Terms of Service

Last updated: 19th Dec 2023

These Terms of Service (“Agreement”) constitute a contract between ESG Base Limited, incorporated in England and Wales with registered number 13026750 whose registered office is at 7 Bell Yard, London, WC2A 2JR (“ESG Base”) and you (“Customer”). Customer agrees to be bound by the terms of this Agreement upon its express consent to this Agreement.

This Agreement includes and incorporates any Order Form under which Customer purchased any of ESG Base’s services. In the event of any inconsistency or conflict between this Agreement and any Order Form, the Order Form will control.

1. Definitions

“Customer Data” means any personal, business, or usage data, including but not limited to text, images, and other forms of data or communication, submitted by Customer to ESG Base as a result of Customer’s use of the Services.
“Documentation” means all user guides, manuals, and instructional materials, in all forms, provided to the Customer by ESG Base relating to the Services.
“Effective Date” means the effective date of the first Order Form referencing this Agreement.
“Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), inventions, copyrights, trade secrets, know-how, data and database rights, mask work rights, and any other intellectual property rights recognized in any country or jurisdiction in the world.
“Order Form” means a mutually executed order form which references this Agreement and sets forth the Services that Customer is authorised to use and the applicable fees, payment schedule and initial subscription term.
“Parties” mean ESG Base and Customer, each referred to respectively as a Party.
“Services” means the web-based services, including the ESG Base platform that calculates greenhouse gas emissions and any other web-based tools, features, or functionalities provided by ESG Base as part of its offerings.
“Term” means the period of time during which ESG Base has authorised the Customer to access the Services as set forth in any applicable Order Form, including any extensions or renewals thereof, subject to the terms and conditions of this Agreement.

2. Access to and Use of the Services

Use of the Services: Subject to the terms and conditions of this Agreement, ESG Base grants to Customer a worldwide, non-exclusive, non-transferable (except as permitted by this Agreement), licence, without the right to grant sub-licence, for the Term of this Agreement, to use the Services and the Documentation solely in connection with Customer’s business operations. Customer’s right to use the Services is subject to and contingent upon Customer’s compliance with this Agreement and ESG Base reserves all rights not expressly granted in this Agreement.
Technical Support Services: ESG Base may provide Customer with reasonable technical support.
Use Restrictions: Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Customer will not, and will not permit or authorise third parties to:
1. copy, modify, transmit, distribute, frame, mirror, or attempt to reverse engineer, disassemble, reverse compile or otherwise reduce to human-readable form all or any part of the Services and/or Documentation (as applicable), in any form or by any means;
2. rent, lease, sell, transfer, distribute, exploit, or otherwise permit third parties to use the Services or Documentation without ESG Base’s written consent;
3. use the Services or Documentation to provide services to third parties without ESG Base’s written consent;
4. use the Services in any way that purports or suggests that there is any affiliation between the Parties;
5. use the Services to store or transmit any infringing, obscene, defamatory or otherwise unlawful or tortious material, or any material that violates a third party’s privacy rights; or
6. interfere with, damage, disrupt the integrity or performance of the Services, including by circumventing or disabling any security or other technological features or measures of the Services;
Use Breach: Customer acknowledges that any breach of clause 2.3 (Use Restrictions) shall be treated as a material breach by Customer, entitling ESG Base to terminate Customer’s access to the Services.
Compliance with Laws: Customer will use the Services and the Documentation in compliance with all applicable laws and regulations.
Protection against Unauthorised Use: Customer will use its best endeavours to prevent any unauthorised use of the Services and Documentation and promptly notify ESG Base in writing of any unauthorised use that comes to Customer’s attention. If there is unauthorised use by anyone who obtained access to the Services directly or indirectly through Customer, Customer will take all steps reasonably necessary to terminate the unauthorised use. Customer will cooperate and assist with any actions taken by ESG Base to prevent or terminate unauthorised use of the Services or Documentation.
Reservation of Rights: ESG Base grants to Customer a limited right to use the Services and Documentation under this Agreement. Customer will not have any rights to the Services or Documentation except as expressly granted in this Agreement. ESG Base reserves to itself all rights to the Services and Documentation not expressly granted to Customer in accordance with this Agreement.
Feedback: If Customer provides any feedback to ESG Base concerning the functionality and performance of the Services (including identifying potential errors, modifications and improvements), Customer assigns to ESG Base all rights, title and interest in and to such feedback, including any Intellectual Property Rights therein.

3. Customer Obligations and Acknowledgements

In using the Services, Customer agrees that:
1. the Services are only used for the purposes permitted by this Agreement, and in accordance with the Documentation;
2. where the Services are used in any way that results in the contravention of any laws or regulations, ESG Base shall not be responsible for such contravention or failure;
3. it is solely responsible for the accuracy of the figures and of any other Customer Data entered into the Services. ESG Base does not verify the accuracy of any figures or other Customer Data;
4. it is solely responsible for any conclusions, decisions or filings it makes based on the Services;
5. it is solely responsible for the input and maintenance of the Customer Data;
6. it will promptly furnish ESG Base with written confirmation on request, verifying that the Services are being used in accordance with the terms and conditions of this Agreement;
7. ESG Base shall not be liable for any damage caused by errors or omissions in any information, instructions, scripts, or other Customer Data provided to ESG Base by Customer in connection with the Services, or any action taken by ESG Base at Customer’s direction.

4. Fees and Payment

Fees: Customer will pay ESG Base the fees set forth in the relevant Order Form in accordance with the terms therein (“Fees”) and without refund, offset, reduction or deduction. Except as otherwise provided in the relevant Order Form, ESG Base will issue annual invoices to Customer during the Term, and Customer will pay all undisputed amounts set forth on any such invoice no later than thirty (30) days after the date of such invoice. During the Term, ESG Base may assess whether Customer’s use of Services deviates from its entitlement and adjust the Fees based on such use as necessary.
Payments: Payments due to ESG Base under this Agreement must be made in U.S. dollars by wire transfer of immediately available funds to an account designated by ESG Base or such other payment method mutually agreed by the Parties. Except as otherwise provided on an Order Form, all payments are non-cancellable and non-refundable and neither Party will have the right to set off, discount or otherwise reduce or refuse to pay any amounts specified or contracted for under this Agreement.
Taxes: All amounts payable hereunder are exclusive of any taxes, including any direct or indirect local, state, federal or foreign taxes, levies, duties or similar government assessments of any nature (such as VAT, GST, excise, sales, use or withholding taxes) (collectively “Taxes”). Customer will be solely responsible for payment and reimbursement of all Taxes associated with its purchases hereunder, except for taxes based on ESG Base’s net income. Customer will not withhold any Taxes from any amounts due hereunder.

5. Confidentiality

As used in this Agreement, “Confidential Information” means any information that one Party (the “Disclosing Party”) provides to the other Party (the “Receiving Party”) in connection with this Agreement, whether orally or in writing, that is designated as confidential or that reasonably should be considered confidential given the nature of the information and/or the circumstances of disclosure. For clarity, the Services and the Documentation will be deemed Confidential Information of ESG Base and Customer Materials will be deemed Confidential Material of Customer. However, Confidential Information will not include any information or materials that: (i) were, at the date of disclosure, or have subsequently become, generally known or available to the public through no act or failure to act by the Receiving Party; (ii) were rightfully known by the Receiving Party prior to receiving such information or materials from the Disclosing Party; (iii) are rightfully acquired by the Receiving Party from a third party who has the right to disclose such information or materials without breach of any confidentiality or non-use obligation to the Disclosing Party; or (iv) are independently developed by or for the Receiving Party without use of or access to any Confidential Information of the Disclosing Party.
The Receiving Party will maintain the Disclosing Party’s Confidential Information in strict confidence and will not use the Confidential Information of the Disclosing Party except as necessary to perform its obligations or exercise its rights under this Agreement. The Receiving Party will not disclose or cause to be disclosed any Confidential Information of the Disclosing Party, except (i) to those employees, representatives, or contractors of the Receiving Party who have a bona fide need to know such Confidential Information to perform under this Agreement and who are bound by written agreements with use and nondisclosure restrictions at least as protective as those set forth in this Agreement, or (ii) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure.
Each Party's obligations of non-disclosure about Confidential Information are effective as of the Effective Date and will survive the termination or expiration of this Agreement.
The terms and conditions of this Agreement will constitute Confidential Information of each Party but may be disclosed on a confidential basis to a Party’s advisors, attorneys, actual or bona fide potential acquirers, investors or other sources of funding (and their respective advisors and attorneys) for due diligence purposes.

6. Intellectual Property

Customer Data: All rights, title and interest (including all Intellectual Property Rights) in the Customer Data vest in Customer on their creation. Customer grants ESG Base a non-exclusive licence to use, reproduce and communicate the Customer Data during the term of this Agreement to enable ESG Base to perform its obligations under this Agreement.
Services and Documentation: Except for the licences to use the Services and the Documentation granted under this Agreement, all rights, title and interest (including all Intellectual Property Rights) in the Services and the Documentation vest in ESG Base.

7. Warranties and Disclaimer

Mutual Warranties: Each Party represents and warrants to the other that: this Agreement has been duly executed and delivered and constitutes a valid and binding Agreement enforceable against such Party in accordance with its terms; and no authorisation or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement.
Customer warrants that:
1. the Customer Data do not infringe the Intellectual Property Rights or privacy rights of any third party;
2. it has secured all necessary rights, licences, permissions and consents necessary for ESG Base to use the Customer Data in providing the Services;
3. the receipt and use of Customer Data in the performance of this Agreement by ESG Base, its agents, subcontractors or consultants shall not infringe the rights, including any Intellectual Property Rights, of any third party;
4. it has not falsely identified itself nor provided any false information to gain access to the Services;
5. any billing information it provides to ESG Base is correct.
Disclaimer: EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN CLAUSE 7.1, ESG BASE MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OR GUARANTEE OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. ESG BASE EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (INCLUDING FOR THE PURPOSE OF ANY REPORTING OBLIGATIONS STEMMING FROM APPLICABLE LAW), QUALITY OR ACCURACY. ESG BASE DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SERVICES. ESG BASE DOES NOT WARRANT THAT THE SERVICES ARE ERROR-FREE OR THAT OPERATION OF THE SERVICES WILL BE SECURE OR UNINTERRUPTED. ESG BASE DOES NOT WARRANT THAT ANY INFORMATION PROVIDED THROUGH THE SERVICES IS ACCURATE OR COMPLETE OR THAT ANY INFORMATION PROVIDED THROUGH THE SERVICES WILL ALWAYS BE AVAILABLE. ESG BASE EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF CUSTOMER’S USE OF THE SERVICES.

8. Indemnification

By using the Services, Customer agrees to protect ESG Base and its officers, directors, employees and suppliers from any claims, damages, losses, liabilities, and all costs and expenses of defence, including but not limited to, reasonable attorneys’ fees, resulting directly or indirectly from a claim by a third party that arises in connection with (a) Customer’s use of the Services; (b) any breach or alleged breach by Customer of any of Customer’s representations or warranties set forth in these Terms of Service; or (c) Customer’s breach of any applicable law or regulation.

9. Limitations of Liability

Disclaimer of Indirect Damages: DESPITE ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, ESG BASE WILL NOT, UNDER ANY CIRCUMS
TANCES, BE LIABLE TO CUSTOMER FOR ANY REGULATORY FINES, LOSS OF PROFITS, LOSS OF SALES OR BUSINESS, LOSS OF AGREEMENTS OR CONTRACTS, LOSS OF ANTICIPATED SAVINGS, LOSS OF OR DAMAGE TO GOODWILL, LOSS OF USE OR CORRUPTION OF SOFTWARE, DATA OR INFORMATION, OR ANY INDIRECT OR CONSEQUENTIAL LOSS ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING OUT OF CUSTOMER’S USE OF THE SERVICES.
Cap on Liability: SUBJECT TO THE LAWS OF THE JURISDICTIONS WHERE SERVICES ARE PROVIDED, ESG BASE’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, BREACH OF STATUTORY DUTY OR OTHERWISE, EXCEED (A) THE TOTAL AMOUNT PAID BY CUSTOMER TO ESG BASE DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM, OR (B) IF NO FEES HAVE BEEN PAID, 100 USD.

10. Term and Termination

Term: This Agreement begins on the Effective Date and continues until the later of: (i) the last date specified in any Order Form or (ii) Customer access to the Services has been terminated. All Orders will automatically renew for additional periods of one (1) year terms unless either Party provides the other with at least thirty (30) days’ written notice of its intent not to renew any relevant Order Form prior to the end of the then-current Order Form term.
Termination: Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach.
Survival: Upon termination of this Agreement all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such termination will survive, including the Restrictions and terms and conditions relating to confidential information and proprietary rights, disclaimers, indemnification, limitations of liability, termination and the general provisions.

11. Marketing

Customer agrees that ESG Base can publicly refer to the Customer as its customer or include Customer in customer lists and use Customer’s name, trade name, trademarks and logo for this purpose. ESG Base will seek Customer’s approval in writing prior to referring to Customer in any marketing material.

12. General

Entire Agreement: This Agreement, together with the applicable Order Form and the ESG Base Privacy Policy, available on ESG Base’s website at https://www.esgbase.com/privacy, is the final and complete expression of the agreement between the Parties regarding Customer’s use of the Services.
Amendment: This Agreement may be amended or modified only by a written document executed by duly authorised representatives of the Parties.
Relationship: Each Party will be and shall act as an independent contractor (and not as the agent or representative of the other Party) in the performance of this Agreement.
Notices: Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by email to the email address provided by the Parties respectively. Notices sent by email shall be deemed given on the date of transmission.
Waiver: The waiver by either Party of any breach of any provision of this Agreement does not waive any other breach. The failure of any Party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
Severability: If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect.
Governing Law and Jurisdiction: This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales. Each Party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation.
Assignment: Customer may not assign its rights, duties, and obligations under this Agreement without ESG Base’s prior written consent.
Force Majeure: Neither Party will be responsible for any failure or delay in the performance of its obligations under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, which may include, without limitation, labour disputes, strikes, lockouts, criminal acts of third parties, shortages of or inability to obtain energy, raw materials or supplies, denial of service or other malicious attacks, telecommunications failure or degradation, failure of the Internet, pandemics, epidemics, public health emergencies, governmental orders and acts (including government imposed travel restrictions and quarantines), material changes in law, war, terrorism, riot, civil unrest, fire, explosion, flood, earthquake, tornado, natural disaster, or acts of God.
Export Controls and Sanctions: Each Party agrees to comply with all applicable export control and sanctions laws and regulations. Each Party agrees not to export, reexport, or retransfer any goods or Services received in connection with this Agreement in violation thereof or applicable export controls and sanctions. Failure to comply with all applicable export control and sanctions laws will be deemed a material breach of this Agreement.
Anti-corruption: Each Party agrees to comply with all applicable anti-corruption laws and regulations, including the U.S. Foreign Corrupt Practices Act and the UK Bribery Act. Each Party agrees not to perform, offer, give or receive bribes or otherwise engage in corrupt actions in connection with this Agreement. Failure to comply with anti-corruption laws will be deemed a material breach of this Agreement.