Terms and Conditions

THIS SERVICE AGREEMENT is made  

BETWEEN:

(1) SGS IECC Limited, a company organized under the laws of Hong Kong SAR (Business Registration Number: 19006980), having its registered office located at Units 303 & 305, 3/F Building 22E, Phase 3, Hong Kong Science Park, N.T, Hong Kong (“SGS IECC”);

(2) A company incorporated under the laws of Hong Kong SAR (the “Client”)

(Collectively referred hereinafter as the “Parties”, each as a “Party”)

WHEREAS:

(A) SGS IECC has developed a digital carbon management platform called “S-Carbon” which allows a business to easily manage and keep track of its carbon emission reduction goals and carbon performance of its business partners. 

(B) The Client desires to use S-Carbon for carbon audit in its course of business.

(C) SGS IECC agrees to grant and license the Client the use of S-Carbon and the Client agrees to use S-Carbon subject to the terms and conditions of this Agreement

NOW IT IS HEREBY AGREED as follows:

1. Definitions and Interpretation

1.1  Definitions: In this Agreement, including its recitals and schedule(s) (if any), unless the context otherwise requires:

1.2. Interpretation: In this Agreement, including its recitals and schedules (if any), unless otherwise defined or unless the context or subject matter otherwise requires:

1. any reference to Recitals, Clauses or the Schedule(s) is a reference to the recitals and clauses of, and the schedule(s) to, this Agreement;
2. any reference to parties to this Agreement shall include their respective permitted assigns and successors;
3. the Recitals and Schedules (if any) form part of this Agreement and shall be construed and shall have the same full force and effect as if expressly set out in the body of this Agreement;
4. the singular includes the plural and vice versa, words importing gender or the neuter include both genders and the neuter;
5. any reference to dates or time is a reference to a date or time in Hong Kong;
6. the rule known as the ejHKDem generis rule shall not apply.  Accordingly general words introduced or followed by the word “other” or “including” or “in particular” shall not be given a restrictive meaning because they are followed by particular examples intended to fall within the meaning of the general words.
7. A reference to “writing” or “written” includes email unless stated otherwise.

2. Charges and Payments

2.1 The Client is charged the Reporting Fees and Platform Setup Fees for the provision of the Services by SGS IECC during the Reporting Period. The said fees and periods are set out in this Agreement.

2.2 SGS IECC shall issue to the Client an invoice requesting part or whole payment of the Reporting Fees and Platform Setup Fees at the first (1st) day of the Reporting Period, the Client shall settle payment in whole as according to the payment instruction in the invoice within 30 Business Days of the date of the invoice. Subsequent invoices issued by SGS IECC for the balance of the Reporting Fees/ Platform Setup Fees (if any) shall be settled by the Client in whole within 30 Business Days of the date of the invoices unless otherwise agreed by the Parties.  

2.3 In the event that SGS IECC has not received payment of any invoice by the aforesaid prescribed dates, and without prejudice to any other rights and remedies of SGS IECC in this agreement:

1. SGS IECC may, without any liability to the Client and at the sole discretion of SGS IECC, disable the Client’s account, password and access to all or part of the features of S-Carbon at any time thereafter and cease provision of any of the Services while the invoice(s) concerned remain unpaid; and
2. Interest shall accrue on any unpaid Reporting Fees/ Platform Setup Fees at a rate of 1.5% per month (or such other rate as may be established in the invoice) from the due date up to and including the date payment is actually received by SGS IECC.   

2.4 All amounts and fees stated in this Agreement shall be payable in HKD Dollars unless otherwise agreed by the Parties and shall be non-refundable.

2.5 In the event of the termination of this Agreement for any reason other than the default of SHS HK or Clause 3.1(a) (Termination by Notice) or Clause 12 (Force Majeure), any outstanding Reporting Fees and Platform Setup Fees due at the effective date of termination, and all remaining Reporting Fees and Platform Setup Fees calculated from the effective date of termination to the end of the Reporting Period and/or the then Next Reporting Period will become immediately due and payable by the Client. 

2.6 The Client shall not be entitled to retain or defer payment of any sums due to SGS IECC on account of any dispute, counter claim or set off which may be alleged against SGS IECC.

2.7 SGS IECC may elect to bring action for the collection of unpaid fees in any court having competent jurisdiction and the Client shall pay all of SGS IECC’s collection costs including legal fees and related costs and disbursements.

3. Term/Duration

3.1 This Agreement shall commence on the date of this Agreement and shall continue for the duration of the Reporting Period. This Agreement will automatically terminate at the end of the Reporting Period unless:

1. Either party serving at least 30 days advance notice before the end of the Reporting Period, in which case this Agreement shall terminate upon the expiry of the said periods: or
2. Otherwise terminated in accordance with the provisions of this Agreement.

4. Services

4.1. SGS IECC shall, during the Reporting Period, provide the Services by making S-Carbon and the Instruction available to the Client and Authorised Users on and subject to the terms of this Agreement. 

4.2. SGS IECC shall make its commercially reasonable endeavours to make S-Carbon available 24 hours a day, seven days a week, save and except for:

1. Scheduled maintenance performed outside of Business Hours, provided that the SGS IECC has given at least 2 Business Days prior written notice to the Client; and
2. Unscheduled or emergency maintenance performed during Business Hours, provided that SGS IECC has used reasonable endeavour to give at least 2 Business Hours’ prior written notice to the Client with the reasons of the maintenance being stated in the said notice. 

4.3. The Client and the Authorised Users shall be granted access to the features of S-Carbon unless otherwise restrained by the provisions of this Agreement.

4.4. The Client acknowledges that SGS IECC, by entering into this Agreement or by providing the Services, neither takes the place of the Client or any third party, nor releases them from any of their obligations, nor otherwise assumes, abridges, abrogates or undertakes to discharge any duty of the Client to any third party or that of any third party to the Client. 

5. SGS IECC’s Obligations, Warranties and undertakings

5.1. Subject to the terms and conditions of this Agreement, SGS IECC hereby grants to the Client and the Authorised Users a non-exclusive and non-transferable licence and/or rights to use the Services and the Instruction during the Reporting Period.

5.2. Subject to Clause 5.3, SGS IECC undertakes that the Services will be performed substantially in accordance with the Instruction and with reasonable skill and care. If the Services fail to perform as aforesaid, SGS IECC shall, at its own costs and expenses, make all commercial reasonable endeavours to rectify any such non-conformance promptly, or provide the Client with an alternative means of accomplishing the desired performance. Such rectification or substitution constitutes the Client’s sole and exclusive remedy for any breach of this undertaking. 

5.3. SGS IECC shall not be liable for any non-conformance which is caused by use of the Services contrary to SGS IECC’s instructions, or modification or alteration of the Services by any party other than SGS IECC or SGS IECC’s authorised agents.

5.4. SGS IECC warrants and undertakes to the Client that:

1. SGS IECC is the sole and beneficial owner of all Intellectual Property Rights in relation to S-Carbon and has the right to license the use of S-Carbon to the Client, and that there are no known infringements or claims of infringements or claims of infringement with respect to the said Intellectual Property Rights; and
2. the use of S-Carbon by the Client pursuant to this Agreement will not infringe the Intellectual Property Rights or other legal rights of any third party.

5.5. Notwithstanding the limitation of liabilities in Clause 10, SGS IECC shall fully indemnify the Client against all losses and damages sustained by the Client arising from any breach of the warranties and undertakings in Clause 5.4 above including but not limited to infringement of Intellectual Property Rights brought by third parties against the Client. 

6. The Client’s Obligations, Warranties and Undertakings

6.1 The Client warrants and undertakes that:

1. the Client and each Authorised User shall keep the username and password for their use of the Services secured and confidential and they shall be solely responsible for all losses and damages arising from the disclosure (whether intentionally or unintentionally) of such information to third parties;
2. the Client shall use all reasonable endeavours to prevent any unauthorised access to, or use of the Services and/or the Instruction and in the event of any such unauthorised access or use, to promptly notify SGS IECC;
3. the Client shall do all necessary acts and give all necessary access to information as maybe required by SGS IECC for the sole purpose of successfully providing the Services to the Client and the Authorised Users; and
4. the Client shall be solely responsible for all problems, delays, delivery failures or all other loss or damage arising from or incidental to the Client’s network connections, telecommunications links or incompatibility of the Services to the Client’s computer system.

6.2 The Client shall not and shall ensure the Authorised Users not to:

1. Attempt to copy, modify, create derivative works from, mirror, republish, download, transmit or distribute all or any portion of S-Carbon and/or the Instruction in any form or media or by any means;
2. Attempt to decompile, reverse engineer, disassemble or otherwise reduce to human-perceivable form all or any portion of S-Carbon;
3. Access all or any part of the Services and Instruction in order to build a product or service which competes with the Services;
4. Use the Services and/or the Instruction to provide services to third parties;
5. License, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and or the Instruction available to any third parties;
6. Attempt to obtain, or assist third parties in obtaining access to the Services and/or Instruction other than as permitted by this Agreement;
7. Distribute or transmit any Virus during the use of the Services.

6.3 The Client shall fully indemnify and keep SGS IECC indemnified against all losses and damages whatsoever arising directly or indirectly out of any breach by the Client and/or the Authorised Users of Clause 6.2 above.

7. Data and Intellectual Property Rights

7.1. The Client grants SGS IECC a non-exclusive licence to access, use, process, copy, distribute, export and display the Client’s Data for the sole purpose of providing the Services and all such matters in relation to the provision of the Services. 

7.2. The Client and the Authorised Users further warrant and represent that they have the ownership of the Client’s Data or they have secured all rights in and to the Client’s Data such that they are in the capacity to grant such licence to SGS IECC.  

7.3. The Client shall fully indemnify and keep SGS IECC indemnified against all losses and damages whatsoever arising directly or indirectly in relation to:

1. Any of the Client’s Data being illegal in nature or infringing any data protection or privacy rights; and
2. Any actual or alleged infringement of a third party’s Intellectual Property Rights arising from or in connection with any of the Client’s Data.

7.4. The Resultant Data and the Intellectual Property Rights contained therein shall be and shall remain the property of SGS IECC and the Client shall not alter or misrepresent the contents of the Resultant Data is any way. The Client shall be granted an exclusive licence to use the Resultant Data for internal purposes only or for any other purposes as mutually agreed by the Parties. 

7.5. SGS IECC further represents and undertakes that the Resultant Data shall not be used by SGS IECC other than for internal purposes which includes but not limited to the maintenance, calibration and updates of  S-Carbon and/or the Services.

7.6. The Client further acknowledges and agrees that SGS IECC owns all Intellectual Property Rights in S-Carbon, the Services and the Instruction. Except as expressly stated herein, this Agreement does not grant the Client any Intellectual Property Rights, or any other rights or licences in respect of the Services or the Instruction. For the avoidance of doubts, the use of SGS IECC’s corporate name or any other registered trademarks for advertising purposes is not permitted without SGS IECC’s prior written consent.

8. Confidentiality 

8.1. In respect of any Confidential Information received from the Disclosing Party or from a third party acting on behalf of the Disclosing Party, whether verbally, in writing or by demonstration, the Receiving Party and the Disclosing Party agree that:

1. The Confidential Information shall be kept in strict confidence and it shall only be used by the Receiving Party to discharge its obligations under this Agreement;
2. The Confidential Information shall not be disclosed to any third party without the express written consent of the Disclosing Party except that the Receiving Party may disclose the Confidential Information to its officers, employees, consultants, agents and sub-contractors who require access to the Confidential Information in connection with discharging the Receiving Party’s obligations under this Agreement, and provided that such officers, employees, consultants, agents and sub-contractors are made aware of the confidential nature of the Confidential Information and are subject to confidentiality obligations at least as onerous as those set out in this Agreement; and

8.2. The obligations of confidentiality as set forth in this Agreement shall not apply to the extent that the Confidential Information:

1. was in the public domain at the time of disclosure to the Receiving Party or subsequently becomes part of the public domain through no breach of this Agreement by the Receiving Party;
2. was in the Receiving Party’s possession without an obligation of confidentiality prior to receipt from the Disclosing Party, as the Receiving Party can document by tangible records;
3. is disclosed to the Receiving Party by a third party who, to the Receiving Party’s best knowledge, is not under obligation of confidentiality to the Disclosing Party;
4. is independently developed by the Receiving Party without reference to the Confidential Information;
5. is disclosed by the Receiving Party with the prior written consent of the Disclosing Party; or
6. is or becomes legally required or compelled to be disclosed, provided that notice shall be given to the Disclosing Party as soon as reasonably practicable and if legally permissible, such that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement, and the Receiving Party shall use commercially reasonable efforts to support the Disclosing Party in seeking such protective order or other appropriate remedy.

8.3. The obligations of confidentiality under this Agreement shall be effective as of the date of this Agreement and shall survive termination of this Agreement, howsoever rising. 

9. Privacy Policies

9.1. The privacy policies of SGS IECC, located at “www.sgs.com/Privacy-Policy”, which forms part of this Agreement, describes the collection, use, disclosure, retention and destruction of Personal Data by SGS IECC.  

9.2. SGS IECC acknowledges and declares it shall observe and comply with the abovementioned privacy policies and all applicable laws in the handling of the Personal Data provided by Client under this Agreement. 

10. Limitation of Liabilities

10.1. SGS IECC is neither an insurer nor a guarantor and disclaims all liability in such capacity. The Client shall obtain appropriate insurance if it seeks a guarantee against loss or damage.

10.2. SGS IECC shall not be liable to the Client nor to any third party:

1. For any loss, damage or expense arising from:
   1. a failure by the Client to comply with any of its obligations under this Agreement;
   2. any actions taken or not taken on the basis of the Services provided by SGS IECC; and/or
   3. any incorrect results, reports or certificates arising from unclear, erroneous, incomplete, misleading or false information provided to SGS IECC.
2. For loss of profits, production and business or costs incurred from business interruption; loss of revenue, opportunity, contracts, expectation, use and goodwill, or damage to reputation; loss of anticipated savings, costs or expenses incurred in mitigation loss and loss or damage arising from the claims of any third party that may be suffered by the Client; and/or
3. Any indirect and consequential loss or damage of any kind whatsoever (whether or not falling within the types of loss or damage identified in (b) above.

10.3. The liability of SGS IECC to the Client in respect of any claim for loss, damage or expense of any nature and howsoever arising shall be limited, in respect of any one event or series of connected events, to an amount equal to the fees paid to SGS IECC under this Agreement or US$15,000 (or its equivalent in local currency), whichever is lesser.

10.4. In the event of any claim, the Client must give written notice to SGS IECC within 30 days of discovery of the fact alleged to justify such claim and, in any case, SGS IECC shall be discharged from all liability for all claims for loss, damage or expense unless suit is brought within one year from:

1. The date of the performance by SGS IECC of the service which give rise to the claim; or
2. The date when the service should have been completed in the event of any alleged non-performance.

10.5. Except for cases of proven negligence or fraud by SGS IECC, the Client shall agree to hold harmless and indemnify SGS IECC and its officers, employees, agents, or subcontractors against all claims (actual or potential) of any third party for loss, damage or expense or whatsoever nature including all legal expenses and related costs and howsoever arising relating to the performance, purported performance or non-performance of the Services.

11. Termination

11.1. This Agreement shall continue in full force and effect pursuant to Clause 3 unless terminated earlier pursuant to this Clause 11.

11.2. Any Party not in default (“Non-Defaulting Party”) may terminate this Agreement by giving notice in writing to the Party in default (“Defaulting Party”) after the Non-Defaulting Party has received actual (not constructive) notice of the occurrence of any of the following events:

1. any material breach by the other of any of its obligations under this Agreement which, being a breach capable of remedy, is not remedied within 30 days of notice to the party in breach specifying the breach and requiring its remedy;
2. any meeting of creditors of the other being held or any arrangement or composition with or for the benefit of its creditors being proposed or entered into by or in relation to the other;
3. a supervisor, receiver, administrator, administrative receiver, or other encumbrancer taking possession of or being appointed over, or any distress, execution, or other process being levied or enforced (and not being discharged within seven days) upon the whole or any substantial part of the assets of the other;
4. the other party ceasing or threatening to cease to carry on business;
5. a petition being presented or a meeting being convened for the purpose of considering a resolution for the making of an administration order, the winding up, or dissolution of the other.

11.3. The termination of this Agreement for whatever cause shall not affect any provision of this Agreement which is expressed to survive or operate in the event of termination of this Agreement and shall not prejudice or affect the rights of any party against the other party in respect of any breach of this Agreement.

11.4. Upon the Termination of this Agreement for any reason:

1. All licences for the Client and any Authorised Users to use the Services and S-Carbon shall immediately terminate, SGS IECC shall at its sole discretion and without any liability to the Client, disable the Client’s account, password and access to all or part of the features of S-Carbon at any time thereafter
2. SGS IECC shall not be obligated to repay any fees paid by the Client under this Agreement;
3. Any provision of this Agreement which is expressed to survive or operate in the event of termination of this Agreement shall not be prejudiced;
4. Any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of the termination shall not be affected or prejudiced. 

12. Force Majeure

12.1. Neither Party shall be liable for any loss or damage resulting from any delay or failure in performance of its obligations hereunder resulting directly or indirectly from any cause that is beyond the control of the Party, including but not limited to, illness involving the workforce of SGS IECC, fire, flood, tornado, hurricane, earthquake or other acts of God, war, terrorism, casualty, accident, breakdown of plant or machinery, failure of utility service or transport network, embargo, governmental actions, orders of courts or tribunals, and general labor unrest, strikes, or lock-outs not within the control of the disabled Party. If such a force majeure event occurs, the affected Party shall promptly notify in writing the other Party of the event upon its commencement and the likely duration of any consequential delay or non-performance of its obligations, use its best efforts to avoid or mitigate the effect of the event and continue to fulfill its obligations which remain unaffected by the event. During the period of force majeure, the unaffected Party may seek to have its needs, which would otherwise be met under this Agreement, met by others without liability to the affected Party hereunder. If the event continues for more than thirty (30) days, then the Parties will meet to determine the impact of the force majeure event and the unaffected Party will have the right to terminate this Agreement with immediate effect and without incurring any liability whatsoever by giving notice in writing to the affected Party.

13. Notices 

13.1. Any notice to be given under this Agreement shall be in English and made in writing and may be delivered personally or sent by prepaid letter (airmail if overseas) or facsimile transmission or email.  A notice shall be sent to the addressee (marked for the attention of the appropriate person) at its address or facsimile number or email address set out below or to such other address or facsimile number or email address as may be notified by such addressee to the other Parties from time to time for the purposes of this Clause. Notwithstanding the aforesaid, it is agreed that serving notice by facsimile or email will not be an effective method of serving a notice of claim under this Agreement.

13.2. A notice shall be deemed to have been served:

1. if personally delivered, at the time of delivery;
2. if posted, if to an addressee within the same country, two (2) Business Days (or if to an addressee in a different country, five (5) Business Days, when it shall be sent by airmail) after the envelope containing the notice was delivered into the custody of the postal authorities;
3. if communicated by facsimile transmission or email, at the time of transmission

PROVIDED THAT where, in the case of delivery by hand or transmission by facsimile or email, such delivery or transmission occurs after 4 p.m. on a Business Day or on a day which is not a Business Day in the place of receipt, service shall be deemed to occur at 9 a.m. on the next following Business Day in such place.

14. General Provisions

14.1. Entire Agreement:

This Agreement (together with any document described in or expressed to be entered into in connection with this Agreement) constitutes the entire agreement between the Parties in relation to the transaction(s) referred to it or in them and supersedes any previous agreement between the parties in relation to such transaction(s).  It is agreed that:

1. 1. no Party has entered into this Agreement in reliance upon any representation, warranty or undertaking of any other Party which is not expressly set out or referred to in this Agreement; and
   2. except for any breach of an express representation or warranty under this Agreement, no party shall have any claim or remedy under this Agreement in respect of misrepresentation or untrue statement made by any other party, whether negligent or otherwise, and whether made prior to or after this Agreement, PROVIDED THAT this clause shall not exclude liability for fraudulent misrepresentation. 

14.2 Variation:

No variation of any of the terms of this Agreement (or of any document described in or expressed to be entered into in connection with this Agreement) shall be effective unless such variation is made in writing and signed by or on behalf of each of the Parties.  The expression “variation” shall include any variation, supplement, deletion or replacement however effected.

14.3 Remedies Cumulative:

Any right, power or remedy expressly conferred upon any Party under this Agreement shall be in addition to, not exclusive of, and without prejudice to all rights, powers and remedies which would, in the absence of express provision, be available to it; and may be exercised as often as such Party considers appropriate.

14.4 Waiver:

No failure, relaxation, forbearance, indulgence or delay of any Party in exercising any right or remedy provided by law or under this Agreement shall affect the ability of that Party subsequently to exercise such right or remedy or to pursue any other rights or remedies, nor shall such failure or delay constitute a waiver or variation of that or any other right or remedy.  No single or partial exercise of any such right or remedy shall preclude any other or further exercise of it or the exercise of any other right or remedy.

14.5 Severability:

The Parties intend that the provisions of this Agreement shall be enforced to the fullest extent permissible under the laws applied in each jurisdiction in which enforcement is sought. If any particular provision or part of this Agreement shall be held to be invalid or unenforceable, then such provision shall (so far as invalid or unenforceable) be given no effect and shall be deemed not to be included in this Agreement but without invalidating any of the remaining provisions of this Agreement.  The parties shall use all reasonable endeavours to replace the invalid or unenforceable provisions by a valid and enforceable substitute provision the effect of which is as close as possible to the intended effect of the invalid or unenforceable provision.

14.6 Assignment:

This Agreement shall be binding upon, and inure to the benefit of, the Parties and their respective successors and permitted assigns.  The Client shall not take any steps to assign, transfer, charge or otherwise deal with all or any of its rights and/or obligations under or pursuant to this Agreement without the prior written consent of the SGS IECC.  Any assignment shall not relieve the assignor from any liability or obligation under this Agreement.

14.7 Counterparts:

This Agreement may be executed in any number of counterparts all of which, taken together, shall constitute one and the same agreement. Any Party may enter into this Agreement by executing any such counterpart.

14.8 Legal Relationship:

The Parties are independent principals and no Party is nor shall it hold itself out as the agent or partner of another, and no Party shall have any authority to bind or incur any liability on behalf of any other Party.

14.9 Third Party Rights:

The parties do not intend any term of this Agreement to be enforceable pursuant to the Contracts (Rights of Third Parties) Ordinance (Cap. 623). No consent of any person who is not a party hereto is required for any amendment (including any release or compromise of any liability) or termination of this Agreement.

14.10 Representations and Warranties of Parties:  

Each Party represents and warrants to the others that:

1. 1. it has all necessary corporate capacity to enter into and perform this Agreement and has taken all necessary corporate action to authorise the entry into and performance of this Agreement; and
   2. it has obtained all consents and approvals, and made all notifications, of any nature, that are required to be obtained or made for the purpose of entering into or implementing this Agreement, except for those expressly contemplated by this Agreement to be obtained subsequently.

14.11 Costs and Expenses:

Except as expressly agreed otherwise in writing, each of the parties shall bear its own costs and expenses, including all legal costs, incurred by such party in connection with this Agreement.

15. Law and Jurisdiction

15.1 All disputes arising out of or in connection with contractual relationship(s) hereunder shall be governed by the substantive laws of Hong Kong , exclusive of any rules with respect to conflicts of laws and be finally settled under the Rules of Arbitration of the International Chamber of Commerce of Hong Kong by one or more arbitrators appointed in accordance with the said Rules, each party to bear its own costs. The arbitration shall take place in Hong Kong and be conducted in the English language.

[OR: All disputes arising out of or in connection with contractual relationship(s) hereunder shall be governed by the substantive laws of Hong Kong , exclusive of any rules with respect to conflicts of laws and be finally settled under the Rules of Arbitration of the Shanghai International Arbitration Center (SHIAC) by one or more arbitrators appointed in accordance with the said Rules, each party to bear its own costs. The arbitration shall take place in Shanghai and be conducted in the Chinese language]

15.2 Notwithstanding the aforesaid, either party may seek injunctive or other equitable relief in any court of competent jurisdiction to protect any actual or threatened misappropriation or infringement of its intellectual property rights arising from this Agreement. Each party further agrees to submit to the jurisdiction of such courts and waives any objection thereto on the basis of improper venue, inconvenience of the forum or any other grounds.