iso20400plus -– GENERAL TERMS & CONDITIONS from 30th August 2021
1. Definitions
“Ally” means any corporation or other legal entity that controls, is controlled by, or is under common control with a Party.
“Control ” means, for purposes of the definitions of “Ally” and “Subsidiary” (a) with respect to a corporation, the control or ownership (directly or indirectly) of fifty percent (50%) or more of the shares or securities of such corporation representing the right to vote for the election of directors, and (b) with respect to any other legal entity, fifty percent (50%) or more ownership interest or control representing the right to make decisions for such entity. An Ally or Subsidiary qualifies as such only for so long as such control exists.
“Catalogue” means the compilation of a database containing sustainability attributes across all iso20400plus companies, including each entity’s name, physical location, industry, website, status (iso20400plus/not iso20400plus), sustainability achievement, sustainability assessment level, badges, medals, cups, shields, trophies, validity details and sustainability certifications, reports & information achieved as a result of the assessment.
“iso20400plus” means iso20400plus Ltd, which is registered in the UK and whose registration number is SC696558.
“Business Partners” means companies and individuals, offering IT solutions or other services to their or mutual customers, and iso20400plus SPSC ambassadors and suppliers. Mutual customers of iso20400plus and the Business Partner shall have the opportunity of accessing information regarding the sustainability performance of their trading partners and/or of their own Subsidiaries.
“Export Controls ” means any laws, regulations, and restrictive measures (in each case having the force of law) related to the import, export or re-export of goods, technology and services administered, enacted or enforced from time to time by (i) the United States (including without limitation the Department of Commerce’s Bureau of Industry and Security and Department of State’s Directorate of Defense Trade Controls), (ii) the European Union and its member states, (iii) the United Kingdom, or (iv) other jurisdictions with regulatory authority over iso20400plus, the Assessed Company(ies) or their respective Allies.
“Party” means iso20400plus or the User.
“Requesting company(ies) ” or “customer” means any company with valid iso20400plus Assessment, Certification and/or Report enabling it to access information regarding the sustainability performance of an Assessed Company.
“Sanctioned Person” means a legal or natural person that is (i) the subject of Sanctions, (ii) resident in or organized under the laws of a country or territory which is the subject of country- or territory-wide Sanctions currently or within the past five years (including without limitation Cuba, Iran, North Korea, Sudan, Syria, or the Crimea region), or (iii) owned or otherwise controlled by any of the foregoing.
“Sanctions ” means any trade, economic and financial sanctions and embargo laws, regulations, and restrictive measures (in each case having the force of law) administered, enacted or enforced from time to time by (i) the United States (including without limitation the Department of the Treasury’s Office of Foreign Assets Control and Department of State), (ii) the European Union and its member states, (iii) the United Nations, (iv) the United Kingdom, or (v) other jurisdictions with regulatory authority over iso20400plus, the Assessed Company(ies) or their respective Allies.
“Certificate” and “Report” means a summary of the Assessed Company’s sustainability assessment results. Certificate & Report may include (i) quantitative information; and (ii) qualitative information on the Assessed Company’s practices.
“Assessed Company” means an Ally or any other entity, who is undergoing assessment and/or who has been assessed.
“Service” means the Assessed Company’s Sustainability performance assessment and/or monitoring service, and its associated support as well other services offered by iso20400plus to its Customers.
“Subsidiary(ies)” means any corporation or other legal entity controlled by a Requesting company.
“User” means, collectively, Assessed Company, Requesting company, any individual or any organization.
“Assess, Certify and/or Report my trading partners” means a process that allows for the assessment of the sustainability performance of companies providing goods/services (“Trading Partner”) and/or generating/distributing/providing report/certificate/badge/medal/cup/shield/trophy/results.
“Raw Data” means documents, videos, photos and presentations provided by the Assessed Company for the Service.
“Processed Data” means reports, certificates, badges, medals, cups, shields, trophies, results, the Catalogue and any information contained in reports, certificates, badges, medals, cups, shields, trophies, results and the Catalogue.
2. Purpose
iso20400plus may operate a service on behalf of Users aimed at monitoring the sustainability performance of Assessed companies. Access to Certificate information and Report information is free to any individual and/or any organization through our Verify module on our website; however the individual and/or organization may need certificate number, QR code, report number or report QR code to access the information. The certificate information or report information is neither secret nor public. This information can be found through Assessed Company or anywhere they have shared. You may get this information from the Assessed Company for free. We may also provide this information for a fixed fee.
3. Confidentiality
3.1. Except as otherwise expressly authorized by the other Party, iso20400plus and the Users shall only use the information and documents, of any nature whatsoever concerning the other Party, to which they might have access for the purpose of the Service. The content of assessment questionnaires and information related to the iso20400plus assessment methodology and céleste framework are considered as strictly confidential information.
3.2.A. For the purpose of the Service, the Assessed Company can grant read only access to its Raw Data. In this case, the ready only access granted to iso20400plus includes the non-exclusive and royalty-free right, on a worldwide basis, to read, review, process, assess, report, certify and display, the information the Assessed Company will supply, and to use such Raw Data to deliver services offered by iso20400plus and to develop the iso20400plus database, catalogue and the Processed Data. The Assessed Company warrants and represents that it has all the rights and authorizations that are necessary to use the Raw Data for purposes of the Service, and that it can freely grant the above license rights. In such cases, all Raw Data stays with Assessed Company, and the Assessed Company should only grant read only access. Once assessment process is complete, iso20400plus may keep record of the sustainability performance in form of database, the Catalogue and the Processed Data.
3.2.B. If the Assessed Company provides its Raw Data by email, drop-box or any other way to us then we will consider that Raw Data as non-confidential. In such case for purposes of the Service, the Assessed Company grants iso20400plus the non-exclusive and royalty-free right, on a worldwide basis, to host, store in cache mode, process, assess, report, certify, reproduce, and display, the information the Assessed Company will supply, and to use such Raw Data to deliver services offered by iso20400plus and to develop the iso20400plus database, the Catalogue and the Processed Data. The Assessed Company warrants and represents that it has all the rights and authorizations that are necessary to use the Raw Data for purposes of the Service, and that it can freely grant the above license rights. Once assessment process is complete, iso20400plus will delete this Raw Data; however iso20400plus may keep record of the sustainability performance in form of database, the Catalogue and the Processed Data.
3.3. Article 3.1 shall not apply to information in the public domain or to information known by the other Party prior to the performance of the Service. Each Party may disclose, without prior notification, approval or consent by the other Party, to tax authorities, local or governmental authorities and courts any confidential information that is required to be disclosed by law, as well as to such Party’s representatives, external counsels, assessors, quality controllers, trainees and advisors, or for audit purposes.
3.4. Notwithstanding Article 3.1 above, the Assessed Company’s Certificate information and/or Report information may be shared automatically with the Requesting Company (or group of Requesting companies in the case of sector initiative or individual companies within a group of the Requesting Company).
3.5. The initial assessment results, certificate and/or report is simultaneously released for the Assessed Company and the initial Requesting Company (or group of Requesting companies in the case of sector initiative or individual companies within a group of Requesting companies).
3.6. To facilitate ease of identifying and connecting with current and prospective business partners, the Assessed Company grants iso20400plus and its Allies the right to share the Catalogue information, and to share this information with Business Partners who may also display such information on their platforms.
Additionally, the customers may contract with the Business Partner to analyse and create aggregated results regarding the sustainability performance of their trading partners and/or of their own Subsidiaries.
3.7. In regards to the Assessed Companies’ Catalogue information and the Processed Data; the Assessed Company grants iso20400plus and its Allies the right to share, and communicate it to any third party and to promote this information through any support channels and in any media, including in digital media and channels.
3.8. The Assessed Company has a choice to be a part of the Catalogue and the Processed Data, or not. If they do not wish to share their information, in the Catalogue and the Processed Data, then we will issue reports/certificates/cups/badges/medals/shields/trophies without a document number and a QR code. Such report/certificate/cup/badge/medals/shields/trophies will not remain freely verifiable by the Users through our website. In such case, there will be a separate fee to be paid for any individual verification requests.
4. Responsibility of iso20400plus
4.2. We expect read only access to the data for assessment. In the event that iso20400plus becomes aware of a data breach incident which is likely to severely compromise the security of the Service, or of the Users’ Data, iso20400plus may, without notice, suspend momentarily the access to the Service in order to remedy the security breach in a timely manner. In such an event, iso20400plus shall not incur any liability to Users and Users shall not seek any compensation whatsoever from iso20400plus.
4.3. iso20400plus does not warrant any results from the use of the Service/Report/Certificate and shall only be held to an obligation to use reasonable endeavors. iso20400plus does not warrant that the functionalities of the Service/Report/Certificate will meet the Users’ requirements.
4.4. The Service/Report/Certificate/Cups/Badges/Medals/Shields/Trophies/Results shall be regarded only as a decision-making tool and iso20400plus cannot be and is not liable for any decision taken by the User on such basis.
4.5. The Parties hereby acknowledge that no IT system and software is error-free and that not all software errors can be corrected in a cost-effective manner or even that they need to be corrected.
The Parties hereby acknowledge that no human being is error-free and that not all human errors can be corrected in a cost-effective manner or even that they need to be corrected.
The Parties hereby acknowledge that no process is error-free and that not all process errors can be corrected in a cost-effective manner or even that they need to be corrected.
4.3. The Assessed Company shall receive its report/certificate/badge/medal/cup/shield/trophy/results based on the disclosed information and news resources available to iso20400plus at the time of assessment. Should any information or circumstances change materially during the period of the report/certificate/badge/medal/cup/shield/trophy/result’s validity, iso20400plus reserves the right to place the business’ report/certificate/badge/medal/cup/shield/results on hold and, if considered appropriate, to re-assess and possibly issue a revised report/certificate/ badge/medal/cup/shield/trophy/results.
5. Responsibility of Users
5.1. The User agrees not to (i) interfere with or attempt to interfere with the proper working of the Service; (ii) post or send to the Service anything that contains a virus, or any harmful files (iii) reverse engineer the Service.
5.2. The User shall maintain adequate security measures to safeguard the Service from unauthorized access, use or copying. The User is solely and uniquely responsible for the confidentiality of its employee details. It shall immediately notify iso20400plus of any unauthorized use of iso20400plus data. The User shall immediately inform iso20400plus of any unauthorized access to the Service.
5.3. The User shall not without the prior written express consent of iso20400plus (i) translate or adapt the Service for any purpose nor arrange or create derivative works based on the Service, (ii) make for any purpose any alterations, modifications, additions or enhancements to the Service (iii) decompile, reverse-engineer or disassemble the Service or any part of it.
6. Responsibility of the Assessed Company
6.1. The Assessed Company shall cooperate with iso20400plus and ensure that it supplies in a timely manner to iso20400plus the data, information and documentation that are appropriate for or in connection with the operation of the Service. We insist on ready only access.
6.2. The Assessed Company shall ensure that all data communicated is accurate, faithful and complete, and agrees not to post or transmit any unlawful, fraudulent, harassing, libelous, or obscene data.
6.3. The Assessed Company may appoint an administrator to facilitate data access.
7. Compliance with Laws
In connection with the performance of this Agreement, the Parties shall comply with all applicable laws and regulations.
8. Trade Controls
8.1. The User represents and warrants that (i) neither the User nor any of its officers or directors is a Sanctioned Person and (ii) it will not use, and will not allow any party to use, any services provided by iso20400plus or its Allies (including, but not limited to, the Service) in connection with doing business with or involving, Cuba, Iran, North Korea, Sudan, Syria, or the Crimea region.
8.2. The User represents and warrants that it will not use, and will not allow any party to use, any services provided by iso20400plus or its Allies (including, but not limited to, the Service) in connection with doing business with any Sanctioned Person or for any purpose that would violate, or cause iso20400plus or its Allies to violate, Sanctions or Export Controls.
8.3. The User acknowledges and agrees that iso20400plus and its Allies are subject to Sanctions and Export Controls and must take measures to ensure compliance with applicable Sanctions and Export Controls.
The User therefore acknowledges and agrees that its access to and use of any services provided by iso20400plus or its Allies (including, but not limited to, the Service) (i) is subject to the representations and warranties provided in this Article 8, (ii) may be blocked and suspended in the event of a potential match to a Sanctioned Person, and (iii) may, in the case of such a potential match, require the User to provide information or documentation necessary to confirm its identity.
8.4. The representations, warranties, covenants, or obligations provided in this Article 8 are given only to the extent that they would not result in a violation of or conflict with Council Regulation (EC) No. 2271/96, as amended, any law or regulation implementing Council Regulation (EC) No. 2271/96 in any member state of the European Union, the German Foreign Trade Act or any applicable equivalent law or regulation.
9. Indemnification
9.1. Users Indemnity . The User shall indemnify, defend and hold iso20400plus harmless from and against any losses, damages, liabilities, claims and expenses of whatever kind, incurred by iso20400plus in connection with any claim made against iso20400plus that arises out of or relates to (i) any breach of any representations, warranties, covenants, or obligations of the User, (ii) the consequences of any unlawful, fraudulent, harassing, libelous, or obscene data, information or documents provided to iso20400plus.
9.2. iso20400plus Indemnity. Subject to Article 13, in the event that the Service infringe any intellectual property rights of a third party not associated with the User, iso20400plus will indemnify the Assessed Company against any claim of such infringement, and shall pay any monetary judgments, reasonable and related attorneys’ fees, and costs finally awarded to the third party for such infringement, or any settlement of such claim to which iso20400plus has agreed. The foregoing obligation does not apply to any claim arising out of or relating to any (a) access to or use of the Service in combination with any hardware, system, software, network or other materials or service not provided or authorized in writing by iso20400plus; (b) modification of the Service other than (i) by or on behalf of iso20400plus; or (ii) with iso20400plus’s written approval; (c) Users Indemnity under Article 9.1 above.
9.3. Indemnification Process. The foregoing indemnification obligations are conditioned on the indemnified party: (a)notifying the indemnifying party promptly inwriting of such action, (b) reasonably cooperating and assisting in such defense and (c) giving sole control of the defense and any related settlement negotiations to the indemnifying party with the understanding that the indemnifying party may not settle any claim in a manner that admits guilt or otherwise prejudices the indemnified party, without consent.
9.4. Mitigation. If any Service is, or in iso20400plus’s opinion, is likely to become the subject of any infringement-related claim, then iso20400plus will, at its expense and in its discretion: (a) procure for the User the right to continue using the Service; (b) replace or modify the infringing technology or material so that the Service becomes non-infringing and remains materially functionally equivalent; or (c) terminate the Agreement and give the User a refund for any pre-paid but unused fees.
10. Subscription and fees
10.1. Use of the Service by the Assessed Company is conditioned by the advance payment of all applicable fees, including a non-refundable, annual or multi-year subscription fee dependent on the plan that the Assessed Company has selected, as detailed on www.iso20400plus.com website. Local taxes, including withholding tax shall be paid by the User or respectively shall be charged to the User and their amounts shall not be deducted from the subscription fee.
10.2. For an organization requesting assessment of their business partner following applies. During the initial twelve (12) months the fee will be paid by a Requesting company in place of Assessed Company only if such obligation derives from the agreement between iso20400plus and Requesting Company. All payments are due upon receipt. Local taxes, including withholding tax shall be paid by the User or respectively shall be charged to the User and their amounts shall not be deducted from the subscription fee.
10.3. Subject to the Assessed Company’s right to terminate this Agreement pursuant to Article 14.2, iso20400plus reserves the right to revise its annual subscription fee schedule and/or implement a different pricing model or additional fees to be paid, at any time without incurring any liability whatsoever towards the Users. For the avoidance of doubt the new fee schedule will be applicable from the next subscription cycle.
10.3. A processing charge will apply for any method of payment other than debit and credit card. Assessed Companies are invoiced in GBP only. Bank related fees (wire transfer and currency exchange fees, if any), as well as any debt collection services-related fees, shall be borne by the Assessed Company. Any failure by the Assessed Company to make any payment when due may result in late payment fees on the past due amount at an amount corresponding to the interest rate permitted under applicable law in the UK. As of 22nd August 2021, this is 8% plus the Bank of England base rate for business to business transactions.
11. Intellectual property rights
The entirety of content on the Service, including all methodologies, procedures, management tools, workshops, manuals, software packages, databases, questionnaires, designs, ideas, inventions, expertise, commercial methods, analysis methods, assessment methodologies, assessment results and all other rights covered by intellectual property rights developed, created or acquired by iso20400plus prior to supplying the Service, by any other means whatsoever, are and remain the exclusive property of iso20400plus. All data and individual entries supplied for the Service by each User remain the property of this User.
12. Personal Data
13. Limitation of liability
13.1. Notwithstanding any other provision in this Agreement, iso20400plus shall in no event be liable for any indirect loss or damage of any kind (including, without limitation, costs of cover, loss of profits, revenue, business, or loss or corruption of data) arising from or relating to this Agreement, including from (i) the use or inability to use the Service, (ii) the use of the Data or the assessment report/certificate/badget/medal/cup/shield/trophy/results of the Assessed Company by the Requesting company(ies); or (iii) a User’s breach of its confidentiality obligations, regardless of the form of action.
13.2. In any case the aggregate liability of iso20400plus, regardless of the legal ground, shall be strictly limited to the amount of the fees paid by the Assessed Company and/or Requesting Company for the Service under this Agreement in the preceding twelve (12) months in case of annual subscription, or in the preceding thirty six (36) months in case of a three-year subscription, or in the preceding sixty (60) months in case of a five-year subscription.
13.3.In any case the aggregate liability of iso20400plus, regardless of the legal ground, shall be strictly limited to the amount of the fees paid by the User (other than Assessed Company & Requesting Company) for the Service under this Agreement.
14. Term – Termination
14.1. This Agreement shall enter into force on the date the User accepts the General Terms & Conditions. It will continue for an initial term of twelve (12) or thirty-six (36) months or sixty (60) months (depending on the selected subscription term), from the date the User submitted its assessment questionnaire on the iso20400plus platform for the first time. The Agreement will renew by tacit renewal per period of twelve (12) months each, unless terminated by either of the Parties in accordance with Article 14.2 below.
14.2. The User may terminate the Agreement at any time, for any reason, by discontinuing using the Service and sending a written notification to iso20400plus. Valid report/certificate/badge/ medal/cup/shield/trophy/results kept in electronic format will be deleted upon request.
14.3. iso20400plus may terminate this Agreement without notice if the User is found to be in material breach of any of the terms of this Agreement.
14.4. iso20400plus may terminate this Agreement at any time, for any reason, by sending a written notification (or notification in an electronic form) to the User. In such a situation, the User shall be entitled to receive a refund for the prepaid subscription fees on a pro-rata basis in respect of any Services not received after the date of termination.
Articles 3, 11 and 13 shall survive any termination of the Agreement.
15. Assignment and transfer
The User shall not assign or transfer the Agreement to any third party without the prior written consent of iso20400plus. iso20400plus may assign this Agreement to any direct or indirect subsidiaries, or to any other third party.
16. Modification
iso20400plus reserves the right, at any time, to unilaterally modify the terms of this Agreement, subject to the Users’ ability to terminate the Agreement pursuant to Article 14.2 hereof. The Users will be informed of any such changes by means of publication on the web site iso20400plus.com or through any other adequate means.
17. Applicable law and jurisdiction clause
This Agreement shall be governed, construed and interpreted in accordance with the laws of Scotland. Any dispute arising out of or in connection with the Agreement, which cannot be settled amicably, shall be submitted to the competent court of Scotland, which shall have exclusive jurisdiction not with standing the plurality of defendants.
18. Application of the Agreement
The Parties hereby agree that this Agreement sets forth the entirety of their respective rights and obligations relating to the subject matter thereof. This Agreement supersedes all prior agreements, negotiations and discussions between the Parties relating thereto. Any terms or conditions of any purchase order or other documents submitted by the User in connection with the access to or use of the Service that are in addition to, different from, or inconsistent with this Agreement are not binding on iso20400plus and are ineffective.
19. Dispute Resolution
19.1. If any dispute arises between the parties then they shall meet in good faith to proactively resolve the dispute.
19.2. Any dispute which has not been resolved within 10 working days shall be escalated to an appropriate director for each party.
19.3. Either party may, if a dispute has remained unresolved for 30 working days, commence proceeding in accordance with Article 17.
20. Final provisions
20.1. Appendix A constitutes the integral part of these General Terms and Conditions.
APPENDIX A- Assess, Report and/or Certify my trading partners
1. Purpose
The purpose of this APPENDIX A is to define the terms and conditions under which the Assessed Company and Requesting Company will use the Service.
iso20400plus reserves the right of deactivation of any feature at any time in case the feature is provided as a complementary add-on to your subscription.
2. Obligations of the Parties
2.2. The Assessed Company can ask iso20400plus to invite a Trading Partner which is not yet Assessed to subscribe to the Service. In that respect, the Assessed Company agrees to provide iso20400plus with such information as is reasonably necessary to undertake the sustainability service. In order to ensure the successful execution of Appendix A, the Assessed Company shall:
– Provide iso20400plus with a name and contact person of the company to be on-boarded.
– Develop an appropriate communication plan to inform Users and Trading Partners of the initiative.
– Support Trading Partners’ participation when requested by iso20400plus.
2.3. iso20400plus will contact them electronically to invite them to register on the Service, and validate the General Terms & Conditions governing the Trading Partner’s access to the Service.
3. Intellectual Property
3.1. In terms of using Assess, Report and/or Certify my trading partners, iso20400plus is and shall remain the sole owner of all intellectual property rights to the software, methodologies, the Catalogue, the Processed Data, database and know-how forming the iso20400plus Service, as well as any and all related documentation regardless of the media.
3.2. iso20400plus here by grants the Assessed Company and the Requesting Company a non-exclusive, non-transferable license to activate and access Assess, Report and/or Certify feature and a perpetual, non-transferable license to use assessment report/certificate/badge/medal/cup/shield/trophy/results, which could have been extracted from the Service. iso20400plus grants the Assessed Company the right to take use of assessment results/certificate/report/medal/cup/badge/shield and to extract limited data for the purposes of the Assessed Company’s internal needs. In any case, the Assessed Company shall not be authorized in any way to make use of the database or to extract any data from the Service for any commercial purposes, such as reselling information to third parties.
4. Indemnification
The Assessed Company feature agrees to indemnify and hold iso20400plus, its subsidiaries, officers, directors, employees, harmless, contractors, ambassadors from any claim or demand made by any Assessed Company, including costs, liabilities and legal fees, arising out of (i) its access to or use of the Assess, Report and/or Certify my trading partners feature, and not arising directly from any gross fault or willful misconduct ofiso20400plus (ii) its breach of this Appendix 1,especially by the disclosure of assessment report/certificate/badge/medal/cup/shield/trophy/results, (iii) or, the infringement by the Assessed Company or any third party using the Assessed Company’s account, of any intellectual property or other right of any person or entity.
5. Confidentiality
5.1. The Assessed Company and the Requesting company undertakes not to disclose any confidential Information received from the other Party in the course of using the Assess, Report and/or Certify my trading partners feature.
5.2. It is agreed that confidential information made available by either Party to the other Party in connection with using the Assess, Report and/or Certify my trading partner feature shall be kept confidential by the receiving Party, shall be treated by the latter in the same way as it treats equivalent confidential information generated by itself, shall not be used by the receiving Party otherwise than in connection with the implementation of the Assess, Report and/or Certify my trading partners feature and shall be divulged to such of the receiving Party’s personnel only on a need to know basis and when said personnel has undertaken to keep confidential information secret.
5.3. The commitments shall continue during the continuation of using Assess, Report and/or Certify my trading partners feature and for a period of five (5) years there after. It being understood that these commitments shall cease if the information (i) is or becomes generally known or available to the public through no act or omission of the receiving Party; or (ii) was available lawfully to the receiving Party prior to disclosure or has thereafter been furnished to the receiving party always without restrictions as to disclosure or use; or (iii) was subsequent to disclosure independently developed by the receiving Party without use of any confidential information received from the other Party.