, taking into account the complexity of the case, the amount in dispute and other circumstances, that the Arbitration Rules shall apply. In the latter case, the SCC shall also decide whether the Arbitral Tribunal shall be composed of one or three arbitrators.
4. The seat of arbitration shall be Göteborg, Sweden. The language to be used in the arbitral proceedings shall be English.