1. GENERAL These General Terms govern and apply to the entire contractual relationship between the Customer and Sumday and are incorporated in the Agreement between the Customer and Sumday. 2. DEFINITIONS In these General Terms, except where the context otherwise requires, the following words and expressions have the following meanings:
Agreement means the agreement between the Customer and Sumday 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; Customer means the person who has contracted with Sumday to receive Sumday Software under the Agreement; Climate Disclosure Data means information on greenhouse emission data, as well as company information provided by the Customer to Sumday in relation to the Sumday Software. This information includes company name, country, website, company identifier number, main sector, number of employees, financial data, 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 Customer consents to these General Terms by subscribing to the Sumday Software in any form of acceptance. General Terms means these general terms and conditions that govern the provision of the Sumday Software by Sumday to the Customer and are incorporated into the Agreement between the Customer and Sumday and located at www.sumday.io; Sumday means the entity Local Carbon Pty Ltd ACN 650 359 489 trading as Sumday; Sumday Software means the web or mobile device based ‘Sumday Software’ software service, as updated or varied from time to time and any ancillary Sumday Software, as applicable; Subscription Fee means the fee payable by the Customer set out on the Sumday website which the Customer subscribes to and as set out in the invoice provided to the Customer by Sumday or as otherwise agreed in writing between the Customer and Sumday; Term means the date until the subscription is cancelled by the Customer; and Users means the Customer’s employees, agents or contractors, who have a need to access and use the Sumday Software on behalf of the Customer and which have been approved by Sumday. 3. TERM 3.1. Term
These General Terms have effect from the Commencement Date and continue in force during the Term. 4. SERVICES 4.1. Supply of the Services (a) Sumday agrees to supply the Sumday Software to the Customer 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 Customer is given a non-transferable, non-exclusive, non-sublicensable, limited term, world-wide right to permit Users to access and use the Sumday Software subject to the terms of the Agreement and these General Terms. (c) The Sumday Software will be made available to the Customer during the Term and only after entering the Agreement. The Customer is aware that Sumday may at any time implement new versions and upgrades of the Sumday Software.
(d) Sumday will use commercially reasonable efforts to make the Sumday Software available over the Internet 24 hours a day, 7 days a week but cannot guarantee that the Sumday Software will be uninterrupted or error free. Measures that may affect the accessibility include scheduled maintenance, which Sumday 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 Sumday’s reasonable control, including but not limited to the User’s access to the Internet. 4.2. Client’s general obligations
The Customer must:
(a) cooperate fully with Sumday 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 Sumday’s security, administrative and ethic codes, policies and regulations as notified by email, as made available within the Sumday Software 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 Sumday to perform the Sumday Software. 4.3. Use of the Services
(a) is responsible for Users’ compliance with the Agreement and the Users’ use of the Sumday Software.
(b) may only use the Sumday Software in accordance with the Agreement and any of Sumday’s user policies (as applicable and amended by Sumday from time to time);
(c) must not use, or permit the use of, the Sumday Software in any way that could damage, overburden, disable, impair or otherwise hinder or interfere with Sumday’s provision of the Sumday Software. The Customer must ensure the security of the Users’ passwords and equipment used to access the Sumday Software; and
(d) must not provide access to the Sumday Software to any third party except for a third party that is acting as a consultant providing Sumday Software to and on behalf of the Customer. 5. SUBSCRIPTION FEE 5.1. Payment of Subscription Fee and Additional Fees
(a) Unless otherwise agreed by Sumday in writing, the price to be paid by the Customer for the Subscription Sumday Software will be the Subscription Fee and any applicable taxes or charges (including any goods and Sumday Software or similar taxes) levied by any governmental authority upon the supply or use of the Subscription Sumday Software. Any carbon accounting, business analyst or other services provided by third parties through the Sumday Software will be charged separately by the provider of those services.
(b) The Subscription Fees may change during the Term and Sumday will provide the Customer not less than 30 days notice of any change to the Fees. 5.2. Time for payment of Subscription Fee and Additional Fees
(a) The Subscription Fee must be paid by the Customer to Sumday within 14 days from the date of a tax invoice from Sumday. Payment must be in a form acceptable to Sumday and without any deduction, withholding, set-off or counter claim of any nature.
(b) Sumday may offer the Customer the ability to pay the Subscription Fees in advance on a monthly basis or annually.
(c) Sumday may, in its absolute discretion, offer the Customer the ability to pay the Subscription Fees by an approved current, valid, accepted method of payment, as may be updated from time to time by Sumday, and which may include payment through the Customer’s account with a third party (Payment Method). If a payment is not successfully settled, due to expiration, insufficient funds, or otherwise:
(i) the Customer remains responsible for payment of the Subscription Fees; and (ii) Sumday may suspend the Customer’s access to the Sumday Software until payment has been received.
(d) For some Payment Methods, the issuer may charge the Customer certain fees relating to the processing of the Customer’s Payment Method. The Customer should check with its Payment Method service provider for details. 5.3. Failure to pay
If the Customer does not pay an amount to Sumday by the due date required under the Agreement or these General Terms, then Sumday is entitled to suspend performance of all or part of the Sumday Software until the outstanding amount is paid in full. 6. LIABILITY 6.1. Limitation of liability
To the extent permitted by law, the liability of Sumday under or in connection with the Agreement and these General Terms for any and all Claims are, at the election of Sumday, limited to:
(a) re-supply of all or part of the Sumday Software; 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
Sumday is not liable to the Customer for any Claim incurred or suffered by the Customer 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 Customer and Sumday, Sumday 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 Sumday in connection with the Agreement; and (ii) any modifications or enhancements to such Material, and the Customer assigns to Sumday any modifications or enhancements made by or on behalf of the Customer immediately from creation, (Sumday IP).
(b) As between the Customer and Sumday, Sumday owns all Material provided, created or developed in connection with the Agreement and the Customer and Sumday agree that no Material may be disseminated to any third party without the prior written consent of Sumday.
(c) Except as otherwise agreed in writing by Sumday, the Customer must not:
(i) create derivative works based on any Service; (ii) access, copy, frame or mirror any part or content of the Sumday Software 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 Customer’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 Sumday IP or any Intellectual Property Rights substantially similar to any Sumday IP; and (v) remove, conceal or cover any Marks used by Sumday in connection with the Sumday Software.
The Customer consents to Sumday:
(c) using non-personal, de-identified and aggregated information including Climate Disclosure Data, collected from the Customer for Sumday’s business functions and activities, including data analytics, research, submissions, thought leadership and promotional purposes and for developing processes, products and Sumday Software. Any output will be anonymised or aggregated so that no personal information or information relating specifically to the Customer is reasonably identifiable; and
(d) using the primary emissions data in aggregate for the purposes of providing an emissions factor to other Sumday customers who procure goods or services from the Customer, directly or through the Sumday Software (including to provide details of what data would be disclosed to third parties) and will not disclose such data before obtaining the Customer’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 party that is disclosing Confidential Information (Disclosing Party) and provided to, learned by, or accessed by a party that is the recipient of Confidential Information (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; (c) the identity of customers, Customers, agents and suppliers; and (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). 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 Sumday Software.
(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 Sumday that it has read and understood these General Terms; (b) warrants to Sumday that all information supplied by or behalf of it to Sumday 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 Sumday in connection with the supply of Services that has not been clearly and expressly stated in these General Terms; (d) acknowledges that Sumday 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 Sumday to the Client, and the use of Services by the Client, will not make Sumday liable to any prosecution, claim or other action under any applicable law. 10.2. Indemnity
The Client will fully indemnify Sumday 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 Sumday Portal; or (c) the Client’s communications with Sumday. 10.3. Rights reserved
Sumday reserves the right (without any liability to the Customer) to refuse to do or to omit to do any thing, or to refuse to comply with any request or direction of the Customer, which in the reasonable opinion of Sumday would constitute or result in a breach of any warranty given by the Customer under these General Terms. 10.4. As is basis
(a) The Customer acknowledges and agrees that, unless expressly agreed by Sumday, the Sumday Software is provided on an “AS IS” basis and with all faults. To the furthest extent permitted under applicable law, Sumday expressly disclaims and excludes from the Agreement all other conditions, terms or warranties of any kind with respect to the Sumday Software, whether express or implied, including without limitation any conditions, terms or warranties for merchantability of the Sumday Software or for the fitness of the Sumday Software for a particular purpose or the correspondence of the Sumday Software to any description or that the Sumday Software will be uninterrupted or error free or completely secure. The Customer acknowledges that there are risks inherent in internet connectivity that could result in the loss of privacy, confidential information and property. (b) The Customer acknowledges that Sumday may, in its absolute discretion, specify a level of assurance on which specific accounting engagements are provided with Sumday Software. Unless expressly agreed by Sumday, such engagements are intended to provide ‘audit ready information’ only and are not an audit or review under accounting and auditing standards. Sumday will rely on any information provided by the Customer in good faith without necessarily obtaining additional verification. 11. TERMINATION 11.1. Termination by either party without cause
(a) The Customer may terminate the Agreement and cancel the Subscription Fee without cause at any time. (b) If the Customer terminates the Agreement under this clause 11.1, it must pay the balance of the unpaid Subscription Fees for the remainder of the 12 month subscription term 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; (c) is declared bankrupt; or (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, Sumday 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 Sumday 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) Sumday 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 Sumday website at www.sumday.io.
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 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.